Premises Liability

The Court of Appeals Will Review the Second Department’s Expansion of Liability of Commercial Owners and Managing Agents for the Negligence of their Independent Contractors

In Pesante v Vertical Indus. Dev. Corp., 2016 NY Slip Op 05854 (2d Dep’t August 24, 2016), the Second Department greatly expanded liability of commercial property owners and managing agents for the negligence of their independent contractors. It was not clear from the one page decision whether the Court was aware of the far reaching consequences of what it had done. Recently, the Second Department granted a motion for leave to appeal. The matter is now on its way to the Court of Appeals. In Pesante, the plaintiff claimed he was walking with a friend in a parking lot owned by the Vertical Industrial Development Corp. (“Vertical”) and managed by Rentar Development Corp. (“Rentar”), when she was struck by a remote-controlled toy car. The parking lot was patrolled by the employees of the owner’s independent security contractor. There was testimony that immediately prior to the accident, the security guard was…Read More

Updating Tort Law For Advances in Prosthetics (Cyborgs)

This article is reprinted with permission by the New York Law Journal from an article that was published on August 28, 2015. In 2009, the CBS news program 60 Minutes profiled the former Director of Veterans Affairs Fred Downs, who lost his left arm in Vietnam. He had relied upon a hook style prosthetic for four decades, when he strapped on a new prototype robotic arm and picked up a bottle of soda and raised it to his lips. In a subsequent episode, when recalling that moment, Downs became emotional, telling reporter Scott Pelley “the feeling is hard to describe, for the first time in 40 years, my left hand did this [grasping]…it felt so good to move my arm again”. Pelley noted Downs had said “moved my arm again”. Pelley asked if it actually felt like his arm. Downs emphatically responded “it did, it felt like my arm, it…Read More

The Legal Rights of Cyborgs – Should Damage to a Prosthetic Be Considered Property Damage or Personal Injury?

This blog post is a reprint, with permission, of an article published in the New York Law Journal on March 25, 2015. From time immemorial, our common law has provided one set of remedies for damage to one’s property and another set for damage to one’s person. While the latter allows the full gamut of recovery including pain and suffering, lost earnings, medical expenses, lost enjoyment of life and loss of consortium, the former merely allows recovery of the property’s repair or replacement value. One cannot even recover for the sentimental value of property[i]. Yet today, many of us depend on our devices to perform the normal tasks of living, such as walking, talking, hearing and seeing. Damage to these prosthetics can leave a person without the ability to work or perform activities of daily living until repaired. As demonstrated in this article, there is arguably a new suspect class…Read More

G&S Obtains Summary Judgment Dismissing Various Toxic Exposure Claims as Time Barred

G&S recently obtained summary judgment dismissing various claims as time barred on behalf of several World Trade Center defendants. The plaintiff claimed he suffered various injuries due to his work cleaning the interior of buildings after the World Trade Center attacks. We argued that all of plaintiff’s 14 separate claims of injury were subject to the three year statute of limitation [CPLR 214-c(2)] which runs from the date of discovery of the injury or from the date the plaintiff should have discovered the injury, whichever is earlier. Plaintiff claimed that as a result of his post 9/11 work he developed a number of symptoms including coughing, chest pressure, headaches, throat irritation, nasal congestion, heartburn, shortness of breath, trouble sleeping, and psychological problems, among others. We argued that all of his injures were linked to at least one of these symptoms prior to December 17, 2004, three years prior to the…Read More

G&S Obtains Dismissal of Claim Against YMCA in Locker Room Slip and Fall Case

The Appellate Division, First Department affirmed the Order of the Supreme Court, Bronx County which granted summary judgment to the YMCA in a locker room slip and fall accident. The female plaintiff, who had been in the women’s locker room, with her daughter, for fifteen minutes, without noticing any water on the locker room floor, allegedly slipped and fell on a puddle of water in close proximity to the bench where she had changed into her bathing suit prior to an aqua aerobics class in the YMCA’s indoor pool. Although the YMCA’s female porter, who was responsible for maintaining and inspecting the locker room, was absent from work that day, the YMCA’s male porter ensured that the female staff members continuously checked the locker room floor for water during her absence. The Appellate Division held that the YMCA met its burden of demonstrating lack of notice of the alleged wet…Read More

Labor Law Claims Against Husband Dismissed but Allowed Against his Wife – Homeowner Exemption

In an unusual Labor Law case, Judge Billings dismissed a Labor Law §§240(1) and 241(6) claims against the owner of a one family dwelling, but granted the plaintiff’s motion to assert the same claims against the owner’s wife. Plaintiff in Pizarro v. Lignelli, 102474/2011, NYLJ 1202641219115, at *1 (Sup. NY, Decided January 6, 2014) was injured while renovating defendant’s single family house. Plaintiff also claimed violations of Labor Law §§200 and common law negligence. Defendant moved for summary judgment based on the exemption under the Labor Law for owners of 1-2 family dwellings, when the owner contracts for, but does not supervise, direct, or control the construction to which the Labor Law applies. In response, plaintiff cross-moved to add the same claims against defendant’s wife. The evidence established the premises was a single family dwelling and that plaintiff fell 7-8’ off of a ladder without any safety devices. Defendant claimed…Read More

Empire State Building Sues Photographer over Topless Viral Photograph – Seeks Punitive Damages

After purchasing tickets to the Empire State Building (“ESB”) observatory deck, Allen Henson, a photographer, took cell phone photos of a topless model who accompanied him. He later posted them to a social media site and they went “viral”. They can be seen at: http://www.nydailynews.com/new-york/boobs-photog-hit-1-1m-suit-article-1.1578135. In January 2014 Mr. Henson was served with a lawsuit by ESB seeking $100,000 in compensatory damages and $1 million punitive damages based on the legal theory than Henson’s cellphone photo shoot was “unlawful and tortious and caused ESB damage to its business and its reputation as a safe and secure family friendly tourist attraction.” ESB claimed that Henson was guilty of tortious trespass. ESB did not name the model who appears to us to have had at least equal responsibility. While it is understandable that ESB would not want topless women mixing with tourists unaccustomed to public nudity, ESB’s contention that Henson’s actions constituted…Read More

Little League Baseball Coach Sues 14 Year Old Player on his Own Team For Throwing Helmet

A California Little League baseball coach Alan Beck has sued a 14-year-old he was coaching as well as the child’s parents, alleging that after getting the game-winning hit the boy tossed off his helmet as he was running toward home plate which allegedly struck Beck’s Achilles tendon and tore it. The complaint asks for $500,000 in pain and suffering and $100,000 in lost wages and medical bills and also named the boy’s parents who have reportedly already spent $4,000 defending the action. The case has no merit and is frankly, suspicious. Obviously the child is judgment proof so the case is really against the parents. However, the law is clear, parents are not vicariously liable for the torts of their children absent certain defined exceptions such as if the child was working for the parents or there was some type of agency between them or where the parents encouraged the…Read More

Court Of Appeals Changes Standard For Collateral Estoppel

On December 10, 2013 the Court of Appeals, in a stunning unanimous decision, reversed its own ten-month old determination, that an individual found able to return to work by the Worker’s Compensation Board (WCB), was precluded from re-litigating the issue in a subsequent civil suit. The plaintiff in Auqui, Jose Verdugo, was injured on December 24, 2003 when a sheet of plywood fell from a building and struck him, causing head, neck, and back injuries. At a full WCB hearing, in which both sides were permitted to introduce expert medical testimony subject to cross examination, the administrative law judge found that Verdugo wasno longer disabled as of January 24, 2006. On review, the Worker’s Compensation Board panel affirmed the finding. Meanwhile, Verdugo’s wife, acting as her husband’s guardian, brought a lawsuit against the owner of the premises[1]. The owner moved to preclude the plaintiff from “re-litigating” the date his disability…Read More

Worker Falls Into 45 Gallon Kettle of Soup and Suffers 2d and 3rd Degree Burns – G&S Defends Restaurant

Plaintiff worked for a company that cleaned industrial exhaust systems. Our client operated a restaurant inside the Manhattan headquarters of an international bank. Plaintiff’s employer cleaned the kitchen exhaust hood monthly on the first Friday of the month. They were hired by the building manager not by the restaurant. Plaintiff cleaned at night after the restaurant/kitchen was vacant. The building manager typically notified our client the day the exhaust hoods would be cleaned to give it the option to reschedule if the kitchen was needed for a night event and to make sure the kitchen was properly secured. However, in the months prior to the accident, the building manager had stopped providing the restaurant with notice. Without notice of the cleaning, the chef prepared an industrial sized kettle of broth to slow cook overnight. This was done bi-monthly to use in various dishes. The kettle sat directly underneath the exhaust…Read More