Commercial premises successes
Trial Successes
Quiros v. Sagamore Realty[Supreme Bronx]Defense Verdict. The then 12 year-old plaintiff claimed to have tripped and fallen as a result of defective lighting beneath a sidewalk bridge located in front of our client’s building that was undergoing renovation.
Apparently, the infant plaintiff was suffering from an as yet undiagnosed condition known as a Slipped Capital Femoral Epiphysis (SCFE), and claimed that accident resulted in a far more serious injury because of this underlying condition. The child indeed suffered significant injuries to his leg, for which he had already undergone nine of twelve prescribed surgeries in the seven years since the accident. He has been left with a 2-inch discrepancy in the lengths of his legs, and other significant residuals.l Efforts to reach a reasonable settlement agreement with plaintiff’s counsel failed and the matter proceeded to a unified trial before a Bronx County jury. At the end of the two-week trial, the jury deliberated for less than one hour before rendering a Defense Verdict on behalf of our client. The jurors agreed with the evidence we presented that the claim of the plaintiff and his two eyewitnesses that the lights beneath the sidewalk bridge had been out for weeks prior to the incident was untrue. The jury concluded that our client was not negligent and did not cause this accident.
“Jane Doe” v. ABM [Supreme New York] Defense Verdict Plaintiff worked in a back-office bank facility, for which our client provided security personnel. Although plaintiff alleged that she had notified the security officers that she had obtained an Order of Protection against her former husband, the ex-husband nonetheless gained entrance to the building, convinced plaintiff to leave with him, and then repeatedly slashed her about the face when they got to the street. We convinced the jury that the alleged negligent security within the building was not a proximate cause of the assault that took place outside after plaintiff made the intervening and unfortunate decision to leave the building with her assailant.
PETTYJOHN v. NYCTA [New York Supreme] Defense Verdict. Plaintiff claimed to have slipped and fallen on the steps in a subway station due to the presence of water that was dripping from the adjacent wall. Plaintiff presented evidence that the presence of water on the steps was a recurring condition. On cross-examination, we established that the area of wetness was located immediately adjacent to the wall, beneath the stairway banister, and that the rest of the steps were free of any debris. The jury rendered a defense verdict, agreeing with our defense that the presence of a small amount of rainwater in a corner of the steps did not render the subway station to be unreasonably maintained. Plaintiff had suffered a bimalleolar fracture for which he underwent an open reduction and internal fixation.
Gueye v. NYCTA [Supreme New York] Defense Verdict Plaintiff was riding an escalator in the 34th Street 6th Avenue Subway Station in Manhattan, and claimed that the escalator suddenly stopped, causing her to fall. Plaintiff sustained a left ankle tendon tear, requiring a surgical repair. The NYCTA and Police Aided accident reports confirmed the accident details. Plaintiff relied at trial upon the legal doctrine of res ipsa loquitor, and also upon documentary proof that there had been prior malfunctions in this escalator during the 12- month period before this accident. We successfully argued to the jury that the escalator maintenance records actually revealed that the escalator was properly maintained and that the previous malfunctions were unrelated to the unforeseen malfunction that caused the escalator to stop suddenly while plaintiff was a passenger. The jury deliberated only 20 minutes before rendering a defense verdict.
Appellate Successes
Toner v. National R.R. Passenger Corp. 71 A.D.3d 454, 894 N.Y.S.2d 873 (1st Dept. 2010) The plaintiff slipped and fell at the bottom of a stairway at the 7th Avenue entrance to Penn Station in Manhattan. While the parties disputed whether it was still raining and whether warning signs were displayed, we proved that weather mats had been placed at the bottom of the stairway and that porters were mopping the floors at the time of the accident. The lower court denied our motion for summary judgment, holding that questions of fact existed. In reversing the lower court’s ruling and granting summary dismissal of the complaint, the Appellate Division held that plaintiff’s testimony was insufficient to establish that our client had acted unreasonably under the prevailing circumstances. (Judah Z. Cohen)
Alvarez v. American Int’l. Realty Corp. 60 A.D.3d 793, 876 N.Y.S.2d 435 (2d Dept. 2009) Plaintiff allegedly slipped and fell in front of a freight elevator in a building owned by the direct defendant. Our client, a well-known janitorial maintenance company, was hired by the building owner to maintain the building, and was impleaded by the building owner. Although the plaintiff did not observe any wetness on the lobby floor before the accident, she believed that the floor became wet because it was raining that day. Plaintiff claimed further that, although there were weather mats on the lobby floor running from the front of the entrance to the security desk, there were no such mats in front of the freight elevator where she fell. We obtained a court order granting summary judgment on behalf of the building owner and the maintenance company. The plaintiff appealed, but the Appellate Division affirmed the decision.
Maldonado v Novartis 58 A.D.3d 813, 872 N.Y.S.2d 174 (2d Dept. 2009) Plaintiff slipped and fell on “black ice” located on an outdoor grating, where he claimed he was directed to dump liquid refuse as part of his cleaning duties. Our summary judgment motion on behalf of the premises owner was granted by the lower court, which agreed with our argument that the owner had no duty to keep such outdoor grating free of ice and snow. The court also agreed that plaintiff could not prove notice of the “black ice,” since even he claimed not to have noticed it until after he slipped and fell. Plaintiff had been seriously injured and rejected a settlement offer of $250,000. Plaintiff appealed, but the Appellate Division affirmed the dismissal, holding that plaintiff failed to raise a triable issue of fact regarding whether our clients created or had notice of the condition. Any other knowledge of the condition complained of was considered to merely constitute a “general awareness,” and therefore insufficient to withstand summary dismissal.
Pomahac v. TrizecHahn 1065 Ave. of Americas, LLC. 65 A.D.3d 462, 884 N.Y.S.2d 402 (1st Dept. 2009) Plaintiff slipped and fell in a building lobby, due to either tracked-in rainwater or spilled coffee. The lower court originally granted our summary judgment motion on behalf of the janitorial maintenance company, but then reversed itself upon the plaintiff’s motion to reargue, holding that there were questions of fact to be resolved by the jury. We pursued an appeal on behalf of our client, in which the Appellate Division reversed and dismissed the complaint against our client. The Appellate Division agreed with our position that the evidence established that our client had acted reasonably, and that the “Storm-in-Progress” doctrine applied to obviate liability. Moreover, the Appellate Division rejected plaintiff’s expert affidavit, upholding our argument that an internal rule requiring the maintenance staff to cover the entire lobby floor with weather mats, created a standard of care higher than that imposed by law, and could not be utilized to impute negligence.
Walters v. Collins Bldg. Services 57 A.D.3d 446, 871 N.Y.S.2d 25 (1st Dept. 2008) leave to reargue and/or appeal to Court of Appeals, denied (2009). Plaintiff claimed she was caused to slip and fall on water that came from an overflowing toilet in a ladies’ restroom located on the floor of the building where she worked. The lower court denied the motion for summary judgment we submitted on behalf of the janitorial maintenance company we represented. However, on appeal, the Appellate Division reversed, dismissing the complaint. The Appellate Division agreed with our argument that there was no proof of notice to our client, and that the condition complained of did not constitute a recurring condition routinely left unaddressed. We also opposed plaintiff’s subsequent motion to the Appellate Division for reargument and/or for leave to appeal to the Court of Appeals, which was denied.
Min v. ABM 47 A.D.3d 699, 848 N.Y.S.2d 881 (2d Dept. 2008) Plaintiff slipped and fell in a puddle of water that had accumulated in the lobby of a commercial building maintained by our client pursuant to a janitorial service contract with plaintiff’s employer, the owner of the building. The lower court granted our summary judgment motion, and the Appellate Division subsequently affirmed, holding that the maintenance company owed no duty to plaintiff, since the relevant contract did not displace the owner’s duty to safely maintain the premises, and that there was no proof that our client had created the condition complained of.
Scoppettone v. ADJ Holding Corp., 41 AD3d. 693, 839 N.Y.S.2d 116 (2d Dept. 2007) Plaintiff worked as an assistant in a medical office located in our client’s building. She claimed to have tripped and suffered serious injury, as a result of missing floor tiles located beneath a weather mat immediately inside the front door. We moved for summary judgment, arguing that plaintiff could not prove either actual or constructive notice of the allegedly missing floor tiles, since she acknowledged that they were hidden beneath the weather mat that was always in place. The lower court granted our motion, and on appeal, the Appellate Division affirmed.
Summary Judgment & Dispositive Decisions
Ivezaj v. Schindler Elevator [Supreme Bronx] Plaintiff, a janitorial worker, alleged that while descending in a freight elevator, the elevator suddenly dropped. Plaintiff claimed that since another janitorial worker was operating the elevator at the time, our client, their common employer, should be held legally responsible. The lower court agreed with our position that liability should not rest with our client simply because its employee was assigned the task of pressing the up and down buttons of the elevator. The court cited our proof that our client otherwise had not assumed any responsibility for the maintenance and upkeep of the elevator functions. As a result, the court dismissed the plaintiff’s complaint and the cross-claims of the building owner against our client.
Casey v. RCPI Landmark Properties [Supreme New York] Plaintiff slipped and fell during a heavy snowstorm, at the entrance of a commercial building. We moved for summary judgment on behalf of the building owner on two grounds that the “Storm in Progress” doctrine obviated any potential liability, and that the accident pre-dated the enactment of NYC Administrative Code §7-210, by which the responsibility for removal of snow and ice from public sidewalks was shifted onto the adjacent landowners. The court agreed with our argument, and dismissed the complaint and all cross-claims with respect to our client.
DeOca v. RCPI Landmark [Supreme New York] Plaintiff slipped and fell on an unidentified sticky substance on the basement floor of Rockefeller Plaza. Plaintiff alleged that the sticky substance could only have resulted from the janitorial staff’s negligent removal of garbage throughout the complex and in transporting such rubbish through the basement. On behalf of our client, the janitorial services contractor, we moved for summary judgment, relying upon evidence we provided that many of the tenants removed their own garbage through the basement area, and arguing that there was insufficient proof to raise a reasonable inference that this particular sticky substance was left by our client’s staff. The court agreed and summarily dismissed plaintiff’s complaint.
Ilyas v. Hilt-Hunt, LLC & Hilton Huntington [Supreme Queens] Plaintiff claimed that he slipped and fell at night in the parking lot of the Huntington Hilton due to inoperative lighting. We argued on behalf of the hotel operators that there was no proof of notice of the allegedly insufficient lighting conditions. We produced maintenance records for six months prior to the date of accident, which did not reveal any complaints concerning inadequate lighting conditions in the parking lot. The court, in dismissing the complaint upon our motion for summary judgment, agreed that proof of notice was insufficient and that plaintiff had also failed to establish that inadequate lighting was the proximate cause of his accident.
Karp v. Raffi Daniels Realty Corp et al. [Supreme New York] The plaintiff claimed to have been assaulted by employees of a tenant in a commercial building. Plaintiff sued not only the employer tenant, but also our client, the out-of-possession owner of the premises. We moved to dismiss all claims against our client. Plaintiff opposed our motion by claiming that our client could be held liable for failing to provide reasonable and appropriate security. The court granted our motion, thereby dismissing the complaint and all cross-claims against our client, and simultaneously granted our request for defense costs awarded against the co-defendant tenant.
Kiley v. 560 LEXCO and ABM [Civil New York] Plaintiff was injured when she tripped and fell on buckled carpeting at her office located in a commercial building in midtown Manhattan. Plaintiff claimed that this condition was caused by our client’s janitorial staff, when they moved furniture in and out of her office. We successfully argued, in a summary judgment motion on behalf of our client, that it owed no duty to the plaintiff under the Espinal doctrine.
Massenberg v. Brookfield Properties Corp. [Civil Bronx] We obtained a court order dismissing the plaintiff’s complaint, for failing to comply with outstanding discovery. Plaintiff moved to vacate the dismissal, citing law office failure. However, the court agreed with our opposition that plaintiff’s repeated failure to comply with court-ordered discovery warranted the dismissal, and the court adhered to its original decision.
Salvesen v. 184 West 10th Street Corp. [Supreme Court, New York] We represented the owner of commercial premises abutting a sidewalk on which plaintiff claimed to have tripped and fallen. Although plaintiff admitted that he did not know what had caused him to fall, he claimed that his fall resulted in injury to his face when he struck his head against a brick of an allegedly defective perimeter of a tree well. Plaintiff argued that the defective brick perimeter of the tree well, which the building owner had constructed, constituted an “instrument of harm” that presented a foreseeable potential for causing injury. The court agreed with our contention that the allegedly defective brick perimeter, which may have caused the ultimate injury, was not the cause of the fall itself. Accordingly, the court granted our summary judgment motion.
Hansen v. Zar Realty Management [Supreme New York] Plaintiff claimed to have slipped and fallen on the marble floor of a commercial building in midtown Manhattan, as a result of the presence of a puddle of rainwater that had accumulated. She claimed that our client, the building’s janitorial maintenance company, failed to cover the lobby floor adequately with weather mats or to mop the rainwater from the floor. We moved for summary judgment on behalf of our client, arguing that the incident occurred during an ongoing rainstorm, and that it was not responsible, during a storm in progress, to constantly maintain dry floors. Plaintiff argued in opposition that there were issues of fact as to whether those responsible for the building took reasonable precautions to address a known, obvious, and recurring condition in the lobby when it rains. The court granted summary judgment and dismissed the complaint in its entirety, agreeing with our position that the allegedly slippery condition was not caused or created by our client or by the building owner, nor could plaintiff prove actual or constructive notice prior to the subject occurrence. The court also agreed that the “storm in progress” rule suspends a defendant’s duty to remedy a dangerous condition allegedly created by the weather, while the storm is in progress and for a reasonable time after the storm ends. The court also agreed that the defendants were not required to cover the entire lobby floor with mats and to continually mop or otherwise remedy the problem of water being tracked into the premises during the ongoing storm. Finally, the court ruled that, since our client could not be found negligent under the circumstances, it did not owe contractual or common law indemnification to the building owner.
Retail Establishments
Trial Successes
Littos v. CEC Entertainment[Supreme Suffolk]Defense Verdict. An 18-month-old infant was placed by her mother on a coin-operated merry-go-round located in a children’s play area of our client’s family-oriented restaurant. The mother attended closely to the child as the toy ride slowly rotated. When the mother turned away momentarily, the child fell to the floor, resulting in a significant fracture of her arm. Plaintiffs claimed our client was negligent for failing to provide a restraining belt to hold children firmly in place on the ride. We presented not only a liability expert, but also the official New York State inspector, both of whom testified that the ride met all legal requirements in spite of the absence of a restraining belt. We also presented expert testimony that a belt would be even more dangerous to an infant rider by creating a potential choking hazard. The jury determined that there was no negligence on the part of our client in operating and maintaining a coin-operated ride that had been manufactured and maintained to all legal specifications.
Summary Judgment & Dispositive Motions
Crook v. Wendy’s Int’l. [Supreme Suffolk] Plaintiff, an elderly woman, claimed she slipped and fell on the floor of our client’s restaurant due to spilled liquid. Plaintiff testified that she had observed a restaurant employee mopping the floor shortly before her accident. As a result of the occurrence, she had to undergo a total hip replacement, and was eventually forced to live in a nursing home. We moved for summary judgment, based upon plaintiff’s inability to establish actual or constructive notice of the spilled liquid. The court agreed with our position that plaintiff’s claims were purely speculative, and that there was no evidence establishing that the restaurant created the condition or had actual or constructive notice of it.
Hyman v. Baldwin Bowling Center, Inc. [Supreme Kings] Plaintiff claimed that he was seriously injured when he fell into an open stairway located immediately outside our client’s bowling alley. He presented evidence from an expert engineer, alleging that the steps failed to comply with the local building code or with ANSII standards. We moved for summary judgment on behalf of our client, producing documentary proof that the building and the subject staircase were constructed in 1938, some 35 years prior to the building code which plaintiff’s expert claimed had been violated, and that such staircase was built in accordance with the standards in effect at that time. The lower court agreed, dismissing the complaint in its entirety. Plaintiff then filed a Notice of Appeal, and his first motion to enlarge the time to perfect such appeal was granted without opposition. However, when plaintiff allowed the new deadline to pass, and moved for a second enlargement, we opposed. The Appellate Division agreed with our position that there was no reasonable excuse for the plaintiff’s delay in prosecuting her appeal, and dismissed such appeal.
Tocco v. Rite Aid [Supreme Nassau] Plaintiff tripped and fell over a merchandise bin that had been left in the aisle of our client’s drug store. We moved for summary judgment, arguing that the brightly colored bin was both open and obvious and not inherently dangerous. Plaintiff alleged that there was a question of fact as to whether he tripped over one bin or three bins. The court agreed with the position we asserted in our Reply, holding that it was irrelevant whether plaintiff tripped over one bin or three, since the condition was open and obvious and not inherently dangerous in either instance.
Ilyas v. Hilt-Hunt, LLC & Hilton Huntington [Supreme Queens] Plaintiff claimed that he slipped and fell at night in the parking lot of the Huntington Hilton due to inoperative lighting. We argued on behalf of the hotel operators that there was no proof of notice of the allegedly insufficient lighting conditions. We produced maintenance records for six months prior to the date of accident, which did not reveal any complaints concerning inadequate lighting conditions in the parking lot. The court, in dismissing the complaint upon our motion for summary judgment, agreed that proof of notice was insufficient and that plaintiff had also failed to establish that inadequate lighting was the proximate cause of his accident.
Vazquez v. Genovese Drug Stores [Supreme Bronx] Plaintiff claimed to have tripped and fallen at the entrance of our client’s drug store, and that she realized a weather mat was askew immediately after her fall. Following the completion of pre-trial discovery, we moved for summary judgment, arguing that plaintiff’s claim that she tripped and fell as a result of the mat being askew was speculative, since the condition could have arisen as a result of the fall. We also argued that she could not prove actual or constructive notice of any defective condition of the weather mat prior to the occurrence. The court agreed, and dismissed the complaint against our client.
Dawson v. Rite Aid [Supreme Kings] Plaintiff was wheelchair-bound, due to pre-existing diabetes and arthritis. She was in our client’s drug store, utilizing a motorized wheelchair, when she claims that she fractured her ankle while trying to navigate around boxes of merchandise that had been left unattended in the store aisles. The court granted our summary judgment motion, dismissing the complaint against our client, agreeing with our argument that the merchandise boxes were open and obvious and that a safe, alternative path in the aisle was present. The court also rejected plaintiff’s claim that our client could be held liable for allegedly violating the Americans with Disabilities Act (ADA), by failing to provide a path wide enough for her wheelchair.
Muhammad v. Rite Aid [Supreme Queens] Plaintiff alleged to have been injured because of a trip and fall incident on a public sidewalk abutting our client’s drug store in Queens. He testified at a deposition that he stubbed his foot on an elevation between two sidewalk flags that he estimated was approximately two inches. However, his scene photographs showed no significant difference in elevation between the adjacent sidewalk slabs. We moved for summary judgment, asking the court to consider only the photographs that showed no height differential, and reject the plaintiff’s self-serving testimony to the contrary. The court agreed, ruling that the plaintiff’s photographs did not depict an actionable defect of the sidewalk, and that the plaintiff’s testimony was insufficient to raise a triable issue of fact.
Gypsie Running Cloud v. Furniture.com[Supreme Kings] Summary Judgment Granted. Plaintiff, a Brooklyn resident, ordered furniture on the Internet from our client, based in California. The furniture was shipped across country by a long-haul delivery company that, in turn, hired a local delivery company to deliver the furniture to the plaintiff. The plaintiff was injured when one of the pieces of furniture fell from the truck onto his foot. Although our client was no longer in business and we could not produce any witness on its behalf, we moved for summary judgment upon the completion of pre-trial discovery. The Court granted our motion, based on our argument that our client owed no duty to the plaintiff and that the sole proximate cause of the plaintiff’s injury was the negligence of the local delivery truck driver who was not employed, supervised or directed by our client.
