Defendants in New York personal injury cases often attempt to prevent a case from going to trial by moving for summary judgment.  To succeed in a motion for summary judgment, the defendant must show that it is entitled to judgment as a matter of law.  To make this showing, the defendant must establish that there is no triable issue of fact.  Generally, a defendant’s motion for summary judgment should not be granted if there is conflicting evidence that speaks to an element of the claim.

cracked concreteIn the recent case of Davidson v. New York City Transit Authority, the defendant moved for summary judgment despite its own driver’s inconsistent testimony about the accident.  The plaintiff was injured when she fell as she exited a city bus, and she sued the New York City Transit Authority (NYCTA).  The NYCTA moved for summary judgment, arguing that it had not breached its duty to provide the plaintiff with a safe place to exit the bus.

New York case law has held that a common carrier, like a city bus, must stop at a safe place for its passengers to enter and exit the vehicle.  The common carrier may be liable if the driver stops the bus in a location that requires the passenger to cross a dangerous or defective path to board or exit the bus.  Even if the driver stops at an unsafe location, the common carrier may not be liable if the driver did not know of the dangerous condition.

Continue reading

New York Labor Law protects construction workers and places liability on owners and contractors under certain circumstances. Plaintiffs injured in a construction accident often bring claims under multiple sections of the Labor Law, as in Daniel v 384 Bridge St. LLC.

wood boardThe plaintiff alleged he was injured when he stepped on the edge of a piece of plywood covering a hole in the floor while walking through the construction site.  The plaintiff filed suit against the owner of the construction project, the construction manager, a subcontractor hired to perform concrete work, a subcontractor hired to perform carpentry, and his employer, which had been hired to do the window work.  The plaintiff filed claims for common law negligence and violations of New York Labor Law §§ 200, 240(1), and 241(6), and his wife asserted a claim for loss of consortium.  The defendants moved for summary judgment.

Pursuant to § 240(1), known as the Scaffold Law, contractors and owners must provide certain safety devices, including scaffolding, hoists, and ladders, to protect workers.  The court granted the motion as to the § 240(1) claim, finding that the section did not apply because there was no allegation that an elevation or gravity-related risk contributed to the injury.

Continue reading

In construction accident cases, the defendants are often in possession of information the plaintiff may need to prove his or her case. In New York litigation, there is to be “full disclosure of all matter material and necessary in the prosecution or defense of an action” by a party. CPLR § 3101(a). Among the discovery devices available are interrogatories and demands for discovery and inspection of documents or property. CPLR § 3102(a). Sometimes a party does not want to produce the requested documentation or property. If a party wishes to object to the disclosure, that party must make the objection within 20 days of service of the notice. CPLR § 3122(a)(1). The party may also move for a protective order under CPLR § 3103.

hard hat areaIn McDougal v. WWP Office, LLC, the defendants moved for a protective order from the plaintiff’s notice of discovery and inspection. The plaintiffs cross-moved to strike the defendants’ answer or alternatively to compel the defendants to produce the requested documents.

The plaintiff was performing construction work at the site when the ceiling struck him. The plaintiff was employed by a non-party. He filed negligence and Labor Law claims against the building owner, the building occupier, and a construction company hired by the occupier.

Continue reading

Liability is often difficult to determine in accidents involving multiple cars.  In some cases, however, liability can be fairly straightforward.  In New York, a rear collision with a stopped vehicle establishes a prima facie case of negligence against the driver of the rear vehicle.

crash-carOne New York court recently considered liability in a case involving a four-vehicle accident.  The plaintiff in Martey v. Gotham Area Limousine Corp. was riding as a passenger in a vehicle owned by a limousine company at the time of the accident.  The plaintiff’s affidavit state that the driver encountered stopped vehicles as he approached the intersection and struck the rear of one of the vehicles.  That vehicle then struck the vehicle in front of it, which in turn struck the vehicle in front of it.

The plaintiff filed suit against the drivers and vehicle owners.  She moved for summary judgment on the issue of liability, arguing that she was an innocent passenger who did not contribute to the accident.  The driver and owner of the vehicle in which the plaintiff was riding argued that the motion was premature because discovery had not yet been conducted.  The driver also submitted and affidavit claiming that the vehicle in front of him had caused the accident by stopping abruptly.

Continue reading

New York in winter can be dangerous for pedestrians.  Although property owners in many New York cities have a duty to clear sidewalks abutting their property, New York law does not require them to remove accumulation during a “storm in progress,” and it gives them a reasonable amount of time after the storm stops to clean the sidewalk.

snowThe Supreme Court in New York County recently considered whether the storm in progress rule would prevent recovery in Bagnoli v. 3GR/118 LLC.  This case arose from a slip and fall on a sidewalk.  The injured man and his wife filed suit against the owners of the property abutting the sidewalk.  The defendants moved for summary judgment, arguing that they did not have a duty to remove the snow or ice on the sidewalk, pursuant to the storm in progress rule.  The plaintiffs argued that there was not a storm in progress at the time of the fall, and even if there was a storm in progress, the fall was the result of the defendants’ failure to remove accumulation from an earlier storm.

A defendant can support a motion for summary judgment based on the storm in progress rule by submitting “certified climatological data” that shows there was an ongoing storm at the time of the accident.  A plaintiff, however, can succeed in countering the motion by showing the accident resulted from accumulation caused by an earlier storm and that the defendants had actual or constructive notice of the snow or ice but failed to clear it.

Continue reading

Workers’ compensation is generally the exclusive remedy of an employee against his or her employer for injuries incurred in the course and scope of employment.  In New York, this protection applies not only to the employee’s actual employer but also to any “special employer.”  Special employment exists when an employee is transferred for a limited time to the service of the special employer.  There must, however, be some evidence of employment by the purported special employer.

paint rollerOne New York court recently considered whether a defendant was a special employer in Clarke v. 750-760 Pelham Pkwy Owner LLC. This case arises from injuries sustained by the plaintiff when he fell from a ladder while painting or scraping a building.  The plaintiff filed suit against a number of defendants, including the owner of the property where he was working, 750-760 Pelham Parkway Owner LLC (“750-760”).  The plaintiff worked for 1160 Cromwell Avenue Owner LLC (“1160”) and received workers’ compensation benefits from his employer.  He received directions and supplies from Paul Kirby of Kirby Construction Corp.  Kirby was hired by either a consultant working for a managing agent or the property owner.

750-760 moved for summary judgment, arguing that recovery was barred under the Workers’ Compensation Law because it was a special employer of the plaintiff.  In a motion for summary judgment, the moving party has the burden of showing, with admissible evidence, that there are no genuine issues of fact.  If the moving party cannot make such a showing, the motion must be denied.

Continue reading

New York Labor Law § 240(1) requires contractors and owners to provide certain safety devices, including scaffolding, hoists, and ladders, for the protection of the workers.  In the recent case of Reyes v. Campo Bros., the plaintiff filed a claim under this section, but there were conflicting accounts of how his fall occurred.

roof tilesThe plaintiff fractured his back and sustained other injuries in a fall while working as a roofing technician for a subcontractor on a job site.  His job on the day of his injury included attaching ice shields to the roof edges and the valleys of connecting roof lines.  While attaching an ice shield to a valley, he allegedly slid backwards and fell off the roof.  The roof was slippery because of frost or black ice.  The plaintiff was not provided with any safety devices to prevent or protect him from a fall, other than the ladder he used to climb up to the roof.

The plaintiff filed suit against the property owner and the company that managed the job site, including a claim under Labor Law § 240(1).  He subsequently moved for partial summary judgment on a claim under Labor Law § 240(1).

Continue reading

It is common in personal injury cases for defendants to try to avoid liability by pointing fingers at each other.  In premises liability cases, there are often vendors that are contractually responsible for maintaining certain areas of the premises.  The property owner and vendor often blame each other for the plaintiff’s injuries, as in the recent case of Solomon v. Barnes & Noble, Inc.

escalatorThe plaintiff was injured on an escalator at a Barnes & Noble store.  The 21-month-old child and his nanny were riding the escalator when the child sat down and then screamed.  The nanny stated she held the child’s right hand while they were on the escalator, but when he sat down, his left hand got stuck between the step and the side wall of the escalator.  An employee of the store stopped the escalator, and a maintenance worker freed the child’s hand using a wrench.

The Department of Buildings issued a violation for the escalator, finding too much space between the step and the side wall.  It also issued a “cease use” order.

Continue reading

The New York Labor Law provides protections to construction workers and places specific obligations on owners and contractors. Labor Law § 240 requires contractors and owners to provide appropriate equipment to protect workers from injuries arising from the application of the force of gravity. Labor Law § 200 requires contractors to provide a reasonably safe workplace. Labor Law § 241(6) places a non-delegable duty on contractors and owners to provide reasonable and adequate protection and safety to construction workers.

The Supreme Court in New York County recently considered the application of these laws in Fitzgerald v. Marriot International, Inc. The plaintiff was working as a steamfitter, monitoring heating pipes and checking for leaks on the night shift at the construction site. He alleged that he was injured when he slipped and fell on a piece of insulation on a ramp. He had knee surgery as a result of his fall, and he claimed that he would later need a total knee replacement.helmet

The worker and his wife sued the hotel and the general contractor for common law negligence and violations of Labor Law §§ 200, 240(l) and 241(6). The plaintiff worked for another company and spent most of his shift inspecting the construction site. If he found a leak, he would contact his supervisor.

Continue reading

Accidents at construction sites often involve construction workers, but sometimes a person who is not involved in the construction work is injured at a construction site. Since it is not always clear who is responsible for an accident, an injured person may pursue claims against multiple construction companies and the premises owners.

construction materialsThe Supreme Court in New York County recently considered defense motions for summary judgment in a case in which an employee working on the second floor was injured while leaving through a construction area on the first floor.

The plaintiff in Reaves v. Lakota Construction Group, Inc. was an employee of a BMW franchisee working on the second floor of a building leased by a business called 214-27 Northern Boulevard, LLC (214-27). The only principals of 214-27 were also the only principals of the plaintiff’s employer. They were upgrading the building, including working on the façade. There was an agreement with Bergon Construction Corp. to be the construction manager, and Bergon found Lakota Construction Group, Inc. to perform some of the renovations.

Continue reading