Sample of Recent Accomplishments in Our Appellate Practice

• We successfully moved to compel a deposition of plaintiff's treating social worker when plaintiff, a construction worker, alleged that her mental illness arose from injuries sustained in an accident during cleanup of the World Trade Center site, but evidence suggested that her illnesses arose out of witnessing the September 11, 2001 attacks themselves. The appellate division reversed the trial court's denial of the motion, holding that plaintiff had waived any privilege by affirmatively placing her mental condition at issue in the litigation. Robles v. Merrill Lynch/WFC/L, Inc., 40 A.D.3d 412, 835 N.Y.S.2d 569 (1^st Dept. May, 2007).

• We were successful in obtaining a unanimous affirmance in the Appellate Division, Second Department of an Order granting our client's motion for summary judgment. In this personal injury action, the plaintiff had fallen while riding his bicycle in a public street which was allegedly undergoing some form of construction. Based on street opening permits for the time period, plaintiff sued two utilities, an electrical service and a cable service. We successfully moved for summary judgment dismissing the cable company based on an affidavit by the cable company's construction manager that the work under the permit issued to them did not commence until one month after plaintiff's accident. In response, plaintiff submitted two additional permits which were irrelevant (one for a different site and one issued to another party) and argued that the motion was premature. The Appellate Division affirmed, stating that the construction manager's affidavit was sufficient to set forth a prima facie entitlement to summary judgment, and plaintiff had not responded with any relevant evidence to demonstrate a triable issue of fact. The Appellate Division also held that the motion was not premature because plaintiff did not demonstrate that any triable issue existed which would justify the need for further discovery. Tillem v Cablevision Sys. Corp., 38 A.D.3d 878, 832 N.Y.S.2d 296 (2 nd Dept. March 27, 2007).

• We were successful in obtaining a unanimous affirmance in the Appellate Division, First Department of an Order granting our client's motion for a declaratory judgment. In this insurance coverage action, the underlying plaintiff had fallen through a hole created by a demolition contractor at a construction site. The general contractor asserted that the demolition contractor was contractually obligated to obtain insurance naming it as additional insured, and therefore the general contractor was entitled to defense and indemnity from the demolition contractor's insurer. However, no party to the action was able to produce a complete signed copy of the construction contract. We successfully proved the existence of such a contract, and its terms requiring the procurement of insurance, by extrinsic evidence. In addition, we were able to defeat the insurer's claim of late notice because the demolition contractor's counsel disclaimed only on behalf of the contractor and not on behalf of the insurer; therefore, the insurer did not timely disclaim coverage due to late notice. More importantly, by virtue of the Appellate Division's affirmance of the decision below, we were able to shift the entire risk, i.e. obtaining indemnity for our client for the entire loss including legal fees and expenses from the general contractor to the trade contractor who was responsible for creating the hole through which plaintiff fell. Plaintiff's most recent settlement demand had been $3 million. Bovis Lend Lease LMB Inc. v. Garito Contracting, Inc., 38 A.D.3d 260, 832 N.Y.S.2d 502 (1 Dept. March 8, 2007).

• We had moved for summary judgment in a declaratory judgment action on behalf of our clients and their carriers seeking a declaration that the defendant insurer must defend and indemnify the personal injury action defendants. The court below granted our motion but only to the extent of declaring that defendant insurer Utica Mutual Insurance Company was precluded from asserting a late notice of claim defense but would be able to assert other available defenses. The Appellate Division unanimously modified the decision of the court below to now grant our clients' motion to the further extent of declaring that Utica Mutual was precluded from disclaiming on any policy exclusion. The Appellate Division held that Utica Mutual's failure to give timely notice to our clients also precludes it from disclaiming based on any policy exclusions. City of New York, et al. v. Utica Mutual Insurance Company, 2006 WL 3512997 (1st Dept., December 7, 2006).  

• We were successful in obtaining an affirmance by the Court of Appeals of the State of New York (the State’s highest court) unanimously affirming a decision of the Appellate Division, First Department dismissing the plaintiff’s claims pursuant to Labor Law §§ 241(6) and 200.  In this case, plaintiff, a concrete laborer at a high-rise construction site, claimed he was injured when he tripped over an electrical conduit.  The Court of Appeals found that the court below properly concluded that plaintiff’s Labor Law § 241(6) cause of action failed because the electrical pipe or conduit plaintiff tripped over was an integral part of the construction.  The Court also found that plaintiff could not recover for negligence or pursuant to Labor Law  § 200 as he failed to establish that the on-site safety manager controlled the activity bringing about the injury to enable it to avoid or correct an unsafe condition.  Sean O’Sullivan v. IDI Construction, Inc., et al.; 28 A.D.2d 225 (1st Dept. 2006); affirmed 7 N.Y.3rd 805 (1st Dept. August 31, 2006).

• We obtained a reversal by the Appellate Division, First Department of a decision denying our client’s motion for summary judgment in a dental malpractice case brought by Natasha Alvarado.  Though the lower court dismissed the plaintiff’s claim of lack of informed consent, it still held that there was a viable claim of alleged abandonment.  The Appellate Division reversed, holding that our client, an oral surgeon, did not abandon plaintiff during her post-operative treatment subsequent to a wisdom tooth extraction, whereupon plaintiff developed an infection.  Hence, the Appellate Division ordered the case dismissed.  Natasha Alvarado, 32 A.D. 3d 255, 820 N.Y.S.2d 39 (1st Dept. August 10, 2006).

• We obtained an affirmance on appeal by the First Department of a dismissal of a third party action brought against our contractor client that had been hired to perform work for the City of New York.  The defendant/third-party plaintiff, City of New York, moved for summary judgment on the grounds that it did not have actual or written notice of any dangerous condition at the location of the plaintiff’s injury.  Simultaneously, we moved for summary judgment to remove any question of material fact as to whether our client’s work could have caused the dangerous condition.  By producing the contract for the work involved and the only incident report on record for our client, we successfully accomplished just that.  With the defendant not having actual notice and there being no evidence that the defendant or one of the third party defendants caused the hazardous condition, the Court was left with no choice but to grant the defendant’s motion for summary judgment and dismiss all the claims and cross claims against our client.  Segundo Bolanos, et al. v. City of New York, and other actions, 816 N.Y.S.2d 30, 2006 N.Y. Slip. Op. 04151 (1st Dept.  May 2006).

• We were successful in having the decision of the Supreme Court, New York County unanimously modified on appeal by the Appellate Division, First Department granting dismissal of plaintiff's action against our client. We had moved for summary judgment on behalf of our Construction Manager client arguing that their work was completed at the subject construction project more than three months prior to plaintiff's alleged trip and fall on the sidewalk abutting these premises. The Court found that the other party failed to articulate any colorable claim against our client, nor demonstrated that it either conducted or sought discovery from our client prior to our motion. Accordingly, our client's motion dismissing the complaint against it should have been granted. Ahmed v. City of New York 14 A.D.3d 388, 788 N.Y.S.2d 91 (1^st Dept. January 13, 2005).

• We were successful in convincing an appellate court to search the record and dismiss an injured construction worker’s Labor Law § 241(6) claim against a project owner premised on a violation of the Industrial Code. Plaintiff’s Labor Law § 240(1) and Labor Law § 200 claims were also dismissed.  Plaintiff was allegedly injured when the garbage container he was pushing tipped over and pinned him below the waist. He sustained severe and traumatic personal injuries. The plaintiff argued that the project owner was strictly liable because of a failure to provide him with proper or adequate construction equipment.  The trial Court denied the motion to dismiss finding that an issue of fact existed as to the presence of a defective wheel on the container. The Court also denied the contractor’s cross-motion to dismiss the project owner’s cross-claim for indemnity.  On appeal, the appellate court, upon a searching of the record, dismissed the remaining Labor Law § 241(6) claim against the project owner because plaintiff failed to submit admissible non-hearsay evidence establishing an issue of fact that a defective wheel existed.  Ruggiero v. Cardella Trucking 16 A.D.3d 342, 739 N.Y.S.2d 337 (1^st Dept. 2005).

• In a serious motor vehicle accident involving a pickup truck and a dumpster truck in upstate New York, we successfully argued on appeal that no issues of fact exist as to any negligence by our client in its ownership, operation, maintenance or control of certain aerial cable television facilities located above the roadway at the site of plaintiffs’ accident.  The dismissal of plaintiffs' complaint and all cross-claims was recently unanimously affirmed by the Appellate Division, Second Department. The plaintiffs claimed that a dumpster truck operated by the defendant came in contact with low hanging wires belonging to our client causing the dumpster truck to twist out of control and into plaintiffs’ lane of traffic.  The defendant truck company cross-claimed and argued that the cable television wire was improperly maintained and caused the accident.  The appellate court agreed with our arguments on appeal that there is no evidence that the wiring ever came into contact with the truck owned and operated by the defendant, and dismissed the case in its entirety.  The Court also awarded costs in our favor against the trucking company.  Caffery v. BJY Materials, 11 A.D.3d 649, 784  N.Y.S.2d 559 (2^nd Dept. 2004).

• We were successful in obtaining a unanimous affirmance in the Appellate Division, Second Department of an Order denying plaintiff's motion for summary judgment as a matter of law.  In this personal injury action, the plaintiff fell from a six-foot scaffold while rearranging some cement blocks at a construction site.  The scaffold did not shake or move.  Plaintiff claimed that the failure to equip the scaffold with guard rails or other safety devices was a violation of Labor Law Section 240(1) and that such violation was a substantial factor in contributing to his injuries.  We successfully argued that not every fall from a scaffold constitutes strict liability under the labor law. This is especially so in a case where plaintiff offered conflicting versions of how the accident occurred.   More importantly, by virtue of the Appellate Division's affirmance of the decision below, we were able to shift the entire risk, i.e. obtaining indemnity for our client for the entire loss including legal fees and expenses from the trade contractor who was responsible for the supervision and control of plaintiff's work - his employer.  Plaintiff’s most recent settlement demand had been $4.5 million.  Reborchick v. Bovis, 10 A.D.3d 713, 781  N.Y.S.2d 899 (2^nd Dept. 2004).

• We succeeded in achieving a landmark decision from the Court of Appeals, New York’s highest court, in Abbatiello v. Lancaster Studio Associates. Abbatiello resolved a split among the intermediary appellate divisions in holding that a building owner is not strictly liable under Labor Law § 240(1) for injuries sustained by a cable television technician performing work on its property without its knowledge or consent, despite the non-delegable duty imposed by this statute on an owner to provide a safe work place to those performing work on its premises. The plaintiff, an employee of Paragon Cable of Manhattan was dispatched to the building owned by Lancaster Studio Associates to investigate a tenant’s complaint of a cable reception problem. The plaintiff sustained severe personal injuries as a result of a fall from a ladder. He sued the building owner, Lancaster, who then impleaded Paragon Cable, the plaintiff’s employer. The Court of Appeals refused to impose absolute liability on an owner where a cable technician is injured while performing work without the owner’s knowledge or consent. Absent some sort of nexus between the owner and the worker, the Labor Law’s strict liability provisions would not be applicable. The owner cannot be charged with the non-delegable duty of providing a safe work place for a cable television repair worker of whom it was wholly unaware. Abbatiello v. Lancaster, et al, 3 N.Y.3d 46, 781  N.Y.S.2d 477 (2004).

• In a case that establishes new precedent, we won an appeal from the lower court’s refusal to dismiss a lawsuit against our client, a major construction manager, in an action brought by an employee of a trade contractor for injuries sustained when he fell while climbing a ladder that had slipped on a wet floor. The appellate court reversed the lower court and dismissed the action. Plaintiff had claimed that as he was climbing the ladder it moved and thus failed to protect him. We successfully argued that a worker with one foot up a ladder and one foot down on the ground cannot maintain an action under Labor Law § 240(1) because he did not fall from a height. Simply stated, plaintiff was still on the ground when he the ladder slipped due to a wet floor. We were also successful in shifting the entire risk, i.e. getting indemnity for our client, for the entire loss including legal fees and expenses from the trade contractor who was responsible for the water on the floor. Vasiliades v. Lehrer McGovern Bovis,  3 A.D.3d 400, 771  N.Y.S.2d 27 (1^st Dept, 2004).
  

• In a vehicular accident where our client’s truck allegedly came in contact with plaintiffs’ car, the claims of the driver of the car and his passenger were dismissed on the grounds that the no-fault statutory threshold was not satisfied and thus their actions could not be maintained.  The driver and passenger claimed they sustained serious back injuries including disc herniations. Campbell v. Cloverleaf, 5 A.D.2d 169, 773 N.Y.S.2d 50 (1^st Dep’t 2004).
  

• Wrongful death claim dismissed under scaffold law, statutes creating duty to maintain a safe workplace and requiring reasonable safety in the workplace.  Decedent, a steamfitter, suffered a fatal heart attack in the aftermath of a hoist breakdown which necessitated his walking up 14 flights of stairs, twice in a few hours, along with his tools and paraphernalia, in order to raise a pipe.  Reilly v. Newireen Associates, et al., 303 A.D.2d 214, 756 N.Y.S.2d 192 (1^st Dep’t 2003).
  

• A jury verdict under Labor Law § 241(6) was reversed as to liability and damages on the theory that it appeared that there had been a trade-off on a finding of liability in return for a compromise on damages.  McKenna v. Lehrer McGovern Bovis, Inc., 302 A.D.2d 329, 756 N.Y.S.2d 181 (1^st Dep’t 2003).
  

• In a serious case involving a fall by a worker at the construction site of the NY Times printing plant, construction manager, whom we represented, obtained reversal of lower court’s denial of motion for summary judgment.  Even though the construction manager was responsible for the plywood-gaps in the pressroom floor on which plaintiff lost his footing, we successfully argued that the focus must be on the nature of the construction manager’s relationship to the work in which plaintiff was engaged at the time of the injury and not the cause of the injury.  Wong v. The N.Y. Times, 297 A.D.2d 544, 747N.Y.S.2d 213 (1^st Dep’t 2002).
  

• Action dismissed against construction manager of a hospital in an action brought by employees and patients for injuries caused by dust blown from air ducts as a result of renovation of HVAC system.  Hunter v. Lehrer McGovern Bovis, Inc., 299 A.D.2d 175, 749 N.Y.S.2d 525 (1^st Dep’t 2002).
  

• Shifted the risk by successfully attacking the validity of a cancellation of non-payment of premium and established the principle that a finding that a contractor breached its obligation to procure coverage for the construction manager does not collaterally estop a finding that the cancellation was invalid. Lehrer McGovern Bovis v. Public Service Mutual Ins. Co., 268 A.D.2d 388, 700 N.Y.S.2d 837 (1^st Dep’t 2000).