Eleven-year Co-op Litigation Ends Favorably
PermalinkThe Firm has just secured a very favorable result for its co-op client after 11 years of aggressive litigation and a trial in New York Supreme Court that lasted several months. The case is Burbridge v. Soho Plaza Corp., Index No. 651495/2010.
Plaintiffs-shareholder/tenants sued for injunctive relief, to force their Manhattan co-op to relocate a cooling tower from the co-op roof. Plaintiffs also sought money damages for a decade of leaks allegedly caused by the cooling tower, as well as attorneys fees and punitive damages. Plaintiffs’ pretrial settlement demand was over $5 million dollars.
Justice Melissa Crane dismissed all but one claim. Plaintiffs received no damage award for the leaks, no damage award for the warranty of habitability, no injunctive relief forcing the co-op to relocate the cooling tower, no attorneys fees, and no punitive damages. The sole claim the court gave the plaintiffs has no dollar amount attached, and will be the subject of another litigation.
Art Xanthos and Jeff Miragliotta handled the trial, while Joe Rapice handled the trial motions and the briefs.
Plaintiffs-shareholder/tenants sued for injunctive relief, to force their Manhattan co-op to relocate a cooling tower from the co-op roof. Plaintiffs also sought money damages for a decade of leaks allegedly caused by the cooling tower, as well as attorneys fees and punitive damages. Plaintiffs’ pretrial settlement demand was over $5 million dollars.
Justice Melissa Crane dismissed all but one claim. Plaintiffs received no damage award for the leaks, no damage award for the warranty of habitability, no injunctive relief forcing the co-op to relocate the cooling tower, no attorneys fees, and no punitive damages. The sole claim the court gave the plaintiffs has no dollar amount attached, and will be the subject of another litigation.
Art Xanthos and Jeff Miragliotta handled the trial, while Joe Rapice handled the trial motions and the briefs.
G + B Trial Victory Protecting New York City Co-op
PermalinkAttorneys Arthur Xanthos and William Brophy recently obtained a stunning victory on behalf of an Upper East Side co-op, that had been sued by shareholder-tenants seeking seven figures in damages due to leaks into their apartment over a span of nine years. Specifically, the shareholder-tenants sought money for a maintenance abatement, diminution in value to the apartment, property damage, and punitive damages. The complaint sought more than $1 million, and the settlement demand at trial was $250,000. After trial, however, the only damages awarded amounted to a little more than $16,000.
9/10/19G&B successfully opposes Motion to Restore, leading to dismissal, of Suffolk County matter that presented unique property damage allegations
PermalinkBy: Gartner & Bloom, P.C.
Date: September 27, 2018
See the decision here.
Date: September 27, 2018
Partner Arthur P. Xanthos and Associate Michael E. Kar successfully opposed a plaintiff’s Motion to Restore in a matter containing unique property damage allegations. Following the submission of opposition to the Motion, the case was dismissed.
See the decision here.
SLIPPERY STAIRS AND THE LABOR LAW: NEW GUIDANCE,
By Arthur P. Xanthos
Defense counsel and carriers should be aware of the recent Court of Appeals pronouncement on Labor Law 240(1) cases, particularly because this latest pronouncement provides a roadmap for defeating plaintiffs’ common stratagem – the summary judgment motion.
The decision is O'Brien v Port Auth. of N.Y. & N.J., 2017 N.Y. LEXIS 725, 2017 NY Slip Op 02466 (N.Y. Mar. 30, 2017). The facts have been seen many times: Plaintiff working on construction site, while descending an exterior temporary scaffold staircase which was wet and slippery due to rain, slips and falls thereby injuring himself. Plaintiff sues all relevant parties and the focus of the complaint is Labor Law 240(1).
Plaintiff made the traditional summary judgment motion, supported by an expert affidavit from a professional engineer who opined that the stairs were "not in compliance with good and accepted standards of construction site safety and practice", that slippery conditions on stairways should be eliminated before use, and that the stairs in question were smaller, narrower, more worn, and steeper than typical stairs. The expert concluded that these conditions coupled with the fact that the stairs were wet due to rain created a dangerous condition that was not in compliance with good and accepted standards of construction site safety and created a significant risk of slipping on the stairs and of thus falling down the stairs.
In opposition, defendants submitted affidavits from a construction safety expert, who disagreed with plaintiff’s expert, and opined that the staircase was designed for both indoor and outdoor use and provided traction acceptable within industry standards and practice in times of inclement weather. He further disagreed that the steps were too narrow, or that the step treads had been worn down. He noted that the staircase provided both perforated holes to allow rain to pass through and raised metal nubs for traction. He concluded that these anti-slip measures were sufficient. The defendants’ expert also opined that the use of both handrails could have helped prevent plaintiff's fall.
Not surprisingly, the lower court and the appellate division ruled in favor of the plaintiff on the motion. The Court of Appeals, however, reversed plaintiff’s summary judgment award. The Court’s primary rationale was the following: the mere fact a plaintiff falls from a height on a construction site does not give rise to automatic Labor Law 240(1) liability, and where the defendants raise questions of fact as to whether a safety device (in the O’Briencase, the staircase) provided adequate protection to the plaintiff, summary judgment is not warranted.
While this decision and rationale is not a technical rewrite of Labor Law 240(1), it does mark a sea change in what presumptions the lower courts should make in analyzing these motions. Heretofore, the process with some exceptions has been maddeningly difficult for the defense, because once a court heard that a plaintiff had fallen from a height and was injured, the court presumed – regardless of contradicting expert affidavits -- that inadequate safety devices were in place. In other words, courts have been utilizing the fact of the fall to impose automatic liability.
O’Brien counsels the courts against making that presumption.
-APX 5/26/17
LANDLORDS AND SECONDHAND SMOKE COMPLAINTS:
THE APPELLATE DIVISION CLEARS THE AIR
By Joseph Rapice and Arthur P. Xanthos
This Firm recently won a successful appeal concerning whether a co-op has an obligation to guarantee an odor free apartment for a shareholder. The appellate decision, Reinhard v. Connaught Tower Corporation, is available on this website under Publications.
Shareholder-tenant Susan Reinhard sued her co-op, the Connaught Tower Corporation, alleging that a cigarette smoke odor condition rendered her apartment uninhabitable for nine years, thereby forcing her to live in another premises. Prior to trial, plaintiff had made a settlement demand of $600,000.00, essentially making settlement impossible and forcing a trial.
At a three-day non-jury trial, plaintiff testified that she, her family, and a close family friend smelled cigarette smoke in the apartment on a handful of occasions over a nine year period, although the source of the odor was never identified. Plaintiff also proffered the testimony of an expert industrial hygienist, who testified that air passageways existed behind the walls in plaintiff’s apartment, implying that offensive odors could have been entering the apartment via those passageways. The industrial hygienist also testified that he too smelled a smoke odor in the apartment during his inspections.
In defense, we noted at trial that plaintiff’s expert, although he could have done so, failed to do a nicotine test. We pointed out as well via cross-examination that such tests are inexpensive and easy to do. We further demonstrated that without such objective testing and data, plaintiff could show no threshold amounts of any toxin (i.e.,secondhand smoke) in the apartment. Essentially, we proved that the only objective evidence presented by plaintiff was that yielded by her nose – she smelled something she did not like.
At trial we also introduced other critical facts: plaintiff was a full time resident of Connecticut, never actually inhabited her apartment, and instead desired to use the apartment as a Manhattan pied a terre.
Despite these facts, the trial court ruled that the co-op had breached the proprietary lease and the statutory warranty of habitability, thereby constructively evicting Plaintiff. The trial court awarded plaintiff a full return of nine years of maintenance payments in an amount of $120,000.00, and an award of attorneys fees. In so ruling, the trial court found that “significant cigarette smoke permeates and pollutes the apartment,” that the apartment was “infiltrated by secondhand smoke”, and that the apartment was “smoke-polluted.” We appealed that decision.
On May 4, 2017, the Appellate Division First Department unanimously reversed the trial court’s decision, dismissed plaintiff’s complaint in its entirety, and awarded attorneys’ fees to our client – the co-op. The appellate court held that the evidence failed to show that the subjective odor of cigarettes on a few occasions over nine years rendered plaintiff’s apartment uninhabitable. Critically, the appellate court reasoned that plaintiff failed to show that the alleged odor was present on a consistent basis and that it was sufficiently pervasive as to affect the health and safety of the occupants. (The Court also noted that plaintiff lived in Connecticut and only intended to stay in the apartment occasionally.)
The Reinharddecision marks a significant victory for building owners, cooperatives, and condominium boards, as well as for their insurers. The trial court’s ruling had temporarily opened a Pandora’s Box with regard to habitability claims, as it seemed to imply that a tenant need only claim a subjective odor to recover a full rent abatement. (Indeed, this Firm had seen an uptick in smoke odor cases following that decision.) The Appellate Division First Department’s decision, however, reaffirmed two rules: (i) that a plaintiff-tenant must present objective evidence of the presence of a toxin, a threshold level of it, and proof of a causal connection to health and safety of an occupant; and (ii) that a claim based upon the habitability of an apartment dwelling requires proof that the plaintiff occupied the dwelling.
-5/9/17
MOLD PERSONAL INJURY LAWSUITS: WHY DO THEY CONTINUE? By Arthur P. Xanthos
PermalinkIn our August 6, 2014 article, we explained the import of the New York State Court of Appeals' Cornell decision -- without medical community acceptance of causation between mold and bodily injury, courts in New York State will dismiss lawsuits for bodily injury premised on mold.
Since the Cornell decision came down, this Firm has used it twice to dismiss mold-related bodily injury claims against our clients: first in June of 2014 in Benton v. 80 Cranberry, and now in August of 2016 in a case called Sylla-ba v. The Colton Condominium. (Both of these decisions can be accessed on the Firm's website, www.gartnerbloom.com, under Publications.) In Sylla-ba, Justice Cynthia Kern reiterated what the Court of Appeals held: an 'association' between mold and the alleged symptoms of a plaintiff is not the same as 'causation' between them; therefore, proving that there is such an association is insufficient for the bodily injury claims to survive dismissal.
Cornell should have resulted in a sharp drop in the number of mold-related personal injury lawsuits brought in New York's state courts; yet these lawsuits continue to be brought in roughly the same numbers as before Cornell. We suspect the reasons for this counter-intuitive statistic are, (1) the plaintiffs' bar's unfamiliarity with the 2014 Cornell decision (viz., the flawed belief that if you can get one doctor to say 'mold caused the plaintiff's illness', that such is sufficient), (2) the use of a mold-related bodily injury claim as an 'add on' claim to bolster the settlement value of the case, and (3) publication in the popular press of other states' mold verdicts and settlements.
So, we repeat what we wrote in our August 6, 2014 entry: Absent a major change in the science of mold illness, the next few years will see many more summary judgment decisions in favor of land owners and against mold plaintiffs.
-APX 8/15/2016
Since the Cornell decision came down, this Firm has used it twice to dismiss mold-related bodily injury claims against our clients: first in June of 2014 in Benton v. 80 Cranberry, and now in August of 2016 in a case called Sylla-ba v. The Colton Condominium. (Both of these decisions can be accessed on the Firm's website, www.gartnerbloom.com, under Publications.) In Sylla-ba, Justice Cynthia Kern reiterated what the Court of Appeals held: an 'association' between mold and the alleged symptoms of a plaintiff is not the same as 'causation' between them; therefore, proving that there is such an association is insufficient for the bodily injury claims to survive dismissal.
Cornell should have resulted in a sharp drop in the number of mold-related personal injury lawsuits brought in New York's state courts; yet these lawsuits continue to be brought in roughly the same numbers as before Cornell. We suspect the reasons for this counter-intuitive statistic are, (1) the plaintiffs' bar's unfamiliarity with the 2014 Cornell decision (viz., the flawed belief that if you can get one doctor to say 'mold caused the plaintiff's illness', that such is sufficient), (2) the use of a mold-related bodily injury claim as an 'add on' claim to bolster the settlement value of the case, and (3) publication in the popular press of other states' mold verdicts and settlements.
So, we repeat what we wrote in our August 6, 2014 entry: Absent a major change in the science of mold illness, the next few years will see many more summary judgment decisions in favor of land owners and against mold plaintiffs.
-APX 8/15/2016
New York City Building Owners and the Legionella Outbreak, by Arthur P. Xanthos
PermalinkThis past week has seen an outbreak of legionella in buildings in the South Bronx section of New York City. Legionella is the bacterium that causes legionnaires disease and flourishes in the water of air conditioning and central heating systems. Utmost concern is for the health and safety of building residents, and pending New York City regulations address this concern by imposing on building owners new registration, testing, and maintenance requirements. Given the number of deaths and hospitalizations already reported, building owners and their insurers should be aware of the following facts and suggestions:
1. There have been fewer than a dozen reported legionella/personal injury decisions in New York State in the last decade, and far fewer such decisions involving residential buildings. As in any toxic tort lawsuit, the legionella claimant will have the burden of proving that the building owner negligently allowed a toxin to develop (namely, legionella), and that the claimant was exposed to the toxin in an amount that caused injury to the claimant -- two very difficult though not impossible burdens to meet. (For a detailed discussion of the burden of proving causation in toxic tort lawsuits, see our prior blog entry titled Mold up in the Air: Settled.)
2. A building owner must report to its insurance carrier immediately any notice of bodily injury or property damage arising from the outbreak. A building owner should also notify its HVAC/cooling tower contractor, and the insurer for that contractor, of the incident(s).
3. The insurance carrier for its part must assemble a pre-lawsuit response team -- legal, engineering, medical, and environmental -- to investigate the premises and establish the facts.
4. New York City is now inspecting and testing building cooling systems. As these test results will be admissible in any subsequent lawsuit, building owners (or, preferably, their insurance carriers) should retain environmental consultants to photograph, monitor, and report on how the City performs the testing.
5. Finally, if the cooling tower or HVAC system is going to be dismantled or modified significantly, care should be taken to avoid a spoliation penalty. (For a detailed discussion of this topic, see our prior blog entry titled Spoiling the Evidence, Spoiling the Case.)
-APX 8/10/15
1. There have been fewer than a dozen reported legionella/personal injury decisions in New York State in the last decade, and far fewer such decisions involving residential buildings. As in any toxic tort lawsuit, the legionella claimant will have the burden of proving that the building owner negligently allowed a toxin to develop (namely, legionella), and that the claimant was exposed to the toxin in an amount that caused injury to the claimant -- two very difficult though not impossible burdens to meet. (For a detailed discussion of the burden of proving causation in toxic tort lawsuits, see our prior blog entry titled Mold up in the Air: Settled.)
2. A building owner must report to its insurance carrier immediately any notice of bodily injury or property damage arising from the outbreak. A building owner should also notify its HVAC/cooling tower contractor, and the insurer for that contractor, of the incident(s).
3. The insurance carrier for its part must assemble a pre-lawsuit response team -- legal, engineering, medical, and environmental -- to investigate the premises and establish the facts.
4. New York City is now inspecting and testing building cooling systems. As these test results will be admissible in any subsequent lawsuit, building owners (or, preferably, their insurance carriers) should retain environmental consultants to photograph, monitor, and report on how the City performs the testing.
5. Finally, if the cooling tower or HVAC system is going to be dismantled or modified significantly, care should be taken to avoid a spoliation penalty. (For a detailed discussion of this topic, see our prior blog entry titled Spoiling the Evidence, Spoiling the Case.)
-APX 8/10/15
WE’VE MOVED!
PermalinkG + B is pleased to announce the relocation of our New York offices. To accommodate our continued growth, you will now find us in significantly larger premises at 801 Second Avenue occupying the entire 11th floor. Our new state of art facilities are designed to serve our clients more effectively, and comfortably and efficiently accommodate our current professional and support staff as well as our anticipated expansion over the next several months and years.
Drop by to say hello and tour the new place!
Drop by to say hello and tour the new place!
Ignoring Court Ordered Discovery Leads to Preclusion of Tenant’s Claim, by Arthur Xanthos
PermalinkDentists are fond of saying if you ignore your teeth, your teeth will go away. The same is true in litigation: ignore your discovery obligations and your claim will go away. This Firm is defending a building owner in a case brought by a tenant (who happens to be a lawyer). The tenant alleges among other things bodily injury from second-hand smoke in his apartment. As is customary, we demanded medical authorizations (to secure medical records related to the tenant's treatment) and a bill of particulars compelling the plaintiff to particularize his bodily injuries. We also made sure the court included those demands in several court orders.
For unknown reasons, the plaintiff-tenant-lawyer refused to hand over medical authorizations and refused to particularize his injuries. After several attempts at securing the documents failed, this Firm made a motion to compel the tenant to produce the medical authorizations and to serve a meaningful bill of particulars. That motion resulted in an order, with which the plaintiff-tenant-lawyer failed to comply. So another motion was made, and this time an order was sought to preclude/dismiss the tenant's bodily injury claims. That second motion resulted in a more stringent order setting another deadline for the tenant's compliance, and warning the tenant of penalties for non-compliance. The tenant again failed to comply. At a subsequent conference and upon being advised of the tenant's non-compliance, the court after oral argument precluded the tenant from any bodily injury claims at trial, and dismissed any negligence claims found in his complaint. A copy of this decision/order (Johnson v. 78/79 York) can be found at this Firm's website (www.gbglaw.com) under Publications.
Preclusion orders are very rare, especially against pro se plaintiffs. Counsel should expect to make more than one motion, and should request a progressively stronger sanction with each motion made. Obtaining such an order is not a quick exercise either, as it took nearly two years to secure the one discussed herein. -APX 12/16/14
For unknown reasons, the plaintiff-tenant-lawyer refused to hand over medical authorizations and refused to particularize his injuries. After several attempts at securing the documents failed, this Firm made a motion to compel the tenant to produce the medical authorizations and to serve a meaningful bill of particulars. That motion resulted in an order, with which the plaintiff-tenant-lawyer failed to comply. So another motion was made, and this time an order was sought to preclude/dismiss the tenant's bodily injury claims. That second motion resulted in a more stringent order setting another deadline for the tenant's compliance, and warning the tenant of penalties for non-compliance. The tenant again failed to comply. At a subsequent conference and upon being advised of the tenant's non-compliance, the court after oral argument precluded the tenant from any bodily injury claims at trial, and dismissed any negligence claims found in his complaint. A copy of this decision/order (Johnson v. 78/79 York) can be found at this Firm's website (www.gbglaw.com) under Publications.
Preclusion orders are very rare, especially against pro se plaintiffs. Counsel should expect to make more than one motion, and should request a progressively stronger sanction with each motion made. Obtaining such an order is not a quick exercise either, as it took nearly two years to secure the one discussed herein. -APX 12/16/14
Gartner + Bloom Lawyers Awarded SuperLawyer Distinction for 2014
PermalinkThe Firm is pleased to announce that Ken Bloom and Arthur Xanthos have received the New York Metro Area SuperLawyers distinction for 2014. Ken received the SuperLawyer award in the area of construction litigation (http://digital.superlawyers.com/superlawyers/nyslrs13?pg=81&search_term=bloom&doc_id=-1&search_term=bloom#pg81) while Arthur received his in the area of business litigation (http://digital.superlawyers.com/superlawyers/nyslrs14#pg77).