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Firm News: Gartner + Bloom

Dismissal of Snow and Ice Case in Bronx County

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Anne Armstrong recently obtained a dismissal of a plaintiff's complaint in the Bronx by way of a summary judgment motion that she orally argued.  The plaintiff, Theresa Berrios, had sued the Firm's client - a general contractor - for injuries arising out a slip and fall on ice that had formed on a sidewalk around where the client had done construction work.  After oral argument, Justice Mitchell J. Danziger dismissed the complaint.  The decision is Theresa Berrios v. City of New York, index number 304746/2014, Supreme Court, Bronx County.
     
                                                                      9/19/19

Anne Armstrong, bodily injury, Bronx, Gartner + Bloom, general contractors, negligence, personal injury, slip and fall, summary judgment

G + B Trial Victory Protecting New York City Co-op

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Attorneys 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.       
                                                                     9/10/19
Arthur Xanthos, Business Judgment Rule, co-ops and condo, Gartner + Bloom, Insurance Defense, litigation, William Brophy

Rodriguez v. City of New York – Court of Appeals decision is adverse to defense counsel’s ability to defend comparative negligence cases; holds that plaintiffs may obtain summary judgment on liability without establishing the absence of their own negligence

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By:      Roy Anderson, Esq.
            Associate, New York
Date:   April 5, 2018

            The Court of Appeals dealt a significant blow to defense counsel in a recent decision, Carlos Rodriguez v. City of New York (2018), by holding that plaintiffs do not bear the burden of first establishing the absence of their own comparative negligence to obtain partial summary judgment as to liability in a negligence case. The Rodriguez decision arguably overrules Thoma v. Ronai, 189 A.D. 2d 635 (1st Dep’t 1993) aff’d 82 N.Y. 2d 736 (1993) and its progeny, which for two decades have been cited for the proposition that Plaintiffs moving for summary judgment on liability bear the burden of demonstrating the absence of any material issue of fact concerning their comparative negligence.

            In Rodriguez, the plaintiff was employed by the City of New York as a garage utility worker. He was injured while working in a garage “outfitting” sanitation trucks with tire chains and plows. An out-of-control sanitation truck skidded on ice and crashed into a car in the garage which then pinned the plaintiff up against a rack of tires. He sustained bodily injuries which necessitated a spinal fusion surgery and rendered him permanently disabled from working.

            After discovery, plaintiff and the City of New York moved for summary judgment on the issue of liability.  Plaintiff’s motion argued that even if there was an issue of fact with respect to his comparative fault, he was entitled to summary judgment on the issue of Defendant’s liability.  The Supreme Court denied both motions and held that there were triable issues of fact regarding foreseeability, causation, and plaintiff’s comparative negligence.  The First Department relied on Thoma and affirmed the denial of plaintiff’s motion because he failed to make a prima facie showing that he was free of comparative negligence.  In a split decision, the Court of Appeals reversed, holding that placing the burden on the plaintiff to show an absence of comparative fault is inconsistent with New York’s system of pure comparative negligence, which was adopted in 1975 and is codified in Article 14-A, Sections 1411 and 1412 of the Civil Practice Law and Rules (“CPLR”).  The Court explained that in a pure comparative negligence state, such as New York, courts are directed to consider a plaintiff’s comparative fault only when considering damages; therefore, the Rodriguez decision gives effect to the plain language and legislative intent of Sections 1411 and 1412.

            Section 1411 provides, in relevant part, that in an action for personal injuries a plaintiff’s culpable conduct “shall not bar recovery, but the amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the claimant bears to the culpable conduct which caused the damages.”  Section 1412 further provides that “[c]ulpable conduct claimed in diminution of damages, in accordance with [CPLR 1411], shall be an affirmative defense to be pleaded and proved by the party asserting the defense.”

            The Rodriguez opinion explains that the legislature’s intent in enacting Sections 1411 and 1412 was “to bring New York law into conformity with the majority rule” which is that “a plaintiff’s comparative negligence is not a complete defense to be pleaded and proven by the plaintiff, but rather is only relevant to the mitigation of plaintiff’s damages and should be pleaded and proven by the defendant.”  Thus, the Court of Appeals held that “[p]lacing the burden on the plaintiff to show an absence of comparative fault is inconsistent with the language of CPLR 1412.”  The Court also rejected the City of New York’s argument that comparative fault should be considered a defense because “it is not a defense to any element (breach, duty, causation) of plaintiff’s prima facie cause of action for negligence.”

            Significantly, Rodriguez purports to distinguish – without explicitly overruling – Thoma, because in that case the First Department did not address the significance of Article 14-A and the plaintiff effectively conceded that if she failed to establish the absence of a material fact as to her negligence then summary judgment on the issue of liability would be denied.  Conversely, the Rodriguez plaintiff explicitly argued that he was entitled to summary judgment, even if there was an issue of fact regarding his comparative fault. 

            The Rodriguez dissent rejects the majority’s reasoning and argues that the rule in New York is and should remain “that a plaintiff must demonstrate the absence of issues of fact concerning both defendant’s negligence and its own comparative fault in order to obtain summary judgment.”  The dissent further rejects that the Court was not overruling Thoma because “[s]ince Thoma, each Department has held that a plaintiff is precluded from obtaining summary judgment where issues of fact exist concerning comparative fault.”  The dissent also calls attention to the inequity of assessing a percentage of plaintiff’s culpability distinct from the defendant’s and noted that “[d]eterminations of degrees of fault should be made as a whole, and assessing one party’s fault with a preconceived idea of the other party’s liability is inherently unfair.”


            It is not hard to imagine the injurious effect that Rodriguez will have on defendants when it comes time for juries to apportion liability.  As articulated by the dissent, defendants will effectively be “entering the batter’s box with two strikes already called.”

Gartner + Bloom, litigation, negligence, personal injury, Roy Anderson, summary judgment

First Department finds factual issues in §241(6) exclusion, and holds that claim by a lessee’s contractor triggers the lessor’s indemnity

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By: Michael E. Kar, Esq.
       Associate, N.Y.

Date: December 27, 2017

Synopsis:

            On March 1, 2018, the First Department entered their decision in Karwowski v. 1407 Broadway Real Estate LLC. This decision gleans two important considerations for insurers and practitioners, in the Appellate Division’s: (i) holding that a lessor’s indemnity provision will be triggered by a claim by a lessee’s contractor; and (ii) finding of factual issues with the lower court’s exclusion of a contractor’s workshop from liability under 241(6).

Background:

            Defendant 1407 Broadway Real Estate LLC (“Broadway”) is the owner of the building wherein this claim arose. Broadway holds an operating lease for the entirety of the building, located in Midtown Manhattan, New York. Defendant Cayre Grp Ltd. (“Cayre”) leases the 41st and 42nd floors of Broadway’s building, and holds a lease extension with Broadway. Plaintiff is a former employee of XCEL Interior Contracting, Inc. (“XCEL”), a third-party defendant in the action. While employed by XCEL, Plaintiff injured his hand while cutting plywood on an unprotected table saw, located on the 16th floor of Broadway’s building. Plaintiff’s injury was in the furtherance of a project undertaken by Cayre, for which XCEL was hired as a contractor.

Indemnity Trigger:

            Pursuant to the lease extension with Broadway, Broadway was given direction and coordination over XCEL, who was one of the lease’s memorialized approved contractors (“[a]ll work done by the contractor [XCEL] must be coordinated with the Building Manager”). This lease extension also contained the following indemnity, recited in pertinent part: “Tenant shall indemnify, defend and save harmless Landlord… from and against (a) all claims of whatever nature against Landlord arising from any act, omission or negligence of Tenant, its subtenant, contractors, licensees, agents, servants, invitees, employees or visitors…”

            Broadway cross-claimed below for summary judgment as to the issue of their contractual indemnification, a claim that was not granted. The First Department reversed and found for Broadway on this issue. The Appellate Division found that this indemnity was clear and unambiguous. In response, Cayre argued that this provision required a finding of “active negligence” or fault on behalf of Cayre. The First Department disagreed with this assertion, in holding that “all that is necessary to trigger the provision is a claim arising from any act or omission of Cayre or Cayre’s contractor…” (emphasis added). Cayre’s contractor here was XCEL, employer of the Plaintiff at the time of the alleged accident. The court held that no negligence was needed to trigger the indemnity, and instead, all that was needed was work being done by Cayre or their contractors within the building leased by Broadway.


Factual issue found in Labor Law §241(6) analysis:

           At the Supreme Court below, Plaintiff’s claims under Labor Law §241(6) were dismissed. Section 241(6) imposes on property owners (and lessee’s under Article 10 of New York Labor Law) the duty to provide reasonable protection and safety for workers, and to comply with all Department of Labor regulations. The issue in application of §241(6) was, primarily, centered around the physical location at which the injury took place. The location was the 16th floor of the building in question. A portion of the 16th floor was XCEL’s in practice, an area where they would keep materials and tools used for renovations within the building. However, no personnel or office furniture existed in a permanent capacity, and XCEL had no lease and did not pay any rent for the space. XCEL maintains a separate permanent office and workshop in Queens.

          In support of their motion for summary judgment as to the applicability of Labor Law §241(6), Defendant Cayre asserted that the 16th floor is a permanent workshop where “for the past 10 years, the… plaintiff reported to work each day….” Their argument concludes that due to these facts the 16th floor is not the statutorily protected “area[] in which construction, excavation or demolition work is being performed….” N.Y. Labor Law §241(6).

            In granting Cayre’s motion for summary judgment below, the Supreme Court found that the 16th floor of the building “was a permanent workshop controlled by XCEL, not a temporary staging area ancillary to the Project and controlled by Cayre.” By extension, this also released Broadway under §241(6).

            The First Department reversed and remanded for the court below, finding that “there are disputed issues of fact concerning whether the 16th floor space qualifies as a construction area.” In remanding, the Appellate Division cited such cases as Gerrish v. 56 Leonard, 147 A.D.3 511 (1st Dept. 2017) (factors for determining applicability of 241(6) are physical proximity, common ownership, and operation of off-site premises) and Gonnerman v. Huddleston, 78 A.D.3d 993 (2d Dept. 2010) (241(6) extends to areas where materials are being readied for use, contrary to areas where materials are merely stored for future use).

            Lastly, and most important for Labor Law practitioners, the First Department then reasoned that because §241(6) would apply if the saw had been utilized on the 41st floor, the Plaintiff should not have an “automatic loss of the protections afforded by the statute” because Plaintiff chose instead to cut the wood on the 16th floor, and then bring it up to the 41st floor in an elevator.

            Application of this trigger to indemnity warrants widespread consideration across the legal universe. The analysis of Labor Law §241(6) by the First Department should be applied by insurance carriers and Labor Law practitioners to all future cases concerning the Section. Insurers should be aware that the designation of a physical area as a construction area is increasingly subject to more liberal interpretations – especially in regards to defense-side summary judgments motions.
241(6), contract law, contracts, Gartner + Bloom, indemnity, indemnity provision, labor law, Michael E. Kar

Outside the Coverage Period but Still Covered: New Jersey’s Warning to Insurers in Construction Defect Matters

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By:      Jacqueline A. Muttick, Esq. & Marc Shortino, Esq.
            Associate, New Jersey                Partner, New Jersey

Date:   October 19, 2017


            On October 10, 2017, the New Jersey Appellate Division addressed the “continuous-trigger” theory of insurance coverage in Air Master & Cooling, Inc. v. Selective Insurance Company of America, __ N.J. Super. __, Docket No. A-5415-15T3 (App. Div. Oct. 10, 2017). The Court found that the continuous trigger theory of insurance coverage applies “to third-party liability claims involving progressive damage to property caused by an insured’s allegedly defective construction work” and that the “last pull” of the trigger for ascertaining the end of a covered occurrence “happens when the essential nature and scope of the property damage first becomes known, or when one would have sufficient reason to know of it.” Id. (slip op. at 3).

            The insured, Air Master & Cooling, Inc. (“Air Master”), was hired as a subcontractor to perform heating, ventilation, and air conditioning (“HVAC”) work at a condominium building project. Between November 2005 and April 2008, Air Master installed condenser units on the roof and HVAC devices within each unit. Air Master also had a number of Commercial General Liability (“CGL”) insurance policies during and after this work, including a policy through Penn National Insurance Company in effect from about June 22, 2014 through June 22, 2009, a policy through Selective Insurance Company of America (“Selective”) effective June 22, 2009 through June 22, 2012, and a policy from Harleysville Insurance Company (“Harleysville”) covering June 22, 2012 through June 22, 2015.

            In the beginning of 2008, unit owners began to notice water infiltration in their individual units. Specifically, by February 2008, as reported in a news article, at least one unit owner noticed leaks in the walls and windows of his unit. A May 3, 2010 expert consultant report found roof damage caused by moisture from water infiltration, and recommended removal and replacement of those damaged areas of the roof. That expert was unable to determine when the moisture infiltration occurred. Individual unit owners and the condominium association filed suit against the project’s developer and other defendants for property damage, and those defendants brought third-party complaints against subcontractors, including Air Master.

            Air Master sought defense and indemnity from its insurers under its CGL policies, and filed a declaratory judgment action against both Selective and Harleysville when those insurers disclaimed coverage. Selective’s CGL policy stated, in part, that the policy provided coverage for property damage occurring “during the policy period.” The policy defined “occurrence” as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” The policy also defined “property damage” as “physical injury to tangible property, including all resulting loss of use of that property. All such loss of use shall be deemed to occur at the time of the physical injury that caused it.” “Property damage” included the “loss of use of tangible property that is not physically injured” and that loss “shall be deemed to occur at the time of the ‘occurrence’ that caused it.” Id. (slip op. at 7).

            Selective moved for summary judgment, arguing its policy did not cover water damage that materialized or manifested before the policy coverage began in June 2009. Air Master opposed that motion, arguing that the continuous-trigger theory of coverage applied and that coverage continued until the “last pull” of the trigger of injury occurs. Air Master also argued that manifestation occurs when it is known, or reasonably knowable, that damage is attributable to the work of the insured, which occurred in May 2010 with the issuing of the expert report. The trial judge granted summary judgment, ultimately finding that while the continuous-trigger theory of coverage applied, the damage manifested prior to the start of Selective’s policy period. Air Master appealed that determination.[1]

            On appeal, the Appellate Division also found that the continuous-trigger doctrine applies to claims for third-party, progressive property damage in construction defect litigation. “[T]he continuous-trigger theory recognizes that, because certain harms … will progressively develop over time, ‘the date of the occurrence should be the continuous period from exposure to manifestation.’” Id. (slip op. at 12) (quoting Owens-Illinois, Inc. v. United Insurance Co., 138 N.J. 437, 454-56 (1994)) (applying the continuous-trigger theory in the context of property damage claims arising from the installation of asbestos-related products). “Under such a continuous-trigger approach, ‘all the insurers over that period [are] liable for the continuous development’” of the damage. Id. (quoting Owens-Illinois, Inc., 138 N.J. at 450-51). “[T]he continuous-trigger approach requires multiple successive insurers up to the point of manifestation to cover a loss,” which the Court noted provides more coverage for claims and encourages insurers to monitor developing risks. Id. (slip op. at 13) (citing Owens-Illinois, Inc., 138 N.J. at 458-59). The Appellate Division stated that the doctrine was not unfair to insurers, but instead required them to bear a portion of the coverage burden that accumulated while the property harm had not yet manifested, as occurs in construction defect litigation where defects are not immediately obvious. Id. (slip op. at 17) (citing The Palisades at Fort Lee Condominium Association, Inc. v. 100 Old Palisade, LLC, __ N.J. __, Docket No. A-101/102/103/104-15 (2017) (slip op. at 34)).

            The Appellate Division also held that the “last pull” or “end” point of coverage under the continuous-trigger theory occurs when there is an “essential” manifestation of the injury, which is the “revelation of the inherent nature and scope of that injury.” Id. (slip op. at 25). That manifestation does not require that the damage be shown to be attributable to the conduct of a specific insured, as such an analysis would be highly fact-dependent and require lengthy discovery to determine. Id. (slip op. at 19). Instead, the “last pull” should be “a date of initial manifestation that is common to all parties – regardless of which contractor or subcontractor may be ‘at fault’ for the occurrence.” Id. (slip op. at 21).

            Using the above analysis, the Court determined that while the continuous-trigger doctrine applied to the third-party, progressive property damage claims asserted in the construction defect litigation, the “last pull” or “essential” manifestation could not be determined by the record presented on appeal. Specifically, it was unclear what defects were or reasonably could have been revealed between the time of the first unit owner’s complaint in February 2008 and the start of Selective’s CGL policy in June 2009.

            The application of the continuous-trigger doctrine to third-party, progressive property damage claims in New Jersey construction defect litigation impacts insurers who may be held liable for occurrences that would otherwise be outside the insured’s policy period. It also, as noted by the Appellate Division, distributes risk to several insurers which may have the impact of resolving claims earlier in litigation through settlement. Insurers will need to be aware that occurrences outside of the policy period may still result in risk on the policy under this ruling.




[1] Harleysville also obtained summary judgment and Air Master did not appeal that determination.  
carriers, construction defect, Gartner + Bloom, Jacqueline A. Muttick, Marc Shortino, New Jersey

Construction Defect Claims: A New Statute of Limitations Analysis

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By:      Jacqueline A. Muttick, Esq.
            Associate, New Jersey
Date:   September 19, 2017

      On September 14, 2017, the New Jersey Supreme Court in The Palisades at Fort Lee Condominium Association, Inc. v. 100 Old Palisade, LLC, articulated when the accrual date of the six year statute of limitations for construction defect claims accrues. The Court held that a construction defect claim accrues when the building’s owner, or a subsequent owner, knows or should have known though reasonable diligence about the existence of an actionable claim. Under the statute of limitations, the owner then has six years in which to bring a claim. For the purposes of the statute of limitations, a subsequent owner of the property stands in the shoes of a prior owner with regard to notice, so the statute of limitations begins to run upon notice to any prior owner.

            This litigation was instituted by Plaintiff The Palisades at Fort Lee Condominium Association (“Condominium Association”), who asserted construction defects at The Palisades. Palisades A/V Acquisitions Co., LLC (“A/V Acquisitions”), owned and developed The Palisades, hiring a general contractor who subsequently retained various subcontractors for the project. The architect certified the project as “substantially complete” on May 1, 2002. A/V Acquisitions then rented units for the following two years before selling the property to 100 Old Palisade, LLC (“Old Palisade”), which converted the rentals to condominiums. Old Palisade’s expert noted some defects at the property but no structural concerns, and a report reflecting the same was attached to the public offering statement and master deed. Old Palisade relinquished control to the Condominium Association in July 2006. The Condominium Association then hired its own expert who found additional construction defects and issued a report in June 2007. The Plaintiff subsequently filed suit against the general contractor and other entities in March 2009 and continued to add defendants to the lawsuit through the next year.

            Since substantial completion of the building occurred in May 2002, and the trial court determined that the six-year statute of limitations began running at that time, it followed that suit should have been filed by May 2008. Since the Condominium Association did not institute proceedings until after May 2008, the trial court dismissed those claims. Upon appeal, the Appellate Division reversed utilizing the “discovery rule”, finding that the construction defect claims did not accrue until the Condominium Association had full unit-owner control of the building and became aware of the claims through its expert. The New Jersey Supreme Court has now held that neither the standard utilized by the trial court nor the one employed by the Appellate Division were correct.

            The statute of limitations for tort-based property claims under N.J.S.A. 2A:14-1 requires instituting claims within six years of the date of accrual. Accrual of a claim begins when a reasonable person with ordinary diligence would be alerted that there was an injury due to another’s fault. Id. (slip op. at 19) (quoting Caravaggio v. D’Agostini, 166 N.J. 237, 246 (2001)). Accrual does not begin to run against an unknown third party until the plaintiff has evidence of that third party’s involvement, which may result in different accrual times against different defendants. Id. (slip op. at 23-24) (quoting Caravaggio, 166 N.J. at 248-250). Also applicable in determining accrual is the discovery rule, which holds that the time limit to bring a claim under an applicable statute of limitations does not begin to accrue until the plaintiff knew or should have known with reasonable diligence that an actionable claim existed against a defendant. Utilizing the statute of limitations and the discovery rule, the Court here determined that “[a] construction-defect lawsuit must be filed within six years from the time that the building’s original or subsequent owners first knew or, through the exercise of reasonable diligence, should have known of the basis for a cause of action.” Id. (slip op. at 6-7) (emphasis in original).

            Furthermore, “[a] subsequent owner stands in no better position than a prior owner in calculating the limitations period. If a prior owner knew or reasonably should have known of a basis for a construction-defect action, the limitations period began at that point.” Id. (slip op. at 7). Since a subsequent owner to a property takes title subject to the original owner’s rights, if the original owner knew or should have known of a construction defect claim then the subsequent owner will stand in the original owner’s shoes with regard to the statute of limitations. Id. (slip op. at 28). In other words, “[a] cause of action, for purposes of N.J.S.A. 2A:14-1, accrues when someone in the chain of ownership first knows or reasonably should know of an actionable claim against an identifiable party.” Id. (slip op. at 29) (citing O’Keeffe v. Snyder, 83 N.J. 478, 502 (1980)).

            This accrual analysis applies even in situations involving condominium associations. In this matter, the first owner, A/V Acquisitions, was the developer and the Condominium Association was a subsequent buyer. As such, if a prior owner knew or should have known of a construction defect claim, then the statute of limitations began to accrue before the Condominium Association took ownership of the property. Since there is a question as to when the statute of limitations began to accrue, the Court remanded the litigation to the trial court for a Lopez hearing on this issue. Id. (slip op. at 7) (citing Lopez v. Swyer, 62 N.J. 267 (1973)).

            The Supreme Court also stressed that the 10-year statute of repose in construction defect cases remains in effect. The statute of repose, N.J.S.A. 2A:14-1.1(a), requires all construction defect claims against construction professionals be brought within ten years of the date of substantial completion. Id. (slip op. at 32-33). The six-year statute of limitations, in conjunction with the discovery rule, determines when a claim must be brought and the statute of repose sets an outside limit of ten years for those claims. Therefore, as noted by the Court, if a claim accrued eight years after substantial completion, the plaintiff in such a matter would have two years to bring a claim before having that claim barred by the statute of repose. Id. (slip op. at 33).
           
            There remains the unresolved issue raised by defendants regarding the claims barred by the statute of repose. The defendants noted that the statute of repose appears to bar claims involving “defective and unsafe” conditions arising from construction. Defendants were concerned that the statute of repose could be interpreted as barring those conditions that are both defective and unsafe, potentially leaving viable claims that only regard defects alone. A reading of the statute in this manner could result in a situation in which a claimant is able to bring a construction defect claim outside of the ten-year statute of repose. Utilizing the example provided by the Court, the instance could arise if a claim accrues eight years after substantial completion but does not impact safety and is therefore timely filed fourteen years after substantial completion. The Court declined to opine on this issue and noted that the wording of the statue could be addressed by the Legislature.

            The takeaway from this ruling is that construction defect claims do not accrue upon substantial completion but instead accrue when the building’s owner (or predecessor owner) knows or should have known though reasonable diligence about the existence of an actionable claim. The owner then has six years in which to bring a claim. This accrual date does not re-start when a new owner takes possession of the property but is instead imputed to each subsequent owner. The accrual date also may vary as to different defendants, depending on when the owner was or should have been aware of the claim. The ten-year statute of repose remains in effect and bars claims filed ten years after substantial completion, however the Court did not directly address in this opinion what claims the statute of repose specifically bars. 

condominiums, construction defect, Gartner + Bloom, Jacqueline A. Muttick, Marc Shortino, New Jersey Supreme Court, statute of limitations, statute of repose, The Palisades at Fort Lee Conndominium

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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



Arthur Xanthos, carriers, claims professionals, construction law, Court of Appeals, Gartner + Bloom, general contractors, labor law, ladder, negligence, O'Brien v. Port Authority, slip and fall

Firm Wins Significant Dismissal in Construction Defect Case, by Alexander D. Fisher, Esq.

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In a recent New Jersey decision, this Firm succeeded in obtaining partial summary judgment in a construction defect case, dismissing multiple causes of action and claims against our client.  With this decision, the Court dismissed over 98% of the Plaintiff’s claimed damages of $6.1 million asserted against our client. The case is Views at Hudson Pointe Condominium Association v. K. Hovnanian at Hudson Pointe, LLC, et al., venued in Superior Court, Hudson County.
  
In the Views at Hudson Pointe case, Plaintiff condominium association claims significant construction defects in a large residential condominium complex located on the shores of the Hudson River in North Bergen, New Jersey.  Our client, a concrete subcontractor, is alleged to have been responsible for concrete cracking and piping deficiencies in the two on-site garages.  As part of a plan to repair the alleged cracking, Plaintiff’s expert opined that an expensive traffic coating would be needed in each garage, at an approximate cost of $5.8 million dollars.

Through discovery, the following was determined: (1) the garage plans provided to our client did not include a traffic coating; (2) our client was not contracted to put down such a coating; (3) our client was not retained to design the garages, only to construct them; (4) no one ever requested our client to install a traffic coating; (5) Plaintiff’s expert stated that the inclusion of a traffic coating would have been a “better design” for the garages; and (6) multiple parties acknowledged that our client had no role in the installation of piping, and that the claimed deficiencies were the responsibility of the piping contractor.

Accordingly, we moved for summary judgment at the close of discovery, on the grounds that the installation of a traffic coating was an obligation not found in the contract and for which Plaintiff could not recover.  In granting this portion of the motion, the Court found it clear that the traffic coating had not been part of the original plans for the garages.  Furthermore, the Court found that our client had no role in the design of the garages, and therefore, could not be held responsible for the proposed cost of installing such a coating.  Therefore, the Court limited the Plaintiff’s recoverable damages against our client to the cost of repairing the cracks in the garages with concrete filler, which Plaintiff’s own expert estimated at approximately $100,000.00 dollars.  

The Court also dismissed the claims relating to piping in the garages, stating that the evidence clearly showed that our client played no role in this work.

This decision highlights that a Plaintiff in a construction defect matter may only recover damages that provide them with the benefit of the bargain – in this case, two garages without a traffic coating.  A Plaintiff in this type of action is not entitled to receive a better building than was envisioned by the plans.  

It is common for condominium association experts in construction defect cases to inflate the cost to repair the alleged defects by inserting items that substantially improve upon the design of a particular building.  With this decision, the Court affirmed that a plaintiff will not be permitted to inflate its damages estimates in order to improve a building with upgraded designs and/or materials.  


Alex Fisher, Alexander D. Fisher, condominiums, construction defect, construction law, damages, Gartner + Bloom, Hudson Pointe Condominium Association, New Jersey

Kenneth Bloom to Speak at the 2016 CLM National Construction Claims Conference in San Diego CA

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Gartner + Bloom is proud to announce that managing partner Kenneth Bloom will be speaking at the 2016 CLM National Construction Claims Conference.  The conference will be held in the Manchester Grand Hyatt in San Diego, California, September 28-30.
This September, the Claims and Litigation Management Alliance (CLM) will hold the most comprehensive construction claims conference ever. In addition to addressing construction defect claims, conference sessions will also address facets of construction-related claims including construction site accidents/injuries, coverage issues, subcontractor issues, and new technologies. Sessions also will address issues on the national, regional, and state levels.

About Ken: Ken Bloom is a founding partner of Gartner + Bloom, PC., an AV rated law firm in existence for twenty-two years and with offices in New York City and Springfield New Jersey. Ken is a skilled trial attorney, who concentrates his practice in the areas of Casualty/Liability Defense; Insurance Coverage; New York Labor Law (Scaffold Law); Construction Litigation including construction defect, EIFS, apparent microbial growth (AMG), asbestos and lead paint matters, as well as Insurance Fraud Defense and Commercial Litigation. Ken was admitted to the bar in the District of Columbia in 1981; New York 1982; Pennsylvania 1990; the U.S. District Court, Eastern and Southern District of New York in 1983; U.S. District Court, Northern District of New York in 1990; U.S. Supreme Court in 1985; U.S. District Court, Eastern District of Michigan in 1988; and the U.S. Court of Appeals, Second Circuit 1990.  He is a graduate of Cornell University (B.S., 1978), where he serves as a guest lecturer for the course, “Managing and Resolving Conflict.” He obtained his J.D. from American University in 1981.  

Prior to founding Gartner + Bloom, Ken was an Assistant District Attorney, Kings County, New York, 1981-1982; Senior Staff Attorney, New York City Mayor's Strike Force, 1982-1983; Partner, O'Donnell, Fox & Gartner, P.C., New York City, 1983-1990; Resident Senior Partner Cozen and O'Connor, New York City, 1991-1994.Ken is a member of the New York State Former District Attorneys Association, Brooklyn, New York; Pennsylvania and American Bar Associations- member of the Tort and Insurance Practice Section and Alternate Dispute Resolution Section; Co- chair of the Construction Committee of the ABA Section on Dispute Resolution (2004-2005); District of Columbia Bar and the New York County Lawyers Association. He is a frequent lecturer on construction and coverage related topics, as well as ADR.

adjusters, claims professionals, construction law, Gartner + Bloom, insurance, Ken Bloom, litigation, premises liability, real estate, risk management

MOLD PERSONAL INJURY LAWSUITS: WHY DO THEY CONTINUE? By Arthur P. Xanthos

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In 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
        
Arthur Xanthos, bodily injury, buildings, causation, co-ops and condo, Cornell v. 360 W. 51st Realty, Gartner + Bloom, lawsuit, mold, personal injury, toxic tort