Two Dismissals Back to Back
PermalinkThe Firm has secured two separate victories for its clients within the space of three days.
In State Farm v. Sahor, associate Anne Armstrong analyzed complex insurance coverage issues and drafted opposition papers in successfully keeping the Firm’s client from being added to a personal injury arbitration. The decision can be found in Decisions of Note under Insurance Coverage.
In Alpha v. Creative, associate Roy Anderson protected the Firm’s California based website technology client from being sued in New York by arguing that an out of state company that works remotely on a New York website cannot be sued in New York. The decision can be found in Decisions of Note under Contracts/Business Law.
In State Farm v. Sahor, associate Anne Armstrong analyzed complex insurance coverage issues and drafted opposition papers in successfully keeping the Firm’s client from being added to a personal injury arbitration. The decision can be found in Decisions of Note under Insurance Coverage.
In Alpha v. Creative, associate Roy Anderson protected the Firm’s California based website technology client from being sued in New York by arguing that an out of state company that works remotely on a New York website cannot be sued in New York. The decision can be found in Decisions of Note under Contracts/Business Law.
Dismissal of Ironworker’s Labor Law Case Upheld
PermalinkAssociate Attorney Roy Anderson succeeded in dismissing a New York Labor Law personal injury case brought by an ironworker, and then succeeded in having the decision upheld by the Appellate Division, Second Department. The incredible result of a Labor Law dismissal by motion, and its affirmance on appeal, was made even more incredible due to the fact the plaintiff ironworker was injured by falling into an open ditch on a construction site.
In ruling for the Firm’s clients – a general contractor and owner - the Second Department held that good, clear deposition testimony submitted on the motion proved the inapplicability of Sections 200, 240(1), and 246 of the Labor Law, thereby warranting dismissal.
The case is Reyes v. Astoria 31st Street Developers, Index No. 7856/2015.
In ruling for the Firm’s clients – a general contractor and owner - the Second Department held that good, clear deposition testimony submitted on the motion proved the inapplicability of Sections 200, 240(1), and 246 of the Labor Law, thereby warranting dismissal.
The case is Reyes v. Astoria 31st Street Developers, Index No. 7856/2015.
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
PermalinkBy: 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
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.”