…plaintiff could not establish liability because he could not prove the underlying action.

In Blair v Loduca, 164 AD3d 637, 638-40 [2d Dept 2018], the Second Department considered the argument made by the defendant-attorney sued for legal malpractice that the plaintiff could not establish liability because he could not prove the underlying action.

“ To establish the required element of causation in a legal malpractice action, ‘ a plaintiff must show that he or she would have prevailed in the underlying action … but for the lawyer’s negligence ’ ” (Balan v. Rooney, 152 A.D.3d 733, 733, 61 N.Y.S.3d 29, quoting Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 442, 835 N.Y.S.2d 534, 867 N.E.2d 385; see Detoni v. McMinkens, 147 A.D.3d 1018, 48 N.Y.S.3d 208). The only issue raised in the defendants’ motion for summary judgment was whether the plaintiff could have prevailed in the underlying action against the property owner.

In a premises liability case, a defendant property owner who moves for summary judgment has the initial burden of making a prima facie showing that it neither created the allegedly *639 dangerous or defective condition nor had actual or constructive notice of its existence (see Martino v. Patmar Props., Inc., 123 A.D.3d 890, 890, 999 N.Y.S.2d 449; Kruger v. Donzelli Realty Corp., 111 A.D.3d 897, 975 N.Y.S.2d 689; Smith v. Christ’s First Presbyt. Church of Hempstead, 93 A.D.3d 839, 941 N.Y.S.2d 211; Meyers v. Big Six Towers, Inc., 85 A.D.3d 877, 925 N.Y.S.2d 607). “ Under the so-called ‘ storm in progress ’ rule, a property owner will not be held responsible for accidents occurring as a result of the accumulation of snow and ice on its premises until an adequate period of time has passed following the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the storm ” (Marchese v. Skenderi, 51 A.D.3d 642, 642, 856 N.Y.S.2d 680; see Solazzo v. New York City Tr. Auth., 6 N.Y.3d 734, 810 N.Y.S.2d 121, 843 N.E.2d 748; Dumela–Felix v. FGP W. St., LLC, 135 A.D.3d 809, 810, 22 N.Y.S.3d 896; McCurdy v. Kyma Holdings, LLC, 109 A.D.3d 799, 799, 971 N.Y.S.2d 137; Smith v. Christ’s First Presbyt. Church of Hempstead, 93 A.D.3d 839, 840, 941 N.Y.S.2d 211; Weller v. Paul, 91 A.D.3d 945, 947, 938 N.Y.S.2d 152; Mazzella v. City of New York, 72 A.D.3d 755, 756, 899 N.Y.S.2d 291). If a storm is ongoing, and a property owner elects to remove snow, the owner must do so with reasonable care or it could be held liable for creating a hazardous condition or exacerbating a natural hazard created by the storm (see Kantor v. Leisure Glen Homeowners Assn., Inc., 95 A.D.3d 1177, 944 N.Y.S.2d 640; Petrocelli v. Marrelli Dev. Corp., 31 A.D.3d 623, 817 N.Y.S.2d 913; Salvanti v. Sunset Indus. Park Assoc., 27 A.D.3d 546, 813 N.Y.S.2d 110; Chaudhry v. East Buffet & Rest., 24 A.D.3d 493, 808 N.Y.S.2d 239). In such an instance, that property owner, if moving for summary judgment in a slip-and-fall case, must demonstrate in support of his or her motion that the snow removal efforts he or she undertook neither created nor exacerbated the allegedly hazardous condition which caused the injured plaintiff to fall (see Kantor v. Leisure Glen Homeowners Assn., Inc., 95 A.D.3d at 1177, 944 N.Y.S.2d 640).

In support of their motion for summary judgment dismissing the complaint in this action, the defendants submitted the plaintiff’s deposition testimony, the deposition testimony of the building’s doorman, the affidavit of a meteorologist, and certified climatological data. These submissions demonstrated that a storm was in progress at the time of the accident, that there was no preexisting ice on the ground when the storm commenced, and that the property owner did not create or exacerbate the allegedly dangerous condition created by the storm in progress (see Aronov v. St. Vincent’s Hous. Dev. Fund Co., Inc., 145 A.D.3d 648, 649, 43 N.Y.S.3d 99; **135 Kantor v. Leisure Glen Homeowners Assn., Inc., 95 A.D.3d at 1177, 944 N.Y.S.2d 640; Ali v. Village of Pleasantville, 95 A.D.3d 796, 797, 943 N.Y.S.2d 582). Since the defendants made a prima facie showing that the storm in progress rule applied *640 to the underlying action, the burden shifted to the plaintiff to show that something other than the precipitation from the storm in progress caused the accident (see Baker v. St. Christopher’s Inn, Inc., 138 A.D.3d 652, 653, 29 N.Y.S.3d 439; Burniston v. Ranric Enters. Corp., 134 A.D.3d 973, 974, 21 N.Y.S.3d 694; Meyers v. Big Six Towers, Inc., 85 A.D.3d 877, 877–878, 925 N.Y.S.2d 607; Alers v. La Bonne Vie Org., 54 A.D.3d 698, 699, 863 N.Y.S.2d 750). The plaintiff failed to raise a triable issue of fact.

Accordingly, the Supreme Court should have granted the defendants’ motion for summary judgment dismissing the complaint because the plaintiff could not have prevailed in the underlying action against the property owner (see Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d at 442, 835 N.Y.S.2d 534, 867 N.E.2d 385; Balan v. Rooney, 152 A.D.3d at 733, 61 N.Y.S.3d 29; Detoni v. McMinkens, 147 A.D.3d at 1018, 48 N.Y.S.3d 208).

R. A. Klass
Your Court Street Lawyer

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In Pari Delicto

In Pari Delicto — party’s wrongful doing — can bar a lawsuit.

“The doctrine of in pari delicto bars a party that has been injured as a result of its own intentional wrongdoing from recovering for those injuries from another party whose equal or lesser fault contributed to the loss (see Kirschner v KPMG, 15 N.Y.3d 446, 912 N.Y.S.2d 508, 938 N.E.2d 941 [2010]; [in pari delicto “mandates that the courts will not intercede to resolve a dispute between two wrongdoers”]; Chemical Bank v. Stahl, 237 A.D.2d 231, 232, 655 N.Y.S.2d 24 [1997] [in pari delicto “requires immoral or unconscionable conduct that makes the wrongdoing of the party against which it is asserted at least equal to that of the party asserting it”]).” Rosenbach v Diversified Group, Inc., 85 AD3d 569, 570 [1st Dept 2011].

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“What’s in a Name?” asked Shakespeare. “$300,000” we replied.

Portrait of William Shakespeare by William Page, 1873, illustrating article about notice of pendency by Richard Klass.

The child got injured as a result of a trip and fall accident in a building in Brooklyn. His mother hired a law firm to pursue his personal injury claim. The law firm recovered judgment in favor of the child against the building’s owner; however, it was having trouble collecting on the Judgment because the owner seemingly did not have premises liability coverage on the building. To enforce the Judgment, the law firm retained Richard A. Klass, Your Court Street Lawyer, as special collection counsel.

Typographical Error in Judgment

Once a Judgment is granted in favor of a litigant, the court clerk “dockets” the Judgment and records the exact name of the judgment debtor (CPLR 5018). After docketing, the Judgment becomes a lien against any real property owned by the debtor in that county (CPLR 5203). Unfortunately, in this particular case, the Judgment misspelled the name of the building owner/judgment debtor (The “Iguenia” Limited Partnership instead of “Iugenia” Limited Partnership). [This is not the debtor’s actual name; we have changed it for this article.]

Since the clerk indexes judgment debtors’ names exactly as they appear in judgments, a misspelling can effectively allow a judgment debtor to sell its real property to a good faith buyer without the imposition of the judgment lien. In this case, the misspelled name “Iguenia” would have allowed the building owner to sell its property to an unknowing buyer (bona fide purchaser) without having to satisfy the personal injury judgment.

Enforcement Remedy of Receivership

Given the very real possibility that the building owner could sell the property to avoid payment of the Judgment, there needed to be a mechanism to ensure that no one could claim that it did not have notice of the judgment lien. A motion to “resettle” (amend) the Judgment into the correct name might have alerted the debtor to a quick way to dispose of its assets before the Judgment could be fixed.

The strategy devised, utilizing one of the enforcement of judgment measures of New York’s Civil Practice Law and Rule’s (CPLR) Article 52, was to file a petition for the court to appoint a receiver over the property under CPLR 5228. A receiver may be appointed by a court to “administer, collect, improve, lease, repair, or sell any real or personal property in which the judgment debtor has an interest.”

Filing of the Notice of Pendency

The filing of the new case against the debtor gave the creditor/petitioner the ability to also file a Notice of Pendency (also referred to as a “Lis Pendens”).CPLR Section 6501 states:

A notice of pendency may be filed in any action in a court of the state or of the United States in which the judgment demanded would affect the title to, or the possession, use or enjoyment of, real property, except in a summary proceeding brought to recover the possession of real property. The pendency of such an action is constructive notice, from the time of filing of the notice only, to a purchaser from, or incumbrancer against, any defendant named in a notice of pendency indexed in a block index against a block in which property affected is situated or any defendant against whose name a notice of pendency is indexed. A person whose conveyance or incumbrance is recorded after the filing of the notice is bound by all proceedings taken in the action after such filing to the same extent as a party.

Typically, in post-judgment enforcement measures, it is not necessary to file a Notice of Pendency with the court clerk because the Judgment is already filed as of record (and, thus, acts as notice to the world of its existence). Here, the filing of the Notice of Pendency with the petition for receivership was essential in order to make sure that everyone in the world knew that there was a judgment lien against the real property.

Clerk’s Rejection – and Acceptance

Sometimes, creative lawyering is not appreciated or understood by the court clerk. Upon presenting the Notice of Pendency for filing with the new petition for receivership, the clerk rejected it as an inappropriate document. With the CPLR book in hand (the lawyers’ equivalent of an NFL Rulebook), Richard Klass met with the Chief Clerk to convince him that the filing was allowed based upon the fact that the outcome of the receivership petition would necessarily affect the “possession, use or enjoyment” of the debtor’s real property. It was also urged that the clerk could not reject the filing because he was constrained by CPLR 2102(c) (“A clerk shall not refuse to accept for filing any paper presented for that purpose except where specifically directed to do so by statute or rules promulgated by the chief administrator of the courts, or order of the court.”).

Once the Chief Clerk accepted the filing of the Notice of Pendency, the debtor was served with the petition for receivership. The debtor brought into the picture its former insurance broker, who it alleged failed to procure the appropriate insurance policy to cover the building. The parties settled the matter with the debtor acknowledging both the Judgment and the lien and the creditor allowing the debtor to sue its insurance broker and wait for payment of the Judgment until that case resolved. In the end, the creditor received over $300,000 in satisfaction of his Judgment.

— by Richard A. Klass, Esq.

Richard A. Klass, Esq., maintains a law firm engaged in civil litigation at 16 Court Street, 28th Floor, Brooklyn Heights, New York. He may be reached by phone at (718) COURTST or e-mail at richklass@courtstreetlaw.com with any questions.
Prior results do not guarantee a similar outcome.

© 2015 Richard A. Klass
Credits: Image at top: Portrait of William Shakespeare by William Page, 1873. Marketing by The Innovation Works, Inc.


R. A. Klass
Your Court Street Lawyer

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Safety Devices: Liability for not having safety devices.

Binding precedents from all four Departments of the Appellate Division, including Second Department precedents hold that where it is uncontested that the plaintiff was injured as a result of falling from a ladder, and “at the time of his fall, there were no safety belts, nets, or other safety devices in the area, and he was not equipped with any safety devices. Under the circumstances, the plaintiff established his prima facie entitlement to judgment as a matter of law on the issue of liability on the cause of action pursuant to Labor Law Section 240(1)” Denis v. City of New York, 54 A.D.3d 803, 803-804, 863 N.Y.S.2d 773, 773-774 (2d Dep’t 2008); see Lesisz v. Salvation Army, 40 A.D.3d 1050, 837 N.Y.S.2d 238, 240 (2d Dep’t 2007); Velasco v. Green Wood Cemetery, 8 A.D.3d 88, 89, 779 N.Y.S.2d 459, 459-460 (1st Dep’t 2004).

In Velasco, 8 A.D.3d at 89, 779 N.Y.S.2d at 459-460, the Appellate Division, First Department expressly held as follows, directly refuting defense counsel’s ridiculous claim that the subject precedents do not stand for this proposition:

“Defendants argue that the ladder was in no way defective, and that the only cause of the accident was plaintiff’s own negligence in helping to set up the ladder in soil and then using it even though he knew that his co-worker was not holding it. The argument overlooks plaintiff’s evidence that no safety devices were provided to protect him in the event the ladder slipped. Given an unsecured ladder and no other safety devices, plaintiff cannot be held solely to blame for his injuries (see Davis v. Selina Dev. Corp., 302 A.D.2d 304, 305, 754 N.Y.S.2d 872; Bonanno v. Port Auth., 298 A.D.2d 269, 270, 750 N.Y.S.2d 7; cf. Blake v. Neighborhood Hous. Servs., 1 N.Y.3d 280, 290, 771 N.Y.S.2d 484, 803 N.E.2d 757). Plaintiff’s use of the ladder without his co-worker present amounted, at most, to comparative negligence, which is not a defense to a section 240(1) claim (see Hernandez v. 151 Sullivan Tenant Corp., 307 A.D.2d 207, 208, 762 N.Y.S.2d 603).”

In Denis, 54 A.D.3d at 803-804, 863 N.Y.S.2d at 773-774, the express language of the Appellate Division, Second Department also directly contradicts the defense counsel’s specious contention:

“As the plaintiff was removing one of the guard frames, the ladder began to shake, causing him to fall to the ground. In his affidavit, the plaintiff asserted that at the time of his fall, there were no safety belts, nets, or other safety devices in the area, and he was not equipped with any safety devices. Under the circumstances, the plaintiff established his prima facie entitlement to judgment as a matter of law on the issue of liability on the cause of action pursuant to Labor Law Section 240(1) ( see Ricciardi v. Bernard Janowitz Constr. Corp., 49 A.D.3d 624, 853 N.Y.S.2d 373; Argueta v. Pomona Panorama Estates, Ltd.,39 A.D.3d 785, 786, 835 N.Y.S.2d 358; Boe v. Gammarati, 26 A.D.3d 351, 351-352, 809 N.Y.S.2d 550; Loreto v. 376 St. Johns Condominium, Inc., 15 A.D.3d 454, 455, 790 N.Y.S.2d 190; Guzman v. Gumley-Haft, Inc., 274 A.D.2d 555, 556, 712 N.Y.S.2d 45).”

Appellate Division, First, Second and Third Department precedents hold that a fall from a ladder or scaffold precipitated by the materials with which plaintiff was working or type of work that the plaintiff was performing, including (1) an electrician being shocked by live wires, (2) a person who fell from a ladder while working on a fence, or (3) a carpenter installing a sign falling from a ladder when the sign suddenly and unexpectedly came loose, sets forth a prima facie violation of the Labor Law, as “it is plain that the ladder he used was not an adequate safety device for the task he was performing, rendering defendants, who admittedly provided no safety devices, absolutely liable under section 240(1) [citations omitted].” Kadoic v. 1154 First Ave. Tenants Corp., 277 A.D.2d 66, 716 N.Y.S.2d 386, 387 (1st Dep’t 2000); see Castillo v. 62-25 30th Ave. Realty, LLC, 47 A.D.3d 865, 865-866, 850 N.Y.S.2d 616, 617-618 (2d Dep’t 2008); Lodato v. Greyhawk North America, LLC, 39 A.D.3d 491, 492-494, 834 N.Y.S.2d 242, 244-245 (2d Dep’t 2007); Quackenbush v. Gar-Ben Associates, 2 A.D.3d 824, 825, 769 N.Y.S.2d 387, 388 (2d Dep’t 2003); Gange v. Tilles Inv. Co., 220 A.D.2d 556, 558, 632 N.Y.S.2d 808, 810 (2d Dep’t 1995); Carino v. Webster Place Associates, LP, 45 A.D.3d 351, 352, 845 N.Y.S.2d 60, 61 (1st Dep’t 2007); Weber v. 1111 Park Ave. Realty Corp., 253 A.D.2d 376, 378, 676 N.Y.S.2d 174, 176 (1st Dep’t 1998); Quinlan v. Eastern Refractories Co., Inc., 217 A.D.2d 819, 820, 629 N.Y.S.2d 819, 820 (3d Dep’t1995).

 
In Gange, 220 A.D.2d at 558, 632 N.Y.S.2d at 810, the Appellate Division, Second Department held that an electrician who fell from a ladder after being shocked was entitled to recover under Labor Law Section 240(1), as the ladder was an insufficient safety device to prevent him from falling after he was shocked:

“Furthermore, the fact that the plaintiff fell off of the ladder only after he sustained an electric shock does not preclude recovery under Labor Law Section 240(1) for injuries sustained as a result of the fall from the ladder (see, Izrailev v. Ficarra Furniture, 70 N.Y.2d 813, 523 N.Y.S.2d 432, 517 N.E.2d 1318).”

In Quackenbush, 2 A.D.3d at 825, 769 N.Y.S.2d at 388, the Appellate Division, Second Department explained its rationale in Gange, 220 A.D.2d at 558, 632 N.Y.S.2d at 810, as follows:

“The unrebutted evidence adduced at trial by the plaintiff, an electrician, demonstrated that the defendants, which opted not to call any witnesses or present any evidence at trial, did not provide him with proper protection from height-related dangers connected with his work, and that the ladder on which he worked was inadequate to prevent him from falling 14 feet to the floor after sustaining an electric shock in the course of connecting a ceiling fixture ( see Izrailev v. Ficarra Furniture of Long Is., 70 N.Y.2d 813, 815, 523 N.Y.S.2d 432, 517 N.E.2d 1318).”

In Weber, 253 A.D.2d at 378, 676 N.Y.S.2d at 176, the Appellate Division, First Department expressly adopted the Second Department’s rationale fromGange, 220 A.D.2d at 558, 632 N.Y.S.2d at 810:

Gange v. Tilles Investment Co., 220 A.D.2d 556, 632 N.Y.S.2d 808, is directly on point. There, the Appellate Division, Second Department stated (at 558, 632 N.Y.S.2d 808), ‘the fact that the plaintiff fell off the ladder only after he sustained an electric shock does not preclude recovery under Labor Law Section 240(1) for injuries sustained as a result of the fall from the ladder (see, Izrailev v. Ficarra Furniture, 70 N.Y.2d 813, 523 N.Y.S.2d 432, 517 N.E.2d 1318).’”

In Weber, 253 A.D.2d at 378, 676 N.Y.S.2d at 176, the Appellate Division, First Department directly addressed and rejected the argument of the defendant’s herein, holding “[r]egardless of the method employed by plaintiff to remove the fence, the ladder provided to him was not an adequate safety device for the task he was performing and was a proximate cause of the fall and resulting injuries”:

“Plaintiff was entitled to partial summary judgment on his Labor Law Section 240(1) cause of action, where he was injured when he fell from a ladder while in the course of removing an eight-foot high fence at a construction site. Regardless of the method employed by plaintiff to remove the fence, the ladder provided to him was not an adequate safety device for the task he was performing and was a proximate cause of the fall and resulting injuries (see Ben Gui Zhu v. Great Riv. Holding, LLC., 16 A.D.3d 185, 791 N.Y.S.2d 43 [2005]; Dunn v. Consolidated Edison Co. of N.Y., Inc., 272 A.D.2d 129, 707 N.Y.S.2d 420 [2000] ).”

Binding Appellate Division, First, Second and Fourth Department precedents expressly reject the defense that plaintiff’s negligently performing work outside exposed to the elements, including rain (as instructed by his employer) where it was foreseeable that this type of accident could occur, was the sole proximate cause of the accident, instead holding “[e]vidence of rain, or other ‘concurrent cause’, at the time of the accident does not create a triable issue of fact as to proximate cause where plaintiff has met her burden in establishing her Section 240(1) claim [citations omitted]. If anything, the readily foreseeable occurrence of rainy conditions at an outdoor construction site highlights defendants’ negligence in failing to provide the statutorily-prescribed safety measures.” Robinson v. NAB Const. Corp., 210 A.D.2d 86, 86-87, 620 N.Y.S.2d 337, 338-339 (1st Dep’t 1994); see Shipkoski v. Watch Case Factory Associates, 292 A.D.2d 587, 588-589, 741 N.Y.S.2d 55, 56-57 (2d Dep’t 2002) (Holding that “to establish a prima facie case pursuant to Labor Law Section 240(1), a plaintiff must demonstrate that the risk of injury from an elevation-related hazard was foreseeable, and that an absent or defective protective device of the type enumerated in the statute was a proximate cause of the injuries alleged (see Felker v. Corning, Inc., 90 N.Y.2d 219, 660 N.Y.S.2d 349, 682 N.E.2d 950; Misseritti v. Mark IV Constr. Co., supra)” and this burden is met upon evidence of hazards caused by “neglect, vandalism, and the elements that the plaintiff’s work on the third floor exposed him to a foreseeable risk of injury from an elevation-related hazard, and whether the absence of a type of protective device enumerated under Labor Law Section 240(1) was a proximate cause of his injuries (see Gold v. NAB Constr. Corp., 288 A.D.2d 434, 733 N.Y.S.2d 681; Norton v. Park Plaza Owners Corp., 263 A.D.2d 531, 694 N.Y.S.2d 411; Avelino v. 26 Railroad Ave., 252 A.D.2d 912, 676 N.Y.S.2d 342).”); Callan v. Structure Tone, Inc., 52 A.D.3d 334, 335, 860 N.Y.S.2d 62, 63 (1st Dep’t 2008) (“Plaintiff worker, an electrician employed by third-party defendant subcontractor, was injured while installing ceiling lights over a weekend in an unventilated room where the temperature was estimated at over 100 degrees; he became dizzy from the heat, then nauseous, and fell from near the top of a 10-foot ladder. The worker recalled that as he attempted to reach down to grab hold of the ladder to stabilize himself, the ladder wobbled, he passed out, and both he and the ladder toppled over. Defendant was the general contractor at the work site, and deposition testimony of its project foreman corroborated the worker’s testimony that prior complaints of excessive heat during weekend duty had gone unheeded. The unrefuted evidence of excessively hot work conditions, of which defendant had notice and control; the foreseeable consequence to workers who might suffer heat-related physical symptoms under such circumstances; and the lack of proper safety equipment afforded to elevated workers in light of these conditions, provided a basis for finding defendant strictly liable under Labor Law Section 240(1) ( Arce v. 1133 Bldg. Corp., 257 A.D.2d 515, 684 N.Y.S.2d 523 [1999]; see also Cruz v. Turner Constr. Co., 279 A.D.2d 322, 720 N.Y.S.2d 10 [2001]).”); Reisch v. Amadori Const. Co., Inc., 273 A.D.2d 855, 857, 709 N.Y.S.2d 726, 728-729 (4th Dep’t 2000) (“We also reject Amadori’s contention that, because plaintiff knew the plank was wet and complained about its safety before using it, there is an issue of fact whether the absence of safety devices was the sole proximate cause of plaintiff’s injuries. “It is well settled that the [plaintiff’s] contributory negligence is not a defense to a claim based on Labor Law Section 240(1)” (Stolt v. General Foods Corp., 81 N.Y.2d 918, 920, 597 N.Y.S.2d 650, 613 N.E.2d 556; see also, Robinson v. NAB Constr. Corp.,210 A.D.2d 86, 86-87, 620 N.Y.S.2d 337).”); Arce v. 1133 Bldg. Corp., 257 A.D.2d 515, 515-516, 684 N.Y.S.2d 523, 524 (1st Dep’t 1999) (“We note that even if the testimony of defendants’ expert witness were sufficient to raise a fact question on the cause of plaintiff’s fall, partial summary judgment would still have been properly granted to plaintiffs because defendants failed to provide proper protection to plaintiff, e.g., a scaffold, in the event he became overcome by heat, which was foreseeable under the circumstances (see, Gordon v. Eastern Ry. Supply, Inc., 82 N.Y.2d 555, 562, 606 N.Y.S.2d 127, 626 N.E.2d 912; Robinson v. NAB Constr. Corp., 210 A.D.2d 86, 620 N.Y.S.2d 337).”).

 
In Robinson, 210 A.D.2d at 86-87, 620 N.Y.S.2d at 338-339, the Appellate Division, First Department expressly rejected the contention that a worker’s performing assigned work outside in the rain was the sole proximate cause of his fall from an elevated worksite, holding:

“Evidence of rain, or other “concurrent cause”, at the time of the accident does not create a triable issue of fact as to proximate cause where plaintiff has met her burden in establishing her Section 240(1) claim (see, Iannelli v. Olympia & York Battery Park Co., 190 A.D.2d 775, 776, 593 N.Y.S.2d 553, citing Joyce v. Rumsey Realty Corp., 17 N.Y.2d 118, 122, 269 N.Y.S.2d 105, 216 N.E.2d 317). If anything, the readily foreseeable occurrence of rainy conditions at an outdoor construction site highlights defendants’ negligence in failing to provide the statutorily-prescribed safety measures.”

In the instant action, the uncontroverted evidence shows that plaintiff fell when he was shocked by the welding equipment he was forced to use outside in the rain without any shelter being provided (see Shipkoski, 292 A.D.2d at 588-589, 741 N.Y.S.2d at 56-57; Callan, 52 A.D.3d at 335, 860 N.Y.S.2d at 63; Robinson, 210 A.D.2d at 86-87, 620 N.Y.S.2d at 338-339), plaintiff shook, the ladder shifted, sank into the mud, and he and the ladder fell to the ground as a result of the failure to provide any adequate safety devices in violation of Labor Law Section 240, so plaintiff has demonstrated a prima facie entitlement to summary judgment on his Labor Law 240(1) cause of action. See id.; Kadoic, 277 A.D.2d at 66, 716 N.Y.S.2d at 387; Davis, 302 A.D.2d at 305, 754 N.Y.S.2d at 872; Costello, 305 A.D.2d at 447, 761 N.Y.S.2d at 80-81; Peter, 300 A.D.2d at 289-290, 750 N.Y.S.2d at 772-773.

 
The failure to provide safety devices may be a proximate cause of the plaintiff’s injuries sufficient to remove the “sole proximate cause” defense from the case and support the grant of summary judgment to an injured worker. See Denis v. City of New York, 54 A.D.3d 803, 803-804, 863 N.Y.S.2d 773, 773-774 (2d Dep’t 2008); Boe v. Gammarati, 26 A.D.3d 351, 352, 809 N.Y.S.2d 550, 550-551 (2d Dep’t 2006); Brandl v. Ram Builders, Inc., 7 A.D.3d 655, 777 N.Y.S.2d 511, 511-512 (2d Dep’t 2004); Wallace v. Stonehenge Group, Ltd., 1 A.D.3d 589, 767 N.Y.S.2d 450, 451 (2d Dep’t 2003); Ranieri v. Holt Construction Corp., 33 A.D.3d 425, 822 N.Y.S.2d 509, 510 (1st Dep’t 2006) (“Plaintiff, a sheet metal worker employed by a subcontractor, was injured when he fell from an unsecured ladder with no safety devices provided to protect him. This activity fell within the ambit of Labor Law Section 240(1), and the failure to supply plaintiff with a properly secured ladder or any safety devices was a proximate cause of his fall (see Samuel v. Simone Dev. Co., 13 A.D.3d 112, 786 N.Y.S.2d 163 [2004]; Velasco v. Green Wood Cemetery, 8 A.D.3d 88, 779 N.Y.S.2d 459 [2004]). There is no reasonable view of the evidence to support defendants’ contention that plaintiff was the sole proximate cause of his injury, nor is there a triable question of fact as to whether he was solely to blame.”); Peralta v. American Telephone And Telegraph Company, 29 A.D.3d 493, 494, 816 N.Y.S.2d 436, 436-437 (1st Dep’t 2006) (“Unrefuted evidence that the unsecured ladder moved, combined with evidence that no other safety devices were provided to plaintiff, warranted a finding that the owners were absolutely liable under Labor Law Section 240(1), notwithstanding claims of comparative negligence (see Velasco v. Green Wood Cemetery, 8 A.D.3d 88, 779 N.Y.S.2d 459 [2004] ), or unsupported claims that plaintiff’s conduct was the sole proximate cause of her injuries.”); Morales v. Spring Scaffolding, Inc., 24 A.D.3d 42, 47-49, 802 N.Y.S.2d 41, 44-46 (1st Dep’t 2005); Serrano v. 432 Park South Realty Co., LLC, 8 A.D.3d 202, 779 N.Y.S.2d 198, 199 (1st Dep’t 2004); Velasco v. Green Wood Cemetery, 8 A.D.3d 88, 89, 779 N.Y.S.2d 459 (1st Dep’t 2004); Morin v. Machnick Builders, Ltd., 4 A.D.3d 668, 669-670, 772 N.Y.S.2d 388, 390-391 (3d Dep’t 2004); Bonanno v. Port Of Authority Of New York And New Jersey, 298 A.D.2d 269, 270, 750 N.Y.S.2d 7, 8 (1st Dep’t 2002) (“No other safety devices were provided to prevent the fall. Nor does the evidence suggest that plaintiff’s own actions were the sole proximate cause of his injury. Thus, plaintiff, as a matter of law, was entitled to recover on his Labor Law Section 240(1) claim. Plaintiff was under no obligation to show that the ladder was defective in some manner (Klein v. City of New York, 222 A.D.2d 351, 635 N.Y.S.2d 634, affd. 89 N.Y.2d 833, 652 N.Y.S.2d 723, 675 N.E.2d 458) or to prove that the floor was slippery to make out a Labor Law Section 240(1) violation. It was sufficient to show the absence of adequate safety devices to prevent the ladder from sliding or to protect plaintiff from falling. (Orellano v. 29 East 37th Street Realty Corp., 292 A.D.2d 289, 740 N.Y.S.2d 16.)”).

In Morin, 4 A.D.3d at 669-670, 772 N.Y.S.2d at 390-391, the Appellate Division held as follows, directly substantiating plaintiff’s position and directly refuting defense counsel’s specious contention:

“The only elevation related safety device provided to plaintiff was the extension ladder. No ropes or other safety devices were provided to secure the ladder and prevent it from slipping, nor were harnesses provided to prevent plaintiff from hitting the ground if the ladder did slip…. Accordingly, plaintiff established that defendants violated Labor Law Section 240(1) and such violation was a cause of his injury (see Tavarez v. Weissman, 297 A.D.2d 245, 246 247 [2002]; Squires v. Robert Marini Bldrs., supra at 808 809; Dennis v. Beltrone Constr. Co., 195 A.D.2d 688, 689 [1993]). As this statutory violation was a proximate cause of plaintiff’s fall, plaintiff’s own actions cannot be the sole proximate cause of his fall (see Blake v. Neighborhood Hous. Servs. of N.Y. City, supra at * 6 n 8).”

Similarly, in Serrano, 8 A.D.3d at 202, 779 N.Y.S.2d at 199, the Appellate Division, First Department held as follows:

“Plaintiff established that his accident was attributable to a lack of proper safety equipment and/or the failure to secure the ladder upon which he was working. Even if plaintiff had been negligent in continuing his work in his coworker’s momentary absence, no triable issue would therefore be raised as to whether liability should be imposed upon defendant pursuant to Labor Law Section 240(1), since such negligence would not be susceptible of characterization as the sole proximate cause of plaintiff’s harm (see Dasilva v. A.J., Contr. Co., 262 A.D.2d 214).”

The Second Department reached the identical result in Wallace, 1 A.D.3d at 589, 767 N.Y.S.2d at 451:

“The plaintiffs established their entitlement to partial judgment as a matter of law on the issue of liability by presenting evidence that no safety devices were provided (see Taeschner v. M & M Restorations, 295 A.D.2d 598, 745 N.Y.S.2d 41). In opposition, the defendants failed to raise a triable issue of fact regarding liability. While a plaintiff cannot recover where his or her conduct was the sole proximate cause of his or her injuries (see e.g. Lozada v. GBE Contr. Corp., 295 A.D.2d 482, 744 N.Y.S.2d 464), that defense was not available to the defendants under the circumstances of this case (seeVacanti v. Habasit Globe, 283 A.D.2d 935, 724 N.Y.S.2d 240; DiVincenzo v. Tripart Dev., 272 A.D.2d 904, 709 N.Y.S.2d 271).”; see also Denis, 54 A.D.3d at 803-804, 863 N.Y.S.2d at 773-774 (quoted above in paragraph 25).

Defendant also claims that plaintiff has failed to demonstrate which safety devices could have been employer to prevent his accident, purportedly preventing plaintiff from proving a prima facie entitlement to summary judgment. This contention is both factually and legally incorrect. The defendant’s argument is legally deficient, as binding Appellate Division, First and Third Department precedents which hold “[t]he plaintiff is not ‘required to present evidence as to which particular safety devices would have prevented his injury’ [citations omitted].” Cangialosi v. Gotham Const. Co., LLC, 865 N.Y.S.2d 892, 897-898, 22 Misc.3d 189, 193 (Sup.Ct. Kings County 2008) (Jack M. Battaglia, J.); see Cody v. State, 52 A.D.3d 930, 931, 859 N.Y.S.2d 316, 318 (3d Dep’t 2008) (“Nor was claimant required to prove what additional safety devices would have prevented his injury (see Noble v. AMCC Corp., 277 A.D.2d 20, 21, 714 N.Y.S.2d 495 [2000]). Thus, defendant violated Labor Law Section 240(1) as a matter of law (see Kyle v. City of New York, 268 A.D.2d at 196-197, 707 N.Y.S.2d 445; Reed v. State of New York, 249 A.D.2d 719, 720, 671 N.Y.S.2d 820 [1998]), and this violation clearly was a proximate cause of claimant’s injury (see Meyers v. State of New York, 30 A.D.3d at 928, 817 N.Y.S.2d 735; Pearl v. Sam Greco Constr., Inc., 31 A.D.3d 996, 997-998, 819 N.Y.S.2d 193 [2006]).”); Noble v. AMCC Corp., 277 A.D.2d 20, 21, 714 N.Y.S.2d 495, 496-497 (1st Dep’t 2000).

 
In Noble, 277 A.D.2d at 21, 714 N.Y.S.2d at 496-497, a precedent relied on by defendant in its memorandum of law in opposition to plaintiff’s cross-motion, the Appellate Division, First Department expressly rejected the defendant’s contention:

“Assuming plaintiff’s slide down the boiler was caused by his hitting his head on an overhead pipe, the cramped quarters in which he was working made such an occurrence foreseeable, and thus required the provision of a safety device (see, Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555, 561-562, 606 N.Y.S.2d 127, 626 N.E.2d 912; Arce v. 1133 Bldg. Corp., 257 A.D.2d 515, 516, 684 N.Y.S.2d 523). Moreover, any comparative negligence by plaintiff would not be a defense to the section 240(1) violation in failing to provide a safety device (see, Ortiz v. SFDS Dev., 274 A.D.2d 341, 342, 712 N.Y.S.2d 94, 96, citing, inter alia, Stolt v. General Foods Corp., 81 N.Y.2d 918, 597 N.Y.S.2d 650, 613 N.E.2d 556). Nor was plaintiff required to present evidence as to which particular safety devices would have prevented his injury (see, Guillory v. Nautilus Real Estate, 208 A.D.2d 336, 338, 624 N.Y.S.2d 110, appeal dismissed and lv. denied 86 N.Y.2d 881, 635 N.Y.S.2d 943, 659 N.E.2d 766).”

— by Richard A. Klass, Esq.


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copyr. 2014 Richard A. Klass, Esq.
The firm’s website: www.CourtStreetLaw.com
Richard A. Klass, Esq., maintains a law firm engaged in civil litigation in Brooklyn Heights, New York.
He may be reached at (718) COURT-ST or e-ml to RichKlass@courtstreetlaw.com with any questions.
Prior results do not guarantee a similar outcome.

Klass in the News: Yoko Ono Publicist Kip Kouri Injured at NYC Restaurant, Alleges Homophobic Harassment

By Andrew Hampp
Billboardbiz
July 25, 2014 6:00 PM EDT


Link to original article: Yoko Ono Publicist Kip Kouri Injured at NYC Restaurant, Alleges Homophobic Harassment

Kip Kouri, founder of Tell All Your Friends PR, is one of the most familiar and well-liked faces on the New York indie-rock circuit, repping everyone from Yoko Ono to Les Savy Fav to Guided By Voices to white-hot duo Sylvan Esso.

But a recent visit to Eataly, Mario Batali’s food emporium in New York’s Gramercy Park, ended in a violent altercation with the wait staff, leaving Kouri in stitches after allegedly being thrown through a plate glass window by a security guard. Kouri declined public comment while he sought legal counsel, but clients like Frenchkiss Records’ Syd Butler and Miniature Tigers began tweeting in Kouri’s defense, suggesting the incident was a hate crime and that a security guard used homophobic slurs against Kouri….

…Kouri declined comment, but deferred to his lawyer Richard Klass, who responded to Billboard in a statement: “Mr. Kouri vehemently denies the allegations made in the statement of Eataly’s representative. Mr. Kouri was at Eataly with his stepmother, sister and boyfriend, and a disagreement arose concerning the mishandling by Eataly of Mr. Kouri’s reservation. Mr. Kouri proceeded to leave the store after being harassed by Eataly’s staff, including being called homophobic slurs and enduring the staff’s homophobic hand gestures at him.

“As Mr. Kouri was exiting,” Klass continued, “three security guards became physical and began to push Mr. Kouri, his stepmother and sister, all the while calling him names. The security guards then tackled Mr. Kouri and threw him through a glass door, causing him to sustain serious injuries. Footage from Eataly’s security cameras were reviewed by the New York City Police Department and the investigation of the matter is pending.”

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copyr. 2014 Richard A. Klass, Esq.
The firm’s website: www.CourtStreetLaw.com
Richard A. Klass, Esq., maintains a law firm engaged in civil litigation in Brooklyn Heights, New York.
He may be reached at (718) COURT-ST or e-ml to RichKlass@courtstreetlaw.com with any questions.
Prior results do not guarantee a similar outcome.

Lawyer Misses the Bus (a $300,000 tale of woe)

Decorated bus illustrating article by Richard Klass.  Topics include New York City Transit Authority

The cabbie’s nightmare began with courtesy and continued with insult and injury.

It began as just another busy day in the life of a New York livery cab driver: picking up and dropping off passengers. On this particular day, the cabbie had pulled to the curb just past a bus stop in Manhattan to let out a passenger. He then stepped out of the car to open the passenger’s door. Perhaps he thought a little extra courtesy might result in a bigger tip but, no matter the reason, in this case, it cost him dearly.

The next moment, a New York City Transit Authority (NYCTA) bus, while running its regular route, pulled behind the livery cab at the bus stop. The bus driver opened his door and shouted at the driver, “You idiot, what are you doing in the bus stop!” The cabbie calmly apologized and said he’d move his car. However, without waiting for that to happen, the bus driver drove the bus close to the cabbie, requiring him to close his passenger door slightly so as to avoid his car door being damaged by the bus. The bus driver then accelerated the bus and drove closer, striking the cabbie, and causing him severe personal injuries.

The injured driver hired a law firm to bring a personal injury claim. That law firm brought a case against the New York City Transit Authority, seemingly the owner and operator of the bus. Unfortunately, the law firm did not learn that the bus operator could only have been an employee of a separate public authority known as the Manhattan and Bronx Surface Transit Operating Authority (MABSTOA) until long past the statute of limitations period in which to make a claim. Only at the deposition of the bus depot dispatcher, held more than two years after the incident, did the law firm learn from the witness that the bus operators for that bus route were all MABSTOA employees and not New York City Transit Authority employees (and only because all bus operators listed on the “crew report” had the designation “M” for MABSTOA).

The case against the New York City Transit Authority went to trial and the jury rendered a verdict in favor of the New York City Transit Authority and dismissed the claims of the livery cab driver. The cab driver then retained Richard A. Klass, Your Court Street Lawyer to make a claim against the personal injury law firm for legal malpractice.

Time-barred by the Statute of Limitations:

The concept of a “Statute of Limitations” is that people are afforded a certain amount of time to take action concerning a legal claim they may have; if that period of time passes without taking action, then the ability to pursue the legal claim has been waived. Most people are familiar, for instance, that in New York State the statute of limitations period within which to file most personal injury cases is three years from the date of accident. In this particular case, though, a notice of claim had to be served upon MABSTOA within 90 days of the incident under certain rules contained in the Public Authorities Law and General Municipal Law Section 50-e; then, an action had to be commenced in 1 year and 90 days after the incident.

Confusion between the MTA, NYCTA and MABSTOA:

Within the “alphabet soup” letters of all of these different municipal authorities lays a trap to catch the unwary. According to the statutory scheme laid out in the Public Authorities Law Section 1260 et. seq., the Metropolitan Transportation Authority (MTA) is a public benefit corporation which was created to oversee the mass transportation systems of New York City, and which functions as an umbrella organization for various other independent but affiliated agencies. See, In re New York Public Interest Research Group Straphangers Campaign, Inc., 309 AD2d 127 [1 Dept. 2003]. However, aside from the MTA’s overall organization, the MTA and each of its subsidiaries (which include NYCTA and MABSTOA) must be separately sued and are not responsible for each other’s torts. See, Mayayev v. Metropolitan Transportation Authority Bus, 74 AD3d 910 [2 Dept. 2010]. As provided for in Public Authorities Law Section 1203-a, MABSTOA is a subsidiary, public benefit corporation.

In Nowinski v. City of New York, 189 AD2d 674 [1 Dept. 1993], the plaintiff sued MABSTOA for personal injuries sustained at a location for which the New York City Transit Authority maintained responsibility. The plaintiff sought to serve a late notice of claim and both MASTOA and New York City Transit Authority moved to dismiss the action. The court held that the injured person was time-barred from serving the late notice of claim, given that the statute of limitations had already long expired. (See, generally, Public Authorities Law Section 1276).

No claim for being “lulled” into a false sense of security:

To the extent that the law firm could have claimed in its defense that it could not have known of the relationship between the MABSTOA, MTA, New York City Transit Authority and the relevant bus operators identified in the crew report, the court in Delacruz v. Metropolitan Transportation Authority, 45 AD3d 482 [1 Dept. 2007], held that the injured plaintiff could not claim that, by the actions of the MTA, he was “lulled into a false sense of security” that his lawyer sued the right public authority. The court specifically held the doctrine of “equitable estoppel” applies only when a governmental subdivision acts wrongfully or negligently inducing reliance by a party who is entitled to rely and who changes his position to his detriment or prejudice. There was no evidence here of any wrongful conduct by the New York City Transit Authority; it did not hide the information about MABSTOA or mislead the injured driver’s lawyer.

The legal malpractice claim was settled for $300,000 to pay for the livery cab driver’s injuries and medical lien. This case only emphasizes the point of how important it is for a lawyer to identify the proper legal entities to be sued on behalf of a client.

— by Richard A. Klass, Esq.

———–
copyr. 2014 Richard A. Klass, Esq.
The firm’s website: www.CourtStreetLaw.com
Richard A. Klass, Esq., maintains a law firm engaged in civil litigation in Brooklyn Heights, New York.
He may be reached at (718) COURT-ST or e-ml to RichKlass@courtstreetlaw.com with any questions.
Prior results do not guarantee a similar outcome.

Art credits:
Image at top of page: El Gouna (Red Sea, Egypt): public transport bus, customized and highly decorated in genuine Pakistani style. Coach built by Chishti Engineering (Karachi) and decorated by S. Gulzar (Karachi). Author/photographer: Marc Ryckaert, 2009. This image is licensed under the Creative Commons Attribution 3.0 Unported license.

Not so fast. Lawyer Can’t Be Displaced by Client without Court Order.

photo by Augusto De Luca illustrating article by Richard Klass about liens and other subjects

The client was injured and hired a lawyer to prosecute his personal injury claim against various entities for negligence. The lawyer agreed to handle the personal injury claim for a one-third contingent legal fee. “Contingent fee” refers to an arrangement with an attorney for payment of a percentage of an amount recovered for the client through settlement or resolution of the claim; a one-third contingency is fairly standard in personal injury matters.

After being retained by the client, the lawyer took a number of steps towards prosecuting the claim, including (1) commencing an action (termed a “special proceeding” in the New York State Supreme Court) against a municipality to file a “late” notice of claim to sue that government entity; (2) representing the client in the related worker’s compensation claim before the New York State Worker’s Compensation Board; and (3) commencing an action for personal injuries against the potentially-liable company in the New York State Supreme Court.

After the action was started in the New York State court, the defendant “removed” the action to federal court (based on a concept known as “diversity,” because that defendant was an out-of-state company). In the federal court case, the action continued with discovery proceedings taking place between the parties. The defendant even made an offer to settle the personal injury claim for $50,000, which was rejected.

Displacement of the Attorney
Three days after the $50,000 settlement offer, the lawyer received a letter from another law firm enclosing a Consent to Change Attorney form for the lawyer to sign and return with the file. The letter indicated that the client had now retained the other law firm to continue litigating his personal injury claim and, effectively, terminated the lawyer’s representation in the federal court case.

It is not uncommon for a client to change attorneys midstream during litigation; the usual steps taken upon substitution of attorneys is for the outgoing attorney to deliver the client’s file to the incoming attorney and for the attorneys to come to an arrangement concerning the split of the contingency fee when and if the case settles or resolves. It is also common for the incoming attorney to pay the outgoing attorney’s expenses on the file, including court filing fees, process service fees, and the costs of medical records and investigators. Unfortunately, in this situation, the incoming attorney was unwilling to pay the outgoing attorney’s expenses; he also refused to negotiate any division of the one-third contingency legal fee with the outgoing attorney, claiming instead that the outgoing attorney was entitled to nothing.

Attorney Cannot Be Displaced without Court Order
The outgoing attorney contacted Richard A. Klass, Your Court Street Lawyer, about enforcing his rights to both his legal fee and reimbursement for expenses. The first step was to draft an Order to Show Cause seeking both a “charging” lien upon any future legal fee upon settlement of the case for the lawyer’s percentage and a “retaining” lien to hold onto the client’s file until the expenses were paid.

There is a rule in the United States District Court for the Eastern District of New York concerning the situation where an attorney withdraws or is displaced from a case:

Local Civil Rule 1.4. Withdrawal or Displacement of Attorney of Record. An attorney who has appeared as attorney of record for a party may be relieved or displaced only by order of the Court and may not withdraw from a case without leave of the Court granted by order. Such an order may be granted only upon a showing by affidavit or otherwise of satisfactory reasons for withdrawal or displacement and the posture of the case, including its position, if any, on the calendar, and whether or not the attorney is asserting a retaining or charging lien.

The Order to Show Cause stated that the lawyer was “displaced” from the case by his former client for no legitimate reason and that the lawyer could only be displaced by Order of the Court. Stated in the accompanying affirmation of the outgoing attorney was that the incoming attorney (and, presumably, his former client) were proposing to pay him $0 for two years’ worth of work on the file. It was urged that the federal judge uphold longstanding New York State law that protects attorneys who render legal services on behalf of their clients.

Charging and Retaining Liens
Under New York State law, an attorney who is discharged by his client is statutorily entitled to a charging lien on any monetary recoveries obtained by the former client in the proceedings in which the attorney had rendered legal services. See Judiciary Law Section 475. In Mello v. City of New York, 303 AD2d 564 [2003], the court held that where an attorney’s services were provided on a contingent-fee basis, the court should determine the amount of the lien to be fixed in accordance with the attorney’s request, as a contingent percentage based on the proportionate percentage of work he performed, to be determined at the conclusion of the action (see Matter of Rosenblum, 121 AD2d 546 [1986]; see also Lai Ling Cheng v Modansky Leasing Co., 73 NY2d 454, 457-458 [1989]).

A discharged attorney is also entitled to a retaining lien on the former client’s papers and property that are in the attorney’s possession, under New York common law. See Resolution Trust Corp. v. Elman, 949 F.2d 624, 626 (2d Cir.1991). This mean that the client’s file can be retained by an attorney until he is paid, similar to how a mechanic can hold onto a car until the car’s owner pays for the repairs.

A conference was held with the judge. The judge decided that the client’s file would be exchanged only upon payment of the file expenses and that the outgoing attorney’s percentage of the overall legal fee would be determined when the case settled or resolved. About six months later, the incoming attorney settled the case for $70,000. The charging lien was settled through negotiations between the attorneys, with the outgoing attorney being paid $16,000 for one third of the initial $50,000 settlement offer and the incoming attorney being paid $6,000 for one third of the next $20,000 settlement portion.

by Richard A. Klass, Esq.

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copyr. 2012 Richard A. Klass, Esq.
The firm’s website: www.CourtStreetLaw.com
Richard A. Klass, Esq., maintains a law firm engaged in civil litigation at 16 Court Street, 28th Floor, Brooklyn Heights, New York.
He may be reached at (718) COURT-ST or e-ml to RichKlass@courtstreetlaw.com with any questions.
Prior results do not guarantee a similar outcome.

The Wrong Side of the Tracks Costs Law Firm $800,000

Railroad tracks disappearing into the distance. Shown with cement ties and stone bedding, with fields and bushes to the sides.

The Long Island Railroad (LIRR) leased one of its old rail yards in Queens to a recycling company. One of the recycling company’s employees was working the late shift on a rainy evening in 2003. That rainy night, he was assigned the task of welding on a portion of the metal fence surrounding the yard with an acetylene torch. He got up on a ladder, climbed up several rungs, and started to weld. At that point, the injured worker got a shock from the welding equipment. The ladder then shifted in the mud and he fell to the ground, suffering severe injuries. Since that incident, he was unable to work, having become disabled, and having had several surgeries to his back and knee.

The injured worker hired a law firm to bring a personal injury claim against the owner of the yard under New York’s Labor Law Section 240 known as the “Scaffolding Law.” That law firm brought a petition to file notices of claim against the MTA (Metropolitan Transportation Authority) and the LIRR. The Supreme Court Justice dismissed the petition, indicating in his decision that, as to the MTA, the reason for the late notice of claim was not meritorious and, as to the LIRR, no notice of claim was needed and that the law firm merely needed to timely commence a lawsuit under New York’s Public Authority Law. Needless to say, the time within which the injured worker needed to commence the lawsuit against the LIRR had already passed by the time of that decision. The injured worker retained Richard A. Klass, Your Court Street Lawyer to sue the personal injury law firm for legal malpractice.

Time-barred by the Statute of Limitations:

The concept of a “Statute of Limitations” is that people are afforded a certain amount of time to take action concerning a legal claim they may have; if that period of time passes without taking action, then the ability to pursue the legal claim has been waived. Most people are familiar, for instance, that in New York State the statute of limitations period within which to file most personal injury cases is three years from the date of accident. In this particular case, though, the Statute of Limitations period within which to sue the potentially liable parties was shorter (to a period of one year and thirty days) because the personal injury claim was against the LIRR, a governmental authority under a special statute.

Once the judge had dismissed the injured worker’s lawsuit, thus leaving him without recourse to recover monetary damages for his injuries, the law firm was exposed to the legal malpractice claim brought against it because it was alleged to have “blown” the statute of limitations by neglecting to timely file the lawsuit against the LIRR.

In legal malpractice cases, the statute of limitations in which to sue an attorney is three years from the date of malpractice under New York’s CPLR Section 214(6). Since many times in litigation, attorneys who have committed malpractice continue representing their clients for months or years afterward, there is also a concept of “continuous representation.” This means that the statute of limitations “clock” does not start to tick until the attorney has stopped representing the client in the matter.

Proving the underlying case under Labor Law Section 240:

A legal malpractice case is a very difficult type of litigation for one particular reason: Assuming that the lawyer ‘screwed up’ as much as possible, doing everything as wrong as could be done or failing to do any of the right things, it still might not matter — the ultimate question for purposes of liability for legal malpractice will be whether there was any merit to the underlying case that the lawyer was hired to handle. Rephrased: Would the client have won “but for” his lawyer?!

New York’s Scaffolding Law provides that owners of real estate, such as the LIRR, are “strictly liable” for injuries suffered by workers who fall from a ladder or scaffold under almost all circumstances, with limited exceptions, such as if there was a lack of adequate safety devices. This basically means that the landowner is responsible to pay for all of the worker’s damages for his injuries, including medical bills, lost wages, and pain and suffering. An exception to holding the landowner strictly liable under the Scaffolding Law is where the injured worker is found to have been the “sole proximate cause” of his injuries. In this case, the law firm being sued for legal malpractice argued that, in the event the LIRR had been sued, the injured worker would not have prevailed anyway because this exception to the Scaffolding Law would have applied because he knew not to weld in the rain. In response, the injured worker claimed that his employer at the yard instructed him to weld in the rain and that he was not going to be insubordinate.

Separate and apart from the Scaffolding Law issue, the law firm argued that there was no proof of exactly where the fall occurred to establish that it happened on the LIRR’s property. In response, a surveyor was retained to survey the area surrounding the old rail (now recycling) yard, and Deeds dating back to the 1800s were obtained. These documents were produced to establish the legal ownership of the location where the fall took place. This was a necessary element of the case in order to prove that the LIRR would have been liable for injuries to workers on its property under the Scaffolding Law.

The legal malpractice case came up for a pre-trial conference. Attorneys Richard A. Klass and Stefano A. Filippazzo appeared at the conference on behalf of the injured worker. The law firm being sued for legal malpractice finally settled with the injured worker for $800,000 to settle the action and pay for his injuries and extensive medical lien.

— by Richard A. Klass, Esq.

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copyr. 2011 Richard A. Klass, Esq.

Art credits: page one, Hjørring – Hirtshals Line in Northern Denmark. Photograph by Tomasz Sienicki, 2003.

The firm’s website: www.CourtStreetLaw.com
Richard A. Klass, Esq., maintains a law firm engaged in civil litigation at 16 Court Street, 28th Floor, Brooklyn Heights, New York.
He may be reached at (718) COURT-ST or e-ml to RichKlass@courtstreetlaw.com with any questions.
Prior results do not guarantee a similar outcome.

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The $1.2 Million Shopping Disaster

Drawing from Gray's Anatomy of the bones and muscles, with their names, on the back side of a human leg.At her local supermarket, a shopper bought her groceries and started to walk out the front door of the market with her cart. As she walked out, the entire door at the exit came unhinged from the frame and slammed down on her. The door managed to slice off the rear portion of her leg, taking out part of her calf. The result was a painful ordeal, requiring extensive medical treatment.

The shopper decided to retain Richard A. Klass, “Your Court Street Lawyer,” to pursue her claim for personal injuries based upon the negligence of the supermarket. An action was brought in the Supreme Court, Kings County against the supermarket, alleging negligence for the fallen door.

Res Ipsa Loquitur:

The Latin term “Res Ipsa Loquitur” means the “thing speaks for itself.” It refers to the legal principle that a court may infer negligence when the nature of the accident is such that it would ordinarily not happen without negligence. In New York, the general rule is that an injured party can establish this claim against the defendant/liable party by proving three elements:

1. The event must be of a kind which ordinarily does not occur in the absence of someone’s negligence;

2. It must be caused by an agency or instrumentality within the exclusive control of the defendant; and

3. It must not have been due to any voluntary action or contribution on the part of the plaintiff.

Dermatossian v. New York City Transit Authority, 67 NY2d 219 [1986].

The circumstances of this injury fit well within the doctrine of res ipsa loquitur. It certainly could be said that doors to supermarkets do not completely come unhinged without negligence.

Structured Settlement:

On the eve of trial, the defendant was eager to settle the case, given the likelihood that a charge of res ipsa loquitur would be given. The parties discussed settlement in terms of a “structured settlement,” which would allow the defendant’s insurance carrier to pay less money but would maximize the money for the injured shopper.

Structured settlements are those where the settling party purchases an insurance product, typically an annuity policy, that pay the injured person a certain amount of moneys per year over a certain number of years. The benefit for the settling party is the payment of a reduced present-value amount for the policy instead of a higher lump-sum payment. It can also be attractive to an injured person since it will generally be guaranteed tax-free income payable over a period of years and allow for settlement of the claim instead of the risk of losing at trial.

The injured shopper settled the case with the defendant supermarket for $1.2 million, with a structured settlement, which will provide her with sufficient income for a very long time.

— by Richard A. Klass, Esq.

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The firm’s website: www.CourtStreetLaw.com

Art credits: Anatomy of the Human Body (Figure 438). 1918, by Henry Gray (1825–1861)
copyr. 2010 Richard A. Klass, Esq.
———–
Richard A. Klass, Esq., maintains a law firm engaged in civil litigation at 16 Court Street, 28th Floor, Brooklyn Heights, New York.
He may be reached at (718) COURT-ST or e-ml to RichKlass@courtstreetlaw.com with any questions.
Prior results do not guarantee a similar outcome.