July 2017 Summing Up
In This Issue
 

Loftus Successfully Argues Appeal at Fourth Department; Labor Law Case Dismissed

Buffalo, NY - On June 9, 2017, the Fourth Department dismissed the plaintiff's Labor Law cause of action in the case of Berner v. Town of Cheektowaga. The plaintiff in that case was a laborer who was making minor repairs to an abandoned property in the Town of Cheektowaga. Attorney Kevin Loftus successfully argued for the Fourth Department that the Town of Cheektowaga was neither an "owner" nor a "general contractor" as those terms are defined under New York State Labor Law. The Fourth Department agreed with Mr. Loftus's position that the Town was not responsible for coordinating and/or supervising the plaintiff's work on the site. At most, the Town of Cheektowaga simply reviewed the end product to confirm that the work on the abandoned property was completed. The Fourth Department dismissed the plaintiff's complaint in its entirety against the Town of Cheektowaga. 

The appellate brief was written by our associate,
Nicholas M. Hriczko, Esq. The appeal was argued by partner, Kevin E. Loftus, Esq.


Loftus Successful with Summary Judgment Motion

Buffalo, NY - On May 26, 2017, attorney Kevin Loftus successfully argued a motion for summary judgment before Judge Paul Wojtaszek. The plaintiff decedent in Green v. Konka, et. al. was critically injured while participating in Jeep "off-roading" at a campsite. Kevin Loftus represented the driver of one of the involved Jeeps, which had become stuck in the mud. One of the codefendants pulled Mr. Loftus's client out of the mud, without incident. Shortly thereafter, the plaintiff's accident occurred when that second vehicle backed up to return to the campsite. Plaintiff's attorney argued that by getting stuck in the mud, Mr. Loftus's client "invited rescue," which ultimately caused the plaintiff's death. Mr. Loftus successfully argued before the Court that the vehicle getting stuck in the mud merely furnished the occasion for the accident, but did not actually contribute to it. In addition, there were multiple intervening causes which severed any causal connection that may have existed as a result of Mr. Loftus's client getting stuck in the mud. Judge Wojtaszek ruled that Mr. Loftus met his initial burden on the motion for summary judgment and the plaintiff's attorney failed to raise a question of fact. The plaintiff's complaint, and all cross-claims against Mr. Loftus's client, were dismissed.. 

The motion papers and memorandum of law were written by our associate, Andrew D. Fiske, Esq. Oral argument of the motion was presented by partner, Kevin E. Loftus, Esq.

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Fourth Department Declines to Consider Town an Owner Under Labor Law

In Berner v. Town of Cheektowaga, 2017 N.Y. Slip Op. 04610 (June 9, 2017), the plaintiff commenced a Labor Law and common-law negligence action for injuries he allegedly sustained while replacing a board on the exterior of a vacant house, located in the Town of Cheektowaga, which was represented by our firm. While on the ladder, the plaintiff encountered bees and began to descend the ladder. During his descent from the ladder, he fell and injured his left arm.

For the purposes of the Labor Law, owner is defined as the titleholder of the property where the accident occurred or a person "who has an interest in the property and who fulfilled the role of owner by contracting to have work performed for her benefit." The plaintiff contended that the Town was an owner by definition under Labor Law §§ 240 (1) and 241(6).

The Town of Cheektowaga moved for summary judgment dismissing the complaint on the ground that the Town was not an owner, or general contractor on the project. Further, the Town argued that even if it were found to be an owner, it would be entitled to the homeowner exemption afforded to owners of single family dwellings. The town submitted evidence that it was not the titled owner of the home, that no town employees were on the job site, that the Town did not direct the plaintiff on the job site, and had no authority to direct the plaintiff with respect to the method and manner of the job performance.

The Supreme Court Appellate Division, Fourth Department held that the Town established it was not an owner or general contractor and dismissed the plaintiff's complaint against the Town in its entirety.


Fourth Department Decides a Physician Offering an Opinion Outside of the Physician's Field Must Lay a Foundation to Support an Expert Opinion

In Chillis v. Brundin et. al., N.Y. Slip Op. 03646 (May 5, 2017), the plaintiff commenced a medical malpractice and wrongful death action seeking damages arising from the death of his brother, who died during the surgical removal of a mass. The defendant's orthopedic surgeon, Dr. McGrath moved for summary judgment, dismissing the complaint against him. The Supreme Court denied his motion. He appealed to the Appellate Division, Fourth Department.

The Fourth Department found that defendant, Dr. McGrath, met his initial burden of demonstrating he did not deviate or depart from the applicable standard of care or that any alleged departure did not proximately cause the plaintiff's injuries by submitting a detailed affirmation. The burden then shifted to the plaintiff to raise a question of fact. The plaintiff submitted an affirmation from an anesthesiologist. However, the anesthesiologist failed to establish in his affirmation the basis for his familiarity with the accepted standard of care for an orthopedic surgeon.

The Court held that although a medical expert need not be a specialist in a field to offer an opinion regarding the standard of care in that field, a physician offering an opinion outside his or her particular field must lay a foundation to support the reliability of their opinion. The Fourth Department modified the Supreme Court's order and granted Dr. McGrath's motion for summary judgment.


Fourth Department Finds That a Hotel Did Not Owe a Duty to the Plaintiff to Provide a Lifeguard

In Wallace v. M & C Hotel Interests, Inc. et. al., N.Y. Slip Op. 03647 (May 5, 2017), the plaintiff commenced a negligence action on behalf of her son, against a hotel, after her son suffered a near drowning in the hotel's swimming pool. The plaintiff contended the defendants were negligent in failing to provide lifeguards or otherwise adequately supervisor bathers and in allowing a dangerous condition to exist on the premises, i.e., in allowing a group of children to play games in and around the pool. The defendants moved for summary judgment dismissing the complaints against them. Their motion was granted by the Supreme Court. The plaintiff appealed to the Appellate Division, Fourth Department.

The defendants met their initial burden in demonstrating they were not negligent in respect to lifeguard supervision, by submitting the relevant New York State Sanitary code which provided that swimming pools that are a part of a temporary residence or campground require supervision level IIa, IIb, III, or IV. Pursuant to the code, level III and IV do not require CPR certified staff on premises. The defendants further submitted a report from the Erie County Department of Health indicating that the pool on the hotel's premises required supervision level IV and that defendants met all of the requirements for that level. As such, the Fourth Department found that the hotel did not owe a duty to the plaintiff to provide a lifeguard.

The Fourth Department also held that the defendants met their initial burden in demonstrating they were not negligent in respect to permitting a dangerous condition to exist on the premises by allowing children to play in and around the pool. While landowners do have a duty to control the conduct of third persons on their premises when they have the opportunity to control such persons and are aware of the need for such control, the Court held that because the hotel did not have a duty to provide supervision of the pool, it was not aware of a need to control the children and did not have an opportunity to do so. As such, the Fourth Department affirmed the Supreme Court's decision to dismiss the complaints against the defendants.


Fourth Department Decides Out-Of-Court Statements within the Affidavit of Defendant's Prior Tenant Are Not Hearsay

In Stowe v. Furness, N.Y. Slip Op. 03648 (May 5, 2017), the plaintiff commenced a negligence action on behalf of her minor child, against her former landlord, to recover damages for injuries her child allegedly sustained as a result of lead exposure. The defendant moved for summary judgment and the Supreme Court denied that motion. The defendant appealed, contending that she asked the plaintiff to move out so that she could remedy the dangerous condition immediately after she learned of the condition. In support of that contention, the defendant submitted an affidavit stating that she learned of the condition in 2014.

In opposition, the plaintiff submitted an affidavit of a prior tenant, who stated that the New Orleans County Department of Health detected dangerously high lead levels in chipped paint on the premises in 2006 and that she informed the defendant of those results immediately after.

The defendant contended that the out- of court statements contained in the prior tenant's affidavit were inadmissible hearsay. The court held that that out-of-court statements were not hearsay, as they were not offered for the truth of the matters asserted, i.e., the presence of flaking and chipping lead paint, but rather they were offered to establish notice of the chipping paint. The Fourth Department affirmed the Supreme Court's decision and denied the defendant's motion for summary judgment.


Fourth Department Finds Issue of Fact in Negligence Action Against the City of Syracuse

In Ahern v. City of Syracuse, N.Y. Slip Op. 03659 (May 5, 2017), the plaintiff commenced a negligence action for injuries he sustained when he tripped and fell on a broken curb. The defendant moved for summary judgment, dismissing the plaintiff's complaint against it. The Supreme Court denied the motion, finding that the plaintiff properly raised a question of fact as to whether the defendant created the dangerous condition during recent excavation work on the road.

The defendant met its initial burden of establishing that it did not receive prior written notice of the defective condition. However, the plaintiff submitted evidence that he parked on the road every day for 10 years and was very familiar of the condition of the curb. He further testified that he first noticed that the curb was damaged immediately after the defendant completed construction work in the vicinity immediately surrounding the curb.

The Fourth Department held that the plaintiff's testimony was sufficient to raise a question of fact regarding whether the defendant created the dangerous condition and defeat the defendant's motion for summary judgment.

Prepared by Justina L. Potenzo, Esq.


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