Elk’s Lodge Deemed “Specialty Property” for Purposes of Damages
In Benevolent & Protective Ord. of Elks of United States of Am. v. Creative Comfort Sys., Inc., 2021 NY Slip. Op. 01672 (4th Dep’t Mar. 19, 2021), the plaintiffs brought suit seeking damages sustained as the result of a fire caused by defendants’ negligent installation of a boiler in plaintiffs’ lodge. After a trial on damages only, a jury awarded plaintiffs $3,200,000 in replacement cost damages, less 35% depreciation.
Plaintiffs had brought a summary judgment motion prior to trial asking that the Elks’ Lodge be found a “specialty property” for the purpose of calculating damages. The motion was granted by Judge Kloch in the Niagara County Supreme Court, and on appeal, the defendants argued that the plaintiffs had failed to meet their burden on two of the four elements to have the building deemed a “specialty property.”
In order to meet the classification for a “specialty property,” a property must (1) be unique and must be specifically built for the specific purpose for which it is designed; (2) it must have been designed and used for a particular “special use”; (3) there must be no market for the type of property and no sales of property for such use; and (4) it must be “an appropriate improvement at the time of the taking . . . and its use must be economically feasible and reasonably expected to be replaced.”
The defendants argued on appeal only that the first and third criteria were not met. The Fourth Department held that the plaintiffs met their initial burden on both of those elements by submitting the affidavit and deposition testimony of their expert real estate appraiser. The appraiser testified that the building had been constructed for the specific purpose of serving as an Elk’s Lodge, and that there were few or no sales of similar buildings that would create a market for such a property.
In opposition, the defendants submitted the affidavit of a real estate developer who opined that the Elk’s Lodge could be converted into a restaurant, bar, event space, office, and apartments. The Fourth Department found that the defendants failed to raise a question of fact in doing so, as the real estate developer did not testify as to the economic feasibility of such a conversion. Accordingly, the Fourth Department affirmed the holding of the lower court.
Fourth Department Reverses on Serious Injury Decision
In Hawramee v. Serena, 2021 WL 1049770 (4th Dep’t Mar. 19, 2021), the plaintiff brought an action for injuries she allegedly sustained in a motor vehicle accident involving the defendant.
The defendant brought a motion for summary judgment, arguing that the plaintiff failed to meet the threshold of a serious injury under Insurance Law §5102, specifically with respect to the permanent consequential limitation of use, significant limitation of use, and 90/180-day categories of serious injury.
Judge Walker granted the motion in the Erie County Supreme Court, and dismissed plaintiff’s complaint.
On appeal, the Fourth Department first found that the defendant failed to meet his initial burden of showing that the plaintiff did not sustain a permanent consequential limitation of use or significant limitation of use. The defendant submitted the affirmed reports of an orthopedic surgeon and a neurologist who examined the plaintiff. The orthopedic surgeon found that the plaintiff had significantly reduced ranges of motion in her cervical spine, and the neurologist found that the plaintiff had sustained disc bulges at C5-6 and C6-7. Both doctors related these injuries to the accident. Accordingly, the Fourth Department held that the defendant’s own submissions raised triable issues of fact.
The Fourth Department also found that the defendant failed to meet his initial burden of establishing that plaintiff was not prevented from performing substantially all of the material acts that constituted her usual and customary daily activities during 90 of the first 180 days following the accident. Although the defendant’s doctors opined that the plaintiff was capable of performing her activities of daily living and that there was no need for any restriction on her work or school activities, the experts’ examinations were conducted more than a year after the accident and did not address the plaintiff’s limitations during the 180 days immediately following the accident.
As the defendant failed to meet his burden on those issues, the Fourth Department reversed the lower court’s holding and reinstated the action in Erie County Supreme Court.
Fourth Department Affirms Summary Judgment Motions on Labor Law
In Ward v. Corning Painted Post Area School District, 2021 NY Slip. Op. 01650 (4th Dept. Mar. 19, 2021), the plaintiff brought suit seeking damages for injuries that he sustained when he fell from an extension ladder while carrying a 10-foot metal pour stop.
At the trial level, the plaintiff brought a motion for summary judgment on the issue of liability under Labor Law §240(1), and the defendants cross-moved to dismiss the plaintiff’s claims under Labor Law §241(6). The trial court denied the plaintiff’s motion and granted the defendants’ cross-motion.
On appeal, the Fourth Department first looked at the plaintiff’s motion that had been denied. The plaintiff had submitted deposition testimony showing the availability at the site of safer means for moving the pour stop, including a forklift and ropes that could have been used to lift or hoist the pour stop to the second floor, so that the plaintiff did not need to carry it up the ladder. The testimony also showed that the plaintiff could have handed the pour stop to a coworker on the second floor. Further, the plaintiff had testified he knew he should climb a ladder only when he was able to maintain three points of contact with the ladder, and admitted he was unable to do so while carrying the pour stop. The plaintiff’s foreman testified that the plaintiff had been specifically instructed not to transport materials by carrying them up a ladder. Accordingly, the Fourth Department found that the plaintiff’s own submissions raised triable issues of fact, and affirmed the lower court’s denial of the plaintiff’s summary judgment motion.
The Fourth Department then turned to the defendants’ cross-motion. The defendants’ motion was based on alleged violations of 12 NYCRR 23-1.7(f) and 12 NYCRR 23-6.2.
12 NYCRR 23-1.7(f) provides that “Stairways, ramps or runways shall be provided as the means of access to working levels above or below ground except where the nature or the progress of the work prevents their installation in which case ladders or other safe means of access shall be provided.” The Court found that the defendants had submitted evidence establishing that, at the time of the incident, the work had not yet progressed to the point that it was appropriate to install a temporary stair tower. Moreover, the Court found that the ladder provided as a means of access to the second floor satisfied the requirement of 12 NYCRR 23-1.7(f). Therefore, the defendants met their burden of establishing that they did not violate that regulation, and that any alleged violation was not a proximate cause of the plaintiff’s injuries.
The Fourth Department examined 12 NYCRR 23-6.2, which applies to safety standards for hoisting materials, and found that section to be inapplicable because the pour stop was not being hoisted at the time of the accident. In light of this, the Fourth Department affirmed the trial court’s granting of the defendants’ cross-motion on liability under Labor Law §241(6).
Fourth Department Modifies Trial Court’s Order in Labor Law Case
In Chrisman v. Syracuse SOMA Project, LLC, 2021 NY Slip Op 01663 (4th Dept. Mar. 19, 2021), the plaintiff brought suit against defendant Syracuse SOMA Project, LLC, (SSP) and defendant/third-party plaintiff Burke Contracting, LLC (Burke). The plaintiff brought claims for injuries he sustained when he slipped and fell on metal decking at a work site due to snow. SSP was the owner of the property where the accident occurred, and Burke was the general contractor. Burke then brought a third-party action against two subcontractors, Whitacre Engineering Co. (Whitacre), and EJ Construction Group, Inc. (EJ), seeking indemnification.
At the trial court level, the third-party defendants brought a motion for summary judgment to dismiss Burke’s claims for contractual indemnification, which the trial court denied. The plaintiff also moved for summary judgment on liability under Labor Law §241(6), which the trial court granted.
As to the contractual indemnification claims, the Court found that the deposition testimony of Burke’s owner established that Burke and Whitacre operated under a purchase agreement only, rather than any “full blown contract,” and that there was no contractual indemnification clause incorporated into the agreement between Burke and Whiteacre. The Fourth Department affirmed the trial court’s dismissal of the third-party complaint against Whiteacre.
The contract between Whiteacre and EJ, however, contained a clause requiring EJ to indemnify the owner and general contractor for any claim “arising from or relating to EJ’s performance” under the subcontract. The plaintiff was an employee of EJ, and he had slipped and fallen while walking along the metal decking during his preparation of the materials necessary to complete the steel mesh installation, which was one of EJ’s roles in the project. Accordingly, the Fourth Department found that the trial court had erred in dismissing the third-party complaint against EJ.
Plaintiff’s claim under Labor Law §241(6) was based on the defendants’ alleged violation of 12 NYCRR 23-1.7(d), which requires that workers not be permitted to use “a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition” and requires that substances such as snow and ice be “removed … or covered to provide safe footing.” The defendants did not challenge the plaintiff’s showing that the regulation was violated, but asserted that the violation of 12 NYCRR 23-1.7(d) is not conclusive with respect to liability and, instead, merely constitutes some evidence of negligence. This reserves the issue of whether the equipment, operation or conduct at the worksite was reasonable and adequate under the particular circumstances.
The Fourth Department agreed, and further found that the deposition testimony of Burke’s owner showed that he had made efforts to clear snow from the metal decking prior to the plaintiff’s arrival at the worksite. Accordingly, the Fourth Department modified the trial court order, and held that the plaintiff’s motion should have been denied.
Prepared by Eric W. Marriott