See New York Law Journal, Decisions of Interest, November 21, 2019
FF PLLC WINS MOTION TO DISMISS: PLAINTIFFS' CLAIMS OF DAMAGES FROM ADJOINING PROPERTY OWNERS' WATER RUNOFF TIME-BARRED
Plaintiffs alleged rainwater and snowmelt flowed from defendants' adjoining property owners' driveway into plaintiffs' property damaging the foundation and walls of their house from the runoff. They argued defendants caused the condition by impermissibly altering the water drainage system in their driveway. Defendants moved to dismiss on statute of limitations grounds noting the driveway was altered at the latest eight years before this suit was commenced, and the continuous wrong doctrine did not apply. Plaintiffs claimed they did not know about the source of the water flow until 2015. The court found the action barred by the statute of limitations as acts occurred before the three-year applicable limitations period to plaintiffs' causes of action. It found defendants' paving of the driveway in 2009 was a single and distinct wrong. Also, evidence showed plaintiffs experienced runoff problems since at least 2006 and the parties' communications showed they had water problems and took actions to remediate them more than three years before this action was brought. As such, plaintiffs' claims were untimely, granting defendants' motion to dismiss.
See New York Law Journal, Decisions of Interest, November 21, 2019
Fern Flomenhaft won a defense verdict in a slip anD fall case following a 3 week trial in Supreme Court, New York County, before Judge Lyle Frank. The plaintiff, a 50 year old woman, sustained a comminuted patella fracture which was surgically repaired in a fall on the ADA Pedestrian plate at the corner curb cut of our client's building. Although she alleged she fell due to water that she alleged came from a condensation tube installed by our client's mercantile tenant, the plaintiff was not able to establish that water from the tube was emitted on the day of accident or that water on the ADA Pedestrian plate on the corner came from the tube.
The co-defendant mercantile tenant, represented by Steven Cohen, Esq., also prevailed at trial.
Plaintiff was represented by Jeffrey Schulman, Esq. of Liner LLP.
FF PLLC WINS SUMMARY JUDGMENT DISMISSING LABOR LAW §§ 200 AND 241(6) CASE AND GRANTING INDEMNIFICATION AND ALL COSTS FROM THIRD-PARTY DEFENDANT CONTRACTOR
Plaintiff alleged that on July 10, 2013 he injured his right hand and left knee while performing construction work at the home of the defendant Buckwalter. Buckwalter contracted with third-party defendant WM Dorvillier to demolish an existing structure (staircase) at the rear garden level of her building and to construct and install an open porch for residential use. Plaintiff, a construction/demolition worker for Dorvillier alleged he was injured by an angle grinder that was missing a guard.
Plaintiff alleged violations of NY Labor Law§§ 200 and 241(6). As §241(6) requires a plaintiff to establish a violation of the industrial code, plaintiff also alleged violations of 12 NYCRR §§ 21-1.10(b), 23-1.5(c)(3), 23-1.12(a), (c)(1)(2) and 23-9.2(a)(d).
We argued that Buckwalter was not liable to the plaintiff under Labor Law § 200 because she did not supervise or control the work and she was not on notice of the defective angle grinder. In addition, we argued the premises are exempt from liability under the homeowners’ exemption to Labor Law § 241.
The Court, citing Vera v. Low Income Marketing Corp., 145 AD3d 509 [1st Dept. 2016], granted summary judgment, since Buckwalter merely contracted for the work, was not home at the time of the accident and there was no evidence that she created the condition that caused the accident.
We also argued, citing Bartoo v Buell, 87 NY2d 362 , that despite the ground floor doctors’ office at the premises, Buckwalter was protected from liability under the homeowner’s exemption of Labor Law § 241(6) because the premises was a two-family dwelling and the porch in question was constructed at the back of the house outside Buckwalter’s parlor, as an extension of her unit.
The Court held that plaintiff’s submissions of an endorsement page and deed dated 9/23/16 (post-accident) and undated Streeteasy.com listings were not dispositive to show that the premises was a three-family dwelling. Rather, the deed in effect at the time of the accident, the certificate of occupancy and HPD search report, as well as the testimony as to the layout and occupancy of the premises, were controlling to show the premises was a two-family dwelling.
Furthermore, the exemption is available even where the premises is jointly used for residential and commercial purposes. The premises had two residential apartments – one single-floor unit jointly occupied by one family and one two-floor unit occupied by Buckwalter, which shared a common entrance.
We also moved for summary judgment against WM Dorvillier, and argued that it is obligated to indemnify and hold Buckwalter harmless and to cover her defense costs and expenses. We argued that according to her contract with WM Dorvillier to construct a porch at her residence, WM Dorvillier’s was obligated to supervise and control the work, to named Buckwalter as an additional insured on Dorvillier’s insurance policies and fully indemnify and hold her harmless.
Over the opposition of both the plaintiff and Dorvillier, Judge Gonzalez granted summary dismissal of plaintiff’s complaint and awarded Buckwalter all costs and expenses from Dorvillier, which Dorvillier’s insurer was obligated to pay.
FF PLLC PREVAILS IN US DISTRICT COURT, SOUTHERN DISTRICT, DISMISSING AND TRANSFERRING THE CASE TO THE FIRST-FILED FORUM: NEVADA
FF PLLC won in the Southern District of New York, with a very favorable decision in by U.S. District Judge Loretta A. Preska denying Petitioner American Home’s motion to compel arbitration pursuant to an allegedly binding Payment Agreement between American Home and another party and granting our motion to dismiss and transfer to the U.S. District Court for the District of Nevada.
Judge Preska, in a terse 11-page decision, laid out the facts objectively, without comment as to the underlying merits (who is bound by the Payment Agreement). She proceeded to recite the legal standards, fully agreeing with our arguments. She concluded that the date of the first-filed case – the case filed by our client Peccole-Nevada (PNC) in Nevada state court – is the date to be used to determine which forum will hear the case, including whether any exception applies. The state court filing governs even when that claim is removed to federal court, and even for a consolidated case.
The Court rejected Petitioner’s reliance on the subject Payment Agreement’s forum selection clause.
The Court rejected Petitioner’s argument that “this case is a bit unusual in that, among the competing actions [there were 5], each has a first-filed case.” In her most quotable line, she stated: “While this may be possible in Lake Wobegon, where all the children are above average, here in the Southern District of New York, there can be only one first.”
Judge Preska then addressed Petitioner’s “five arguments against this straightforward analysis,” and rejected each of them one by one.
First, the Court rejected Am. Home’s argument that it filed suit before all but the PNC parties and therefore the date of consolidation should govern.
Second, the Court rejected Am. Home’s argument that the venue/forum selection clause in the Payment Agreement governs.
Third, the Court rejected Am. Home’s argument that PNC’s filing in New York state court “signaled that they believe New York is an appropriate venue/forum.” The Court specifically stated: “As Respondents note, their filing in New York was ‘to file a defensive Petition asserting a limited appearance to contest personal jurisdiction and preserve the right to stay arbitration.’”
Fourth, the Court rejected Am. Home’s argument that the Nevada District Court may not have jurisdiction over all the parties.
And fifth, the Court rejected Am. Home’s argument that the Nevada actions are “anticipatory suits” that are not entitled to any first-to-file weight, stating that “[t]his is not an accurate characterization of the first-filed Nevada action.” In rejecting this argument the Court distinguished National Union v. Las Vegas Prof’l Football Ltd, P’ship, since, in that case it was “undisputed that the parties agreed to arbitrate some claims.” The Court added (in a comment that suggested a favorable view of the merits): “Here, Respondents contest whether the arbitration clause applies to them at all. This is at least a plausible claim and not simply a pretense to avoid this Court’s jurisdiction.”
The Court also added: “Petitioner has not shown that the suit was filed ‘in response to a direct threat of litigation that gives specific warnings as to deadlines and subsequent legal action’.” The Court’s rejection of the “anticipatory suit” exception to the first-file rule, at the very least, would have been helpful if American Home were to attempts to make the same “anticipatory suit” argument in Nevada District Court.
FF PLLC WINS SUMMARY JUDGMENT - SUBSTANTIVE CHANGES TO PLAINTIFF'S DEPOSITION TESTIMONY CREATED ONLY A FEIGNED ISSUE AND THE EXPERT'S CONCLUSORY OPINION DID NOT DEFEAT SJ
Plaintiff allegedly fell down the stairs on his way to a doctor's office. The plaintiff alleged the stairs were defectively designed. Defense established that the stairs were not defective and that the plaintiff, by his own testimony, did not know what caused him to fall. In opposition, the plaintiff made substantive changes to his deposition, materially changing his testimony, that the Court concluded were unsupported by an adequate explanation for the corrections (Torres v. Bd. of Educ. of City of New York, 137 A.D.3d 1256). The Court also found that the substantive changes presented a "feigned factual issue," designed to avoid the consequences of an earlier admission (McGuire v. Quinnonez, 280 A.D. 2d 587), which were insufficient to defeat summary judgment. The plaintiff also offered an expert affidavit in which the expert engineer speculated as to the cause of the plaintiff's fall. Stanley Fein attested that the alleged “improper staircase geometry violated good and accepted standards of engineering practice.”
The Court, by J. Sweeney, (citing Buchholz v. Trump, 767 Fifth Ave., 5 N.Y.3d 1 (2005)) concluded that the expert opinion was conclusory and speculative and also insufficient to defeat summary judgment.