Gordon & Silber has a seasoned group of full-time appellate lawyers, including Jon D. Lichtenstein, Andrew Kaufman, and Michael J. Laub.
Recent Appellate Results
Recreational Tort — Assumption of the Risk The Court affirmed the trial court's grant of summary judgment dismissing the claim of an intermediate ice skater who alleged she fell as a result of bumpy/choppy ice at our client's ice rink. We moved for summary judgment on the grounds that plaintiff had impliedly assumed the risk of her injury, in that she had admitted at her deposition that she was aware of the deteriorating condition of the ice and had, nevertheless, continued to skate. Plaintiff opposed the motion by submitting the affidavit of an expert in the field of ice rink management, who argued that our client's policy of cleaning the ice every 90 minutes, without regard to the actual condition of the ice was unreasonable, and that our client had a duty on the date of the accident to clean the ice prior to the expiration of the 90 minutes, to address the deteriorating condition. The First Department fortunately rejected this argument in favor of our analysis, since the acceptance of plaintiff's argument would have dealt a major blow to the doctrine of assumption of the risk in New York, and would have placed considerable new burdens on operators of recreational activities.
Recreational Tort — Negligent Supervision, Proximate Cause The Court affirmed the trial court's grant of summary judgment dismissing a camper's claim who sustained a trimalleolar ankle fracture after he jumped onto the back of his counselor who "turned, grabbed him and pushed him down." The plaintiff alleged negligent supervision since his bunkmates were engaged in wrestling and "horseplay" with the counselor, which lead to the incident. The Court held that "[a] certain amount of horseplay is almost always to be found in gatherings of young people, and is generally associated with children's camps. It is only to be discouraged when it becomes dangerous". Although the Court applied the standard of care of a reasonable parent under the circumstances, it neverthless held that "a parent, teacher or other person entrusted with the care of supervision of a child may use such physical force as he or she reasonably believes to be necessary to maintain control and discipline". The Court also held that the teenage camper's impulsive and reckless conduct proximately caused the accident.
Recreational Tort — Assumption
of the Risk The Court affirmed the dismissal of the complaint against our, on the basis of assumption of the risk where the plaintiff was injured in a baseball game while not wearing a catcher's mask. The Court rejected the plaintiff's argument that our client had a duty to not only provide the equipment, but to make sure that the equipment was used. The Court held that since the plaintiff was an experienced softball player, he had assumed the risk of being hit by the bat.
Psychiatric Malpractice — Failure
to Diagnose In a decision of great importance to psychiatrists, this decision revitalized and expanded upon a 20 year old precedent which provides that, if a psychiatrist is requested by a medical physician to to do a consult with regard to the patient's emotional condition, he will not be liable for failing to diagnose or make an appropriate referrals for medical conditions. The Court affirmed dismissal of the complaint even though the plaintiff had alleged that the medications prescribed by the psychiatrist masked the symptoms of the physical ailment which delayed her eventual diagnosis.
Automobile Liability — Serious
Injury Here, we established that a herniated disc was not a serious injury under the New York no fault law. The First Department found that plaintiff's expert's submission failed to establish causation between the injury (herniated disc, lost range of motion) and the accident. Notably, the Court characterized the other diagnostic findings of plaintiff's expert to be "conclusory" and "tailored to meet statutory requirements". The Court also found a failure of objective evidence with regard to either the extent, duration or degree of plaintiff's physical limitations.
Lead Paint — Duty of Managing
Agent The grant of summary judgment against our client in this case was a topic of discussion in the defense community even before it went up on appeal. The result, was a new touchstone in lead litigation. The Court affirmed the dismissal of the complaint against a managing agent because it had not exclusively managed the building, and thus could not be held liable for failure to abate a nuisance pursuant to statutory law (Local Law 1).
Premises Liability — Interpretation
of Building Code A theater patron brought an action against a theater, after breaking his neck falling down a set of stairs, claiming they violated the building code. We argued that the plaintiff's testimony failed to provide evidence of a problem with the stairs and plaintiff's expert failed to establish a building code violation. The trial court dismissed the action and the First Department affirmed, agreeing with our position that alleged code provision violated was not applicable because the stairs were not "interior stairs" as defined by the Building Code, and moreover, that the current Building Code did not apply since the theater was constructed in 1921.
Insurance Coverage — Bad Faith The Plaintiff was the excess insurance carrier for a general contractor in a serious construction accident case that was settled by the excess and primary carrier for the general contractor. Although the codefendant owner of the premises agreed that the settlement was reasonable, it refused contribute anything more than $50,000 to the settlement for its vicarious liability pursuant to the Labor Law. The general contractor's carriers rejected the offer as insufficient. The underlying case was settled with the excess carrier reserving its right to seek a 1/3 contribution (or $1 million) from the owner's carrier, Valley. A declaratory judgment action was instituted by the excess carrier and the owner's carrier counterclaimed against the excess and primary carrier for bad faith, alleging that they had manipulated the settlement by assigning $1 million dollars of liability to the owner, notwithstanding that the only basis of liability against the owner was statutory pursuant to the Labor Law. After the trial court found for the general contractor's carriers and ordered the owner's carrier to reimburse the excess carrier for $1 million dollars and dismissed the claims for bad faith, the decision was appealed. We represented the primary carrier to the bad faith claim. We argued that the primary carrier could not be found liable for bad faith since prior to the settlement it had tendered the limits of its policy and thus, had done everything in its power to protect the interests of its coinsured, the owner. Further, we argued that bad faith requires that the defendant carrier have exercised exclusive control over the insured's defense, which element did not exist, since the owner insisted on having its own representation. The decision of the trial court reversed to the extent of requiring Valley to contribute $1 million dollars to the settlement, but affirmed with respect to its dismissal of the bad faith claim.
Construction Litigation — Labor
Law Plaintiff allegedly injured his back at a construction project affixing steel beams when he ran out of bolts. He ascended to obtain a large bucket of new bolts and then tied a rope to the wire handle and proceeded to lower the 80-90 lb. bucket off the edge of the open deck floor, to where he was working, when he was injured when he lost control of the rope. Plaintiff asserted various claims pursuant to the New York Labor Law, including sections §240(1), 200 and §241(6). The lower court granted our motion for summary judgment and dismissed all the Labor Law claims. The lower court found, among other things, that TA \s "§240(1)" \c 0TA \s "§240(1)" \c 0§240(1) was not applicable because "the accident involved neither a falling object nor a fall by plaintiff as those terms are defined by the statute." We argued to the appellate court that the load was completely within plaintiff's own control and hence not a "hazard" from which he had to be protected, since he could easily could have split the load into two buckets and lowered both of them, one at a time. The trial court's decision was affirmed. The Court found that "while the injured plaintiff's back injury was tangentially related to the effects of gravity upon the bucket of steel bolts he was lowering, it was not caused by the limited type of elevation-related hazards encompassed by Labor Law "§240(1)".
Intentional Tort — Defamation
A defamation action brought against a social worker, after the report of child abuse that she filed with the Department of Social Services ("DSS") was determined to be unfounded. After our motion for summary judgment was granted by the trial court the father appealed. He claimed the social worker's motives were suspect and that had no right to claim immunity as a "mandatory reporter" within the meaning of the Social Services Law. We argued that as a mandatory reporter, she did not have to await conclusive evidence of abuse or maltreatment, but rather was compelled to act on her reasonable suspicions, and that the law allowed her a degree of latitude to err on the side of protecting children who may be suffering from abuse. Further, we argued that there was insufficient evidence of malice or gross negligence which would otherwise be necessary to overcome the qualified immunity that mandatory reporters are granted by statute. The trial court's decision was affirmed. |
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