Articles Posted in Work Injury

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A Bronx Estate Litigation Lawyer said that, defendant-appellant moved pursuant to CPLR 510(1) to change the venue of the instant matter from Bronx County to Westchester County more than three years after the commencement of the action and service of A-Scrap’s answer. Appellant acknowledges that it has, almost from the beginning of this litigation, possessed the necessary information to move for a change of venue. However, it has failed to offer an adequate explanation for its inordinate delay and neglect in making such a request. Consequently, we cannot find that Special Term abused its discretion in denying appellant’s motion.

Accordingly, the court held that the order of the Supreme Court, Bronx County, entered on June 14, 1982, which denied the motion to change the venue of the action from Bronx County to Westchester County, is affirmed, without costs or disbursements.

In a separate opinion, the injury court disagree with the conclusion reached by the majority which, in continuing the action in Bronx County, rewards the plaintiffs for what, on this record, appears to be a fraud on the court. The action, commenced in Bronx County, seeks to recover damages for personal injuries sustained in a motor vehicle accident which occurred on April 9, 1979. The accident occurred on Yonkers Avenue in Westchester County, when plaintiffs’ vehicle was struck in the rear by a truck owned by defendant, and operated by defendant. Plaintiffs reside in Westchester County and A. Scrap has its principal place of business there. The summons denotes the basis for venue as the residence of defendant Jones, recorded thereon to be 175 Broadway, Bronx, New York. Issue was joined by A. Scrap by the service of its answer on September 13, 1979. Thereafter, plaintiffs purportedly effected substitute service upon Jones by mailing process to “his last known residence” at 175 North Broadway, Yonkers, Westchester County, and by affixing a copy of the summons to the door at that address as his “actual place of business, dwelling place or usual place of abode within the state” (CPLR 308[4] ). Defendant has not appeared in the action and, assuming the propriety of service, is in default.

On February 23, 1982, defendant moved, pursuant to CPLR 510(1), to change the venue of the action to Westchester County, alleging that venue had been improperly laid in Bronx County in that all of the parties, including the other defendant, resided in Westchester, where the accident occurred. Appellant claimed that it had been misled by the false representation contained on the face of the summons that Jones was a resident of the Bronx. The MV-104 filed by plaintiff listed as residence 30 Montague Street, Yonkers, also in Westchester County, which is an address different from where substitute service had purportedly been effected.

Special Term denied the motion solely upon the failure of appellant to adhere to the procedure contained in CPLR 511. Concededly, no demand for a change of venue was served nor was a motion made within 15 days thereafter. This, however, is not dispositive. The failure of a party to follow the statutory procedure is not absolute and does not preclude a subsequent motion to change the place of trial. In such a case, although the motion is too late to be made as of right, it nevertheless may be made and is addressed to the discretion of the court.

On this record, we fail to perceive the overriding need to protect parties who have resorted to “affirmative misrepresentation” in designating the county for trial. While it appears that three years did elapse before the motion for a change of venue was made, there is nothing in the record to support the finding of the majority that appellant acknowledged that, from the beginning of the litigation, it had the necessary information to move for a change of venue. The personal injury record does not disclose when appellant obtained a copy of the MV-104 which had been filed by plaintiffs or was aware of the misstatement of residence. As observed, defendant has not appeared and is not represented in this action. The answer served by defendant denies that, at the time of the accident, the truck was being operated by him with the permission or consent of the owner. Any delay in moving for relief is far outweighed by the fact that plaintiffs misrepresented the defendant’s residence as the basis for venue in instituting suit in Bronx County.

Moreover, it is further significant that this action can never proceed to trial in accordance with current court rules. NYCRR § 660.9(c), in providing for a general trial preference for personal injury actions, requires a showing that “the venue of the action was properly laid in the county in which it is pending, within the requirements of CPLR article 5.” Here, since none of the parties reside in Bronx County, the designation of that county as the place for trial was improper (CPLR 503[a] and [c] ). Therefore, under the court rules applicable to New York and Bronx counties, a general preference may not be obtained so as to permit the action to proceed to trial.

Transfer of the action to Westchester County is also warranted under CPLR 327. All of the parties reside in Westchester County, where the accident occurred. The action has no nexus with Bronx County and, applying the doctrine of forum non conveniens under CPLR 327, the interest of substantial justice requires that the matter be transferred for trial to Westchester County, where the action should have been commenced in the first instance. It is clear that the only reason the action was instituted in Bronx County was for the convenience of plaintiffs’ attorney, which is an irrelevant consideration. In view of the affirmative misrepresentation by plaintiffs when the action was commenced, no reason appears to continue the case for trial in a county which has no substantial relationship to either the issues or the parties.

Accordingly, the order, Supreme Court, Bronx County, entered June 14, 1982, denying the motion to change the venue of the action, should be reversed, the motion granted and the action transferred to Westchester County.
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The legal standards to be applied in evaluating a motion to dismiss are well-settled. In determining whether a complaint is sufficient to withstand a motion to dismiss pursuant to CPLR 3211(a)(7), the sole criterion is whether the pleading states a cause of action. If from the four corners of the complaint factual allegations are discerned which, taken together, manifest any cause of action cognizable at law, a motion to dismiss will fail. The court’s function is to ‘”accept each and every allegation forwarded by the plaintiff without expressing any opinion as to the plaintiff’s ability ultimately to establish the truth of these averments before the trier of the facts'”. The pleading is to be liberally construed and the pleader afforded the benefit of every possible favorable inference.

Where, as here, the plaintiff submits evidentiary material, the Court is required to determine whether the proponent of the pleading has a cause of action, not whether he or she has stated one. Affidavits may be used to preserve in artfully pleaded, but potentially meritorious claims; however, absent conversion of the motion to a motion for summary judgment, affidavits are not to be examined in order to determine whether there is evidentiary support for the pleading. Injury Affidavits may be properly considered where they conclusively establish that the plaintiff has no cause of action.

To succeed on a motion to dismiss pursuant to CPLR 3211(a)(1), the documentary evidence that forms the basis of the defense must be such that it resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff’s claim. To qualify as “documentary”, the evidence relied upon must be unambiguous and undeniable, such as judicial records and documents reflecting out-of-court transactions such as mortgages, deeds, and contracts. Letters, affidavits, notes, and deposition transcripts are generally not documentary.

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A Bronx Estate Litigation Lawyer said that, this action was initiated with Plaintiffs’ filing of their Summons and Complaint in this Court’s e-filing system (“NYSCEF”) on April 27, 2012. According to Plaintiffs, the dispute arising out of non-payment for Plaintiffs’ performance of asphalt, paving and bonding services on behalf of a general contractor in connection with its contract with defendant to make improvements to certain public streets – Tuckahoe Road in Yonkers and 108th and 188th Streets in the Bronx. It is Plaintiffs’ contention that defendant wrongfully paid the general contractor monies that were the subject of mechanic’s liens filed by Plaintiffs concerning the injury services they provided on these projects.

A Bronx Estate Lawyer said that, defendants moved to dismiss the Complaint and the Court held a conference on June 28, 2012 to determine whether discovery would proceed pending the motion to dismiss or if it would be stayed. At the conclusion of the conference, the Court advised that discovery would be stayed pending the motion to dismiss and then set the motion schedule. On July 30, 2012, Plaintiffs filed an amended complaint and Defendants withdrew the prior motion and replaced it with the present one.

Based on the allegations of the Amended Complaint, which the Court must deem as true for purposes of this motion, Plaintiff is a general contractor specializing in asphalt paving, concrete and commercial construction that subcontracted with the general contractor on July 20, 2010 to work on certain aspects of a Con Ed project located at Tuckahoe Road, Yonkers, New York. Plaintiffs contend that the general contractor failed to pay Plaintiffs causing Plaintiffs to file mechanic’s liens pursuant to New York’s Lien Law (“Lien Law”) § 12, which permits for the filing of a lien up to 30 days after the completion and injury acceptance of a public improvement project. It is Plaintiffs’ position that the time for the filing of these liens has not run because the projects are not yet completed.

Plaintiff was a subcontractor to the general contractor providing paving services in connection with the defendant’s project. It is alleged that on October 14, 2011, plaintiff served upon defendant “a Mechanic’s Lien for Public Improvement for the supply of materials and labor to the general contractor in the amount of $55,750.40”. Plaintiffs allege that this lien remains unpaid. Plaintiffs contend that the “amounts owed to Plaintiffs are trust assets subject to the rights of trust beneficiaries under New York Lien Law, Art. 3-A”.

Plaintiffs allege that defendant “has an internal risk management department to review the validity, financial wherewithal and sufficiency of any insurance company issuing bonds seeking to discharge a mechanic’s lien on a project” yet “neglected to follow its internal procedures to ascertain the validity and sufficiency of the bonds presented to it by the general contractor. Within three weeks of procuring the fraudulent bonds and obtaining the retained funds from defendant filed for Chapter 11 Bankruptcy protection.

Plaintiffs’ First Cause of Action is for breach of fiduciary duty. It alleges that defendant’s contract with the general contractor allowed it to pay subcontractors and vendors directly and defendant’s internal policy is to withhold funds when a injury claim for payment is made by a subcontractor or vendor to defendant. Plaintiffs contend that they “relied on defendant’s withholding of payments to the general contractor and negotiated with defendant for release of funds directly to them for payment”. The fiduciary relationship is established, say Plaintiffs, as a result of defendant’s “actions and standard procedures” and its “failure to protect the claims of Plaintiff was a breach of said fiduciary duty and caused Plaintiffs to lose the retained funds”.

To Be Cont…
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A Kings Construction Accident Lawyer said that, in an action for a judgment declaring that the defendant is obligated to defend and indemnify the plaintiffs in an underlying personal injury action, commenced in the Supreme Court, Kings County, the plaintiffs appeal from an order of the Supreme Court, Queens County, dated May 3, 2010, which denied their motion for summary judgment on the injury complaint.

The plaintiffs entered into an agreement with All American Talent (hereinafter All American), whereby All American was to rent the auditorium and three classrooms in the plaintiff Christ the King Regional High School (hereinafter the school) for two days for a dance competition. The contract required All American to name the school as an additional insured on a liability insurance policy issued to it by the defendant.

A Kings Spinal Injury Lawyer said that, complainant allegedly was injured when she fell on a sidewalk while walking from the parking lot behind the school to the front entrance in order to attend the dance competition. Levine commenced an action against the present plaintiffs, alleging that her fall was caused by a sidewalk defect. The plaintiffs sought defense and indemnification in that action from the defendant, under an additional insured endorsement of a general liability policy issued by the defendant to All American. When the defendant denied that request, the plaintiffs commenced this action for a judgment declaring that the defendant is obligated to defend and indemnify them in the underlying personal injury action. The plaintiffs moved for summary judgment on the complaint, and the Supreme Court denied the motion. We affirm, but on a ground different from that relied upon by the Supreme Court.
The issue in this case is whether defendant is obligated to defend and indemnify the plaintiffs in an underlying personal injury.

In support of their motion, the plaintiffs argued that coverage was available under Section II, 2.e of the Commercial General Liability Coverage Form, under which, as relevant here, an “insured” is defined to include any organization to whom All American was obligated, by virtue of a written contract, to provide liability insurance, “but only with respect to liability arising out of its operations.” The portion of this provision limiting coverage to liability “arising out of All American’s operations” requires that there be “some causal relationship between the injury and the risk for which coverage is provided”. The plaintiffs failed to demonstrate, prima facie, the existence of such a causal relationship. All American’s “operations” consisted of conducting a dance competition in the school auditorium and three classrooms. Bodily injury occurring outside the leased premises, in an area which All American had no responsibility to maintain or repair, “was not a bargained-for risk”. Rather, All American’s “operations” at the school merely furnished the occasion for the accident, much like in Worth Constr. Co., where the fact that the named-insured subcontractor installed a staircase on which the injured plaintiff fell, thus furnishing “the situs of the accident,” did not demonstrate that the accident, caused by the installation of fireproofing on the staircase by another subcontractor, arose from the named-insured subcontractor’s “operations” “liability may not be imposed upon a party who merely furnishes the condition or occasion for the occurrence of the event but is not one of its causes” internal quotation marks omitted.

Since the plaintiffs failed to meet their initial burden, we need not consider the sufficiency of the papers submitted by the defendant in opposition.

Accordingly, the Supreme Court properly denied the plaintiffs’ motion for summary judgment on the complaint. The court ordered that the order is affirmed, with costs.
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A Kings Construction Accident Lawyer said that, on June 4, 2008, plaintiff, through its claims examiner, discussed the facts of the claim with the Vice-President. Additionally, he gave a sworn statement to the Company who was retained by plaintiff to investigate the claim. According to his statement: I saw when the woman fall. I was on the sidewalk. I was the only who witnessed the fall. She tripped on the hoses and fell forward on her hands there was no sign of injury and I helped her up. She walked away without asking for an ambulance. About an hour later she came back and asked for my name. At that time she told me that she had injured her arm and had seen a doctor. After she left I went out and took pictures of the hoses and the cones. After not hearing anything from the woman, I thought she was not going to make a claim, and did not think it was necessary to injury report it to my broker. Plaintiff disclaimed coverage by letter dated June 16, 2008, alleging that respondent failed to give timely notice of the claim. Plaintiff alleged that T&S was aware of the occurrence giving rise to the underlying action on about October 23, 2007, yet failed to notify them until May 21, 2008.

The issue in this case is whether plaintiff’s motion for summary judgment seeking a declaration that it is not obligated to defend or indemnify respondent on the grounds that it failed to provide timely notice of the claim in violation of the policy terms should be granted.

CPLR § 3212(b) requires that for a court to grant summary judgment, the court must determine if the movant’s papers justify holding, as a matter of law, “that the cause of action or defense has no merit.” It is well settled that the remedy of summary judgment, although a drastic one, is appropriate where a thorough examination of the merits clearly demonstrates the absence of any triable issues of fact. It is incumbent upon the moving party to make a prima facie showing based on sufficient evidence to warrant the court to find movant’s entitlement to judgment as a matter of law. Once this showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action. Summary judgment should be denied when, based upon the evidence presented, there is any significant doubt as to the existence of a triable issue of fact. When there is no genuine issue to be resolved at trial, the case should be summarily decided.

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A Kings Construction Accident Lawyer said that, this declaratory judgment action arises from an incident on October 23, 2007, in which complainant allegedly tripped and fell over a hose that lay across the sidewalk adjacent to the premises at 1911 Avenue M, Brooklyn, New York (“the Premises”) and sustained bodily injuries. Thereafter, she commenced a personal injury suit pending in the Supreme Court of the State of New York, County of Kings (“the underlying action”). Plaintiff, Insurance Company now submits this motion for summary judgment seeking a declaration that it is not obligated to defend or indemnify respondent Ton the grounds that it failed to provide timely notice of the claim in violation of the policy terms.

A Kings Back Injury Lawyer said that, plaintiff Insurance Company issued a commercial general liability insurance policy to respondent for the subject premises. The policy conditions coverage under the general liability part on receipt of prompt notice of an occurrence or offense that may give rise to a claim. Policy form CG 00 01 10 01, at Section IV – Commercial General Liability Conditions, at paragraph 2 states in relevant part: 2. Duties in the event of Occurrence, Offense, Claim or Suit a. You must see to it that we are notified as soon as practicable of an “occurrence” or an offense which may result in a claim. To the extent possible, notice should include: (1) How, when and where the “occurrence” or offense took place; (2) The names and addresses of any injured person and witnesses; and (3) The nature and location of any injury or damage arising out of the occurrence” or offense. “Occurrence” is defined in Section V – Definitions as follows:

“Occurrence” means an accident, including continuous or repeated exposure to substantially the same general harmful conditions.

A Kings Premises Liability Lawyer said that, according to the allegations in the underlying action, the complainant sustained personal injuries when she tripped and fell over a hose laying across the sidewalk adjacent to the insured’s premises. Complainant alleges that respondent and others were negligent in the ownership, maintenance, control and/or supervision of the wires and/or hoses that lay across the aforementioned sidewalk. Plaintiff alleges that respondent forfeited its right to coverage under the policy by waiting seven months before reporting the incident to them, in violation of the policy condition that insured give notice of a claim “as soon as practicable.” On May 21, 2008, approximately seven months after the occurrence took place, plaintiff received first notice of the incident by receipt of a facsimile from vice-president of Respondent Corporation, forwarding a copy of the underlying summons and complaint.

To Be Cont…
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The plaintiff provided the defendant with a verified bill of particulars dated November 10, 2009. In paragraphs fourteen and fifteen, the plaintiff states that she tripped as a result of an open abandoned utility hole in the sidewalk in front of the premises located at 236 Irving Avenue. At her deposition conducted on August 10, 2010, plaintiff testified that the aforementioned defect was a break “where they put the gas in, where they put in the tube”.

The defendant may rely on the admissions contained in the plaintiff’s verified bill of particulars and deposition testimony as evidence of the admitted facts. The personal injury defendant does not dispute that the defect is as an access point to a gas main. Therefore, the defendant may rely on plaintiff’s admission that the defect is an access point to a gas main.

The defendant contends that NYCRR §7-210 does not apply to him because he did not create and is not responsible for maintaining the access point to the gas main in the sidewalk in front of his property. Inasmuch as the subject property is an eight family property within the confines of the City of New York, the defendant is not exempt from the requirements of NYCRR §7-210. Although not specifically articulated by the defendant the question that remains is whether an access point to a gas main contained within a public sidewalk is considered part of the sidewalk for purposes of applying NYCRR §7-210.

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It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists. The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of material facts. A failure to make that showing requires the denial of the summary judgment motion, regardless of the adequacy of the opposing papers. If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material dog bite issues of fact.

In determining a motion for summary judgment, evidence must be viewed in the light most favorable to the non-movant. “The function of the court on a motion for summary judgment is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist”. “Liability for a dangerous or defective condition is predicated upon ownership, occupancy, control or special use of the property Where none is present, a party cannot be held liable for injuries caused by the dangerous or defective condition of the property”.

Generally, liability for injury sustained as a result of dangerous and defective conditions on public sidewalks is placed on the municipality and not the abutting landowner. A landowner is not liable to a pedestrian injured by a defect in a public sidewalk abutting the landowner’s property unless the landowner caused the defective condition through negligent construction or repair, or as a result of some special use, or if a statute imposes the obligation to maintain the sidewalk on the abutting property owner.

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A Kings Construction Accident Lawyer said that, by notice of motion filed on January 6, 2011, defendant moves pursuant to CPLR 3212 for an order granting summary judgment in his favor on the issue of liability and dismissing plaintiff’s complaint. Plaintiff opposes the defendant’s motion. On February 6, 2009, plaintiff filed a summons and verified complaint with the Kings County Clerk’s Office. Defendant joined issue with a verified answer dated May 1, 2009. On November 8, 2010, a note of issue was filed.

A Kings Slip and Fall Lawyer said that, the instant action is for damages for personal injury sustained in a trip and fall incident. Plaintiff’s verified complaint and bill of particulars alleges, among other things, that on September 2, 2008, she tripped, fell and injured herself on a dangerous and defective condition in the sidewalk in front of a building owned by the defendant (hereafter “the subject sidewalk”) located in Kings County, New York. Plaintiff further alleges that the dangerous condition was due to defendant’s negligent maintenance of the subject sidewalk.

The defendant’s motion papers consist of a notice of motion, an attorney’s affirmation and seven exhibits, labeled A through G. Exhibit A contains the summons and verified complaint. Exhibit B consists of the defendant’s verified answer, and various discovery demands. Exhibit C is the note of issue. Exhibit D is a transcript of the deposition of the plaintiff taken on August 10, 2004. Exhibit E contains the plaintiff’s verified bill of particulars. Exhibit F contains color photographs of the alleged dangerous condition at the location in question. Exhibit G contains the transcript of the deposition of the defendant’s employee, taken on October 19, 2010. The plaintiff’s opposition papers consist of an attorney’s affirmation and three exhibits labeled A through C. Exhibit A is the deposition of the plaintiff taken on August 10, 2004. Exhibit B is the deposition of Maria Valera, taken on October 19, 2010. Exhibit C contains black and white photographs of the accident scene.

The issue in this case is whether plaintiff is entitled for damages.
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“An insurer’s duty to defend is broader than its duty to indemnify, such that an insurer may be obligated to defend its insured even if, at the conclusion of an underlying action, it is found to have no obligation to indemnify its insured”. “An insurer must defend its insured whenever the allegations of a complaint in an underlying action ‘suggest a reasonable possibility of coverage’. The duty to defend an insured is not triggered, however, “when the only possible interpretation of the allegations against the insured is that the factual predicate for the claim falls wholly within a policy exclusion”. “An exclusion from coverage ‘must be specific and clear in order to be enforced’, and an ambiguity in an exclusionary clause must be construed most strongly against the insurer”. “However, the plain meaning of a policy’s language may not be disregarded to find an ambiguity where none exists”.

Here, the plain meaning of the employee exclusion invoked by defendant Insurance Company is that the policy does not provide coverage for damages arising out of bodily injury sustained by an employee of any contractor hired by or for any insured in the course of the employee’s employment. In the plaintiff’s complaint in the main action, he alleged that he sustained bodily injury in the course of his employment for Contracting Corp., an entity he alleged was hired to perform work on the construction project by either Fabian, an additional insured under the policy, or defendant, the named insured of the policy. The only possible interpretation of these allegations is that the factual predicate for the plaintiff’s claim falls wholly within the employee exclusion. In opposition to Utica’s prima facie establishment of its entitlement to judgment as a matter of law, Fabian failed to raise a triable issue of fact. Accordingly, the policy precludes coverage to Fabian and AG Masonry for the injuries allegedly sustained by the plaintiff, and the Supreme Court should have granted that branch of Utica’s motion which was for summary judgment declaring that it is not obligated to defend and indemnify the defendants in the main action. Defendant Insurance Company’s remaining contention is not properly before the Court and, in any event, has been rendered academic in light of our determination.

Since the third-party action is, in part, a declaratory judgment action, we remit the matter to the Supreme Court, Kings County, for the entry of a judgment declaring that Utica is not obligated to defend or indemnify Fabian and AG Masonry in the main action of personal injury appeal dismissed.

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