We represent the employer in a Labor Law claim wherein the general contractor sought, inter alia, contractual indemnity from the employer.  On our motion for summary judgment in Supreme Court, Bronx County, we argued that the contract upon which the general contractor sought contractual indemnity was void as against public policy pursuant to GOL § 5-322.1. In sum, we argued the contract required our client (the employer) to indemnify the general contractor for its own negligence.  The Supreme Court denied our motion and we took an appeal. On Appeal, the Appellate Division, First Department, reversed the Supreme Court agreeing with our position and held the contractual indemnity language void.  This is a significant ruling for our client whose assets could have been at risk if contractually obligated to indemnify the remaining defendants in what may end up being a high exposure case in Supreme Court, Bronx County.

On March 24, 2021, GVK obtained dismissal of plaintiffs’ complaint asserting causes of action for legal malpractice, breach of contract and a violation of Judiciary Law § 487 against GVK’s attorney client. Plaintiffs alleged that they would have obtained a more favorable outcome in an underlying foreclosure action had GVK’s client asserted a statute of limitations defense in the foreclosure action. It was Plaintiffs position that the legal malpractice claim was not premature because the entry of a Judgment of Foreclosure and Sale was “final” and disposed of the case.

GVK successfully argued that plaintiffs could not meet the “case within-a-case” standard based on the fact that the foreclosure sale had not yet occurred, and thus there were no actual ascertainable damages. In addition, there was still an open Order to Show Cause filed on behalf of plaintiffs seeking to vacate the Judgement of Foreclosure and
Sale, which could render all or at least some of the malpractice claims moot.

Justice Porzio, in Supreme Court, Richmond County rejected plaintiffs’ arguments and agreed that the elements of causation and damages in Plaintiffs’ legal malpractice cause of action are dependent on the outcome of the Order to Show Cause, and as such, dismissed the malpractice cause of action as premature. The court also agreed that GVK demonstrated the breach of contract and violation of Judiciary Law § 487 claims were duplicative of the malpractice claims and not adequately plead and dismissed both causes of action.

Parenthetically, while plaintiff was granted leave to replead the malpractice claim, the ultimate success of such claim is now far less likely due to the recent New York Court of Appeals holding in Freedom Mortgage Corp. v. Engel which reversed the Second Department’s decision and held that acceleration of a mortgage loan may be revoked by the voluntary discontinuance of a prior foreclosure action. This holding, which came down while the motion practice was pending, renders it far less likely that a meritorious statute of limitations defense to the foreclosure action ever existed.

The Appellate Division, Second Department unanimously affirmed the lower Court’s decision granting summary judgment to GVK’s client, a paving contractor. Plaintiff-Appellant, a pedestrian, tripped and fell on a chain that was suspended approximately 4-5 inches above ground between two posts.

GVK successfully argued in the Supreme Court, Kings County that the paving contractor had no liability under the Espinal doctrine, as it was an independent contractor that did not launch a force of harm. It was argued that the paving contractor had no obligation to maintain the chain under its contract with the property owner and was not the entity that actually placed the chain. In addition, GVK argued that, since the accident during daylight and was readily observable by the reasonable use of one’s senses, the chain was open and obvious and not inherently dangerous.

The Appellate Division, Second Department adopted GVK’s arguments and, in particular, that the chain was not inherently dangerous and constituted an open and obvious condition. GVK’s client was also awarded a bill of costs for the appeal.

The decision was particularly important because the Appellate Division, Second Department typically denies similar motions on the grounds that whether a condition is open and obvious is a question for the jury. Possible reasons for this defendant-friendly decision in an otherwise plaintiff-leaning appellate court, include the clear and undisputed facts surrounding the accident and the interpretation that a chain is not inherently dangerous absent other factors, as well as the emerging trend of courts to dismiss cases when appropriate due to the backlog created by COVID-19.

The infant plaintiff and her mother claimed that, on June 17, 2015, the infant plaintiff was attending a get together at our clients’ home when she was attacked by Otis, our clients’ Black Labrador Retriever. Otis bit the infant plaintiff’s face causing severe injuries and alleged emotional trauma. Otis was quickly taken to a veterinarian, placed in isolation, and later put down.

Our motion for summary judgment focused on the plaintiffs’ inability to show that Otis had any vicious propensities of which our clients’ were actually or constructively aware. Our clients testified Otis had never exhibited any vicious tendencies when being hugged, touched or grabbed, nor had either of our clients received any complaints regarding Otis’s temperament. In anticipation of arguments which were eventually raised in opposition to the motion our clients affirmed that Otis’s skin allergies did not affect his behavior or change his
temperament in any manner.

Furthermore, the infant plaintiff had previously been to defendants’ home and interacted with Otis describing the visit as “fun”. Plaintiffs argued that Otis’s relatively lengthy veterinary history for skin conditions caused him to be irritable and that our clients should have been aware of same. Further, plaintiffs pointed to Otis’s documented aggressive behavior after the incident, while in confinement at the veterinarian’s office, as proof that he was a danger to others.

In our reply, we argued that plaintiffs’ expert affidavit relied on an unsupported allegation by the infant plaintiff’s mother that Otis had nipped at the infant plaintiff on a prior occasion —something the infant plaintiff testified did not occur and that Otis’s behavior after the accident could not serve as a basis for imputing notice.

The Court adopted our argument regarding the lack of credibility of plaintiff’s expert and the conclusory nature of his opinion and found that plaintiffs failed to demonstrate or provide any competent evidence that Otis had any vicious propensities of which our clients should have been aware. Accordingly, the Court granted summary judgment to defendants. The Court also denied plaintiff’s cross-motion to amend the complaint to add a cause of action based on strict liability noting there was no evidence of prior notice of any vicious propensities warranting the amendment. All claims were dismissed.

Following six years of contentious litigation, Jeannine Davanzo and Krystina Maola, obtain summary judgment in favor of GVK’s client, a healthcare products manufacturer, in a products liability and negligence lawsuit filed in Kings County, New York. The plaintiff alleged that he sustained injuries after he slipped and fell on water he claimed was emanating from the client’s ultrasonic cleaner during his employment at a hospital. The cleaner had undergone
routine preventative maintenance pursuant to a contract with the plaintiff’s employer approximately one month prior to the plaintiff’s alleged accident, which showed no water leaking or other issues.

The plaintiff testified that while performing his work, he would spill or drip water onto the floor. He also testified that the water that allegedly caused his accident could have originated from other cleaners and/or sinks in the room where he worked. Additionally, the plaintiff admitted that he had seen water on the floor on multiple occasions prior to his accident and would mop it himself and report it to his supervisor, neither of which he did on the date of his
accident.

GVK’s attorneys moved for summary judgment on several grounds, including that plaintiff could not establish the client’s product was defective in any way and that the client did not owe a duty to the plaintiff as a non-contracting third party, negating the required element for a negligence claim. In opposition, the plaintiff argued that the manufacturer of the cleaner owed a duty to him under the exceptions set forth in Espinal v. Melville Contrs., 90 N.Y.2d 136 (2002).

The court rejected the plaintiff’s argument, determining that there was no proof in the record to support the plaintiff’s products liability claim. The court also determined that the plaintiff’s negligence claim failed because the plaintiff did not allege any of the exceptions pursuant to Espinal that might give rise to a duty to plaintiff on the part of the manufacturer of the cleaner in his pleadings. The first time the plaintiff raised any of these arguments was in opposition to the motion for summary judgment. The court further agreed with defendant that since the
plaintiff did not plead the exceptions in his Complaint or Bill of Particulars as required, dismissal of the Complaint was appropriate. The case was dismissed in its entirety and plaintiff has not appealed.

The matter involves an underlying personal injury action, wherein the plaintiff sued our insurance carrier client’s insured for damages incurred as a result of a slip/trip and fall accident taking place on the insured’s property. When applying for coverage, the insured defendant elected first-party property damage coverage only. However, after being named a defendant in the underlying personal injury action, the insured defendant claimed he was entitled to general liability coverage under the subject policy and filed a declaratory action against our client seeking defense and indemnity of the plaintiff’s claim. Specifically, the insured defendant claimed he misinterpreted the coverage application form, and that his mistake was not a valid reason to disclaim coverage.

In our motion for summary judgment, we argued the insured never purchased commercial general liability coverage, and therefore, the carrier was not obligated to indemnify or defend the insured in the underlying action brought forth by the plaintiff. The motion was granted by The Honorable Keith Lynott, J.S.C. The Court agreed with our arguments and concluded the insured’s confusion or intent when filling out the insurance application and applying for insurance coverage is not relevant. Rather, the policy itself is the document that forms the contract/agreement between a carrier and its insured, and the policy herein is unambiguous. The Court held it is undisputed that the text of the policy does not provide coverage for general liability claims alleging bodily injury as a result of work or other activities conducted on or at the insured property. Consequently, our motion for summary judgment filed early and during the discovery period was granted, and all claims against the carrier have been dismissed with prejudice.

Even in New York sometimes procedural rules matter for both plaintiffs and defendants. Whereas, historically, courts in the State of New York rarely granted defaults and/or refused to dismiss a case on procedural grounds, there is a growing trend by the courts to grant procedural-based applications notwithstanding substantive and equitable considerations.

In this matter, Plaintiff claimed to have tripped and fallen into a hole on the premises where she resided. We represented the landscape contractor who also provided the superintendent for general maintenance. Notwithstanding Plaintiff’s counsel’s repeated failures to comply with Court Orders, discovery was ultimately completed and a motion for summary judgment was timely filed. Among other things, we argued that our clients were not negligent, did not owe Plaintiff a legal duty and that none of the exceptions for independent contractor
liability set forth in Espinal V. Melville Snow Contractors, Inc., 98 N.Y.2d 136 (2002) were applicable. The other defendants made similar motions. Plaintiff, belatedly under the Court’s rules, sought an adjournment of the motions, which was denied by the lower court. Plaintiff made numerous attempts, including ex parte communications with the Court, for additional time to respond to the motions and Plaintiff finally moved by Order to Show Cause to extend her time to submit opposition to the motions and raised for the first time additional reasons why the application should be granted.

The Supreme Court Westchester County granted the Defendants’ motions for summary judgment and denied Plaintiff’s Order to Show Cause in a substantial decision setting forth the strict rules for abiding by court-imposed deadlines. Plaintiff’s counsel attempted to appeal the granting of the summary judgment motions but was forced to withdraw that application as Plaintiff had not opposed the motions. Plaintiff’s counsel then appealed the denial of the Order Show Cause that sought additional time to respond to the summary judgment motions. After
submission of the briefs and oral argument, the Appellate Division Second Department issued a unanimous ruling affirming the lower court’s denial of the application. The Second Department stated, in part, that the lower Court did not improvidently exercise its discretion, that Plaintiff failed to offer a valid excuse for the extension and that the record reflected that the need for the adjournment resulted from a lack of due diligence on the part of the Plaintiff.

Plaintiff then moved for leave to appeal to the Court of Appeals arguing, among other things, that the default was not her fault and that it was in fact her counsel’s failure. We argued in opposition that this latter argument was new and never raised by Plaintiff in the lower courts. In addition, we argued, in opposition to the application, that Plaintiff did not present any legal basis for the Court of Appeals to accept the appeal. After Plaintiff’s motion was fully briefed, the Court of Appeals dismissed Plaintiff’s motion, finding that the lower court’s order did not
finally determine the action within the meaning of the Constitution.

The Appellate Division, Second Department unanimously reversed the lower court’s decision which incorrectly denied summary judgment to GVK’s client, a janitorial contractor. Plaintiff, a hotel employee, alleged serious injuries as a result of a slip and fall on grease within a loading dock.

GVK argued that the janitorial contractor could not be found to owe a duty of care to Plaintiff pursuant to the seminal Court of Appeals case of Espinal v. Melville Snow Contrs., which sets forth the three exceptions by which a defendant may be held to owe a duty of care to a non-contracting party. As is relevant here, the janitorial contractor submitted testimony and evidence that it did not transport grease and was not responsible for cleaning grease spills within the loading dock. Thus, GVK argued that the janitorial contractor could not be found to have “launched a force of harm”. Plaintiff attempted to raise a triable issue of fact by pointing to testimony that the contractor occasionally undertook additional cleaning tasks within the loading dock when asked by the building manager. The lower court erroneously denied the janitorial contractor’s summary judgment motion finding that Plaintiff raised a triable issue of fact whether the janitorial contractor “launched a force of harm”.

On appeal, the Second Department reversed and pointed out that Plaintiff testified she did not know how the grease spot was created or who was responsible for cleaning the grease, and had never seen the contractor mopping the loading dock. Thus, any contention that the contractor created the condition would be purely speculative and conclusory and not sufficient to raise a triable issue of fact.

Taranae Hashemi and Stephen Hoffman prevailed on their emergency application on behalf of their client, the condominium Board of Managers, which sought an Order from the Court directing that the plaintiffs-owners provide immediate access to their condominium unit, enjoining the plaintiffs from otherwise placing preconditions on entry and, further, precluding plaintiffs from attending the defendant-Board of Manager’s inspections.

Plaintiffs, owners of a condominium unit alleged to be rife with mold, commenced an action against the condominium Board of Managers alleging multiple causes of action, including negligence and breach of fiduciary duty, arising out of an alleged mold condition and structural deficiencies within the unit. Despite repeated attempts to obtain access to the unit, plaintiffs’ insistence on burdensome and onerous preconditions to access impeded the parties from reaching an amicable agreement. Accordingly, Taranae and Steve sought emergent relief via an Order to Show Cause and Temporary Restraining Order. The Court granted the application in its entirety and held that plaintiffs’ allegations of an immediate and ongoing threat to the health of plaintiffs, coupled with the Bylaws permitting the Board to access the condominium units in the event of an emergency, warranted the requested relief.

In a unanimous decision, the First Department affirmed the Lower Court’s decision to grant Summary Judgment
in favor of GVK’s client, a construction manager. In this matter, the plaintiff, who was the foreman for the third-party defendant roofing subcontractor, alleged serious injuries as a result of a trip-and-fall over short, protruding steel rebar dowels that had been installed in the roof’s surface. The purpose of the rebar was to secure the concrete to the roof’s surface, after the area was waterproofed and the concrete was poured. The roofing subcontractor decided to discontinue use of orange safety caps on the rebar, because the caps interfered with the waterproofing process.

The First Department ruled in our client’s favor and affirmed the Lower Court’s decision in that plaintiff’s Labor Law § 241(6) claim was properly dismissed because the steel rebar was “an integral part of the work being performed”. The Labor Law § 200 claim was properly dismissed because the GVK client’s construction manager did not “exercise supervisory control” over the work of the subcontractors, and the construction manager did not direct
the subcontractors to stop using the orange safety caps on the rebar.