Hannum, Feretic, Prendergast, & Merlino, LLC | Attorneys at Law

Premises Owner Entitled To CPLR Article 16 Protection Despite Non-Delegable Duty

By Jessica M. Erickson

The owner of real property in New York has a non-delegable duty to maintain the premises in a reasonably safe condition. Although it would appear that a non-delegable duty is an exception to the apportionment of CPLR Article 16, §1602(2)(iv) is actually a “savings provision” that allows a premises owner found less than 51% liable to apportion the liability with responsible tortfeasors.

Court of Appeals Decides to Adopt Broader Disclosure Standard For Non-Party Subpoenas

By Brian C. Stehn

In the recent case of Matter of John Kapon, et al. v. William I. Koch, the Court of Appeals decided to adopt a broader interpretation of the “material and necessary” standard for non-party subpoenas.

New York Court of Appeals Rules on the Interplay Between Worker’s Compensation Law §29(6) and Vehicle and Traffic Law §338

By Lindsey S. Lamonica

This matter was referred to the New York State Court of Appeals by the United States Court of Appeals for the Second Circuit for a decision concerning the relationship between the Workers’ Compensation Law and the Vehicle and Traffic Law, when a plaintiff is injured in an automobile accident and one of the tortfeasors is a co-worker otherwise protected from liability under the Workers’ Compensation Law.

Update on Falling Object in Labor Law

By Sterling E. Tipton

The Court of Appeals recently decided a case involving a claim of a “falling object” under the Labor Law, and effectively reaffirmed earlier caselaw that requires the plaintiff to prove the absence or inadequacy of a safety device in order to succeed on such a claim.

Recent Decision Concerning Admissibility of Expert Testimony of Biomechanical Engineer

By Barbara A. Hayes

The Appellate Division, First Department recently issued a decision broadly expanding the admissibility of the expert testimony of a biomechanical engineer. In Vargas v Sabri, 115 AD3d 505 [1st Dept 2014], the First Department upheld the decision denying plaintiff’s request for a Frye hearing to determine the admissibility of the testimony of Dr. Callum McRae.

Liberal Interpretation of Labor Law § 240(1) in Fernandez And The Need For Thorough Deposition Questioning

By Jon P. Pisiewski

On occasion, when conducting a deposition, attorneys find themselves confronted with an opposing counsel improperly objecting to “irrelevant” or follow-up questions about something the witness denied. However, thorough questioning anticipating potential pitfalls may often lead to asking the crucial question that can turn a case.

Recent Decision Concerning “Spoliation Sanctions”

By Barbara A. Hayes

The First Department recently issued a decision on a case involving the issuance of sanctions for spoliation of evidence. In Malouf v Equinox Holdings, Inc., 113 AD3d 422 [1st Dept 2014], the plaintiff brought a personal injury action against a health club operator, alleging she was injured on a treadmill in the health club.

First Department Limits Discovery for Prior Injuries

By Jessica G. Price

In this week’s decision of Gumbs v. Flushing Town Ctr.III, L.P., 2014 NY Slip Op 01267, the First Department upheld a decision denying the defendants’ motion to compel authorizations based on the plaintiff’s claims for “loss of enjoyment of life” and past pain and suffering.

Applicability of NY Labor Law §240(1) To a Worker Struck By Overhead Equipment

By Michael J. White

Lately, we have been seeing a trend where plaintiff’s attorneys are trying to recover under Labor Law § 240 for injuries to construction workers who have been struck by heavy equipment that had been operating above them on the job site. A recent Appellate Division case clearly holds that Labor Law § 240 does not apply to these types of situations.

Recent decisions concerning “Cleaning” under Labor Law §240

By David P. Feehan

In October 2013 the Court of Appeals clarified the definition of “cleaning” under Labor Law §240. The case of Soto v J. Crew Inc., 21 NY3d 562 (2013) presents a test for the determining whether an activity may be characterized as cleaning under the statute. The Soto case involved a plaintiff who was performing dusting on a six-foot high display shelf in a J. Crew retail store when he fell from the 4 foot ladder.

Making Full Use of Defenses to Respondeat Superior

By Matthew J. Zizzamia

Under the doctrine of respondeat superior, an employer is responsible for the actions of an employee if it falls within the course and scope of the duties of the employee. Accordingly, an employer will be held liable for the negligence of a delivery driver who rear ends another vehicle, just as a building owner may be liable for damages sustained by a plaintiff who slips on a puddle of water that a building superintendent failed to clean.

Recent Labor Law §240(1) Decision—Fourth Department

By James M. Merlino

The New York Court of Appeals decisions in Runner v. New York Stock Exchange, et al. and Wilinski v. 334 East 92nd Housing Development Fund Corp. continue to have ripple effects throughout the Appellate Division Courts. Recently, the Appellate Division, Fourth Department issued a decision in the case of DiPalma v. State of New York once again affirming, and to some degree expanding, the decisions in Runner and Wilinski.

Contemporaneous Range of Motion Testing Not Required

By Vera Tsai

The Court of Appeals case, Perl v. Meher, 18 N.Y.3d 208, 936 N.Y.S.2d 655 (2011), held that contemporaneous range of motion testing is not a prerequisite to establishing a “serious injury” under the “permanent consequential limitation” and “significant limitation” categories of threshold law.

Defeating Summary Judgment in Rear End Cases: Viability of the “Sudden Stop” Defense

By Barbara A. Hayes

It is not uncommon for a plaintiff to move for summary judgment on the issue of liability against the defendant as early as possible in a rear-end collision case. When a rear-end collision occurs, the injured occupants of the front vehicle are entitled to summary judgment on liability, unless the driver of the following vehicle can provide a non-negligent explanation, in evidentiary form, for the collision.[i] A common non-negligent explanation given by defendants in opposition to a summary judgment motion is the “sudden stop” excuse.

Threshold – How the Plaintiff’s Deposition Can Help Defendants Win Summary Judgment

(Under the “90/180” Category of the No-Fault Law)
By Vera Tsai

This article discusses the significance of plaintiff’s deposition testimony involving the “90/180” category and what should be elicited from the plaintiff in support of a threshold motion under this category.

Press Release – Opening of New Jersey Office

46 Bayard Street, Suite 201, New Brunswick, NJ

The opening of a new office in New Brunswick, New Jersey is the latest addition to the New York based law firm specializing in insurance coverage and defense litigation in premises, construction defect, labor law, automobile, trucking and product liability matters. After hiring four new attorneys in our New York office this past year and completing a renovation project to allow for the addition of even more attorneys in the upcoming year, Hannum Feretic Prendergast & Merlino, LLC is happy to welcome Michael J. White to their firm as Managing Attorney of the new office opening in New Brunswick, New Jersey.