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.
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.
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.
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.
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.
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.
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.
(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.
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.