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PLAINTIFF WAS STRUCK BY A SHED WHICH WAS BEING TRANSPORTED AS AN OVERSIZED LOAD; AN EMPLOYER WHICH HIRES AN INDEPENDENT CONTRACTOR WILL GENERALLY NOT BE VICARIOUSLY LIABLE FOR THE CONTRACTOR’S NEGLIGENCE UNLESS THE CONTRACTOR IS TASKED WITH AN “INHERENTLY DANGEROUS ACTIVITY;” TRANSPORTING AN OVERSIZED LOAD BY TRUCK IS NOT AN “INHERENTLY DANGEROUS ACTIVITY;” THEREFORE THE EMPLOYER WAS NOT VICARIOUSLY LIABLE FOR THE TRUCK DRIVER’S NEGLIGENCE WHICH CAUSED PLAINTIFF’S INJURY (THIRD DEPT).

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Powers, over a dissent, determined defendant ACS, which hired defendant St. Mary as an independent contractor, was not vicariously liable for the negligence of a driver working for St. Mary. Plaintiff was struck by a shed which was being transported by truck as […]

THE E-MAIL SERVICE OF A NOTICE OF ENTRY BY THE NEW YORK STATE ELECTRONIC FILING SYSTEM (NYSCEF) “SHALL NOT CONSTITUTE SERVICE OF ENTRY BY ANY PARTY;” BECAUSE PLAINTIFF DID NOT SERVE THE NOTICE OF ENTRY ON DEFENDANTS AFTER REMAND BY THE APPELLATE COURT, THE DEFENDANTS’ TIME TO ANSWER NEVER STARTED RUNNING; THE DEFAULT JUDGMENT WAS VACATED (FIRST DEPT).

The First Department, reversing the default judgment, held that defendants’ time to answer after remand by the appellate court never started running because plaintiff never served the notice of entry. The New York State Courts Electronic Filing system’s (NYSCEF’s) transmission of notification of entry to e-mail service addresses “shall not constitute service of entry by […]

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THE A-FRAME LADDER PLAINTIFF WAS USING WHEN HE FELL WAS DEFECTIVE AND LABOR LAW 240(1) APPLIED ON THAT GROUND ALONE; EVEN IF THE LADDER HAD NOT BEEN DEFECTIVE, LABOR LAW 240(1) WOULD STILL APPLY BECAUSE THE LADDER WOBBLED AFTER PLAINTIFF RECEIVED AN ELECTRIC SHOCK; THERE IS NO EXCEPTION TO THE APPLICABILITY OF LABOR LAW 240(1) WHERE A LADDER-FALL IS PRECEDED BY AN ELECTRIC SHOCK (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Mendez, determined plaintiff was entitled to summary judgment on the Labor Law 240(1) cause of action in this ladder-fall case. Plaintiff was standing on an A-frame ladder when he he was shocked by a live electric wire and fell. At the time he […]

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ONE DEFENDANT PROVED HE DID NOT RESIDE AT THE ADDRESS WHERE SERVICE OF PROCESS WAS MADE; AND PLAINTIFF FAILED TO PROVE THE PROCESS SERVER EXERCISED “DUE DILIGENCE” IN ATTEMPTING TO SERVE THE OTHER DEFENDANT BEFORE RESORTING TO NAIL AND MAIL; DEFAULT JUDGMENT VACATED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the default judgments against De La Cruz-Ramos and Mosquea should have been vacated. De La Cruz-Ramos proved he did not reside at the address where service of process was made. And plaintiff did not prove the process server exercised due diligence in serving Mosquea before resorting to “nail […]

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IF THE UNDERLYING INSURANCE POLICY DOES NOT INDICATE THAT A WRITTEN AGREEMENT NAMING A PARTY AS AN ADDITIONAL INSURED MUST BE SIGNED, AN UNSIGNED DOCUMENT TO THAT EFFECT IS ENFORCEABLE (FIRST DEPT).

The First Department, reversing Supreme Court, determined that the fact the the change order, which required defendant (Arsenal) to name plaintiff as an additional insured, was unsigned, it was enforceable: ​An unsigned document may qualify as a written agreement requiring a party to be named as an additional insured, provided that the additional insured provisions […]

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EXCLUSIONS FROM COVERAGE IN AN INSURANCE POLICY ARE STRICTLY CONSTRUED AGAINST THE INSURER; HERE DAMAGE CAUSED BY “INTERIOR TILE” WORK WAS COVERED UNDER THE POLICY; IN PREPARING THE BATHROOM FLOOR FOR TILING THE INSURED USED WELDING EQUIPMENT WHICH CAUSED A FIRE; THE INSURER DID NOT DEMONSTRATE THE PREPARATORY WORK WAS NOT ENCOMPASSED BY THE COVERAGE FOR “INTERIOR TILE” WORK (FIRST DEPT).

The First Department, reversing Supreme Court, determined that plaintiff insurance company was, by the terms of the policy, obligated to cover property damage caused by defendant contractor, who was retained to refurbish a bathroom. The policy issued by plaintiff to defendant excluded from coverage any property damage caused by  the defendant. There was an “exception […]

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DEFENDANTS-ATTORNEYS WAIVED A DEFENSE WITHOUT THEIR CLIENTS’ CONSENT; THE LEGAL MALPRACTICE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined the motion to dismiss the legal malpractice complaint should not have been granted. Defendants-attorneys represented Park West. A driver working for Park West was in an accident and both Park West and the driver were sued. The contract between the driver and Park West indicated the driver was […]

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DEFENDANT BASED HIS DECISION TO PLEAD GUILTY, IN PART, ON INACCURATE INFORMATION ABOUT HIS SENTENCING EXPOSURE; GUILTY PLEAS VACATED (FIRST DEPT).

The First Department, vacating defendant’s guilty pleas, determined the misinformation provided to the defendant about his sentencing exposure rendered the pleas invalid: Defendant was told that he faced the possibility of serving two consecutive 15-year sentences if he elected to go to trial. At most, however, he was facing 20 years because of the statutory […]

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DEFENDANTS WERE NOT ENTITLED TO SUMMARY JUDGMENT IN THIS WET-FLOOR SLIP AND FALL CASE; THEY FAILED TO PROVE THERE WAS A STORM IN PROGRESS, THEY FAILED TO PROVE THEY TOOK REASONABLE PRECAUTIONS TO REMEDY THE WET FLOOR, AND THEY FAILED TO PROVE THEY DID NOT HAVE CONSTRUCTIVE OR ACTUAL NOTICE OF THE CONDITION (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendants were not entitled to summary judgment in this slip and fall case. The slip and fall was related to tracked-in water in the lobby of defendants’ premises. The court noted what defendants failed to prove, i.e., there was a “storm in progress,” they took reasonable precautions to […]

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ONCE THE JUDGE DETERMINED THERE WERE NECESSARY PARTIES WHICH WERE NOT JOINED, THE JUDGE SHOULD NOT HAVE DECIDED THE MOTION FOR A DEFAULT JUDGMENT; THE NECESSARY PARTIES SHOULD HAVE BEEN IDENTIFIED AND SUMMONED IF POSSIBLE; MATTER REMITTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judge should not have ruled on the motion for a default judgment without first identifying the necessary parties to the action (after concluding there in fact were necessary parties who were not joined): “[N]ecessary parties are persons who might be inequitably affected by a judgment in the […]

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