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PLAINTIFF’S ACTION FOR BREACH OF CONTRACT, ALLEGING DEFENDANT-ATTORNEYS FAILED TO RETURN THE BALANCE OF THE FEE PAID AT THE CONCLUSION OF THE CASE, PROPERLY SURVIVED A MOTION TO DISMISS (FIRST DEPT).

The First Department determined defendant-attorneys’ motion to dismiss the breach of contract cause of action, alleging the failure to return the balance of fees paid, was properly denied. Plaintiff alleged there was an oral agreement to return any few balance remaining when the action was resolved. Defendants did not provide plaintiff with an accounting of the hour spent on the case:

Defendants moved to dismiss, arguing that the breach of contract claim was not adequately pleaded and that plaintiff’s claim is barred by the “voluntary payment doctrine.”

The voluntary payment doctrine “bars recovery of payments voluntarily made with full knowledge of the facts, and in the absence of fraud or mistake of material fact or law” … . In the context of an attorney-client relationship, the attorney bears the burden of showing that the parties’ fee agreement was fair, reasonable, and fully known and understood by plaintiff … .

Plaintiff has sufficiently alleged a claim for breach of contract based on defendants’ failure to return the unearned balance of his retainer, pursuant to the parties’ oral agreement … . While defendants assert that plaintiff voluntarily made payments to compensate them for their services, they have not established that plaintiff had full knowledge of the relevant facts, such as the number of hours spent by defendants in connection with their representation of him … . Nor did they submit any evidence to show that the amount of plaintiff’s payments was fair and reasonably related to the value of services rendered … . Dubrow v Herman & Beinin, 2018 NY Slip Op 00478, First Dept 1-25-18

ATTORNEYS (FEES, CONTRACT LAW, PLAINTIFF’S ACTION FOR BREACH OF CONTRACT, ALLEGING DEFENDANT-ATTORNEYS FAILED TO RETURN THE BALANCE OF THE FEE PAID AT THE CONCLUSION OF THE CASE, PROPERLY SURVIVED A MOTION TO DISMISS (FIRST DEPT))/CONTRACT LAW (ATTORNEY’S FEES, PLAINTIFF’S ACTION FOR BREACH OF CONTRACT, ALLEGING DEFENDANT-ATTORNEYS FAILED TO RETURN THE BALANCE OF THE FEE PAID AT THE CONCLUSION OF THE CASE, PROPERLY SURVIVED A MOTION TO DISMISS (FIRST DEPT))/ATTORNEY’S FEES (CONTRACT LAW, PLAINTIFF’S ACTION FOR BREACH OF CONTRACT, ALLEGING DEFENDANT-ATTORNEYS FAILED TO RETURN THE BALANCE OF THE FEE PAID AT THE CONCLUSION OF THE CASE, PROPERLY SURVIVED A MOTION TO DISMISS (FIRST DEPT))/VOLUNTARY PAYMENT DOCTRINE (ATTORNEY’S FEES, PLAINTIFF’S ACTION FOR BREACH OF CONTRACT, ALLEGING DEFENDANT-ATTORNEYS FAILED TO RETURN THE BALANCE OF THE FEE PAID AT THE CONCLUSION OF THE CASE, PROPERLY SURVIVED A MOTION TO DISMISS (FIRST DEPT))

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PLAINTIFF ACTED AS A REAL ESTATE BROKER FOR BOTH BUYER AND SELLER, DUAL AGENCY WAS NOT DISCLOSED, PLAINTIFF NOT ENTITLED TO COMMISSION, STATEMENT IN COMPLAINT THAT PLAINTIFF WAS A BROKER WAS A JUDICIAL ADMISSION, PRECLUDING ANY CLAIM PLAINTIFF WAS MERELY A FINDER (FIRST DEPT).

The First Department determined plaintiff Zaccaro was a real estate broker, not a finder, and was not entitled to a real estate commission because plaintiff acted as a broker for the buyer and the seller (impermissible dual agency without full disclosure):

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Plaintiffs’ argument that Zaccaro was merely a finder instead of a real estate broker is unavailing. The amended complaint, which was verified by Zaccaro’s president, alleges that plaintiffs were [the buyer’s] real estate brokers. This statement constitutes a formal judicial admission …”.

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Furthermore, a finder has no obligation to negotiate the real estate transaction in order to obtain its fee … . Here, the amended complaint indicates that plaintiffs were obligated to negotiate the sale of the premises. In particular, the amended complaint alleges that [the buyer] authorized plaintiffs “to act as the licensed real estate brokers … . …

Plaintiffs’ contention that the seller was not injured by Zaccaro’s dual agency is unavailing. Where, as here, the duty of undivided loyalty is breached, plaintiff broker forfeits its right to a commission, “regardless of whether damages were incurred” … . P. Zaccaro, Co., Inc. v DHA Capital, LLC, 2018 NY Slip Op 00458, First Dept 1-25-18

REAL ESTATE (PLAINTIFF ACTED AS A REAL ESTATE BROKER FOR BOTH BUYER AND SELLER, DUAL AGENCY WAS NOT DISCLOSED, PLAINTIFF NOT ENTITLED TO COMMISSION, STATEMENT IN COMPLAINT THAT PLAINTIFF WAS A BROKER WAS A JUDICIAL ADMISSION, PRECLUDING ANY CLAIM PLAINTIFF WAS MERELY A FINDER (FIRST DEPT))/BROKERS, REAL ESTATE (PLAINTIFF ACTED AS A REAL ESTATE BROKER FOR BOTH BUYER AND SELLER, DUAL AGENCY WAS NOT DISCLOSED, PLAINTIFF NOT ENTITLED TO COMMISSION, STATEMENT IN COMPLAINT THAT PLAINTIFF WAS A BROKER WAS A JUDICIAL ADMISSION, PRECLUDING ANY CLAIM PLAINTIFF WAS MERELY A FINDER (FIRST DEPT))/DUAL AGENCY (REAL ESTATE, PLAINTIFF ACTED AS A REAL ESTATE BROKER FOR BOTH BUYER AND SELLER, DUAL AGENCY WAS NOT DISCLOSED, PLAINTIFF NOT ENTITLED TO COMMISSION, STATEMENT IN COMPLAINT THAT PLAINTIFF WAS A BROKER WAS A JUDICIAL ADMISSION, PRECLUDING ANY CLAIM PLAINTIFF WAS MERELY A FINDER (FIRST DEPT))/FINDER (REAL ESTATE, (PLAINTIFF ACTED AS A REAL ESTATE BROKER FOR BOTH BUYER AND SELLER, DUAL AGENCY WAS NOT DISCLOSED, PLAINTIFF NOT ENTITLED TO COMMISSION, STATEMENT IN COMPLAINT THAT PLAINTIFF WAS A BROKER WAS A JUDICIAL ADMISSION, PRECLUDING ANY CLAIM PLAINTIFF WAS MERELY A FINDER (FIRST DEPT))/EVIDENCE (JUDICIAL ADMISSION, PLAINTIFF ACTED AS A REAL ESTATE BROKER FOR BOTH BUYER AND SELLER, DUAL AGENCY WAS NOT DISCLOSED, PLAINTIFF NOT ENTITLED TO COMMISSION, STATEMENT IN COMPLAINT THAT PLAINTIFF WAS A BROKER WAS A JUDICIAL ADMISSION, PRECLUDING ANY CLAIM PLAINTIFF WAS MERELY A FINDER (FIRST DEPT))/JUDICIAL ADMISSION (PLAINTIFF ACTED AS A REAL ESTATE BROKER FOR BOTH BUYER AND SELLER, DUAL AGENCY WAS NOT DISCLOSED, PLAINTIFF NOT ENTITLED TO COMMISSION, STATEMENT IN COMPLAINT THAT PLAINTIFF WAS A BROKER WAS A JUDICIAL ADMISSION, PRECLUDING ANY CLAIM PLAINTIFF WAS MERELY A FINDER (FIRST DEPT))/ADMISSION (JUDICIAL ADMISSION, PLAINTIFF ACTED AS A REAL ESTATE BROKER FOR BOTH BUYER AND SELLER, DUAL AGENCY WAS NOT DISCLOSED, PLAINTIFF NOT ENTITLED TO COMMISSION, STATEMENT IN COMPLAINT THAT PLAINTIFF WAS A BROKER WAS A JUDICIAL ADMISSION, PRECLUDING ANY CLAIM PLAINTIFF WAS MERELY A FINDER (FIRST DEPT))

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PLAINTIFF PEDESTRIAN ENTITLED TO SUMMARY JUDGMENT IN THIS BUS-PEDESTRIAN ACCIDENT CASE, EVEN IF THE CROSSING LIGHT CHANGED WHILE PLAINTIFF WAS CROSSING HE WAS ENTITLED TO PROCEED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this bus-pedestrian accident case should have been granted. The court noted that even if the cross signal changed while plaintiff was crossing, he was permitted to proceed once he started crossing:

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Plaintiff established his entitlement to partial summary judgment through his testimony that he was crossing the intersection within the crosswalk and with the light in his favor, when defendants’ bus struck him while making a left turn … .. The testimony of defendant bus driver does not contradict plaintiff’s testimony that he was in the crosswalk, since the driver did not see plaintiff until the moment of impact. The driver’s observation of a white crossing signal before commencing his turn also does not contradict plaintiff’s testimony that he started crossing with the light in his favor. …

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The court should not have considered the videotape footage defendants provided as defendants neither authenticated it nor even showed that it had any relevance to the accident at issue … . It indicates, at most, that it was raining. Even if it showed, as defendants claim, that the pedestrian cross signal changed as plaintiff was crossing, that would not help defendants, as plaintiff was permitted to proceed across the avenue, once he started crossing with the signal in his favor (see Vehicle and Traffic Law § 1112 [b], [c]…). Torres v Werner Bus Lines, Inc., 2018 NY Slip Op 00483, First Dept 1-25-18

NEGLIGENCE (BUS-PEDESTRIAN ACCIDENT, PLAINTIFF PEDESTRIAN ENTITLED TO SUMMARY JUDGMENT IN THIS BUS-PEDESTRIAN ACCIDENT CASE, EVEN IF THE CROSSING LIGHT CHANGED WHILE PLAINTIFF WAS CROSSING HE WAS ENTITLED TO PROCEED (FIRST DEPT))/VEHICLE AND TRAFFIC LAW  (BUS-PEDESTRIAN ACCIDENT, PLAINTIFF PEDESTRIAN ENTITLED TO SUMMARY JUDGMENT IN THIS BUS-PEDESTRIAN ACCIDENT CASE, EVEN IF THE CROSSING LIGHT CHANGED WHILE PLAINTIFF WAS CROSSING HE WAS ENTITLED TO PROCEED (FIRST DEPT))/TRAFFIC ACCIDENTS  (BUS-PEDESTRIAN ACCIDENT, PLAINTIFF PEDESTRIAN ENTITLED TO SUMMARY JUDGMENT IN THIS BUS-PEDESTRIAN ACCIDENT CASE, EVEN IF THE CROSSING LIGHT CHANGED WHILE PLAINTIFF WAS CROSSING HE WAS ENTITLED TO PROCEED (FIRST DEPT))/PEDESTRIANS (TRAFFIC ACCIDENTS, PLAINTIFF PEDESTRIAN ENTITLED TO SUMMARY JUDGMENT IN THIS BUS-PEDESTRIAN ACCIDENT CASE, EVEN IF THE CROSSING LIGHT CHANGED WHILE PLAINTIFF WAS CROSSING HE WAS ENTITLED TO PROCEED (FIRST DEPT))

TOW TRUCK DEFENDANTS FURNISHED THE CONDITION FOR THE REAR-END COLLISION BUT TOW TRUCK WAS NOT THE PROXIMATE CAUSE, TOW TRUCK DEFENDANTS MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined that defendant’s tow truck merely furnished the condition for the rear-end collision and was not the proximate cause. The tow truck driver was in the process of hooking up a car (a Jetta) to tow it off the expressway when the Jetta was struck from behind by an intoxicated driver (Ripoli) who had fallen asleep. Plaintiff was a passenger in the Jetta:

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Defendants-appellants are entitled to summary judgment, because the tow truck driver’s affirmative negligence, if any, did nothing more than furnish the condition or give rise to the occasion by which plaintiff’s injury was made possible… .. There is no allegation that their actions violated a traffic regulation and the record shows that the tow truck driver was in the process of securing the vehicle to tow it off the expressway when the accident happened.

Plaintiff’s assertion that the accident would not have occurred if the tow truck driver had placed additional flares or moved the ones that the police officers had placed, displayed cones or removed the Jetta from the location sooner is speculative and insufficient to raise an issue of fact, because it is undisputed that Ripoli fell asleep before his vehicle rear- ended the Jetta … . McLean v Ripoli, 2018 NY Slip Op 00461, First Dept 1-25-18

NEGLIGENCE (TRAFFIC ACCIDENTS, TOW TRUCK DEFENDANTS FURNISHED THE CONDITION FOR THE REAR-END COLLISION BUT WAS NOT THE PROXIMATE CAUSE, TOW TRUCK DEFENDANTS MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT))/TRAFFIC ACCIDENTS (TOW TRUCK DEFENDANTS FURNISHED THE CONDITION FOR THE REAR-END COLLISION BUT WAS NOT THE PROXIMATE CAUSE, TOW TRUCK DEFENDANTS MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT))/CONDITION FOR THE ACCIDENT (TRAFFIC ACCIDENTS, TOW TRUCK DEFENDANTS FURNISHED THE CONDITION FOR THE REAR-END COLLISION BUT WAS NOT THE PROXIMATE CAUSE, TOW TRUCK DEFENDANTS MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT))/PROXIMATE CAUSE  (TRAFFIC ACCIDENTS, TOW TRUCK DEFENDANTS FURNISHED THE CONDITION FOR THE REAR-END COLLISION BUT WAS NOT THE PROXIMATE CAUSE, TOW TRUCK DEFENDANTS MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT))

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QUESTION OF FACT WHETHER CITY CREATED THE ROADWAY SINKHOLE BY INADEQUATE REPAIR, COMPLAINT SHOULD NOT HAVE BEEN DISMISSED IN THIS TRAFFIC ACCIDENT CASE (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiffs had raised a question of fact whether the city created the dangerous condition, a sinkhole in the roadway, which caused plaintiffs injuries after a wheel on their police car went into the hole:

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… [P]laintiffs have met their burden of showing that there are triable issues of fact as to whether the City’s affirmative negligence created the defect … . Specifically, plaintiff’s testimony and affidavit demonstrate that the City attempted to repair the sinkhole on August 27, 2011. Moreover, the City has conceded based on the CAR report that it worked to fill the sinkhole on August 27, 2011 (eleven days prior to the accident) and August 28, 2011 (ten days prior to the accident). The affidavit of plaintiffs’ expert raises the issues of whether the City’s affirmative repair of the sinkhole negligently created a defective condition causing the repair to fail immediately after it was made. There is nothing in the record here to indicate that the dangerous condition in question developed over time … . Bania v City of New York, 2018 NY Slip Op 00470, First Dept 1-25-18

MUNICIPAL LAW (NEGLIGENCE, TRAFFIC ACCIDENTS, QUESTION OF FACT WHETHER CITY CREATED THE ROADWAY SINKHOLE BY INADEQUATE REPAIR, COMPLAINT SHOULD NOT HAVE BEEN DISMISSED IN THIS TRAFFIC ACCIDENT CASE (FIRST DEPT))/HIGHWAYS AND ROADS (MUNICIPAL LAW, TRAFFIC ACCIDENTS, NEGLIGENCE, QUESTION OF FACT WHETHER CITY CREATED THE ROADWAY SINKHOLE BY INADEQUATE REPAIR, COMPLAINT SHOULD NOT HAVE BEEN DISMISSED IN THIS TRAFFIC ACCIDENT CASE (FIRST DEPT))/SINKHOLES (MUNICIPAL LAW, TRAFFIC ACCIDENTS, NEGLIGENCE, QUESTION OF FACT WHETHER CITY CREATED THE ROADWAY SINKHOLE BY INADEQUATE REPAIR, COMPLAINT SHOULD NOT HAVE BEEN DISMISSED IN THIS TRAFFIC ACCIDENT CASE (FIRST DEPT))/TRAFFIC ACCIDENTS (SINKHOLES, MUNICIPAL LAW, NEGLIGENCE, QUESTION OF FACT WHETHER CITY CREATED THE ROADWAY SINKHOLE BY INADEQUATE REPAIR, COMPLAINT SHOULD NOT HAVE BEEN DISMISSED IN THIS TRAFFIC ACCIDENT CASE (FIRST DEPT))

UNDER THE MULTIPLE DWELLING LAW, LESSEE WAS NOT ENTITLED TO RENT FROM THE SUBTENANTS FOR THE PERIOD DURING WHICH THERE WAS NO CERTIFICATE OF OCCUPANCY (FIRST DEPT).

The First Department, reversing Supreme Court, determined that the subtenants (respondents), pursuant to the Multiple Dwelling Law, could not collect rent from the lessee (petitioner) for the period during which there was no certificate of occupancy:

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Petitioner was the net lessee of the third floor of a six-story building, a de facto multiple dwelling; the net lease provided, inter alia, that there was no permanent certificate of occupancy for either the building or the demised premises. In April 2013, petitioner brought this proceeding alleging that respondents, its subtenants, had failed to pay residential use and occupancy since January 2013. Affording the relevant statutory language its natural and ordinary meaning … , we conclude that the proceeding must be dismissed because petitioner was not entitled to collect rent from respondents.

For purposes of the Multiple Dwelling Law, an “owner” is broadly defined to include a “lessee” … . Respondents’ unit constituted a “dwelling” under the Multiple Dwelling Law [“any building or structure or portion thereof which is occupied in whole or in part as the home, residence or sleeping place of one or more human beings” (Multiple Dwelling Law 4[4]). The owner of a “dwelling or structure … occupied in whole or in part for human habitation in violation of [§ 301]” may not recover rent for the period during which there is no certificate of occupancy for “such premises” (Multiple Dwelling Law § 302[1][b]). Nor may the owner maintain an action or special proceeding for possession of the premises for nonpayment of “such rent” (id.). Thus, petitioner, as owner of respondents’ dwelling, was precluded from charging respondents rent or other remuneration while the building lacked a certificate of occupancy for residential use … . Matter of 49 Bleecker, Inc. v Gathien, 2018 NY Slip Op 00476, First Dept 1-25-18

LANDLORD-TENANT (UNDER THE MULTIPLE DWELLING LAW, LESSEE WAS NOT ENTITLED TO RENT FROM THE SUBTENANTS FOR THE PERIOD DURING WHICH THERE WAS NO CERTIFICATE OF OCCUPANCY (FIRST DEPT))/MULTIPLE DWELLING LAW (LANDLORD-TENANT, UNDER THE MULTIPLE DWELLING LAW, LESSEE WAS NOT ENTITLED TO RENT FROM THE SUBTENANTS FOR THE PERIOD DURING WHICH THERE WAS NO CERTIFICATE OF OCCUPANCY (FIRST DEPT))/CERTIFICATE OF OCCUPANCY (LANDLORD-TENANT, MULTIPLE DWELLING LAW,  LESSEE WAS NOT ENTITLED TO RENT FROM THE SUBTENANTS FOR THE PERIOD DURING WHICH THERE WAS NO CERTIFICATE OF OCCUPANCY (FIRST DEPT))/SUBTENANTS (UNDER THE MULTIPLE DWELLING LAW, LESSEE WAS NOT ENTITLED TO RENT FROM THE SUBTENANTS FOR THE PERIOD DURING WHICH THERE WAS NO CERTIFICATE OF OCCUPANCY (FIRST DEPT))

LANDLORD BROUGHT EJECTMENT CAUSE OF ACTION AGAINST RENT REGULATED TENANT FOR RENTING TO AIRBNB CUSTOMERS, THE EJECTMENT CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, modifying Supreme Court, determined there was no basis to dismiss the ejectment cause of action which was based upon the rent-regulated tenant’s renting to Airbnb customers:

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Plaintiff seeks to eject defendants based on their having illegally sublet rooms in their loft through the Airbnb website to numerous individuals, over a period of about two years, resulting in profits well in excess of the legal regulated rent. It is well settled that, when regulated tenants rent space on a short-term basis to transient individuals at rates higher than allowed by applicable regulations, that conduct is “in the nature of subletting rather than taking in roommates, and constitute[s] profiteering and commercialization of the premises,” which is an “incurable violation” … . Defendants do not dispute that tenants regulated pursuant to the Loft Law also are subject to eviction for profiteering … .

Since the alleged conduct is incurable, no notice to cure is required … . As for the adequacy of the predicate notice of termination, plaintiff served a notice under the terms of the expired lease, which carried over into the statutory tenancy and governed the amount of notice required when the tenant violates a substantial obligation of his tenancy or is alleged to have engaged in illegal conduct … . Aurora Assoc. LLC v Hennen, 2018 NY Slip Op 00465, First Dept 1-25-18

LANDLORD-TENANT (EJECTMENT, AIRBNB, LANDLORD BROUGHT EJECTMENT CAUSE OF ACTION AGAINST RENT REGULATED TENANT FOR RENTING TO AIRBNB CUSTOMERS, THE EJECTMENT CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT))/EJECTMENT (LANDLORD-TENANT, ARIBNB, LANDLORD BROUGHT EJECTMENT CAUSE OF ACTION AGAINST RENT REGULATED TENANT FOR RENTING TO AIRBNB CUSTOMERS, THE EJECTMENT CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT))/AIRBNB (EJECTMENT, LANDLORD BROUGHT EJECTMENT CAUSE OF ACTION AGAINST RENT REGULATED TENANT FOR RENTING TO AIRBNB CUSTOMERS, THE EJECTMENT CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT))/PROFITEERING (LANDLORD-TENANT, AIRBNB, EJECTIMENT, LANDLORD BROUGHT EJECTMENT CAUSE OF ACTION AGAINST RENT REGULATED TENANT FOR RENTING TO AIRBNB CUSTOMERS, THE EJECTMENT CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT))

PLAINTIFF PROPERLY AWARDED SUMMARY JUDGMENT IN THIS LABOR LAW 240(1) ACTION, HEAVY TRANSFORMER SHIFTED DOWNWARD STRIKING PLAINTIFF, NO SAFETY DEVICES PROVIDED (FIRST DEPT).

The First Department determined plaintiff was entitled to summary judgment in this Labor Law 240(1) action. Plaintiff was on a ladder working on a heavy suspended transformer when it shifted and struck him. Plaintiff demonstrated he was not provided with any adequate safety devices, and defendants did not demonstrate adequate safety devices were available:

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Plaintiff established prima facie his entitlement to the protections of Labor Law § 240(1) by submitting evidence that he was injured when a corner of an electrical transformer weighing hundreds of pounds and suspended from a ceiling shifted downward and struck him on the head as he was standing on a ladder working on it and that he had not been provided with any safety devices adequate to his task… .

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In opposition, defendants failed to raise an issue of fact as to their contention that plaintiff was the sole proximate cause of the accident. Plaintiff’s coworker testified that there were no readily available safety devices to assist him and plaintiff in their task… . While plaintiff’s foreman testified that he had given specific instructions to his workers about using wooden delivery pallets to prop up the transformer at the corner being worked on, he conceded that he did not know whether plaintiff was standing near enough to him to have heard these instructions … . In any event, defendants submitted no evidence that this improvised method was a suitable safety device … . Gericitano v Brookfield Props. OLP Co. LLC, 2018 NY Slip Op 00480, First Dept 1-25-18

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF PROPERLY AWARDED SUMMARY JUDGMENT IN THIS LABOR LAW 240(1) ACTION, HEAVY TRANSFORMER SHIFTED DOWNWARD STRIKING PLAINTIFF, NO SAFETY DEVICES PROVIDED (FIRST DEPT))/FALLING OBJECTS (LABOR LAW-CONSTRUCTION LAW, PLAINTIFF PROPERLY AWARDED SUMMARY JUDGMENT IN THIS LABOR LAW 240(1) ACTION, HEAVY TRANSFORMER SHIFTED DOWNWARD STRIKING PLAINTIFF, NO SAFETY DEVICES PROVIDED (FIRST DEPT))

QUESTION OF FACT WHETHER PLAINTIFF WAS COMPARATIVELY NEGLIGENT IN THIS LABOR LAW 241(6) ACTION, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, modifying Supreme Court, determined plaintiff’s motion for summary judgment in this Labor Law 241 (6) action should not have been granted because there was a question of fact about plaintiff’s comparative negligence:

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Plaintiff’s testimony that he slipped on water on the floor of the stairwell where he was working establishes prima facie a violation of Labor Law § 241(6) predicated on Industrial Code § 23-1.7(d) (“Slipping hazards”). In opposition, defendant, relying solely on speculative hearsay testimony (by another employee), failed to raise an issue of fact as to the way the accident occurred … .

While the record demonstrates defendant’s liability as a matter of law, an issue of fact exists as to negligence on plaintiff’s part … ,which could result in an apportionment of liability … . Plaintiff testified that, as he entered the stairwell, he was looking up to determine the location of the box through which he was to run cable, and that, while carrying a ladder in one hand, he attempted to descend the staircase without looking at the stairs or the landing in front of him. Luciano v New York City Hous. Auth., 2018 NY Slip Op 00473, First Dept 1-25-18

LABOR LAW-CONSTRUCTION LAW (QUESTION OF FACT WHETHER PLAINTIFF WAS COMPARATIVELY NEGLIGENT IN THIS LABOR LAW 241 (6) ACTION, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))

INSURER OF A BUS OBLIGATED TO DEFEND AND INDEMNIFY THE BUS COMPANY IN AN ACTION BROUGHT BY A PASSENGER WHO FELL ATTEMPTING TO PICK UP HER LUGGAGE OUTSIDE THE BUS (FIRST DEPT).

The First Department, reversing Supreme Court, determined the insurer of a Peter Pan bus was obligated to defend and indemnify the bus company in an action brought by a passenger who fell attempting to pick up her luggage outside the bus:

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The insurance policy issued by defendant to Peter Pan provides coverage for damages owed because of, inter alia, ” bodily injury’ … caused by an accident’ and resulting from the ownership, maintenance or use of a covered auto.'” Regardless of whether the plaintiff in the underlying action, having arrived at her destination on a Peter Pan bus and seen the driver unloading the passengers’ luggage, tripped over a suitcase while approaching her own suitcase or tripped on the curb while looking for her suitcase, her accident resulted from Peter Pan’s use of the bus, a covered auto, and defendant is obligated to defend and indemnify Peter Pan in the underlying action … . Peter Pan Bus Lines, Inc. v Hanover Ins. Co., 2018 NY Slip Op 00467, First Dept 1-25-18

INSURANCE LAW (INSURER OF A BUS OBLIGATED TO DEFEND AND INDEMNIFY THE BUS COMPANY IN AN ACTION BROUGHT BY A PASSENGER WHO FELL ATTEMPTING TO PICK UP HER LUGGAGE OUTSIDE THE BUS (FIRST DEPT))/BUSES (INSURANCE LAW, INSURER OF A BUS OBLIGATED TO DEFEND AND INDEMNIFY THE BUS COMPANY IN AN ACTION BROUGHT BY A PASSENGER WHO FELL ATTEMPTING TO PICK UP HER LUGGAGE OUTSIDE THE BUS (FIRST DEPT))/SLIP AND FALL (BUSES, INSURANCE LAW, INSURER OF A BUS OBLIGATED TO DEFEND AND INDEMNIFY THE BUS COMPANY IN AN ACTION BROUGHT BY A PASSENGER WHO FELL ATTEMPTING TO PICK UP HER LUGGAGE OUTSIDE THE BUS (FIRST DEPT))

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