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PROPERTY DEFENDANTS’ MOTION TO JOIN THE SLIP AND FALL ACTION WITH A MEDICAL MALPRACTICE ACTION STEMMING FROM THE SLIP AND FALL INJURY PROPERLY DENIED (SECOND DEPT).

The Second Department determined the property defendants’ motion to join the slip and fall action with a medical malpractice action stemming from the slip and fall injury was properly denied. Plaintiff had stepped in a rodent hole and subsequently sued hospitals for malpractice in the treatment of her foot injury:

“When actions involving a common question of law or fact are pending before a court, the court, upon motion, may order a joint trial of any or all the matters in issue” (CPLR 602[a]…). The determination of such a motion is addressed to the sound discretion of the trial court… . Denial of the motion may be warranted where common questions of law or fact are lacking … , where the actions involve dissimilar issues or disparate legal theories … , or where a joint trial would substantially prejudice an opposing party … or pose a risk of confusing the jury or rendering the litigation unwieldy … .

Here, the Supreme Court providently exercised its discretion in denying the property defendants’ motion for a joint trial given the limited commonality between the two actions, the disparate legal theories and dissimilar issues they involve, the very different procedural stages of the two actions at the time the motion was made, and the potential prejudice to the opposing parties as well as the risks of juror confusion and unwieldy litigation if a joint trial was granted … . Cromwell v CRP 482 Riverdale Ave., LLC, 2018 NY Slip Op 05137, Second Dept 7-11-18

​CIVIL PROCEDURE (PROPERTY DEFENDANTS’ MOTION TO JOIN THE SLIP AND FALL ACTION WITH A MEDICAL MALPRACTICE ACTION STEMMING FROM THE SLIP AND FALL INJURY PROPERLY DENIED (SECOND DEPT))/NEGLIGENCE (CIVIL PROCEDURE, JOINDER, PROPERTY DEFENDANTS’ MOTION TO JOIN THE SLIP AND FALL ACTION WITH A MEDICAL MALPRACTICE ACTION STEMMING FROM THE SLIP AND FALL INJURY PROPERLY DENIED (SECOND DEPT))/MEDICAL MALPRACTICE  (CIVIL PROCEDURE, JOINDER, PROPERTY DEFENDANTS’ MOTION TO JOIN THE SLIP AND FALL ACTION WITH A MEDICAL MALPRACTICE ACTION STEMMING FROM THE SLIP AND FALL INJURY PROPERLY DENIED (SECOND DEPT))/CPLR 602  (PROPERTY DEFENDANTS’ MOTION TO JOIN THE SLIP AND FALL ACTION WITH A MEDICAL MALPRACTICE ACTION STEMMING FROM THE SLIP AND FALL INJURY PROPERLY DENIED (SECOND DEPT))/JOINDER (CIVIL PROCEDURE, (PROPERTY DEFENDANTS’ MOTION TO JOIN THE SLIP AND FALL ACTION WITH A MEDICAL MALPRACTICE ACTION STEMMING FROM THE SLIP AND FALL INJURY PROPERLY DENIED (SECOND DEPT))/SLIP AND FALL (CIVIL PROCEDURE, JOINDER, PROPERTY DEFENDANTS’ MOTION TO JOIN THE SLIP AND FALL ACTION WITH A MEDICAL MALPRACTICE ACTION STEMMING FROM THE SLIP AND FALL INJURY PROPERLY DENIED (SECOND DEPT))

PLAINTIFF, WHO LOST HIS JOB AFTER HIS MORTGAGE HAD BEEN APPROVED AND THE MORTGAGE CONTINGENCY IN THE PURCHASE CONTRACT WAS SATISFIED, WAS ENTITLED TO THE RETURN OF THE DEPOSIT, THE REVOCATION OF THE MORTGAGE COMMITMENT WAS NOT DUE TO BAD FAITH ON PLAINTIFF’S PART (SECOND DEPT).

The Second Department determined plaintiff was entitled to return of his deposit in this real estate transaction. The contract allowed the return of the deposit if plaintiff did not qualify for a mortgage within a specified period of time. Plaintiff did qualify within the allowed time. However, he subsequently lost his job and could not obtain the mortgage. Plaintiff asked for the deposit but defendant refused:

” A mortgage contingency clause is construed to create a condition precedent to the contract of sale'” … . “The purchaser is entitled to return of the down payment where the mortgage contingency clause unequivocally provides for its return upon the purchaser’s inability to obtain a mortgage commitment within the contingency period”… . “However, when the lender revokes the mortgage commitment after the contingency period has elapsed, the contractual provision relating to failure to obtain an initial commitment is inoperable, and the question becomes whether the lender’s revocation was attributable to any bad faith on the part of the purchaser”… .

Here, the plaintiff established his prima facie entitlement to judgment as a matter of law for the return of his down payment. He submitted evidence that he acted in good faith in obtaining a mortgage commitment, that the commitment was subject to re-verification of employment, and that the subsequent revocation of the commitment was not attributable to any bad faith on his part … . Chahalis v Roberta Ebert Irrevocable Trust, 2018 NY Slip Op 05135, Second Dept 7-11-18

REAL ESTATE (PLAINTIFF, WHO LOST HIS JOB AFTER HIS MORTGAGE HAD BEEN APPROVED AND THE MORTGAGE CONTINGENCY IN THE PURCHASE CONTRACT WAS SATISFIED, WAS ENTITLED TO THE RETURN OF THE DEPOSIT, THE REVOCATION OF THE MORTGAGE COMMITMENT WAS NOT DUE TO BAD FAITH ON PLAINTIFF’S PART (SECOND DEPT))/DEPOSIT (REAL ESTATE, PLAINTIFF, WHO LOST HIS JOB AFTER HIS MORTGAGE HAD BEEN APPROVED AND THE MORTGAGE CONTINGENCY IN THE PURCHASE CONTRACT WAS SATISFIED, WAS ENTITLED TO THE RETURN OF THE DEPOSIT, THE REVOCATION OF THE MORTGAGE COMMITMENT WAS NOT DUE TO BAD FAITH ON PLAINTIFF’S PART (SECOND DEPT))/MORTGAGE COMMITMENT (REAL ESTATE, PLAINTIFF, WHO LOST HIS JOB AFTER HIS MORTGAGE HAD BEEN APPROVED AND THE MORTGAGE CONTINGENCY IN THE PURCHASE CONTRACT WAS SATISFIED, WAS ENTITLED TO THE RETURN OF THE DEPOSIT, THE REVOCATION OF THE MORTGAGE COMMITMENT WAS NOT DUE TO BAD FAITH ON PLAINTIFF’S PART (SECOND DEPT))

$1.5 MILLION VERDICT AFFIRMED, PLAINTIFF, A 72-YEAR-OLD WOMAN, WAS INJURED WHEN THE BUS SHE HAD JUST BOARDED ACCELERATED QUICKLY CAUSING HER TO FALL, INJURING HER HEAD, BACK, NERVES AND KNEE (SECOND DEPT).

The Second Department upheld the $1.5 million verdict in favor of plaintiff, a 72-year-old woman who alleged the bus driver accelerated quickly just after plaintiff got on the bus causing her to fall and sustain disk, nerve, knee and head injuries:

We … agree with the Supreme Court’s determination to deny that branch of the defendant’s motion which was for summary judgment dismissing the complaint on the ground that it was not liable for the plaintiff’s injuries. The evidence submitted by the defendant in support of that branch of the motion failed to eliminate triable issues of fact as to whether the movement of the bus at issue was unusual and violent … . Since the defendant did not sustain its prima facie burden, it is unnecessary to determine whether the papers submitted by the plaintiff in opposition were sufficient to raise a triable issue of fact … . …

The award of damages for past and future pain and suffering did not deviate materially from what would be reasonable compensation (see CPLR 5501[c]…). Castillo v MTA Bus Co.. 2018 NY Slip Op 05134. Second Dept 7-11-18

NEGLIGENCE (BUSES, $1.5 MILLION VERDICT AFFIRMED, PLAINTIFF, A 72-YEAR-OLD WOMAN, WAS INJURED WHEN THE BUS SHE HAD JUST BOARDED ACCELERATED QUICKLY CAUSING HER TO FALL, INJURING HER HEAD, BACK, NERVES AND KNEE (SECOND DEPT))/BUSES (NEGLIGENCE, $1.5 MILLION VERDICT AFFIRMED, PLAINTIFF, A 72-YEAR-OLD WOMAN, WAS INJURED WHEN THE BUS SHE HAD JUST BOARDED ACCELERATED QUICKLY CAUSING HER TO FALL, INJURING HER HEAD, BACK, NERVES AND KNEE (SECOND DEPT))

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RECORDS PERTAINING TO PLAINTIFF’S RECEIPT OF NO-FAULT BENEFITS ARE DISCOVERABLE AND MUST BE TURNED OVER TO THE DEFENDANT, EVEN IF PLAINTIFF IS NOT SEEKING RECOVERY OF UNREIMBURSED SPECIAL DAMAGES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff was required to turn over to defendant records pertaining to no-fault benefits in this car accident case. Plaintiff had argued the records were not discoverable because plaintiff was not seeking to recover unreimbursed special damages:

CPLR 3101(a) provides, in relevant part, that “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof.” “The words, material and necessary,’ are . . . to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity”… .

In an action relating to a motor vehicle accident, a plaintiff’s medical records relating to treatment following the accident are material and necessary to the defense of a plaintiff’s claim to having sustained a serious injury within the meaning of Insurance Law § 5102, in addition to any claim to recover damages for loss of enjoyment of life … . Accordingly, since the plaintiff’s no-fault records are material and necessary to the defense of this action, the Supreme Court should have denied the plaintiff’s motion for a protective order … .

The plaintiff improperly relies upon CPLR 4545(a) to support his contention that collateral source records are not discoverable where a plaintiff is not seeking to recover unreimbursed special damages. CPLR 4545(a) governs the admissibilityof evidence to establish that damages have been or will be covered in whole or part by a collateral source. By contrast, in the context of discovery, “[a]ny matter which may lead to the discovery of admissible proof is discoverable, as is any matter which bears upon a defense, even if the facts themselves are not admissible” … . Moreover, whether any of the plaintiff’s no-fault records are admissible for purposes other than for showing collateral source payment is not before us at this stage of the action. Cajamarca v Osatuk, 2018 NY Slip Op 05133, Second Dept 7-11-18

CIVIL PROCEDURE (NEGLIGENCE, DISCOVERY, RECORDS PERTAINING TO PLAINTIFF’S RECEIPT OF NO-FAULT BENEFITS ARE DISCOVERABLE AND MUST BE TURNED OVER TO THE DEFENDANT, EVEN IF PLAINTIFF IS NOT SEEKING REIMBURSEMENT FOR UNREIMBURSED SPECIAL DAMAGES (SECOND DEPT))/NEGLIGENCE (CIVIL PROCEDURE, DISCOVERY, RECORDS PERTAINING TO PLAINTIFF’S RECEIPT OF NO-FAULT BENEFITS ARE DISCOVERABLE AND MUST BE TURNED OVER TO THE DEFENDANT, EVEN IF PLAINTIFF IS NOT SEEKING REIMBURSEMENT FOR UNREIMBURSED SPECIAL DAMAGES (SECOND DEPT))/INSURANCE LAW (NO-FAULT, NEGLIGENCE, DISCOVERY, RECORDS PERTAINING TO PLAINTIFF’S RECEIPT OF NO-FAULT BENEFITS ARE DISCOVERABLE AND MUST BE TURNED OVER TO THE DEFENDANT, EVEN IF PLAINTIFF IS NOT SEEKING REIMBURSEMENT FOR UNREIMBURSED SPECIAL DAMAGES (SECOND DEPT))/NO-FAULT BENEFITS (NEGLIGENCE, DISCOVERY, RECORDS PERTAINING TO PLAINTIFF’S RECEIPT OF NO-FAULT BENEFITS ARE DISCOVERABLE AND MUST BE TURNED OVER TO THE DEFENDANT, EVEN IF PLAINTIFF IS NOT SEEKING REIMBURSEMENT FOR UNREIMBURSED SPECIAL DAMAGES (SECOND DEPT))/DISCOVERY (NO-FAULT BENEFITS,  RECORDS PERTAINING TO PLAINTIFF’S RECEIPT OF NO-FAULT BENEFITS ARE DISCOVERABLE AND MUST BE TURNED OVER TO THE DEFENDANT, EVEN IF PLAINTIFF IS NOT SEEKING REIMBURSEMENT FOR UNREIMBURSED SPECIAL DAMAGES (SECOND DEPT))/TRAFFIC ACCIDENTS (DISCOVERY, RECORDS PERTAINING TO PLAINTIFF’S RECEIPT OF NO-FAULT BENEFITS ARE DISCOVERABLE AND MUST BE TURNED OVER TO THE DEFENDANT, EVEN IF PLAINTIFF IS NOT SEEKING REIMBURSEMENT FOR UNREIMBURSED SPECIAL DAMAGES (SECOND DEPT))

PLAINTIFFS DID NOT ALLEGE THAT DEFENDANT CREATED THE DANGEROUS CONDITION AND DEFENDANT DEMONSTRATED IT DID NOT HAVE NOTICE OF THE CONDITION, THEREFORE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS ICE AND SNOW SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this ice and snow slip and fall case should have been granted. Plaintiffs did not alleged defendant created the dangerous condition and defendant demonstrated it did not have actual or constructive notice of the condition:

Here, the plaintiffs did not allege that the defendant created the ice condition. By submitting the deposition testimony of the director of the preschool and the injured plaintiff, the defendant established, prima facie, that it did not have actual or constructive notice of the alleged ice that caused the plaintiff to fall … . The preschool director testified that she entered the building through the rear entrance about 90 minutes prior to the incident, and she did not see any ice on the ground. The injured plaintiff testified that she did not see the ice before she fell. In opposition, the plaintiffs failed to raise a triable issue of fact. General awareness that snow or ice may be present during winter months was legally insufficient to constitute notice of the particular condition that caused the injured plaintiff’s fall … . Bombino-Munroe v Church of St. Bernard, 2018 NY Slip Op 05131, Second Dept 7-11-18

NEGLIGENCE (PLAINTIFFS DID NOT ALLEGE THAT DEFENDANT CREATED THE DANGEROUS CONDITION AND DEFENDANT DEMONSTRATED IT DID NOT HAVE NOTICE OF THE CONDITION, THEREFORE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS ICE AND SNOW SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (FIRST DEPT))/SLIP AND FALL (PLAINTIFFS DID NOT ALLEGE THAT DEFENDANT CREATED THE DANGEROUS CONDITION AND DEFENDANT DEMONSTRATED IT DID NOT HAVE NOTICE OF THE CONDITION, THEREFORE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS ICE AND SNOW SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (FIRST DEPT))

THE FACT THAT DEFENDANT’S REPRESENTATIVE’S SIGNATURE AND THE JURAT APPEARED ON AN OTHERWISE BLANK PAGE SEPARATE FROM THE AFFIDAVIT WAS NOT A GROUND FOR DENIAL OF DEFENDANT’S UNOPPOSED MOTION FOR SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s unopposed motion for summary judgment should not have been denied on the ground that defendant’s representative’s signature and the jurat appeared on a page separate from the rest of defendant’s affidavit:

The Supreme Court denied the motion on the ground that, in an affidavit of Charles Dunne, an authorized representative of the defendant, on which the defendant primarily relied in support of its motion, Dunne’s signature and the jurat appeared on a separate, otherwise blank page. The defendant appeals.

The Supreme Court erred in denying the defendant’s unopposed motion on the ground that Dunne’s affidavit was not properly signed. The fact that Dunne’s signature and the jurat appeared on a page separate from the rest of the affidavit did not render it inadmissible. If anything, the separate signature page amounted to an irregularity that the court should have disregarded, as doing so did not prejudice the plaintiff (see CPLR 2001…), which was deemed to have waived the issue by failing to timely raise it after service of the defendant’s motion papers … . Status Gen. Dev., Inc. v 501 Broadway Partners, LLC, 2018 NY Slip Op 05217, Second Dept 7-11-18

​CIVIL PROCEDURE (THE FACT THAT DEFENDANT’S REPRESENTATIVE’S SIGNATURE AND THE JURAT APPEARED ON AN OTHERWISE BLANK PAGE SEPARATE FROM THE AFFIDAVIT WAS NOT A GROUND FOR DENIAL OF DEFENDANT’S UNOPPOSED MOTION FOR SUMMARY JUDGMENT (SECOND DEPT))/AFFIDAVITS (CIVIL PROCEDURE, THE FACT THAT DEFENDANT’S REPRESENTATIVE’S SIGNATURE AND THE JURAT APPEARED ON AN OTHERWISE BLANK PAGE SEPARATE FROM THE AFFIDAVIT WAS NOT A GROUND FOR DENIAL OF DEFENDANT’S UNOPPOSED MOTION FOR SUMMARY JUDGMENT (SECOND DEPT))/CPLR 2001 (THE FACT THAT DEFENDANT’S REPRESENTATIVE’S SIGNATURE AND THE JURAT APPEARED ON AN OTHERWISE BLANK PAGE SEPARATE FROM THE AFFIDAVIT WAS NOT A GROUND FOR DENIAL OF DEFENDANT’S UNOPPOSED MOTION FOR SUMMARY JUDGMENT (SECOND DEPT))/SUMMARY JUDGMENT (CIVIL PROCEDURE, THE FACT THAT DEFENDANT’S REPRESENTATIVE’S SIGNATURE AND THE JURAT APPEARED ON AN OTHERWISE BLANK PAGE SEPARATE FROM THE AFFIDAVIT WAS NOT A GROUND FOR DENIAL OF DEFENDANT’S UNOPPOSED MOTION FOR SUMMARY JUDGMENT (SECOND DEPT))/JURAT (CIVIL PROCEDURE, THE FACT THAT DEFENDANT’S REPRESENTATIVE’S SIGNATURE AND THE JURAT APPEARED ON AN OTHERWISE BLANK PAGE SEPARATE FROM THE AFFIDAVIT WAS NOT A GROUND FOR DENIAL OF DEFENDANT’S UNOPPOSED MOTION FOR SUMMARY JUDGMENT (SECOND DEPT))

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CPLR 311-A REQUIREMENTS FOR SERVICE OF PROCESS ON A LIMITED LIABILITY COMPANY NOT MET, COURT DID NOT OBTAIN JURISDICTION OVER DEFENDANT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff did not comply with the CPLR requirements for service of a summons and complaint upon a limited liability company and the court did not obtain jurisdiction over the defendant:

Here, the plaintiff commenced the action by the filing of a summons and verified complaint on September 20, 2016. The affirmation of personal service executed by the plaintiff’s counsel stated that on September 24, 2016, at the defendant’s store located in Hicksville, he personally served the defendant with a copy of the summons and complaint by delivering it to “JANE DOE, A PERSON WHO REFUSED TO PROVIDE NAME.” Although this attempt at service occurred within 120 days after the commencement of the action, the defendant correctly contends that the manner of service failed to comply with the requirements of CPLR 311-a, which provides, as relevant here, that personal service upon a limited liability company shall be made by delivering a copy personally to any member or manager of the company, any agent authorized to receive process, or any other person designated by the company to receive process. The defendant, by its evidentiary submissions, demonstrated that the individual purportedly served was not authorized to receive process on behalf of the defendant, and thus, jurisdiction over the defendant was not obtained … . Pinzon v IKEA N.Y., LLC, 2018 NY Slip Op 05213, Second Dept 7-11-18

CIVIL PROCEDURE (CPLR 311-A REQUIREMENTS FOR SERVICE OF PROCESS ON A LIMITED LIABILITY COMPANY NOT MET, COURT DID NOT OBTAIN JURISDICTION OVER DEFENDANT (SECOND DEPT))/CPLR 311-A (CPLR 311-A REQUIREMENTS FOR SERVICE OF PROCESS ON A LIMITED LIABILITY COMPANY NOT MET, COURT DID NOT OBTAIN JURISDICTION OVER DEFENDANT (SECOND DEPT))/LIMITED LIABILITY COMPANY (CPLR 311-A REQUIREMENTS FOR SERVICE OF PROCESS ON A LIMITED LIABILITY COMPANY NOT MET, COURT DID NOT OBTAIN JURISDICTION OVER DEFENDANT (SECOND DEPT))/JURISDICTION  (CPLR 311-A REQUIREMENTS FOR SERVICE OF PROCESS ON A LIMITED LIABILITY COMPANY NOT MET, COURT DID NOT OBTAIN JURISDICTION OVER DEFENDANT (SECOND DEPT))

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INSUFFICIENT EVIDENCE TO SUPPORT ASSESSMENT OF POINTS FOR SUBSTANCE ABUSE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the SORA court assessment of points for substance abuse was not supported by the evidence:

Assessment of points under risk factor 11 may be appropriate if the offender has a “history” of substance abuse or if the offender “was abusing drugs and or alcohol at the time of the offense” … . Here, the People did not meet their burden of proving the facts underlying the disputed point assessment by clear and convincing evidence … . The presentence report contained only ambiguous information about the extent of the defendant’s use of alcohol and marijuana between the ages of 16 and 20, at least 7 years before the sex offense at issue in this proceeding, and no information about the defendant’s use of those substances in the 7 years before the sex offense. Moreover, the evidence at the hearing did not establish that the defendant abused or was under the influence of alcohol or marijuana at the time of the offense … . People v Trotter, 2018 NY Slip Op 05211, Second Dept 7-11-16

CRIMINAL LAW (SEX OFFENDER REGISTRATION ACT (SORA), INSUFFICIENT EVIDENCE TO SUPPORT ASSESSMENT OF POINTS FOR SUBSTANCE ABUSE (SECOND DEPT))/SEX OFFENDER REGISTRATION ACT (SORA) ( INSUFFICIENT EVIDENCE TO SUPPORT ASSESSMENT OF POINTS FOR SUBSTANCE ABUSE (SECOND DEPT))/SUBSTANCE ABUSE (SEX OFFENDER REGISTRATION ACT (SORA), INSUFFICIENT EVIDENCE TO SUPPORT ASSESSMENT OF POINTS FOR SUBSTANCE ABUSE (SECOND DEPT))

PLAINTIFF, A HOMEOWNER WHOSE COMPANY HIRED DEFENDANT SUBCONTRACTOR TO WORK AT PLAINTIFF’S HOME, WAS A PROPER PLAINTIFF UNDER LABOR LAW 240 (1) AND 241 (6), QUESTIONS OF FACT WHETHER DEFENDANT WAS IN CONTROL OF THE WORK SITE AND HAD BEEN DELEGATED SITE SAFETY RESPONSIBILITIES (SECOND DEPT).

The Second Department determined plaintiff was a proper plaintiff pursuant to Labor Law 240 (1) and 241 (6). Plaintiff owned a single family home and plaintiff’s company hired defendant subcontractor to work on plaintiff’s property. Plaintiff was inspecting defendant’s work when he slipped and fill on oil which allegedly came from defendant’s equipment. In addition, the Second Department determined there were questions of fact whether defendant had control of the work site and was delegated safety responsibilities:

Labor Law § 240(1) requires that persons “employed in,” inter alia, the “alteration” of a building be provided with proper protective devices. Labor Law § 241(6) requires contractors and owners and their agents who are performing excavation work to comply with the provisions of the Industrial Code to protect “the persons employed therein or lawfully frequenting such places.” “Employee” is defined in Labor Law § 2(5) as “a mechanic, workingman or laborer working for another for hire.” A plaintiff who seeks to recover under Labor Law §§ 240(1) and 241(6) must show that he or she was both permitted to work on a building or structure and was hired by someone … . Those provisions may apply to the president of the general contractor for the project, who is inspecting work performed by subcontractors … . Inspecting the work on behalf of a general contractor is a protected activity covered by these Labor Law provision … . …

Here, the plaintiff alleged that the defendant was working alone at the site and the plaintiff was merely on-site to inspect the progress of the work. The plaintiff further claims that he “did not direct or control the work . . . and played no role in implementing safety procedures or taking safety measures,” since safety measures were in the exclusive control of the defendant. Thus, although the defendant does not own the property and did not appear to be acting as a general contractor, there are triable issues of fact as to whether the defendant could be liable under Labor Law §§ 240(1) and 241(6) on the ground that it had control of the work site and was delegated the duty to enforce safety protocols at the time the accident occurred. Eliassian v G.F. Constr., Inc., 2018 NY Slip Op 05020, Second Dept 7-5-18

LABOR LAW-CONSTRUCTION LAW PLAINTIFF, A HOMEOWNER WHOSE COMPANY HIRED DEFENDANT SUBCONTRACTOR TO WORK AT PLAINTIFF’S HOME, WAS A PROPER PLAINTIFF UNDER LABOR LAW 240 (1) AND 241 (6), QUESTIONS OF FACT WHETHER DEFENDANT WAS IN CONTROL OF THE WORK SITE AND HAD BEEN DELEGATED SITE SAFETY RESPONSIBILITIES (SECOND DEPT))

FEE-SHARING AGREEMENT VIOLATED JUDICIARY LAW 491 AND COULD NOT BE ENFORCED BY A COURT (SECOND DEPT).

The Second Department determined the fee sharing agreement violated Judiciary Law 491 and could not be enforced by a court:

With respect to the merits of the appeal, Judiciary Law § 491 prohibits any person, partnership, or corporation from sharing any fee or compensation charged or received by an attorney-at-law, in consideration of having placed in the hands of such attorney-at-law a claim or demand of any kind … .

Under the purported fee-sharing agreement, the plaintiffs would provide the defendant attorneys with proprietary information regarding potential clients, investigate claims, interview potential plaintiffs, and otherwise assist with litigation. In exchange, the defendant attorneys would pay the plaintiffs 20% of their fee for each case. This purported fee-sharing agreement whereby the plaintiffs attempt to recover from the defendant attorneys is illegal, and the plaintiffs are proscribed from seeking the assistance of the courts in enforcing it … . Ballan v Sirota, 2018 NY Slip Op 05014, Second Dept 7-5-18

​ATTORNEYS (FEE-SHARING, FEE-SHARING AGREEMENT VIOLATED JUDICIARY LAW 491 AND COULD NOT BE ENFORCED BY A COURT (SECOND DEPT))/FEE-SHARING AGREEMENT (ATTORNEYS, FEE-SHARING AGREEMENT VIOLATED JUDICIARY LAW 491 AND COULD NOT BE ENFORCED BY A COURT (SECOND DEPT))/JUDICIARY LAW 491 (ATTORNEYS, FEE-SHARING AGREEMENT VIOLATED JUDICIARY LAW 491 AND COULD NOT BE ENFORCED BY A COURT (SECOND DEPT))

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