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Decisions

Pre-Answer Dismissal Obtained In Favor Subcontractor on Labor Law Claim   

In Neylon v. Gilbane Building Company, et al., a complete dismissal of an action for personal injuries arising from alleged violations of the Labor Law was obtained by Charles Kerr, Esq. in a pre-answer motion to dismisss  The plaintiff claimed he was injured when a metal stud lacerated his arm while he was inspecting water valves in an access panel in the bathroom of a building. 

Through documentary evidence that MDAFP's client did not order or install the subject access panel in connection with its work at the building, nor did it frame the cut out in the bathroom wall which contained the access panel that caused plaintiff's injuries, entitlement to dismissal was established on behalf of our client. 


Summary Judgment Obtained In Favor Of Homeowner's Association On Defective Ramp Claim   

In Enz v. Bretton Woods Homeowners Association, Inc., et al., summary judgment was obtained by Ira Goldstein, Esq.  This case involves a trip and fall accident on a defective wooden parking lot ramp outside of plaintiff’s condominium unit in Suffolk County. The wooden ramp boards were allegedly uneven and stuck up. As a result of the accident, plaintiff alleges that she sustained a fracture of the left ankle and underwent surgery.

We successfully argued that the homeowner’s association at the condominium complex had no liability for the alleged condition since it did not own and was not responsible for repairing or maintaining the ramp or the alleged condition.  As such, it was established that the homeowner's association owed no legal duty to plaintiff in the first instance, even though the HOA performed snow removal in the parking lot into which the ramp led.  Rather, the Court agreed with our contention that the co-defendant owned the subject location, including the subject ramp, and was responsible for maintaining and repairing same. 

 

Summary Judgment Obtained On Application Of Heightened Standard Under VTL 1103

 

In Bellantoni v. William H. Avery and Town of Tarrytown, summary judgment was obtained by Amanda Zefi, Esq.  The Court held that it could not be said that defendant Avery was not “actually engaged in work on a highway” merely because he briefly exited the jurisdictional boundaries of Tarrytown to make a U-turn to return to his assigned route. The Court also noted that defendant Avery was actively plowing and salting the roadway when the accident occurred, as evidenced by the photographs of the accident scene and Avery’s affidavit. The Court agreed with our alternative argument that Defendants would still be entitled to the heightened standard even if defendant Avery was not actively plowing because “Avery need not be so immediately and continuously engaged in work to qualify for the exemption.” Applying the heightened standard afforded by VTL 1103(b), the Court concluded that “the record contains no evidence from which a rational jury could conclude that Avery acted recklessly.” Accordingly, Plaintiff’s Complaint was dismissed.

 

No Probable Cause Determination Obtained From State Division of Human Rights

In Topaz v. Wyandanch Union Free School District, a No Probable Cause Determination was obtained by Mari Isakov from the State Division of Human Rights on a matter where our firm defended an employer in connection with a complaint of discrimination and harassment  brought by an employee who alleged that she has been subject to disciplinary action, denied leave time, and harassed on the basis of her race, national origin, and predisposing genetic characteristics.  The Division analyzed our Position Statement and evidence provided in support of our client to determine whether there is probable cause to believe that unlawful discrimination has occurred pursuant to Executive Law, art. 15 (Human Rights Law) sec. 296.1(h).  The Division determined that some of the complainant’s allegations are time-barred and the basis of ‘predisposing genetic characteristic’ is improperly alleged.  Moreover, the Division determined that out of those allegations which are not time-barred, that there was no evidence in the record to sustain how the complainant suffered or how respondent’s conduct gives rise to discrimination.  The Division cited to precedent that mere belief of perception of being subjected to discrimination or retaliation is insufficient to sustain a claim for any of the allegations made by complainant.  The Division held that the complainant’s annual performance reviews do not constitute adverse employment action.  Moreover, respondent provided evidence attesting to granting leave to complainant and when complainant tried to rebut the same, the Division did not find her argument credible as it is not discriminatory to be required to work in accordance with the previously modified schedule. Additionally, the Division stated that complainant has not established the reason for being directed to use a “quiet tone of voice” and to walk quietly in the hallways as discriminatory or harassing, and the complainant has not established that respondent’s reasoning is pretextual, when respondent proffers that these areas are in need of correction as being akin to “basic rules of office etiquette applied to all staff in the school.”   Thus, the Division did not find evidence of a discriminatory animus present in any of the respondent’s actions as alleged by the complainant.


 

No Probable Cause Determination Obtained From State Division of Human Rights

In Luna v. Wyandanch Union Free School District, a No Probable Cause Determination was obtained by Mari Isakov from the State Division of Human Rights on a matter where our firm defended an employer in connection with a complaint of discrimination, harassment  and retaliation brought by a employee when he was not promoted to a permanent role of Head Custodian, while serving in a role of  Interim Head Custodian for 3 and ½ months . The complainant alleged that he was denied a promotion on the basis of his race and national origin, and was retaliated against because he filed a union grievance.  The Division analyzed our Position Statement and evidence provided in support of our client to determine whether there is probable cause to believe that unlawful discrimination has occurred pursuant to Executive Law, art. 15 (Human Rights Law) sec. 296.1(h).  The Division determined and cited to precedent that mere belief of perception of being subjected to discrimination or retaliation is insufficient to sustain a claim for either.  The Division determined that there was no support for the complainant’s allegations.  Specifically, the complainant failed to complete approximately 11 mandatory trainings, failed to attend mandatory meetings, used profanity in the workplace several times, and failed to remedy hazardous situations while serving in the Interim Head Custodian role.  Thus, the investigation revealed that complainant was not permanently promoted to the position of Head Custodian because he lacked the appropriate qualifications for this role.


Summary Judgment Obtained on Threshold Serious Injury

In Baptiste v. The New York City Transit Authority, et al. (710448/2018), summary judgment was obtained by Gail Karan, dismissing the Plaintiff's Complaint as Plaintiff did not sustain a serious injury pursuant to the Insurance Law.  Based upon an Independent Medical Examination and Plaintiff's own testimony, it was demonstrated that Plaintiff exhibited no range of motion restrictions, missed no time from work, did not have any emergency or ambulance treatment, and only attended physical therapy without any other treatment.  The Court further found that Plaintiff in opposition failed to raise an issue of fact, as their doctor's report relied upon failed to identify how ranges of motion were measured and failed to explain the five year gap in treatment prior to the exam upon which the report was based.  

Summary Judgment Obtained on Application of the Espinal Doctrine

In House v. Gerges Corp. (603205/2021), summary judgment was obtained by Ira Goldstein, where our client was found to have no liability for a plaintiff’s trip and fall over an expansion joint in a parking garage. We established through our motion that our client, which operated the parking garage through a contract with the LIRR, did not own the garage and was not responsible for structural repairs. The Court agreed that our client could not be responsible to the plaintiff by virtue of a contract with a different entity, and that none of the Espinal exceptions applied.

 

Summary Judgment Obtained in Order that Expands the Scope of Prior Written Notice

In Langsam v. Consolidated Edison of New York, Inc., et al. (58990/2019), summary judgment was obtained by Amanda Zefi, further expanding the definition of a “sidewalk” as defined in Village Law Section 6-628, where plaintiff tripped over a guy wire located in a Village-owned park/plaza. Specifically, the Court held that plaintiff was required to establish that the Village of Pleasantville had prior written notice of the defect because the area, even if characterized as a park, served the functional purpose of a sidewalk. This Decision, issued by the Honorable Alexandra D. Murphy of Supreme Court, Westchester County, constitutes an expansion of Groninger v. Village of Mamaroneck, which held that a parking lot serves the “functional purpose” of a ”highway,” and Morzello v. Village of Briarcliff Manor, holding that a walkway leading from a parking lot to a municipal recreation center is subject to the prior written notice statute. In addition, Judge Murphy agreed with our arguments that the guy wire constituted an “obstruction” under the prior written notice statute. As Plaintiff failed to establish the applicability of an exception of the prior written notice statute, summary judgment was awarded to the Village of Pleasantville.

 



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