technology leads to improvements in venue safety and how far will

continued on page �continued on page �

How Far Will A Release Go?

By Gail L. Ritzert

In law school, one of my professors, well-known civil practice expert David

Siegel, provided sage advice when he instructed us about the “SEC” doctrine: learn from “someone else’s case.” In our practice, we spend a great deal of time negotiating the resolution of cases. These negotiations often include the alteration of the “standard” release. In a recent decision by New York’s Ap-pellate Division, Third Department, the Court hammered home the need to ensure that the terms of the resolution are accurately reflected in the closing documents.

In Caruso v. Northeast Emergency Medical Associate, P.C., 54 A.D.3d 524, �62 N.Y.S.2d �6� (3d Dep’t 200�), the Appellate Division was asked to decide whether the release executed by the plaintiff was unambiguous, thereby requiring its enforcement to bar the plaintiff’s claim for indemnifica-tion, which was specifically assigned to the plaintiff. The plaintiff had originally commenced a medical malpractice action against Ellis Hospital and Alex Pasquariello, M.D., to recover for brain

Technology Leads to Improvements in Venue Safety and Security, Lessening Legal ExposureBy Carla Varriale and Randy Wingate

Whether it is a fan getting hit by a line drive or a spectator suffering a heart

attack at a football game, American sports is increasingly littered with examples of incidents that befall spectators at sporting events.

Appropriately, there is significant concern any time you bring large numbers of people together for an event. That’s particularly true when you add the sale of alcohol to the mix. Heeding those concerns, stadiums and arenas have instituted an array of procedures designed to improve the safety and security of spectators, workers and athletes. These include searches of people entering the gates; portable radios tuned to security bands in the hands of every-one from ushers to on-duty police; and networks of video surveillance cameras and command centers, where information on developing emergencies is collected and responders are dispatched.

These measures are not only the right thing to do from an ethical standpoint, but also from a legal perspective. Generally speaking, venue owners and operators owe a duty of reasonable care under the circumstances to their patrons, as business invitees, to detect and avoid foreseeable harm at the premises. To avoid potential liability associated with a personal injury lawsuit, a venue owner or operator needs to show that he or she instituted reasonable procedures in response to the risks that they were aware of, or should have been aware of. Harnessing the power of technol-ogy may make it easier to discharge that duty of care and to demonstrate that the procedures are adequate.

Utilizing and benefitting from technology, however, is far from a slam dunk. In many sports arenas, for example, staff may lack radios and be unable to quickly communi-

Fall 2008

In ThIs Issue: 1 Technology Leads to Improvements in Venue Safety and Security, Lessening Legal Exposure • Civil Practice Corner 2 Appellate Division Allows Non-Shareholder Tenants of Cooperatives to Utilize Yellowstone Injunctions 3 Insurance Coverage Corner 4 Scheduled Presentations 5 Mastering Risk in Building Information Modeling: The New AIA and AGC Contract Forms 9 HRRV Decisions of Note

Legal Insights / Fal l 200� / www.hrrv law.com�

Personal Attention. Powerful Representation. Creative Solutions.

Appellate Division Allows Non-Shareholder Tenants of Cooperatives to Utilize Yellowstone Injunctions By Jarett L. Warner

New York’s Appellate Division, Second De-partment has held that a residential, non-

shareholder cooperative tenant living outside of New York City may utilize a Yellowstone injunc-tion to toll the curing period when faced with the possibility of termination of his or her lease.

A Yellowstone injunction is relief sought by a tenant when served with a notice to terminate a lease due to the tenant’s purported default of the terms and conditions of the lease. A tenant may commence an action to request a Yellow-stone injunction, which prevents the premature termination of the lease before a hearing, at which the court has the opportunity to deter-mine whether the tenant was actually in default.

In Hopp v. Raimondi, 51 A.D.3d �26, �5� N.Y.S.2d 300 (2d Dep’t, 200�), the Appellate Division, Second Department was faced with the issue of whether a resident outside of New York City could utilize a Yel-lowstone injunction to preserve her right to cure in the event it was determined that she had violated her lease.

The plaintiff resided in a rent-controlled apartment in Bronx-ville since 196�. Although her building was converted to a cooperative in the mid-19�0s, she did not purchase the shares appurtenant to her apartment but rather remained as a rent-controlled tenant. In January 2003, the defendant pur-chased the shares and proprietary lease appurtenant to the apartment; a dispute arose whether the plaintiff was required to provide the defendant with a copy of the keys to the door locks, which according to the plaintiff, were the original locks from 196�.

On or about June 29, 200�, the defendant served the plaintiff with a combined notice to cure and surrender possession, asserting that the plaintiff had violated her lease by changing the locks and not providing him with a copy of the keys. Before the expiration of the time for the plaintiff to cure her purported default, the plaintiff commenced a lawsuit, seeking, among other things, a declaration that she had not violated the terms of the lease. She also moved by Order to Show Cause for a Yellowstone injunction.

The Appellate Division granted the plaintiff’s application for a temporary restraining order preventing the defendant from terminating the plaintiff’s lease pending a hearing, after the Supreme Court, Westchester County denied the plaintiff’s

request. The plaintiff then appealed the Supreme Court order denying her request for a Yellowstone injunction. The Su-preme Court had reasoned that a Yellowstone injunction was only available to commercial tenants or residential tenants who own shares appurtenant to their cooperative units.

The Appellate Division, Second Department reversed, hold-ing that the plaintiff’s motion should have been granted and a Yellowstone injunction granted to preserve the plaintiff’s right to cure should it be determined that the plaintiff had, in fact, violated the lease. The Court analyzed that Real Property Ac-tions and Proceedings Law (RPAPL) § �53(4), which permits a losing residential tenant a 10-day period to cure any lease violations before being subject to removal, only applies to New York City tenants. However, the Court determined that al-though RPAPL § �53(4) does not apply to residents outside of New York City, Yellowstone injunctions were available to resi-dents outside of New York City, and not just those tenants who owned shares appurtenant to their cooperative apartment.

The Appellate Division thus held that the Supreme Court should have granted the plaintiff’s request for a Yellowstone injunction to preserve her rights to cure should she be found to have violated her lease, and remanded the case to the Su-preme Court for “an appropriate undertaking.”

Contact

Jarett L. Warner: 646-747-5104 or [email protected]

http://www.hrrvlaw.com



Insurers Must Notify Insureds of Right to Choose Counsel

By Abbie Havkins

In Elacqua v. Physicians’ Reciprocal Insurers, 52 A.D.3d ��6, �60 N.Y.S.2d 229 (3d Dep’t, 200�), the New York’s Appellate Division, Third Department held that

the defendant insurance company engaged in deceptive business practices by fail-ing to inform its insureds of their right to select independent counsel to defend them at the insurer’s expense. The underlying loss involved both covered and uncovered claims, giving rise to a conflict of interest between the insurer and its insured. The Elacqua decision is notable because it held that where such a conflict exists, an insurer has an affirmative obligation to advise its insureds of the right to select inde-pendent counsel to defend them at the insurer’s expense and that the insurer’s fail-ure to do so may constitute deceptive practices within the meaning of N.Y. General Business Law §349, giving rise to a separate cause of action.

By way of background, the underlying action for medical malpractice against the insured physicians and their partnership resulted in a jury verdict in excess of $1.� million, based upon vicarious liability of a nurse practitioner employed by the part-nership, which was an uncovered claim. With interest, the amount of the verdict ultimately amounted to more than $3 million. Subsequently, the defendant insurer entered into a settlement with the plaintiffs in the underlying action, in satisfaction of all claims against the doctors and the partnership. The insureds continued their action against their insurance company, however, asserting a claim pursuant to General Business Law §349 and seeking to recover the counsel fees they spent in compelling the defendant insurance company to indemnify them for the verdict in the underlying action.

In determining whether the defendant had engaged in deceptive business practices, the Elacqua Court examined the partial disclaimer letters sent by the defendant insurance company to the plaintiffs, which “failed to inform them that they had the right to select independent counsel at defendant’s expense, instead misadvising that plaintiffs could retain counsel to protect their uninsured interests ‘at [their] own expense’.” Id. at ��. The Court found that this constituted a deceptive practice because the content of this letter was “certainly ‘likely to mislead a reasonable consumer acting reasonably under the circumstances’.” Id. at ��, citing, Oswego Laborers Local 214 Pension Fund v. Marine Midland Bank, �5 N.Y.2d 20, 26 (1995); Gaidon v. Guardian Life Ins. Co. of Am., 94 N.Y.2d 330, 344 (1999); Matter of People v. Applied Card Sys., Inc., 2� A.D.3d 104, 10� (3d Dep’t. 2005), lv dismissed � N.Y.3d �41 (2006).

The Court further held that plaintiffs demonstrated “actual, although not necessarily pecuniary, harm” due to the defendant’s deceptive practice, because plaintiffs were not provided “undivided, conflict-free loyalty of counsel.” Id. at ��9-�90, citing Os-wego Laborers Local 214 Pension Fund, �5 N.Y.2d at 26; Small v. Lorillard Tobacco Co., 94 N.Y.2d 13, 55-56 (1999); Baron v. Pfizer, Inc., 42 A.D.3d 62�, 62� (3d Dep’t.

New York’s Appellate Division, Third

Department held that the defendant insurance

company engaged in deceptive business

practices by failing to inform its insureds of their right to select independent counsel to defend them at the

insurer’s expense.

continued on page 4


Legal Insights / Fal l 200� / www.hrrv law.com4


From Page 3

200�). Specifically, in the underlying action, counsel appointed by the defen-dant insurance company to defend the doctors successfully moved to dismiss all of the covered claims. However, the attorney appointed to defend the part-nership not only failed to oppose the motion, but joined it, even though there were “legally sufficient grounds to op-pose the motion.” Elacqua, 52 A.D.3d at �90, citing Failla v. Nationwide Ins. Co., 26� A.D.2d �60, �62-�63 (3d Dep’t. 1999); Nelson Elec. Contr. Corp. v. Transcontinental Ins. Co., 231 A.D.2d 20�, 209-210 (3d Dep’t. 199�); Ladner v. American Home Assur. Co., 201 A.D.2d 302 ,304 (1st Dep’t. 1994). As a result, the insured physicians remained exposed to the uncovered claim for vicarious liability, and, according to the Court, “were not fully informed of the ramifications of such motion.” Elaqua, 52 A.D.3d at �90. Thus, the Court held that, “under these circumstances,” the plaintiffs’ interests were not adequately represented in the underlying action, and they demonstrated “actual harm” due to the defendant’s deceptive prac-tice. Id. at �90. The Supreme Court’s order dismissing the plaintiffs’ cause of action under General Business Law § 349 was reversed, and the case was remitted to the Supreme Court for a trial on damages.

Based upon this decision, it appears that the Third Department may examine the circumstances on a case-by-case basis regarding whether a plaintiff sus-tained “actual harm” as a result of an insurer’s deceptive business practices. Additionally, while the New York Court of Appeals has held that, in the case of a conflict of interest the insured is entitled to independent counsel of his or her own choosing at the expense of the insurer, and the insurer has an affirma-tive obligation to advise the insured of

such right, [Public Service Mut. Ins. Co. v. Goldfarb, (53 N.Y.2d 392 [19�1]); see also, Elaqua v. Physicians’ Reciprocal Insurers, 21 A.D.3d �02, �0� (3d Dep’t. 2005)], the Third Department is the first of New York’s appellate courts to hold that the failure to advise of such right constitutes deceptive practices under N.Y. General Business Law §349. While the other departments of the Appel-late Division have yet to address this issue, insurers, based on the Elacqua decision, should err on the side of cau-tion and inform their insureds of their rights to choose counsel under such circumstances.

Contact

Abbie Havkins: 646-747-5100 or [email protected]

No-Fault Law: Current Issues and StrategiesNational Business InstituteSean DwyerDecember 11, 200�

Environmental Risk and Green BuildingABA National ConferenceSean DwyerJanuary 2�, 2009

Taking and Defending Effective DepositionsLorman Education ServicesJonathan JuddMarch 12, 2009




continued on page 6

Mastering Risk in Building Information Modeling: The New AIA and AGC Contract Forms

By Sean P. Dwyer

Long touted as the future of building design and construction manage-

ment, Building Information Model-ing (BIM) has faced a never-ending struggle to establish itself as an integral component of the construction industry. Despite the glowing and enthusiastic veneration laid at its feet by the con-struction and design world, BIM re-mains the seductive and flashy sports car on a pedestal in the dealer’s show-room—everyone wants it, but few are willing or able to take it for a spin.

BIM is a computer-aided virtual design and drafting system that incorporates a vast array of databases for design elements in a construction project into a comprehensive digital model. Rather than having voluminous two-dimension-al plans and drawings to work from, de-signers and contractors can now have a virtual and interactive reconstruction of the entire project at their fingertips. The obvious benefits of having a BIM model in any project are numerous. With a push of a button, a designer or contrac-tor can visualize and comprehend the complicated details and sequences of a project and, simultaneously, detect and coordinate system clashes and design errors before they occur. The power behind BIM includes better qual-ity designs and detailing, improved pro-ductivity, increased collaboration and coordination among a project team and, ultimately, the capability to optimize budget and schedule options resulting in decreased costs. Proponents of this technology envision that BIM will even-tually replace today’s plans and speci-fications, streamline the bid/submittal process and transform the conventional construction project into an integrated process that benefits all of the players in a construction project.

Yet, despite this promising future, the construction and insurance industries have been slow, if not disinclined, to implement and underwrite BIM.

The reluctance of owners, design pro-

fessionals and contractors and their insurance carriers to take BIM under their collective wings is understand-able. Incorporating the BIM process as a standardized design method poses some intimidating questions. Many of these stakeholders see that a variety of risk management and legal issues must be resolved before BIM will be accepted as the new standard in the construction process.

At the outset, many construction and insurance professionals fret over the fact that there are few, if any, guidelines on drafting contractual documents ad-dressing the unique issues raised by utilization of the BIM system. Due to the digital nature of the BIM design, several immediate contractual issues include:

The specific description of the de-sign model to be utilized and its technical parameters

The procedures and protocols for submission and approval of com-puter models

The ownership and intellectual prop-erty rights to the BIM design

•

•

•

The consequences of corruption of digital data

The archiving and storage of mul-tiple or revised versions of the data

The respective obligations of the project team in data entry and revisions

The procedures and protocols uti-lized to generate two-dimensional and hard copy plans and projections derived from the BIM model

The professional standard of care and applicable industry standards that will apply to the BIM process

Beyond these technical ramifications, project members and their insurers have added concerns. Allocation of risk lies at the core of every construc-tion contract in determining the risks and responsibilities assumed by every member of the project team. In turn, the allocation of risk provisions in a contract trigger insurance coverage issues af-fecting the respective stakeholders. Be-fore underwriting or guaranteeing risks,

•

•

•

•

•




Mastering Risk in Building Information ModelingFrom Page 5

insurers and sureties require certainty and an accurate assessment of expo-sure. Standardized contract documents and historical claims data provide a comfort zone for insurers. While insur-ers and sureties remain positive in their outlook on BIM, with the uncertainties presented by a lack of standardized contract documents and a solid perfor-mance track record, insurers and sure-ties remain reluctant to assume these risks.

Over the past year, the design and construction industry has made sig-nificant strides in addressing the risk management issues generated by BIM. The need for a standardized agreement has the attention of several industry organizations, each of whom are mak-ing progress toward the development of agreements.

In October 200�, the American Institute of Architects (AIA) released six new AIA Contract Documents, including the E202™–200� Building Information Modeling (BIM) Protocol Exhibit. Exhibit E202–200� was drafted to set the re-quirements and authorized uses for BIM content, as well as establishing proto-cols for model ownership, conflict reso-lution, storage, viewing and archiving. The AIA anticipates that the E202–200� will be a practical tool for the industry with several unique features:

Identifying project team members responsible for authoring each ele-ment of the model at each project phase.

Defining the extent to which downstream model users, such as contractors and fabricators, can use and rely on the model for scheduling, pricing, fabricating and construction.

•

•

Assigning management of the model to a specific party by project phase.

Clarifying ownership issues involving the computer model and third-party rights to its use.

Providing guidelines for modification of model ele-ments and to revise the required levels of devel-opment on a project-by-project basis.

Establishing standards and file formats to promote interop-erability among project members.

Providing common contractual definitions that will assist in contract interpretation.

Beyond the design community, contrac-tors are equally flexing their collective muscle in dealing with the new risks presented by BIM. This past summer, the Associated General Contractors of America (AGC) issued its first Consen-susDOC® directed to the BIM process in construction. This contract addendum, ConsensusDOC 301, provides a frame-work for contractors to adapt to the new rigors of the BIM process. One particu-larly unique feature of the new AGC ad-dendum calls for the implementation of a BIM Execution Plan by the stakehold-ers and contractors within 30 days after execution of a project contract. The BIM Execution Plan outlines the param-eters of the BIM Design Model and the respective obligations of each project participant in utilizing the model.

With these emerging trends and innova-tive methods to master the intricacies of the BIM process, it is probable that the construction industry will eventually warm up to BIM, which will translate

•

•

•

•

•

With a push of a button, a designer or contractor using BIM can visualize

and comprehend the complicated details and sequences of a project and, simultaneously,

detect and coordinate system clashes and

design errors before they occur.

into wider utilization of computer model-ing. In turn, it is hoped that insurers will view BIM not as a dark hole of tangled liabilities, but rather, as an opportunity to encourage collaboration in a con-struction project, reduce costs and, ulti-mately, minimize liability.

Some time soon, that flashy sports car may just be leaving the pedestal after all.

Contact

Sean P. Dwyer: 516-6�0-17�0 or [email protected]


mailto:[email protected]



Advances in technology are all the more important because of the negative pub-licity that can arise from litiga-tion. Media reports of injuries, illnesses, deaths and dangerous situations in stadiums and arenas receive a great deal of attention. These situations are helped along by the plaintiffs’ bar, which recognizes the lever-age that the prospect of negative media coverage can have on the defendant venue. The impact perception that it is not safe to attend a sporting event at a venue can be financially devastating in terms of lost ticket, concession, parking and other revenues.

By using data to identify security and safety weaknesses, improve training to remedy shortfalls, reduce response times and accelerate the quality and quantity of records of incidents, security technology promises to cut the number of such inci-dents while also reducing the visibility of those that do occur. Bad PR, any stadium executive’s nightmare, becomes less likely as this occurs.

The implementation of the next generation of stadium and arena safety and security technology is still only in its infancy. Many stadium security officials are satisfied with the decades-old technology they are used to and see little value in trying new approaches. These executives, unfortunately, will have to learn the hard way.

The recently unveiled details of a 19�2 incident at a soccer match at a Moscow stadium, where an estimated 340 fans were crushed, offers an example of how technology could have made a difference. Reports revealed that fans leaving the stadium early turned to go back when crowd noise alerted them to a potentially game-changing play. Poorly trained secu-rity guards blocked their way, the crowd surged and hundreds were trampled to death. If anyone had had a full view of the developing scenario and some way to communicate with the misguided guards, the world’s worst stadium catastrophe might have been averted. At the very least, the technology might have allowed the venue to build a case and prove that the facility did everything in its power to mitigate the incident.

This is how new technologies should be applied, in ways that will ultimately benefit the spectators, employees and the ven-ue. Fortunately, such tools are now on the horizon.

Contact

Carla Varriale: 646-747-5115 or [email protected]

Randy Wingate, chief operating officer of VenueSoft in Oakland, Cali-fornia: [email protected]

cate the nature and location of an emergency to dispatchers and responders. Other venue personnel may be using anti-quated communications devices.

In addition to these inefficiencies, venues of all types may still rely on handwritten paper records for collecting critical information such as incident descriptions and response times. Others use Excel spreadsheets, but lack appropriate methods for analyzing the spreadsheets. These inefficient data collec-tion methods create time lags, encourage incompleteness and hinder analysis of event records.

Change is on the way, however. At least one venue, McAfee Coliseum and ORACLE Arena in Oakland, California, has been participating in the testing and development of a new hardware and software platform for bringing stadium and arena security into the 21st century. This home-grown technol-ogy solution enables staff faced with an emergency to quickly and accurately summon help, while greatly improving the command and control exerted by those overseeing stadium security.

On the front lines, this technology comes in the form of sim-ple, easy-to-use, pocket communications devices, which allow ushers and others to press a single button in order to accu-rately communicate the nature and location of an emergency to dispatchers and field managers. Using a Wi-Fi network, the devices instantly communicate to everyone where the incident is occurring, using RFID technology.

The arena’s network of digital video cameras also receives the alerts and is programmed to automatically point and focus directly on the location specified by the alert. This provides safety and security executives with unmatched video records of what is occurring on the scene.

The system greatly improves the speed of response when an incident occurs. It also produces a great deal of information that can help further improve the speed of response by en-abling data-driven training. For instance, response times can be accurately calculated in real world and training scenarios, enabling safety and security officials to know how quickly teams are responding, and the effect on response times of tweaks in the configuration of the security setup.

By coming at the challenge of responding to emergencies from both ends—during an actual incident and during train-ing—such technology promises to greatly reduce delays. It will also improve the quality of the response by, for instance, allowing dispatchers to quickly send appropriate medical per-sonnel based on the nature of the emergency and on what they discern on video monitors.

Technology and Venue SecurityFrom Page 1




From Page 1

Make sure that a settlement agreement,

whether written or placed on the record in open court, reflects the

intent of the parties.

damage he suffered as the result of an alleged improperly diagnosed cerebral hemorrhage. During the course of the original litigation, the plaintiffs learned that Dr. Pasquariello was employed by the defendant Northeast Emergency Medical Associates, P.C. and not Ellis Hospital. In the underlying litigation, El-lis Hospital successfully moved to have all claims against it dismissed, with the exception of the claim based on vicari-ous liability. Prior to trial, the parties in the original action reached a settlement agreement, including the assignment of indemnification claim pursuant to which the plaintiff received payment on behalf of Dr. Pasquariello and Ellis Hospital. In addition, in lieu of paying additional money, Ellis Hospital assigned its right to contractual indemnification against Northeast to the plaintiffs. The settle-ment was placed on the record in open court.

That same day, the plaintiff signed a modified general release of all claims against the hospital. The release ac-knowledged the assignment of the hos-pital’s rights for indemnification against Northeast to the plaintiffs. The release also included language that released Northeast, although it was not a party to the action, “from any and all claims that plaintiffs ever had, now have, or may have, from the beginning of the time to the day of the date of these presents (arising out of the alleged malpractice).”

When the plaintiffs, as assignees of Ellis Hospital, commenced an action against Northeast asserting claims for common-law and contractual indem-nification, counsel for Northeast im-mediately filed a motion for summary judgment seeking the dismissal of the complaint. Plaintiffs then cross-moved for indemnification. The trial court

granted the defendant’s motion and dismissed the complaint on the ground that the plaintiffs’ claims were barred by the general release executed in the original action. The plaintiffs appealed.

A party is entitled to enforce the lan-guage of a release if the terms of release are unambiguous. Therefore, on appeal, the Appellate Division was required to determine whether the par-ties’ intentions were clearly and unam-biguously set forth in the release. The release before the Court specifically set forth the terms of the hospital’s as-signment of its indemnification claims against Northeast to the plaintiffs. However, the Appellate Division held that the inclusion of “standard” release language placed the parties’ intent into question. In determining that the re-

lease contained irreconcilable ambigu-ity, the Appellate Division then looked to parol evidence to ascertain the parties’ true intent.

Parol evidence may only be used when ambiguity exists within the four corners of the agreement. Whether or not a writing is ambiguous is a question of law to be resolved by the court. See JP Morgan Chase Bank, NA v. Cellpoint, Inc., 54 A.D.3d 366 (2d Dep’t 200�). Once the court determines that the agreement is ambiguous on its face, it may then look to extrinsic evidence to ascertain the parties’ intent. The mean-ing and scope of a general release is dependent upon the controversy being settled and the purpose for which the release is given. See Kaminsky v. Gam-ache, 29� A.D.2d 361, �51 N.Y.S.2d 254 (2d Dep’t 2002). Since the parties

intended to assign the hospital’s right of indemnification to the plaintiff, and be-cause Northeast was not a party to the original lawsuit, the Appellate Division reversed the motion court’s decision, finding a question of fact defeating the defendant’s motion.

The Caruso decision provides a good reminder to all of us to make sure that a settlement agreement, whether written or placed on the record in open court, reflects the intent of the parties. Before a settlement agreement is either placed on the record or reduced to writing, it is imperative that counsel addresses with his or her client and insurer not only the intent of the settlement, but the ramifications of the agreement. If claims or rights are to be carved out, it is essential that the specific claims and rights be explicitly set forth, and that the language of the entire release be amended to reflect the parties’ in-tent. This is especially true if a related declaratory judgment action has been commenced.

HRRV was recently retained to com-mence a declaratory judgment action on behalf of an insurer to not only ob-tain judgment against another insurer for insurance coverage for the clients’ insured, but also to recover the defense costs from the client incurred in defend-ing its insured in an underlying action. In that declaratory judgment action, we were able to, based on the underlying statement made as part of the settle-ment agreement that was placed on the record in open court, defeat a claim for co-insurance raised in a declaratory judgment action and receive $500,000 in costs and fees for our client. The suc-cess in that case was based, in part, on our successful use of the statements made by defense counsel when the terms of the settlement were placed on the record in open court.

Contact

Gail L. Ritzert: 516-6�0-1710 or [email protected]




HRRV DECISIoNS oF NoTE

Summary Judgment Awarded to Touring Companies Dismissing Labor Law Claim by RoadieBowman v. East-West Touring Company and Cygnus Productions, LLCSupreme Court, New York CountyIndex Number 103824/03November 3, 2008

Thomas Bowman, a stagehand em-ployed by Beach Concerts, Inc.,

alleged to have sustained injuries dur-ing the scope of his employment in connection with the erection of a stage set for a concert at what was then re-ferred to as the Jones Beach Theatre on July 26, 2000. Mr. Bowman claimed that, while loading boxes of stage set components onto a forklift, which was raising the boxes to higher levels of the stage set being erected, the forklift operator caused the forklift to run over Mr. Bowman’s right foot. As a result, Mr. Bowman sustained a crush injury to his right foot, which required surgery.

Plaintiff alleged violations of Labor Law Section 200 and 241, and common law negligence. The Labor Law Section 241 claim was discontinued, and the action was discontinued as to Beach Concerts.

The Supreme Court, New York County (Braun, J.) dismissed Labor Law Sec-tion 200 and common law negligence claims, finding that only Beach Con-certs (the plaintiff’s employer) and not the touring companies, had control and supervision over the plaintiff’s work.

Contact

Jonathan A. Judd represented the defendants.

Jonathan A. Judd: 646-747-51�0 or [email protected]

Sanctioning of Sporting Event by National Organization Does Not Equal ControlAlejandro Chittick v. USA Cycling, Inc., et alSupreme Court of the State of New YorkAppellate Division, First Department 54 A.D.3d 625; 863 N.Y.S.2d 679 September 23, 2008

New York’s Appellate Division, First Department has affirmed the dismissal of all claims against USA Cycling, Inc., which had sanctioned, but did not organize or

control, a road race during which the plaintiffs were injured when the pace vehicle veered off the course and into the crowd.

A local promoter organized the event, obtained sanctioning from USA Cycling and employed the driver of the pace vehicle, which was owned by the promoter. In grant-ing summary judgment and dismissing the complaint against USA Cycling, Judge Alan Saks, sitting in Supreme Court, Bronx County, had found, inter alia, that: (1) as a sanctioning body, USA Cycling did not exercise sufficient control over the manner in which the event was conducted; (2) there was no proof that the race organizer was the agent of USA Cycling; and (3) the financial benefit derived from participant entrance fees and the imposition of an insurance surcharge by USA Cycling were not factors in determin-ing the degree of con-trol exercised by USA Cycling.

The Appellate Division held that since USA Cy-cling merely sanctioned the race and had no control over the race, it did not have a duty to prevent any negligence involved therein. More-over, the fact that USA Cycling provided its rulebook to the race or-ganizer did not impose a duty upon USA Cycling to enforce any of the rules therein. Nor does the fact raise an inference as to the existence of a principle-agency relationship between USA Cy-cling and the race organizer.

Effectively, the Court held that merely sanctioning an event does not equate to con-trol over the event sufficient to support a finding of liability.

Contact

Steven H. Rosenfeld and Carmen A. Nicolaou represented USA Cycling.

Steven H. Rosenfeld: 646-747-5105 or [email protected]@hrrvlaw.com

Carmen A. Nicolaou: 646-747-5106 or [email protected]





Dismissal of Labor Law ActionGarippa v. Five Star Electric Corp., et alSupreme Court, Richmond CountyIndex Number 100031/2006July 29, 2008

Justice John A. Fusco, sitting in Richmond County, granted the motion to dismiss in lieu of an answer by fourth-party

defendant, Unity Electric Corp.

The case arose from a work-related construction accident on the premises located at �9 West 3rd Street, New York, New York, on May 30, 2003. Plaintiff asserted violations of Labor Law Sections 200, 240 and 241, as well as applicable sections of the New York State Industrial Code and OSHA requirements. New York University and Plaza Construction Corp. asserted third-party causes of action against Unity based on negligence, as well as contribution and common law indemnification. However, Unity did not step foot on the premises or commence any work until several weeks after the plaintiff’s accident. Further, Unity did not even enter into a contract to perform work at the subject premises until after the plaintiff’s accident. In support of the motion, Unity provided an affidavit that Unity was neither present nor performing work at the subject location, and the agreement that was entered into between Unity and New York University on June 6, 2003, seven days after the accident and did not provide for com-mencement of the work by Unity until June 20, 2003. Unity established a right to dismissal on the merits under CPLR 3211 or 3212.

Contact

Jonathan A. Judd and Jessica M. Serva represented Unity Electric.


Jessica M. Serva: 516-6�0-1715 or [email protected]

Dismissal of Action Against Baseball Team Based on Plaintiff’s Failure to Provide Court-ordered Discovery Joyce Trebich v. Sterling Mets, L.P. Supreme Court, Queens CountyIndex Number 300672-QTS-2006October 27, 2008

New York’s Appellate Term, Second Department has re-versed the Civil Court, Queens County denial of a motion

to dismiss the plaintiff’s verified complaint on documented evidence that plaintiff willfully failed to provide requested discovery.

The Trebich case is unusual because the sanction of striking a party’s pleadings is, as the Appellate Term stated, a “drastic remedy.” However, since the defendant was able to demon-strate the pattern of conduct and stonewalling, the Appellate Term reviewed the record carefully and reversed the Civil Court’s denial of defendant’s motion. The court stated:

While we recognize that the drastic remedy of dismissal is reversed for those cases where the conduct of the resisting party is demonstrated to be willful and contu-macious (Novick v. DeRosa, 51 A.D.3d ��5 [200�]), we nevertheless conclude that, under the circumstances of this case, dismissal is the only appropriate sanction. Not only did plaintiff disregard appellant’s good faith at-tempts to obtain outstanding discovery, but she repeat-edly ignored court orders directing her to provide the discovery. Indeed, plaintiff offered no explanation for her failure to obey four court orders and respond to numer-ous written defense inquiries over nearly a two-year period. This persistent failure can only be characterized as willful and contumacious (see id; Maiorino v. City of New York, 39 A.D.3d 601, 602 [200�]; Lanc v. Donnelly, 13 A.D.3d 593 [2004]). The fact that plaintiff ultimately served an incomplete response 31 days after the date of the fourth court order, is in our opinion, too little, too late.

Contact

Carla Varriale, Jarett L. Warner and Deborah Peters Jordan repre-sented Sterling Mets, L.P.



Deborah Peters Jordan: 646-747-51�� or [email protected]

Plaintiff asserted violations of Labor Law Sections 200, 240 and 241, as well as applicable sections of the

New York State Industrial Code and oSHA requirements. . . . However,

the defendant did not commence any work until several weeks after the

plaintiff’s accident.





Appellate Division Reverses Denial of Motion to Dismiss Finding That Location of Accident Is a Public Place ThoroughfareRuffino v. New York City Transit Authority, et alSupreme Court of the State of New YorkAppellate Division, First DepartmentIndex Number 23273/06October 21, 2008

New York’s Appellate Division, Second Department has reversed the denial of a motion to dismiss in lieu of an-

swering and dismissed a personal injury action on behalf of Sterling Mets, L.P.

In Ruffino v. New York City Transit Authority, et al, the plaintiff commenced the instant action against Sterling Mets, L.P., among others, to recover damages for personal injuries al-legedly sustained by her when she tripped and fell over an uneven piece of wood while walking on a boardwalk between a Long Island Railroad train station and a New York City Transit Authority subway station on her way to Shea Stadium. Sterling moved pursuant to Civil Practice Law and Rules (CPLR) 3211(a)(1) and (�) to dismiss the complaint and all cross-claims insofar as asserted against it, contending, inter alia, that it did not own, occupy, control or make special use of the boardwalk. The plaintiff opposed the motion, contending, among other things, that Sterling did, in fact, make special use of [*2] the boardwalk and that it was obligated to provide her with a safe means of ingress to and egress from Shea Stadium. The Supreme Court denied Sterling’s motion to dis-miss, finding, in effect, that Sterling failed to establish that it did not have a duty to maintain the boardwalk in a safe condi-tion even if it did not own, occupy or control the boardwalk.

The Appellate Division disagreed and adopted Sterling’s ar-guments in support of dismissal. “[I]n determining whether a complaint is sufficient to withstand a motion pursuant to CPLR 3211(a)(�), the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of ac-tion cognizable at law a motion for dismissal will fail. The court must accept the facts alleged in the complaint to be true and determine only whether the facts alleged fit within any cog-nizable legal theory. However, bare legal conclusions are not entitled to the benefit of the presumption of truth and are not accorded every favorable inference. When the moving party offers evidentiary material, the court is required to determine whether the proponent of the pleading has a cause of action, not whether [he or] she has stated one. Likewise, to succeed

on a motion to dismiss pursuant to CPLR 3211(a)(1), the documentary evidence which forms the basis of the defense must be such that it resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff’s claim” (Morris v. Morris, 306 A.D.2d 449, 451 [emphasis added]).

Applying the foregoing standards to the Ruffino case, the Appellate Division, held that Sterling’s motion to dismiss the plaintiff’s complaint and all cross-claims insofar as asserted against it should have been granted.

Here, Sterling submitted evi-dentiary material in support of its motion to dismiss demonstrating that the board-walk is a public place thorough-fare. As correctly observed by Sterling, “[t]he use by [Sterling’s] customer[s] of [a] public [boardwalk] is not a special benefit giving rise to a special use” (Minott v. City of New York, 230 A.D.2d at �20 [internal quotation marks omit-ted]; see Lauer v. Great S. Bay Seafood, 200 A.D.2d 4�1, 4�2). While the plaintiff maintains that Sterling derived a spe-cial benefit from the boardwalk since the boardwalk allegedly was constructed specifically to connect Shea Stadium to the nearby Long Island Railroad train station and New York City Transit Authority subway station, the plaintiff offered no evi-dentiary support for that conclusory allegation.

The Appellate Division also held that there was no merit to plaintiff’s other arguments that Sterling had a duty to main-tain the boardwalk in a safe condition because the boardwalk provided a means of ingress and egress from Shea Stadium, since, again, the evidentiary material submitted by Sterling and left unrefuted by the plaintiff established that Sterling did not own, occupy or control the boardwalk (see Haymon v. Pet-tit, 9 N.Y.3d 324; cf. Gallagher v. St. Raymond’s R.C. Church, 21 N.Y.2d 554).

Contact

Jarett L. Warner and Carla Varriale represent Sterling Mets, L.P.




Legal Insights / Fal l 200� / www.hrrv law.com1�


Eleven Penn Plaza Suite 2101

New York, New York 10001 212-488-1598

212-564-0203 Facsimile

n

114 Old Country Road Suite 300

Mineola, New York 11501 516-620-1700


n

50 Main Street 10th Floor

White Plains, New York 10606 914-682-2636


n

www.hrrvlaw.com

© 2008 Havkins Rosenfeld Ritzert & Varriale, LLP


Summary Judgment Granted to Contractor Where It Established It Had No Involvement in Causing the Allegedly Dangerous ConditionCatherine Lanzarotta v. The City of New York, et alSupreme Court, Queens CountyIndex Number 21878/06October 29, 2008

Justice Kevin J. Kerrigan of the Supreme Court, Queens County granted the mo-tion by defendant Galvin Bros., Inc. for summary judgment dismissing all claims

and cross-claims asserted against it.

The plaintiff alleged that she was injured when she fell as a result of a crack in the sidewalk abutting a driveway area in front of 126-0� 1�th Avenue in College Point, New York, between 12�th Street and 125th Streets, on July 12, 2005.

In support of its mo-tion for summary judgment, defendant Galvin proffered an affidavit of its superin-tendent/foreman, who averred that Galvin was hired by the City of New York’s Depart-ment of Design and Construction to install pedestrian ramps at designated locations throughout Queens County and that the

only work performed by Galvin in the general area of the plaintiff’s accident was on the southeast corner of 1�th Avenue and 126th Street, approximately 40 feet away from the area of the alleged accident, as stated in the plaintiff’s pleadings. During his deposition, Galvin’s superintendent/foreman also testified that the work per-formed by Galvin was confined to the corner as the maximum curb distance from the corner that the City would pay for was 25 feet. In contrast, during her deposition, the plaintiff testified that she did not fall anywhere near the pedestrian ramp and that the ramp did not have any relation to her accident.

Justice Kerrigan found that, in opposition to Galvin’s motion, the plaintiff failed to set forth any evidence raising a question of fact that Galvin’s work created to the crack in the sidewalk where the plaintiff allegedly fell.

Contact

Jonathan A. Judd and Jarett L. Warner represented Galvin.



