Richard A. Klass, has been appointed to serve a 4-year term on the Grievance Committee for the Appellate Division Second Department for the Second, Eleventh and Thirteenth Judicial Districts.
Members of the Grievance Committee serve to maintain the honesty, integrity and professional competence of the legal profession and protect the general public by enforcing the Rules of Professional Conduct.
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copyr. 2015 Richard A. Klass, Esq.
The firm's website: www.CourtStreetLaw.com
Richard A. Klass, Esq., maintains a law firm engaged in civil litigation in Brooklyn Heights, New York.
He may be reached at (718) COURT-ST or e-ml to RichKlass@courtstreetlaw.com with any questions.
Prior results do not guarantee a similar outcome.
Showing posts with label new york. Show all posts
Showing posts with label new york. Show all posts
Friday, July 10, 2015
Wednesday, May 20, 2015
Enforcing Judgments Against Bank Accounts Held Outside N.Y.
By Richard A. Klass and Elisa S. Rosenthal
[This article first appeared in the November 20, 2014 edition of the New York Law Journal.]
New York Civil Practice Law and Rules Article 52 dictates the procedures that a judgment creditor must follow to exercise its rights to enforce a judgment entered in New York.
When both the judgment debtor and its assets are located within New York State, the procedure is fairly straightforward. When the assets of the judgment debtor are located outside of New York State, however, the ability to levy upon the judgment debtor's assets can be tricky.
There are several factors that both federal and state courts in New York have considered in determining whether or not assets held in another state can be used to satisfy a New York judgment, including: (a) the separate entity rule; (b) jurisdiction; and (c) the type of proceeding.
In 2009, the separate entity rule was loosened by the Court of Appeals, due to the computerization of bank information and centralized systems, Digitrex v. Johnson, 491 F.Supp. 66 (S.D.N.Y. 1980). Indeed, in Koehler v. Bank of Bermuda, 12 N.Y.3d 533 (2009), the New York State Court of Appeals held that the Legislature intended CPLR Article 52 to have extraterritorial reach when it amended CPLR 5224 (Consol. 2011) to facilitate the disclosure of materials located outside of New York to judgment creditors seeking to collect a judgment.
Following Koehler, courts facing similar issues wondered whether the separate entity rule had been completely abrogated by Koehler. See, e.g.,Global Tech. v. Royal Bank of Can., 34 Misc.3d 1209(A) (Sup. Ct. New York Co. 2012), Parbulk II AS v. Heritage Maritime, 35 Misc.3d 235 (Sup. Ct. New York Co. 2011). Subsequent decisions, particularly in the First Department, however, have held that if the Court of Appeals had intended to eliminate the separate entity rule, it would have, and that "any future exception to the separate entity rule would require a pronouncement from the Court of Appeals or an act of the Legislature." Ayyash v. Koleilat, 38 Misc.3d 916, 924 (Sup. Ct. New York Co. 2012) citing Nat'l Union Fire Ins. Co. v. Advanced Empl. Concepts, 269 A.D.2d 101 (1st Dept. 2000).
In fact, several trial courts since Koehler have instead held by the traditionally well-settled rule that "in order to reach a particular bank account the judgment creditor must serve the office of the bank where the account is maintained." See, e.g., Global Tech. v. Royal Bank of Can., 34 Misc.3d 1209(A) (Sup. Ct. New York Co. 2012), Parbulk II AS v Heritage Maritime, 35 Misc.3d 235 (Sup. Ct. New York Co. 2011). The Court of Appeals' deliberate sidestepping1 the issue of the separate entity rule in Koehler may be the impetus for its most recent determination in Motorola Credit v. Standard Chartered Bank, decided on Oct. 23, 2014.
In a divided opinion, the Court of Appeals, in Motorola, affirmed the long-standing common law tenet of the separate entity rule, holding that "limiting the reach of CPLR 5222 restraining notice in the foreign banking context, the separate entity rule promotes international comity and serves to avoid conflicts among competing legal systems." Motorola Credit v. Standard Chartered Bank, No. 162, NYLJ 1202674400477 at *11 [Oct. 23, 2014].
In Koehler, the plaintiff sought to enforce a domesticated foreign judgment as against the defendant by issuing a restraining notice to the Bank of Bermuda, which it asserted held stock on behalf of the defendant. The court established personal jurisdiction over the defendant based upon defendant's willingness to subject itself to the court's jurisdiction without objection. The court then determined that, based upon its in personam jurisdiction over the defendant, it can extend its reach to assets of the defendant, even when those assets are held outside of New York State, either in another state or another country. Koehler v. Bank of Bermuda, 12 N.Y.3d 533 (2009). In fact, the court in Koehler went so far as to hold that the broad language of CPLR Article 52 extends to the turnover of out-of-state assets held by a garnishee. Id. at 541.
Utilizing a jurisdictional analysis to determine whether the out-of-state assets of a judgment creditor can be turned over, as in Koehler, has precedential support. In U.S. v. First Nat'l City Bank, the case involved notice and levy of a federal tax lien upon all of the assets of an Uruguayan corporation. U.S. v. First Nat'l City Bank, 379 U.S. 378 (1965). The United States sought to foreclose its tax lien upon all sums held for the corporation in the Montevideo branch office of the bank. Id. The bank had been served with an injunction preventing the bank from transferring any assets of the corporation during the pendency of the foreclosure, but the corporation had not been served. Id.
The U.S. Supreme Court held the bank "has actual, practical control over its branches; it is organized under a federal statute, which authorizes it to sue and be sued, complain and defend, in any court of law and equity, as fully as natural persons as one entity, not branch by branch. Id. The branch bank's affairs are, therefore, as much within the reach of the in personam order entered by the District Court as are those of the home office…" Id.
Although the determinations in Koehler and First Nat'l City Bank appear to put to bed the issue of New York's jurisdiction over out-of-state bank branches, there remains an important factor to address before determining whether, in fact, a judgment should, or needs to be domesticated in a foreign state or whether New York can assert its jurisdiction. The remaining issue is determining whether the proceeding is an attachment proceeding, an injunction proceeding or a turnover/garnishment proceeding.
Attachment: An attachment proceeding is a pre-judgment remedy involving the seizure of the defendant/debtor's property so that they are no longer able to use the property in order to ensure satisfaction of a prospective judgment. Attachment proceedings in New York are governed by CPLR Article 62, and as stated in Koehler, enable a court to have jurisdiction over the property rather than the person. Koehler, 12 N.Y.3d at 539, ("It is a fundamental rule that in attachment proceedings, the res must be within the jurisdiction of the court issuing the process in order to confer the jurisdiction").
In Abuhamda, moneys were transferred from a bank branch located in New York to a branch in Jordan. Abuhamda v. Abuhamda, 654 N.Y.S.2d 11 (1st Dept. 1997). The court held that it had the authority to order a preliminary injunction to direct the bank to freeze the account in Jordan, based upon the Supreme Court's ruling in First Nat'l City Bank. Id. The fact that the bank did business in New York State subjected the bank to its jurisdiction. Id.
Turnover Proceeding: A turnover proceeding is a post-judgment special proceeding, under CPLR Article 52, in which the judgment creditor may obtain an order from the court forcing a third-party garnishee in possession of property belonging to the judgment debtor to turn the property over to the judgment creditor. The analysis performed in Koehler resulted in a determination that "a New York court with personal jurisdiction over a defendant may order him to turn over out-of-state property regardless of whether the defendant is a judgment debtor or garnishee."
In Gryphon, the plaintiff, through a turnover proceeding, sought to have assets of the defendant turned over to the plaintiff to satisfy the judgment issued against the defendant based upon its non-payment of guaranteed notes. Gryphon Dom. VI v. APP Int'l. Fin. Co., 41 A.D.3d 25 (1st Dept. 2007). The court held that New York had jurisdiction over the defendant based upon the language of the notes and that on the basis of the court's jurisdiction over the defendant it could order the turnover of assets held outside of New York. Id.
Although the Court of Appeals in Koehler appeared to give broad discretion to a judgment creditor in terms of its ability to enforce its judgment, in 2013, the court narrowed the holding in Koehler in the case of Commonwealth of Northern Mariana Islands v. Canadian Imperial Bank of Commerce, 21 N.Y.3d 55 (2013).
In Commonwealth of Northern Mariana Islands, the issue became one of not just possession and custody, but of control over the judgment debtor's assets. Id. The court held that the bank's parent company in Toronto maintained possession and custody over the judgment debtor's assets, not the subsidiary, and the fact that the holder of the assets controls the subsidiary was not sufficient to "compel another entity, which is not subject to this state's personal jurisdiction, to deliver assets held in a foreign jurisdiction." Id.
Restraining Notices/Execution: A restraining notice or execution does not necessarily require court assistance or intervention. Once the court has issued a judgment, the judgment creditor may pursue collection of that judgment pursuant to the rules laid out in CPLR Article 52, including issuance of an income execution, a restraining notice upon a bank, or an execution issued to the sheriff to levy upon property owned by the judgment debtor.
In Global Tech., a restraining notice relative to a judgment was served upon a defendant, Royal Bank of Canada, on its New York branch. The court in Global Tech. discussed that, "a party that seeks a restraining notice need only engage an attorney, who is authorized to issue a restraining notice as an officer of the Court. The court has no involvement with the issue of whether service of the restraining notice upon the garnishee comports with due process until the garnishee challenges the restraining notice…when serving a restraining notice of assets held outside the state, the restraining notice must be served upon the individual bank branches holding the assets of the judgment debtor, rather than the home office or a branch within the State of New York." Global Tech. v. Royal Bank of Can., 34 Misc.3d 1209(A) (Sup. Ct. New York Co. 2012).
The holding in Global Tech. has support in Koehler as well. In the court's analysis of CPLR 5225(a)-(b) (Consol. 1964), the court took special note of the how the authority is invoked; in CPLR 5225(a) the judgment creditor must file a motion to order the judgment debtor to turn over property in his possession, while CPLR 5225(b) requires a special proceeding by the judgment debtor over a garnishee who is not a party to the main action. See Koehler, 12 N.Y.3d at 541.
In Motorola, the issue with Standard Chartered Bank began when Motorola served a restraining order on the New York branch of the defendant, a foreign bank from the United Kingdom. Motorola argued that based upon Koehler, the separate entity rule was no longer valid law. Standard Chartered Bank disagreed, asserting the separate entity rule is essential in the realm of international banking. The Court of Appeals' determination affirmed Standard Chartered Bank's position that "abolition of the separate entity rule would result in serious consequences in the realm of international banking." Motorola v. Standard Chartered Bank at *13.
On the question of how to enforce a judgment against a judgment debtor against assets held outside of New York, a determination of the type of enforcement action must first be ascertained. If the judgment creditor prefers collection by a restraining notice, the separate entity rule applies, and the judgment should then be domesticated in the foreign jurisdiction in order to assert jurisdiction over the assets. Should the judgment creditor instead prefer to enforce its judgment by a turnover proceeding, the court can assert its authority over assets held outside of the state so long as the court has exercised its jurisdiction over the holder of the assets.
Endnotes:
1. "Notably absent from our decision in Koehler was any discussion of the separate entity rule."Motorola Credit v. Standard Chartered Bank, No. 162, NYLJ 1202674400477 at *9 (Oct. 23, 2014).
Richard A. Klass is an attorney with the Law Office of Richard A. Klass in Brooklyn. Elisa S. Rosenthal is an associate of the firm.
Reprinted with permission from the November 20, 2014 edition of the New York Law Journal © 2014 ALM Media Properties, LLC. All rights reserved.
Further duplication without permission is prohibited. ALMReprints.com - 877-257-3382 - reprints@alm.com.
-----------
The firm's website: www.CourtStreetLaw.com
Richard A. Klass, Esq., maintains a law firm engaged in civil litigation in Brooklyn Heights, New York. He may be reached at (718) COURT-ST or e-ml to RichKlass@courtstreetlaw.com with any questions.
Prior results do not guarantee a similar outcome.
[This article first appeared in the November 20, 2014 edition of the New York Law Journal.]
New York Civil Practice Law and Rules Article 52 dictates the procedures that a judgment creditor must follow to exercise its rights to enforce a judgment entered in New York.
When both the judgment debtor and its assets are located within New York State, the procedure is fairly straightforward. When the assets of the judgment debtor are located outside of New York State, however, the ability to levy upon the judgment debtor's assets can be tricky.
There are several factors that both federal and state courts in New York have considered in determining whether or not assets held in another state can be used to satisfy a New York judgment, including: (a) the separate entity rule; (b) jurisdiction; and (c) the type of proceeding.
The Separate Entity Rule
The separate entity rule, one which was adopted from the old English common law, provides that each branch of a bank is considered to be a separate entity. The mere fact that a bank may have a branch inside of New York is insufficient to render accounts outside of New York subject to attachment by a New York court. See Motorola Credit Corp. v. Uzan, 288 F.Supp.2d 558 (S.D.N.Y. 2003).In 2009, the separate entity rule was loosened by the Court of Appeals, due to the computerization of bank information and centralized systems, Digitrex v. Johnson, 491 F.Supp. 66 (S.D.N.Y. 1980). Indeed, in Koehler v. Bank of Bermuda, 12 N.Y.3d 533 (2009), the New York State Court of Appeals held that the Legislature intended CPLR Article 52 to have extraterritorial reach when it amended CPLR 5224 (Consol. 2011) to facilitate the disclosure of materials located outside of New York to judgment creditors seeking to collect a judgment.
Following Koehler, courts facing similar issues wondered whether the separate entity rule had been completely abrogated by Koehler. See, e.g.,Global Tech. v. Royal Bank of Can., 34 Misc.3d 1209(A) (Sup. Ct. New York Co. 2012), Parbulk II AS v. Heritage Maritime, 35 Misc.3d 235 (Sup. Ct. New York Co. 2011). Subsequent decisions, particularly in the First Department, however, have held that if the Court of Appeals had intended to eliminate the separate entity rule, it would have, and that "any future exception to the separate entity rule would require a pronouncement from the Court of Appeals or an act of the Legislature." Ayyash v. Koleilat, 38 Misc.3d 916, 924 (Sup. Ct. New York Co. 2012) citing Nat'l Union Fire Ins. Co. v. Advanced Empl. Concepts, 269 A.D.2d 101 (1st Dept. 2000).
In fact, several trial courts since Koehler have instead held by the traditionally well-settled rule that "in order to reach a particular bank account the judgment creditor must serve the office of the bank where the account is maintained." See, e.g., Global Tech. v. Royal Bank of Can., 34 Misc.3d 1209(A) (Sup. Ct. New York Co. 2012), Parbulk II AS v Heritage Maritime, 35 Misc.3d 235 (Sup. Ct. New York Co. 2011). The Court of Appeals' deliberate sidestepping1 the issue of the separate entity rule in Koehler may be the impetus for its most recent determination in Motorola Credit v. Standard Chartered Bank, decided on Oct. 23, 2014.
In a divided opinion, the Court of Appeals, in Motorola, affirmed the long-standing common law tenet of the separate entity rule, holding that "limiting the reach of CPLR 5222 restraining notice in the foreign banking context, the separate entity rule promotes international comity and serves to avoid conflicts among competing legal systems." Motorola Credit v. Standard Chartered Bank, No. 162, NYLJ 1202674400477 at *11 [Oct. 23, 2014].
Jurisdiction
The Court of Appeals in Koehler analyzed the issue of jurisdiction in connection with judgment enforcement proceedings. The court explained that since a post-judgment enforcement action is against a person, and the purpose of the proceeding is to force the person to convert property he owns into money for payment to a creditor, that New York has the authority to order the holder of a judgment debtor's asset to turn over property of the judgment debtor held outside the state if the court has personal jurisdiction over a judgment debtor. Koehler, 12 N.Y.3d at 540, citing Siegel, N.Y. Prac. §510, at 866 [4th ed].In Koehler, the plaintiff sought to enforce a domesticated foreign judgment as against the defendant by issuing a restraining notice to the Bank of Bermuda, which it asserted held stock on behalf of the defendant. The court established personal jurisdiction over the defendant based upon defendant's willingness to subject itself to the court's jurisdiction without objection. The court then determined that, based upon its in personam jurisdiction over the defendant, it can extend its reach to assets of the defendant, even when those assets are held outside of New York State, either in another state or another country. Koehler v. Bank of Bermuda, 12 N.Y.3d 533 (2009). In fact, the court in Koehler went so far as to hold that the broad language of CPLR Article 52 extends to the turnover of out-of-state assets held by a garnishee. Id. at 541.
Utilizing a jurisdictional analysis to determine whether the out-of-state assets of a judgment creditor can be turned over, as in Koehler, has precedential support. In U.S. v. First Nat'l City Bank, the case involved notice and levy of a federal tax lien upon all of the assets of an Uruguayan corporation. U.S. v. First Nat'l City Bank, 379 U.S. 378 (1965). The United States sought to foreclose its tax lien upon all sums held for the corporation in the Montevideo branch office of the bank. Id. The bank had been served with an injunction preventing the bank from transferring any assets of the corporation during the pendency of the foreclosure, but the corporation had not been served. Id.
The U.S. Supreme Court held the bank "has actual, practical control over its branches; it is organized under a federal statute, which authorizes it to sue and be sued, complain and defend, in any court of law and equity, as fully as natural persons as one entity, not branch by branch. Id. The branch bank's affairs are, therefore, as much within the reach of the in personam order entered by the District Court as are those of the home office…" Id.
Although the determinations in Koehler and First Nat'l City Bank appear to put to bed the issue of New York's jurisdiction over out-of-state bank branches, there remains an important factor to address before determining whether, in fact, a judgment should, or needs to be domesticated in a foreign state or whether New York can assert its jurisdiction. The remaining issue is determining whether the proceeding is an attachment proceeding, an injunction proceeding or a turnover/garnishment proceeding.
Collection Proceedings
Under New York law, there are several different ways in which a debtor's assets can be reached; (a) attachment; (b) turnover proceeding; and (c) restraining notice/execution.Attachment: An attachment proceeding is a pre-judgment remedy involving the seizure of the defendant/debtor's property so that they are no longer able to use the property in order to ensure satisfaction of a prospective judgment. Attachment proceedings in New York are governed by CPLR Article 62, and as stated in Koehler, enable a court to have jurisdiction over the property rather than the person. Koehler, 12 N.Y.3d at 539, ("It is a fundamental rule that in attachment proceedings, the res must be within the jurisdiction of the court issuing the process in order to confer the jurisdiction").
In Abuhamda, moneys were transferred from a bank branch located in New York to a branch in Jordan. Abuhamda v. Abuhamda, 654 N.Y.S.2d 11 (1st Dept. 1997). The court held that it had the authority to order a preliminary injunction to direct the bank to freeze the account in Jordan, based upon the Supreme Court's ruling in First Nat'l City Bank. Id. The fact that the bank did business in New York State subjected the bank to its jurisdiction. Id.
Turnover Proceeding: A turnover proceeding is a post-judgment special proceeding, under CPLR Article 52, in which the judgment creditor may obtain an order from the court forcing a third-party garnishee in possession of property belonging to the judgment debtor to turn the property over to the judgment creditor. The analysis performed in Koehler resulted in a determination that "a New York court with personal jurisdiction over a defendant may order him to turn over out-of-state property regardless of whether the defendant is a judgment debtor or garnishee."
In Gryphon, the plaintiff, through a turnover proceeding, sought to have assets of the defendant turned over to the plaintiff to satisfy the judgment issued against the defendant based upon its non-payment of guaranteed notes. Gryphon Dom. VI v. APP Int'l. Fin. Co., 41 A.D.3d 25 (1st Dept. 2007). The court held that New York had jurisdiction over the defendant based upon the language of the notes and that on the basis of the court's jurisdiction over the defendant it could order the turnover of assets held outside of New York. Id.
Although the Court of Appeals in Koehler appeared to give broad discretion to a judgment creditor in terms of its ability to enforce its judgment, in 2013, the court narrowed the holding in Koehler in the case of Commonwealth of Northern Mariana Islands v. Canadian Imperial Bank of Commerce, 21 N.Y.3d 55 (2013).
In Commonwealth of Northern Mariana Islands, the issue became one of not just possession and custody, but of control over the judgment debtor's assets. Id. The court held that the bank's parent company in Toronto maintained possession and custody over the judgment debtor's assets, not the subsidiary, and the fact that the holder of the assets controls the subsidiary was not sufficient to "compel another entity, which is not subject to this state's personal jurisdiction, to deliver assets held in a foreign jurisdiction." Id.
Restraining Notices/Execution: A restraining notice or execution does not necessarily require court assistance or intervention. Once the court has issued a judgment, the judgment creditor may pursue collection of that judgment pursuant to the rules laid out in CPLR Article 52, including issuance of an income execution, a restraining notice upon a bank, or an execution issued to the sheriff to levy upon property owned by the judgment debtor.
In Global Tech., a restraining notice relative to a judgment was served upon a defendant, Royal Bank of Canada, on its New York branch. The court in Global Tech. discussed that, "a party that seeks a restraining notice need only engage an attorney, who is authorized to issue a restraining notice as an officer of the Court. The court has no involvement with the issue of whether service of the restraining notice upon the garnishee comports with due process until the garnishee challenges the restraining notice…when serving a restraining notice of assets held outside the state, the restraining notice must be served upon the individual bank branches holding the assets of the judgment debtor, rather than the home office or a branch within the State of New York." Global Tech. v. Royal Bank of Can., 34 Misc.3d 1209(A) (Sup. Ct. New York Co. 2012).
The holding in Global Tech. has support in Koehler as well. In the court's analysis of CPLR 5225(a)-(b) (Consol. 1964), the court took special note of the how the authority is invoked; in CPLR 5225(a) the judgment creditor must file a motion to order the judgment debtor to turn over property in his possession, while CPLR 5225(b) requires a special proceeding by the judgment debtor over a garnishee who is not a party to the main action. See Koehler, 12 N.Y.3d at 541.
In Motorola, the issue with Standard Chartered Bank began when Motorola served a restraining order on the New York branch of the defendant, a foreign bank from the United Kingdom. Motorola argued that based upon Koehler, the separate entity rule was no longer valid law. Standard Chartered Bank disagreed, asserting the separate entity rule is essential in the realm of international banking. The Court of Appeals' determination affirmed Standard Chartered Bank's position that "abolition of the separate entity rule would result in serious consequences in the realm of international banking." Motorola v. Standard Chartered Bank at *13.
On the question of how to enforce a judgment against a judgment debtor against assets held outside of New York, a determination of the type of enforcement action must first be ascertained. If the judgment creditor prefers collection by a restraining notice, the separate entity rule applies, and the judgment should then be domesticated in the foreign jurisdiction in order to assert jurisdiction over the assets. Should the judgment creditor instead prefer to enforce its judgment by a turnover proceeding, the court can assert its authority over assets held outside of the state so long as the court has exercised its jurisdiction over the holder of the assets.
Endnotes:
1. "Notably absent from our decision in Koehler was any discussion of the separate entity rule."Motorola Credit v. Standard Chartered Bank, No. 162, NYLJ 1202674400477 at *9 (Oct. 23, 2014).
Richard A. Klass is an attorney with the Law Office of Richard A. Klass in Brooklyn. Elisa S. Rosenthal is an associate of the firm.
Reprinted with permission from the November 20, 2014 edition of the New York Law Journal © 2014 ALM Media Properties, LLC. All rights reserved.
Further duplication without permission is prohibited. ALMReprints.com - 877-257-3382 - reprints@alm.com.
— by Richard A. Klass, Esq. and Elisa S. Rosenthal
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The firm's website: www.CourtStreetLaw.com
Richard A. Klass, Esq., maintains a law firm engaged in civil litigation in Brooklyn Heights, New York. He may be reached at (718) COURT-ST or e-ml to RichKlass@courtstreetlaw.com with any questions.
Prior results do not guarantee a similar outcome.
Wednesday, April 29, 2015
A Man’s House is (Not Always) His Castle
A New York City college bought an old garage on a residential street with the intention of eventually tearing it down and using the vacant lot in the development of a 17-story building. The owner of the adjacent apartment building was more than glad to have the college demolish the garage, which had become an eyesore. In order to demolish the garage, however, the college needed to enter the adjacent property to erect bridge scaffolding around the apartment building. But the college offered little protection to the owner other than promising to pay for any damage it might cause to the apartment building during the demolition.
Alleging that the apartment building owner refused to consent, the college brought a petition for a court order to allow its contractor to enter upon the adjacent property to erect the scaffolding. The adjacent apartment building owner retained Richard A. Klass, Esq., Your Court Street Lawyer, to oppose the petition and negotiate a license agreement with the college to grant access, but only upon meeting certain, reasonable conditions.
In the current economic and political climate in New York City, which encourages building more and more housing units for the multitudes, it is not surprising that current property owners are experiencing “growing pains.” Among those “growing pains” are the inconvenience and annoyance they experience when a developer buys land next to their property, seeking to build on that land, and needs to gain access to the neighboring property to do the work. Such access may be needed to move equipment, build up to the property line, or deliver material to the building site.
RPAPL 881 grants a license to enter property
New York law seeks to find middle ground between the property developer and the neighboring owner so that the developer may build its structure while the neighbor can be left relatively undisturbed. Real Property Actions and Proceedings Law (RPAPL) Section 881 provides as follows:When an owner or lessee seeks to make improvements or repairs to real property so situated that such improvements or repairs cannot be made by the owner or lessee without entering the premises of an adjoining owner or his lessee, and permission so to enter has been refused, the owner or lessee seeking to make such improvements or repairs may commence a special proceeding for a license so to enter pursuant to article four of the civil practice law and rules. The petition and affidavits, if any, shall state the facts making such entry necessary and the date or dates on which entry is sought. Such license shall be granted by the court in an appropriate case upon such terms as justice requires. The licensee shall be liable to the adjoining owner or his lessee for actual damages occurring as a result of the entry.Essentially, if a developer must gain access to the adjacent property, it must first make a request upon that property owner. If turned down, the developer can then file a petition to ask the court to grant a license to enter the premises for a reasonable period of time.
Courts apply a ‘balancing test’
The court must balance the competing interests of the parties and should grant the issuance of the license when necessary, under reasonable conditions, and where the inconvenience to the adjacent property owner is outweighed by the hardship of its neighbor if the license is refused. In Rosma Development LLC v. South, the court granted a developer a license to enter the adjacent property, recognizing that the developer’s property interests in completing its project (and as quickly as possible in order to avoid unnecessary delay and expense) outweighed the temporary inconvenience to the neighbor.Provisions of a license agreement
Courts have held that reasonable conditions of a license agreement under RPAPL 881 may include:- Providing the owner with the details and schedule of the work to be done;
- Conducting pre-construction inspections and monitoring for cracks, vibrations, and noise during construction;
- Paying the owner’s fees for engineers, attorney’s fees, and other expenses;
- Imposing penalties in the event of noncompliance with the license, including the failure to complete the work in a timely fashion;
- Taking steps after construction is complete to close up lot-line windows or resolve any structural wall issues; and
- Ensuring that an adequate liability insurance policy is in effect in the event that actual damages occur.
In resolving the college’s petition, the parties negotiated an extensive agreement that ultimately allowed the judge to approve the license to enter the adjoining property.
— by Richard A. Klass, Esq.
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copyr. 2015 Richard A. Klass, Esq.
The firm's website: www.CourtStreetLaw.com
Richard A. Klass, Esq., maintains a law firm engaged in civil litigation in Brooklyn Heights, New York.
He may be reached at (718) COURT-ST or e-ml to RichKlass@courtstreetlaw.com with any questions.
Prior results do not guarantee a similar outcome.
Image at top: © Thomas Wolf, www.foto-tw.de. CC BY-SA 3.0 de. The photo shown here is a low resolution version of the original photo.
Monday, April 13, 2015
Tender of Payment
A seldom-used tactic in litigation is the "tender" of payment by a defendant of an amount which is believed to be due to the plaintiff. If the proper amount is tendered, and the plaintiff does not accept that amount, then the defendant will not be found liable for interest and court costs.
This legal tactic was successfully used by the author in a case involving the building of a large boys' yeshiva. The yeshiva purchased a building to tear it down and construct a new school. The prior owner took back a mortgage from the yeshiva for $900,000, with interest-only payments for 15 years and no prepayments allowed. Shortly after the purchase, the yeshiva obtained work permits to demolish the existing structure to build the new school building.
The mortgagee/prior owner brought an injunction action, claiming that the demolition of the existing structure violated the terms of the mortgage (a common clause in the form of mortgage states that the mortgagee's consent is needed before alteration of the structure on the mortgaged premises in order to protect the value of the collateral). During the course of ongoing court conferences, the yeshiva offered to pay off the mortgage in full, but the mortgagee was insistent on obtaining not only the principal amount of $900,000 but also the future 14 1/2 years' worth of interest (a windfall of about $1.2 million).
The mortgagee then decided to unilaterally declare a default under the mortgage, alleging that the disconnection of the water and electric lines amounted to an alteration of the structure; her attorney served an "acceleration notice," demanding the payment of the mortgage in full plus accrued interest.
From an initial review of the situation, it looked bleak for the yeshiva. But, upon further examination, the concept of "tender" saved the day! The yeshiva collected pledges totaling $911,000 (the principal amount plus accrued interest to the date of tender) and deposited that amount with the Clerk of Kings County as a "tender." A motion was then made to dismiss both the injunction and foreclosure actions based upon the tender.
The court held that there was a valid tender, since the mortgagee accelerated the mortgage note, seeking the unpaid principal amount with "accrued" interest. Based upon the ambiguity of the language of the mortgage note, "accrued interest" may have meant interest accrued only to the date of default or future interest past the date of default.
Tender can be effectively utilized in situations where the defendant expects to owe something to the plaintiff but nowhere near the amount claimed. A tender can place a greater onus on the plaintiff to substantiate additional damages. Further, it can be a good method of settling a case by offering the plaintiff an amount which it may be willing to accept to terminate the litigation.
-----------
copyr. 2015 Richard A. Klass, Esq.
The firm's website: www.CourtStreetLaw.com
Richard A. Klass, Esq., maintains a law firm engaged in civil litigation in Brooklyn Heights, New York.
He may be reached at (718) COURT-ST or e-ml to RichKlass@courtstreetlaw.com with any questions.
Prior results do not guarantee a similar outcome.
This legal tactic was successfully used by the author in a case involving the building of a large boys' yeshiva. The yeshiva purchased a building to tear it down and construct a new school. The prior owner took back a mortgage from the yeshiva for $900,000, with interest-only payments for 15 years and no prepayments allowed. Shortly after the purchase, the yeshiva obtained work permits to demolish the existing structure to build the new school building.
The mortgagee/prior owner brought an injunction action, claiming that the demolition of the existing structure violated the terms of the mortgage (a common clause in the form of mortgage states that the mortgagee's consent is needed before alteration of the structure on the mortgaged premises in order to protect the value of the collateral). During the course of ongoing court conferences, the yeshiva offered to pay off the mortgage in full, but the mortgagee was insistent on obtaining not only the principal amount of $900,000 but also the future 14 1/2 years' worth of interest (a windfall of about $1.2 million).
The mortgagee then decided to unilaterally declare a default under the mortgage, alleging that the disconnection of the water and electric lines amounted to an alteration of the structure; her attorney served an "acceleration notice," demanding the payment of the mortgage in full plus accrued interest.
From an initial review of the situation, it looked bleak for the yeshiva. But, upon further examination, the concept of "tender" saved the day! The yeshiva collected pledges totaling $911,000 (the principal amount plus accrued interest to the date of tender) and deposited that amount with the Clerk of Kings County as a "tender." A motion was then made to dismiss both the injunction and foreclosure actions based upon the tender.
The court held that there was a valid tender, since the mortgagee accelerated the mortgage note, seeking the unpaid principal amount with "accrued" interest. Based upon the ambiguity of the language of the mortgage note, "accrued interest" may have meant interest accrued only to the date of default or future interest past the date of default.
Tender can be effectively utilized in situations where the defendant expects to owe something to the plaintiff but nowhere near the amount claimed. A tender can place a greater onus on the plaintiff to substantiate additional damages. Further, it can be a good method of settling a case by offering the plaintiff an amount which it may be willing to accept to terminate the litigation.
— by Richard A. Klass, Esq.
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copyr. 2015 Richard A. Klass, Esq.
The firm's website: www.CourtStreetLaw.com
Richard A. Klass, Esq., maintains a law firm engaged in civil litigation in Brooklyn Heights, New York.
He may be reached at (718) COURT-ST or e-ml to RichKlass@courtstreetlaw.com with any questions.
Prior results do not guarantee a similar outcome.
Monday, March 30, 2015
New York foreclosure cases nearing 6 year statute of limitations
As reported today in the New York Times, there are increasing numbers of foreclosure cases in New York State where lenders may be unable to seize homes. Why? Because the State's statute of limitations on foreclosure cases may be exceeded.
If you have a foreclosure case that has been dragging on for nearly six years, there may be relief on the horizon.
Does this sound similar to your situation? If so, and if you require legal representation, call my office for more information.
The full New York Times article is available here: http://nyti.ms/1G6IuQ3
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copyr. 2015 Richard A. Klass, Esq.
The firm's website: www.CourtStreetLaw.com
Richard A. Klass, Esq., maintains a law firm engaged in civil litigation in Brooklyn Heights, New York.
He may be reached at (718) COURT-ST or e-ml to RichKlass@courtstreetlaw.com with any questions.
Prior results do not guarantee a similar outcome.
If you have a foreclosure case that has been dragging on for nearly six years, there may be relief on the horizon.
Does this sound similar to your situation? If so, and if you require legal representation, call my office for more information.
The full New York Times article is available here: http://nyti.ms/1G6IuQ3
— by Richard A. Klass, Esq.
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copyr. 2015 Richard A. Klass, Esq.
The firm's website: www.CourtStreetLaw.com
Richard A. Klass, Esq., maintains a law firm engaged in civil litigation in Brooklyn Heights, New York.
He may be reached at (718) COURT-ST or e-ml to RichKlass@courtstreetlaw.com with any questions.
Prior results do not guarantee a similar outcome.
Monday, February 23, 2015
Statute of Limitations for Legal Malpractice Action
CPLR 214(6) provides that “an action to recover damages for malpractice, other than medical, dental or podiatric malpractice, regardless of whether the underlying theory is based in contract or tort” must be commenced within 3 years.
The cause of action for malpractice accrues at the time of the act, error or omission. See, Julian v. Carrol, 270 AD2d 457 [2d Dept. 2000]; Goicoechea v. Law Offices of Stephen Kihl, 234 AD2d 507 [2d Dept. 1996]; Shumsky v. Eisenstein, 96 NY2d 164 [2001].
The Court of Appeals has held that a cause of action for legal malpractice accrues against the attorney when the statute of limitations expires on the underlying action for which the attorney was retained. See, Shumsky v. Eisenstein, supra. In Burgess v. Long Island Railroad Authority, 79 NY2d 777 [1991], the Court of Appeals held:
The Continuous Representation Toll of a Legal Malpractice Action
The accrual of the three-year statute of limitations is tolled during the period of the lawyer’s continuous representation in the same matter out of which the malpractice arose under the theory that the client should not be expected to question the lawyer’s advice while he is still representing the client. See, Lamellen v. Kupplungbau GmbH v. Lerner, 166 AD2d 505 [2d Dept. 1990]; Shumsky v. Eisenstein, supra. Under the continuous representation doctrine, there must be clear indicia of an ongoing, continuous, developing, and dependent relationship between the client and the lawyer. See, Kanter v. Pieri, 11 AD3d 912 [4 Dept. 2004]; Lamellen v. Kupplungbau GmbH v. Lerner, supra; Clark v. Jacobsen, 202 AD2d 466 [2 Dept. 1994].
— by Richard A. Klass, Esq.
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copyr. 2014 Richard A. Klass, Esq.
The firm's website: www.CourtStreetLaw.com
Richard A. Klass, Esq., maintains a law firm engaged in civil litigation in Brooklyn Heights, New York.
He may be reached at (718) COURT-ST or e-ml to RichKlass@courtstreetlaw.com with any questions.
Prior results do not guarantee a similar outcome.
Tuesday, February 3, 2015
Debt Collection Tips: Docketing the Judgment
Once the creditor has obtained a Judgment from a court, the collection process has now begun. In the context of collecting the money due on the Judgment, it may be necessary to "docket" the Judgment in the County Clerk's Office.
In each county of the State, there is a court of general jurisdiction called the "Supreme Court." In some counties, towns, cities, and villages, there are lower courts (such as Civil Court, District Court, etc.). Judgments entered in those courts are not automatic liens upon any realty that the debtor may own in the county. Rather, a "Transcript of Judgment" must be obtained from the court and filed with the County Clerk to create the lien. Once docketed, the Transcript of Judgment will serve as notice to others that there is a lien upon any realty owned by the debtor; other parties are now aware that the lien must be paid according to its priority.
Judgments entered in a Supreme Court case are automatically docketed with the County Clerk.
Unlike New Jersey or some other states, which have state-wide recognition, the Judgment must be docketed by the filing of a Transcript of Judgment in each county in which the debtor has realty in order to create the lien.
The docketing of a Judgment is also essential when attempting to issue an Income Execution to a County Sheriff in another county (where, perhaps, the employer of a debtor is located). Another purpose of docketing a Judgment may be where the Judgment was entered in federal District Court and the creditor wants to use a Sheriff instead of a United States Marshall.
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copyr. 2014 Richard A. Klass, Esq.
The firm's website: www.CourtStreetLaw.com
Richard A. Klass, Esq., maintains a law firm engaged in civil litigation in Brooklyn Heights, New York.
He may be reached at (718) COURT-ST or e-ml to RichKlass@courtstreetlaw.com with any questions.
Prior results do not guarantee a similar outcome.
In each county of the State, there is a court of general jurisdiction called the "Supreme Court." In some counties, towns, cities, and villages, there are lower courts (such as Civil Court, District Court, etc.). Judgments entered in those courts are not automatic liens upon any realty that the debtor may own in the county. Rather, a "Transcript of Judgment" must be obtained from the court and filed with the County Clerk to create the lien. Once docketed, the Transcript of Judgment will serve as notice to others that there is a lien upon any realty owned by the debtor; other parties are now aware that the lien must be paid according to its priority.
Judgments entered in a Supreme Court case are automatically docketed with the County Clerk.
Unlike New Jersey or some other states, which have state-wide recognition, the Judgment must be docketed by the filing of a Transcript of Judgment in each county in which the debtor has realty in order to create the lien.
The docketing of a Judgment is also essential when attempting to issue an Income Execution to a County Sheriff in another county (where, perhaps, the employer of a debtor is located). Another purpose of docketing a Judgment may be where the Judgment was entered in federal District Court and the creditor wants to use a Sheriff instead of a United States Marshall.
— by Richard A. Klass, Esq.
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copyr. 2014 Richard A. Klass, Esq.
The firm's website: www.CourtStreetLaw.com
Richard A. Klass, Esq., maintains a law firm engaged in civil litigation in Brooklyn Heights, New York.
He may be reached at (718) COURT-ST or e-ml to RichKlass@courtstreetlaw.com with any questions.
Prior results do not guarantee a similar outcome.
Tuesday, January 13, 2015
A Day Late and a Dollar Short
A comprehensive medical practice was opening up in an office building and needed extensive renovations in the space. The medical practice hired a construction company to handle the build-out of the office at a cost of over $250,000. The construction contract specified that the contractor would achieve “substantial completion” of the project within 3 months after work began in April 2012. Unfortunately, the project took a lot longer than anticipated (about 9 months). Finally, on January 16, 2013, the project was confirmed by the contractor as complete, and the work was approved by the county. There was even a confirming email from the contractor to the medical provider stating “We Passed!!!” An invoice marked “Final Billing” was rendered, and a Certificate of Compliance was issued by the Building Inspector on January 31, 2013.
Since the project took much longer to complete than anticipated and agreed-upon in the construction contract, the medical provider withheld final payment, claiming it suffered heavy losses including loss of business, substantial rent payments to the landlord for the unusable space and additional overhead expenses.
Mechanic’s Lien Filed
Instead of directly addressing the client’s concerns, on October 8, 2013, the contractor simply filed a “Notice of Mechanic’s Lien” with the County Clerk. New York’s Lien Law Section 10 provides a powerful collection tool to a home improvement or commercial contractor—the right to place a lien upon someone’s house or building:§10(1) Notice of lien may be filed at any time during the progress of the work and the furnishing of the materials, or, within eight months after the completion of the contract, or the final performance of the work, or the final furnishing of the materials, dating from the last item of work performed or materials furnished; provided, however, that where the improvement is related to real property improved or to be improved with a single family dwelling, the notice of lien may be filed at any time during the progress of the work and the furnishing of the materials, or, within four months after the completion of the contract, or the final performance of the work, or the final furnishing of the materials, dating from the last item of work performed or materials furnished.
The “Eight Month” Rule
One of the fundamentals of the Lien Law is that its procedures are to be strictly followed by the lienor. Unlike other areas of law, in which harmless errors can be glossed over, the Lien Law requires punctilious compliance; otherwise, the lien will be invalid. This is mainly because the right to place a lien on someone’s house is such a harsh remedy.After being directed by the landlord to remove the mechanic’s lien, the medical provider retained Richard A. Klass, Your Court Street Lawyer. The first step was to analyze the lien notice itself—and determine whether a proceeding could be brought to discharge the mechanic’s lien under Lien Law §19(6) for being “facially invalid.” This means that, from looking at the face of the notice of lien itself, it may be determined that the lienor does not have a valid lien.
In the lien notice, the contractor had stated that the last item of work was performed on “February 13, 2013.” However the court ruled that all work was completed by January 31, 2013. Thus, the October 8, 2013, lien notice was filed more than 8 months afterward (late filing). This late filing would make the mechanic’s lien invalid under the Lien Law. In Ren. Reh. Systems Co., Inc. v. Faulkner, 85 AD3d 752 [2 Dept. 2011], the court held that the failure of a mechanic’s lien to be timely filed pursuant to the Lien Law was fatal to the mechanic’s lien.
Extra Work Doesn’t Count
In response to the proceeding brought by the medical provider to discharge the mechanic’s lien, the contractor claimed that it sent a subcontractor to the premises to perform some work in March 2013; thus, its filing of the lien was timely. The medical provider challenged this claim by showing the court that the subcontractor only performed a normal service call for “no heat.” It was argued that the court should follow the rule in Nelson v. Schrank, 273 AD72 [2 Dept. 1947], that a mechanic’s lien is not timely filed when measured from the last date that extra work was performed when the extra work was not part of the original contract, anticipated when the original contract was made, or done in continuance of the work under the contract.In discharging the mechanic’s lien, the court held that there was no proof that the extra work completed was part of the original contract, was anticipated when the original contract was made, or constituted work completed under the original contract. Accordingly, the court granted the petition to discharge the mechanic’s lien.
— by Richard A. Klass, Esq.
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copyr. 2015 Richard A. Klass, Esq.
The firm's website: www.CourtStreetLaw.com
Richard A. Klass, Esq., maintains a law firm engaged in civil litigation in Brooklyn Heights, New York.
He may be reached at (718) COURT-ST or e-mail to RichKlass@courtstreetlaw.com with any questions.
Prior results do not guarantee a similar outcome.
Credits: Photo of Richard Klass by Robert Matson, copyr. Richard A. Klass, 2011.
Marketing services by The Innovation Works, Inc. www.TheInnovationWorks.com.
Image at top: Felicitas, by Anton von Werner, 1872.
Monday, December 29, 2014
Cause of Action for Interference with Contract
A cause of action is properly alleged against defendants for their interference with contract when the following elements are set forth:
The Second Department held, in Miller v. Theodore-Tassy, 92 AD3d 650 [2012], that:
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copyr. 2014 Richard A. Klass, Esq.
The firm's website: www.CourtStreetLaw.com
Richard A. Klass, Esq., maintains a law firm engaged in civil litigation in Brooklyn Heights, New York.
He may be reached at (718) COURT-ST or e-ml to RichKlass@courtstreetlaw.com with any questions.
Prior results do not guarantee a similar outcome.
The Second Department held, in Miller v. Theodore-Tassy, 92 AD3d 650 [2012], that:
To prevail on a cause of action alleging tortious interference with contract, a plaintiff must establish "the existence of a valid contract between the plaintiff and a third party, defendant's knowledge of that contract, defendant's intentional procurement of the third-party's breach of the contract without justification, actual breach of the contract, and damages resulting therefrom" citing Lama Holding Co. v. Smith Barney, 88 NY2d 413, 424.
— by Richard A. Klass, Esq.
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copyr. 2014 Richard A. Klass, Esq.
The firm's website: www.CourtStreetLaw.com
Richard A. Klass, Esq., maintains a law firm engaged in civil litigation in Brooklyn Heights, New York.
He may be reached at (718) COURT-ST or e-ml to RichKlass@courtstreetlaw.com with any questions.
Prior results do not guarantee a similar outcome.
Friday, December 19, 2014
Statute Of Limitations For Actions Against Public Authority
A
person has one year from the date a claim accrues to commence an
action against a public authority such as LIRR (Public Authorities
Law §1276(2). The complaint must contain an allegation that at least
30 days have elapsed since the authority was presented with a demand
or claim and that the authority has neglected or refused to adjust or
pay the claim. This “stay” of 30 days is not counted as part of
the limitations period and the plaintiff therefore may serve a
complaint at any time up to one year and 30 days after the claim has
accrued.
— by Richard A. Klass, Esq.
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copyr. 2014 Richard A. Klass, Esq.
The firm's website: www.CourtStreetLaw.com
Richard A. Klass, Esq., maintains a law firm engaged in civil litigation in Brooklyn Heights, New York.
He may be reached at (718) COURT-ST or e-ml to RichKlass@courtstreetlaw.com with any questions.
Prior results do not guarantee a similar outcome.
Friday, December 12, 2014
An attorney maintains a common law and statutory charging lien in the judgment
Under common law, an attorney was originally only entitled to a lien upon the judgment but the scope of the charging lien was extended by statute [Judiciary Law §475] to give the attorney a lien upon the client's cause of action as well. The lien comes into existence, without notice or filing, upon commencement of the action or proceeding. See, Matter of Heinsheimer, 241 NY 361 [1915]. In Matter of Heinsheimer, Judge Cardozo stated,
There is much learning in the books relating to the lien of an attorney upon a judgment for his costs as it existed before the statute, and though now virtually obsolete, it shows the fixed determination of the courts to protect attorneys against fraudulent settlements. The lien upon a judgment was not created by statute, but was ‘a device invented by the courts for the protection of attorneys against the knavery of their clients by disabling their clients from receiving the fruits of recoveries without paying for the valuable services by which the recoveries were obtained.’ Goodrich v. McDonald, 112 NY 157 [1889].
In Peri v. The New York Central and Hudson River Railroad Company, 152 NY 521 [1897], the Court of Appeals held that an attorney’s charging lien is a statutory lien “of which all the world must take notice, and any one settling with a plaintiff without the knowledge of his attorney, does so at his own risk.” In this case, that risk is borne by all of the defendants.
New York Judiciary Law Section 475 provides:
Other parties do not have the ability to destroy the attorney’s vested property rights in and to the Judgment. See, LMWT Realty Corp. v. Davis Agency, Inc., 85 NY2d 462 [1995] (“Manifestly, then, an attorney's charging lien is something more than a mere claim against either property or proceeds; an attorney's charging lien “is a vested property right created by law and not a priority of payment”).
In enforcing the charging lien, the attorney is not required to solely chase after his client for the money he is owed; he can also pursue the other defendants. In Haser v. Haser, 271 AD2d 253 [1 Dept. 2000], the court held that, under New York law, a plaintiff's attorney may enforce her statutory charging lien against the defendant's own assets, if he still possesses the settlement proceeds or knowingly paid them to the plaintiff so as to deprive the attorney of her compensation (citing to Kaplan v Reuss, 113 AD2d 184, 186-187, affd 68 NY2d 693; Fischer-Hansen v Brooklyn Hgts. R. R. Co., 173 NY 492, 502). The lien which attaches in the attorney's favor cannot be impaired by a collusive settlement.
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copyr. 2014 Richard A. Klass, Esq.
The firm's website: www.CourtStreetLaw.com
Richard A. Klass, Esq., maintains a law firm engaged in civil litigation in Brooklyn Heights, New York.
He may be reached at (718) COURT-ST or e-ml to RichKlass@courtstreetlaw.com with any questions.
Prior results do not guarantee a similar outcome.
If the attorney got possession of the fund, he had a general lien. If he did not get possession, his lien was for the services that brought the fund into existence. This charging lien still exists under our statutes. It has been enlarged to the extent that it now attaches to a cause of action even before judgment. ‘From the commencement of an action or special proceeding‘ the attorney now has a lien ‘upon his client's cause of action, claim or counterclaim, which attaches to a verdict, report, decision, judgment or final order in his client's favor, and the proceeds thereof in whosoever hands they may come.‘ (Judiciary Law, Cons. Laws, ch. 30, sec. 475.) Except as thus changed, the charging lien is today what it was at common law.The concept of protecting an attorney’s lien in litigation from inception through and after entry of judgment is an old one. As stated in the decision of Fischer-Hansen v. The Brooklyn Heights Railroad Company, 173 NY 492 [1903].
There is much learning in the books relating to the lien of an attorney upon a judgment for his costs as it existed before the statute, and though now virtually obsolete, it shows the fixed determination of the courts to protect attorneys against fraudulent settlements. The lien upon a judgment was not created by statute, but was ‘a device invented by the courts for the protection of attorneys against the knavery of their clients by disabling their clients from receiving the fruits of recoveries without paying for the valuable services by which the recoveries were obtained.’ Goodrich v. McDonald, 112 NY 157 [1889].
In Peri v. The New York Central and Hudson River Railroad Company, 152 NY 521 [1897], the Court of Appeals held that an attorney’s charging lien is a statutory lien “of which all the world must take notice, and any one settling with a plaintiff without the knowledge of his attorney, does so at his own risk.” In this case, that risk is borne by all of the defendants.
New York Judiciary Law Section 475 provides:
From the commencement of an action, special or other proceeding in any court or before any state, municipal or federal department, except a department of labor, or the service of an answer containing a counterclaim, or the initiation of any means of alternative dispute resolution including, but not limited to, mediation or arbitration, or the provision of services in a settlement negotiation at any stage of the dispute, the attorney who appears for a party has a lien upon his client's cause of action, claim or counterclaim, which attaches to a verdict, report, determination, decision, award, settlement, judgment or final order in his client's favor, and the proceeds thereof in whatever hands they may come; and the lien cannot be affected by any settlement between the parties before or after judgment, final order or determination. The court upon the petition of the client or attorney may determine and enforce the lien.The Court of Appeals noted, in Matter of City of New York (United States of America-Coblentz), 5 NY2d 300 [1959], that the statute gives an attorney a lien on the cause of action which attaches to the judgment from the commencement of the action. In the decision, the Court stated that Section 475, in substance, declares the common law. The origin of an attorney's lien, whether as retaining or as charging, is obscure, but in all events, irrespective of type, has been recognized and enforced by the courts from very early times (see Fourth Annual Report of N. Y. Judicial Council, 1938, p. 49; 7 C. J. S., Attorney and Client, § 210 et seq.; 5 Am. Jur., Attorneys at Law, § 208 et seq.). The underlying purpose at both common law and now, by statute, is to protect an attorney against the ‘knavery of his client’ (Matter of Rosentover v. Weiss, 247 AD 137 affirmed 272 N.Y 557; Goodrich v. McDonald, 112 NY 157) and, being created by statute, does not require the giving of any notice in order to bring it into existence (Matter of Drake v. Pierce Butler Radiator Corp., 202 Misc. 935) for it is generally regarded as an equitable assignment to the attorney of the fund procured by his efforts to the extent of the amount of his lien (Matter of Herlihy, 274 AD 342).
Other parties do not have the ability to destroy the attorney’s vested property rights in and to the Judgment. See, LMWT Realty Corp. v. Davis Agency, Inc., 85 NY2d 462 [1995] (“Manifestly, then, an attorney's charging lien is something more than a mere claim against either property or proceeds; an attorney's charging lien “is a vested property right created by law and not a priority of payment”).
In enforcing the charging lien, the attorney is not required to solely chase after his client for the money he is owed; he can also pursue the other defendants. In Haser v. Haser, 271 AD2d 253 [1 Dept. 2000], the court held that, under New York law, a plaintiff's attorney may enforce her statutory charging lien against the defendant's own assets, if he still possesses the settlement proceeds or knowingly paid them to the plaintiff so as to deprive the attorney of her compensation (citing to Kaplan v Reuss, 113 AD2d 184, 186-187, affd 68 NY2d 693; Fischer-Hansen v Brooklyn Hgts. R. R. Co., 173 NY 492, 502). The lien which attaches in the attorney's favor cannot be impaired by a collusive settlement.
— by Richard A. Klass, Esq.
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copyr. 2014 Richard A. Klass, Esq.
The firm's website: www.CourtStreetLaw.com
Richard A. Klass, Esq., maintains a law firm engaged in civil litigation in Brooklyn Heights, New York.
He may be reached at (718) COURT-ST or e-ml to RichKlass@courtstreetlaw.com with any questions.
Prior results do not guarantee a similar outcome.
Thursday, November 13, 2014
Commercial tenants/Sublessors are responsible entities under the Labor Law
Pursuant
to binding Court of Appeals precedents, as well as Appellate
Division, First and Second Department precedents, commercial
tenants/sublessors are responsible entities for purposes of Labor Law
Section 240(1).
See Glielmi v. Toys "R" Us, Inc., 62 N.Y.2d 664, 666, 476 N.Y.S.2d 283, 284, 464 N.E.2d 981, 982 (1984) (“The jury was charged that the owner trustees and the tenant were to be considered a single unit for purposes of determining liability to the injured plaintiff. There was evidence from which the jury could properly have found that both were absolutely liable under subdivision 1 of section 240 of the Labor Law”); Godoy v. Baisley Lumber Corp., 40 A.D.3d 920, 921, 837 N.Y.S.2d 682, 683- 684 (2d Dep’t 2007); Murphy v. Sawmill Construction Corp., 17 A.D.3d 422, 424, 792 N.Y.S.2d 616, 618 (2d Dep’t 2005) (“We note that the term ‘owner,’ for purposes of Labor Law §§ 240(1) and 241(6), has been construed to include not only property owners but, under certain circumstances, also those who have an interest in property, such as easement holders and lessees (see Kane v. Coundorous, 293 A.D.2d 309, 739 N.Y.S.2d 711; Copertino v. Ward, 100 A.D.2d 565, 473 N.Y.S.2d 494).”); Bell v. Bengomo Realty, Inc., 36 A.D.3d 479, 480, 829 N.Y.S.2d 42, 44 (1st Dep’t 2007) (“Summary judgment in favor of plaintiff on the issue of liability under Labor Law § 240 (1) should have been granted as against Bengomo Realty as the owner of the property); see Coleman v. City of New York, 91 N.Y.2d 821, 822-823, 666 N.Y.S.2d 553, 689 N.E.2d 523 [1997]; Spagnuolo v. Port Auth. of N.Y. & N.J., 8 A.D.3d 64, 778 N.Y.S.2d 23 [2004] ), and Willow Media who, as lessee, contracted for the work (see Guzman v. L.M.P. Realty Corp., 262 A.D.2d 99, 691 N.Y.S.2d 483 [1999] ).”); Meade v. Rock-McGraw, Inc., 307 A.D.2d 156, 158-159, 760 N.Y.S.2d 39, 41-42 (1st Dep’t 2003) (“After discovery, plaintiff moved for summary judgment against defendants, Rock-McGraw, Inc., the building owner, McGraw-Hill Companies, Inc., the building lessee, and Morgan Stanley & Co., Incorporated, the sublessee of the 44th floor, on his Labor Law § 240(1) claim, arguing that the ladder was not secured by another worker, that the ladder fell because the floor was slippery and the ladder lacked footings and that defendants had breached their duty to insure that the ladder was placed so as to give him proper protection. ...Depending on the fact finder's determination, plaintiff may, however, establish a section 240(1) violation for failure to provide a proper safety device.”); Kane v. Coundorous, 293 A.D.2d 309, 311, 739 N.Y.S.2d 711, 714 (1st Dep’t 2002) (“A lessee of property under construction is deemed to be an ‘owner’ for purposes of liability under Article 10 of New York's Labor Laws (see, e.g., Glielmi v. Toys "R" Us, 62 N.Y.2d 664, 476 N.Y.S.2d 283, 464 N.E.2d 981; Bart v. Universal Pictures, 277 A.D.2d 4,5, 715 N.Y.S.2d 240; Tate v. Clancy Cullen Storage Co., 171 A.D.2d 292, 295, 575 N.Y.S.2d 832; Copertino v. Ward, 100 A.D.2d 565, 566, 473 N.Y.S.2d 494).”); Wehmeyer v. Port Authority of New York and New Jersey, 248 A.D.2d 187, 188, 669 N.Y.S.2d 578, 579 (1st Dep’t 1998).
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copyr. 2014 Richard A. Klass, Esq.
The firm's website: www.CourtStreetLaw.com
Richard A. Klass, Esq., maintains a law firm engaged in civil litigation in Brooklyn Heights, New York.
He may be reached at (718) COURT-ST or e-ml to RichKlass@courtstreetlaw.com with any questions.
Prior results do not guarantee a similar outcome.
See Glielmi v. Toys "R" Us, Inc., 62 N.Y.2d 664, 666, 476 N.Y.S.2d 283, 284, 464 N.E.2d 981, 982 (1984) (“The jury was charged that the owner trustees and the tenant were to be considered a single unit for purposes of determining liability to the injured plaintiff. There was evidence from which the jury could properly have found that both were absolutely liable under subdivision 1 of section 240 of the Labor Law”); Godoy v. Baisley Lumber Corp., 40 A.D.3d 920, 921, 837 N.Y.S.2d 682, 683- 684 (2d Dep’t 2007); Murphy v. Sawmill Construction Corp., 17 A.D.3d 422, 424, 792 N.Y.S.2d 616, 618 (2d Dep’t 2005) (“We note that the term ‘owner,’ for purposes of Labor Law §§ 240(1) and 241(6), has been construed to include not only property owners but, under certain circumstances, also those who have an interest in property, such as easement holders and lessees (see Kane v. Coundorous, 293 A.D.2d 309, 739 N.Y.S.2d 711; Copertino v. Ward, 100 A.D.2d 565, 473 N.Y.S.2d 494).”); Bell v. Bengomo Realty, Inc., 36 A.D.3d 479, 480, 829 N.Y.S.2d 42, 44 (1st Dep’t 2007) (“Summary judgment in favor of plaintiff on the issue of liability under Labor Law § 240 (1) should have been granted as against Bengomo Realty as the owner of the property); see Coleman v. City of New York, 91 N.Y.2d 821, 822-823, 666 N.Y.S.2d 553, 689 N.E.2d 523 [1997]; Spagnuolo v. Port Auth. of N.Y. & N.J., 8 A.D.3d 64, 778 N.Y.S.2d 23 [2004] ), and Willow Media who, as lessee, contracted for the work (see Guzman v. L.M.P. Realty Corp., 262 A.D.2d 99, 691 N.Y.S.2d 483 [1999] ).”); Meade v. Rock-McGraw, Inc., 307 A.D.2d 156, 158-159, 760 N.Y.S.2d 39, 41-42 (1st Dep’t 2003) (“After discovery, plaintiff moved for summary judgment against defendants, Rock-McGraw, Inc., the building owner, McGraw-Hill Companies, Inc., the building lessee, and Morgan Stanley & Co., Incorporated, the sublessee of the 44th floor, on his Labor Law § 240(1) claim, arguing that the ladder was not secured by another worker, that the ladder fell because the floor was slippery and the ladder lacked footings and that defendants had breached their duty to insure that the ladder was placed so as to give him proper protection. ...Depending on the fact finder's determination, plaintiff may, however, establish a section 240(1) violation for failure to provide a proper safety device.”); Kane v. Coundorous, 293 A.D.2d 309, 311, 739 N.Y.S.2d 711, 714 (1st Dep’t 2002) (“A lessee of property under construction is deemed to be an ‘owner’ for purposes of liability under Article 10 of New York's Labor Laws (see, e.g., Glielmi v. Toys "R" Us, 62 N.Y.2d 664, 476 N.Y.S.2d 283, 464 N.E.2d 981; Bart v. Universal Pictures, 277 A.D.2d 4,5, 715 N.Y.S.2d 240; Tate v. Clancy Cullen Storage Co., 171 A.D.2d 292, 295, 575 N.Y.S.2d 832; Copertino v. Ward, 100 A.D.2d 565, 566, 473 N.Y.S.2d 494).”); Wehmeyer v. Port Authority of New York and New Jersey, 248 A.D.2d 187, 188, 669 N.Y.S.2d 578, 579 (1st Dep’t 1998).
— by Richard A. Klass, Esq.
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copyr. 2014 Richard A. Klass, Esq.
The firm's website: www.CourtStreetLaw.com
Richard A. Klass, Esq., maintains a law firm engaged in civil litigation in Brooklyn Heights, New York.
He may be reached at (718) COURT-ST or e-ml to RichKlass@courtstreetlaw.com with any questions.
Prior results do not guarantee a similar outcome.
Wednesday, November 5, 2014
Klass in the News: Yoko Ono’s publicist sues Eataly for $20M after bouncer ‘beatdown’
By Julia Marsh and Natasha Velez
PageSix
August 29, 2014 | 11:52amPageSix
Maybe the security guards at Mario Batali‘s Eataly need to give peace a chance.
Yoko Ono‘s publicist is suing the Manhattan pasta emporium for at least $20 million after he was allegedly beaten up by bouncers, thrown through a glass window and then called a “p—–” and a “f—–.”
Kip Kouri, head of Tell All Your Friends PR, was trying to get a table at Eataly’s popular rooftop beer garden Birreria on July 17 when he was “violently assaulted by” 10 unnamed security guards, according to his Manhattan civil suit.
His attorney, Richard Klass, told The Post his client was at the Fifth Avenue eatery with his boyfriend, sister and stepmother and got into an argument with the hostess about his reservation....(more)
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copyr. 2014 Richard A. Klass, Esq.
The firm's website: www.CourtStreetLaw.com
Richard A. Klass, Esq., maintains a law firm engaged in civil litigation in Brooklyn Heights, New York.
He may be reached at (718) COURT-ST or e-ml to RichKlass@courtstreetlaw.com with any questions.
Prior results do not guarantee a similar outcome.
Wednesday, October 22, 2014
Repairs are a covered activity under the Labor Law
Binding
precedents of the Court of Appeals, as well as the Appellate
Division, First and Second Department hold that a worker assigned by
his employer to perform repairs to a damaged or inoperable structure
are a covered activity for purposes of the Labor Law, not merely
routine maintenance. See Prats v. Port Authority of New
York and New Jersey, 100 N.Y.2d 878, 880, 768 N.Y.S.2d 178,
179, 800 N.E.2d 351, 352 (2003); Riccio v. NHT Owners, LLC,
51 A.D.3d 897, 899, 858 N.Y.S.2d 363, 366 (2d Dep’t 2008); Rios
v. WVF Paramount 545 Property, LLP, 36 A.D.3d 511, 828 N.Y.S.2d
368, 369 (1st Dep’t 2007); Bruce v. Fashion Square
Associates, 8 A.D.3d 1053, 1054, 778 N.Y.S.2d 823, 824 (4th Dep’t
2004); Kerr v. Louisville Housing, Inc., 2 A.D.3d
924, 926, 769 N.Y.S.2d 616, 619 (3d Dep’t 2003); Craft v.
Clark Trading Corp., 257 A.D.2d 886, 887, 684 N.Y.S.2d 48, 49-50
(3d Dep’t 1999); Holka v. Mt. Mercy Academy, 221
A.D.2d 949, 949, 634 N.Y.S.2d 310, 311 (4th Dep’t 1995).
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copyr. 2014 Richard A. Klass, Esq.
The firm's website: www.CourtStreetLaw.com
Richard A. Klass, Esq., maintains a law firm engaged in civil litigation in Brooklyn Heights, New York.
He may be reached at (718) COURT-ST or e-ml to RichKlass@courtstreetlaw.com with any questions.
Prior results do not guarantee a similar outcome.
Binding
precedents from all four Departments of the Appellate Division
recognize that welding is a covered activity for purposes of the
Labor Law. SeeElkins v. Robbins & Cowan, Inc., 237
A.D.2d 404, 405-406, 655 N.Y.S.2d 563, 564 (2d Dep’t 1997); Allen
v. Telergy Network Services, Inc., 52 A.D.3d 1094, 1097, 860
N.Y.S.2d 299, 303 (3d Dep’t 2008); Spadola v. 260/261
Madison Equities Corp., 19 A.D.3d 321, 323, 798 N.Y.S.2d 38, 40
(1st Dep’t 2005); Shields v. General Elec. Co., 3
A.D.3d 715, 717, 771 N.Y.S.2d 249, 252 (3d Dep’t 2004); Baum
v. Ciminelli-Cowper Co., Inc., 300 A.D.2d 1028, 1029, 755
N.Y.S.2d 138, 139 (4th Dep’t 2002); Noble v. AMCC Corp.,
277 A.D.2d 20, 714 N.Y.S.2d 495, 496 (1st Dep’t 2000).
Binding
Appellate Division, First Department precedents and precedents in
Kings County hold that “[a]n eight feet high chain link fence is a
structure within the meaning of Labor Law Section 240(1) and, an
injury occurring while in the course of [repairing, erecting or]
removing it is a covered activity [citations omitted].” Romero
v. Trump Village Apartments Two LLC, 20 Misc.3d 1145(A), 873
N.Y.S.2d 237 (Table) 2008 WL 4274483*1 (Sup.Ct. Kings County
September 16, 2008); see Carino v. Webster Place Associates, LP,
45 A.D.3d 351, 352, 845 N.Y.S.2d 60, 61 (1st Dep’t 2007);
see Riccio, 51 A.D.3d at 899, 858 N.Y.S.2d at 366; Rios,
36 A.D.3d at 511, 828 N.Y.S.2d at 369), which required covered
welding (see Elkins, 237 A.D.2d at 405-406, 655 N.Y.S.2d
at 564; Allen, 52 A.D.3d at 1097, 860 N.Y.S.2d at
303; Spadola, 19 A.D.3d at 323, 798 N.Y.S.2d at 40), on a
fence, a structure for purposes of the Labor Law. (see Carino,
45 A.D.3d at 352, 845 N.Y.S.2d at 61; Romero, 20 Misc.3d
1145(A), 873 N.Y.S.2d 237 (Table) 2008 WL 4274483 at *1).
An
assertion that, even if a worker’s activities were otherwise
a covered repair, Labor Law § 240(1) would not apply because there
was no ongoing construction project would also fail. The Court
of Appeals, in its landmark Joblon decision, as well
as precedents binding Appellate Division, First and Second Department
precedents expressly reject the defendant-appellant’s argument,
holding that where the worker is performing otherwise “protected
activities under Labor Law § 240(1)”, expressly including repairs,
alteration of a structure, or painting, said work “need not have
been incidental to the other listed activities, such as construction,
repair, or alteration, to be covered [citations omitted].” Loreto
v. 376 St. Johns Condominium, Inc., 15 A.D.3d 454, 455, 790
N.Y.S.2d 190, 191-192 (2d Dep’t 2005) (“The scraping and painting
performed by the plaintiff were protected activities under Labor Law
§ 240(1) and need not have been incidental to the other listed
activities, such as construction, repair, or alteration, to be
covered (see De Oliveira v. Little John's Moving, 289
A.D.2d 108, 734 N.Y.S.2d 165, citing Perez v. Spring Cr. Assocs., 265
A.D.2d 314, 696 N.Y.S.2d 468; Livecchi v. Eastman Kodak
Co., 258 A.D.2d 916, 685 N.Y.S.2d 515).”); see Joblon
v. Solow, 91 N.Y.2d 457, 463-464, 672 N.Y.S.2d 286, 289-290, 695
N.E.2d 237, 240-241 (1998); Blair v. Cristani, 296 A.D.2d
471, 472, 745 N.Y.S.2d 468, 468-469 (2d Dep’t 2002); De
Oliveira v. Little John's Moving, Inc., 289 A.D.2d 108, 734
N.Y.S.2d 165, 166 (1st Dep’t 2001) (“The scraping performed by
plaintiff is encompassed within the term "painting" in
section 240(1) (see, Perez v. Spring Creek Assocs., 265
A.D.2d 314, 696 N.Y.S.2d 468; Livecchi v. Eastman Kodak
Co., 258 A.D.2d 916, 685 N.Y.S.2d 515), and need not have been
incidental to the other listed activities, such as construction,
repair or alteration, to be covered (cf., Bustamante v. Chase
Manhattan Bank, 241 A.D.2d 327, 659 N.Y.S.2d 284; Chapman
v. International Bus. Machs., 253 A.D.2d 123, 127, 686
N.Y.S.2d 888).”); Cornacchione v. Clark Concrete Co.,
Inc., 278 A.D.2d 800, 801, 723 N.Y.S.2d 572, 573 (4th Dep’t
2000); Chapman v. International Business Machines
Corporation, 253 A.D.2d 123, 127, 686 N.Y.S.2d 888, 891-892
(3d Dep’t 1999) (“We note that, under this statute, ‘cleaning *
* * of a building or structure’ is listed in the alternative to a
series of other covered activity, i.e. covered activities include the
‘erection, demolition, repairing, altering, painting, cleaning or
pointing of a building’ (Labor Law § 240[1] [emphasis supplied]
). In our view, under a plain reading of the statute, there is
no requirement or condition that commercial cleaning be incidental to
the other listed activities, such as construction, repair or
alteration activity, to be covered.”). In its landmark decision
in Joblon, 91 N.Y.2d at 463-464, 672 N.Y.S.2d at 289-290,
695 N.E.2d at 240-241, the Court of Appeals, expressly rejecting this
argument, held as follows:
“Thus, defendants suggest that a guiding principle for courts should be to examine the context of the work leading to the injury, and only when it is performed as part of a building construction job should Labor Law § 240(1) liability attach.
Such a rule would, of course, ignore prior holdings that workers injured while cleaning a railway car (Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555, 606 N.Y.S.2d 127, 626 N.E.2d 912, supra ), repairing an electrical sign (Izrailev v. Ficarra Furniture, 70 N.Y.2d 813, 523 N.Y.S.2d 432, 517 N.E.2d 1318) or painting a house (Rivers v. Sauter, 26 N.Y.2d 260, 309 N.Y.S.2d 897, 258 N.E.2d 191) come within the ambit of the statute even though they were not working at a building construction site. Furthermore, we have already defined a ‘structure,’ for purposes of Labor Law § 240(1), as ‘'any production or piece of work artificially built up or composed of parts joined together in some definite manner'’ (Lewis Moors v. Contel of N.Y., 78 N.Y.2d 942, 943, 573 N.Y.S.2d 636, 578 N.E.2d 434). Now to limit the statute's reach to work performed on a construction site would eliminate possible recovery for work performed on many structures falling within the definition of that term but found off construction sites (see, e.g., id. [telephone pole]; Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555, 606 N.Y.S.2d 127, 626 N.E.2d 912, supra [railway car] ).”
In Cornacchione,
278 A.D.2d at 801, 723 N.Y.S.2d at 573, the Appellate Division,
Fourth Department held that other statutorily enumerated activities,
such as painting or repairs, need not be incidental to other listed
activities, such as construction or renovation, to fit within Labor
Law §§ 240(1) or 241(6):
“Finally, we conclude that the painting work being performed by plaintiff's decedent was an activity covered by Labor Law § 240(1) and § 241(6). “[T]here is no requirement or condition that [painting] be incidental to the other listed activities, such as construction, repair or alteration activity, to be covered” (Chapman v. International Bus. Machs., 253 A.D.2d 123, 127, 686 N.Y.S.2d 888; see also, Bustamante v. Chase Manhattan Bank, 241 A.D.2d 327, 659 N.Y.S.2d 284). We therefore modify the order in appeal No. 1 by denying the motion of Piscitell in part and reinstating the Labor Law § 241(6) claim against it.”
In Blair,
296 A.D.2d at 472, 745 N.Y.S.2d at 468-469, the Appellate Division,
Second Department, citing Cornacchione, 278 A.D.2d at
801, 723 N.Y.S.2d at 573, identically held that painting, one of the
statutorily enumerated activities, like performing repairs, was a
covered activity for purposes of Labor Law § 241(6), independent of
any construction or renovation:
“The plaintiff is also entitled to summary judgment on the cause of action pursuant to Labor Law § 241(6) and the branch of the defendant's motion which was to dismiss that cause of action should have been denied. Contrary to the determination of the Supreme Court, the activity in which the plaintiff was engaged when he was injured falls within the scope of Labor Law § 241(6) (see 12 NYCRR 23-1.4[b][13]; Cornacchione v. Clark Concrete Co., 278 A.D.2d 800, 723 N.Y.S.2d 572; Vernieri v. Empire Realty Co., 219 A.D.2d 593, 595, 631 N.Y.S.2d 378).”
It
is irrelevant whether repair work, a statutorily enumerated activity,
took place in a construction context or incidental to a construction
or renovation project (see Blair, 296 A.D.2d at 472, 745
N.Y.S.2d at 468-469; Cornacchione, 278 A.D.2d at 801, 723
N.Y.S.2d at 573), as repairing a broken fence constitutes a
statutorily enumerated covered repair for purposes of both Labor Law
§ 240(1) (see Beehner, 3 N.Y.3d at 752, 821 N.E.2d at
941, 788 N.Y.S.2d at 637; Prats, 100 N.Y.2d at 880, 882,
768 N.Y.S.2d at 179, 181, 800 N.E.2d at 352, 354; Juchniewicz,
46 A.D.3d at 624, 848 N.Y.S.2d at 257-258; Bruce, 8 A.D.3d at 1054,
778 N.Y.S.2d at 824; Franco, 280 A.D.2d at 409-410, 721
N.Y.S.2d at 5).
— by Richard A. Klass, Esq.
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copyr. 2014 Richard A. Klass, Esq.
The firm's website: www.CourtStreetLaw.com
Richard A. Klass, Esq., maintains a law firm engaged in civil litigation in Brooklyn Heights, New York.
He may be reached at (718) COURT-ST or e-ml to RichKlass@courtstreetlaw.com with any questions.
Prior results do not guarantee a similar outcome.
Wednesday, October 15, 2014
Klass in the News: Eataly sued by Yoko Ono’s public relations agent, who restaurant rep says was 'visibly intoxicated'
Kip Kouri claims he was ‘thrown’ through a plate glass window by bouncers who also made homophobic remarks. In a statement, restaurant spokeswoman Cristina Villa said Kouri was 'acting as a potential threat to others.'
By Barbara Ross and Corky Siemaszko
New York Daily News
Published: August 29, 2014, 11:29am
Updated: August 30, 2014, 12:14am
What a pane!
Yoko Ono’s flack claims he was “thrown” through a plate glass window by three bigoted bouncers at celebrity chef Mario Batali’s eatery Eataly, and is now suing the operation for $10 million.
Kip Kouri claims in court papers the strongmen called him a “p---y” and a “f----t” and that he suffered a severe gash on one leg that required 60 stitches to close.
“It took a significant amount of force to do what they did,” Kouri’s lawyer, Richard Klass, said Friday. “This was a thick window.”...(more)
-----------
copyr. 2014 Richard A. Klass, Esq.
The firm's website: www.CourtStreetLaw.com
Richard A. Klass, Esq., maintains a law firm engaged in civil litigation in Brooklyn Heights, New York.
He may be reached at (718) COURT-ST or e-ml to RichKlass@courtstreetlaw.com with any questions.
Prior results do not guarantee a similar outcome.
By Barbara Ross and Corky Siemaszko
New York Daily News
Published: August 29, 2014, 11:29am
Updated: August 30, 2014, 12:14am
What a pane!
Yoko Ono’s flack claims he was “thrown” through a plate glass window by three bigoted bouncers at celebrity chef Mario Batali’s eatery Eataly, and is now suing the operation for $10 million.
Kip Kouri claims in court papers the strongmen called him a “p---y” and a “f----t” and that he suffered a severe gash on one leg that required 60 stitches to close.
“It took a significant amount of force to do what they did,” Kouri’s lawyer, Richard Klass, said Friday. “This was a thick window.”...(more)
-----------
copyr. 2014 Richard A. Klass, Esq.
The firm's website: www.CourtStreetLaw.com
Richard A. Klass, Esq., maintains a law firm engaged in civil litigation in Brooklyn Heights, New York.
He may be reached at (718) COURT-ST or e-ml to RichKlass@courtstreetlaw.com with any questions.
Prior results do not guarantee a similar outcome.
Wednesday, October 8, 2014
Pay the Worker on the Day He (or She) Works
This guiding principle is so important that it is laid out in several passages throughout the Bible. It is incumbent upon an employer to pay the wages of its employees on a timely basis. If the employer does not pay its employees, New York State law provides employees with significant remedies, including an entitlement to monetary penalties against the employer over and above the unpaid wages and the recovery of attorney’s fees.
Some teachers in a private religious school were
not paid their salaries for several months. The school’s administration claimed
that, due to the nonpayment of tuition by a large number of the parent body,
the school could not pay these teachers. In the meantime, however, the school
continued to pay some of its teachers, business-as-usual. One of the teachers
who was not paid her salary hired Richard
A. Klass, Your Court Street Lawyer,
to help recover her unpaid wages.
100% liquidated damages under NY’s labor law
An action was brought on behalf of the teacher
against the private religious school for the unpaid wages. The complaint also
sought the additional amount of liquidated damages that may be awarded to an
employee for wages owed by an employer on an unpaid wage claim. The entitlement
to this additional element of damages (“equal to 100% of the total amount of
the wages found to be due”) and reasonable attorney’s fees are provided for in
New York State Labor Law §198(1-a). Specifically, Labor Law §198(1-a) provides, in relevant part:
In any action instituted in the courts upon a wage claim by an employee or the commissioner in which the employee prevails, the court shall allow such employee to recover the full amount of any underpayment, all reasonable attorney's fees, prejudgment interest as required under the civil practice law and rules, and, unless the employer proves a good faith basis to believe that its underpayment of wages was in compliance with the law, an additional amount as liquidated damages equal to one hundred percent of the total amount of the wages found to be due.Under the above statute, an employer must be able to prove that it had a “good faith basis” to believe that its failure to pay its employees was in compliance with the law in order to avoid an award of liquidated damages. In this case, it was urged that the school had no valid basis for not paying its teachers.
Religious school can be sued in secular court
The religious school argued that the
Establishment Clause of the United States Constitution (separation of church
and state) barred the government’s excessive entanglement in religion—in
essence, stating that this dispute belonged in a rabbinical court. In response
to this argument, it was urged that this case was not about religion; it was
squarely and fundamentally about the breach of an employment contract.
Courts can apply ‘neutral principles of law’ to dispute
Respecting the place of religion in American
society, courts will generally decline to involve themselves in disputes
involving religious institutions except under limited circumstances. New York
State’s highest court, the Court of Appeals, in Congregation Yetev Lev D’Satmar, Inc. v. Kahan, held that where the
matter to be decided does not involve questions of discipline and doctrine but
is a temporal matter, a court may inquire and consider the same in the light of
the civil contractual rights and obligations of the parties. The Court of
Appeals stated, “Civil disputes involving religious parties or institutions may
be adjudicated without offending the First Amendment as long as neutral
principles of law are the basis for their resolution (see First Presbyterian Church of Schenectady v. United Presbyterian Church
in the United States of America). The “neutral principles of law” approach
requires the court to apply objective, well-established principles of secular
law to the issues.”
In Saffra
v. Rockwood Park Jewish Center, Inc., the court held that issues
surrounding a rabbi’s employment agreement with a synagogue were not an
ecclesiastical matter but rather a matter dealing with a “mundane” contract to
be construed by a court. New York law recognizes that “a religious corporation
is liable on its contracts the same as any other corporation and, generally,
questions concerning the contractual liability of a religious corporation are
controlled by the principles governing the contractual powers and liability of
corporations generally.” See, 92 N.Y. Jur.2d
Religious Organizations, §16. Accordingly, the fact that the school was a
religious school would be irrelevant to its liability for breaching its
contractual obligations to its teachers for unpaid wages.
There were no religious issues or doctrines
presented in this case; the action was brought solely to enforce the teacher’s
contract rights to recover her unpaid wages for the period of time that she had
already performed under her teaching contract. Faced with the arguments put
forth by the teacher, the school relented and paid over $23,000 of back wages
owed to the teacher, along with all of her legal fees and expenses.
— by Richard A. Klass, Esq.
-----------
copyr. 2014 Richard A. Klass, Esq.
The firm's website: www.CourtStreetLaw.com
Richard A. Klass, Esq., maintains a law firm engaged in civil litigation in Brooklyn Heights, New York.
He may be reached at (718) COURT-ST or e-ml to RichKlass@courtstreetlaw.com with any questions.
Prior results do not guarantee a similar outcome.
Credits: Photo of Richard Klass by Robert Matson, copyr. Richard A. Klass, 2011.
Marketing services by The Innovation Works, Inc. www.TheInnovationWorks.com.
Image on page one: We can do it!, ca. 1942 - ca. 1943; Creator(s): Office for Emergency Management. War Production Board.
Marketing services by The Innovation Works, Inc. www.TheInnovationWorks.com.
Image on page one: We can do it!, ca. 1942 - ca. 1943; Creator(s): Office for Emergency Management. War Production Board.
Wednesday, October 1, 2014
Liability for not having safety devices
Binding
precedents from all four Departments of the Appellate Division,
including Second Department precedents hold that where it is
uncontested that the plaintiff was injured as a result of falling
from a ladder, and “at the time of his fall, there were no safety
belts, nets, or other safety devices in the area, and he was not
equipped with any safety devices. Under the circumstances, the
plaintiff established his prima facie entitlement to judgment as a
matter of law on the issue of liability on the cause of action
pursuant to Labor Law § 240(1)” Denis v. City of New York,
54 A.D.3d 803, 803-804, 863 N.Y.S.2d 773, 773-774 (2d Dep’t 2008);
see Lesisz v. Salvation Army, 40 A.D.3d 1050, 837
N.Y.S.2d 238, 240 (2d Dep’t 2007); Velasco v. Green Wood
Cemetery, 8 A.D.3d 88, 89, 779 N.Y.S.2d 459, 459-460 (1st Dep’t
2004).
In Velasco,
8 A.D.3d at 89, 779 N.Y.S.2d at 459-460, the Appellate Division,
First Department expressly held as follows, directly refuting defense
counsel’s ridiculous claim that the subject precedents do not stand
for this proposition:
“Defendants argue that the ladder was in no way defective, and that the only cause of the accident was plaintiff's own negligence in helping to set up the ladder in soil and then using it even though he knew that his co-worker was not holding it. The argument overlooks plaintiff's evidence that no safety devices were provided to protect him in the event the ladder slipped. Given an unsecured ladder and no other safety devices, plaintiff cannot be held solely to blame for his injuries (see Davis v. Selina Dev. Corp., 302 A.D.2d 304, 305, 754 N.Y.S.2d 872; Bonanno v. Port Auth., 298 A.D.2d 269, 270, 750 N.Y.S.2d 7; cf. Blake v. Neighborhood Hous. Servs., 1 N.Y.3d 280, 290, 771 N.Y.S.2d 484, 803 N.E.2d 757). Plaintiff's use of the ladder without his co-worker present amounted, at most, to comparative negligence, which is not a defense to a section 240(1) claim (see Hernandez v. 151 Sullivan Tenant Corp., 307 A.D.2d 207, 208, 762 N.Y.S.2d 603).”In Denis, 54 A.D.3d at 803-804, 863 N.Y.S.2d at 773-774, the express language of the Appellate Division, Second Department also directly contradicts the defense counsel’s specious contention:
“As the plaintiff was removing one of the guard frames, the ladder began to shake, causing him to fall to the ground. In his affidavit, the plaintiff asserted that at the time of his fall, there were no safety belts, nets, or other safety devices in the area, and he was not equipped with any safety devices. Under the circumstances, the plaintiff established his prima facie entitlement to judgment as a matter of law on the issue of liability on the cause of action pursuant to Labor Law § 240(1) ( see Ricciardi v. Bernard Janowitz Constr. Corp., 49 A.D.3d 624, 853 N.Y.S.2d 373; Argueta v. Pomona Panorama Estates, Ltd.,39 A.D.3d 785, 786, 835 N.Y.S.2d 358; Boe v. Gammarati, 26 A.D.3d 351, 351-352, 809 N.Y.S.2d 550; Loreto v. 376 St. Johns Condominium, Inc., 15 A.D.3d 454, 455, 790 N.Y.S.2d 190; Guzman v. Gumley-Haft, Inc., 274 A.D.2d 555, 556, 712 N.Y.S.2d 45).”Appellate Division, First, Second and Third Department precedents hold that a fall from a ladder or scaffold precipitated by the materials with which plaintiff was working or type of work that the plaintiff was performing, including (1) an electrician being shocked by live wires, (2) a person who fell from a ladder while working on a fence, or (3) a carpenter installing a sign falling from a ladder when the sign suddenly and unexpectedly came loose, sets forth a prima facie violation of the Labor Law, as “it is plain that the ladder he used was not an adequate safety device for the task he was performing, rendering defendants, who admittedly provided no safety devices, absolutely liable under section 240(1) [citations omitted].” Kadoic v. 1154 First Ave. Tenants Corp., 277 A.D.2d 66, 716 N.Y.S.2d 386, 387 (1st Dep’t 2000); see Castillo v. 62-25 30th Ave. Realty, LLC, 47 A.D.3d 865, 865-866, 850 N.Y.S.2d 616, 617-618 (2d Dep’t 2008); Lodato v. Greyhawk North America, LLC, 39 A.D.3d 491, 492-494, 834 N.Y.S.2d 242, 244-245 (2d Dep’t 2007); Quackenbush v. Gar-Ben Associates, 2 A.D.3d 824, 825, 769 N.Y.S.2d 387, 388 (2d Dep’t 2003); Gange v. Tilles Inv. Co., 220 A.D.2d 556, 558, 632 N.Y.S.2d 808, 810 (2d Dep’t 1995); Carino v. Webster Place Associates, LP, 45 A.D.3d 351, 352, 845 N.Y.S.2d 60, 61 (1st Dep’t 2007); Weber v. 1111 Park Ave. Realty Corp., 253 A.D.2d 376, 378, 676 N.Y.S.2d 174, 176 (1st Dep’t 1998); Quinlan v. Eastern Refractories Co., Inc., 217 A.D.2d 819, 820, 629 N.Y.S.2d 819, 820 (3d Dep’t1995).
In Gange,
220 A.D.2d at 558, 632 N.Y.S.2d at 810, the Appellate Division,
Second Department held that an electrician who fell from a ladder
after being shocked was entitled to recover under Labor Law §
240(1), as the ladder was an insufficient safety device to prevent
him from falling after he was shocked:
“Furthermore, the fact that the plaintiff fell off of the ladder only after he sustained an electric shock does not preclude recovery under Labor Law § 240(1) for injuries sustained as a result of the fall from the ladder (see, Izrailev v. Ficarra Furniture, 70 N.Y.2d 813, 523 N.Y.S.2d 432, 517 N.E.2d 1318).”In Quackenbush, 2 A.D.3d at 825, 769 N.Y.S.2d at 388, the Appellate Division, Second Department explained its rationale in Gange, 220 A.D.2d at 558, 632 N.Y.S.2d at 810, as follows:
“The unrebutted evidence adduced at trial by the plaintiff, an electrician, demonstrated that the defendants, which opted not to call any witnesses or present any evidence at trial, did not provide him with proper protection from height-related dangers connected with his work, and that the ladder on which he worked was inadequate to prevent him from falling 14 feet to the floor after sustaining an electric shock in the course of connecting a ceiling fixture ( see Izrailev v. Ficarra Furniture of Long Is., 70 N.Y.2d 813, 815, 523 N.Y.S.2d 432, 517 N.E.2d 1318).”In Weber, 253 A.D.2d at 378, 676 N.Y.S.2d at 176, the Appellate Division, First Department expressly adopted the Second Department’s rationale fromGange, 220 A.D.2d at 558, 632 N.Y.S.2d at 810:
“Gange v. Tilles Investment Co., 220 A.D.2d 556, 632 N.Y.S.2d 808, is directly on point. There, the Appellate Division, Second Department stated (at 558, 632 N.Y.S.2d 808), ‘the fact that the plaintiff fell off the ladder only after he sustained an electric shock does not preclude recovery under Labor Law § 240(1) for injuries sustained as a result of the fall from the ladder (see, Izrailev v. Ficarra Furniture, 70 N.Y.2d 813, 523 N.Y.S.2d 432, 517 N.E.2d 1318).’”In Weber, 253 A.D.2d at 378, 676 N.Y.S.2d at 176, the Appellate Division, First Department directly addressed and rejected the argument of the defendant’s herein, holding “[r]egardless of the method employed by plaintiff to remove the fence, the ladder provided to him was not an adequate safety device for the task he was performing and was a proximate cause of the fall and resulting injuries”:
“Plaintiff was entitled to partial summary judgment on his Labor Law § 240(1) cause of action, where he was injured when he fell from a ladder while in the course of removing an eight-foot high fence at a construction site. Regardless of the method employed by plaintiff to remove the fence, the ladder provided to him was not an adequate safety device for the task he was performing and was a proximate cause of the fall and resulting injuries (see Ben Gui Zhu v. Great Riv. Holding, LLC., 16 A.D.3d 185, 791 N.Y.S.2d 43 [2005]; Dunn v. Consolidated Edison Co. of N.Y., Inc., 272 A.D.2d 129, 707 N.Y.S.2d 420 [2000] ).”Binding Appellate Division, First, Second and Fourth Department precedents expressly reject the defense that plaintiff’s negligently performing work outside exposed to the elements, including rain (as instructed by his employer) where it was foreseeable that this type of accident could occur, was the sole proximate cause of the accident, instead holding “[e]vidence of rain, or other ‘concurrent cause’, at the time of the accident does not create a triable issue of fact as to proximate cause where plaintiff has met her burden in establishing her § 240(1) claim [citations omitted]. If anything, the readily foreseeable occurrence of rainy conditions at an outdoor construction site highlights defendants' negligence in failing to provide the statutorily-prescribed safety measures.” Robinson v. NAB Const. Corp., 210 A.D.2d 86, 86-87, 620 N.Y.S.2d 337, 338-339 (1st Dep’t 1994); see Shipkoski v. Watch Case Factory Associates, 292 A.D.2d 587, 588-589, 741 N.Y.S.2d 55, 56-57 (2d Dep’t 2002) (Holding that “to establish a prima facie case pursuant to Labor Law § 240(1), a plaintiff must demonstrate that the risk of injury from an elevation-related hazard was foreseeable, and that an absent or defective protective device of the type enumerated in the statute was a proximate cause of the injuries alleged (see Felker v. Corning, Inc., 90 N.Y.2d 219, 660 N.Y.S.2d 349, 682 N.E.2d 950; Misseritti v. Mark IV Constr. Co., supra)” and this burden is met upon evidence of hazards caused by “neglect, vandalism, and the elements that the plaintiff's work on the third floor exposed him to a foreseeable risk of injury from an elevation-related hazard, and whether the absence of a type of protective device enumerated under Labor Law § 240(1) was a proximate cause of his injuries (see Gold v. NAB Constr. Corp., 288 A.D.2d 434, 733 N.Y.S.2d 681; Norton v. Park Plaza Owners Corp., 263 A.D.2d 531, 694 N.Y.S.2d 411; Avelino v. 26 Railroad Ave., 252 A.D.2d 912, 676 N.Y.S.2d 342).”); Callan v. Structure Tone, Inc., 52 A.D.3d 334, 335, 860 N.Y.S.2d 62, 63 (1st Dep’t 2008) (“Plaintiff worker, an electrician employed by third-party defendant subcontractor, was injured while installing ceiling lights over a weekend in an unventilated room where the temperature was estimated at over 100 degrees; he became dizzy from the heat, then nauseous, and fell from near the top of a 10-foot ladder. The worker recalled that as he attempted to reach down to grab hold of the ladder to stabilize himself, the ladder wobbled, he passed out, and both he and the ladder toppled over. Defendant was the general contractor at the work site, and deposition testimony of its project foreman corroborated the worker's testimony that prior complaints of excessive heat during weekend duty had gone unheeded. The unrefuted evidence of excessively hot work conditions, of which defendant had notice and control; the foreseeable consequence to workers who might suffer heat-related physical symptoms under such circumstances; and the lack of proper safety equipment afforded to elevated workers in light of these conditions, provided a basis for finding defendant strictly liable under Labor Law § 240(1) ( Arce v. 1133 Bldg. Corp., 257 A.D.2d 515, 684 N.Y.S.2d 523 [1999]; see also Cruz v. Turner Constr. Co., 279 A.D.2d 322, 720 N.Y.S.2d 10 [2001]).”); Reisch v. Amadori Const. Co., Inc., 273 A.D.2d 855, 857, 709 N.Y.S.2d 726, 728-729 (4th Dep’t 2000) (“We also reject Amadori's contention that, because plaintiff knew the plank was wet and complained about its safety before using it, there is an issue of fact whether the absence of safety devices was the sole proximate cause of plaintiff's injuries. “It is well settled that the [plaintiff's] contributory negligence is not a defense to a claim based on Labor Law § 240(1)” (Stolt v. General Foods Corp., 81 N.Y.2d 918, 920, 597 N.Y.S.2d 650, 613 N.E.2d 556; see also, Robinson v. NAB Constr. Corp.,210 A.D.2d 86, 86-87, 620 N.Y.S.2d 337).”); Arce v. 1133 Bldg. Corp., 257 A.D.2d 515, 515-516, 684 N.Y.S.2d 523, 524 (1st Dep’t 1999) (“We note that even if the testimony of defendants' expert witness were sufficient to raise a fact question on the cause of plaintiff's fall, partial summary judgment would still have been properly granted to plaintiffs because defendants failed to provide proper protection to plaintiff, e.g., a scaffold, in the event he became overcome by heat, which was foreseeable under the circumstances (see, Gordon v. Eastern Ry. Supply, Inc., 82 N.Y.2d 555, 562, 606 N.Y.S.2d 127, 626 N.E.2d 912; Robinson v. NAB Constr. Corp., 210 A.D.2d 86, 620 N.Y.S.2d 337).”).
In Robinson,
210 A.D.2d at 86-87, 620 N.Y.S.2d at 338-339, the Appellate Division,
First Department expressly rejected the contention that a worker’s
performing assigned work outside in the rain was the sole proximate
cause of his fall from an elevated worksite, holding:
“Evidence of rain, or other “concurrent cause”, at the time of the accident does not create a triable issue of fact as to proximate cause where plaintiff has met her burden in establishing her § 240(1) claim (see, Iannelli v. Olympia & York Battery Park Co., 190 A.D.2d 775, 776, 593 N.Y.S.2d 553, citing Joyce v. Rumsey Realty Corp., 17 N.Y.2d 118, 122, 269 N.Y.S.2d 105, 216 N.E.2d 317). If anything, the readily foreseeable occurrence of rainy conditions at an outdoor construction site highlights defendants' negligence in failing to provide the statutorily-prescribed safety measures.”In the instant action, the uncontroverted evidence shows that plaintiff fell when he was shocked by the welding equipment he was forced to use outside in the rain without any shelter being provided (see Shipkoski, 292 A.D.2d at 588-589, 741 N.Y.S.2d at 56-57; Callan, 52 A.D.3d at 335, 860 N.Y.S.2d at 63;Robinson, 210 A.D.2d at 86-87, 620 N.Y.S.2d at 338-339), plaintiff shook, the ladder shifted, sank into the mud, and he and the ladder fell to the ground as a result of the failure to provide any adequate safety devices in violation of Labor Law § 240, so plaintiff has demonstrated a prima facie entitlement to summary judgment on his Labor Law 240(1) cause of action. See id.; Kadoic, 277 A.D.2d at 66, 716 N.Y.S.2d at 387; Davis, 302 A.D.2d at 305, 754 N.Y.S.2d at 872; Costello, 305 A.D.2d at 447, 761 N.Y.S.2d at 80-81; Peter, 300 A.D.2d at 289-290, 750 N.Y.S.2d at 772-773.
The
failure to provide safety devices may be a proximate cause of the
plaintiff’s injuries sufficient to remove the “sole proximate
cause” defense from the case and support the grant of summary
judgment to an injured worker. See Denis v. City of New
York, 54 A.D.3d 803, 803-804, 863 N.Y.S.2d 773, 773-774 (2d Dep’t
2008); Boe v. Gammarati, 26 A.D.3d 351, 352, 809
N.Y.S.2d 550, 550-551 (2d Dep’t 2006); Brandl v. Ram
Builders, Inc., 7 A.D.3d 655, 777 N.Y.S.2d 511, 511-512 (2d
Dep’t 2004); Wallace v. Stonehenge Group, Ltd., 1
A.D.3d 589, 767 N.Y.S.2d 450, 451 (2d Dep’t 2003); Ranieri
v. Holt Construction Corp., 33 A.D.3d 425, 822 N.Y.S.2d 509, 510
(1st Dep’t 2006) (“Plaintiff, a sheet metal worker employed by a
subcontractor, was injured when he fell from an unsecured ladder with
no safety devices provided to protect him. This activity fell within
the ambit of Labor Law § 240(1), and the failure to supply plaintiff
with a properly secured ladder or any safety devices was a proximate
cause of his fall (see Samuel v. Simone Dev. Co., 13
A.D.3d 112, 786 N.Y.S.2d 163 [2004]; Velasco v. Green Wood
Cemetery, 8 A.D.3d 88, 779 N.Y.S.2d 459 [2004]). There is no
reasonable view of the evidence to support defendants' contention
that plaintiff was the sole proximate cause of his injury, nor is
there a triable question of fact as to whether he was solely to
blame.”); Peralta v. American Telephone And Telegraph
Company, 29 A.D.3d 493, 494, 816 N.Y.S.2d 436, 436-437 (1st Dep’t
2006) (“Unrefuted evidence that the unsecured ladder moved,
combined with evidence that no other safety devices were provided to
plaintiff, warranted a finding that the owners were absolutely liable
under Labor Law § 240(1), notwithstanding claims of comparative
negligence (see Velasco v. Green Wood Cemetery, 8 A.D.3d
88, 779 N.Y.S.2d 459 [2004] ), or unsupported claims that plaintiff's
conduct was the sole proximate cause of her injuries.”); Morales
v. Spring Scaffolding, Inc., 24 A.D.3d 42, 47-49, 802 N.Y.S.2d
41, 44-46 (1st Dep’t 2005); Serrano v. 432 Park South
Realty Co., LLC, 8 A.D.3d 202, 779 N.Y.S.2d 198, 199 (1st Dep’t
2004); Velasco v. Green Wood Cemetery, 8 A.D.3d 88, 89,
779 N.Y.S.2d 459 (1st Dep’t 2004); Morin v. Machnick
Builders, Ltd., 4 A.D.3d 668, 669-670, 772 N.Y.S.2d 388,
390-391 (3d Dep’t 2004); Bonanno v. Port Of Authority Of
New York And New Jersey, 298 A.D.2d 269, 270, 750 N.Y.S.2d
7, 8 (1st Dep’t 2002) (“No other safety devices were provided to
prevent the fall. Nor does the evidence suggest that
plaintiff's own actions were the sole proximate cause of his
injury. Thus, plaintiff, as a matter of law, was entitled
to recover on his Labor Law § 240(1) claim. Plaintiff
was under no obligation to show that the ladder was defective in some
manner (Klein v. City of New York, 222 A.D.2d 351, 635
N.Y.S.2d 634, affd. 89 N.Y.2d 833, 652 N.Y.S.2d 723, 675 N.E.2d 458)
or to prove that the floor was slippery to make out a Labor Law §
240(1) violation. It was sufficient to show the absence
of adequate safety devices to prevent the ladder from sliding or to
protect plaintiff from falling. (Orellano v. 29 East 37th
Street Realty Corp., 292 A.D.2d 289, 740 N.Y.S.2d 16.)”).
In Morin,
4 A.D.3d at 669-670, 772 N.Y.S.2d at 390-391, the Appellate Division
held as follows, directly substantiating plaintiff’s position and
directly refuting defense counsel’s specious contention:
“The only elevation related safety device provided to plaintiff was the extension ladder. No ropes or other safety devices were provided to secure the ladder and prevent it from slipping, nor were harnesses provided to prevent plaintiff from hitting the ground if the ladder did slip.... Accordingly, plaintiff established that defendants violated Labor Law § 240(1) and such violation was a cause of his injury (see Tavarez v. Weissman, 297 A.D.2d 245, 246 247 [2002]; Squires v. Robert Marini Bldrs., supra at 808 809; Dennis v. Beltrone Constr. Co., 195 A.D.2d 688, 689 [1993]). As this statutory violation was a proximate cause of plaintiff's fall, plaintiff's own actions cannot be the sole proximate cause of his fall (see Blake v. Neighborhood Hous. Servs. of N.Y. City, supra at * 6 n 8).”Similarly, in Serrano, 8 A.D.3d at 202, 779 N.Y.S.2d at 199, the Appellate Division, First Department held as follows:
“Plaintiff established that his accident was attributable to a lack of proper safety equipment and/or the failure to secure the ladder upon which he was working. Even if plaintiff had been negligent in continuing his work in his coworker's momentary absence, no triable issue would therefore be raised as to whether liability should be imposed upon defendant pursuant to Labor Law § 240(1), since such negligence would not be susceptible of characterization as the sole proximate cause of plaintiff's harm (see Dasilva v. A.J., Contr. Co., 262 A.D.2d 214).”The Second Department reached the identical result in Wallace, 1 A.D.3d at 589, 767 N.Y.S.2d at 451:
“The plaintiffs established their entitlement to partial judgment as a matter of law on the issue of liability by presenting evidence that no safety devices were provided (see Taeschner v. M & M Restorations, 295 A.D.2d 598, 745 N.Y.S.2d 41). In opposition, the defendants failed to raise a triable issue of fact regarding liability. While a plaintiff cannot recover where his or her conduct was the sole proximate cause of his or her injuries (see e.g. Lozada v. GBE Contr. Corp., 295 A.D.2d 482, 744 N.Y.S.2d 464), that defense was not available to the defendants under the circumstances of this case (seeVacanti v. Habasit Globe, 283 A.D.2d 935, 724 N.Y.S.2d 240; DiVincenzo v. Tripart Dev., 272 A.D.2d 904, 709 N.Y.S.2d 271).”; see also Denis, 54 A.D.3d at 803-804, 863 N.Y.S.2d at 773-774 (quoted above in paragraph 25).Defendant also claims that plaintiff has failed to demonstrate which safety devices could have been employer to prevent his accident, purportedly preventing plaintiff from proving a prima facie entitlement to summary judgment. This contention is both factually and legally incorrect. The defendant’s argument is legally deficient, as binding Appellate Division, First and Third Department precedents which hold “[t]he plaintiff is not ‘required to present evidence as to which particular safety devices would have prevented his injury’ [citations omitted].” Cangialosi v. Gotham Const. Co., LLC, 865 N.Y.S.2d 892, 897-898, 22 Misc.3d 189, 193 (Sup.Ct. Kings County 2008) (Jack M. Battaglia, J.); see Cody v. State, 52 A.D.3d 930, 931, 859 N.Y.S.2d 316, 318 (3d Dep’t 2008) (“Nor was claimant required to prove what additional safety devices would have prevented his injury (see Noble v. AMCC Corp., 277 A.D.2d 20, 21, 714 N.Y.S.2d 495 [2000]). Thus, defendant violated Labor Law § 240(1) as a matter of law (see Kyle v. City of New York, 268 A.D.2d at 196-197, 707 N.Y.S.2d 445; Reed v. State of New York, 249 A.D.2d 719, 720, 671 N.Y.S.2d 820 [1998]), and this violation clearly was a proximate cause of claimant's injury (see Meyers v. State of New York, 30 A.D.3d at 928, 817 N.Y.S.2d 735; Pearl v. Sam Greco Constr., Inc., 31 A.D.3d 996, 997-998, 819 N.Y.S.2d 193 [2006]).”); Noble v. AMCC Corp., 277 A.D.2d 20, 21, 714 N.Y.S.2d 495, 496-497 (1st Dep’t 2000).
In Noble,
277 A.D.2d at 21, 714 N.Y.S.2d at 496-497, a precedent relied on by
defendant in its memorandum of law in opposition to plaintiff’s
cross-motion, the Appellate Division, First Department expressly
rejected the defendant’s contention:
“Assuming plaintiff's slide down the boiler was caused by his hitting his head on an overhead pipe, the cramped quarters in which he was working made such an occurrence foreseeable, and thus required the provision of a safety device (see, Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555, 561-562, 606 N.Y.S.2d 127, 626 N.E.2d 912; Arce v. 1133 Bldg. Corp., 257 A.D.2d 515, 516, 684 N.Y.S.2d 523). Moreover, any comparative negligence by plaintiff would not be a defense to the section 240(1) violation in failing to provide a safety device (see, Ortiz v. SFDS Dev., 274 A.D.2d 341, 342, 712 N.Y.S.2d 94, 96, citing, inter alia, Stolt v. General Foods Corp., 81 N.Y.2d 918, 597 N.Y.S.2d 650, 613 N.E.2d 556). Nor was plaintiff required to present evidence as to which particular safety devices would have prevented his injury (see, Guillory v. Nautilus Real Estate, 208 A.D.2d 336, 338, 624 N.Y.S.2d 110, appeal dismissed and lv. denied 86 N.Y.2d 881, 635 N.Y.S.2d 943, 659 N.E.2d 766).”
— by Richard A. Klass, Esq.
-----------
copyr. 2014 Richard A. Klass, Esq.
The firm's website: www.CourtStreetLaw.com
Richard A. Klass, Esq., maintains a law firm engaged in civil litigation in Brooklyn Heights, New York.
He may be reached at (718) COURT-ST or e-ml to RichKlass@courtstreetlaw.com with any questions.
Prior results do not guarantee a similar outcome.
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