NY Labor Law/Wrongful Death
In this wrongful death action, the decedent fell from a ladder while working at a construction project. The decedent claimed that he borrowed the ladder from our client, the carpentry subcontractor at the project. After the completion of discovery, we moved for summary judgment on behalf of our client in which we sought dismissal of plaintiff's Labor Law § 200, 240(1) and 241(6) claims on the grounds that the carpentry subcontractor was not an owner, general contractor or an agent of the owner or general contractor. In addition, we argued that plaintiff could not establish a prima facie case of negligence against our client. The Supreme Court, New York County, agreed with our position and dismissed all claims against our client, as well as all cross-claims asserted by the co-defendants. The Appellate Division, First Department unanimously affirmed the decision.
Rice v. West 37th Group, Inc., 913 N.Y.S.2d 13 (1
st Dep't 2010)
Our client, an insurance company, issued a charterer's legal liability policy to the insured, a charterer transporting a cargo of gypsum drywall boards from China to Florida. The cargo shifted during the voyage, causing the charterer to incur liability for damage to the cargo and vessel. While the charterer promptly notified our client of the occurrence, it waited several months to notify our client of lawsuits commenced by the cargo and vessel interests. The charterer commenced a declaratory judgment action against our client seeking a declaration of coverage. Following discovery, we moved for summary judgment on behalf of our client on the ground that late notice of the lawsuits was a valid basis to disclaim insurance coverage and that there was no requirement to show prejudice. The District Court granted our motion and, in affirming the District Court's decision, the Second Circuit adopted our position that under New York law our client was not required to show prejudice in order to decline coverage on the grounds of late notice of the lawsuit even though notice of the occurrence was timely. Notably, in a footnote to its decision, the Court of Appeals also agreed with our position that recently enacted provisions of the New York Insurance Law, §§ 3420(a)(5) and
3420(c)(2)(A), which require a showing of prejudice in order to disclaim insurance coverage on the grounds of late notice, was not applicable to maritime insurance policies.
Pactrans Air & Sea Inc. v. New York Marine & General Insurance Co., 2010 U.S. App. LEXIS 14971 (2d Cir. 2010)
Insurance Coverage/General Liability
This declaratory judgment action involved a declination of coverage under a Comprehensive General Liability policy by our client, an insurer, for late notice of the occurrence and lawsuit involving an alleged sexual assault at the insured's apartment building. After the completion of discovery, all parties moved for summary judgment. The Court granted summary judgment to our client agreeing with our position that the insured failed to provide our client with timely notice of the claim. The Court also held that our client's disclaimer of coverage to the insured on the basis of late notice was timely as a matter of law. The insured's two other insurers also moved for summary judgment on the grounds of late notice, but the Court denied their motions, and also granted summary judgment against one of these insurers on the basis of its delay in declining coverage.Zevrone Reality Corp. v. New York Marine and General Insurance Company, 27 Misc. 3d 1219A, 2010 N.Y. Misc. LEXIS 967 (N.Y. Sup. Ct. Bronx County 2010)
Premises Liability/Personal Injury
The plaintiff claimed that as she entered an elevator in the lobby of the building where she worked, she tripped on the elevator floor which was approximately 1 to 1½ feet higher than the lobby floor and sustained serious physical injury. Plaintiff's theory of liability against our client, the building manager, was based on the theory of res ipsa loquitur. Brown Gavalas & Fromm moved for summary judgment arguing that in order to establish liability under the doctrine of
res ipsa loquitur, the plaintiff was required to prove that our client was in exclusive control of the elevator. We further argued that since our client had hired a company to maintain the elevator, it was not in exclusive control of the elevator. The Court agreed with our position and granted the motion, dismissing plaintiff's claims against our client.
Alban v. SL Green Realty Corp. et al., Supreme Court, New York County
Shortly after areas of New Orleans were devastated by flooding from Hurricane Katrina, the Wall Street Journal published an article that a barge owned by Lafarge North America, one of the largest suppliers of construction materials in the United States and Canada, may have caused the flooding by striking levees that were supposed to hold back the water in the Inner-Harbor Navigation Canal. Concerned that it was going to be sued for the flooding of New Orleans, Lafarge went out and retained two law firms to represent it in connection with any lawsuits that may arise from the flooding. Lafarge did not advise its insurers that it was retaining these law firms and did not seek their consent to retain the law firms. After numerous lawsuits were filed against Lafarge seeking billions of dollars in damages, they demanded that their insurers pay the legal fees of the two law firms. Brown Gavalas & Fromm commenced a declaratory judgment action against Lafarge on behalf of the primary insurer and lead excess insurer claiming that the insurers did not have to pay the legal fees of the two law firms because they were hired without the consent of the insurers. The Second Circuit agreed with our position and held that Lafarge did not have the right under the primary and excess policies to retain attorneys without the consent of the insurers.
New York Marine and General Insurance Company v. Lafarge North America,
Inc., 599 F.3d 102 (2d Cir. 2010)
Change of Venue
The plaintiff claimed that he was injured at Terminal 4 at John F. Kennedy International Airport, located in Queens County, New York. Plaintiff sued the Port Authority of New York and New Jersey and the operator of the terminal. Although plaintiff was a resident of Queens County and the accident occurred in Queens County, plaintiff commenced the action in Bronx County pursuant to Section 7106 of the Unconsolidated Laws of New York, which permits a plaintiff to bring an action against the Port Authority in any county situated wholly or partially within the Port of New York District. Brown Gavalas & Fromm, on behalf of the Port Authority and the operator of the terminal, moved to have venue changed to Queens County. In seeking a change of venue, we argued that commencing the case in Bronx County was a blatant case of forum shopping since the case had no contacts with Bronx County. The Court agreed with our position and ordered the case transferred to Queens County. Moshin v. Port Authority of New York and New Jersey, Supreme Court, Bronx County
Premises Liability/Personal Injury
In this action, plaintiff claimed that she slipped and fell on ice while descending the exterior jet bridge stairway which was attached to a commercial aircraft at Newark Liberty International Airport. As a result of the incident, plaintiff claims that she fell down the stairs and sustained severe personal injuries. We moved for summary judgment on behalf of the operator of the aircraft on the grounds that it did not control and was not responsible for the maintenance of the exterior jet bridge stairway. The Court granted our motion and dismissed all of plaintiff's claims against our client on the grounds that it was not responsible for maintaining the exterior jet bridge stairway.Hernandez v. USA 3000, Superior Court of New Jersey, Essex County
Plaintiff, a construction company, sued our client, an insurance broker, alleging that our client failed to notify its excess carrier of two wrongful death claims in which an automobile struck a backhoe resulting in the death of the driver and passenger of the automobile. Brown Gavalas & Fromm, on behalf of the insurance broker, moved to dismiss the complaint on the grounds that an insurance broker does not have a duty to notify the excess carrier of potential claims and there was no contractual agreement requiring it to do so. The Supreme Court granted the motion and dismissed plaintiff's claims against our client and the Appellate Division unanimously affirmed the dismissal. Tully Construction Co. v. March U.S.A. and Allied North America Insurance Brokerage Corp. of New York,
65 A.D.3d 627; 884 N.Y.S.2d 165 (2
nd Dep't 2009)
This case involved a fraud commonly known as an Advanced Fee Fraud or 419 Scam. In these scams, impostors, posing as Nigerian Government officials, claim to have access to millions of dollars on deposit at the Central Bank of Nigeria. The impostors contact various individuals and businesses throughout the world and offer to share the money if the individuals or companies assist them in getting the funds out of Nigeria. Fraudulent government documents are produced in order to create an air of legitimacy to the transaction. In this case, the plaintiff claimed to have entered into a contract with the Nigerian Government and that he was owed $100,000,000. During discovery, in which we presented extensive evidence, on behalf of our clients, the President of the Federal Republic of Nigeria and other government officials, to demonstrate that the plaintiff was involved in an Advanced Fee Fraud perpetrated by imposters, the plaintiff discontinued the case with prejudice. Erickson v. Alhaji Umar Musa Yar Adua, United States District Court, Maryland
Premises Liability/Personal Injury
In this action, the plaintiff claimed that he suffered serious injuries while working for American Airlines on an aircraft ramp when he slipped on compacted snow and ice. Plaintiff alleged that our client, a snow removal company, which had a contract with American Airlines, was negligent in failing to remove the snow and ice from the ramp. Our client had been hired to push and plow snow from certain areas at the airport, including the area where plaintiff fell. On summary judgment, we argued that our client had properly performed its duties to "push and plow" snow and could not be held liable if small amounts of snow where left behind. The Court agreed with our arguments finding that our client fulfilled its duties to American Airlines and did not owe a duty to plaintiff. Accordingly, the court held that plaintiff could not establish liability based upon a negligence claim against our client.Minelli v. Aero Snow Removal Corporation, Supreme Court, Nassau County
Premises Liability/Personal Injury
In this action, plaintiff allegedly sustained severe personal injuries in an incident on a sidewalk outside of the JetBlue Terminal at John F. Kennedy International Airport. Plaintiff claimed that he slipped and fell on ice while walking on a sidewalk outside of the arrivals building of the JetBlue Terminal. As a result, plaintiff claimed numerous severe injuries relating to the incident. We moved for summary judgment on behalf of JetBlue Airways and a cleaning contractor on the grounds that they could not be found liable for the incident as there was a snowstorm in progress at the time of the accident. The court agreed with our position and granted the motion for summary judgment, dismissing all claims against our clients. Hunter v. JetBlue Airways Corp., Supreme Court, Queens County
A cargo vessel collided with a sailing vessel on Long Island Sound. At the time of the incident, a Sandy Hook Pilot was at the helm of the cargo vessel. As a result of the incident, the sailing vessel sunk, and one crew member drowned and another was injured. The estate of the deceased crew member sued the vessel owners and operators as well as our client, the Sandy Hook Pilots Association. We argued on behalf of our client that the pilot was not negligent and that the Sandy Hook Pilots Association was a benevolent association which could not be held legally liable for acts of individual pilots. The matter was settled without a contribution by the pilot or Sandy Hook Pilots Association.
NY Labor Law/Personal Injury
In this action, the plaintiff claimed to have suffered severe back injuries when he fell from a defective scaffold while working on the construction of one of the largest private residences in New York. Plaintiff sued several parties, including our client, a carpentry subcontractor. Plaintiff claimed that our client owned or erected the defective scaffold. Following discovery, we moved for summary judgment on behalf of our client seeking dismissal of plaintiff's claims on the ground that there was no proof that our client owned or erected the scaffold involved in the incident. The Court granted the motion and dismissed all claims against our client.Ingallinella v. Skanska USA Building, Inc., Supreme Court, Suffolk County
Insurance Coverage/General Liability
The owner of a construction project was sued in connection with an accident at the construction project resulting in the death of a worker. In a related declaratory judgment action, the owner sought insurance coverage for the wrongful death claim as an additional insured under a Comprehensive General Liability policy issued by our client to the general contractor of the construction project. After completion of discovery, Brown Gavalas & Fromm moved for summary judgment on behalf of our client. The Court granted our motion finding no coverage under the policy for the owner and declared that the owner was not an additional insured under the policy. In making this determination, the Court held that neither the Certificate of Insurance issued by general contractor's insurance broker to the owner nor the Blanket Additional Insured Endorsement in the policy conferred coverage on the owner. Public Adm'r of Queens County v. Two Corners, Inc., 856 N.Y.S.2d 502 (N.Y. Sup. Ct. Queens County 2008).
Plaintiff, the owner of a residence on waterfront property in New Jersey claimed that our client negligently installed a bulkhead which allegedly caused plaintiff's home and property to sink. Specifically, plaintiff claimed that the piles used to support the bulkhead were inadequate causing soil to seep through the bulkhead into the waterway. The case was tried before a jury in Ocean County, New Jersey. We argued that the plaintiff was exaggerating the condition of the property and, as a result, we were able to convince the court to allow the jury to visit the site and view the bulkhead and the property. Based on the jury's visit to the property and the expert testimony presented on behalf of our client, the jury found that plaintiff failed to prove that the bulkhead was negligently installed, or that the house sustained any damage as a result of the installation of the bulkhead, and rendered a verdict in favor of our client. Dubonis v. K&G Marine, Superior Court, Ocean County
In this jury trial, the plaintiff, a passenger in a car driven by her husband, claimed that our client's 18-wheel truck struck her car in the rear on Sunrise Highway in Baldwin, New York, causing her to sustain serious physical injuries. We presented evidence on behalf of our client that plaintiff's car swerved into the lane that the truck was traveling in. After three days of deliberation, the jury returned a verdict in favor of our clients, finding that the driver of the truck was not negligent. Accordingly, all claims against our clients were dismissed. Kelly v. Sciarrino Industries, Supreme Court, Nassau County