eNotes: Liability – March 2025 – New York

SIGNIFICANT CASE SUMMARIES

New York Case Summaries

Rodriguez v. VBG 990 AOA LLC
New York Supreme Court, New York County
2025 N.Y. Misc. LEXIS 682

Decided: February 6, 2025

Defendant/Third-Party Plaintiff withheld a former employee’s contact information, which resulted in preclusion from arguing lack of notice.

Background

In this Labor Law personal injury action, Defendants/Third-Party Plaintiffs, VGB 990 AOA and Vanbarton Group, LLC (“VBG”), moved for summary judgment pursuant to CPLR § 3212, dismissing Plaintiff’s Complaint and all Cross-Claims against it. Plaintiff claimed that VBG was strictly liable pursuant to Labor Law § 240(1), known as the Scaffold Law. Plaintiff cross-moved pursuant to CPLR § 3126 to preclude VBG from arguing that they lacked notice of the dangerous condition due to their failure to provide VBG’s former Assistant Project Manager’s contact information. In support of its Motion for summary judgment, VBG provided an Affidavit from the former Assistant Project Manager, whose contact information was never provided.

On October 29, 2020, Plaintiff, employee of DK Construction (Third-Party Defendant) was doing wall repair work in several of the apartments on the 19th floor of 990 Sixth Avenue, New York, New York. On the day of the incident, Plaintiff tripped and fell over a “piece of metal that had been in place of the compound container.” Plaintiff described the piece of metal as “beams” that were “about 10 foot in length” and “heavy”. Plaintiff testified that the metal was not there all day, nor did he know when the metal was placed there. He added, “when I finished working in the bedroom and getting ready to work in the living room, there was no metal on the ground”. The building is owned by VBG 990 AOA and it retained Vanbarton Group to manage the “commercial portion” of the building at the time of Plaintiff’s accident.

Holding

VBG’s Motion for summary judgment against Plaintiff was granted, and the Court found that Labor Law Section 240 did not apply, as the accident did not occur as a result of a fall. Section 240(1) was designed to prevent those types of accidents in which the scaffold or other protective device proved inadequate to shield the worker from harm directly flowing from the application of the force of gravity to an objection or person. Here, Plaintiff’s accident did not involve an elevation-related hazard. Plaintiff testified that he tripped and fell on “a piece of metal” that was on the floor of the apartment he was working in.

Plaintiff’s Cross-Motion to preclude VBG from arguing they lacked notice of the dangerous condition due to their willful failure to provide the Assistant Project Manager’s contact information, was also granted to the extent that the Affidavit in support of VBG’s Motion for summary judgment will not be considered, and he will be precluded from testifying at trial. Further, the Court found that VBG’s failure to provide the former Assistant Project Manger’s contact information constituted willful or contumacious conduct since VBG was under a duty to disclose his contact information by reserving the right to supplement the information in their response to the post-EBT responses and pursuant to § CPLR 3101.

Questions about this case can be directed to Meagan Gabriel at (646) 298-3630 or mgabriel@tthlaw.com.

Martinez v. Techno Cab, Inc. and Hussain
New York Supreme Court, Queens County
2025 N.Y. Misc. LEXIS 709

Decided: February 4, 2025

New York serious injury threshold case with interesting mixed results demonstrating multiple ways Plaintiffs get around the requirements of NY Insurance Law Section 5102 and maintain claims through trial despite significant efforts by the defense to have them dismissed.

Background

This case arises from an automobile accident involving a rear-end collision with a Plaintiff who had numerous prior “permanent injuries” and therefore possibly no “new” related permanent injuries to the subject accident. Setting aside the liability issues, as it was a rear-end hit, Motions for summary judgment under CPLR Section 3212 were filed by Defendants. The Motions were supported by numerous expert opinions finding no objective evidence of present disability, and/or functional impairment, and that the claimant had a full return to work. Plaintiff’s bill of particulars asserted severe pain, suffering, discomfort, inability to sit/stand for prolonged periods, prolonged need to take medications, restriction of motion, possible future surgery and loss or reduction of enjoyment of life.

Defendant’s first expert, a board certified orthopedic physician, found as to all three alleged injuries (cervical spine, lumbar spine and left shoulder) that they had fully resolved. The doctor did not specifically comment on the 90/180 day rule, but he reviewed the bill of particulars, which failed to establish Plaintiff was confined to home/bed for 90 out of the first 180 days. Plaintiff also testified to a quick return to work, indicating he had to make money and that his only time off from work was for six weeks for surgery. As to the 90/180 day requirement, the Court agreed with the defense medical expert. However, since that doctor, who also opined that Plaintiff did not suffer a serious injury under the significant loss of use section, had not reviewed all of Plaintiff’s prior records, he was found to be unable to opine as to such a conclusion, since the significant loss exception to the threshold cannot be met with evidence that the condition is now resolved.

Defendant’s second defense expert, a board certified diagnostic radiologist, reviewed lumbar spine MRIs and left shoulder MRIs, but no cervical MRIs. The doctor opined that the review of the lumbar films showed no post-traumatic changes causally related to the subject accident in light of the extensive degenerative changes on those films supported by chronic disc herniation which was visible. This expert also found chronic arthritis in the shoulder and concluded that any tear, if related to recent trauma, would have also shown other symptoms which were not present such as edema or soft tissue swelling. The two experts’ reports combined demonstrated prima facie evidence of a failure to sustain a serious injury to the lumbar spine and the left shoulder, but not the cervical spine, as that film had not been reviewed.

Holding

The Court held that Insurance Law Section 5102 provides multiple avenues for a plaintiff to overcome the threshold defense. The statute provides: “Serious injury” means a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ, or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the materials acts which constitute daily activities for not less than 90 days during the first 180 days immediately following the occurrence of the injury or impairment.”

The Court found that Plaintiff’s doctors countered the opinions of the defense experts by stating that Plaintiff, despite being more than three years post-accident, still remains symptomatic and suffered a significant limitation of use of the left shoulder and low back as a result of the accident. However, even though Plaintiff’s expert agreed with the defense expert that Plaintiff’s earlier injuries were already permanent, and his subject accident therefore was at most an aggravation of a prior permanent injury, Plaintiff’s deposition testimony was enough to raise a question of fact. Plaintiff effectively stated he still suffered pain around the clock in his lumbar spine, cervical spine and left shoulder, and had many limitations during his exercise workouts, and was on limited duty at work. Plaintiff’s second treating doctor commented on the lumbar MRI and left shoulder MRI as well, but not the cervical MRI (which was presumably unavailable to anyone), finding objective evidence of significant and permanent injury from the new accident. The outcome resulted in the Court granting the Defendant’s Motion to dismiss in part and denying it in part. While the Court ruled that (1) Plaintiff failed to establish limitation of use for 90 out of the first 180 days and that portion of the claim was dismissed, (2) Defendants did not establish that Plaintiff did not suffer a significant limitation of use of the cervical spine; and (3) the remaining branches of the Motion have issues of fact as to whether or not Plaintiff suffered a serious injury in the permanent consequential category as to the lumbar spine, cervical spine and left shoulder and in the significant limitation of use category as to the lumbar spine and the left shoulder.

Questions about this case can be directed to James Cardenas at (908) 574-0504, or jcardenas@tthlaw.com.