Plaintiff claimed that the Village of Stamford was liable to her for damages because it had failed to enforce its zoning laws when it permitted the construction of a building addition and a parking lot... across the street from her home. The action was dismissed after the service of the Complaint on the ground that the plaintiff had failed to establish the necessary “special relationship†between the Village and the plaintiff. That special relationship is required before a municipality can be held liable to its citizens for failing to enforce a statute or regulation. The case is reported at 51 A.D.3d 1263; 857 N.Y.S.2d 804; and 2008 WL 2050837
Personal injury
Kusewich v. Fairview Plaza, Inc. and Pizza and Pasta Bella, Inc. dba Rigatonys
Dec 04, 2007
OUTCOME: Summary Judgment
Plaintiff was injured when he fell from the roof of a shopping center, Fairview Plaza, while changing one of the bulbs in a rooftop sign. He brought an action against the shopping center and the pizza... parlor which owned the sign, claiming violations of New York Labor Law §§200, 240, and 241, as well as common law negligence. The action against Fairview Plaza was dismissed on a pre-trial motion for summary judgment the grounds that (1) Labor Law §240 did not apply to the changing of a light bulb, (2) claims under Labor Law §241 did not apply to claims arising out of maintenance of a building outside of the context of construction, and (3) since Fairview Plaza did not control the plaintiff’s work, it could not be liable to the plaintiff under Labor Law §200 or common law negligence.
Litigation
Utica Mutual Insurance Company v. Diamond Realty Enterprises Corp. fka Diamond View Realty Inc.
Jul 14, 2006
OUTCOME: Action dismissed at trial
Rose Gambino slipped and fell on ice on property owned by Utica Mutual’s insured, Shaker Commons. She sued Shaker Commons and their property manager, Diamond Realty. Gambino was awarded a default j...udgment against Shaker Commons, and Utica Mutual ultimately settled with her. However, it was agreed between all parties that Utica Mutual could seek to recover all or part of its payment to Gambino from Diamond Realty on the theory that Gambino’s fall had been caused by Diamond Realty’s negligent failure to maintain the premises and clear the ice on which she had fallen.
The case proceeded to trial before a jury in Albany County. At the close of the plaintiff’s case the defendant moved for a directed verdict on the grounds that (1) there was no proof of any negligence by Diamond Realty because it had no actual or constructive notice of any ice in the area where Gambino had fallen, (2) Diamond Realty had no duty to Shaker Commons beyond the snow and ice removal contract, and there was no claim of breach of contract and no proof of any negligence which was independent of the contractual duties, and (3) under the contract with Shaker Commons, Diamond Realty was an additional insured under the Utica Mutual policy, and the action by Utica Mutual was barred by the anti-subrogation doctrine. The motion was granted and the action was dismissed.
Slip and fall accident
Barbieri v. Village of Athens, Gerard's Cafe and Gerard Margiotta
Jan 31, 2006
OUTCOME: Summary Judgment
Plaintiff tripped and fell on an uneven portion of a Village sidewalk. She claimed that the Village had allowed the roots from a nearby tree to make the sidewalk bricks uneven. The Village moved for ...summary judgment on the ground that the Village had not received prior written notice of the alleged sidewalk defect. Such prior written notice is required not only by a Village ordinance, but also by the New York State Village Law and the Civil Practice Law and Rules. Moreover, a claim that the lighting in the area had been insufficient was barred by the failure of the plaintiff to allege such a theory in her Notice of Claim, and her time to amend the Notice had expired. All claims against the Village were summarily dismissed.
Appeals
Lang v. Hanover Insurance Co.
Nov 18, 2004
OUTCOME: Dismissal of direct action against defendant
Plaintiff, who had been injured in a paintball gun accident, brought a direct action against Hanover Insurance Company. Hanover had denied coverage to the man who had fired the paintball gun, and the ...direct action against Hanover was dismissed by the New York Court of Appeals on the ground that the plaintiff had no standing to sue Hanover. The Insurance Law requires the plaintiff in such a case to first obtain a judgment against the potential insured before bringing a direct action against the insurer, and the plaintiff had never obtained a judgment against the man who fired the paintball gun before seeking recovery against Hanover. The case is reported at 3 N.Y.3d 350; 820 N.E.2d 855; 787 N.Y.S.2d 211; and 2004 N.Y. LEXIS 3525.
