“I Was Drunk. So What?” Voluntary Intoxication and ...hrrlawny.com/resources/HRRV_Insight_2012_summer.pdf · Voluntary Intoxication and Comparative Negligence By Gregg scharaga

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Summer 2012 — Volume 6, Issue 2

In ThIs Issue: 1 Insurance Coverage Corner • “I Was Drunk. So What?” Voluntary Intoxication and Comparative Negligence 2 Risks Assumed and Not 8 HRRV Decisions of Interest 11 HRRV on Trial

“I Was Drunk. So What?” Voluntary Intoxication and Comparative NegligenceBy Gregg scharaga

Assume that there is a puddle on the floor of your property and you have actual or constructive notice of the condition. Then assume that someone invited to

your property walks through the puddle and suffers an injury. It is not looking good for you. Then further assume that the injured party—now known as the plaintiff—was intoxicated. Does this in any way limit your liability? In New York, where an intoxicated person may not recover for his or her injuries under New York’s Dram Shop Act, it is also well established that a person’s intoxication may comparatively reduce an award for injuries caused by another’s negligence.

Generally, an intoxicated plaintiff is held to the same standard of care as a sober person, and under New York’s comparative negligence statute, a jury may consider the conduct of such a plaintiff in reduction of his or her recovery, provided that the

Claims of Ratification Result in Opposite Findings in Misrepresentation Cases

By Abbie havkins and Linda Fridegotto

In United States Life Ins. Co. in the City of New York v. Blumenfeld, 92

A.D.3d 487, 938 N.Y.S.2d 84 (1st Dep’t 2012), an insurer, which accepted and sought premiums from its insured after commencing a declaratory judgment for the rescission of the policy on the basis of material misrepresentations, was held to have ratified the policy and waived its right to rescission by its conduct.

The insurer plaintiff, United States Life (US Life) issued a life insurance policy with a $5 million death benefit to its insured, Rebeka Blumenfeld, a resident of Brooklyn who represented in her insurance application that she had a net worth of $35 milion to $40 million and a household income of $400,000-$500,000 a year. In March 2007, US Life received an investigative report which revealed that Blumenfeld owned no real estate, was a tenant in a low-income neighborhood and had made misrepresentations regarding her finan-cial status.

Legal Insights / Summer 2012—Volume 6, Issue 2 / www.hrrvlaw.com2

Personal Attention. Powerful Representation. Creative solutions.

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One of the primary arguments raised by

defendants in sporting or recreational negligence

actions is that the plaintiff assumed the risk of

injury through his or her participation in the activity.

Risks Assumed and NotRecent Developments in sporting and Recreation Cases

By Jarett Warner

One of the primary arguments raised by defendants in sporting or recreational negligence actions is that the plaintiff assumed the risk of injury through his or

her participation in the activity. In turn, one argument repeatedly raised by plaintiffs is that the defendant increased or enhanced the risk of injury.

This model of the arguments recently found itself in front of New York’s highest court. In Bukowski v. Clarkson Univ. (Court of Appeals, June 5, 2012), the Court of Appeals considered the issue of whether a college baseball pitcher who was hit with a line drive during indoor practice assumed the risk of injury. The plaintiff in Bukowski, who played organized baseball since he was five years old, participated in indoor practice at his university. While pitching to live hitters without the benefit of a protective screen, he was struck by a line drive, breaking his jaw as a result. The trial court granted the defendants’ motion for a directed verdict holding that the plaintiff assumed the risk of being hit by a line drive, and the Appellate Division affirmed. The Court of Appeals also affirmed. It was noted by the Court that the plaintiff was an experienced and knowledgeable baseball player, who testified that he was aware that he could get hit by balls, had observed others get hit by balls and as a pitcher had hit batters during practice. He was also aware of the risk of pitching without the protective screen. Although the plaintiff claimed that the color of the pitching backdrop and the lighting conditions increased the risk of injury, the Court of Appeals held that “the conditions in the indoor facility did not create a dangerous condition over and above the usual dangers that are inherent in the sport.”

Other defendants have not had the same level of success raising assumption of risk as a defense in the context of sporting and recreational cases.

For example, in Benolol v. City of New York, 94 A.D.3d, 941 N.Y.S.2d 489 (1st Dep’t April 3, 2012), the plaintiff was injured while playing soccer when he tripped over an uneven portion of the artificial playing surface. The Appellate Division affirmed the denial of the defendant’s summary judgment motion, holding that the defendant failed to demonstrate that the uneven condition was open and obvious and was the result of the defendant’s negligence in maintaining the field.

In a similar case involving flag football, the Appellate Division, Second Department came to a similar conclusion. In Bocelli v. County of Nassau, 93 A.D.3d 747, 940 N.Y.S.2d 660 (2d Dep’t March 20, 2012), the plaintiff was allegedly injured while playing flag football in a park when he fell on a sprinkler head while running. The Appellate Division reversed the trial court and held that the defendants’ summary judgment motion should have been denied. The court held that “the defendants failed to provide any evidence that the risk of injury from a sprinkler head was in-herent in the game of flag football or that the sprinkler head was not concealed and did not unreasonably increase the risk associated with playing flag football.”

The assumption of risk doctrine is often also raised in cases involving school-aged children who participate in sports or other recreational activities. For example, re-cently, the Appellate Division was unwilling to dismiss the plaintiff’s action in Viola v.

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The critical inquiry as to the likelihood of success on an assumption of risk argument is whether there is a viable

argument that the defendant somehow increased the risk of injury over and above the inherent normal activity related to the

sport or recreational activity.

Carmel Cent. Sch. Dist., 2012 N.Y. Slip Op 04001 (2d Dep’t May 23, 2012), involving a junior varsity softball player. The plaintiff was a tenth grader on the girl’s softball team, who was injured while sliding into second base. She claimed that second base had not been installed properly as one of its points faced first base rather than a flush side, causing her left foot to hit the point of the base. The Appellate Division, Second Department held that “[a]lthough generally, a softball player assumes the risk of injury from slid-ing into a base . . . here, the defen-dants failed to demonstrate that the base was properly positioned, that [the plaintiff] was aware of the alleg-edly improper positioning, or that it was an open and obvious condition . . . the defendants failed to estab-lish that the allegedly improperly po-sitioned base did not unreasonably increase the risk of injury . . . .”

Three weeks later in Blumstein v. Half Hollow Hills Central Sch. Dist., 2012 N.Y. Slip 04307 (2d Dep’t June 16, 2012), an action in-volving a minor participating in gymnastics, the Appellate Di-vision again held that the assumption of risk doctrine should not bar the plaintiff’s action from proceeding. In Blumstein, the infant-plaintiff was allegedly injured while participating on her school’s gymnastics team. Specifically, she was injured while performing a maneuver when the heel of her foot land-ed between two mats that had become separated, although they had been connected by Velcro. The Appellate Divi-sion, Second Department held that the defendants failed to

establish in their summary judgment motion that “the allegedly danger-ous condition caused by improperly secured mats did not unreasonably increase the risk of injury inherent in gymnastics.”

As is clear from these cases, the critical inquiry as to the likelihood of success on an assumption of risk argument is whether there is a vi-able argument that the defendant somehow increased the risk of injury over and above the inherent normal activity related to the sport or recre-ational activity. A creative plaintiff’s attorney will assert such allegations in his or her pleadings. The defen-dants must attempt to refute these allegations through well-planned and thorough investigation and dis-covery. For example, schools and sporting and recreational facilities should ensure that incident reports are prepared contemporaneously with a reported accident and indi-cate the manner in which the ac-cident occurred, that all employees

with firsthand knowledge of the incident are promptly inter-viewed and that participants have signed waivers of liability.

During litigation, the defendants’ attorney should systemati-cally inquire at depositions (as well as through other discov-ery devices) as to the plaintiff’s experience and expectations with regard to the activity.

Contact

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

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“I Was Drunk. So What?” Voluntary Intoxication and Comparative NegligenceFrom page 1

plaintiff’s intoxication directly contributed to his or her injuries. See 79 N.Y. Jur Neg-ligence § 117.

Ordinarily, the issue of whether a plaintiff was intoxicated at the time of his or her accident, and whether it was his or her intoxication that caused the injury at is-sue, must be left to the jury. The jury may determine that a plaintiff’s injuries were due solely or partially to his or her own negligent behavior in becoming overly (and voluntarily) intoxicated. At trial, the jury may consider a plaintiff’s intoxicated state when determining liability, provided certain circumstances apply. Moreover, it is for the jury to make determinations as to the credibility of all witnesses, including the plaintiff.

In some instances, the plaintiff’s intoxication and conduct may be deemed so reck-less as to constitute the sole proximate cause of the accident. Reckless conduct such as intoxication must be “so extraordinary and unforeseeable as to constitute a superseding event that severs the causal connection between the defendant’s alleged negligence and the (plaintiff’s) injuries,” to warrant dismissal. Canela v. Au-dobon Gardens Realty Corp., 304 A.D.2d 702,703 (2d Dep’t 2003). In such cases, a jury would return a verdict for the defendant in light of a plaintiff’s reckless conduct.

When a jury determines that a plaintiff was comparatively negligent and partially at fault for his or her accident due to intoxication, the jury will apportion liability against the plaintiff. For example, in Stewart v. Manhattan & Bronx Surface Tr. Operating Auth., 60 A.D.3d 445 (1st Dep’t 2009), the jury reached a verdict in the plaintiff’s favor, however, apportioned liability 72 percent against the plaintiff. Given the evidence that the intoxicated plaintiff stepped off a curb and continued to walk, even though she saw a bus turning onto the street, as well as conflicting evidence as to whether she was within the crosswalk at the time of the accident, the jury fair-ly determined that her conduct was the greater cause of the accident. On appeal, the appellate division held that the jury’s apportionment of fault was not against the weight of the evidence.

Likewise, in Watanabe v. Sherpa, 44 A.D.3d 519, 844 N.Y.S.2d 27, 28 (1st Dep’t 2007), the plaintiff, who had been drinking, was standing in a Manhattan street near an intersection at 2:30 a.m., when he was struck by a taxicab driven by the defendant. The court held that the jury’s verdict apportioning liability 80 percent to the plaintiff and 20 percent to the defendant was not against the weight of the trial evidence.

In Gallo v. 800 Second Operating, Inc., 300 A.D.2d 537, 752 N.Y.S.2d 394, 395 (2d Dep’t 2002), the plaintiff left McFadden’s bar in an unruly and intoxicated condition and the bar’s doorman was instructed not to allow the plaintiff to re-enter in his intoxicated state. When the plaintiff was later refused re-entry, he attempted to go in nonetheless and was injured while being restrained. At trial, the Court refused to instruct the jury on the plaintiff’s comparative negligence. On appeal, the Appellate Division set aside the verdict, holding that the lower court should have charged the jury on the issue when it was clear that the jury could have rationally concluded that the plaintiff’s actions were a substantial factor in causing his injuries.


Sufficient admissible evidence of intoxication

in motor vehicle accidents may be found in hospital records and

charts. Under the Vehicle and Traffic Law, a person

is deemed to be driving while intoxicated with

a blood level of .08 percent. The courts have held that a blood alcohol

test result, as set forth in a certified hospital

record, constitutes prima facie evidence of the test result and can be considered to

show that a plaintiff was intoxicated at the time of a motor vehicle accident.






However, a judge must determine that there is sufficient evi-dence of intoxication before he or she instructs the jury to consider a plaintiff’s state of intoxication when determining liability. For example, in a personal injury action, the evidence was insufficient to warrant an instruction to the jury regard-ing the intoxication of the plaintiff where the only proof on the issue was testimony that the plaintiff had alcohol on his breath. See Sanchez v. Manhattan and Bronx Surface Transit Operating Authority, 203 A.D.2d 128, 610 N.Y.S.2d 507 (1st Dep’t 1994).

In that case, the Appellate Division held that the trial court did not err in granting the plaintiff’s motion to strike the defense of comparative negligence when the plaintiff had consumed two or three drinks during the approximately five-hour period prior to an accident. Absent testimony regarding what effect the consumption of alcohol had or could have had on the plaintiff’s ability to drive, the evidence was deemed insuf-ficient to establish culpable conduct on his part. Grcic v. City of New York, 139 A.D.2d 621, 527 N.Y.S.2d 263 (2d Dep’t 1988). See also Rountree v. Manhattan and Bronx Surface Transit Operating Authority, 261 A.D.2d 324, 692 N.Y.S.2d 13, 17 (1st Dep’t 1999) (alleged odor of alcohol on the plaintiff’s breath was insufficient to create a jury question regarding comparative negligence, when he fell due to a bus stopping abruptly); Arroyo v. City of New York, 171 A.D.2d 541, 567 N.Y.S.2d 257, 259 (1st Dep’t 1991) (intoxication instruction regarding the plaintiff, who was injured when he fell in a hole, was improper when evidence established that he consumed one drink at most and there was no evidence of impaired condition).

Sufficient admissible evidence of intoxication in motor ve-hicle accidents may be found in hospital records and charts.

Under the Vehicle and Traffic Law, a person is deemed to be driving while intoxicated with a blood level of .08 per-cent. The courts have held that a blood alcohol test result, as set forth in a certified hospital record, constitutes prima facie evidence of the test result and can be considered to show that a plaintiff was intoxicated at the time of a motor vehicle accident. Westchester Med. Ctr. v. Progressive Cas. Ins. Co., 51 A.D.3d 1014, 1018, 858 N.Y.S.2d 754 (2d Dep’t 2008); Herrera v. Lever, 35 Misc. 3d 1209A (Sup. Ct., Kings Cty, April 2012) (plaintiff’s blood alcohol levels at the hospital clearly exceeded the legal limits established in the Vehicle and Traffic Law, and there was no basis to suspect that the levels would have been lower three hours earlier. The blood alcohol levels would be at least “some evidence of intoxica-tion” if they were the defendant’s). Expert testimony would be required only where the party offering the evidence attempts to show that, given the blood alcohol level determined at the hospital, the plaintiff’s blood alcohol level at the time of the accident must have been higher.

As explained in a variety of fact-specific circumstances above, a plaintiff’s voluntary intoxication at the time of his or her injury could result in a reduced verdict, or even a defense verdict, if the plaintiff’s actions were extremely reckless. However, mere proof of alcohol consumption might not be enough to convince a judge to charge a jury to apportion li-ability against a plaintiff who may have been intoxicated at the time of an injury. As such, it is well-advised that evidence of a plaintiff’s alcohol intake should be fully developed.

Contact

Gregg scharaga: 646-747-5113 or [email protected]






Despite receiving this report, US Life processed premium payments for $43,452.50 and $130,387.50 in April and May 2007 respectively. US Life commenced a declaratory judgment action against Blumenfeld and the ben-eficiary of the policy, the Blumenfeld Family Irrevocable Trust, in April 2008, seeking rescission of the policy based upon the alleged misrepresentations in the insured’s application. Despite hav-ing commenced this action, the insurer notified the beneficiary trust in Sep-tember 2008 that the policy would ter-minate without value unless it received an additional premium in the amount of $81,262.73. The trust promptly paid the premium.

At the trial level, defendants moved for summary judgment arguing that the plaintiff had ratified the policy by failing to promptly seek the rescission of the policy upon learning, in March 2007, of the alleged misrepresentations. In ad-dition, the defendants argued that US Life should be estopped from rescind-ing the policy because it had chosen to retain the premiums despite learning of the misrepresentations.

US Life argued that its rejection of the premiums prior to the Court’s issuance of a declaration of rescission would be detrimental to the policy holder and that therefore it was protecting the rights of the insured by accepting the premiums pending the resolution of the declaratory judgment action. US Life further argued that it could not be held to have waived its right to rescind be-cause it lacked intent, having expressly reserved its rights and remedies in a letter to the insured. US Life also at-tributed the inadvertent retention of the premiums to a computer system de-sign flaw. The trial court dismissed the

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motion as premature, pending further discovery.

The Appellate Division, First Depart-ment reversed the decision, granted the defendants’ motion and declared the policy ratified.

The Court found that since US Life had learned as early as March 2007 that the insured had misrepresented her net worth and her household income, it had sufficient knowledge of misrep-resentations warranting the rescission of the policy at that time. See SEC v. Credit Bancorp, Ltd., 147 F. Supp. 2d 238 (S.D.N.Y. June 27, 2001) (find-ing failure by an insurer to seek the rescission of a policy for more than a year after having obtained sufficient knowledge of an insured’s misrepre-sentations constituted ratification of the policy).

Despite this knowledge, US Life con-tinued to accept premiums and even accepted premiums after it had com-menced an action for rescission. See Security Mut. Life Ins. Co. of N.Y. v. Rodriguez, 65 A.D.3d 1, 880 N.Y.S.2d 619 (1st Dep’t 2009) (insurer that ac-cepts premiums after learning of facts that it believes entitles it to rescind the policy has waived the right to rescind). The acceptance of premiums could not be attributed to a desire to “protect” the insured in the event of a denial of the rescission action. See US Life Ins. Co. v. Grunhut, 83 A.D.3d 528, 920 N.Y.S.2d 659 (1st Dep’t 2011) (finding an insurer could not accept premiums and reserve its rights). Similarly, US Life could not accept premiums with one hand and claim that it lacked the intent to rescind with the other. Intent was es-tablished if the insurer had knowledge of sufficient information to rescind but chose not to exercise its right to do so. Am. Gen. Life Ins. Co. v. Salamon, 2011 U.S. Dist. LEXIS 27118 (E.D.N.Y. March 16, 2011).

The policy was deemed ratified.

The Locker CaseThe issue of misrepresentations in insurance applications was also the subject of a recent decision in a de-claratory judgment action related to the notoriously bizarre story of the murder for hire of Jeffrey Locker, a motivational speaker.

Locker, was found murdered in his car in Harlem in July 2009. His killer, Ken-neth Minor, who was subsequently convicted, painted a story to the jury of how Locker had paid a hit man to kill him so that his family could receive $18 million in life insurance payments. When the original hit man backed out, a desperate Locker allegedly ap-proached strangers on the streets of Harlem and offered to pay them in ex-change for help in arranging his death. When Minor agreed to help him, Locker allegedly instructed Minor to tie his hands with wire, take a knife from the glove compartment of Locker’s car, and hold the knife while Locker thrust his body forward and stabbed himself with it. Locker was adamant that his death had to look like a robbery so that his family could collect on his life insur-ance policies.

Evidence revealed during the trial showcased Locker’s severe financial troubles, pending lawsuits and the existence of multimillion-dollar life insurance policies that Locker had pur-chased months before his death. It was likely this evidence led the insurers who had issued the insurance policies to look into Locker’s applications.

In Principal Life Ins. Co. v. The Locker Group, 2012 U.S. Dist. LEXIS 83620 (E.D.N.Y. June 14, 2012), the plaintiff sought the rescission of a $4 million-dollar life insurance policy it had issued to the defendant, a company which counted Locker and his widow as principals.

At the time of his application, Locker stated that his annual earnings were




$400,000 in income from his employ-ment as a professional business coach and $400,000 from the sale of related products and services. The application revealed that Locker had another life insurance policy with Prudential, which he intended to replace upon the issu-ance of the coverage applied for in the application. Locker also represented that “[A]ll statements are true and com-plete to the best of [his] knowledge and belief and were correctly recorded be-fore I signed my name below. I under-stand and agree that the statements in the [A]pplication . . . shall be the basis of any insurance issued. I also under-stand that material misrepresentations can mean denial of an otherwise valid claim and rescission of the policy dur-ing the contestable period.” The policy was issued effective June 4, 2009.

Locker was murdered on July 16, 2009. The plaintiff conducted an investigation into Locker after his death. Locker’s tax returns revealed: (1) his gross income in 2008 was $225,718; (2) his adjusted income in 2008 was $133,395; (3) his gross income averaged $182,052.33 for years 2006 through 2008; and (4) his adjusted income averaged $126,067 for the years 2006 through 2008.

Principal also learned that the Pruden-tial policy was still in force. Principal contacted counsel for the defendant seeking explanations for the inconsis-tencies between the reported income on the application and Locker’s tax returns, as well as for the continued existence of the Prudential policy. The defendant never replied. Principal also subsequently learned that Locker had been sued by the trustee in a Chap-ter 11 bankruptcy proceeding in Florida and that Locker had submitted docu-ments to the court stating he was se-verely in debt.

Principal commenced an action for re-scission of the policy on July 30, 2010. Principal later moved for summary

judgment claiming that Locker’s mis-representations concerning his income, net worth and the existence of addi-tional life insurance were material and therefore entitled Principal to rescind the policy.

New York law defines a misrepresen-tation as a false “statement of past or present fact, made to the insurer by . . . the applicant for insurance or the prospective insured, at or before the making of the insurance contract as an inducement to the making thereof.” N.Y. Insurance Law § 3105(a). An in-surer may “avoid any contract of insur-ance or defeat recovery thereunder” only if a misrepresentation is “material.” Id. at § 3105(b)(1).

The defendant argued that Locker’s misrepresentation was not “material” within the meaning of § 3105 because Principal did not require third-party ver-ification of Locker’s income. The Court disagreed. Judge Kuntz, applying New York law, found that the plaintiff had met its burden of showing that it would not have issued the policy had Locker truthfully disclosed his income. See Vella v. Equitable Life Assur. Soc. of U.S., 887 F.2d 388, 391 (2d Cir. 1989) (finding a misrepresentation will be considered “material” if knowledge by the insurer of the facts misrepresented would have led to a refusal by the in-surer to make such contract).

The defendant also argued that the application was ambiguous and that Locker misunderstood the income inquiry questions. The Court was not persuaded, finding that even innocent misrepresentations, if material, could be sufficient to warrant rescission of a life insurance policy. Kulikowski v. Ro-slyn Sav. Bank, 121 A.D.2d 603, 605, 503 N.Y.S.2d 863 (2d Dep’t 1986).

Finally, the defendant argued that Principal had ratified the policy by not formally moving to rescind the policy until seven months after it received the

report regarding the tax returns. See SEC v. Credit Bancorp, Ltd., 147 F. Supp. 2d 238 (S.D.N.Y. June 27, 2001). The Court disagreed. Ratification should not be regarded as a penalty for a delay in rescission, but, rather, a manifestation of the insurer’s intent to ratify. See U.S. Life Ins. Co. in City of NY. v. Blumenfeld, 92 A.D.3d 487, 488, 938 N.Y.S.2d 84 (1st Dep’t 2012) (dis-cussed supra). The relevant inquiry was whether a party silently acquiesced in the contract or rather promptly inter-posed [its] objections upon discovering the basis for the claim of rescission.” Prudential Ins. Co. v. BMC Industries, Inc., 630 F. Supp. 1298, 1302 (S.D.N.Y. March 31, 1986).

Examples of acquiescence could include the acceptance of premium payments and the issuance of “grace” and “lapse” notices to the insured after discovering the alleged basis for re-scission. See Am. Gen. Life Ins. Co. v. Salamon, 2011 U.S. Dist. LEXIS 27118 (E.D.N.Y. March 16, 2011). Similarly, the negotiation of endorsements, the drafting of marketing and business documents and the engaging in annual re-signing could also support an intent to ratify. See SEC v. Credit Bancorp, supra. The Court found the record be-fore it showed no reasonable indication that Principal acquiesced. After receiv-ing the report with the tax information, Principal sought an immediate expla-nation from Locker’s counsel. When it received no response, it conducted a further investigation, issued a claim determination and sent the plaintiff a formal notice of rescission.

Principal’s motion for summary judg-ment was granted in its entirety.

Contact

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

Linda Fridegotto: 646-747-5114 or [email protected]




HRRV DeCISIONS OF INTeReST

Court Dismisses Third-Party Claims Against Plumbing subcontractor in Multimillion-Dollar Property Damage ClaimTravelers Property Casualty Co. v. Crane Construction Co.Supreme Court, New York CountyIndex No. 150161/10June 28, 2012

In a property damage/subrogation action, Travelers Prop-erty Casualty Co. sought to recover a large sum that it

allegedly paid to its subrogor, Ann Taylor, in connection with property damage resulting from an unintended discharge of water from an HVAC water line in the ceiling of Ann Taylor’s leased space. It is alleged that a valve that was affixed to a chiller line located in the ceiling of the retail store failed and allowed pressurized water to escape into the store causing damage to merchandise, fixtures, walls and other areas of the store.

Subcontractor Sanco Mechanical, Inc. was hired by Marlin Mechanical, Inc. to perform plumbing and/or piping work during the build-out of the Ann Taylor store. Marlin, named as a defendant in the main action, commenced a third-party action against Sanco, seeking contractual and common law indemnification and contribution. It also asserted a breach of contract claim.

Sanco moved to dismiss the third-party complaint against it. Specifically, Sanco argued that it did not install, or have any-thing to do with the installation or maintenance of the identi-fied three-quarter-inch valve that allegedly failed on May 31, 2010. Rather, Sanco demonstrated that it installed two-and-a-half-inch valves in connection with its plumbing and/or pip-ing work and therefore could not be held liable, contractually or otherwise, for the performance of its work at the premises. Upon argument, the court agreed and dismissed the third-party complaint against Sanco in its entirety.

Contact

Tara Fappiano and Gregg scharaga represented sanco Mechanical.

Tara C. Fappiano: 914-290-6453 or [email protected]


Court Finds nYC Bar not Liable for “negligent Assault” by Its security GuardJoseph Palker v. MacDougal Rest Inc.Appellate Division, First Department Index No. 105781/10June 26, 2012

Joseph Palker was a patron at Off the Wagon on August 15, 2007, at which time he was allegedly assaulted by a

security guard, an employee of the bar. The plaintiff, however, did not assert a claim for civil assault and battery, and, given that the action was not commenced within one year of the alleged incident, could not assert such a claim. Rather, the action sounded only in negligence.

After discovery was complete, HRRV moved for summary judgment on behalf of MacDougal Rest Inc., which does business as Off the Wagon, on the basis that the plaintiff failed to state a cause of action. The motion court granted summary judgment, in part, to MacDougal as to the plaintiff’s claims of negligent hiring, retention and supervision. Yet, the motion court made a distinction between the aforementioned claims and a “general negligence” claim, allowing this unde-fined claim to survive.

HRRV appealed the decision of the motion court to the Ap-pellate Division, First Department, arguing that the motion court should have dismissed all negligence-based claims arising out of the underlying assault. The Appellate Division unanimously reversed that part of the decision, and the mo-tion was granted in its entirety, dismissing the complaint. The court held that the lower court should have granted the defendant’s motion because “under no fair construction of the complaint or interpretation of plaintiff’s own account of the events could the conduct of the defendant’s employee be deemed negligent. Plaintiff clearly based his action on an alleged offensive touching. Hence, defendant can be liable, if at all, only for assault and not for negligence, regardless of the manner in which the complaint characterized the ac-tion.” Given that MacDougal cannot be held vicariously liable for its employee’s conduct because the statute of limitations elapsed in August 2008 and the plaintiff did not commence this action until April 2010, the plaintiff was not permitted to circumvent the court’s rules and procedure.

Contact

steven h. Rosenfeld and Gregg scharaga represented MacDougal Rest Inc.

steven h. Rosenfeld: 646-747-5105 or [email protected]








summary Judgment Granted to Defendant nightclub Kekovic v. 13th Street Entertainment LLCSupreme Court, New York CountyIndex No. 116636/09June 14, 2002

HRRV prevailed on a motion for summary judgment on behalf of 13th Street Entertainment in a negligence ac-

tion arising out of personal injuries sustained by a patron at a New York nightclub owned by 13th Street.

Plaintiff Sinisa Kekovic was a patron at 13th Street’s Kiss & Fly nightclub when he allegedly sustained personal injuries after being struck on the head with a bottle of vodka by an unknown assailant. He commenced an action against 13th Street alleging that his injuries were the proximate result of 13th Street having violated General Obligations Law § 11-101, New York’s Dram Shop Act, which imposes liability upon a purveyor of alcohol who “unlawfully” sells alcohol to a per-son for injuries caused by reason of that person’s intoxica-tion. See N.Y. General Obligations Law § 11-101 (2004).

To determine the scope of the liability imposed under General Obligations Law § 11-101, the statute must be read in con-junction with Alcohol Beverage Control Law § 65(2), which prohibits the sale of alcohol to a person “actually or apparently under the influence of liquor.” In other words, in order to sustain a Dram Shop cause of action, the plaintiff must offer evidence that the party to whom liquor was sold appeared to be vis-ibly intoxicated at the time of the sale. See General Obligations Law, supra; Romano v. Stanley, 90 N.Y.2d 444, 447 (1997).

In this action, Kekovic argued that 13th Street was liable for serving his assailant, an individual sitting at a nearby table in the VIP bottle service section, in excess. Kekovic testified that a waitress served a group of men several bottles of vodka, and he ob-served these men being extremely loud and boisterous. Kekovic also claimed that his friends, who were with him that night, told

him that it was a Spanish or African-American man seated at the table who struck him.

HRRV argued that 13th Street could not be held liable be-cause Kekovic was unable to identify his assailant and there-fore could not set forth sufficient evidence that 13th Street served the alleged assailant while he was visibly intoxicated. Kekovic’s testimony and allegations did not meet the stan-dard to hold an establishment liable under the Dram Shop Act.

Justice Saliann Scarpulla agreed with 13th Street’s position, finding that the plaintiff could not establish whether his at-tacker was actually or apparently intoxicated. The court not-ed, “Kekovic’s blanket observations concerning the bottles on the table and boisterous behavior of the men seated there are too generalized to form the basis for the claim.” Accord-ingly, the court awarded 13th Street summary judgment, dis-missing the plaintiff’s complaint.

Contact

steven h. Rosenfeld and Gregg scharaga represented 13th street entertainment.







Court Applies Assumption of Risk to Dismiss Claim of Water Ride PatronMalloy v. Splish Splash at Adventureland, Inc., and Festival Fun Parks, LLCSupreme Court, Suffolk CountyIndex No. 8323/09May 16, 2012

Plaintiffs commenced an action in the Supreme Court, Suf-folk County after the infant plaintiff, Nicole Louise Malloy,

was allegedly injured on the Barrier Reef ride at the Splish Splash Water Park. The plaintiffs alleged that the defendants were negligent in the design, construction, operation and su-pervision of the ride. They further claimed that the excessive force and speed of the water as well as the downgrade and force at a sharp turn in the slide caused Malloy to be pro-pelled into the side of the slide and sustain injuries to her jaw.

Splish Splash moved for summary judgment dismissing the complaint arguing that the defendants did not owe a duty of care to the infant plaintiff, that the ride was safe for those patrons who chose to ride it and that the infant plaintiff, who


was sixteen years old at the time, was aware of and appreci-ated the risk of injury associated with riding the Barrier Reef attraction. Splish Splash also argued that it did not create the alleged dangerous condition, or have actual or constructive notice of an alleged defective condition, and that it was not the proximate cause of the accident.

In support of its motion, Splish Splash submitted the infant plaintiff’s deposition testimony, which indicated that she ar-rived at the water park with her three friends on the morning of her accident. She watched as her friends went on various water slides throughout the day. In the early evening, the in-fant plaintiff and her friends decided to go on the Barrier Reef ride. The infant plaintiff testified that when she went down the slide, she slid from side to side out of control, before hitting the side of her face and head on the bottom of the slide. She believed that the reason her head and face hit the slide was because there was not enough water at the end of the ride to allow her to slide into the pool.

Splish Splash produced testimony from its general manager to demonstrate the lack of prior complaints or accidents on the Barrier Reef ride. The testimony established that the entire ride, including the water pumps, were inspected each morning and that a daily inspection sheet was maintained by the water park. At the time of the infant plaintiff’s accident, there was an attendant at the top of the ride and a lifeguard in the pool at the bottom of the ride. There was also a sign at the top of the ride instructing patrons on the proper way to ride the attraction.

Justice Peter Fox Cohalan granted the defendants’ motion to dismiss the complaint, finding that the premises, including the Barrier Reef ride, was maintained in a reasonably safe condition and that Splish Splash had no actual or construc-tive notice of the conditions complained of. In applying the doctrine of assumption of the risk, the court held that the infant plaintiff was aware of the risk of injury when she volun-tarily chose to ride on the Barrier Reef, and that the risk she consented to was a commonly appreciated risk inherent in the activity. Furthermore, the court stated that the plaintiffs had failed to establish the existence of a concealed defect, or any evidence that the slide presented an unreasonably in-creased risk of injury.

Contact

Carla Varriale and Lindsay Kaplow represented the defendants.

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

Lindsay Kaplow: 646-747-5123 or [email protected]






HRRV ON TRIAL

Queens County Jury Finds no Liability in Case Against hRRV Client Building OwnerBensai v. MCPJF W. 16th LLCSupreme Court, Queens CountyIndex No. 28547/09May 9, 2012

On September 3, 2008, plaintiff Zouheir Bensai, an em-ployee of Greenwich Village Entertainment Group, LLC

(Greenwich Village), alleged that he sustained injuries as a re-sult of slipping and falling on a set of stairs due to an alleged dangerous condition inside Greenwich Village’s Highline Ball-room, a live music venue. Bensai commenced action against MCPJF, the owner of the building located at 431 West 16th Street, New York, New York, in which Highline Ballroom is located.

On the date of the incident, MCPJF was the owner of the building in which Highline Ballroom was located—an out-of-possession landlord—but had no interest in the ownership or operation of Highline Ballroom. MCPJF did not employ any individuals who worked at Highline Ballroom, nor did it oper-ate, manage, supervise or control the premises.

The lease agreement between MCPJF, as owner, and Greenwich Village, as tenant, was in effect from 2006 to the present, which included the date of the incident on September 3, 2008. Pursuant to the terms of the lease, Green-wich Village leased second-floor space including a mezzanine area of approximately 9,000 square feet from MCPJF.

The lease stated in section 4.01 that the landlord shall make all structural repairs to the building, not caused or neces-sitated by the conduct, actions or negligence of the tenant. Section 4.02 provided that the tenant shall maintain and take good care of the demised premises, fixtures, equipment, sys-tems and appurtenances thereto, and make all nonstructural repairs to the premises, fixtures, equipment and appurte-nances therein. Section 5.01 required the tenant to comply with all laws, deed restrictions, orders, ordinances and regu-lations or federal, state, county and municipal authorities with respect to the occupancy, use or manner of use of the premises.

Defendants contended that as of September 3, 2008, Green-wich Village and its employees were solely responsible for operating, maintaining, repairing and controlling the second-floor space including a mezzanine area, which further includ-ed an interior staircase which provided access between the second floor and mezzanine area. The interior staircase had a handrail, which Greenwich Village and its employees were likewise solely responsible for maintaining, repairing and con-trolling as of September 3, 2008.

The defendant contended that the plaintiff could not make out a prima facie cause of action for negligence. The court did not accede to the plaintiff’s request to charge any NYC Building Code violation—and the jury, in answering the first question posed to it, found the staircase at issue to be rea-sonably safe.

Bensai alleged the breaking of a pre-existing rod in his leg and a torn ACL, requiring two surgeries. The pretrial settle-ment demand was $750,000.

Contact

steven h. Rosenfeld was trial counsel for the defendant.






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www.hrrvlaw.com

© 2012 Havkins Rosenfeld Ritzert & Varriale, LLP

HRRV ON TRIAL

hRRV Obtains Defense Verdict for BB King Blues Club and GrillTimmons v. Bensusan Restaurant Corp. Supreme Court, New York CountyIndex No. 114322/08May 23, 2012

Plaintiff Heather Timmons, a patron of BB King Blues Club and Grill, alleged that

while descending the staircase soon after en-tering the venue, her shoe became caught on a raised friction strip, causing her to trip and fall down the stairs. As a result of her fall, Tim-mons claimed to have sustained a sprain to her plantar fasciitis, resulting in chronic fasci-itis to the bottom of her left foot. She alleged that the carpet on the entire stairwell was worn, torn and frayed. In addition, the friction strips were raised throughout the staircase.

At trial, Timmons testified that while she did not observe her shoe become caught on a friction strip, she felt it. She also testified that she never observed the condition that caused her accident at anytime before or after the accident and did not recall the general condition of the staircase. Finally, she admitted that she was not holding on to the banister at anytime prior to her ac-cident. In order to meet her burden on liability, the plaintiff called her sister Melba Timmons as a nonparty witness. Melba Timmons testified that the carpet was in general disrepair and was worn and frayed throughout. She also testified that the friction strips on the edge of the steps were raised. Finally, Melba Timmons ob-served that her sister’s shoe become caught on a raised friction strip immediately before she fell down the entire staircase. She claimed she saw this while standing at the bottom of the staircase, looking up at the plaintiff who was standing at the top of the staircase.

In defense, BB King argued and demonstrated by documentary evidence that the carpet, a commercial grade carpet, was replaced a year prior to the plaintiff’s ac-cident and cleaned less than two months before the plaintiff’s accident. In addition, BB King produced Michael Fancher, a witness to the plaintiff’s accident and the manager on duty at the time of the plaintiff’s accident. He testified that the plaintiff fell down the stairs not because of any condition on the steps, but due to her own inability to descend the staircase while wearing heels and not holding on to the banister.

At the close of trial, the New York County jury rendered a verdict in favor of the defendant.

Contact

Carmen A. nicolaou was trial counsel for the defendant.

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



Documents

“I Was Drunk. So What?” Voluntary Intoxication and ...hrrlawny.com/resources/HRRV_Insight_2012_summer.pdf · Voluntary Intoxication and Comparative Negligence By Gregg scharaga