Decisions of Interest

Forrester v. Riverbay Corporation

Supreme Court, Bronx County, Index No. 300166/13

Plaintiff Edwina Forrester brought this action against defendant Riverbay Corporation, claiming she was injured when she tripped over an elevated section of the wood floor in the living room of her apartment, owned and managed by Riverbay. Representing Riverbay, Malapero & Prisco LLP made a motion for summary judgment dismissing the complaint against Riverbay, which was granted by the Court in an order dated July 31, 2014.

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Soltes v. Turner Construction Company, et al.

Supreme Court, New York County, Index No. 154706/2012

In Soltes v. Turner Construction Company, et al., plaintiff moved for partial summary judgment on the Labor Law §240 claim alleging a mobile crane was improperly operated and resulted in plaintiff being struck by the crane cable. Malapero & Prisco, representing the owner and general contractor, opposed the motion and cross-moved on the Labor Law §240, §241(6), §200, and common law negligence claims.

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Kenny v. Turner Construction Company, et al.

Supreme Court, New York County, Index No. 590556/10

Plaintiff Patricia Kenny commenced this action to recover for injuries allegedly resulting from her slip-and-fall on ice in a parking garage at the Alfonse M. D’Amato United States Courthouse in Central Islip. Malapero & Prisco, representing Turner Construction Company, made a motion for summary judgment seeking dismissal of all claims, cross-claims, and counterclaims against it. In a decision dated March 15, 2015, the Supreme Court, New York County granted Turner’s motion for summary judgment, dismissing the claims against it as a matter of law.

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Irena Luczak v. 63-108th Street Realty, A&R International Food Deli, and Rafael’s Deli Corp.

Supreme Court, Queens County, Index No. 25840/11

Plaintiff, Irena Luczak, initiated this premises liability action, claiming that she sustained serious injuries to her right shoulder and lower spine when she allegedly slipped and fell on a wet floor while attempting to exit a deli. On March 12, 2014, the jury deliberating on the issue of liability only in this matter returned a defense verdict in favor of defendants, 63-108th Street Realty and A & R International Food Deli d/b/a Rafael’s Deli Corp., represented by Malapero & Prisco LLP.

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Ricky Velez, an infant, by his mother and natural guardian, Noemi Velez, and Noemi Velez, individually v. City of New York and New York City Housing Authority and The City of New York v. Ridgewood Bushwick Senior Citizens Counsel, Inc.

Supreme Court, Kings County, Index No. 18792/91

This action was commenced by then-infant plaintiff, Ricky Valez, and his mother, Noemi Valez, to recover for injuries allegedly caused by his fall from their apartment window. Malapero & Prisco and the City made motions for summary judgment and oral arguments were heard by the Court from all parties. Despite Plaintiffs’ counsel’s protests, the Court granted both Defendant’s and Third-party Defendant’s motions, citing both the case law and statutory law that Malapero & Prisco included in its Memorandum of Law in support of its motion.

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Autumn Headen, an infant by her Mother and Natural Guardian Ladrena Loudermilk, et al. v. Riverbay Corporation

Supreme Court, Bronx County, Index No. 17137/01

In this matter, plaintiffs Autumn Headen, Ladrena Loudermilk, Kristen Loudermilk, Treasure Loudermilk, and David Loudermilk, alleged personal injuries caused by claimed exposure to mold and toxic substances while residing in a rental apartment owned and operated by Riverbay Corporation from December 1994 to January 2008. In a decision dated October 18, 2012, the Court granted Malapero & Prisco’s motion for summary judgement, made on behalf of Riverbay, dismissing the action in its entirety.

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Robert Carr v. Bovis Lend Lease et al.

Supreme Court, New York County, Index No. 107413/10

In this action, the plaintiff, Robert Carr alleges that while working in the employ of Five Star Electric, he sustained personal injuries to his left arm when he attempted to lift the gate of a man-lift for which he alleges failed to properly open. Subsequent to his deposition, Malapero & Prisco served upon plaintiff’s counsel with a demand for authorization to obtain access to his social media accounts. Plaintiff’s counsel objected to this demand and contended that the defendants were not able to show that the requested information actually existed and failed to “establish a factual predicate with respect to the relevancy of the evidence” ( citing McCann v. Harleysville Insurance Company of New York, 78 A.D. 3d 1524, 910 N.Y.S. 2d 614 [N.Y.A.D. 4th Dept., 2010]).

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De Rosa v. Bovis Lend Lease LMB, Inc. et al

Appellate Division, First Department, Index No. 307731/08

In a decision dated June 26, 2012, the Appellate Division, First Department reversed, on the law, plaintiff’s motion and granted Malapero & Prisco’s cross-motion dismissing plaintiff’s Labor Law 240(1) cause of action. Plaintiff, the driver of a cement mixing truck, suffered extensive injuries when his shirt became caught in the mixer’s rotating hatch handle causing him to be propelled upward and over the side of the truck. Malapero & Prisco asserted that, in order to impose liability under Section 240(1), the risks to plaintiff cannot be ordinary construction hazards. Rather, the risks must arise due to “the relative elevation at which the task must be performed or at which materials or loads must be positioned or secured.”

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Thompson v. BFP 300 Madison II, LLC, et al

Appellate Division, First Department, Index No. 106770/07

In a decision dated May 8, 2012, the Appellate Division, First Department unanimously affirmed the dismissal of plaintiff’s Labor Law 200 and 241(6) causes of action. Plaintiff, an experienced carpenter and foreman, sustained injuries when he flipped a fan coil box (a piece of equipment utilized by the HVAC contractor) into a vertical position and attempted to slide it toward a sheetrock wall.

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Samuel v. Riverbay Corp., et al

Supreme Court, Bronx County, Index No. 17556/04

In a premises liability case involving a 50 year old female plaintiff who slipped and fell on “black” ice located on the public sidewalk adjacent to her apartment building, Malapero & Prisco successfully defended the adjoining property owner and received a defense verdict on February 17, 2012.

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DeMartino v. Consolidated Edison Co., et al

Supreme Court, New York County, Index No. 110464/04

Plaintiff, a 35 year old concrete worker, allegedly fell after tripping on a partially buried ground cable while at the subject job site. As a result, plaintiff sustained a disc herniation requiring a posterior lateral fusion with insertion of a boomerang titanium cage, a laminectomy and discectomy, a torn meniscus and knee derangement.

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Morrison v. Apostolic Faith Mission, et al

Supreme Court, Queens County, Index No. Index No. 32810/09

While performing pest control at the insured premises, plaintiff, a 43 year old exterminator, claimed that she was caused to slip and fall down the staircase to a church basement due to the alleged uneven and unlevel nature and varied height of the steps and landing. Plaintiff further alleged that the landing was in a slippery condition and that the bottom steps after the landing did not have a handrail in violation of the New York City Building Code.

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Shmueli v. Barash and Crown Heights Jewish Community Council

Supreme Court, Kings County, Index No. Index No. 1242/09

In a premises liability action stemming from a slip/trip and fall incident allegedly caused by the depressed or raised condition of the sidewalk, plaintiff sustained multiple facial fractures, which required surgical intervention, broken teeth, hearing loss and injuries to the cervical spine and lumbar spine. Plaintiff asserted that the tenant and/or owner had a duty to keep the outside sidewalk area near the premises in a safe and reasonable condition.

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McCarthy v. Turner Construction, Inc. et al

Court of Appeals, Index No. Index No. 107959/05

In a decision dated June 28, 2011, the Court of Appeals affirmed the orders of the lower Courts, after Malapero & Prisco effectively argued that case law imposed indemnification obligations only upon those “actively” at fault in bringing about a plaintiff’s injury. Therefore, Malapero & Prisco’s insured, a non-negligent vicariously liable general contractor, was not obligated to indemnify, under common law principles, an equally non-negligent vicariously liable owner.

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Victor Infante v. RCPI Landmark Properties, Tishman Speyer Properties, and Jacobson & Company, Inc.

Supreme Court, Kings County, Index No. 1327/06

Plaintiff, an employee of a general contractor at a construction site, fell when a scaffold owned by a subcontractor, Jacobson & Company, gave away. We successfully moved for summary judgment on behalf of Jacobson. We argued that plaintiff's claims...

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David McCosker v. Hershey Entertainment & Resort

Supreme Court, Suffolk County, Index No. 27393/05

Plaintiff, a patron at Hershey Park, claimed he was caused to slip and fall on a puddle of water as he exited the water slide. Plaintiff was barefoot, had just stepped off the water ride, and testified that he knew the ground around the slide would be wet...

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Jessie Parker v. Logan Bus Co., Inc. and "John Doe", name being fictitious, true name unknown, person intended being the operator of the bus involved in the occurrence

Supreme Court, New York County, Index No. 108699/06

Plaintiff, a teacher, alleged she was injured when she fell as she was disembarking from a school bus. It had snowed the previous day and the ground was icy. Plaintiff, the second person to exit the bus, claimed her foot slipped on a wet step. She did not...

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Donald Lawrance v. Turner Construction Company and Illinois Tools Works Inc.

Supreme Court, New York County, Index No. 108699/06

The plaintiff, an employee of a sub-contractor, allegedly sustained injury while hanging wire carriers when a power actuated gun jammed. Action was commenced against, among others, the general contractor of the site. Violations of Labor Law...

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Allen MacGhee v. L&L Painting Co. and City of New York

Supreme Court, New York County, Index No. 111380/05

The plaintiff, an employee of a sub-contractor performing painting services on the Queensboro Bridge allegedly sustained injury when stacks of tubing weighing over two hundred pounds fell and crushed his foot. The plaintiff commenced action...

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Joseph Adonis v. North American Demo & Excavation Corp.,Grant Forbell and Empire Developers Corp.; Grant Forbell and Empire Developers v. North American Contracting

Supreme Court, Kings County, Index No. 49635/02

Plaintiff, an employee of third-party defendant North American Contracting, alleged he was injured by a falling rock at a construction site. He sustained a fracture of the right tibia. We represented defendants Grant Forbell, owner of the premises, and...

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Richard J. Erickson v. Cross Ready Mix; Turner Construction Company v. Commodore Construction Corp.

Supreme Court, New York County, Index No. 011947/05

The plaintiff, an employee of the third-party defendant, commenced an action against, among others, Turner Construction Company, the general contractor of the work site. Plaintiff allegedly sustained injury when he was struck by the chute of...

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