Articles Posted in Municipal Liability

An audit of Westchester Medical Center (WMC) found company executives were paid millions of dollars in bonuses between 20013 and 2015. State Comptroller, Thomas DiNapoli’s office found that $4.6 million dollars were to paid to 18 employees without sufficient record keeping as to why the payments were made.  The hospital was audited because it is a public authority, meaning it follows different state laws than the state’s nonprofit hospitals. The audit did find that some largest bonuses, paid to the CEO and CFO, followed state regulations; the two top executives were paid a total of $2.7 million in bonuses over three years.

WMC officials disagreed with many of the findings and noted they will be implementing a new bonus payment program in order to better comply with the state law and regulations cited in the report. The health system stated they maintain their total compensation approach and salary withhold process are in compliance with the incentive guidelines set forth by the Comptroller’s office. Auditors noted that in the past, state regulators have required an evaluation program with specific criteria and other rules. Continue reading

NYU Langone Medical Center was investigated by the state after a patient caught fire during surgery; the facility was cited due to lapses in safety procedures and communication.  The fire took place in December 2014 when a medical instrument accidentally reacted with the patient’s oxygen and sparked a fire. The Department of Health inspected the hospital and declared an “immediate jeopardy” situation due to the gaps in safety procedures and communication.  The New York Post was able to obtain the report on the incident through a Freedom of Information Law request,  however the report was heavily redacted.

The name of the patient, nature of surgery, and type of instrument that caused the fire were not revealed in the report, making it unclear as to what injuries the patient sustained. The operating room staff told investigators that a fire-risk assessment was conducted prior to the surgery, but they did not provide any details of the strategies or actions of prevention that were discussed. The operation room fire occurred at the beginning of December, but there was no evidence that the hospital took remedial steps to implement prevention protocols until the after the state inspection later that month.

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In a report released January 2015, the Occupational Safety and Health Administration (OSHA) found that there were 10,388 severe workplace injuries in 2015; 7,636 of those injuries resulted in hospitalization and 2,644 resulted in amputations. The manufacturing industry has the highest reported accidents, accounting for 57% of all amputations and 26% of all hospitalizations, followed by the construction, transportation and warehousing industries. This data was collected by OSHA from 26 states with higher safety standards than federally mandated.

The report came as the result of new regulations that require companies to report serious workplace accidents within 24 hours. This new program took effect on January 1, 2015 in an effort to reduce the amount of workplace injuries; currently there are 30 severe work-related injuries a day. OSHA stated that during investigations of fatal injuries they often find a history of serious injuries at the site, which was a wake-up call that safety issues were being disregarded. Continue reading

The New York Supreme Court, Appellate Division, Second Department in Montenegro v P12, LLC, 2015 NY Slip Op 05919 [130 AD3d 695] reversed a lower court’s decision granting a defendant’s motion for summary judgment to dismiss a cause of action alleging a violation of Labor Law § 241(6), predicated on 12 NYCRR 23-1.8(a).

The plaintiff was employed as a carpenter on a renovation project at a premises owned by the defendant.  The plaintiff was injured while using a pneumatic nail gun to attach molding around a window.  He was struck in the eye with a nail and sustained injuries to the eye. Continue reading

The New York Supreme Court, Appellate Division, Second Department in Bergin v Golshani, 2015 NY Slip Op 06103 [130 AD3d 767], denied a defendant’s motion for summary judgment to dismiss a cause of action alleging negligence.

In the slip-and-fall case, the plaintiff sought to recover damages for personal injury for defendant’s failure to inspect the area where plaintiff was injured.  Here, the plaintiff fell on a loose piece of slate on a slate stone landing.  Nassau County Supreme Court denied the defendant’s motion for summary judgment to dismiss the plaintiff’s cause of action alleging negligence.  The defendant’s cross-appealed the court’s decision denying its motion for summary judgment to dismiss the cause of action.  Continue reading

In Amandola v Roman Catholic Diocese of Rockville Ctr., 2015 NY Slip Op 06099 [130 AD3d 761], the New York Supreme Court, Appellate Division, Second Department denied a defendant’s motion for summary judgment to dismiss a cause of action for failure to provide adequate supervision in its school.

A plaintiff brings suit against his school for failure to provide adequate supervision after being injured by his classmates on multiple occasions.  The plaintiff commenced this action against his school because his school failed to intervene after students repeatedly assaulted the plaintiff on school grounds and in the classroom.  Continue reading

The Supreme Court of New York, Appellate Division, First Department has reversed an order issued by the Supreme Court for New York County that granted the City of New York’s motion for summary judgment and dismissed the plaintiff’s complaint that an icy patch caused her to fall and injure herself.

frozen.jpgOn December 23, 2008, the plaintiff was walking on a public sidewalk when she slipped on some ice and fell. She later filed a lawsuit against the City of New York, alleging the City failed to timely clear the sidewalk of ice in order to prevent her fall. The City filed a motion for summary judgment to dismiss the complaint.

As a matter of law, a motion for summary judgment will only be granted if no genuine issue of material fact exists that needs to be decided by a jury. In its motion, the City argued several things. First, the City argued that the plaintiff contradicted herself in her affidavit and her deposition regarding what exactly she slipped on. At her deposition, the plaintiff described the ice as “dirty” with “snow layers on top of layers.” The plaintiff later clarified in her deposition that the ice was “slushy ice” that was “clean, like slippery, flat” with a little snow on top. However, in an affidavit submitted in opposition to the City’s motion for summary judgment, the plaintiff stated that the ice was “one inch thick, flat, hard, and dirty, as if it had existed for several days.” The appellate court held the deposition was not inconsistent with the affidavit. In addition, the appellate court held it generated a dispute of fact that needed to be tried, not decided on a motion for summary judgment.

Cicola v. County of Suffolk, 2014 NY Slip Op 06293, involves a Suffolk County car accident in which an official vehicle being driven by an employee of Suffolk County hit the plaintiff’s vehicle, injuring him. At trial Mr. Cicola was able to prove that the accident resulted from negligence, and further was able to defeat the defendant’s attempts to convince the jury that his injuries were largely pre-existing and simply exacerbated by the accident. After the plaintiff’s win, the defendants appealed, seeking to have the verdict dismissed. They lost – the verdict stood. But, without much explanation or legal reasoning, the Appellate Division, Second Department, ordered damages reduced.

crash2.jpgWe opened with the brief summary of the case because there is not much more legally relevant information in the Second Department’s opinion. The defendants lost numerous motions. The jury found the plaintiff’s expert more credible than the defense expert. Defendants moved to have the verdict dismissed as “against the weight of the evidence,” They lost this attempt as well. Their appeal also largely fell flat, as they were unable to get the jury verdict imposing damages set aside. But the defendants were ultimately successful in having the Appellate Division forcibly lower the jury’s damage award.

It bears a paragraph to take a close look at those awards. Mr. Cicola (who injured his back in the accident) won from the jury two damage awards: $325,000 for “past pain and suffering” and $250,000 for “future pain and suffering.” The Second Department did not simply lower these damages. Rather, it directed that there would be a new trial solely on the issue of damages (not liability) unless the plaintiff agreed to a reduction to $150,000 for past pain and suffering, and $100,000 for future pain and suffering. Of course, because the court indicated that it would not be friendly to any higher amounts a second trial may lead, to the plaintiff may have felt compelled to accept the lowered damages.

In a previous post, we went over the laws governing which party is liable when a plaintiff trips and falls on a defective sidewalk in the City of New York. Brief review: NYC’s Sidewalk Law places liability on “abutting” property owners – those who own the land next to that portion of the sidewalk – with exceptions for one, two, or three family homeowners where the homeowner also resides in the building. (In fact, the excepted homeowners can simply call the City up to perform sidewalk or tree repairs on their property). Here, we will examine ways in which the law treats differently certain features of sidewalks: trees and “tree wells,” grates, and covers of certain other objects like cable boxes.

city tree.jpgIt makes sense that liability for negligently maintained tree wells (the little area housing one of New York City’s ubiquitous sidewalk trees) is treated differently than liability for the sidewalk as a whole. A business owner, after all, relies on the presence of that sidewalk to give his customers a way to enter his place of business – he benefits directly from the presence of the sidewalk and as such, has an interest in making sure his section of it is well maintained and safe, even if he doesn’t “own” that section. But a tree (for one example) is a bit different: the City likely planted that tree, or it was there before an owner bought the building, and that tree is doing little, if anything at all, to benefit the building owner.

As a brief but interesting aside: any building owner in fact can call up the City and request that a tree be planted on their portion of the sidewalk. Developers of new building are now in fact required to plant trees, though this doesn’t change the liability for those trees we discuss in this post.

Who owns the sidewalks of New York City? Usually, the City does, and based on that you might be tempted to assume that any injuries resulting from defects of those sidewalks – cracks and crevices and the like – would be the fault and responsibility of the City. You’d be wrong! And the reason you’d be wrong is the Sidewalk Law (colloquial name), passed by the City Council in 2003 to shift liability from the City to adjacent property owners of sidewalks, with some very notable and important exceptions.

Before we go into how the law works, a bit of context will be helpful. In any kind of personal injury action, a plaintiff quite naturally wants to make sure they file suit against any and all parties legally responsible for their injury, even if that responsibility is only partial. The doctrine of “joint and several liability” means that a plaintiff can collect their full recovery from any liable defendant, not merely the percentage for which that defendant is responsible. And of course, New York City is a defendant who possesses far more money, and is also often more willing to settle, than most.

sidewalk1.jpgIn a sidewalk liability case, then, the law being variable and subject to “tests”, it often makes sense for a plaintiff who has been injured after a trip and fall to file suit against both the City and the adjacent property owners. It appears that this was exactly what the plaintiff did in Meyer v. City of New York et al., a recent case decided in the Appellate Division, Second Department. The plaintiff, Ms. Meyer, tripped and fell on a publicly owned sidewalk adjacent to property owned by several defendants. In addition to the property owners, she sued the City of New York, reasoning that under the Sidewalk Law, at least one of these parties is responsible for the negligent maintenance of the sidewalk.

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