Cascone & Kluepfel, LLP is proud of our track record of success in
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Denial of Summary Judgment Reversed by Appellate Division, Second Department
Plaintiff claimed to have sustained serious injuries after being struck
with a ball while sunbathing at a municipal beach. She alleged that the
municipality failed to provide proper supervision and also failed to enforce
its own “no ball playing” ordinance, instead permitting a
group of patrons to engage in a 45 minute baseball game. Following the
incident, plaintiff underwent five surgical procedures, resulting in significant
disfigurement. We moved for summary judgment dismissal arguing that the
municipality’s duty to beachgoers was limited to preventing “ultrahazardous
and criminal activities of which it had knowledge.” The motion court
denied our motion, finding a question of fact as to whether the lifeguards
and public safety officers should have stopped the game.
On appeal, the Appellate Division, Second Department, reversed the motion
court’s decision and dismissed the action. The court found that
we had submitted prima facie evidence that the activity (playing baseball)
did not rise to the level of "ultrahazardous and criminal" activity
that would trigger the municipality’s duty to intercede.
(Appellate Division, Second Department, June 2016).
Defense Verdict in Damages Only Trial
Founding Partner Len Cascone obtained a defense verdict on a damages only
trial in Queens County. The jury determined that plaintiff's neck
complaints (including numbness and tingling in his hands) resulted from
the natural degenerative process of a two-level cervical fusion he underwent
five months prior to the motor vehicle accident in question. The jury
rendered a defense verdict under Insurance Law § 5012(d), finding
that plaintiff did not sustain a serious injury as a result of the rear-end
(Supreme Court, Queens County, March 2016)
Court Determined Client’s Work Not a Cause of Sidewalk Defect
Plaintiff pedestrian claimed that she tripped and fell over a “depression”
on a sidewalk in Queens, New York. She brought suit against the abutting
property owner, City of New York, and our client, a plumbing contractor
hired by a non-party to repair a water main. We moved for summary judgment,
submitting evidence that our client performed no work on the sidewalk,
but only in the roadway itself. The Court granted summary judgment in
our favor, finding as a matter of law that our client’s work could
not have caused the sidewalk defect and, therefore, could not be liable
to plaintiff or the abutting property owner.
(Supreme Court, Queens County, February, 2016)
Labor Law Action Dismissed against Client Masonry Contractor
Plaintiff, an electrician, tripped and fell on brick debris from an interior
brick wall built by our client. Plaintiff alleged the brick debris was
left by our client. Plaintiff sustained a torn labrum of the left shoulder
and underwent three surgical repairs. We moved for summary judgment dismissal,
arguing that evidence confirmed that our client did not create the debris,
as our client completed its work at the project ten days before plaintiff
fell. The court agreed with our argument that the debris was not created
by our client, but instead, resulted from another contractor’s work
in creating openings in the brick wall to accommodate electrical conduits.
Accordingly, the court dismissed plaintiff’s claims and the third-party
plaintiff’s indemnification claims against our client.
(Supreme Court, New York County, January 2016)
Appellate Division Reverses Motion Court’s Denial of Summary Judgment to Defendant
Plaintiff golfer alleged that the defendants were negligent in causing
and/or failing to warn him of a mossy wet railroad tie on a golf course.
Our client maintained the fairways pursuant to an oral agreement with
the owner of the golf course. The testimony established that it had rained
in the hours before the accident and the course was wet while plaintiff
was playing. We moved for dismissal, arguing that plaintiff’s claim
was barred by the doctrine of primary assumption of risk, as slipping
on a wet railroad tie was a reasonably foreseeable result of playing on
a wet/dewy golf course. The Appellate Division agreed, reversing the lower
court’s decision denying the motion. (Appellate Division, Second Department, January 2016)
Court Granted Summary Judgment Motion of Abutting Tenant
In this action, the plaintiff claimed that she tripped and fell on a public
sidewalk in the Village of Rockville Centre. We represented the tenant
of the building abutting the sidewalk. We moved for summary judgment,
arguing that our client did not create the condition, cause the sidewalk
defect to occur because of a special use, or violate any statute or ordinance
that imposed tort liability upon it. The court agreed with our position
and granted our motion for summary judgment dismissal.
(Supreme Court, Nassau County, December 2015)
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