Callahan & Fusco Ends 2023 with Dismissals for Both Landlord and Tenant

Callahan & Fusco was recently granted summary judgment on behalf of two clients, a landlord and a tenant, with the New York Supreme Court, Bronx County granting two separate motions for summary judgment and dismissing the plaintiff’s action against each of them on different grounds. See Juan Henriquez Vasquez v. Mosholu Petrol Realty LLC, et al.

Plaintiff’s Complaint arose from an alleged trip-and-fall accident on the sidewalk abutting the client landlord’s property, which consisted of a gas station and commercial building on the premises, leased to two separate tenants. While the client tenant leased a portion of the interior of the building to operate a Dunkin’ Donuts franchise, the majority of the property, including the exterior, was leased to the co-defendant to operate a gas station and minimart on the premises. Notably, this contract with the co-defendant gas station was a “triple net lease,” wherein that tenant was responsible for paying not only rent, but also all expenses related to insurance, maintenance, and taxes, and the landlord not retaining any right of reentry. Following plaintiff’s alleged trip-and-fall, he commenced this personal injury action against the landlord and both tenants.

After the exchange of written discovery, C&F filed two motions for summary judgment to dismiss the Complaint: the first to dismiss the defendant landlord as an out-of-possession landlord under New York law, and the second to dismiss the defendant tenant based on the interior nature of their leased portion of the property.  In support of these motions, the defendants submitted their respective lease agreements and heavily emphasized for the Court the language contained within, detailing the obligations of each party on the involved premises.  It was also crucial to wait for plaintiff’s initial discovery responses, which included photographs of the specific area where the plaintiff allegedly fell, negating any arguments with respect to prematurity, as there could be no dispute as to the specific area in question once the photographs were disclosed.

Despite plaintiff’s various opposing arguments, the Court agreed with the defendants and granted both motions on the grounds that neither client had any responsibility for the area where the plaintiff allegedly fell.  In the lengthy Decision and Order, the Court referenced the triple net lease with the co-defendant tenant, and held that the lease required the co-defendant’s responsibility for the sidewalks, curbs, drives and pathways on the property and all paved areas. The Court further referenced the defendant tenant’s lease, specifically a clause providing that the lease is exclusively for use of the building and for no other purpose.  While plaintiff argued that the motions were premature ahead of party depositions, the Court found that the plaintiff failed to demonstrate that further discovery might lead to relevant evidence or facts essential to justify opposition, as the mere hope that such evidence may be uncovered during discovery is insufficient. Ultimately, the Court held that the moving defendants established, prima facie, that they had no duties or responsibilities with respect to the sidewalk upon which plaintiff allegedly fell, as the lease was unambiguous in its terms, and plaintiff’s counsel could not dispute it.

From a defense perspective, these motions demonstrate the importance of carefully reviewing extensive lease agreements in order to seize the opportunities presented within them. While indemnification terms were also present in the involved agreements, tender demands went unanswered, and it was thus decided to test the strength of these leases before the Court.  In future cases of a similar nature, it may thus be recommendable to attempt an early motion for summary judgment like this, in lieu of the further delays and expenses that come along with party depositions or other unnecessary discovery.

C&F Obtains a Series of Favorable Rulings Based Upon Staged Accident

Callahan & Fusco recently obtained summary judgment in a Kings County, New York matter. Defendants’ dash camera footage of the accident revealed that the alleged loss was a product of a staged accident.  Defendants filed a Motion to Dismiss and argued that the four Plaintiffs had failed to state a cause of action, as the underlying automobile accident was staged.  Ultimately the Kings County Court dismissed Plaintiffs’ claims.

Plaintiffs were driving on Conduit Avenue a few days before Christmas when they abruptly and without warning braked in front of a commercial vehicle. Our investigation revealed: (1) the loss in question occurred approximately a month after the Plaintiffs had purchased the first-party insurance policy in question; (2) Plaintiffs’ “burner car” involved in the accident was also purchased within the same time period for nominal consideration; (3)  the accident dynamics met multiple National Insurance Crime Bureau (“NICB”) screening criteria for an intentional and collusive accident; (4) video footage of the accident revealed Plaintiffs’ vehicle suddenly stop without warning or any reason for doing so in the middle of a dark road; (5) Plaintiffs’ vehicle “shadowed” Defendants’ truck prior to the impact; and (6) immediately following the incident, a third vehicle arrives and the driver exits the vehicle to take photos and videos of the collision scene.  After the accident, the four Plaintiffs began to treat excessively received physical therapy, chiropractic, acupuncture, diagnostic testing, therapy and durable medical equipment.  The four Plaintiffs all attended the same no-fault clinic and retained the same attorney.

Plaintiffs’ First-Party Insurance Carrier also opened an investigation and ultimately filed suit seeking a declaratory judgment that it has no duty to pay for “damages” related to a staged accident.  New York Courts routinely hold that an auto accident, which is the product of a staged or cause of event, is not a covered loss under the applicable policy of insurance.  (See Allstate v. Massre, 14 AD3d 610 [2d Dept. 2005]).  Further, intentional crashes are not “accidents” covered by insurance policies.  (See State Farm Mut. Auto. Ins. Co. v. Laguerre, 305 AD2d 490, 491 [2d Dept. 2003]). 

In this case, Defendants argued that the events leading up to the alleged incident did not constitute an accident and were the product of an intentional incident which were perpetrated solely for the purpose of obtaining insurance proceeds.  Further Defendants argued that the video footage revealed Plaintiffs’ vehicle shadowed Defendants’ truck.  The footage subsequently showed Plaintiffs’ vehicle intentionally coming to a sudden and complete stop and caused a collision with Defendants’ truck.

The Court ultimately granted the Motion for Summary Judgment in full against the Plaintiffs and dismissed all claims against the Defendants.  The Court held that res judicata and the issues decided in the Plaintiffs’ First-Party Insurance Carrier case were conclusive as to any matters actually litigated or that might have been litigated in that action, and precluded the Plaintiffs from maintaining a bodily injury action.  This matter exemplifies the importance of coordination between and among insurance carriers and a quick “emergency response” to potentially fraudulent and staged accidents.

The Legal Landscape of Premises Liability: Florida Appellate Court Affirms Summary Judgment in Trip and Fall Case Involving Concealed Hazard in a Commercial Property’s Landscaped Area

The Second District Court of Appeal of Florida recently decided the case of Stephanie Pio v. Simon Capital GP, Macy’s Florida Stores, LLC, and Luke’s Landscaping, Inc., No. 2D21-1621 (2nd DCA July 7, 2023), in which it affirmed the trial court’s granting of summary judgment in favor of the Defendants in an action that arose from a trip and fall accident within a landscaped area.

Plaintiff, Stephanie Pio, appealed the court’s final summary judgment order entered in favor of Simon Capital GP, one of the defendants in the case.  The incident occurred at Tyrone Square Mall in St. Petersburg, Florida.  Pio alleged that she sustained an injury after stepping into a concealed hole when she attempted to walk across a landscaped area outside the shopping mall.  Pio filed a complaint against Macy's Stores, Simon Capital, and Luke's Landscaping, which was contracted to conduct the mall's landscaping.

The trial court granted separate summary judgments for all three defendants, prompting Pio to appeal the decision concerning Simon, as the party in control of the subject premises.  The central question revolved around whether the landscaped area in which Pio tripped and fell could be classified as open and obvious.  The trial court's rationale was grounded in prior case law where landscaping features were generally considered non-dangerous or open and obvious conditions as a matter of law.   The court distinguished Pio's case from other precedent that was favorable to the plaintiff by noting that there was no evidence demonstrating that the area where Pio tripped and fell was regularly traversed by pedestrians.

Pio's appeal rested on two primary contentions.  First, she argued that the depression in the grass constituted a foreseeable hazard.  Second, she maintained that Simon should be held vicariously liable for the actions of Luke's Landscaping, which she alleged created the hazard or failed to remove it.  The Second District determined that Pio's presented evidence failed to substantiate her claim that a pedestrian walking through the landscaping and encountering a depression in the grass was foreseeable, as paved walkways were provided for pedestrian use.  Moreover, since Luke's was not found liable, the notion of vicarious liability for Simon was untenable. 

The Second District cited a prior case, Wolf v. Sam's East, Inc., 132 So. 3d 305 (Fla. 4th DCA 2014), which involved a similar set of facts.  In Wolf, the court ruled that the presence of tree roots in a landscaping area, though visible, were not inherently dangerous and thus constituted a non-dangerous condition as a matter of law.  The court reinforced its judgment by highlighting the fact that the property owner had provided paved walkways for pedestrian traffic, making a safer pedestrian route than through the landscaped area, and held that the plainitff had a responsibility to exercise caution in the presence of potential hazards.

Pio further underscores the established principle in Florida premises liability law that a property owner’s responsibility of maintaining its premises in a safe condition and warning of concealed hazards does not extend to areas that are not intended for pedestrian traffic.  Where a pedestrian chooses to take a detour through such an area, she does so at her own peril.

Voluntary Dismissal Without Prejudice Does Not Bar Attorney's Fees Under Proposal for Settlement Following Partial Summary Judgment

On September 15, 2023, the Fifth District Court of Appeal of Florida reversed the Circuit Court of Duval County’s order, finding that the trial court erred in denying attorney’s fees to the Defendant following a partial summary judgment in her favor, which prompted the Plaintiff to voluntarily dismiss the remaining action without prejudice. Kuthiala v. Goldman, et al., No. 5D23-121 (Fla. 5th DCA, September 15, 2023).

The Plaintiffs, David M. Goldman and Beth Mayers Goldman, filed a three-count complaint against the Defendant, Dr. Sejal Kuthiala, M.D.  During the litigation, Defendant served proposals for settlement to both Plaintiffs pursuant to Florida Statutes Section 768.79, which the Plaintiffs did not accept.

The trial court granted Defendant’s summary judgment motion on the first and third counts of the complaint but denied the motion on the second count. Following the summary judgment rulings, the Plaintiffs filed a notice of voluntary dismissal without prejudice.

Thereafter, the Defendant filed a motion to tax costs and attorney’s fees based on Plaintiffs’ rejection of her proposals for settlement. The trial court denied Defendant’s motion for attorney’s fees, holding that granting the motion “would be inconsistent with binding authority” under MX Investments v. Crawford, which held that a dismissal without prejudice does not support an award of attorneys’ fees under Section 768.79. 700 So. 2d 640, 641-42 (Fla. 1997). However, in MX Investments, the plaintiff in that case had voluntarily dismissed the entire action, and none of the claims were adjudicated on the merits.

Defendant, Dr. Kuthiala, appealed the denial of the motion.  On appeal to the Fifth District, Dr. Kuthiala distinguished MX Investments on the basis that there was an adjudication on the merits for counts one and three of the complaint during the summary judgment hearing. Dr. Kuthiala further argued that the Fifth DCA’s decision in Scherer Construction & Engineering of Central Florida, LLC v. Scott Partnership Architecture, Inc., was the controlling case law and provided support for the reversal of the order denying her request for attorney’s fees. 151 So. 3d 528 (Fla. 5th DCA 2014).  In Scherer, the Fifth DCA held that attorney’s fees were not awardable under Section 768.79 for a claim that was voluntarily dismissed. Id. at 530. However, the Scherer court affirmed the portion of the trial court’s order that awarded attorney’s fees on the claim on which the trial court had entered summary judgment in favor of the defendant. Id.

The Fifth DCA agreed with Dr. Kuthiala position that MX Investments was factually distinguishable from the instant case. The Fifth DCA further agreed that Scherer was binding because the facts were identical.  Accordingly, the Fifth DCA reversed the trial court's order denying Dr. Kuthiala’s motion to tax costs and attorneys' fees, remanding for the entry of an order awarding attorney’s fees to Dr. Kuthiala based on counts one and three of the Plaintiffs’ complaint.

C&F Again Obtains Summary Judgment in “Ongoing Storm” Negligence Action

Callahan & Fusco recently obtained summary judgment in New Jersey Superior Court, Union County, in a slip and fall negligence action. In the Complaint, plaintiff alleged the defendant snow contractor negligently and carelessly maintained a commercial parking lot and failed to give proper notice of hazardous conditions causing severe and permanent injuries.

As New Jersey courts have held, in instances where a commercial property owner has contracted to perform snow removal services, the snow removal company has a duty to perform said snow removal “in a careful and prudent manner.” The duties of the snow removal contractor are, however, defined by the terms of the contract. Moreover, the New Jersey Supreme Court in Pareja v. Princeton International Properties, 246 N.J. 546 (2021) first recognized that a duty arises “after the cessation of the hazardous precipitation; none opine on the imposition of a duty before that point”, thereby formally adopting the “on-going storm” rule throughout the state of New Jersey. Furthermore, in Carol Smith v. Costco Wholesale, et al, 2023 N.J. Super. Unpub. LEXIS 1112, the court declined to distinguish between commercial property owned publicly versus privately – effectively re-affirming the holding in Pareja.

In this recent matter, the plaintiff allegedly sustained injuries after he slipped and fell due to snow as he exited his apartment building. As a result, the plaintiff sustained multiple disc bulges, muscle spasms, hypertension/hyperflexion to the cervical and lumbar spine, and radiculopathy of the cervical and lumbar spine; these injuries were alleged to be permanent. The defendant snow contractor had contracted with the commercial property owner to begin snow removal at the request of the property owner, only. The plaintiff testified during his deposition that it was not actively snowing or freezing rain at the time of the fall, and the plaintiff did not retain any liability or weather expert to address concerns of an ongoing storm. The defendants presented a meteorologist expert report to prove that there was an active ice storm at the time of the incident, despite the lull in between showers.

It was thus argued that the snow contractor did not breach any duty owed, as there was no evidence that the snow removal contract was triggered, without evidence that the property owner requested the services of the snow contractor prior to the plaintiff’s fall. Furthermore, even if the snow contractor was indeed contacted prior to the fall, the ongoing storm rule applied, as this was a commercial residential property, and the duty of the property owner and snow contractor thus did not commence until a reasonable time after the storm ended.

After considering the motion and conducting oral arguments, the court ultimately granted the motion for summary judgment in full against the defendant snow removal contractor and dismissed all claims against them.  The ongoing storm rule thus continues to be a valuable tool for defendants in weather-related premises liability actions, leading to another favorable decision for our firm.

Update on Grieving Families Act

Last year, the New York State Senate and Assembly passed Bill S74A, also known as the Grieving Families Act, which amended the law regarding payment and distribution of damages in wrongful death actions.  Thereafter, Governor Hochul vetoed the Act and, earlier this year, the Act was revised.  This year, the Senate and Assembly passed the Act again.  It currently awaits Governor Hochul’s signature or veto.

By way of background, the Act (1) extended the time to bring a wrongful death action for up to three years and six months, (2) permitted recovery for emotional loss when a tortfeasor is found liable for causing a death, and (3) permitted recovery by close family members which included a spouse or domestic partner, children, grandparents, stepparents, and siblings. It also replaced the term “distributees” with “persons for whose benefit the action is brought”. Finally, it stated that the Act shall take effect immediately and apply to all pending actions commenced on or after such date.

The Act collected significant support and cleared the New York State Senate in June 2022, gathering a vote of 57-6. The bill advanced to the New York State Assembly where it received more support in July 2022, securing a vote of 147-2. However, Governor Kathy Hochul vetoed the Act on January 30, 2023. She agreed with the objective of the bill, but raised some concerns which included the potential creation of open-ended beneficiary groups, the confusion that may result for judges and litigants regarding the wide-ranging types of damages, potential for conflicting claims for damages in ongoing legal cases, and the potential rise in insurance costs burdening families and small businesses.

In order to ease the Governor’s concerns Senator Holyman and Assembly member O’Donnell reintroduced the Grieving Families Act in May 2023. The revised Act extends the time to bring a wrongful death action to only three years after a close family member’s death to file a wrongful death suit. The eligible classes of individuals entitled to damages would include spouses, domestic partners, children, parents, grandparents, siblings, stepchildren, stepsiblings, and individuals who stood in loco parentis to the deceased. The Act also outlines the limitations of non-economic damages incorporating aspects such as grief, loss of companionship, consortium, support, protection, and pain and suffering. It also has been amended to only apply to causes of action that arose on or after July 1, 2018.

The effects of the passing of this Act would include the expansion of the definition of a family member allowing more individuals to bring a wrongful death lawsuit. Additionally, these individuals would be able to seek both economic and non-economic damages. There is still a concern that because the Act allows insurance companies to pay for grief, pain, and suffering this will cause for higher insurance premiums. Furthermore, there might be confusion, increased costs and competition for the claims of damages. The Act was passed on June 6, 2023, by the Senate and a few days later by the Assembly. The Act will now go to the Governor for consideration.

Callahan & Fusco will continue to monitor the status of the Act and any corresponding court decisions on this issue.