Appeals

Baxter Smith Tassan & Shapiro takes pride in handling matters from inception through completion, including the appellate process. For example, within the past two years, our office has argued 2 appeals before the highest court in the State of New York:

Court of Appeals Decisions:

a) Boles v. Dormer Giant, 4 N.Y3d 235, 825 N.E.2d 590, 792 N.Y.S.2d 375 (2005). In this case, we successfully overturned the decision of the trial and Appellate Courts, and had our third-party claim against plaintiff’s employer re-instated. In this case, plaintiff’s employer had failed to procure Workers’ Compensation Insurance. Notwithstanding this failure, the lower courts had dismissed our client’s claim against them on the grounds that they were protected by the Workers’ Compensation Law requirement that the plaintiff suffer a qualifying “grave” injury. The Court reinstated the claim, finding that an employer who has failed to procure workers’ compensation insurance cannot benefit from the protections of the statute.

b) Rubeis v. AquaClub, Inc. 3 N.Y.3d 408, 821 N.E.2d 530, 788 N.Y.S2d 292 (2004). This case was a consolidated appeal that included our case of Largo-Chiciaza v. Westchester Scaffold Equipment Corp. In this case, we unsuccessfully argued for a stricter standard in interpreting one of categories of “grave injury” under Section 11 of the Workers’ Compensation Law. In particular, these consolidated cases all involved claims of traumatic brain injury, and the Court established a standard whereby the injury must prevent an employee from returning to employment for it to qualify as “grave.”

The following are our appeals pending before the Court of Appeals:

Cases Accepted:

a) Fleming v. Graham, [App. Div. Docket #2005-03636] - Appeal of Second Department decision finding that photographs of plaintiff's scarring was insufficient to meet summary judgment burden to show that scarring was not a "permanent and severe facial disfigurement" under WC Law Sec. 11. This case is currently pending before Ct. of appeals. As photographs showed some mild scarring on plaintiff's face, we argued that the injury did not rise to the level of catastrophic injury intended by Legislature.

b) Castillo v. 711 Group - (App. Div. Docket # 2006-04141) - motion for leave to appeal to Ct. of Appeals relating to Appellate Division's finding that an incomplete amputation of an index finger constitutes the loss of the entire finger since both joints were lost. We argued that the Courts have repeatedly held that the partial loss of a finger is insufficient and the intent of the Legislature was to limit 3rd party actions against employers.

In addition to our work before the Court of Appeals, attorneys for the firm have been successful in numerous appeals, including:

a) Karsdon v. Barringer, , 20 A.D.3d 551, 799 N.Y.S.2d 548 (2nd Dept. 2005) – The Appellate Division, Second Department reversed the trial court, and ordered a new trial, after the trial court denied a post-trial motions. The jury in this Kings County case had found the plaintiff negligent, but that the negligence was not a proximate cause of the accident. This was done after the jury heard evidence of the plaintiff's alcohol consumption, but the trial judge refused to allow trial counsel to comment on the evidence.

b) Giblin v. Pine Ridge Log Homes, Inc., 42 A.D.3d 705, 840 N.Y.S.2d 196 (3rd Dept. 2007) – The Appellate Division, Third Department held that the loss of an eye was not a “permanent and severe facial disfigurement” under Workers’ Compensation Law §11 and therefore the plaintiff did not sustain a “grave injury.”

c) Fernandez v. Edlund, 31 A.D.3d 601, 819 N.Y.S.2d 291 (2nd Dept. 2006) - Plaintiff tripped on an uneven portion of an unpaved driveway at her daughter’s home. The Appellate Division, Second Department held that the condition of the driveway was readily observable to the plaintiff and did not constitute an inherently dangerous condition.

d) Carella v. Reilly & Associates, 2004 N.Y. Slip Op. 02526, 773 N.Y.S.2d 903 (2d Dept. April 5, 2004) - The Appellate Division, Second Department reversed the lower court's striking the third-party defendant's answer based upon spoliation and also reversed the lower court's denial of the third-party defendant's motion for summary judgment pursuant to §11 of Workers' Compensation Law. The Second Department held that the motion by third-party plaintiffs to strike the third-party defendant's answer based upon spoliation was academic as the third-party plaintiff failed to establish the right to bring the suit pursuant to §11 of the Worker's Compensation Law which requires a grave injury or a contract for indemnification.

e) Plass v. Solotoff, 2004 N.Y. Slip Op. 01367, 773 N.Y.S.2d 84 (2d Dept. March 1, 2004) - The Appellate Division, Second Department set aside the jury verdict which found a violation of §240 of the Labor Law holding that the court should have granted defendant's motion seeking a dismissal of the action at the end of plaintiff's case based upon the fact that the plaintiff was the sole proximate cause of the accident in question. The Court held that the plaintiff in providing, erecting and using the scaffold was the sole proximate cause of the accident, therefore, the plaintiff did not receive the benefit of strict liability pursuant to §240(1) of the Labor Law.

e) Vergara v. Tides Construction, 280 A.D.2d 665, 721 N.Y.S.2d 103 (2d Dept. 2001) - Appellate Division reserves lower court and dismisses complaint brought against a lighting company by a plaintiff who was injured in a manner similar to incidents depicted in the feature film "The Program."

f) Structural Building Products v. Business Insurance Agency, 281 A.D.2d 617, 722 N.Y.S.2d 559 (2d Dept. 2001) - The Second Department reversed the decision by trial court finding that carrier had duty to defend and indemnify an insured in an underlying claim of breach of warranty and breach of contract. The Second Department dismissed the case against the insurance carrier.

g) Belcastro v. Hewlett-Woodmere Union Free School District, 286 A.D.2d 744, 730 N.Y.S.2d 535 (2d Dept. 2001) - The Appellate Division determined that a piece of wood thrown from a roof was not covered under Labor Law §240. The Appellate Division also determined that their factual issues with respect to which contractors and subcontractors owed defense and indemnification to the school district. (Note: This determination eventually led to a jury trial where all defendants were assigned varied amounts of responsibility and indemnification was denied.

h) Barbieri v. Mount Sinai Hospital, 264 A.D.2d 1, 706 N.Y.S.2d 8 (1st Dept. 2000) - Appellate Division, First Department affirmed lower court's decision dismissing third-party action pursuant to the "Grave Injury" Statute of the State of New York. This was a case of first impression which appeared on the front page of the New York Law Journal on March 15, 2000 under the caption "Labor Law Change Upheld in Appeal" and on March 16, 2000 as the decision of the day. This appeal was based upon the new Workers' Compensation "Grave Injury" Statute and covered the issue of common law indemnification, meaning of grave injury, and constitutionality of the statute itself.

i) Ralph v. Ludwig Licciardi, M.D., P.C., et al., 285 A.D.2d 540, 727 N.Y.S.2d 905 (2d Dept. 2001) - Appellate Division, Second Department reversed the lower court's denial of our motion for summary judgment on a labor law cause of action. It was argued that our client, River Avenue Contracting, plaintiff's employer, was not negligent pursuant to superceding, intervening causes. Our motion was denied in the lower court, which was subsequently reversed by the Appellate Division, Second Department granting summary judgment in our client's favor.

j) Yanek v. County of Nassau, 264 A.D.2d 732, 695 N.Y.S.2d 360 (2d Dept. 1999) - Appellate Division reversed Supreme Court, Nassau County's decision setting aside a defense verdict and granting a new trial. The Court held that, based upon the evidence, the jury could reasonably find that the driver of the vehicle was not negligent in striking the infant on a bicycle.

k) Gonzalez v. City of New York, 269 A.D.2d 493, 703 N.Y.S.2d 259 (2d Dept. 2000) - Appellate Division affirmed lower court's granting our motion for summary judgment in a Labor Law action.

l) Thigpen v. Varricchio Plumbing & Heating, Inc., 254 A.D.2d 348, 678 N.Y.S.2d 535 (2d Dept. 1998) - Appellate Division affirmed granting of summary judgment in favor of defendants based upon plaintiff's failure to meet no-fault standards (Insurance Law §5102(d)).

m) Benjamin v. Rogers, 252 A.D.2d 516, 661 N.Y.S.2d 676 (2d Dept. 1997) - Appellate Division affirmed granting of summary judgment to our client, the owner of a bar in which the plaintiff was injured during a fight. The Appellate Division held that the plaintiff had failed to establish any negligence by the defendant in its maintenance of the property including the plate glass into which the plaintiff collided and was injured.