APPELLATE WIN FOR THE DEFENSE ON A WRONGFUL DEATH CASE

Recently, I’ve been writing alerts about decisions of interest handed down by New York State Appellate Courts. On this occasion, I’m pleased to write an alert about one of our own cases decided on May 15, 2019, Velez v Mr. Demolition, Inc., 2019 N.Y. App. Div. LEXIS 3807, 2019 NY Slip Op 03841, 2019 WL 2112342 (2019).

We received the assignment of this case with our client, a sidewalk shed/bridge contractor, already in default, with a default motion already pending against it. Typically, this issue is resolved by a phone call to opposing counsel who --- upon being made aware that an insurer is involved in the defense --- will consent to vacate the default on the condition that an answer is promptly interposed without any defenses based on improper service. 

In our case, however, even though an insurer was involved, Plaintiff’s counsel inexplicably took a hard-line approach that ultimately backfired. Our case arises out of a wrongful death matter. The Plaintiff’s Decedent, a worker on a construction site, was killed when several cinderblocks fell on his head, while working on a construction site in East New York ---which is in Brooklyn (Kings County), New York. There is evidence that Plaintiff’s Decedent was in an area he should not have been when the accident happened, and that he was not wearing a hard hat.  

Several defendants were named in the suit, and, as with many construction projects, much activity was in progress at the time of Plaintiff’s death. A complex series of events led to the cinderblocks falling.

Plaintiff’s counsel alleged that our client was an owner and a general contractor in order to invoke the provisions of New York State’s stringent “Scaffold Law,” i.e., Labor Law Section 240. A plaintiff in a falling object case, in certain situations, may be able to hold an owner or general contractor absolutely, i.e., strictly liable.

In our case, we argued among other things that since our client was neither an owner nor a general contractor, there were potentially meritorious defenses such that our client’s default should be vacated. We also argued there was a reasonable excuse for the default as our client had been in the midst of moving offices around the time the summons and complaint was served. In addition, our client noted it promptly tendered the summons and complaint to its insurance broker. 

The trial Court, the Supreme Court of the State of New York, Kings County, vacated our client’s default. Plaintiff appealed as of right to the intermediate appellate court, the Appellate Division, Second Department. Plaintiff’s counsel of record referred the matter out to a well-known appellate specialist to act as appellate counsel. A four judge Appellate Division panel unanimously affirmed the trial Court’s decision.     

The Second Department held that “The Supreme Court providently exercised its discretion by, in effect, granting [our client’s] cross motion to vacate its default in appearing or answering the complaint and to compel acceptance of its late answer.” The Court noted that our client had “promptly supplied the summons and complaint to its insurance broker” and cited the “lack of any prejudice to the plaintiffs” referable to our client’s short two-month delay in responding to the Complaint.

Further the Court noted “the lack of willfulness on the part of [our client], the existence of a potentially meritorious defense, and the public policy favoring the resolution of cases on the merits[.]”

Notably, the Court observed that “the plaintiffs failed to proffer either an affidavit of the facts or a complaint verified by a party with personal knowledge of the facts.” Plaintiff’s counsel had proffered a Complaint verified by the Administrator of the Estate, a relative of the Decedent who did not have personal knowledge of the accident. 

Here, it would appear that the Court is requiring plaintiffs seeking to hold a defendant in default on a wrongful death case must obtain an affidavit in support of a person with personal knowledge of the accident. More likely than not in a construction context, such a witness would not be related to the Decedent, nor would such a witness be under Plaintiff’s counsel’s control. This decision appears to have created good law for the Defense bar on this issue.

The Appellate Division awarded our client its costs.

We are grateful that the Court is allowing our client to have its defenses heard on the merits, and to have its day in Court. 

I appreciate my colleague, attorney Keith Roussel’s assistance in the handling of this case.

Please feel free to contact me with any questions on this case.