APPEALS

Baxter Smith & Shapiro, PC has achieved consistently excellent results in the field of appellate advocacy. We pride ourselves on the impact we have had on the development of law in areas of concern to our insurance and construction clientele. Within the last Five (5) years alone our firm has handled nearly 100 appeals and argued in every New York State Appellate Court, including numerous appearances in the Court of Appeals. We routinely handle appeals involving a wide range of issues including labor law, contractual indemnification, grave injury, product liability and general negligence. Attorneys from our Appellate Department are frequently invited to lecture before various sbar groups and client gatherings regarding recent developments in the law. Likewise, our appeals group enjoys a unique synergy with the firm’s litigators and trial attorneys. The teams work in unison throughout the pre-trial and trial stages pro-actively confronting issues that are likely to be raised on appeal.

The following is a representative sampling of appeals written and argued by the members of Baxter Smith & Shapiro, P.C.:

Plaintiff sustained noticeable facial scarring. We moved for summary judgment on behalf of the third-party defendant employer, arguing that photographs of plaintiff’s scarring showed that it was not a “permanent and severe facial disfigurement” under Workers Compensation Law §11 as it did not rise to the level of “catastrophic” injury that is covered by the Statute. After the Supreme Court, Kings County denied the motion and the Appellate Division, Second Department affirmed, the Court of Appeals reversed, noting that the Statute is to be interpreted strictly. The Court held that “a disfigurement is severe if a reasonable person viewing the plaintiff’s face in its altered state would regard the condition as abhorrently distressing, highly objectionable, shocking or extremely unsightly.”
Plaintiff’s employer had failed to procure Workers’ Compensation Insurance. Notwithstanding this failure, the lower court dismissed our client’s third-party action against the employer on the grounds that it was protected by the Workers’ Compensation Law requirement that the plaintiff suffer a qualifying “grave injury” in order to maintain such an action. After the Appellate Division, Second Department affirmed the decision, we appealed to the Court of Appeals, which reversed the Appellate Division and reinstated the third-party claim. The Court of Appeals held that an employer that has failed to procure workers’ compensation insurance for its employees cannot benefit from the protections of the Statute.
This case was a consolidated appeal that included our case of Largo-Chiciaza v. Westchester Scaffold Equipment Corp. The plaintiff had sustained a head injury as a result of a fall from a worksite. We argued for a stricter standard in interpreting the brain injury category of “grave injury” under Section 11 of the Workers’ Compensation Law. The Court of Appeals disagreed and held that the appropriate standard is whether the plaintiff is employable “in any capacity.”
Plaintiff was injured at a worksite when a panel fell on him. The third-party action alleged that our client, the plaintiff’s employer, was a party to a contract with the general contractor in which it agreed to be bound by the terms of the general contractor’s agreement with the owner. As the initial agreement contained an indemnity clause, the third-party plaintiff argued that agreement signed by our client incorporated that indemnity provision. The Appellate Division, First Department affirmed the granting of summary judgment to our client, holding that “incorporation clauses in a construction subcontract, incorporating prime contract clauses by reference into a subcontract, bind a subcontractor only as to prime contract provisions relating to the scope, quality, character and manner of the work to be performed by the subcontractor.” The Court held that indemnity did not relate to the scope, quality, character or manner of the work.
Plaintiff suffered paraplegia as a result of jumping into a pool at 2:00 AM. Our client was the managing agent to whom plaintiff and his friends had complained about a broken interior pool light. The plaintiff claimed that he could not determine the pool’s depth due to the broken light. The Appellate Division, First Department reversed the lower court and granted our client summary judgment on the basis that as managing agent, it had no duty to make repairs in the absence of an exclusive and comprehensive management obligation.
Plaintiff had lost an eye in a construction accident. The third-party plaintiff alleged that the loss of one eye constituted a “permanent and severe facial disfigurement” under Workers Compensation Law §11. The Appellate Division, Third Department reversed the lower Court and held that the loss of an eye was not a “permanent and severe facial disfigurement” as the plaintiff normally used a prosthetic eye and therefore the condition was not a severe disfigurement as that term is commonly defined.
Plaintiff tripped on an uneven portion of an unpaved driveway at her daughter’s home. The Appellate Division, Second Department affirmed the granting of summary judgment to the defendant homeowner, holding that the condition of the driveway was readily observable to the plaintiff and did not constitute an inherently dangerous condition.
Plaintiff tripped and fell at night near a country house in upstate New York. A Kings County jury heard evidence of the plaintiff’s alcohol consumption, but the trial judge refused to allow trial counsel to comment on that evidence. The jury found the plaintiff negligent, but that the negligence was not a proximate cause of the accident. The Appellate Division, Second Department ordered a new trial, holding that, upon a fair interpretation of the evidence, the jury could not have found the plaintiff to be negligent but that such negligence was not a proximate cause of the incident. The Court also held that the trial court erred when it did not allow counsel to comment on the plaintiff’s alcohol consumption as it was relevant to her attentiveness.
Plaintiff had allegedly fallen from a ladder owned by our client. The ladder was subsequently used at another job site and misplaced. Our client was granted summary judgment based upon the absence of a “grave injury” under Workers’ Compensation Law §11 but the third-party plaintiff commenced a new action, alleging an independent cause of action for spoliation. After the Supreme Court, Nassau County denied but our motion to dismiss, the Appellate Division, Second Department reversed, holding that there is no independent cause of action for spoliation in the State of New York.
Plaintiff, a sole proprietor, was injured when he fell off of a scaffold at a worksite. He had assembled the scaffold, choosing to use only one plank, even though three were available. This left an unprotected gap on the platform. A jury found in favor of the plaintiff and the trial court denied our motion to set aside the verdict. The Appellate Division, Second Department reversed and dismissed the causes of action pursuant to Labor Law §§240(1) and 241(6). The Court held that the plaintiff’s own actions were the sole proximate cause of the incident.