Friday, September 26, 2008



According to's historic building information, the Queens County Supreme Court Courthouse was built in 1935 (the one in Jamaica, there is also a smaller courthouse in Long Island City).  The entrance is neoclassical, with a limestone facade and Corinthian columns. 

The sculpture below was added in 1998. The outside ring contains a quote from Benjamin Cardozo: "Danger invites rescue. The cry of distress is the summons to relief.  The quote is from Wagner v. International Railway, 232 N.Y. 176 (1921). In Wagner, a man was injured helping someone who fell from a train.  Apparently, the artist could not find a good enough quote from Palsgraf v. Long Island R. Co., 248 N.Y. 339 (1928), also a famous Benjamin Cardozo decision, but where the accident occurred in Queens.

Surrounding the doors to the entrance are sculptures of Hamurrabi, Meno, Confusius, and Mohammed.

The inside of the courthouse is impressive. When you enter the main lobby, you immediately see the marble walls and "Grand Staircase," reminiscent of the stairs in the Titanic.  On the far wall are two murals, which were added in 1942, a few years after the courthouse opened. The one on the left depicts Moses with the Ten Commandments; the one on the right depicts the Constitutional Convention.  The walls are marble, and the elevator doors appear to be aged copper.

Tuesday, September 23, 2008

Personal Injury -- A Falling Cinder Block Is A Gravity Related Risk Under The Labor Law, And Does Not Need To Be In The Process Of Being Hoisted Or Secured

In Stawski v. Pasternack Popish & Reif, 2008 NY Slip Op 07036 (Sept. 23, 2008), the plaintiff was struck by a falling cinder block that had been temporarily removed from a column and then returned to an open cavity in the column without being appropriately secured. The original attorneys failed to file a notice of claim against the municipal owner of the construction site (when you are suing a municipality, you must give them notice of your intention to file a claim -- usually within 90 days of the occurance), and the plaintiff's suit was dismissed.

The plaintiff then sued his original attorneys for malpractice. The attorneys argued that the underlying case lacked merit because Labor Law 240(1), the theory upon which it was alleged the case should have been brought, only applied to objects that were in the process of being hoisted or secured.

The parties agreed to the underlying facts of the case, and moved and cross-moved for summary judgment. The Civil Court found that there was a question of fact as to whether Labor Law 240(1) applied, and that the case should go to the jury. The attorneys then appealed to the Appellate Term, which reversed and granted summary judgment, finding that there was no Labor Law 240(1) case.

Now, after granting leave to appeal, the First Department has revesed the Appellate Term's decision and, on remand, has ordered that summary judgment be granted in favor of the plaintiff.

You can learn more about Labor Law 240(1) here.   If you are looking for representation, feel free to contact me at

Wednesday, September 17, 2008

Legal Malpractice Case Dismissed Where Plaintiff Claimed The Firm Failed To Argue Bankruptcy Toll To Save Med Mal Case From Statute Of Limitations

The First Department has issued its decision in Kremen v. Morelli54 A.D.3d 596 (1st Dept. 2008), dismissing a legal malpractice case where the plaintiff had argued that the law firm failed to raise a novel legal theory to save her case.  In this case, the plaintiff had a bilateral mastectomy thirteen years ago.  She claimed that she only had the surgery because she had been wrongfully diagnosed with cancer, while the doctors claimed she knew it was prophylactic.  Six years after the operation, she brought a lawsuit.  The case was dismissed because New York's statute of limitations for medical malpractice is only two-and-a-half years. Her lawyers had tried to bring the case by arguing that there was fraudulent concealment, which would have prevented the doctors from asserting a statute of limitations defense. 

The plaintiff then sued her attorneys for legal malpractice.  She had declared bankruptcy prior to filing the first lawsuit, and claimed that her lawyers would have won the case if they had argued that her claims were timely because a bankruptcy trustee is permitted two extra years to bring claims that are timely when a bankruptcy is filed. 

The law firm moved to dismiss the case for failure to state a claim, arguing that only the trustee can assert the bankruptcy toll (the medical malpractice case had been abandoned by the bankruptcy estate prior to being dismissed), and that the bankruptcy toll cannot revive a limitations period that had already expired (because fraudulent concealment is an estoppel, it does not stop the limtiations period from expiring). 

The trial court denied the motion to dismiss, and the decision received a fair amount of media coverage.  It made the front page of the New York Law Journal, 
here; Andrew Lavoot Bluestone's Attorney Malpractice Blog covered the case twice, here and here;  and Overlawyered's coverage of the case, here, generated some interesting comments.

Now, the Appellate Division has reversed the lower court's decision and dismissed the legal malpractice action. The Appellate Division agreed with both arguments offered by the law firm, finding, one: 

The bankruptcy toll was not triggered because the statute of limitations had already run... To hold otherwise would alter the elements of fraudulent concealment so as to excuse the due diligence inquiry, thus changing, rather than applying, the applicable non-bankruptcy law
and, two: 
Plaintiffs lack standing to bring this action.  Once the bankruptcy estate was fully administered and the trustee abandoned the claim, the cause of action revested solely in plaintiffs' names. When a trustee abandons a claim as to the debtor, the latter may no longer invoke the benefit of 11 USC § 108(a)(2).