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Fried v. City of New York

Supreme Court, Kings County

February 29, 2012

Shlomit Fried, by her mother and temporary Art. 81 guardian, IRIS FRIED, IRIS FRIED Individually, and URI FRIED, , Plaintiffs,
v.
City of New York, NEW YORK CITY ECONOMIC DEVELOPMENT CORPORATION, SIGNE NIELSEN, HAN PADRON AND ASSOCIATES et. al., Defendants.

Plaintiffs were represented by Paul K. Isaac, Esq. of Precision Resolution, LLC and David A. Roth, Esq. The Commissioner of the Department of Social Services of the City of New York was represented by Robert W. Hambrecht, Esq.

JACK M. BATTAGLIA, JUSTICE, SUPREME COURT.

Recitation in accordance with CPLR 2219 (a) of the papers considered on Plaintiffs' motion for an order "[d]eclaring as null and void, vacating, and/or invalidating any claimed subrogation right, lien, or other reimbursement claims alleged to exist in favor of the New York City Human Resources Administration, against any settlement proceeds received or to be received by the Plaintiff, Shlomit Fried, in the above captioned matter":

—Notice of Motion
Affirmation of Counsel
Affirmation of Special Guardian
Supporting Affirmation
Exhibits A-E
—Affirmation in Opposition
Exhibits A-H
—Responding Affirmation

Plaintiffs were represented by Paul K. Isaac, Esq. of Precision Resolution, LLC and David A. Roth, Esq. The Commissioner of the Department of Social Services of the City of New York was represented by Robert W. Hambrecht, Esq.

In the afternoon of July 25, 2001, at Pier 4 of the Brooklyn Army Terminal, plaintiff Shlomit Fried, then 16 years old, was operating a Chevrolet Astro minivan owned by the father of a male friend, Nir Yadgar, 19 years old, who was apparently teaching her to drive, when, for reason or reasons unknown, the van left the Pier, and entered Gowanus Bay. Mr. Yadgar was killed; Ms. Fried suffered catastrophic injuries.

Plaintiff Iris Fried, mother and natural guardian of Shlomit Fried, commenced this action in 2002 on behalf of her infant daughter and on her own behalf. When Shlomit Fried became of age, Iris Fried was appointed her incapacitated daughter's guardian ad litem (see CPLR 1201 et seq.), and has since been appointed her guardian pursuant to Article 81 of the Mental Hygiene Law. Shlomit Fried's father, Uri Fried, is also a plaintiff. By order dated June 17, 2011, Robert Kruger, Esq. was appointed Special Guardian for plaintiff Shlomit Fried.

Plaintiffs' Second Amended Complaint purported to name 36 different defendants. By the time of trial, the defendants were City of New York (the "City"), New York City Economic Development Corporation ("EDC"); Signe Nielsen Landscape Architect, PC ("Nielsen"); Han-Padron Associates, LLP, Han-Padron Associates, LLC, Han-Padron Associates Consulting Engineers, PLLC, and Padron Associates, Inc. ("Han-Padron" or the "Han-Padron Defendants"); and Iffland Havanagh Waterbury, PLLC, Iffland Kavanaugh & Waterbury PC, Iffland Kavanaugh & Waterbury PC, Inc., and Iffland Kavanaugh Waterbury, PLLC (the "Iffland Kavanagh Defendants"), with the Iffland Kavanagh Defendants only subject to claims asserted by the City and EDC.

On the record on the eighth day of trial, April 25, 2011, Plaintiffs settled their claims against the City and EDC for $8.25 million, and the City and EDC settled their claims against the Iffland Kavanaugh Defendants on the latters' contribution to the settlement with Plaintiffs. The attorneys for the City and EDC did not participate in the balance of the trial, although the fault of the City and EDC would still be in issue at least for purposes of General Obligations Law § 15-108. The settlement has since been approved in this Court's Order Approving Settlement, Counsel Fees and Disbursements dated September 13, 2011 ("the Infant Compromise Order").

Plaintiffs' fundamental claim at trial was that Pier 4 was negligently designed in that vehicle-resistant barriers were not included at the perimeter, allowing a vehicle to leave the Pier and enter the water. The jury was instructed in accordance with general negligence principles, modified to reflect that Pier 4 was to be treated as a "highway." (See decision and order of Hon. David I. Schmidt on motions for summary judgment, dated November 30, 2009, at 22-24; decision and order of Hon. David I. Schmidt on motions for leave to renew and reargue, dated November 10, 2010, at 14-16; see also Groninger v Village of Mamaronek, 17 N.Y.3d 125 [2011]; Krausch v Incorporated Village of Shoreham, 87 A.D.3d 715 [2d Dept 2011].)

Responding to verdict sheet interrogatories, the jury determined that Pier 4 was negligently designed in that vehicle-resistant barriers were not included at the perimeter, and that Han-Padron and EDC were each negligent in not including vehicle-resistant barriers in the design for Pier 4, but that Nielsen was not negligent. The jury also determined that Shlomit Fried was negligent in the operation of the vehicle on Pier 4, and that her negligence was a substantial factor in allowing the vehicle to leave the Pier and enter the water. The City did not appear on the Verdict Sheet, and was not addressed in the charge, as all agreed, at least for these purposes, that the City would be vicariously liable for any negligence by EDC.

The jury also made two allocations of fault, with and without consideration of the fault of Ms. Fried. The jury first determined that EDC was 75% at fault, Ms. Fried 20%, and Han-Padron 5%; and then determined that as between the defendants, EDC was 90% at fault and Han-Padron 10%. Asking the jury to allocate twice was precautionary given the open ...


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