Benjamin D. Greenfield

Ben Greenfield (Partner-Philadelphia, PA) and Nicholas Noto (Associate-Philadelphia, PA) secured a victory in Philadelphia County for Wilson Elser’s clients, a property management group and a commercial/residential apartment owner after motion practice that lasted an entire calendar year. The plaintiff in this matter alleged injuries she sustained while on a residential property owned and managed by Wilson Elser’s clients. Plaintiff’s counsel filed a vaguely pled and legally impossible complaint in response to which Ben and Nicholas filed preliminary objections that the court sustained. The plaintiff subsequently filed four amended complaints, purported to be more specifically pled each time – but they were not. After the court dismissed each of the four complaints, Ben and Nicholas team filed a Motion to Prevent Further Amended Complaints, which was sustained by the court, and a final order was entered in favor of dismissing our clients with prejudice. The court’s ruling thwarted a demand in the high six figures and affirmed the precedent that pleadings in Philadelphia County must be legally plausible and pled with specificity.

Benjamin Greenfield (Partner-Philadelphia, PA) obtained a unanimous decision from the First Department Appellate Division, upholding denial of the plaintiff’s motion to certify its action as a class action on behalf of the largest casino operator in New York City. The plaintiff was banned from the casino for smashing a gaming machine and his refusal to pay for the damage. The plaintiff attempted to certify his claims as a class action, arguing that the casino improperly demands restitution and threatens arrest if patrons refuse to pay for the costs of repairs to the property they damaged. The trial court, in denying plaintiff’s Motion to Certify, ruled that NYS Gaming Bulletin #22, which requires casinos to detain individuals suspected of damaging casino property and to conduct an individualized investigation into the actions of each patron, is “a valid directive issued by the Gaming Commission that is legally binding on [the casino] and governs and authorizes certain actions by [the casino].” The Appellate Division affirmed this decision and specifically rejected the plaintiff’s contention that in publishing Bulletin 22, the Gaming Commission did not follow the rulemaking procedures set forth in the State Administrative Procedure Act, and agreed with the arguments set forth by Ben that the plaintiff’s claims involved unique circumstances that do not mirror those underlying the claims of the class proposed. Accordingly, the Court agreed that typicality is lacking and certification would not be proper. This is a notable decision that thwarts an attempted significant class action. At the very early stages of this matter, the plaintiff’s attorneys attempted to force our client into an early settlement by having an article published in the New York Post.

Benjamin Greenfield (Associate-White Plains) and Aviva Stein (Partner-New York) obtained summary judgment in New York County Supreme Court in a premises liability action involving a hockey puck strike injury at a New York professional arena, our client. The plaintiff alleged he was struck in the hand by a deflected puck while seated in section 115, row 3, located in the first row on the side of the arena, between the goal and the blue line and even with the faceoff circle. The shielding in place for this area comprised a combination of boards and plexiglass extending more than 9 feet above the ice/playing surface. The arena issued verbal and written warnings on the scoreboard concerning the risk of pucks entering unscreened seating areas and included warning language on the back all tickets. Following the close of discovery, Ben and Aviva moved for summary judgment pursuant to the prevailing “limited duty rule” in New York highlighting that the arena discharged its limited duty by erecting boards and glass around the arena’s perimeter that complied with and exceeded NHL regulations and arguing that the arena was not required to completely eliminate the risk of pucks entering the area along the side of the ice where plaintiff was seated, as it was not the area of greatest danger.

In opposition, plaintiff argued that he had the “justified expectation” that no pucks could come into his area since he was seated in the first row behind and below the level of the plexiglass screening in front of him.  Plaintiff further contended in circular fashion that because a puck came into an area, something must have been wrong with the shielding and the arena should have enacted further measures. On reply, Ben and Aviva highlighted that plaintiff failed to rebut that the Arena discharged its limited duty as a matter of law, stressed that plaintiff’s circular logic was not sufficient to create a factual issue with regard to the sufficiency of the spectator shielding, and distinguished the cases relied upon by the plaintiff, which either involved plaintiffs struck in the area behind the goal in the area of greatest danger or where an actual defect was proven with respect to the shielding measures provided.

Judge Bluth granted the Defendants’ motion agreeing that MSG is not required to eliminate the risk that a puck may enter the seating area on the side of the ice, which is not the area of greatest danger, as such a standard would be tantamount to requiring netting throughout the arena or boards that extend up to the ceiling. Remarkably, this is the first decision addressing and enforcing the application of the limited duty rule (applicable to proprietors of sporting venues) at the arena since the enhanced shielding measures (netting at the ends of the rink) were implemented in the Fall of 2002 in the wake of Brittany Cecil’s tragic death. This decision comes at a critical time given the expansion of netting in some baseball stadiums, the sport from which the limited duty rule derived, which was developed by some practitioners as a platform to try and undermine the limited duty rule and argue for a higher standard in the sport of Hockey. Barring any adverse development at the appellate level, which is not expected, this decision constitutes critical case law that supports the continued application of the limited duty rule to the sport of Hockey now and going forward.

Larry Lum (Partner-New York, NY), Aviva Stein (Partner-New York, NY), Ben Greenfield (Of Counsel-White Plains, NY) and Elie Herman (Associate-New York, NY | Stamford, CT) obtained a unanimous decision from the First Department Appellate Division, upholding the dismissal of a lawsuit against the firm’s major arena client. The underlying case involved a spectator sitting behind a plexiglass barrier who was hit and injured by a hockey puck at the arena. The court relied on case law established by the firm more than 20 years ago regarding the applicability of the limited duty rule and upholding shielding protections in place. This case, handled by Larry, was the first appellate-level review of the enhanced shielding measures adopted by the National Hockey League in 2002.

Larry Lum (Partner-New York City) and Aviva Stein (Partner-White Plains) secured a unanimous defense verdict on behalf of New York’s largest health care provider in a slip-and-fall case involving a serious femoral neck fracture with surgery. Benjamin Greenfield (Associate-White Plains) assisted with trial preparation and submissions in Suffolk County, Supreme Court. The case could not have settled for less than $750,000, but a unanimous verdict was rendered by a Suffolk County jury in favor of our client on the issue of liability after 12 minutes of deliberations.

Benjamin Greenfield (Partner-Philadelphia, PA) and Larry Lum (Partner-New York, NY) convinced the Supreme Court of the State of New York, County of Queens, to grant their summary judgment motion on behalf of a premiere New York sports venue. The plaintiff alleged that a T-shirt was shot out of an air cannon at a “direct angle” to his location, which increased the ordinary risks inherent in the activity, and reported the incident to multiple news outlets. The court agreed with Ben and Larry that the plaintiff’s experience and keen observations of the air cannon operator at this and prior events reflect the open and obvious nature of the risk presented. The court also agreed that the plaintiff’s points raised regarding the “direct trajectory” of the shot making it more dangerous than other projections from the air cannon were speculative and insufficient to create a factual issue regarding the supposed “danger.” Further, the court noted that even accepting these allegations of a more direct angle as true, the plaintiff cannot prove that a more arced shot would have led to a different result. The court also noted that the plaintiff deliberately moved closer to the air cannon and placed himself in what he hoped to be the T-shirt’s direct path, which made his role as a participant even clearer and thus reinforces the application of the primary assumption of risk doctrine. Beyond being notable, this decision amounts more broadly to a favorable decision in the Assumption of Risk realm concerning what was an issue of first impression in New York regarding a patron being struck by a T-shirt projected into the stands.

Benjamin Greenfield (Partner-Philadelphia, PA) and New York City partners Joshua Cash and Larry Lum succeeded in convincing the Kings County Supreme Court, Civil Term, to grant their pre-answer motion on behalf of the largest casino operator in New York City, to dismiss plaintiff’s claims in their entirety, including the dismissal of plaintiff’s individual and putative class action claims. Essentially, plaintiff, by and through her counsel, set forth conspiratorial claims that the casino is engaged in a deceptive practice to deprive patrons of their loose change. The plaintiff alleges that after receiving her cash-out voucher from the machine at the casino, she was only paid out the amount in whole dollars, and was not paid the full balance due, including the cents. The plaintiff sought to represent a class of all casino customers who were similarly deprived of their loose change. Notably, plaintiff’s counsel appeared to be taking the lead from similar attempted class actions claims sought to be certified against at least two other casinos in other jurisdictions around the country. Ben, Joshua and Larry obtained dismissal of the multiple causes of action set forth in plaintiff’s complaint, including violation of New York Business Law §§ 349 and 350, Breach of Contract, Conversion and Unjust Enrichment, and relied successfully on affidavits from casino personnel and photographic evidence that demonstrated conclusively there was nothing misleading about the defendant’s practices and that any forfeiture of such change was plaintiff’s own deliberate choice. The court also was convinced to dismiss plaintiff’s proposed class action claims insofar as the class definition was overbroad, sought to certify what was effectively a sham proceeding (the court specifically referenced within its 15-page decision the adage that “the law does not concern itself with trifles”), and would not be composed of persons with identical interests.  

Benjamin Greenfield (Of Counsel-Philadelphia, PA), Joshua Cash (Partner-New York, NY) and Larry Lum (Partner-New York, NY) succeeded in convincing the Supreme Court of the State of New York County of Bronx, Civil Term, to deny the plaintiff’s motion to certify its action as a class action on behalf of their client, the largest casino operator in New York City. The plaintiff was banned from the casino for smashing a gaming machine at which he was losing money (and his refusal to pay for the damage). The plaintiff attempted to certify his claims as a class action arguing that the casino improperly demands restitution and threatens arrest if patrons refuse to pay for the costs of repairs to the property they damaged. Ben, Joshua and Larry relied on NYS Gaming Bulletin #22, which required the casino to detain individuals suspected of damaging casino property and to conduct an individualized investigation into the actions of each patron. The plaintiff argued that the Bulletin was null and void and without legal effect as it was not filed in the office of the department of state, and that it denied those patrons due process. The Hon. Veronica G. Hummel, A.J.S.C., in an extremely notable manner, ruled that Bulletin # 22 is “a valid directive issued by the Gaming Commission that is legally binding on [the casino] and governs and authorizes certain actions by [the casino].” At the very early stages of this matter, the plaintiff’s attorneys attempted to force our client into an early settlement by having an article published in the New York Post.