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McGovern and Morio Prevail in Appellate Division in Flooding Case

February 25, 2011
Joseph A.H. McGovern (Partner-White Plains) and John D. Morio (Partner-White Plains) won an appellate case involving flooding in a Queens, New York, shopping center. The Appellate Division, Second Department, affirmed the lower court’s summary judgment ruling in the premises liability case that featured an Act of God defense. Wilson Elser defended the shopping center against an employee of one of its stores who slipped and fell in water from the flooding.

Our clients were the out-of-possession owners of the shopping center where the plaintiff was employed and injured. The plaintiff, who worked in a store on the first floor, slipped in a pool of water that had leaked through the ceiling from an upstairs store. The plaintiff sued our clients and the store where the leak originated. We moved for summary judgment, arguing that our client was no more than an out-of-possession landlord who had transferred all responsibility for maintenance and repairs to the individual tenants. We also pointed out that the leak – which stemmed from the overflow of a toilet – was the consequence of a severe rainstorm that had caused flooding throughout Queens County. Thus, we argued that the accident was the result of an Act of God (as that term is defined by law). The trial court agreed and granted summary judgment.

While our motion was pending, the plaintiff obtained deposition testimony indicating that our client had made post-accident repairs to the toilet to prevent future problems. The plaintiff then moved to renew. The trial court denied the motion to renew, because the plaintiff failed to offer an excuse as to why she could not obtain the new testimony during the discovery period.

On appeal, the plaintiff’s counsel argued that evidence submitted in the motion to renew showed that the Act of God defense was inapplicable, inasmuch as the subsequent repair proved the occurrence could have been prevented through ordinary human means. Counsel also argued that she was forced to file her note of issue before discovery was completed because of the stringent discovery rules in Queens County.

In opposition, we argued that there was insufficient proof to show that the severe flooding and leaks could have been anticipated or prevented. We also argued that the lower court was correct in denying the plaintiff’s motion to renew. Furthermore, we maintained that the lower courts must be free to govern their own dockets and to set rules limiting the time in which to complete discovery. We argued that even if the Queens County rules were severe, they were at least applied with equal force to plaintiffs and defendants. The Appellate Division adopted all of our arguments and upheld the order of the lower court.

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