Sheryl Sanford Secures Voluntary Discontinuance

In a recent case brought by Amtrust Insurance Company of Kansas Inc. against a local fire department, Claimant alleged that while he repaired a garage door at a local fire station in Westchester County, he fell off a ladder and shattered his ankle. Claiming damages under Labor Law §§ 240(1), 200, and 241(6), Claimant ceded his right to recovery of damages to the plaintiff who brought suit, under the Workers’ Compensation Law §29(2), against the fire district owning the station. Black Marjieh & Sanford LLP attorney Sheryl Sanford filed a pre-answer motion to dismiss the suit thereby securing a voluntary discontinuance of suit.

As argued in the motion papers, Claimant failed to preserve his right to sue a municipal fire district under General Municipal Law Sections 50 e, i, and h by failing to file a timely Notice of Claim and appear for a statutory hearing/physical examination under GML 50. In fact, the plaintiff brought suit over two years after the subject incident and no Notice of Claim was ever filed. Having thereby inherited, at best, only the defective municipal claims that claimant possessed, the plaintiff also did not submit a facially sufficient complaint to allege it was properly assigned claimant’s cause of action.

Sheryl’s pre-emptive motion caused the plaintiff to concede that the claims were improperly brought and legally insufficient, thereby voluntarily discontinuing the action against the municipal fire district prior to the accrual of significant defense costs and obviating any recovery for a serious ankle injury requiring surgery.