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« PRIOR WRITTEN NOTICE REQUIREMENT DOESN'T APPLY WHERE TOWN CREATED DANGEROUS ACCIDENT CONDITION; TOWN DENIED SUMMARY JUDGMENT |
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Court: Supreme Court, Appellate Division, Second Department, New York
Case: Bobbie O. Sparks v. Jon S. Detterline
Date: July 19, 2011.
From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx; Queens Brooklyn accident injury lawyer)
Comment: Tired am I of writing about car accident cases where the I injured accident victims are forced to defend against summary judgment motions trying to throw out their case, based on the plaintiff's alleged failure to breach New York State's No-Fault "serious injury" threshold. There is way, way too much litigation on this issue. Way too many reported cases. And way too many lawyers and judges, even, that don't "get it."
And if you're a defense law firm trying to force an accident victim out of court, if you decide to make this motion - which, unfortunately seems to have become almost routine or automatic - at least platy the game right so you maybe deserve to win your case.
The appellate case printed below and which is the subject of this blog and my today's rant is a classic example of a defendant making a summary judgment motion based on the No-Fault serious injury threshold and not knowing what the heck s/he (the defense lawyer) was doing. Maybe this rather routine assignment was passed off to a lowly inexperienced lawyer associate. Maybe no ono cared if they wasted the Court's time and th time of the plaintiff's attorney. Whatever the reason, defense did not bring its "A" game and wasted time and money and got its butt kicked on this appeal.
Worst yet, the defense won below, so there sits a lower court Supreme Court judge who also got it wrong.
And so it goes.
RELATED POSTS:
SUMMARY JUDGMENT MOTION DENIED ON NO-FAULT THRESHOLD; BURDEN ON DEFENSE TO SHOW ACCIDENT VICTIM'S INJURIES WERE OLD (Posted by Queens injury attorney Gary E. Rosenberg on June 17, 2011)
BRONX CAR ACCIDENT VICTIMS LOSE SUMMARY JUDGMENT ON NO-FAULT "SERIOUS INJURY" THRESHOLD (Posted by Queens injury attorney Gary E. Rosenberg on June 21, 2011)
NEW YORK'S "SERIOUS INJURY" REQUIREMENT--A RECENT CAR ACCIDENT CASE THAT THE JURY BLEW (Posted by Queens injury attorney Gary E. Rosenberg on March 5, 2011)
"SERIOUS INJURY" THRESHOLD MOTION NICELY DEFEATED IN CAR ACCIDENT CASE (Posted by Queens injury attorney Gary E. Rosenberg on April 28, 2011)
THE SUMMARY JUDGMENT WEAPON (Posted by Queens injury attorney Gary E. Rosenberg on October 27, 2008)
ANOTHER INJURED CAR ACCIDENT VICTIM DENIED HER DAY IN COURT DUE TO LEGAL TECHNICALITY (Posted by Queens injury attorney Gary E. Rosenberg on September 3, 2010)
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Dutchess County (Wood, J.), dated September 2, 2010, which, in effect, granted the defendants' motion for summary judgment dismissing the complaint on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the order is reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is denied.
The defendants failed to meet their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197; Gaddy v. Eyler, 79 N.Y.2d 955, 956-957, 582 N.Y.S.2d 990, 591 N.E.2d 1176; Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572; Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 852, 487 N.Y.S.2d 316, 476 N.E.2d 642; Zuckerman v. City of New York, 49 N.Y.2d 557, 559, 427 N.Y.S.2d 595, 404 N.E.2d 718). The conclusion set forth in the affirmed report of the defendant's examining physician, Dr. Jeffrey S. Oppenheim, that the plaintiffs' complaints were subjective in nature and that she had "no objective identifiable neurological deficit, and therefore, no objective neurological disability," was conclusory, speculative, and insufficient to establish the defendants' prima facie entitlement to judgment as a matter of law, as Dr. Oppenheim conducted no objective range-of-motion testing (see Borras v. Lewis, 79 A.D.3d 1084, 913 N.Y.S.2d 577; Powell v. Prego, 59 A.D.3d 417, 418-419, 872 N.Y.S.2d 207; cf. Conder v. City of New York, 62 A.D.3d 743, 879 N.Y.S.2d 169. Further, Dr. Oppenheim's assertion that the plaintiff, during his examination of her, was "essentially unable" to move her neck in any direction "in any significant way that would allow for a definition of range of motion testing" suggests that any limitation was not insignificant (cf. Kharzis v. PV Holding Corp., 78 A.D.3d 1122, 912 N.Y.S.2d 114; Kjono v. Fenning, 69 A.D.3d 581, 893 N.Y.S.2d 157). Accordingly, the Supreme Court should have denied the defendants' motion for summary judgment dismissing the complaint.
« CONSTRUCTION WORKER, SCAFFOLD FALL ACCIDENT, LABOR LAW CASE DENIED SUMMARY JUDGMENT; ISSUE OF FACT AS TO "RECALCITRANT WORKER" |
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| DEFENSE LOSES NO-FAULT SERIOUS INJURY THRESHOLD SUMMARY JUDGMENT MOTION WHERE ITS EXAMINING DOCTOR DIDN'T MEASURE ACCIDENT VICTIM'S »
Court: Supreme Court, Appellate Division, Second Department, New York.
Case: Richard Pennamen v. Town of Babylon
Date: July 19, 2011
From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx; Queens Brooklyn accident injury lawyer)
Comment: "Prior written notice" is a concept that an accident plaintiff bumps up against if s/he tries to sue a municipality or government entity, like a city, town, county or village. In many cases the municipality can only be sued if it was notified before an accident of a defective condition, such as a broken sidewalk. These notice requirements also set forth specifically who must be notified. As you can probably guess, this keep a lot of accident cases out of court.
There are exceptions to the prior written notice requirement, such as when the municipality actually makes or created the defective condition. The case below is one of those rare instances.
RELATED POSTS:
PLAINTIFF WHO FALLS IN STREET BUT CAN'T IDENTIFY DEFECT LOSES CASE ON SUMMARY JUDGMENT MOTION (Posted by Queens accident attorney Gary E. Rosenberg on July 16, 2011)
ABUTTING OWNER NOT LIABLE FOR ACCIDENT AT JUST-BUILT TREE WELL; SUMMARY JUDGMENT GRANTED TO DEFENSE (Posted by Queens accident attorney Gary E. Rosenberg on June 27, 2011)
CITY OF NEW YORK, NOT BUILDING OWNER, RESPONSIBLE FOR INJURY IN TREE PIT; SUMMARY JUDGMENT GRANTED (Posted by Queens accident attorney Gary E. Rosenberg on June 18, 2011)
CASE DISMISSED FOR NO PRIOR NOTICE OF ROADWAY DEFECT THAT THROWS MOTORCYCLE RIDER IN ACCIDENT (Posted by Queens accident attorney Gary E. Rosenberg on May 21, 2011)
COURT TOSSES SIDEWALK ACCIDENT CASE AFTER VERDICT FOR WRONG PRIOR NOTICE (Posted by Queens accident attorney Gary E. Rosenberg on May 14, 2011)
In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Suffolk County (Mayer, J.), dated June 18, 2010, which denied its motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
The plaintiff allegedly tripped over a bent and defective storm drain grate located in the roadway at the end of his mother's driveway while he was carrying bags of yard debris to be placed at the curb for pick-up. He commenced this action against the defendant, Town of Babylon, alleging that he sustained personal injuries. The Town moved for summary judgment dismissing the complaint, contending that it lacked prior written notice of the alleged defective condition. The Supreme Court denied the Town's motion. We affirm.
Where a municipality has enacted a prior written notice statute, it may not be subjected to liability for injuries arising from a defective roadway condition unless it has received prior written notice of the dangerous condition or an exception to the prior written notice requirement applies (see De La Reguera v. City of Mount Vernon, 74 AD3d 1127; Lopez v. G & J Rudolph Inc., 20 AD3d 511, 512). The Court of Appeals has recognized only two exceptions to the statutory prior written notice requirement, namely, where the municipality created the defect or hazard through an affirmative act of negligence or where a special use confers a benefit upon the locality (see Amabile v. City of Buffalo, 93 N.Y.2d 471, 474; Loughlin v. Town of N. Hempstead, 84 AD3d 1035).
Here, the Town met its burden of establishing that it did not receive prior written notice of the alleged defective condition, thereby shifting to the plaintiff the burden of demonstrating that a triable issue of fact existed either in that regard or as to whether one of the Amabile exceptions applied (see Groninger v. Village of Mamaroneck, 17 NY3d 125; Yarborough v. City of New York, 10 NY3d 726, 728; Rochford v. City of Yonkers, 12 AD3d 433). However, the Supreme Court correctly determined that, in opposition, the plaintiff raised a triable issue of fact as to whether the Town created the defective condition within the meaning of the exception, based on the affirmative negligence of the Town which immediately resulted in the existence of the dangerous condition (see Yarborough v. City of New York, 10 NY3d at 728; Tumminia v. Cruz Constr. Corp., 41 AD3d 585, 586). The plaintiff raised a triable issue of fact as to whether the Town, during its cleaning of the subject storm drain on three occasions prior to the accident, immediately bent and damaged the subject storm drain grate based on the manner in which the Town removed the grate and put it back into place.
The Town's remaining contention is without merit.
Accordingly, the Supreme Court properly denied the Town's motion for summary judgment dismissing the complaint.
« FIREFIGHTER DIDN'T SEE WHAT CAUGHT HIS FOOT AND CAUSED HIS ACCIDENT; LANDLORD GETS SUMMARY JUDGMENT DISMISSING CASE |
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| PRIOR WRITTEN NOTICE REQUIREMENT DOESN'T APPLY WHERE TOWN CREATED DANGEROUS ACCIDENT CONDITION; TOWN DENIED SUMMARY JUDGMENT »
Court: Supreme Court, Appellate Division, First Department, New York.
Case: Richard Pietrowski v. Are-East River Science Park, LLC
Date: July 21, 2011.
Comment: New York State Labor Law Section 240 protects workers injured in a fall from a ladder or scaffold, or other gravity-related construction accidents. Customarily, an injured worker asks the court (makes a motion) for summary judgment - trying to win on paper on the issue liability, without necessity of a jury trial. Then the question of damages, or "How much is my injury worth?" is the only question left for the jury.
"Recalcitrant worker" is a construction accident case term. It means that worker has available safety devices that might have prevented his or her construction accident and knows about the device (or was told to use it) and doesn't use the safety device. In such instances the accident is held to be the worker's own fault and recovery under the Labor Law is prevented.
In this case, there is a "question of fact" as to whether the worker had an available safety device that he didn't use - an independent safety cable systems, namely two choker cable slings on a vertical beam. Therefore, the court denied summary judgment to plaintiff based on issues of fact. A jury will have to decide if Mr. Richard Pietrowski was a recalcitrant worker.
From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx; Queens Brooklyn accident injury lawyer)
Holdings: The Supreme Court, Appellate Division, held that:
(1) factual issues precluded summary judgment for any party on issue of liability under scaffold law;
(2) factual issues precluded summary judgment for worker on issue of liability under provision of scaffold law requiring safety rails on scaffold more than 20 feet off the ground;
(3) factual issues precluded summary judgment for defendants on worker's claim alleging violation of workplace safety statute based on alleged violation of Industrial Code provision requiring them to provide nails, cleats, or other securing devices for floating scaffold; and
(4) provision of Industrial Code applicable to hazardous openings of significant depth and size did not provide basis for Labor Law liability.
RELATED POSTS:
MAN KILLED IN SCAFFOLDING COLLAPSE ON UPPER EAST SIDE (Posted by Queens injury lawyer Gary E. Rosenberg on December 7, 2007)
CONSTRUCTION WORKER KILLED WHEN SCAFFOLD BLOWN OVER (Posted by Queens injury lawyer Gary E. Rosenberg on January 30, 2008)
POSSIBLE NEW YORK LABOR LAW VIOLATIONS LEAD TO ACCIDENTAL FALL OF CONSTRUCTION WORKER AT WORLD TRADE CENTER (Posted by Queens injury lawyer Gary E. Rosenberg on March 9, 2010)
ILLEGAL ALIEN CONSTRUCTION WORKER SUFFERS BRAIN DAMAGE IN ACCIDENT; KEEPS MONEY DAMAGES AWARD BASED ON FUTURE TREATMENT IN U.S., NOT ECUADOR (Posted by Queens injury lawyer Gary E. Rosenberg on July 7, 2011)
WALL COLLAPSE AT QUEENS CONSTRUCTION SITE KILLS ONE WORKER AND INJURES THREE (Posted by Queens injury lawyer Gary E. Rosenberg on January 13, 2011)
TWO IRON WORKERS DIE IN CONSTRUCTION SITE FALL (Posted by Queens injury lawyer Gary E. Rosenberg on February 8, 2011)
Order, Supreme Court, New York County (Marylin G. Diamond, J.), entered September 8, 2010, which granted plaintiffs' motion for partial summary judgment as to liability on their Labor Law §§ 240(1) and (2) claims and denied defendants' cross motion for summary judgment dismissing the complaint, unanimously modified, on the law, to deny the motion for partial summary judgment on the Labor Law §§ 240(1) and (2) claims, grant the cross motion to the extent of dismissing the Labor Law § 241(6) claim, insofar as it is premised upon a violation of Industrial Code (12 NYCRR) § 23-1.7(b)(1), and otherwise affirmed, without costs.
The motion court erred in granting summary judgment to plaintiffs on their Labor Law § 240(1) claim since there are triable issues of fact with respect to what proximately caused plaintiff Richard Pietrowski's accident.FN1 It is well settled that "[l]iability under Labor Law § 240(1) does not attach when the safety devices that plaintiff alleges were absent were readily available at the work site ... and plaintiff knew he was expected to use them but for no good reason chose not to do so, causing an accident" ( Gallagher v. New York Post, 14 N.Y.3d 83, 88 [2010]; Robinson v. East Med. Ctr., LP, 6 N.Y.3d 550, 554 [2006]; Cahill v. Triborough Bridge and Tunnel Auth., 4 N.Y.3d 35, 39-40 [2004] ).
Here, while plaintiff's foreman, Jack Sanders, averred that "there were no independent safety cable systems erected" at the location of Pietrowski's fall, the record evidence proffered by defendants suggests the opposite. Specifically, Keith Balvin, a Structural Superintendent employed by defendant Turner Construction Company averred that upon his post-accident inspection of the situs of the accident, which reflected pre-accident conditions, he noted the existence of independent safety cable systems, namely two choker cable slings on a vertical beam. In addition, Ed Hendrickson, a general foreman employed by Pietrowski's employer, averred that on the date of Pietrowski's accident he observed "several choker cables (or 'slings') ... with retractable lanyards attached to the chokers," in the area from which Pietrowski alleges to have fallen. Hendrickson further stated that Pietrowski was provided with a safety booklet outlining the elevation related safety rules including tie off requirements for iron workers, that employees were told that they were required to tie off, that iron workers were provided with choker cables to attach to vertical/horizontal beams so that they could tie off safely, and that all employees were aware that choker cables were readily available in gang boxes on each floor. Thus, whether defendants failed to provide Pietrowski with choker cables, or whether they were made available and Pietrowski was recalcitrant in failing to use them is a question of fact precluding summary judgment in favor of any of the parties ( Garlow v. Chappaqua Cent. School Dist., 38 A.D.3d 712, 714 [2007] ).
It was also error to grant summary judgment in plaintiffs' favor with respect to their Labor Law § 240(2) claim. Labor Law § 240(2) is implicated when a worker is injured due to an elevation-related hazard ( Bryant v. General Elec. Co., 221 A.D.2d 687, 689 [1995, 633 N.Y.S.2d 410). Moreover, liability under Labor Law § 240(2) is predicated upon the failure to provide safety rails on a scaffold more than twenty feet off the ground (Labor Law § 240[2]; Gaffney v. BFP 300 Madison II, LLC, 18 A.D.3d 403, 404 [2005]; Emmi v. Emmi, 186 A.D.2d 1025, 1025 [1992] ), when such violation is the proximate cause of plaintiff's accident ( Pulsifer v. Eastman Kodak Co., 219 A.D.2d 880, 880 [1995] ). Here, the record presents a triable issue of fact with respect to whether plaintiff fell from the scaffold, or while he was descending to it. Accordingly, whether Pietrowski's accident was caused by the independent Labor Law § 240(2) violation, namely the absence of safety rails on the scaffold, or as discussed above, solely by his negligence in failing to use the safety devices available to him, is a question of fact precluding summary judgment on plaintiffs' claim pursuant to Labor Law § 240(2). If Pietrowski fell as he was descending to the scaffold, and merely hit the scaffold on the way down, then the absence of safety rails could not have been the proximate cause of his fall and defendants cannot be liable despite the violation of Labor Law § 240(2).
The motion court properly denied defendants' motion for summary judgment dismissing the Labor Law § 241(6) claim inasmuch as plaintiffs alleged that defendants violated Industrial Code 12 NYCRR) § 23-5.8(h). It is undisputed that the floating scaffold cracked when Pietrowski struck it and defendants presented no evidence as to whether they provided any nails, cleats or other securing devices for this floating scaffold at the time of the accident in accordance with the Code's requirement ( Avila v. Ashton Mgt. Co., 24 A.D.3d 273 [2005] ). Nevertheless, the motion court erred when it denied defendants' motion to dismiss plaintiff's Labor Law § 241(6) claim, to the extent premised on a violation of Industrial Code (12 NYCRR) § 23-1.7(b)(1), which applies to hazardous openings of significant depth and size. It is clear that this provision of the Industrial Code is wholly inapplicable to the facts of this accident since plaintiff did not fall through an "opening" as defined by this section of the Industrial Code.
FN1. Plaintiff was allegedly injured while descending from the fifth floor of a building under construction to a scaffold located approximately 70 inches below.
« MOTORIST HAD STOP SIGN BUT BLAMES ACCIDENT ON OTHER CAR; CASE IS DISMISSED ON SUMMARY JUDGMENT |
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| CONSTRUCTION WORKER, SCAFFOLD FALL ACCIDENT, LABOR LAW CASE DENIED SUMMARY JUDGMENT; ISSUE OF FACT AS TO "RECALCITRANT WORKER" »
Court: Supreme Court, Appellate Division, First Department, New York
Case: Thomas Cotter v. Pal & Lee Inc.
Dated: July 21, 2011.
Background: Firefighter filed personal injury action against premises owner and restaurant operator to recover for injuries suffered while fighting a fire. The Supreme Court, Bronx County, Betty Owen Stinson, J., granted summary judgment for defendants. Plaintiffs appealed.
Holding: The Supreme Court, Appellate Division, held that firefighter's injuries did not occur as result of defendants' failure to comply with safety statute or regulation and violation did not increase risks associated with firefighting. Affirmed.
From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx; Queens Brooklyn accident injury lawyer)
Comment: The Firefighters' Rule - New York General Municipal Law § 205 - allows a firefighter to sue when hurt while working because of a property owner's violation of a safety law or rule. The connection between the injury and the violation doesn't have to be strong, but it still has to be there. In this case, this firefighter, couldn't make that showing and lost his claim for accident-related injuries (He could still receive Worker's Compensation, though.)
But this case was lost the moment the firefighter testified at deposition that he did not see what trapped his foot.
RELATED POSTS:
PLAINTIFF WHO FALLS IN STREET BUT CAN'T IDENTIFY DEFECT LOSES CASE ON SUMMARY JUDGMENT MOTION (Posted by Queens accident lawyer Gary E. Rosenberg on July 16, 2011)
ACCIDENT VICTIM SUES FOR SLIP ON ICE IN PARKING LOT; TRIAL WITNESS CAN'T REMEMBER - CAN TAPE OF 911 CALL BE USED AT TRIAL? (Posted by Queens accident lawyer Gary E. Rosenberg on July 21, 2011)
LANDLORD DOESN'T SHOW IT INSPECTED SLIPPERY BATHROOM FLOOR ON DAY OF ACCIDENT; SUMMARY JUDGMENT DENIED (Posted by Queens accident lawyer Gary E. Rosenberg on July 18, 2011)
FIRE TRUCK SLAMS INTO POST OFFICE 18-WHEELER (Posted by Queens accident lawyer Gary E. Rosenberg on January 18, 2008)
IF INDOOR FIRE BURNS AND NO ONE IS INJURED, SHOULD IT STILL BE A CRIME (ANSWER HINT: HECK YEAH!) (Posted by Queens accident lawyer Gary E. Rosenberg on June 14, 2010)
SMOKE ALARMS: PLEASE USE THEM (Posted by Queens accident lawyer Gary E. Rosenberg on January 22, 2011)
Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered October 15, 2009, which, to the extent appealed from, granted defendants Pal & Lee Inc.'s and Faiz's motions for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Plaintiff Thomas Cotter, a New York City firefighter, injured his knee and thumb on September 15, 2005 while extinguishing a fire at defendant Mohammed Faiz's (Faiz) Kennedy Fried Chicken restaurant. Defendant Pal & Lee, Inc. owns the five-story building where the restaurant is located.
Plaintiffs commenced this personal injury action against Pal and Faiz on May 4, 2006, alleging that defendants' violation of various sections of the Administrative Code of the City of New York resulted in a hole in the floor, accumulated debris and other unsafe conditions They claim that these violations directly or indirectly caused plaintiff's injuries and that he is therefore entitled to recover under General Municipal Law (GMA) § 205-a.
Faiz testified at deposition that he leased the premises in 1997, and that both he and the owners have made repairs since then. He testified that when he entered into the lease, there was an "X" inside a square spray-painted on the exterior, but that he did not know what the symbol denoted. Faiz testified that shortly after taking possession he renovated the ground floor, adding new support beams, tile flooring, fire-suppression and exhaust systems, and equipped the premises with fire extinguishers. The floors above the restaurant remained vacant.
Faiz further testified that the restaurant had been cleaned three days before the fire in anticipation of an inspection by the City Health Department. He testified that the restaurant was inspected routinely by the Health Department, twice annually by the FDNY, and intermittently by the Building Department, and that no violations had been issued by the Building Department. Faiz further testified that he did not observe any holes or cracks in the floor when he closed the restaurant at 1:00 A.M. on the night of the fire.
Plaintiff testified at deposition that at approximately 2:00 A.M., his station responded to a report of a fire at Faiz's restaurant. When he arrived at the fire, he observed the spray-painted "X" on the exterior of the building, which he understood to mean that the building had experienced a prior fire, the roof was "open," and that he should be on his "A" game. He testified that he and two other firefighters entered the building carrying a hose spraying "tons of water."
Plaintiff testified that he could not see due to the heavy smoke and had to climb over "debris." He further testified that his foot became lodged in something that "just wasn't part of the floor ." Although he characterized the condition as a hole, he admitted that he did not see any holes and did not "know for a fact" what trapped his foot. Plaintiff said he was "sure" that some of the obstacles he encountered were restaurant "fixtures" strewn "all over the place" by the hose water, which had enough velocity to "move a couch" or "blow a hole in a tin roof."
The two firefighters who accompanied plaintiff were deposed and testified that they too could not see due to the heavy smoke, but that there were tables, chairs, and booths knocked down. One of them also fell, but he was uncertain as to what caused him to fall. After approximately 10 minutes in the building, the men were called out due to the heavy fire condition, and efforts to extinguish the fire continued from outside the building.
Post-fire inspection reports were prepared by the FDNY Fire Chief who was on duty the night of the fire, a fire marshal, and the fire inspector hired by Faiz's insurer. The inspectors did not report holes in the area of the restaurant where the firefighters were located. The reports did not agree on the point of origination or cause of the fire.
The FDNY Fire Chief testified that the "X" on the building is one of several symbols used by the fire department to indicate the stability and occupancy of a building. He explained that an "X" indicates that the building is vacant and firefighting operations should be conducted from the exterior. He testified that an owner may make repairs to the premises after the building is marked and that the FDNY does not inspect "marked" buildings to see if repairs have been made. The FDNY Fire Chief testified that although there was an "X" on defendants' building at the time of the fire, such marking was an error since the first floor was occupied.
Following discovery, Pal and Faiz moved for summary judgment dismissing the complaint on grounds that they did not violate any code section or statute with a reasonable connection to Cotter's claimed injuries, and that plaintiffs' section 205-a claim is speculative. In opposition, plaintiffs offered, inter alia, the report of their expert who opined that defendants failed to comply with Administrative Code, Building Code and Housing Maintenance Code provisions, as alleged by the pleadings, and that the violations constituted a "direct cause" of Cotter's injuries. However, the expert relied only on the documents presented to the court and did not personally inspect the premises.
The motion court granted defendants' summary judgment motions, concluding that plaintiffs failed to "make a prima facie case of negligence under GML § 205-a against either defendant." The motion court found that plaintiffs' allegation of holes in the floor and accumulated debris was speculative, and there was no evidence that exacerbation of the intensity or spread of the fire caused plaintiff's injuries.
Plaintiffs appeal on the grounds that the motion court erroneously applied the common-law standard of causation rather than the statutory standard, and that there are material questions of fact as to whether defendants violated provisions of the Administrative Code. For the reasons set forth below, we affirm the motion court's summary judgment dismissal
General Municipal Law § 205-a provides protection to a firefighter injured as a result of a building code violation that "enlarges the hazard of his task by diminishing fire safety or prevention" ( Meyer, 258 A.D.2d at 316, 684 N.Y.S.2d 773). To make out a valid claim, a plaintiff firefighter must identify the statute or ordinance that defendant violated, describe the manner in which he was injured, and set forth relevant facts from which it may be inferred that the defendant's negligence directly or indirectly caused him harm (Zvinys v. Richfield Inv. Co.,25 A.D.3d 358, 359 [2006], lv denied 7 N.Y.3d 706 [2006], citing Zanghi v. Niagara Frontier Transp. Commn., 85 N.Y.2d 423, 441 [1995] [internal quotation marks omitted] ). While a plaintiff need only establish a practical or reasonable connection between the statutory or regulatory violation and the claimed injury (Giuffrida v. Citibank Corp., 100 N.Y.2d 72, 81 [2003] ), the causation element will not be found where the connection is too speculative to support GML 205-a liability (see e.g. Downey v. Beatrice Epstein Family Partnership, L.P., 48 A.D.3d 616 [2008], lv denied 11 N.Y.3d 702 [2008]; Zvinys, 25 A.D.3d at 359, 808 N.Y.S.2d 640, Kenavan v. City of New York, 267 A.D.2d 353, 356 [1999], lv denied 95 N.Y.2d 756 [2000]).
In this case, defendants met their initial burden by presenting deposition testimony, post-fire inspection reports, and other evidence indicating that there were no violations, specifically holes in the floor and accumulated debris, that directly caused plaintiff's injuries, or that indirectly caused plaintiff's injuries by increasing the inherent dangers of firefighting (see e.g. Downey, 48 A.D.3d at 619, 853 N.Y.S.2d 108; Zvinys, 25 A.D.3d at 359-360, 808 N.Y.S.2d 640). Plaintiff failed to rebut this showing.
Plaintiffs' assertion that a hole in the floor directly caused the injuries is pure conjecture. Plaintiff conceded that he could not see the floor and does not know what trapped his foot. The firefighters who entered the building with him were similarly unable to describe the condition of the floor. Plaintiffs' allegation that defendants allowed debris to accumulate, causing him to trip and fall, is speculative. By his own admission, plaintiff cannot say that the debris did not consist of those items normally found in a restaurant, which, rather than being negligently placed by defendants, had been knocked down by the force of the spray from the fire hose employed in suppressing the fire.
Plaintiffs' assertion that the "X" marked on the facade is evidence of code violations is wholly unsupported by the record. The FDNY Chief testified that such symbols may not be accurate, the buildings are not reinspected, and indeed that the symbol was incorrect in this case since the building had been occupied for eight years.
There is no record evidence of any violations for unsealed openings, lack of requisite fireproofing, and lack of fire-detection equipment, or lack of extinguishment or suppression systems issued against the building, and plaintiffs' expert did not personally inspect the premises for violations (see e.g. Zvinys, 25 A.D.3d at 359-360, 808 N.Y.S.2d 640 [internal citations omitted] ). However, even were we to accept that such violations did exist, plaintiffs' claim that they exacerbated the smoke condition and spread of the fire, indirectly causing plantiff injury, is speculative.
Plaintiffs' expert does not provide any explanation linking the alleged sealing and fireproofing violations to plaintiff's injuries, and his bare conclusions that they caused plaintiff's injuries do not raise a triable issue of fact (id. at 359-360, 808 N.Y.S.2d 640. Furthermore, the inspection reports do not establish where or how the fire started, and, as the motion court noted, the fire and smoke were "already intense" by the time plaintiff arrived. Thus, there is no evidence, nor can it be logically inferred, that plaintiff's risk of harm was increased by the spread or intensification of fire or smoke resulting from alleged violations (see e.g. Zvinys, 25 A.D.3d at 359, 808 N.Y.S.2d 640; cf. Foiles v. V.L.J. Constr. Corp., 17 A.D.3d 297 [2005] ).
We have considered plaintiffs' remaining arguments and find them unavailing.
FN1. Administrative Code § 27-127 et seq., generally imposes a duty to keep the premises safe, and requires that "[a]ll service equipment, means of egress, [and] devices ... shall be maintained in good working condition" (repealed in 2007 and re-codified at Administrative Code § 28-301.1). Other sections require sealing window and/or exterior wall openings; use of "fire-stopping" structure/materials (such as interior doors, ceilings, walls, floors and shafts); and ensuring that access areas, exits, and passageways are visible and free of obstructions.
FN2. GML 205-a, the statutory exception to the "firefighter's rule," permits a plaintiff firefighter to bring a cause of action when his injury occurs as a result of a defendant's failure to comply with a safety statute or regulation and the violation increases the risks associated with firefighting (Meyer v. Moreno, 258 A.D.2d 315 [1999]; Scherrer v. Time Equities, 218 A.D.2d 116, 122 [1995] ).
« ACCIDENT VICTIM SUES FOR SLIP ON ICE IN PARKING LOT; TRIAL WITNESS CAN'T REMEMBER - CAN TAPE OF 911 CALL BE USED AT TRIAL? |
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| FIREFIGHTER DIDN'T SEE WHAT CAUGHT HIS FOOT AND CAUSED HIS ACCIDENT; LANDLORD GETS SUMMARY JUDGMENT DISMISSING CASE »
Court: Supreme Court, Appellate Division, Second Department, New York
Case: Stefani A. Gallagher v. David E. McCurty
Date: June 28, 2011
From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx; Queens Brooklyn accident injury lawyer)
Comment: The injured plaintiff here (Stefani A. Gallagher) had a stop sign. New York State's Vehicle and Traffic Law, Section 1172 (a), tell us that a stop sign means "stop." As a practical matter, a motorist stopped at a stop sign may have to wait there forever, but he or she may not go until the intersection is clear. If there's an accident, the fault is that of the motorist with the stop sign. Period.
I often get calls from motorists that have had accidents and tell me, "I stopped for the stop sign and proceeded slowly and carefully into the intersection and the other car was speeding, and came out of nowhere and hit my car." And I have to turn down the case because it can't win.
The case in this blog is a classic example of an injured motorist that had a stop sign and is blaming her accident no another car that she says was speeding. This case loses.
I often wonder why a lawyer takes a case like this and doesn't know better, wasting time and money and the court's time. I can only speculate the injured plaintiff in this case may have been seriously hurt, and her lawyers decided to take a chance.
RELATED POSTS:
CAUSES OF CAR, TRUCK, BUS AND MOTORCYCLE ACCIDENTS (Posted by Brooklyn injury attorney Gary E. Rosenberg on January 5, 2010)
(BROOKLYN, QUEENS AND BRONX [NEW YORK CITY] TRUCK ACCIDENT LAWYER) (Posted by Brooklyn injury attorney Gary E. Rosenberg on March 27, 2010)
BROOKLYN PERSONAL INJURY ATTORNEY - MOTOR VEHICLE ACCIDENTS (Posted by Brooklyn injury attorney Gary E. Rosenberg on July 26, 2010)
DRIVERS WHO RUN STOP SIGNS CAUSE ACCIDENTS; CHILDREN ARE FREQUENTLY VICTIMS (Posted by Brooklyn injury attorney Gary E. Rosenberg on February 21, 2011)
NO "PERMISSIVE USE": CAR IN ACCIDENT DRIVEN WITHOUT PERMISSION, CAR OWNER (AND HER INSURANCE) LET OUT OF ACCIDENT CASE (Posted by Brooklyn injury attorney Gary E. Rosenberg on July 11, 2011)
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (DeStefano, J.), dated September 3, 2010, which granted the defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
The plaintiff allegedly was injured when, after stopping at a stop sign, she drove into an intersection where her vehicle was struck by a vehicle operated by the defendant. The plaintiff commenced this action against the defendant, alleging negligence. The defendant moved for summary judgment dismissing the complaint, contending that the plaintiff's alleged negligence was the sole proximate cause of the accident. The Supreme Court granted the defendant's motion.
The defendant made a prima facie showing of his entitlement to judgment as a matter of law by presenting evidence that he entered the intersection with the right-of-way, and that, by failing to yield, the plaintiff violated Vehicle and Traffic Law § 1142(a), which constituted negligence as a matter of law (see Thompson v. Schmitt, 74 A.D.3d 789, 902 N.Y.S.2d 606; McCain v. Larosa, 41 A.D.3d 792, 793, 838 N.Y.S.2d 663; Gergis v. Miccio, 39 A.D.3d 468, 834 N.Y.S.2d 253). As the driver with the right-of-way, the defendant "was entitled to anticipate that the plaintiff would obey traffic laws which required her to yield" (Yelder v. Walters, 64 A.D.3d 762, 764, 883 N.Y.S.2d 290; see Thompson v. Schmitt, 74 A.D.3d at 790, 902 N.Y.S.2d 606; Klein v. Crespo, 50 A.D.3d 745, 745-746, 855 N.Y.S.2d 633). In opposition, the plaintiff's contention that the defendant was traveling at an excessive rate of speed was conclusory and speculative, and, on this record, failed to raise a triable issue of fact (see Thompson v. Schmitt, 74 A.D.3d at 790, 902 N.Y.S.2d 606; Yelder v. Walters, 64 A.D.3d at 765, 883 N.Y.S.2d 290; McCain v. Larosa, 41 A.D.3d at 793, 838 N.Y.S.2d 663).
Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint.
« MEDICAL MALPRACTICE CASE DISMISSAL AFTER JURY SELECTED BUT BEFORE TRIAL STARTED WAS AN ABUSE OF DISCRETION |
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| MOTORIST HAD STOP SIGN BUT BLAMES ACCIDENT ON OTHER CAR; CASE IS DISMISSED ON SUMMARY JUDGMENT »
Court: Supreme Court, Appellate Division, Second Department, New York
Case: Martha Seaberg v. North Shore Lincoln-Mercury, Inc.
Date: June 28, 2011
In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Suffolk County (Sweeney, J.), entered December 22, 2009, which, upon a jury verdict on the issue of liability, is in favor of the defendant and against her dismissing the complaint.
ORDERED that the judgment is reversed, on the law, with costs, the complaint is reinstated, and a new trial on the issue of liability is granted.Holdings: The Supreme Court, Appellate Division, held that:
(1) 911 call was not admissible under the present sense impression exception to the hearsay rule;
(2) trial court should have permitted plaintiff's counsel to refresh mechanic's recollection by allowing him to listen to tape of the 911 call; and
(3) 911 call was admissible as a prior inconsistent statement.
Reversed.
From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx; Queens Brooklyn accident injury lawyer)
RELATED POSTS:
BOY SLIPS ON ICE, KILLED BY BUS (Posted by Brooklyn injury lawyer Gary E. Rosenberg on February 18, 2010)
STATEN ISLAND BROTHERS KILLED WHEN THEIR CAR SKIDDED OFF AN UPSTATE ROAD AND SANK IN A POND (Posted by Brooklyn injury lawyer Gary E. Rosenberg on January 9, 2011)
STATEN ISLAND JETS FAN'S DIES IN SLEDDING CELEBRATION (Posted by Brooklyn injury lawyer Gary E. Rosenberg on January 18, 2011)
MEDICAL MALPRACTICE CASE DISMISSAL AFTER JURY SELECTED BUT BEFORE TRIAL STARTED WAS AN ABUSE OF DISCRETION (Posted by Brooklyn injury lawyer Gary E. Rosenberg on July 20, 2011)
ICY SLIP AND FALL SIDEWALK ACCIDENT VICTIM DEFEATS SUMMARY JUDGMENT (Posted by Brooklyn injury lawyer Gary E. Rosenberg on May 27, 2011)
The plaintiff alleges that, on March 2, 2005, she slipped and fell on ice in the defendant's parking lot. She commenced this action against the defendant to recover damages for personal injuries, alleging that the defendant was liable because it negligently maintained its property. In October 2009 the matter proceeded to a jury trial on the issue of liability.
On her direct case, the plaintiff testified that, as she fell, she saw and felt ice on the ground. In addition, she presented the testimony of witness Brian Pina, who had been employed by the defendant as a mechanic on the date of her accident, and who had called 911 approximately two minutes after the accident.
Before Pina testified, the plaintiff sought to admit into evidence a tape of Pina's 911 call under the present sense impression or excited utterance exceptions to the hearsay rule. In opposition, the defendant quoted from Pina's deposition testimony, in which he had stated, "somebody said to call [911]. A lady fell in the parking lot." Defense counsel argued that this testimony demonstrated that Pina had not seen the accident and, accordingly, any statement he may have made that was recorded on the 911 tape was not within one of the proffered exceptions to the hearsay rule to the extent that it may have described how the accident occurred. The Supreme Court agreed with defense counsel, and denied the plaintiff's request to admit the tape of Pina's 911 call under the present sense impression or excited utterance exceptions to the hearsay rule.
Pina proceeded to testify under direct examination that it was "very hard to remember something that happened back in 2005. A lot of events [have] taken place since 2005, and this is not something that's freshly on top of my head." He then testified that, on March 2, 2005, after he learned that an incident had occurred on the premises, in front of the garage door, he went to the incident location, where he saw the plaintiff and his coworker, Ron Weber. Pina stated that "[v]ery little" of the incident stood out in his memory.
Pina did recall, however, waiting at the scene for approximately 15 minutes until an ambulance arrived. He recalled that, during that time, he looked around and "[t]o the best of [his] knowledge, there was no ice" on the ground.
After Pina gave this testimony, the plaintiff's counsel requested a bench conference, after which counsel stated, on the record, that Pina had just testified that he had seen no ice on the ground immediately after the accident, but in his prior deposition testimony, he admitted telling the 911 operator that he had seen "ice on the ground that caused [plaintiff] to slip and fall." The Supreme Court then explained, on the record, that it had already ruled that the 911 tape was inadmissible. The plaintiff's counsel replied that he was merely attempting to elicit, from Pina, testimony that "he actually made the [911] call that [plaintiff] slipped and fell on ice[,]" and, as counsel understood it, although the 911 tape was inadmissible, Pina could nevertheless testify that he had made the 911 call. The Supreme Court replied that if the plaintiff's counsel elicited, from Pina, inconsistent testimony regarding the incident, then it would consider whether the 911 tape could be used to refresh Pina's recollection.
The defense asserted that the plaintiff's counsel was mischaracterizing Pina's deposition testimony. Defense counsel then quoted from a portion thereof, in which Pina testified both that he did not recall seeing ice on the ground and that the content of the 911 tape did not refresh his recollection about the incident.
After a brief recess, the plaintiff's counsel asked Pina what he had told the 911 operator, and Pina replied, "I said--I don't remember. I can't put the words together now. I believe I said somebody fell." Pina stated that he had no independent recollection about how the plaintiff's fall occurred, and did not remember if he had told the 911 operator how the fall had occurred.
Outside the jury's presence, the plaintiff requested the use of the 911 tape to refresh Pina's recollection as to what he had told the 911 operator about how the accident had occurred, i.e., that the plaintiff slipped and fell on ice. Defense counsel objected on the grounds that Pina had testified on direct examination only that "I believe I said somebody fell[,], and that his recollection could not "be refreshed by anything." The Supreme Court agreed with the defendant. It further explained that since it had already ruled that the 911 tape was inadmissible, allowing the plaintiff to refresh Pina's recollection with the inadmissible 911 tape would render its earlier evidentiary ruling "nonsense."
Upon cross-examination by the defendant, his former employer, Pina went on to testify that he had not witnessed the accident.
The jury returned a verdict in favor of the defendant on the issue of liability. Thereafter, the Supreme Court entered a judgment in favor of the defendant and against the plaintiff dismissing the complaint. The plaintiff appeals and we reverse.
On appeal, the plaintiff contends that the judgment must be reversed and that a new trial is warranted because Pina's statement on the 911 tape falls within the present sense impression exception to the hearsay rule or, alternatively, that she should have been allowed to refresh Pina's recollection with the 911 tape and admit the 911 tape into evidence as a prior inconsistent statement. In opposition, the defendant contends that all of the plaintiff's arguments are without merit because Pina did not witness the accident.
The present sense impression exception to the hearsay rule applies when the declarant describes events as he or she is perceiving the event or condition, or immediately thereafter (see People v. Vasquez, 88 N.Y.2d 561, 575, 647 N.Y.S.2d 697, 670 N.E.2d 1328; People v. Brown, 80 N.Y.2d 729, 732, 594 N.Y.S.2d 696, 610 N.E.2d 369; Lee v. City of New York, 40 A.D.3d 1048, 1049, 836 N.Y.S.2d 688; Matter of Talisveyber v. Motor Veh. Acc. Indem. Corp., 16 A.D.3d 425, 426, 791 N.Y.S.2d 151). This exception is premised on the likelihood that the subject declaration is reliable "because the contemporaneity of the communication minimizes the opportunity for calculated misstatement as well as the risk of inaccuracy from faulty memory" (People v. Vasquez, 88 N.Y.2d at 574, 647 N.Y.S.2d 697, 670 N.E.2d 1328; see People v. Brown, 80 N.Y.2d at 732-733, 594 N.Y.S.2d 696, 610 N.E.2d 369). Some corroborating evidence of the declarant's descriptions is required for this exception to apply (see People v. Vasquez, 88 N.Y.2d at 574-575, 647 N.Y.S.2d 697, 670 N.E.2d 1328; People v. Brown, 80 N.Y.2d at 734, 736, 594 N.Y.S.2d 696, 610 N.E.2d 369). Here, Pina did not witness the accident, but arrived at the scene after the fall. Thus, contrary to the plaintiff's contention, any statements Pina may have made to the 911 operator about how the accident occurred were not present sense impressions of that issue, as he did not perceive the accident at all (see People v. Vasquez, 88 N.Y.2d at 574, 647 N.Y.S.2d 697, 670 N.E.2d 1328; People v. Brown, 80 N.Y.2d at 732, 594 N.Y.S.2d 696, 610 N.E.2d 369; Matter of Talisveyber v. Motor Veh. Acc. Indem. Corp., 16 A.D.3d at 426, 791 N.Y.S.2d 151). Accordingly, the Supreme Court properly denied the plaintiff's request to admit the 911 tape into evidence under the present sense impression exception to the hearsay rule.
We agree with the plaintiff, however, that the Supreme Court should have allowed her to refresh Pina's recollection with the 911 tape. At trial, Pina explained that he had no independent recollection of the incident. Such testimony was sufficient to allow the plaintiff to play the 911 tape outside the presence of the jury and allow Pina to refresh his recollection about what he had told the 911 operator (see People v. Neff, 287 A.D.2d 809, 810, 731 N.Y.S.2d 269; People v. Sellan, 143 A.D.2d 690, 533 N.Y.S.2d 109; People v. Luchey, 221 A.D.2d 936, 937, 634 N.Y.S.2d 304; Newman v. Great Atl. & Pac. Tea Co., 100 A.D.2d 538, 539, 473 N.Y.S.2d 231; People v. Betts, 272 App.Div. 737, 741, 74 N.Y.S.2d 791, affd., 297 N.Y. 1000, 80 N.E.2d 456; Fisch on New York Evidence §§ 145, 332 [2d ed., 2008 Supp.]; see also People v. Bonsauger, 91 A.D.2d 1001, 1002, 457 N.Y.S.2d 866; cf. People v. Henry, 297 A.D.2d 585, 586, 748 N.Y.S.2d 2).
The plaintiff also contends that the 911 tape should have been admitted as a prior inconsistent statement since, at trial, Pina testified that he did not observe any ice during the 15 minutes he stood near the plaintiff waiting for the ambulance to arrive, which was inconsistent with statements he made to the 911 operator. We agree with the plaintiff. Here, the plaintiff laid the proper foundation for the introduction of the 911 tape as a prior inconsistent statement by questioning Pina as to the contents of the 911 tape so that he could explain any inconsistency (see Prince, Richardson on Evidence § 6-411[a] [Farrell 11th ed.]; People v. Wise, 46 N.Y.2d 321, 326, 413 N.Y.S.2d 334, 385 N.E.2d 1262; People v. Longo, 151 A.D.2d 786, 543 N.Y.S.2d 115; cf. People v. Wilkins, 221 A.D.2d 392, 633 N.Y.S.2d 357). Upon the plaintiff's laying of such foundation, the Supreme Court should have admitted the 911 tape into evidence as a prior inconsistent statement by Pina for the limited purpose of allowing the plaintiff to impeach his credibility (see People v. Wise, 46 N.Y.2d at 326, 413 N.Y.S.2d 334, 385 N.E.2d 1262; Newman v. Great Atl. & Pac. Tea Co., 100 A.D.2d at 539, 473 N.Y.S.2d 231).
Accordingly, the judgment must be reversed, the complaint must be reinstated, and a new trial on the issue of liability must be conducted.
In light of our determination, we need not reach the parties' remaining contentions.
« QUEENS RESIDENTS GETS BENEFIT OF EARLIER TOLL OF TIME PERIOD TO SUE CITY WHERE THEIR FIRST APPLICATION FOR LEAVE TO SERVE A LATE NOTICE OF CLAIM WAS REJECTED BY COURT |
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| ACCIDENT VICTIM SUES FOR SLIP ON ICE IN PARKING LOT; TRIAL WITNESS CAN'T REMEMBER - CAN TAPE OF 911 CALL BE USED AT TRIAL? »
Court: Supreme Court, Appellate Division, First Department, New York.
Case: Nancy Botwinik v. Michael D. Moseson, M.D.
Date: June 9, 2011
Background: In medical malpractice action, the Supreme Court, Nassau County, F. Dana Winslow, J., granted defendants' oral motion in limine to preclude the testimony of plaintiff's expert and dismiss the medical malpractice action. Plaintiff appealed.
Comment: this fight was about whether plaintiff's intent to use a nurse as a medical malpractice expert as to "informed consent" was to be permitted. Did the nurse have the requisite expertise to testify as an expert witness at trial? The trial judge acted hastily and dismissed plaintiff medical malpractice victim's case. He should have given plaintiff's attorney time to switch to a medical doctor expert if necessary and not dismiss the case.
Holding: The Supreme Court, Appellate Division, held that trial court abused its discretion by granting dismissal of plaintiff's medical malpractice action based solely on lack of informed consent. Reversed.
From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx; Queens Brooklyn accident injury lawyer)
RELATED POSTS:
NO MEDICAL MALPRACTICE WHERE CANCER VICTIM REFUSED TESTS; DOCTOR WINS SUMMARY JUDGMENT (Posted by Brooklyn accident lawyer Gary E. Rosenberg on May 29, 2011)
BRAIN DAMAGED BABY MEDICAL MALPRACTICE CASE DISMISSED ON SUMMARY JUDGMENT; NO BRAIN INJURY SHOWN AT TIME OF BIRTH (Posted by Brooklyn accident lawyer Gary E. Rosenberg on July 4, 2011)
CALL IT AN ACCIDENT OR CALL IT MEDICAL MALPRACTICE; NEW YORK CITY HOSPITAL INJURES ELDERLY PATIENT (Posted by Brooklyn accident lawyer Gary E. Rosenberg on April 4, 2010)
BROOKLYN PERSONAL INJURY ATTORNEY - MEDICAL MALPRACTICE (Posted by Brooklyn accident lawyer Gary E. Rosenberg on October 20, 2010)
SUMMARY JUDGMENT DISMISSAL OF SOME, BUT NOT ALL, MEDICAL MALPRACTICE CLAIMS FOR BRAIN DAMAGED BABY (Posted by Brooklyn accident lawyer Gary E. Rosenberg on June 20, 2011)
Judgment, Supreme Court, Nassau County (F. Dana Winslow, J.), entered on or about September 28, 2009, in favor of defendants, dismissing the complaint, and bringing up for review an order, same court and Justice, entered on or about May 18, 2009, which granted defendants' oral motion in limine to preclude the testimony of plaintiff's expert and dismiss this medical malpractice action, unanimously reversed, on the law without costs, the motion denied, and the complaint reinstated.
In making their oral motion, after the jury was empaneled and before opening arguments, defendants argued that plaintiff's proposed expert, though a highly qualified registered nurse, lacked the necessary qualifications to give a medical opinion as to the requisite standard of informed consent (see CPLR 4401-a; Orphan v. Pilnik, 15 N.Y.3d 907, 914 N.Y.S.2d 729, 940 N.E.2d 555 [2010] ).
In opposition, plaintiff relied partially upon the deposition testimony of the defendant doctor which was not before the court, and the CPLR 3101(d) disclosure of the nurse's opinion. In addition, plaintiff orally cross-moved to substitute the testimony of a medical doctor for the testimony of the nurse, if the court ruled that plaintiff's offer was inadequate to establish the requisite prima facie claim. Apparently the court gave plaintiff's counsel a break to research the issue of the nurse's qualification to give an opinion under New York law, but did not read the deposition testimony. The court granted defendants' in limine motion and sub silentio denied plaintiff's.
CPLR 4401-a states that "[a] motion for judgment at the end of the plaintiff's case must be granted as to any cause of action for medical malpractice based solely on lack of informed consent if the plaintiff has failed to adduce expert medical testimony in support of the alleged qualitative insufficiency of the consent" (emphasis added).
The grant of dismissal pursuant to CPLR 4401-a was an abuse of discretion, given that the timing of defendants' oral application was not at the end of plaintiff's case, the record on which the court ruled was sparse and the court failed to consider plaintiff's offer to substitute a medical doctor's opinion for the nurse's (see Jean-Louis v. City of New York, 60 A.D.3d 737, 738, 875 N.Y.S.2d 195 [2009] [court erred in dismissing the complaint before the plaintiff had completed her proof]; Greenbaum v. Hershman, 31 A.D.3d 607, 818 N.Y.S.2d 606 [2006] ["plaintiff should have been afforded the opportunity to conclude her case" and present expert medical testimony regarding the qualitative insufficiency of her consent] ).
Because defendants chose to move orally as opposed to making a formal motion on notice, plaintiff had little opportunity to develop a full record and be heard. Moreover, courts favor disposition of cases on the merits rather than on oral application made after a jury is impaneled and waiting (see Murray v. Brookhaven Mem. Hosp. Med. Ctr., 73 A.D.3d 878, 879, 902 N.Y.S.2d 576 [2010]; Williams v. Naylor, 64 A.D.3d 588, 589, 886 N.Y.S.2d 30 [2009] ).
Accordingly, we reverse, deny defendants' motion and reinstate the complaint.
« LANDLORD DOESN'T SHOW IT INSPECTED SLIPPERY BATHROOM FLOOR ON DAY OF ACCIDENT; SUMMARY JUDGMENT DENIED |
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| MEDICAL MALPRACTICE CASE DISMISSAL AFTER JURY SELECTED BUT BEFORE TRIAL STARTED WAS AN ABUSE OF DISCRETION »
Court: Supreme Court, Appellate Division, Second Department, New York.
Case: Augustin Ambrus v. City of New York
Date: July 12, 2011.
Appeal by the defendants, in an action to recover for property damage, from an order of the Supreme Court (Kevin J. Kerrigan, J.), dated February 5, 2010, and entered in Queens County, which denied their motion for summary judgment dismissing the complaint as time-barred.
From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx; Queens Brooklyn accident injury lawyer)
RELATED POSTS:
ACCIDENT VICTIM'S LAWYER BLOWS THREE-YEAR STATUTE OF LIMITATIONS WHILE MESSING WITH ARBITRATION (Posted by Queens injury attorney Gary E. Rosenberg on June 7, 2011)
YOUR CASE CAN BE LOST IF YOUR ACCIDENT LAWYER ISN'T COMPUTER LITERATE (Posted by Queens injury attorney Gary E. Rosenberg on March 30, 2011)
WALL COLLAPSE AT QUEENS CONSTRUCTION SITE KILLS ONE WORKER AND INJURES THREE (Posted by Queens injury attorney Gary E. Rosenberg on January 13, 2011 )
JUDGE ORDERS LI WOMAN TO OPEN UP HER FACEBOOK ACCOUNT (Posted by Queens injury attorney Gary E. Rosenberg on September 28, 2010)
"HEY, WHO STUCK THAT HOLE IN MY UNDERPANTS?" -- POLICE BRUTALITY? -- ATTORNEY FEES (Posted by Queens injury attorney Gary E. Rosenberg on July 1, 2010)
The Court of Appeals has long recognized that CPLR 204(a) tolls the one-year and 90-day statute of limitations governing tort claims against municipal defendants while a motion to serve a late notice of claim is pending. The toll has been held to run from the date an application for leave to serve a late notice of claim is made to the date upon which an order granting that relief goes into effect. The sole issue raised on this appeal is whether, in a situation in which a court declines to sign an initial order to show cause for leave to serve a late notice of claim on procedural grounds, but a subsequent application for the same relief is granted, the period of time in which the earlier application is pending may also be excluded from the limitations period. For the reasons which follow, we conclude that the toll applies to the period in which the initial application is pending and, accordingly, that the Supreme Court properly denied the defendants' motion for summary judgment dismissing the complaint as time-barred.
The plaintiffs, Augustine Ambrus and Katalin Ambrus, own a home located in the Glendale section of Queens. On August 8, 2007, a severe rainstorm caused flooding in the plaintiffs' neighborhood, allegedly due to the negligent repair and maintenance of the New York City sewer system. The plaintiffs claim that the flooding caused drain pipes in their home to burst, covering their basement and first floor with water and raw sewage. Many of the plaintiffs' possessions were allegedly damaged or destroyed, and their home sustained structural damage.
On November 6, 2007, 90 days after the flood, the plaintiffs, who were not yet represented by counsel, completed a form entitled "Property Damage Claim Against the City of New York for Water Damage or Loss." The claim form included several pages in which the plaintiffs listed the specific items of property which had allegedly been damaged or destroyed by the flooding of their home. The plaintiffs mailed the claim form to the New York City Comptroller's office on November 7, 2007, 91 days after the flood, where it was received on either November 8, 2007, or November 9, 2007. By letter dated November 30, 2007, the Comptroller's office informed the plaintiffs that their claim was being disallowed because it "was not filed within 90 days from the date of occurrence as required by the General Municipal Law Section 50-e."
On July 1, 2008, nearly 11 months after the flood, the plaintiffs, now represented by counsel, purchased an index number and submitted an order to show cause to the Queens County Supreme Court Clerk's office seeking leave to serve a late notice of claim on the City of New York and the Department of Environmental Protection. Although not entirely clear from the record, it appears that the order to show cause was rejected for filing. Two days later, on July 3, 2008, the plaintiffs' attorney, in accordance with a directive from the Clerk's office, filed an "updated" order to show cause. The July 3, 2008, order to show cause was assigned to Justice Phyllis Orlikoff Flug. In a memorandum dated July 14, 2008, Justice Flug stated that the "Application for Order to Show Cause is denied with leave to proceed by filing a Notice of Motion," and that "[n]o statutory requirement or justifiable time criticality has been demonstrated to warrant proceeding by Order to Show Cause."
More than three months later, on October 23, 2008, the plaintiffs served the City and the New York City Department of Environmental Protection (hereinafter together the defendants) with a notice of petition and supporting papers seeking, in effect, to deem their attached amended notice of claim timely served. In an order dated March 9, 2009, Justice Flug granted the application, emphasizing that the City had acquired actual notice of the facts underlying the claim within a reasonable time period because the plaintiffs' original notice of claim, which had been filed approximately three days late, "contained specific details of the alleged cause and location of the flood and an itemized list of damages."
Less than one month after their second application was granted, on April 7, 2009, the plaintiffs commenced this action against the defendants.
The defendants subsequently moved for summary judgment dismissing the complaint upon the ground that it was barred by the one-year and 90-day statute of limitations set forth in General Municipal Law § 50-i(1). Although the defendants acknowledged that the statute of limitations was tolled while the plaintiffs' application to deem their amended notice of claim timely served was pending, the defendants argued that even excluding such period, the statute of limitations expired prior to the commencement of this action on April 7, 2009. The plaintiffs opposed the motion, contending that the action was timely commenced because the statute of limitations was also tolled between July 3, 2008, and July 14, 2008, while their initial application to proceed by order to show cause for leave to serve a late notice of claim was pending. Adding together the period when both applications were pending, the plaintiffs calculated that the statute of limitations was tolled for 157 days, and did not expire until April 12, 2009. In reply, the defendants maintained, relying upon the 1989 decision of the Appellate Division, First Department, in Matter of Rieara v. City of N.Y. Dept. of Parks & Recreation (156 A.D.2d 206), that the plaintiffs were not entitled to a toll for the period during which their initial application was pending.
In an order dated February 5, 2010, the Supreme Court denied the defendants' motion for summary judgment, concluding that the action was not time-barred because the statute of limitations was tolled for the periods when both the plaintiffs' initial application for leave to serve a late notice of claim and their second application for the same relief were pending. In its order, the Supreme Court concluded that Rieara was distinguishable because the plaintiffs in that case did not make their second application for leave to serve a late notice of claim until the statute of limitations had already expired, and the primary focus of that decision was whether the second application should relate back to the plaintiffs' timely made initial application.
The sole issue raised on this appeal, upon which the timeliness of this action turns, is whether the plaintiffs were entitled to a toll for the 12-day period from July 3, 2008, when they filed their first order to show cause seeking leave to serve a late notice of claim, to July 14, 2008, when the Supreme Court declined to sign that application on procedural grounds only. Although the defendants concede that the statute of limitations is tolled from the time a plaintiff commences a proceeding to obtain leave to serve a late notice of claim until an order granting that relief goes into effect, they continue to maintain, relying upon Rieara, as well as another First Department decision, that the toll is inapplicable where a motion for such leave has been denied. The defendants argue that, as a matter of policy, "there is no sound reason for courts to toll the time to commence an action against a municipality during the pendency of an unsuccessful application for leave to serve a late notice of claim where the order denying the application is rendered within the Statute of Limitations. In such case, there is no bar to timely renewal of the application." In response, the plaintiffs contend that the toll should apply during each period an application for leave to serve a late notice of claim is under consideration by the court because an action cannot be commenced against municipal defendants until such leave is obtained.
The statute of limitations which governs this action is set forth in General Municipal Law § 50-i(1), which requires tort actions against municipal defendants to be commenced "within one year and ninety days after the happening of the event upon which the claim is based." Since the plaintiffs seek to recover for the property damage that they suffered when their neighborhood flooded on August 8, 2007, their claim accrued, and the limitations period began to run, on that date. Accordingly, in the absence of any tolling periods, as calculated by the defendants, the one-year and 90-day limitations period would have expired on November 5, 2008, more than five months prior to the commencement of this action. However, it is undisputed that the statute of limitations was tolled from October 23, 2008, when the plaintiffs served their second application seeking an order deeming their amended notice of claim timely filed, until March 13, 2009, when the order granting that application was entered. Extending the statute of limitations solely by this additional 142-day period would have required the plaintiffs to commence their action no later than March 27, 2009. Thus, this action, commenced on April 7, 2009, is time-barred unless the plaintiffs are also entitled to a toll for the 12-day period from July 3, 2008, when they filed their "updated" order to show cause for leave to serve a late notice of claim, until July 14, 2008, when the Supreme Court declined to sign their application solely upon the procedural ground that it was unnecessary to proceed by order to show cause.
Nevertheless, Dominguez does not persuade us that the plaintiffs should be denied a toll for the 12-day period in which their first application to proceed by order to show cause for leave to serve a late notice claim was pending. The primary rationale underlying the Court of Appeals' decisions in Barchet and Giblin is that a plaintiff who has failed to serve a timely notice of claim may not properly commence an action against a municipal defendant until leave to serve a late notice of claim has been granted, and that during the period in which such a leave application is pending, the right to commence the action is not solely within the plaintiff's control. Thus, while the application is pending, the plaintiff is effectively prohibited from commencing the action. This rationale applies with no less force to the less commonly encountered situation presented here, where a court declines to sign an initial order to show cause on a purely procedural ground, and a second application is successful. The defendants' argument that the plaintiffs should not be entitled to a toll because the statute of limitations had not yet expired when the Supreme Court declined to sign their initial order to show cause fails to take into account the reasons which underlie the recognition of the toll. Moreover, in Matter of Hickman (75 N.Y.2d at 977), the Court of Appeals rejected a similar contention that the petitioner should be denied the benefit of the toll because she was granted leave to file a late notice of claim against MVAIC about 10 months prior to the expiration of the applicable limitations period.
Since the plaintiffs were effectively prohibited from properly commencing their action during the 12-day period in which their initial application to proceed by order to show cause for leave to serve a late notice of claim was pending, as well as the period during which their second application for similar relief was pending, they were entitled to a toll for both periods. Thus, the Supreme Court properly determined that this action was commenced prior to the expiration of the statute of limitations. To the extent that the First Department's decisions in Matter of Dominquez v. New York City Health & Hosps. Corp. (178 A.D.2d 186) and Matter of Rieara v. City of N.Y. Dept. of Parks & Recreation (156 A.D.2d 206) provide contrary authority, we decline to follow them. Accordingly, the order is affirmed.
« EMPLOYEE WHO VIOLATED EMPLOYMENT CONTRACT CAN'T SUE OLD EMPLOYER BECAUSE NEW EMPLOYER FIRED HIM, AFTER OLD EMPLOYER TATTLED ON EMPLOYEE TO NEW EMPLOYER |
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| QUEENS RESIDENTS GETS BENEFIT OF EARLIER TOLL OF TIME PERIOD TO SUE CITY WHERE THEIR FIRST APPLICATION FOR LEAVE TO SERVE A LATE NOTICE OF CLAIM WAS REJECTED BY COURT »
Case: Margaret Goodyear v. Putnam/Northern Westchester Board of Cooperative Educational Services
Court: Supreme Court, Appellate Division, Second Department, New York.
Date: July 12, 2011
From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx; Queens Brooklyn accident injury lawyer)
Comment: Interesting case, but what seems like an obvious "reach" by the accident victim/plaintiff's attorneys becomes a winner. The plaintiff had an accident and was injured while she was working. She was assisting a handicapped teenager in the bathroom. The teen had a seizure, and plaintiff slipped in a puddle of urine on the bathroom floor while she was trying to help him.
Plaintiff sues the building's owner. So, you may ask, "Where's the negligence" - might she not expect there might be a puddle of urine on a bathroom floor? The right question to ask.
Nevertheless, the landlord can't get out of this case on summary judgment because of a technicality; it did not give evidence about cleaning or inspecting the bathroom on the day of the accident. This should have been easy, because it's likely the bathroom was mopped several times a day. But the landlord's attorneys got out-lawyered. Simple as that.
And, plaintiff also qualifies for Worker's Compensation benefits.
RELATED POSTS:
BAREFOOT IN THE (N.Y.C.) PARK; KIDS GETTING BURNED (Posted by Queens accident attorney Gary E. Rosenberg on July 21, 2008 )
COLLEGE STUDENT FLEEING ROBBERS TUMBLES FROM ROOF; WAS IT AN ACCIDENT OR WAS HE PUSHED? (Posted by Queens accident attorney Gary E. Rosenberg on April 11, 2010)
NO NOTICE OF CONDITION IN SUPERMARKET SLIP AND FALL; ACCIDENT VICTIM LOSES ON SUMMARY JUDGMENT (Posted by Queens accident attorney Gary E. Rosenberg on May 28, 2011)
BROOKLYN TEACHER FAKES STAIRWAY ACCIDENT TO TRY TO SAVE JOB (Posted by Queens accident attorney Gary E. Rosenberg on August 3, 2010)
STATEN ISLAND MAN SLIPS IN STREET, KILLED BY BUS (Posted by Queens accident attorney Gary E. Rosenberg on September 30, 2010)
BAD BALANCE, BRITTLE BONES - ELDERLY ESPECIALLY LIKELY TO GET SERIOUSLY INJURED IN ACCIDENTAL FALLS (Posted by Queens accident attorney Gary E. Rosenberg on February 3, 2011 )
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Liebowitz, J.), entered March 3, 2010, which granted the defendants' motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is denied.
On the morning of July 7, 2006, the plaintiff was employed as a private nurse for a handicapped teenager who attended school at the defendant Pines Bridge Program, which is operated and managed by the defendant Putnam/Northern Westchester Board of Cooperative Educational Services. The plaintiff took her client into a bathroom at the school, where he suffered a seizure. In the course of assisting him, the plaintiff allegedly fell and sustained injuries when she slipped on urine, which was on the floor of the bathroom before she and her client had entered.
A defendant moving for summary judgment in a slip-and-fall case has the burden of establishing, prima facie, that it neither created the alleged hazardous condition nor had actual or constructive notice of its existence (see Arzu v. County of Nassau, 76 AD3d 1036; Perez v. New York City Hous. Auth., 75 AD3d 629; Edwards v Great Atl. & Pac. Tea Co. Inc., 71 AD3d 721). A defendant has constructive notice of a hazardous condition on property when the condition is visible and apparent, and has existed for a length of time sufficient to afford the defendant a reasonable opportunity to discover and remedy it (see Gordon v American Museum of Natural History, 67 N.Y.2d 836, 837). "To meet its initial burden on the issue of lack of constructive notice, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell" ( Birnbaum v New York Racing Assn., Inc., 57 AD3d 598, 598-599; see Schiano v. Mijul, Inc., 79 AD3d 726, 726-727; Farrell v. Waldbaum's, Inc., 73 AD3d 846, 847; Ames v. Waldbaum, Inc., 34 AD3d 607).
Here, the deposition testimony submitted by the defendants in support of their motion for summary judgment merely referred to general cleaning practices and provided no evidence regarding any specific cleaning or inspection of the area in question on the day of the plaintiff's fall. Thus, the defendants failed to establish their prima facie entitlement to judgment as a matter of law (see Schiano v. Mijul, Inc., 79 AD3d at 726-727; Farrell v. Waldbaum's, Inc., 73 AD3d at 847; Birnbaum v New York Racing Assn., Inc., 57 AD3d at 598-599; cf. Perez v. New York City Hous. Auth., 75 AD3d at 630). The defendants' failure to meet their prima facie burden required denial of their motion, regardless of the sufficiency of the plaintiff's papers in opposition (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324).
The plaintiff commenced this action alleging, inter alia, that the defendants had actual or constructive notice of a hazardous condition and failed to remedy it. The defendants moved for summary judgment dismissing the complaint, and the Supreme Court granted the motion, determining that the defendants had established prima facie entitlement to judgment as a matter of law and the plaintiff had failed to raise a triable issue of fact. We reverse.
« PLAINTIFF WHO FALLS IN STREET BUT CAN'T IDENTIFY DEFECT LOSES CASE ON SUMMARY JUDGMENT MOTION |
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| LANDLORD DOESN'T SHOW IT INSPECTED SLIPPERY BATHROOM FLOOR ON DAY OF ACCIDENT; SUMMARY JUDGMENT DENIED »
Court: Supreme Court, Appellate Division, Second Department, New York.
Case: Smith v. Meridian Technologies, Inc.
Date: July 12, 2011.
From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx; Queens Brooklyn accident injury lawyer)
Comment: Very interesting non-accident case, but a commercial injury-type fight. In 2006 plaintiff quit his job with defendant to work elsewhere. Defendant wrote plaintiff's new employer to tell it that plaintiff was violating his agreement with defendant not to compete with it if he left his employment by defendant and, also, that he might be breaching his agreement to keep confidential the trade secrets (about video transmission by fiber optic cables) that he learned while working for defendant. Suitably warned, the new employer washed its hands of plaintiff, letting him go. This lawsuit followed.
RELATED POSTS:
NORTH FACE TRYING TO KICK BUTT OF CLOTHING MAKER THE SOUTH BUTT; REALLY, WHAT'S THE HARM? (Posted by Queens injury lawyer Gary E. Rosenberg on January 17, 2010)
SCARY STUFF THAT HAS NOTHING TO DO WITH ACCIDENTS, INJURIES, OR PEOPLE PHYSICALLY HURT, BUT HURT FINANCIALLY IS ANOTHER MATTER ENTIRELY (Posted by Queens injury lawyer Gary E. Rosenberg on October 9, 2008)
NO ACCIDENT THAT THESE TWO WENT INTO BUSINESS TOGETHER (Posted by Queens injury lawyer Gary E. Rosenberg on March 26, 2008)
ATTORNEY HID BUSINESS ASSETS FROM CLIENT'S WIFE IN DIVORCE CASE (Posted by Queens injury lawyer Gary E. Rosenberg on December 13, 2007)
LANCE ARMSTRONG FOUNDATION SUES OKLAHOMA PET COLLAR COMPANY (Posted by Queens injury lawyer Gary E. Rosenberg on November 28, 2007)
In an action, inter alia, to recover damages for prima facie tort and intentional interference with prospective contractual relations, and for a judgment declaring that the restrictive covenants in the parties' employment agreement are unenforceable, the plaintiff appeals from an order of the Supreme Court, Nassau County (Brandveen, J.), dated June 25, 2010, which granted the defendants' motion, in effect, for summary judgment dismissing the first, second, third, and sixth causes of action, and for a declaration that the restrictive covenants in the parties' employment agreement are enforceable, and denied his cross motion for summary judgment on the complaint.
ORDERED that the order is affirmed, with costs, and the matter is remitted to the Supreme Court, Nassau County, for the entry of a judgment, inter alia, declaring that the restrictive covenants in the parties' employment agreement are enforceable.
The plaintiff commenced this action, inter alia, to recover damages for prima facie tort and intentional interference with prospective contractual relations. This action arises from events that occurred in 2006, when the plaintiff resigned from a position as a vice president for sales development at the defendant Meridian Technologies, Inc. (hereinafter Meridian). The plaintiff executed an employment agreement while he was employed at Meridian which provided, among other things, that during and after the period of the plaintiff's employment, he would not reveal any "Confidential Information or Trade Secrets" to any entity. The agreement also provided that, for a period of two years after the plaintiff "terminated ... th[e] agreement," the plaintiff would not be employed at "any business, which researches, designs, develops, manufactures, sells or deals in any way with the technology of video transmission systems via fiber optic cables."
In late June 2006, the plaintiff resigned from Meridian. Several days later, he began working for another company, Multidyne, Inc. (hereinafter Multidyne). In August 2006 the managing director of Meridian, the defendant Michael C. Barry, sent a letter to the plaintiff, and also sent a copy of that letter to the president of Multidyne. That letter alleged, among other things, that the plaintiff had "exploited confidential trade secrets" of Meridian during his employment at Multidyne. Approximately one week later, counsel for Meridian sent another letter to the plaintiff; a copy of that letter was also sent to the president of Multidyne. That letter stated, inter alia, that the plaintiff's employment at Multidyne was in violation of the noncompetition provision of his employment agreement with Meridian. Shortly after the second letter was received, the plaintiff's employment at Multidyne was terminated, and this action ensued.
The Supreme Court did not err in granting that branch of the defendants' motion which was for summary judgment dismissing the cause of action to recover damages for prima facie tort. The requisite elements of a cause of action sounding in prima facie tort are: "(1) the intentional infliction of harm, (2) which results in special damages, (3) without any excuse or justification, (4) by an act or series of acts which would otherwise be lawful" ( Freihofer v. Hearst Corp., 65 N.Y.2d 135, 142-143; see Curiano v. Suozzi, 63 N.Y.2d 113, 117-118; Del Vecchio v. Nelson, 300 A.D.2d 277, 278; Levy v. Coates, 286 A.D.2d 424). "[T]here is no recovery in prima facie tort unless malevolence is the sole motive for defendant's otherwise lawful act," that is, "unless defendant acts from 'disinterested malevolence' " ( Burns Jackson Miller Summit & Spitzer v. Lindner, 59 N.Y.2d 314, 333, quoting American Bank & Trust Co. v. Federal Reserve Bank of Atlanta, 256 U.S. 350, 358). For purposes of a cause of action to recover damages for prima facie tort, " 'the genesis which will make a lawful act unlawful must be a malicious one unmixed with any other and exclusively directed to injury and damage of another' " ( Burns Jackson Miller Summit & Spitzer v. Lindner, 59 N.Y.2d at 333, quoting Beardsley v.. Kilmer, 236 N.Y. 80, 90). Thus, " '[a] claim of prima facie tort does not lie where the defendant's action has any motive other than a desire to injure the plaintiff' " ( Weaver v. Putnam Hosp. Ctr., 142 A.D.2d 641, 641-642, quoting Global Casting Indus. v. Daley-Hodkin Corp., 105 Misc.2d 517, 522).
Here, the evidence showed that, in sending the subject letters, the defendants did not act solely based on disinterested malevolence, as, inter alia, the defendants alleged in those letters that the plaintiff's employment at Multidyne, a company engaged in the sale of fiberoptic video transmission equipment, violated the terms of the covenants not to compete set forth in the plaintiff's employment agreement with Meridian. In opposition to that showing, the plaintiff failed to raise a triable issue of fact as to whether the defendants' actions were solely motivated by disinterested malevolence. Accordingly, the Supreme Court properly granted that branch of the defendants' motion which was for summary judgment dismissing the cause of action to recover damages for prima facie tort (see Burns Jackson Miller Summit & Spitzer Lindner, 59 N.Y.2d at 333-334; Simaee v. Levi, 22 AD3d 559, 562-563; Lynch v. McQueen, 309 A.D.2d 790, 792; see also Bainton v. Baran, 287 A.D.2d 317, 318).
The Supreme Court also properly granted that branch of the defendants' motion which was for summary judgment dismissing the causes of action to recover damages for intentional interference with prospective contractual relations. To establish a defendant's liability for damages for tortious interference with prospective contractual relations, the plaintiff must show that the defendant engaged in wrongful conduct which interfered with a prospective contractual relationship between the plaintiff and a third party. As a general rule, such wrongful conduct must amount to a crime or an independent tort, and may consist of "physical violence, fraud or misrepresentation, civil suits and criminal prosecutions" ( Guard-Life Corp. v. Parker Hardware Mfg. Corp., 50 N.Y.2d 183, 191). Such wrongful conduct may include "some degrees of economic pressure;" however, "persuasion alone" is not sufficient (id. at 191; see Lyons v. Menoudakos & Menoudakos, P.C., 63 AD3d 801, 802). Here, in light of, inter alia, the covenants not to compete set forth in the employment agreement between Meridian and the plaintiff, and the evidence showing that Meridian and Multidyne were both engaged in the sale of fiberoptic video equipment, the defendants showed, prima facie, that they did not engage in wrongful conduct for purposes of this cause of action, and the plaintiff failed to raise a triable issue of fact (see Adler v. 20/20 Cos., 82 AD3d 915, 918; BGW Dev. Corp. v. Mount Kisco Lodge No. 1552 of Benevolent & Protective Order of Elks, of U.S. of Am., 247 A.D.2d 565, 567-568).
The Supreme Court properly granted that branch of the defendants' motion which was for summary judgment dismissing the cause of action to recover damages for breach of contract, as the defendants showed, prima facie, that they did not breach the parties' employment agreement, and the plaintiff failed to raise a triable issue of fact as to whether the defendants failed to comply with any specific obligations under that agreement (see Morales v. County of Suffolk, 82 AD3d 1184, 1185-1186).
The Supreme Court did not err in granting that branch of the defendants' motion which was, in effect, for summary judgment declaring that the restrictive covenants in the parties' employment agreement are enforceable. The defendants showed, prima facie, that those clauses were enforceable under the circumstances presented herein, and the plaintiff failed to raise a triable issue of fact in opposition to that showing (see Michael G. Kessler & Assoc. v. White, 28 AD3d 724, 725; see also Stiepleman Coverage Corp. v. Raifman, 258 A.D.2d 515, 516).
Since this is, in part, a declaratory judgment action, the matter must be remitted to the Supreme Court, Nassau County, for the entry of a judgment, inter alia, declarating that the restrictive covenants in the parties' employment agreement are enforceable (see Lanza v. Wagner, 11 N.Y.2d 317, 334, appeal dismissed, 371 U.S. 74, cert denied 371 U.S. 901).
QUEENS COUNTY COMMUNITIES
Serving Queens neighborhoods of: Arverne, Astoria, Auburndale, Bayside, Beechhurst, Bellaire, Belle Harbor, Bellerose, Blissville, Breezy Point, Briarwood, Broad Channel, Cambria Heights, College Point, Corona, Douglaston, East Elmhurst, Edgemere, Elmhurst, Far Rockaway, Flushing, Forest Hills, Fresh Meadows, Fresh Pond, Glen Oaks, Glendale, Hillcrest, Hollis, Holliswood, Howard Beach, Hunters Point, Jackson Heights, Jamaica, Jamaica Estates, Jamaica Hills, Kew Gardens, Laurelton, Lefrak City, Linden Hill, Lindenwood, Little Neck, Long Island City, Malba, Maspeth, Middle Village, Murray Hill, Neponsit, Oakland Gardens, Ozone Park, Pomonok, Queens Village, Queensboro Hill, Rego Park, Richmond Hill, Ridgewood, Rockaway Park, Rockaway Point, Rosedale, Saint Albans, Seaside, South Jamaica, South Ozone Park, Springfield Gardens, Steinway, Sunnyside, Utopia, Wave Crest, Whitestone, Woodhaven and Woodside.
« TWO HEALTHY 21 YEAR-OLDS DROWN IN PUBLIC POOL WHILE DOING MILITARY-STYLE UNDERWATER BREATHING EXERCISES |
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| EMPLOYEE WHO VIOLATED EMPLOYMENT CONTRACT CAN'T SUE OLD EMPLOYER BECAUSE NEW EMPLOYER FIRED HIM, AFTER OLD EMPLOYER TATTLED ON EMPLOYEE TO NEW EMPLOYER »
Court: Supreme Court, Appellate Division, First Department, New York
Case: Joan C. Siegel, as Administrator of the Estate of Jerome Siegel v. The City of New York
Date: July 14, 2011.
From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx; Queens Brooklyn accident injury lawyer)
Comment: This is an old rule. If you can't say what caused you to fall or have your accident, you can't win. Period.
Plaintiff's decedent was injured in an accident on May 7, 2001 when he fell in the roadway while crossing at the intersection of 68th Street and York Avenue in Manhattan. He commenced the instant personal injury action alleging that defendants, Empire City Subway Company (ECS) and Westmoreland Construction, Inc. (Westmoreland), who had previously performed work in that area, negligently maintained the roadway and/or created the defective condition that caused his fall. The decedent died on March 14, 2010 and there is no indication that his death is related to this accident which occurred nine years prior.
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YOUR CASE CAN BE LOST IF YOUR ACCIDENT LAWYER ISN'T COMPUTER LITERATE (Posted by Queens accident lawyer Gary E. Rosenberg on March 30, 2011)
ABUTTING OWNER NOT LIABLE FOR ACCIDENT AT JUST-BUILT TREE WELL; SUMMARY JUDGMENT GRANTED TO DEFENSE (Posted by Queens accident lawyer Gary E. Rosenberg on June 27, 2011)
BROOKLYN PEDESTRIAN/CROSSWALK & BICYCLE ACCIDENT ATTORNEY (Posted by Queens accident lawyer Gary E. Rosenberg on May 1, 2011)
LAWYER SUSPENDED FOR FORGING ACCIDENT CLIENT'S SIGNATURE ON RELEASE FORMS (Posted by Queens accident lawyer Gary E. Rosenberg on May 31, 2011)
BROOKLYN TEACHER FAKES STAIRWAY ACCIDENT TO TRY TO SAVE JOB (Posted by Queens accident lawyer Gary E. Rosenberg on August 3, 2010)
At his deposition, the decedent testified that he stepped onto uneven pavement, but did not recall looking down, and did not see any defect in the roadway. The decedent testified that although he began to cross in the designated crosswalk, he changed direction to walk diagonally when he saw an opportunity to cross to a different corner.
The decedent testified as to the general direction he was walking and the side of the street where he fell, but not the actual path he took through the intersection. When asked to identify the defect in a photograph of the roadway, he said, "I am not sure. I'm really not sure." However, in a second photograph, he circled two depressions or cracks. He testified that he was able to identify the defect in the second photograph because he recognized the approximate location where he fell on the eastern side of the street.
A local manager of operations at defendant ECS testified at deposition that ECS performed conduit installation work at the intersection and retained Westmoreland to excavate a two-foot-wide trench, install fiber optic cable, and restore the roadway in September 1997 and April 1998. He further testified that markings on the asphalt indicated that Consolidated Edison utilities run under the purported defect identified by plaintiff, and that ECS's conduit runs parallel and adjacent to the defect. He further testified that the purported defect, described by Westmoreland as a "sink hole," could have been caused by any occurrence that disturbed the sub base of the roadway including a water main break, sewer problems, or soil compaction.
Defendant Westmoreland submitted evidence that there had been a water main leak at the intersection four months prior to the date of plaintiff's accident. The president of Westmoreland testified that the "sink hole" did not appear to be part of the ECS trench.
Although evidence established that the depression or cracks were subsequently patched, a court-ordered search for post-accident repair records from both ECS and Westmoreland showed that the repair was not performed by either defendant. A representative of defendant City of New York testified at deposition that when restoration paving work is found to be defective, including "sinkage," the City issues a request for corrective action to the permittee. The City's representative further testified that a search of its records showed that there were no corrective action requests made in connection with restoration work in the area where the decedent's accident allegedly occurred.
On December 17, 2007, ECS moved for summary judgment dismissing the complaint and all cross claims against it. Four days later, Westmoreland cross-moved for summary judgment dismissing the second third-party complaint.
On May 2, 2008, the motion court granted ECS's and Westmoreland's motions on the grounds that plaintiff failed to raise a triable issue of fact about his accident because he was unable to identify the defect, and failed to submit evidence that properly authenticated his photographs. Plaintiff moved to reargue and renew, but the motion was denied on September 22, 2008.
For the reasons set forth below, the motion court correctly determined that defendants are entitled to summary judgment dismissal of the accident complaints against them. It is well settled that a defendant is entitled to summary judgment as a matter of law when a plaintiff provides testimony that he or she is unable to identify the defect that caused his or her injury (see Rudner v. New York Presbyt. Hosp., 42 AD3d 357 [2007]; Reed v. Piran Realty Corp., 30 AD3d 319 [2006], lv denied 8 NY3d 801 [2007]; Fishman v. Westminster House Owners, Inc., 24 AD3d 394 [2005] ). In this case, the decedent's deposition testimony indicated that he circled the defect in the photograph based on his recognition of the approximate location where he fell--not his recognition of the defect itself. This basis for identification of the defect amounts to the type of "rank speculation" that generally warrants summary judgment dismissal (see e.g. Kane v. Estia Greek Rest., 4 AD3d 189 [2004]; Burnstein v. Mandalay Caterers, 306 A.D.2d 428 [2003] ).
Even had the decedent positively identified the "sink hole" as the defect that caused him to fall, he nevertheless failed, in opposition to defendants' summary judgment motions, to raise a triable issue of fact as to whether defendants caused or created the defect that causd his accident (see Zuckerman v. City of New York, 49 N.Y.2d 557 [1980] ). A plaintiff's "mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" to defeat a defendant's motion for summary judgment (id. at 562).
In the instant case, plaintiff argues that the proximity of the ECS conduit to the alleged defect raises questions as to whether defendants' work caused the defect that contributed to the accident. This argument is unpersuasive, particularly in light of the three years that elapsed between the installation of the conduit and the decedent's fall. Plaintiff's unsupported assertion that it could have been defendants' conduit rather than that of Consolidated Edison or the water main break that caused the purported defect is mere conjecture and fails to raise a triable issue of fact.
« ANOTHER "ASSUMPTION OF THE RISK" SUMMARY JUDGMENT DISMISSAL; FOR SNOWBOARDING ACCIDENT |
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| PLAINTIFF WHO FALLS IN STREET BUT CAN'T IDENTIFY DEFECT LOSES CASE ON SUMMARY JUDGMENT MOTION »
Comment: This is the time of year when I'm usually reporting on pool-drowning accidents. Usually involving small children, I remind pool-owners to fence-in their pools and lock their gates to avoid potentially fatal accidents. And use a pool alarm that triggers if a small child falls in. And if you're in the house and small children are in the pool, that's not good enough. You need to be supervising, not socializing.
But the news piece I mention below - reported in our local newspapers - just takes the cake. Two healthy, strong, 21 year-old young men drowned in an accident. Together. In a public pool.
From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx; Queens Brooklyn accident injury lawyer)
RELATED POSTS:
TODDLER IN CRITICAL CONDITION AFTER STATEN ISLAND DROWNING ACCIDENT (Posted by Brooklyn injury attorney Gary E. Rosenberg on May 30, 2010)
TWELVE YEAR-OLD HARLEM GIRL DROWNS IN TRAGIC BEACH ACCIDENT WHILE ON NYC SCHOOL OUTING (Posted by Brooklyn injury attorney Gary E. Rosenberg on June 26, 2010)
WARM WEATHER COMING: CPSC WARNS ABOUT DROWNING ACCIDENTS (Posted by Brooklyn injury attorney Gary E. Rosenberg on April 27, 2011)
TODDLER CRITICALLY INJURED IN POOL DROWNING ACCIDENT (Posted by Brooklyn injury attorney Gary E. Rosenberg on May 24, 2010)
ELEVEN YEAR-OLD DROWNS IN FRIEND'S POOL IN LONG ISLAND (Posted by Brooklyn injury attorney Gary E. Rosenberg on June 18, 2010)
A PARTICULARLY HORRIBLE WAY TO DROWN (Posted by Brooklyn injury attorney Gary E. Rosenberg on March 1, 2010)
When: Wednesday, July 13, 2011, at about 8:30 AM.
Where: Public swimming pool, Lyons Pool in Staten Island, New York.
What: Two young men who wanted to be Navy SEALS - elite navy combat divers - drowned while practicing breath-holding exercises at a Staten Island pool. One was unconscious when rescued, and the other drowned before he could be taken out of the pool. Two working lifeguards and some 20 swimmers missed seeing the accident.
The two friend were floating face-down in the 3-foot-deep shallow end of the pool and were only spotted when a lifeguard whistled the end of an adult swim session.
Who: Bohdan Vitenko, age 21, died at Richmond University Medical Center. His Air Force-bound buddy, Jonathan Proce, 21, was revived and is in critical condition.
Authorities pointed out that two of the men's friends were also in the water at the time, but were not exercising.
How: Both men, who were in excellent shape, suffered heart attacks. Proce actually worked elsewhere as a New York City lifeguard.
Why: It's not clear if the two were following official training guidelines, or if they had constructed their own workout.
Vitenko and Proce, along with two other friends, worked out regularly at the municipal pool since it opened for the season some two weeks ago.
Their workout included underwater sit-ups and swimming laps.
Either way, the military advises against certain breath-holding exercises or swimming underwater at length to avoid "shallow water blackout," which can lead to drowning.
City Parks Commissioner Adrian Benepe was quoted as saying, that the incident was a "tragic and inconceivable accident."
« OWNER OF ALL-TERRAIN VEHICLE (ATV) CAN RECOVER FOR INJURY IN ACCIDENT FROM HIS PERMISSIVE DRIVER'S NEGLIGENCE |
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| TWO HEALTHY 21 YEAR-OLDS DROWN IN PUBLIC POOL WHILE DOING MILITARY-STYLE UNDERWATER BREATHING EXERCISES »
Court: Supreme Court, Appellate Division, First Department, New York
Case: Walter C. Bedder v. Windham Mountain Partners, LLC
Date: July 7, 2011
From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx; Queens Brooklyn Bronx accident injury lawyer)
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ANOTHER ACCIDENT CASE DISMISSED ON SUMMARY JUDGMENT FOR ASSUMPTION OF THE RISK: ACCIDENT OCCURRED WHILE SLIDING DOWN INFLATABLE SLIDE (Posted by Brooklyn accident attorney Gary E. Rosenberg on July 3, 2011)
ASSUMPTION OF THE RISK BLOCKS HORSEBACK RIDING ACCIDENT CLAIM (Posted by Brooklyn accident attorney Gary E. Rosenberg on June 14, 2011)
INJURED CHEERLEADER ASSUMED RISK; LOSES SUMMARY JUDGMENT TO SCHOOL (Posted by Brooklyn accident attorney Gary E. Rosenberg on May 30, 2011)
ASSUMPTION OF THE RISK TOSSES CASE OF TENNIS PLAYER WHO FALLS ON TORN NET (Posted by Brooklyn accident attorney Gary E. Rosenberg on May 16, 2011)
BASEBALL GAME SPECTATOR ASSUMES RISK & CAN'T SUE FOR ACCIDENT (Posted by Brooklyn accident attorney Gary E. Rosenberg on April 20, 2011)
ROLLERBLADER DID NOT ASSUME RISK OF SIDEWALK ACCIDENT (Posted by Brooklyn accident attorney Gary E. Rosenberg on April 13, 2011)
VICTIMS OF ACCIDENTS AND INJURIES WHILE PLAYING SPORTS OFTEN CAN'T SUE BECAUSE OF LEGAL PRINCIPLE KNOWN AS ASSUMPTION OF THE RISK (Posted by Brooklyn accident attorney Gary E. Rosenberg on December 25, 2010)
Order, Supreme Court, New York County (Paul Wooten, J.), entered November 1, 2010, which granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Plaintiff seeks damages for injuries he suffered in an accident during a snowboarding run down defendants' mountain trail. By engaging in the recreational sport of snowboarding, plaintiff "consent[ed] to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation" ( Whitman v. Zeidman, 16 AD3d 197, 197 [2005] [internal quotation marks and citation omitted] ). Personal injury caused by hitting a stump on the side of the trail, while swerving to avoid another person using the trail, is one of the risks inherent in downhill snowboarding (General Obligations Law § 18-101; Farone v. Hunter Mtn Ski Bowl, Inc., 51 AD3d 601 [2008], lv denied 11 NY3d 715 [2009]; see also Painter v. Peek'N Peak Recreation, 2 AD3d 1289 [2003] ). Plaintiff's expert affidavit was conclusory and therefore insufficient to raise an issue of fact whether defendants' alleged negligent construction and maintenance of the trail created additional risks of an accident not inherent in downhill snowboarding (see Owen v. R.J.S. Safety Equip., 79 N.Y.2d 967, 970 [1992] ).
We have considered plaintiff's remaining argument and find it unavailing.
« NEW YORK LAWYER COMMITS DOMESTIC VIOLENCE IN VIRGINIA; NEW YORK SUSPENDS HIS LAW LICENSE FOR 36 MONTHS |
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| ANOTHER "ASSUMPTION OF THE RISK" SUMMARY JUDGMENT DISMISSAL; FOR SNOWBOARDING ACCIDENT »
Court: Supreme Court, Appellate Division, Second Department, New York
Case: Christopher Mikelinich v. Nicholas Caliandro
Date: July 5, 2011
From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx; Queens Brooklyn Bronx accident injury lawyer)
The sole issue on this appeal is whether the owner of an all-terrain vehicle is barred under Vehicle and Traffic Law § 2411 from recovering damages for personal injuries to himself and damage to his property based on the alleged negligence of a permissive driver of that vehicle. We answer this question in the negative.
RELATED POSTS:
NO "PERMISSIVE USE": CAR IN ACCIDENT DRIVEN WITHOUT PERMISSION, CAR OWNER (AND HER INSURANCE ) LET OUT OF ACCIDENT CASE (Posted by Brooklyn injury lawyer Gary E. Rosenberg on July 11, 2011)
NEW YORK CITY ACCIDENTS: ON FOOT OR IN A VEHICLE, BE CAREFUL! (Posted by Brooklyn injury lawyer Gary E. Rosenberg on March 8, 2011)
TEEN NOT WEARING SEAT BELT DIES WHEN HE'S EJECTED FROM HIS OWN CAR (Posted by Brooklyn injury lawyer Gary E. Rosenberg on January 6, 2011)
HORRIBLE CHAIN COLLISION CAR ACCIDENT: LIVERY RICOCHETS INTO BYSTANDERS WAITING IN BRONX BUS STOP (Posted by Brooklyn injury lawyer Gary E. Rosenberg on August 12, 2010)
ATV RIDERS BEWARE, MEMORIAL DAY WEEKEND AMONG THE DEADLIEST HOLIDAYS FOR ACCIDENTS (Posted by Brooklyn injury lawyer Gary E. Rosenberg on May 28, 2010 )
Factual Background
The plaintiff, Christopher Mikelinich, alleges that on May 3, 2008, he was hit by an all-terrain vehicle (hereinafter the ATV) owned by him and driven by the defendant Nicholas Caliandro, allegedly injuring the plaintiff and causing damage to the ATV. The plaintiff alleged that Caliandro, who was then 17 years old, along with his guardian, the defendant Jefferson K. Martin, stopped by the plaintiff's home and asked if Caliandro could try the plaintiff's ATV, as Martin was contemplating buying one for Caliandro. The plaintiff agreed to allow Caliandro to operate the ATV, and gave him instructions on how to drive it. During a second run around the plaintiff's driveway, Caliandro, as he drove downhill, panicked and engaged the throttle, accelerating to nearly 20 miles per hour. Realizing that Caliandro had lost control of the ATV, the plaintiff ran toward him, intending to strike his hand from the throttle in order to slow the ATV and prevent a collision with a steel, pop-up camper. However, as he neared the ATV, Caliandro made a sharp right turn and struck the plaintiff with the ATV. The plaintiff then brought this action against Caliandro and Martin, alleging, among other things, negligent operation of the ATV and negligent entrustment.
The defendants moved to dismiss the complaint, arguing that since the ATV was used with the plaintiff's permission, Caliandro's negligence was attributable to the plaintiff and, thus, he was barred from recovering under Vehicle and Traffic Law § 2411
The plaintiff opposed the motion, asserting that Vehicle and Traffic Law § 2411 did not bar his action. Relying on Vehicle and Traffic Law § 388, the plaintiff argued that Vehicle and Traffic Law § 2411 should be given the same interpretation, that is, both sections were enacted to expand liability, not curtail it.
In reply, the defendants countered that even if Vehicle and Traffic Law § 2411 was a vicarious liability statute, the plaintiff was still barred from recovering under section 2411, since his own direct negligence in jumping in front of the ATV, regardless of his motivation for doing so, barred recovery.
The Supreme Court granted the motion to dismiss the complaint.
Analysis
Vehicle and Traffic Law § 2411, entitled "Liability for negligence," provides, "Negligence in the use [or] operation of an ATV shall be attributable to the owner. Every owner of an ATV used or operated in this state shall be liable and responsible for death or injury to person or damage to property resulting from negligence in the use or operation of such ATV by any person using or operating the same with the permission, express or implied, of such owner, provided, however, that such operator's negligence shall not be attributed to the owner as to any claim or cause of action accruing to the operator or his legal representative for such injuries or death."
As the parties both recognize, the issue raised with respect to an ATV owner is one of first impression. However, the same issue has been addressed by our courts in the context of an automobile owner. Notably, the wording of Vehicle and Traffic Law § 388 is substantially similar to Vehicle and Traffic Law § 2411. Thus, the touchstone for our analysis of the provision at issue here is Vehicle and Traffic Law § 388 and the related case law interpreting it.
Vehicle and Traffic Law § 388(1), entitled "Negligence in use or operation of vehicle attributable to owner," provides,
"Every owner of a vehicle used or operated in this state shall be liable and responsible for death or injuries to person or property resulting from negligence in the use or operation of such vehicle, in the business of such owner or otherwise, by any person using or operating the same with the permission, express or implied, of such owner."
Prior to the enactment of Vehicle and Traffic Law § 388, at common law, a car owner could only be held liable for the negligence of a permissive operator under agency or respondeat superior theories and, thus, a car owner could avoid liability by claiming that the car was used without his authority or not in his business. Vehicle and Traffic Law § 388 and its predecessors were enacted to change this common-law rule and to impose liability upon the owner of a vehicle for the negligence of a person legally operating the car with the permission, express or implied, of the owner. Further, one of the key policies underlying this provision is that it ensured recourse by injured persons to a financially responsible person, as the car owner can easily carry insurance to cover the risk. "The statute created liability where none previously existed, the nature of that liability being vicarious and its predicate purely statutory." In other words, a car owner was held liable for an accident caused by the negligence of a permissive operator even if the owner himself or herself was free from negligence. The owner and operator are jointly and severally liable. The owner, though, is free to seek indemnification from the negligent operator.
The question then arose as to whether the owner could recover damages for personal injuries and/or property damage he or she sustained as a result of the permissive operator's negligence. In other words, was the permissive operator's negligence imputed to the owner such that the owner was barred from recovering for his or her own damages? In Gochee v. Wagner (257 N.Y. 344), the Court of Appeals held that the negligence of the driver of a motor vehicle had to be imputed to the owner of the vehicle for purposes of the owner's claims against the other driver if the owner was a passenger in the vehicle at the time of the accident. This rationale was grounded on the premise that the owner was present and, thus, he or she could exercise authority and control over the driver's actions at any time. However, as subsequent cases made clear, the driver's negligence would not be imputed to the owner if the action was against the driver himself or herself. The Court of Appeals summarized the rule that emerged as, "[t]he driver's negligence will be imputed to the passenger to defeat his [or her] action whenever the passenger has the exclusive authority to control the operation of the vehicle, except in a case where the driver himself [or herself] is the defendant."
Indeed, in Kalechman, the Court of Appeals overruled Gochee and its progeny. The Court roundly criticized the policies underlying the rule that had emerged. The rule was based on a legal fiction that the owner had the capacity to interfere with the operation of the car, a legal fiction carried over from the days of the horse and buggy where the owner could easily regain control of a horse by reaching over and taking the reins from a negligent driver. Indeed, the Court of Appeals stated, imputed or vicarious contributory negligence was "an illegitimate offspring of the vicarious liability concept." In other words, a rule designed to broaden liability was being used to curtail liability. In place of the former rule, the Court adopted the rule that a passenger's right to recover should not be barred merely because he or she bears some special relationship to the driver.
As a consequence, the Pattern Jury Instructions on the law of vicarious liability reads as follows:
"I have already instructed you that a vehicle owner who is sued as a defendant may, under certain circumstances, be held responsible for the negligence of the driver of the vehicle. However, the principle that the owner may be held responsible for the negligence of the driver does not apply to the owner's own lawsuit to recover for (personal injuries, property damage) sustained by the owner. The owner may recover for (personal injuries, property damages), even though negligence of the driver of the vehicle may have contributed to causing such (injuries, damages). The negligence of the driver, if any, has no effect on whether the owner may recover for (personal injuries, property damages) (PJI 2:250)."
Contrary to the defendants' contention, we discern no basis for interpreting Vehicle and Traffic Law § 2411 differently from Vehicle and Traffic Law § 388. The interpretation the defendants offer, that an owner is barred from recovering against a permissive operator, was rejected long before Kalechman. The language of the two statutes is nearly identical, and the Legislature has used similar language in defining the vicarious liability of vessel owners and snowmobile owners (see Parks, Recreation and Historic Preservation Law § 25 .23; Navigation Law § 48). While the defendants assert that a different interpretation should be given to Vehicle and Traffic Law § 2411 so as to prevent the plaintiff "from profiting by his own actions in causing his alleged injuries," the comparative negligence statute will ensure that the plaintiff will not recover for damages resulting from his [or her] negligence, if any, in causing the accident. Moreover, the defendants' interpretation would subvert the policy behind statutes such as Vehicle and Traffic Law §§ 388 and 2411 by curtailing liability, when they were designed to broaden it.
QUEENS COUNTY COMMUNITIES
Serving Queens neighborhoods of: Arverne, Astoria, Auburndale, Bayside, Beechhurst, Bellaire, Belle Harbor, Bellerose, Blissville, Breezy Point, Briarwood, Broad Channel, Cambria Heights, College Point, Corona, Douglaston, East Elmhurst, Edgemere, Elmhurst, Far Rockaway, Flushing, Forest Hills, Fresh Meadows, Fresh Pond, Glen Oaks, Glendale, Hillcrest, Hollis, Holliswood, Howard Beach, Hunters Point, Jackson Heights, Jamaica, Jamaica Estates, Jamaica Hills, Kew Gardens, Laurelton, Lefrak City, Linden Hill, Lindenwood, Little Neck, Long Island City, Malba, Maspeth, Middle Village, Murray Hill, Neponsit, Oakland Gardens, Ozone Park, Pomonok, Queens Village, Queensboro Hill, Rego Park, Richmond Hill, Ridgewood, Rockaway Park, Rockaway Point, Rosedale, Saint Albans, Seaside, South Jamaica, South Ozone Park, Springfield Gardens, Steinway, Sunnyside, Utopia, Wave Crest, Whitestone, Woodhaven and Woodside.
« NO "PERMISSIVE USE": CAR IN ACCIDENT DRIVEN WITHOUT PERMISSION, CAR OWNER (AND HER INSURANCE ) LET OUT OF ACCIDENT CASE |
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| OWNER OF ALL-TERRAIN VEHICLE (ATV) CAN RECOVER FOR INJURY IN ACCIDENT FROM HIS PERMISSIVE DRIVER'S NEGLIGENCE »
Court: Supreme Court, Appellate Division, First Department, New York
Case: In the Matter of Peter H. Jacoby, a suspended attorney.
Dated: June 28, 2011
Discipline given: 36 month suspension.
From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx; Queens Brooklyn Bronx accident injury lawyer)
Facts: Respondent was admitted to the practice of law in the State of New York by the First Judicial Department on May 12, 1975. Although he has not maintained an office for the practice of law in New York during the period relevant to this matter, he has maintained his registration with the New York bar. At the time of the events in question, respondent was employed by a telecommunications company as an in-house counsel in Washington, D.C., and resided in Virginia.
Comment: Note that even though he committed his offenses in Virginia and they were unrelated to the practice of law, he gets punished because we hold lawyers to a higher standard.
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TAX LAWYER DISBARRED; THE DETAILS ARE JUICY, INDEED (Posted by Brooklyn accident lawyer Gary E. Rosenberg on February 16, 2008)
LAWYER SUSPENDED; GOOD LOVE GONE BAD (Posted by Brooklyn accident lawyer Gary E. Rosenberg on October 16, 2009)
ASSAULTING A FELLOW BAR PATRON COST THIS ATTORNEY HIS LICENSE (AND COST THE OTHER GUY HIS EYE) (Posted by Brooklyn accident lawyer Gary E. Rosenberg on February 3, 2010)
MUSIC TOO LOUD IN RESTAURANT; LAWYER SLUGS GIRL; GETS PUBLIC CENSURE (Posted by Brooklyn accident lawyer Gary E. Rosenberg on September 10, 2010)
By order entered October 6, 2009, this Court, upon the motion of the Departmental Disciplinary Committee: (1) determined that the Virginia felony of unlawful wounding, of which respondent was convicted in 2008, is a "serious crime" as defined by Judiciary Law § 90(4)(d) and 22 NYCRR 603.12; (2) based on the Virginia conviction, immediately suspended respondent from the practice of law pursuant to Judiciary Law § 90(4)(f); and (3) directed respondent to show cause before a Hearing Panel of the Committee, pursuant to Judiciary Law § 90(4)(g), why a final order of censure, suspension or disbarment should not be made against him.
On January 20, 2010, and February 17, 2010, proceedings in this matter were held before a Hearing Panel pursuant to our order of October 6, 2009. The sole issue before the Panel was the appropriate sanction to be imposed on respondent based on his 2008 conviction of a serious crime in another state. The Committee presented no witnesses. Respondent testified on his own behalf and presented the testimony of his psychiatrist.
The 2008 Virginia conviction giving rise to this proceeding was based on respondent's conduct in a domestic dispute with his wife in March of that year. The altercation culminated in respondent striking and restraining his wife, causing physical injuries to her that required medical attention. Respondent was arrested and subsequently pleaded guilty to the felony of unlawful wounding, in violation of Virginia Code § 18.2-51, for which he was sentenced to three years of incarceration with all but 12 months suspended, subject to certain conditions. Upon release from prison in February 2009, respondent was placed on probation until February 2011. An order of protection was also issued, which directed respondent to stay away from his wife and to make restitution to her in the amount of $2,283.43.
In its report dated June 14, 2010, the Hearing Panel noted the following as factors tending to mitigate respondent's culpability: (1) respondent's long and exemplary work record and attestation to his good character from colleagues; (2) the connection of respondent's misconduct to a dysfunctional marital relationship that is now coming to an end through divorce; (3) the initiation of the altercation by respondent's wife; (4) the causal connection between respondent's abusive conduct and his intermittent explosive syndrome, a recognized psychological condition for which he is being treated, and was being treated before the incident; (5) the confinement of respondent's physical aggression to his personal life; and (6) the substantial criminal sanctions, including a period of imprisonment, that have already been imposed on respondent.
At the same time it noted the foregoing mitigating factors, the Hearing Panel noted, as an aggravating factor, respondent's history of domestic violence before the March 2008 incident. In August 2005, based on a physical altercation with his wife that took place in March of that year, respondent pleaded guilty to the crime of simple assault in New Jersey, for which he was sentenced to one year of probation. As a result of that conviction, respondent (who is also a member of the New Jersey bar) was censured by the New Jersey Supreme Court (see In re Jacoby, 188 NJ 384, 908 A.2d 177 [2006] ), and, as a matter of reciprocal discipline, by this Court (see Matter of Jacoby, 42 AD3d 196 [2007] ). In addition, respondent informed the Hearing Panel of another instance in which he struck his wife, this one while they were on vacation in the Carribean in December 2007.
After the hearing, Committee staff argued that respondent should be disbarred, while respondent contended that a two-year suspension would be appropriate. In its report, the Hearing Panel majority, taking into account the mitigating and aggravating factors as set forth above, recommended that respondent receive a suspension of 30 months effective as of October 6, 2009, the date his interim suspension commenced. The dissenting panel member opined that the suspension should terminate at the same time as respondent's probation, in February 2011.
The Committee now seeks an order confirming the findings of fact and conclusions of law of the Hearing Panel in this matter and suspending respondent from the practice of law for not less than 30 months effective the date of this Court's interim suspension order. Respondent cross moves to confirm the Hearing Panel's report as to the recommended sanction and as to most of the findings of fact and conclusions of law but to disaffirm certain findings and conclusions. We now grant the Committee's motion, affirming only in part the Panel's findings of fact and conclusions of law and -- notwithstanding that the Hearing Panel recommended only a 30-month suspension -- suspend respondent from the practice of law for 36 months with effect from the commencement of his interim suspension.
We find, in the exercise of our discretion, that respondent should be suspended for 36 months in view of the gravity of the offense of domestic violence and his prior history of similar misconduct. While respondent may not have engaged in physical aggression in his professional life, it cannot be overemphasized that his abuse of his spouse reflects adversely on his fitness to practice law.
We have considered and rejected the request in respondent's cross motion that we disaffirm certain portions of the Hearing Panel's report.
Accordingly, the Committee's motion should be granted, the Hearing Panel's findings of fact and conclusions of law affirmed in part, and respondent suspended from the practice for a period of 36 months effective October 6, 2009, and until further order of this Court, and respondent's cross motion should be denied to the extent it seeks to confirm the Hearing Panel's recommended sanction and to disaffirm certain portions of the Hearing Panel's report.
« 7 YEAR-OLD BURNT TAKING CUP FROM MICROWAVE; NO NOTICE TO NYC THAT FOSTER HOME WASN'T PROPERLY SUPERVISING (SUMMARY JUDGMENT TO NYC) |
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| NEW YORK LAWYER COMMITS DOMESTIC VIOLENCE IN VIRGINIA; NEW YORK SUSPENDS HIS LAW LICENSE FOR 36 MONTHS »
Court: Supreme Court, Appellate Division, Second Department, New York
Case: Rolando Panteleon v. Florencia Amaya
Date: June 21, 2011
From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx; Queens Brooklyn Bronx accident injury lawyer)
Comment: Under New York State's Vehicle and Traffic Law a car owner is liable for the negligence of a driver of his or her car if that car is in an accident. An exception is if the car was take without the owner's permission, such as if it was stolen. If there is no "permissive use," than the owner is off the hook for the driver's negligence in an accident (also off the hook is the owner's car insurance).
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YOUR CHILDREN MUST ALWAYS BE IN CAR SEATS (Posted by Queens injury attorney Gary E. Rosenberg on June 11, 2008)
PERSONAL INJURY ATTORNEY - TAKE ACTION NOW AND FEEL BETTER (Posted by Queens injury attorney Gary E. Rosenberg on December 13, 2009)
IF YOU THINK HAVING AN ACCIDENT IS BAD, TRY HAVING AN ACCIDENT AFTER YOUR INSURANCE IS CANCELLED (Posted by Queens injury attorney Gary E. Rosenberg on February 21, 2010)
CAR ACCIDENT? HERE'S WHAT YOU NEED TO KNOW ABOUT YOUR INSURANCE (Posted by Queens injury attorney Gary E. Rosenberg on February 7, 2010)
POSSIBLY DRUNK DRIVER HITS TREE AND KILLS PASSENGER IN BRONX CAR ACCIDENT (Posted by Queens injury attorney Gary E. Rosenberg on March 15, 2010)
In an action to recover damages for personal injuries, the defendant Florencia Amaya appeals, as limited by her brief, from so much of an order of the Supreme Court, Suffolk County (Tanenbaum, J.), dated October 1, 2010, as denied her motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against her.
ORDERED that the order is reversed insofar as appealed from, on the law and the facts, with costs, the motion of the defendant Florencia Amaya for summary judgment dismissing the complaint and all cross claims insofar as asserted against her is granted, and the action against the remaining defendant is severed.
Vehicle and Traffic Law § 388(1) provides that the owner of a motor vehicle is liable for the negligence of anyone who operates the vehicle with the owner's express or implied consent (see Country-Wide Ins. Co. v. National R.R. Passenger Corp., 6 NY3d 172, 178; Tsadok v. Veneziano, 65 AD3d 1130, 1132; Headley v. Tessler, 267 A.D.2d 428). There is a presumption that the operator was driving the vehicle with the owner's express or implied consent (see Murdza v. Zimmerman, 99 N.Y.2d 375, 380; Tsadok v. Veneziano, 65 AD3d at 1132). This presumption may be rebutted by "substantial evidence" sufficient to show that the vehicle was not operated with the owner's consent ( Matter of State Farm Mut. Auto. Ins. Co. v. Ellington, 27 AD3d 567, 568; see Manning v. Brown, 91 N.Y.2d 116; Tsadok v. Veneziano, 65 AD3d at 1132; Headley v. Tessler, 267 A.D.2d 428).
On November 8, 2008, the plaintiff, Rolando Panteleon, while operating a vehicle eastbound on Suffolk Avenue in the Town of Islip, was involved in a head-on collision accident with a vehicle operated by the defendant Manrique Canales and owned by the defendant Florencia Amaya. Canales was arrested for driving while intoxicated.
The plaintiff commenced this action against Amaya and Canales. Amaya moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against her. The Supreme Court denied the motion.
Amaya established her prima facie entitlement to judgment as a matter of law based upon the evidence that Canales did not have her consent to operate Amaya's motor vehicle at the time olf the accident, and there was no evidence from which permission or authority could be inferred (see Tsadok v.. Veneziano, 65 AD3d at 1132; Nelson v. Ford Motor Co., 41 AD3d 444, 444-445; Padilla v. Felson, 28 AD3d 530; Cooper v. City of New York, 293 A.D.2d 704; Naidu v. Harwin, 281 A.D.2d 525, 525-526; Sherri v. Gerwell, 262 A.D.2d 394).
Here, it is uncontroverted that Amaya loaned her vehicle the night before the accident to Ever Benitez, a tenant in her home. She never gave Benitez permission to lend the car to anyone else to operate and told Benitez that he could only use it with her permission. Moreover, Benitez testified that he was aware that when he borrowed Amaya's vehicle, he was not to allow anyone else to drive it. The evidence was also uncontroverted that the night before the accident, Benitez picked up Canales in Amaya's vehicle and drove to another friend's house where they drank alcohol. As a result, Benitez decided to sleep over.
According to Benitez's testimony, when he awoke on the day of the accident, the keys to Amaya's vehicle, which had been in his front pants pocket when he fell asleep, were missing, as was Amaya's vehicle. Benitez was informed by his friends that Canales had taken the vehicle while Benitez was sleeping. Benitez went to the police precinct to report the vehicle as stolen, and Amaya, who went to the scene of the accident upon being advised her vehicle was involved in an accident, told the police officer that Canales, whom she had never met before, did not have permission to use her vehicle.
In opposition, the plaintiff failed to raise a triable issue of fact as to implausibility, collusion, or implied permission so as to require the issue of consent to be submitted to a jury (see Country-Wide Ins. Co. v. National R.R. Passenger Corp., 6 NY3d 172; Tsadok v. Veneziano, 65 AD3d at 1132; Padilla v. Felson, 28 AD3d 530; Naidu v. Harwin, 281 A.D.2d at 525-526).
Accordingly, the Supreme Court should have granted Amaya's motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against her.
Moreover, the plaintiff's contention that Amaya's motion was premature and should have been denied pursuant to CPLR 3212(f) is improperly raised for the first time on appeal and, thus, is not properly before this Court (see Aglow Studios, Inc. v. Karlsson, 83 AD3d 747).
« LATE NOTICE OF DOG BITE ACCIDENT LETS INSURANCE CARRIER DISCLAIM COVERAGE |
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| NO "PERMISSIVE USE": CAR IN ACCIDENT DRIVEN WITHOUT PERMISSION, CAR OWNER (AND HER INSURANCE ) LET OUT OF ACCIDENT CASE »
Court: Supreme Court, Appellate Division, First Department, New York.
Case: Jahporanae Moore v. City of New York
Date: June 23, 2011.
From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx; Bronx Brooklyn Queens accident injury lawyer)
Facts: Seven-year-old infant plaintiff sustained severe burns when she spilled on hot water on herself as she was retrieving a mug from the microwave, which was on top of a refrigerator, while in the kinship foster home of her maternal grandmother. Plaintiffs allege that defendants were negligent in failing to properly investigate the foster home despite the biological parents' complaints that the foster home was overcrowded and lacked supervision, and in continuing the placement of the infant in the foster home.
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ABUTTING OWNER NOT LIABLE FOR ACCIDENT AT JUST-BUILT TREE WELL; SUMMARY JUDGMENT GRANTED TO DEFENSE (Posted by Queens accident attorney Gary E. Rosenberg on June 27, 2011)
NO NOTICE OF CONDITION IN SUPERMARKET SLIP AND FALL; ACCIDENT VICTIM LOSES ON SUMMARY JUDGMENT (Posted by Queens accident attorney Gary E. Rosenberg on May 28, 2011)
"OPEN AND OBVIOUS" ARGUMENT DOESN'T WIN SUMMARY JUDGMENT IN CASE WHERE ACCIDENT ON STEP (Posted by Queens accident attorney Gary E. Rosenberg on May 19, 2011)
INJURED WHEN STAIRS COLLAPSE, ACCIDENT VICTIM CAN'T SUE: NO NOTICE OF DEFECT (Posted by Queens accident attorney Gary E. Rosenberg on May 6, 2011)
HIRING HELP AFTER AN ACCIDENT IS A SMART DECISION; FROM A BRONX PERSONAL INJURY ATTORNEY (Posted by Queens accident attorney Gary E. Rosenberg on February 16, 2010)
The City argues that the complaint should be dismissed because, under McLean v. City of New York (12 NY3d 194 [2009] ), the discretionary immunity doctrine absolutely insulated municipalities from tort liability, and the caseworker here acted in a discretionary capacity in allowing infant plaintiff to remain in the foster home. However, it is unnecessary to decide that issue, as, even assuming that such immunity does not apply, plaintiff's complaint should be dismissed.
The court below properly declined to consider the affidavits of infant plaintiff's siblings, as plaintiffs did not disclose those witnesses in response to the City's discovery demands and a prior court order (see Ravagnan v. One Ninety Realty Co., 64 AD3d 481 [2009]; Masucci-Matarazzo v. Hoszowski, 291 A.D.2d 208 [2002] ). In any event, the affidavits do not raise an issue of fact as to proximate causation. Accordingly, the cause of action for negligent supervision should be dismissed.
The record does not demonstrate that defendants had "sufficiently specific knowledge or notice of the dangerous conduct that caused [the] injury" ( Albino v. New York City Hous. Auth., 78 AD3d 485, 490 [2010] ). Nothing indicates that infant plaintiff's biological parents, or any one else ever complained about the foster children's unsupervised use of the microwave to boil water, or that the microwave was placed too high. Nor is there any evidence that defendants were otherwise aware of such conduct. In any event, even assuming that the biological parents' complaints sufficiently alerted defendants to a general lack of supervision in the foster home, the accident was not proximately caused by a lack of supervision, but was the result of the foster mother's "momentary inattention," which was not foreseeable by defendants in the exercise of reasonable care (see id.; McCabe v. Dutchess County, 72 AD3d 145, 151 [2010]; Parker v. St. Christopher's Home, 77 A.D.2d 921 [1980] ).
Plaintiffs' claim alleging violation of Social Services Law § 420 should also be dismissed because the notice of claim failed to allege any facts from which defendants could have gleaned plaintiffs' intention to raise such a claim (see Shmueli v. New York City Police Dept., 295 A.D.2d 271 [2002]; see also O'Brien v. City of Syracuse, 54 N.Y.2d 353, 358 [1981] ).
Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered March 25, 2010, which, insofar as appealed from, denied defendants' motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the motion granted, and the complaint dismissed. The Clerk is directed to enter judgment accordingly.
« ILLEGAL ALIEN CONSTRUCTION WORKER SUFFERS BRAIN DAMAGE IN ACCIDENT; KEEPS MONEY DAMAGES AWARD BASED ON FUTURE TREATMENT IN U.S., NOT ECUADOR |
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| 7 YEAR-OLD BURNT TAKING CUP FROM MICROWAVE; NO NOTICE TO NYC THAT FOSTER HOME WASN'T PROPERLY SUPERVISING (SUMMARY JUDGMENT TO NYC) »
Case: Erwin Zimmerman v. Peerless Insurance Company
Court: Supreme Court, Appellate Division, Second Department, New York.
Date: June 21, 2011
From: New York attorney Gary E. Rosenberg (accident injury attorney and lawyer; serving Brooklyn Queens Bronx)
In an action for a judgment declaring that the defendant, Peerless Insurance Company, is obligated to defend and indemnify the plaintiff, Erwin Zimmerman, in an underlying action entitled Angst v. Zimmerman, pending in the Supreme Court, Suffolk County, under Index No. 12184/07, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Rebolini, J.), dated April 28, 2010, as denied its motion for summary judgment declaring that it is not obligated to defend or indemnify Erwin Zimmerman in the underlying action, and Erwin Zimmerman cross-appeals, as limited by his brief, from so much of the same order as denied his cross motion for summary judgment.
ORDERED that the order is reversed insofar as appealed from, on the law, the defendant's motion for summary judgment declaring that it is not obligated to defend or indemnify Erwin Zimmerman in the underlying action is granted, and the matter is remitted to the Supreme Court, Suffolk County, for the entry of a judgment declaring that the defendant, Peerless Insurance Company, is not obligated to defend and indemnify Erwin Zimmerman in the underlying action entitled Angst v. Zimmerman, pending in the Supreme Court, Suffolk County, under Index No. 12184/07; and it is further,
ORDERED that the order is affirmed insofar as cross-appealed from; and it is further,
ORDERED that one bill of costs is awarded to the defendant.
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UNDERINSURED MOTORIST ARBITRATION STAYED; NOT ENOUGH INSURANCE (Posted by Queens injury lawyer Gary E. Rosenberg on June 16, 2011)
NEW CASE FROM NEW YORK'S HIGHEST COURT: FOR INSURANCE CLAIM, WHEN IS INJURY FROM A CAR ACCIDENT REALLY AN ACCIDENT OR NOT AN ACCIDENT? (Posted by Queens injury lawyer Gary E. Rosenberg on April 1, 2011)
PHARMACIST ERRORS - WHAT YOU DON'T KNOW CAN KILL YOU (Posted by Queens injury lawyer Gary E. Rosenberg on February 24, 2011)
WEARING PANTS TOO LOW NOT ILLEGAL (AND NOT CAUSING ACCIDENT, YET) (Posted by Queens injury lawyer Gary E. Rosenberg on July 29, 2010)
"HAPPY BIRTHDAY TO YOU," "CRASH," "HAPPY BIRTHDAY TO YOU." (Posted by Queens injury lawyer Gary E. Rosenberg on March 19, 2010)
On October 31, 2006, while jogging in Eaton's Neck, Arthur Angst allegedly was bitten by Erwin Zimmerman's dog, which was not on a leash. Angst and Zimmerman had a brief verbal confrontation, during which Zimmerman saw blood on Angst's hand. He offered to pay Angst's medical expenses, but Angst declined, and the two men did not exchange contact information. Zimmerman was aware of an incident several years before, in which his dog had "nipped" a neighbor. Within 48 hours of the incident involving Zimmerman's dog and Angst, the Suffolk County Department of Health requested the dog's vaccination records and informed Zimmerman that the dog would be restricted to Zimmerman's property.
On May 8, 2007, Zimmerman was served with the summons and complaint in the underlying personal injury action. The next day, for the first time, he notified his insurer, Peerless Insurance Company (hereinafter Peerless), of the incident. Zimmerman's insurance policy (hereinafter the policy) required that
"in case of an ... 'occurrence,' the 'insured' will perform the following duties that apply ...
Give written notice to us or our agent as soon as is practical, which sets forth:
(1) The identity of the policy and 'insured';
(2) Reasonably available information on the time, place and circumstances of the ... 'occurrence'; and
(3) Names and addresses of any claimants or witnesses"
The policy defined an "occurrence" as "an accident ... which results, during the policy period, in: ... 'Bodily injury' ..., and "Bodily injury" was defined, in relevant part, as "bodily harm."
By letter dated May 11, 2007, Peerless disclaimed coverage on the ground that Zimmerman had not complied with the notice provisions of the policy. Zimmerman commenced this action seeking a judgment declaring that Peerless was required to defend and indemnify him in the underlying action. Following discovery, Peerless moved, and Zimmerman cross-moved, for summary judgment. The Supreme Court denied the motion and cross motion, and both parties appeal.
"Where an insurance policy requires that notice of an occurrence be given 'as soon as practicable,' notice must be given within a reasonable time in view of all of the circumstances" ( Ponok Realty Corp. v United Natl. Specialty Ins. Co., 69 AD3d 596, 597; see Great Canal Realty Corp. v. Seneca Ins. Co., Inc., 5 NY3d 742, 743; Courduff's Oakwood Rd. Gardens & Landscaping Co., Inc. v Merchants Mut. Ins. Co., 84 AD3d 717, 2011 N.Y. Slip Op 03795 [2d Dept 2011]; Bigman Bros., Inc. v. QBE Ins. Corp, 73 AD3d 1110, 1111; Genova v. Regal Mar. Indus., 309 A.D.2d 733, 734; cf. 120 Whitehall Realty Assoc., LLC v Hermitage Ins. Co., 40 AD3d 719, 721). With respect to policies issued before January 17, 2009 (see Insurance Law § 3420[c][2][A] ), as Zimmerman's was, an insurer could disclaim coverage without regard to prejudice when the insured failed to satisfy the notice condition ( Ponok Realty Corp. v United Natl. Specialty Ins. Co., 69 AD3d at 597; cf. Insurance Law § 3420[a][5]; Waldron v New York Cent. Mut. Fire Ins. Co., 84 AD3d 1480, 2011 N.Y. Slip Op 03704 [3d Dept 2011] ). The insured's failure is seen as " 'a failure to comply with a condition precedent which, as a matter of law, vitiates the contract' " ( Great Canal Realty Corp. v. Seneca Ins. Co., Inc., 5 NY3d at 743, quoting Argo Corp. v Greater N.Y. Mut. Ins. Co., 4 NY3d 332, 339; see Ponok Realty Corp. v United Natl. Specialty Ins. Co., 69 AD3d at 597; Sputnik Rest. Corp. v. United Natl. Ins. Co., 62 AD3d 689). Nevertheless, even with respect to claims involving policies in which the insurer was not required to demonstrate prejudice before disclaiming, the insured is permitted to demonstrate the existence of circumstances that would "excuse or explain the insured's delay in giving notice, such as a reasonable belief in nonliability" ( Genova v. Regal Mar. Indus., 309 A.D.2d at 734; see Great Canal Realty Corp. v. Seneca Ins. Co., Inc., 5 NY3d at 743-744; Courduff's Oakwood Rd. Gardens & Landscaping Co., Inc. v Merchants Mut. Ins. Co., AD3d, 2011 N.Y. Slip Op 03795 [2d Dept 2011]; Ponok Realty Corp. v United Natl. Specialty Ins. Co., 69 AD3d at 597). The burden of demonstrating the reasonableness of the excuse lies with the insured (see Bigman Bros., Inc. v. QBE Ins. Corp., 73 AD3d at 1112; Ponok Realty Corp. v United Natl. Specialty Ins. Co., 69 AD3d at 597; Genova v. Regal Mar. Indus., 309 A.D.2d at 734).
Generally, the existence of a good faith belief that the injured party would not seek to hold the insured liable and the reasonableness of such belief are questions of fact, but summary judgment may be awarded to the insurer if, construing all inferences in favor of the insured, the evidence establishes as a matter of law that the insured's belief in nonliability was unreasonable or in bad faith (see Courduff's Oakwood Rd. Gardens & Landscaping Co., Inc. v Merchants Mut. Ins. Co., AD3d, 2011 N.Y. Slip Op 03795 [2d Dept 2011]; Ponok Realty Corp. v United Natl. Specialty Ins. Co., 69 AD3d at 597; Bigman Bros., Inc. v. QBE Ins. Corp., 73 AD3d at 1111).
Here, Peerless established its prima facie entitlement to judgment as a matter of law that Zimmerman's failure to notify Peerless for six months was not based on a reasonable or good faith belief in nonliability by demonstrating that Zimmerman knew immediately that his dog allegedly bit Angst and that Angst may have been injured by the bite. Indeed, Zimmerman knew within 48 hours that a complaint had been made about the incident, even if he did not know Angst's identity. In addition, Zimmerman knew of at least one substantiated incident involving his dog prior to the incident with Angst (see Steinberg v. Hermitage Ins. Co., 26 AD3d 426, 427; C.C.R. Realty of Dutchess v New York Cent. Mut. Fire Ins. Co., 1 AD3d 304, 305; 120 Whitehall Realty Assoc., LLC v. Hermitage Ins. Corp., 40 AD3d at 721; cf. Courduff's Oakwood Rd. Gardens & Landscaping Co., Inc. v Merchants Mut. Ins. Co., AD3d, 2011 N.Y. Slip Op 03795 [2d Dept 2011]; Ponok Realty Corp. v United Natl. Specialty Ins. Co., 69 AD3d at 597; Sputnik Rest. Corp. v. United Natl. Ins. Co., 62 AD3d at 689). Consequently, the burden shifted to Zimmerman to raise a triable issue of fact as to whether there existed a reasonable excuse for his delay in notifying Peerless (see Ponok Realty Corp. v United Natl. Specialty Ins. Co., 69 AD3d at 597; Sputnik Rest. Corp. v. United Natl. Ins. Co., 62 AD3d at 689). Even construing all inferences in favor of Zimmerman, he failed to raise a triable issue of fact (see Hanson v. Turner Constr. Co., 70 AD3d 641, 643; 120 Whitehall Realty Assoc., LLC v Hermitage Ins. Corp., 40 AD3d at 721; Steinberg v. Hermitage Ins. Inc., 26 AD3d at 427; C.C.R. Realty of Dutchess v New York Cent. Mut. Fire Ins. Co., 1 AD3d at 305). We reject Zimmerman's argument that the policy was ambiguous as to whether he was obligated to give notice of the occurrence before learning of the possible claimant's identity (see Magistro v. Buttered Bagel, Inc., 79 AD3d 822). Accordingly, the Supreme Court erred in denying Peerless' motion for summary judgment declaring that it is not obligated to defend or indemnify Zimmerman in the underlying action. In light of this determination, the Supreme Court properly denied Zimmerman's cross motion for summary judgment.
« FALSE ARREST CASE DISMISSED; PLAINTIFF HAD NO DRIVER'S LICENSE, LACK OF CAR INSURANCE NOT AN ISSUE |
Main
| LATE NOTICE OF DOG BITE ACCIDENT LETS INSURANCE CARRIER DISCLAIM COVERAGE »
Court: Supreme Court, Appellate Division, First Department, New York.
Case: Angamarca v. N.Y.C. Partnership Housing Development Fund, Inc.
Date: June 21, 2011
From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx; Brooklyn Queens accident injury lawyer)
Comment: Jury awarded accident victim construction worker $16 Million Dollars to cover his future medical care, based on U.S. costs. Should defense have been permitted to inform the jury of the plaintiff's nationality and the limited duration of his intended stay in the U.S. The majority says "no." The dissent says, "yes."
RELATED POSTS:
BRAIN DAMAGED BABY MEDICAL MALPRACTICE CASE DISMISSED ON SUMMARY JUDGMENT; NO BRAIN INJURY SHOWN AT TIME OF BIRTH (Posted by Queens accident lawyer Gary E. Rosenberg on July 4, 2011)
A WORD TO ACCIDENT ATTORNEYS ABOUT SNATCHING DEFEAT (IN A PERSONAL INJURY CASE) FROM THE JAWS OF VICTORY: IN OTHER WORDS, LOSING AN ACCIDENT CASE THAT YOU WERE ON THE VERGE OF WINNING (Posted by Queens accident lawyer Gary E. Rosenberg on October 29, 2009)
PERSONAL INJURY AND ACCIDENT ATTORNEY - SERVING JUSTICE (Posted by Queens accident lawyer Gary E. Rosenberg on January 18, 2010)
CONSTRUCTION WORKER SERIOUSLY INJURED IN BROOKLYN BUILDING COLLAPSE (Posted by Queens accident lawyer Gary E. Rosenberg on March 29, 2010)
POSSIBLE NEW YORK LABOR LAW VIOLATIONS LEAD TO ACCIDENTAL FALL OF CONSTRUCTION WORKER AT WORLD TRADE CENTER (Posted by Queens accident lawyer Gary E. Rosenberg on March 9, 2010)
This action arises out of a construction site accident. Plaintiff, an undocumented alien from Ecuador, emigrated to the United States in 2001. In 2002, plaintiff was hired as a construction worker by third-party defendant Roadrunner Construction Corp., despite its knowledge of his immigration status. Roadrunner never requested a social security number from plaintiff and paid him in cash or by check, and never withheld any payroll taxes from his wages.
On October 30, 2003, plaintiff was working on a construction project in which townhouses were being built by Jefferson Townhouses, LLC (Jefferson,) the owner of the property, which had hired Roadrunner to do carpentry work. Plaintiff was performing his work on the roof of a townhouse, framing a 30-foot wall outside of the unit, when he fell two stories to the second floor through an improperly covered opening in the roof. Plaintiff sustained severe injuries, including traumatic brain injury and multiple fractures of the vertebrae.
On November 2, 2004, plaintiff commenced this action against Jefferson, among others. This Court found that plaintiff was entitled to partial summary judgment on liability based upon the violation of Labor Law § 240(1).
Meanwhile, the matter proceeded to trial on damages, at the conclusion of which, the jury found that plaintiff sustained total damages in the sum of $20 million: 1) $100,000 for past pain and suffering, including loss of enjoyment of life; 2) $1,531,172 for past medical expenses; 3) $74,013 for past loss of earnings; 4) $1,000,000 for future pain and suffering, including loss of enjoyment of life for 40 years; 5) $16,721,684 for future medical expenses for 40 years; 6) $573,131 for future loss of earnings for 23 years.
Jefferson appeals from the judgment seeking a new trial on the ground that the trial court improperly precluded it from cross-examining plaintiff and other witnesses about plaintiff's immigration status and his desire, expressed prior to the instant accident, of returning to Ecuador after he had earned enough money in the United States. Defendant argues that the jury should have been allowed to consider such evidence in determining its award of future lost earnings and medical costs. Defendant also argues that the damage award for future medical expenses was excessive. Plaintiff cross appeals, contesting the adequacy of the damage award for past and future pain and suffering.
Any argument, by defendant, that plaintiff was subject to deportation to Ecuador or had expressed an interest, prior to the accident, in some day returning to Ecuador, in an effort to suggest that plaintiff would incur lower medical expenses in Ecuador than in the United States, would also have been inappropriate. Contrary to the dissent's suggestion, defendant proffered no evidence that deportation was anything other than a speculative or conjectural possibility. The speculation that plaintiff might at some point be deported or voluntarily return to Ecuador was so remote that it rendered the issue of citizenship of scant probative value to the calculation of damages.
Moreover, defendant does not dispute that it was not prepared to show relevant evidence at trial that, had plaintiff returned to his native country, his future medical expenses would have been lower than those awarded by the jury. In fact, the trial court precluded purported expert testimony on this very same issue because of its belated disclosure--less than a week before trial. Defendant does not contest that ruling in this appeal. Significantly, defendant was not prepared to present evidence from any source that would have guided the jury in determining whether plaintiff's future medical expenses would have been lower in Ecuador, and to what extent, than those awarded by the jury. Thus, under the unique facts of this case, the jury's determination of future medical expenses in Ecuador would have been mere speculation.
We turn to the issue of damages. The award of $100,000 for past pain and suffering and $1 million for future pain and suffering over 40 years deviates materially from for what would be reasonable compensation under the circumstances. The record shows that at the time of the accident, plaintiff was 34 years old and suffered traumatic brain injury and multiple fractures of the vertebrae, as well as rib fractures, leg fractures, and a wrist fracture. Because plaintiff's spinal fractures placed him at risk for paralysis, he was kept on bed rest during his entire six-week hospital stay. During this period, medical personnel withheld pain medication so that they could perform a proper neurological assessment, which included deliberately and repeatedly inflicting pain to identify a change in plaintiff's level of consciousness.
Plaintiff's head injuries required surgery to remove the contused part of his brain and a portion of his skull to reduce pressure. Specifically, the surgeon removed a bone flap from plaintiff's skull and cut away a portion of the right temporal lobe, as well as other portions of the brain
In view of the devastating injuries and the deteriorating quality of life suffered by plaintiff, we find the sums of $1.5 million and $3.5 million, respectively, for past and future pain and suffering, to be a more appropriate award.
In view of testimony that plaintiff will would need around-the-clock care and rehabilitation services for the remainder of his life, the $16,721,684 award for future medical expenses over a projected 40-year period is not so disproportionate to what constitutes reasonable compensation as to warrant reduction. We have reviewed the remaining issues raised by defendant and find them unavailing.
TOM, J.P. (dissenting in part).
I respectfully take issue with the proposition expounded by the majority in this case that an alien worker's lack of permanent resident status is immaterial to his recovery of the cost of future medical treatment. The majority's conclusion that the immigration status of plaintiff is irrelevant to the award of damages for future medical expenses represents a wholly unwarranted extension of the Court of Appeals' ruling in Balbuena v. IDR Realty LLC (6 NY3d 338 [2006] ).
By precluding evidence concerning where medical services are to be provided, the trial court improperly withheld material evidence from the jury, preventing a fair appraisal of the future cost of plaintiff's care.
Balbuena does not address, let alone limit, consideration of a plaintiff's immigration status in regard to any item of damages. Nor has the Court of Appeals suggested that disputes must be resolved without regard to a litigant's immigration status; when material to the issue at bar, the Court has not hesitated to consider it, in one instance finding it dispositive of rights afforded by New York law.
Despite plaintiff's testimony at his examination before trial that he intended to work only for a few years in the United States, save some $20,000 and then return to his native Ecuador, where his family resides, plaintiff's experts presented evidence of the cost of his future medical care based exclusively on the cost of treatment in the United States. Thus, the trial court permitted the jury to assess damages on the untoward assumption that plaintiff would remain in this country indefinitely and be subject to our prevailing cost of medical care, the most expensive in the world.
The trial court broadly forbade defendants from informing the jury that plaintiff "is not a resident alien here," stating without elaboration that it would be "too prejudicial and too speculative." Ignored by this analysis is the prejudice to the defense in being unable to dispel the obvious misimpression that plaintiff is a permanent resident.
The operative question before this Court is whether appellant should have been permitted to inform the jury of plaintiff's nationality and the limited duration of his intended stay. By adopting the trial court's reading of Balbuena, the majority sets an unfortunate precedent without support in either law or logic.
In sum, it is not prejudicial to require that a plaintiff present the jury with an accurate portrayal of the likely cost of his future medical treatment, wherever it is to be rendered. To the contrary, it is unfair to prevent a defendant from putting a plaintiff to his proof by precluding the defense from presenting facts material to the accurate assessment of damages.
« BRAIN DAMAGED BABY MEDICAL MALPRACTICE CASE DISMISSED ON SUMMARY JUDGMENT; NO BRAIN INJURY SHOWN AT TIME OF BIRTH |
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| ILLEGAL ALIEN CONSTRUCTION WORKER SUFFERS BRAIN DAMAGE IN ACCIDENT; KEEPS MONEY DAMAGES AWARD BASED ON FUTURE TREATMENT IN U.S., NOT ECUADOR »
Court: Supreme Court, Appellate Division, Second Department, New York.
Case: Kraut v. City of New York and Hartford Insurance Company
Date: June 21, 2011
From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx; Brooklyn Queens accident injury attorney)
Comment: This is the kind of case that I've gotten calls about before and usually refuse to take. Plaintiff got arrested by the police for driving without a license and without insurance. He also claims that the police "tuned him up," or assaulted and falsely imprisoned him. So he sues the New York City Police Dept. He also sues his insurance company because, he claims, he had paid for insurance and his insurance company messed up.
The appeals court throws the claim against the NYPD and the insurance company.
It seems that he really didn't have a valid driver's license when the cops stopped him and that was why he was arrested, and his insurance had nothing to do with his arrest.
RELATED POSTS:
UNDERINSURED MOTORIST ARBITRATION STAYED; NOT ENOUGH INSURANCE (Posted by Brooklyn injury attorney Gary E. Rosenberg on June 16, 2011)
HIT-AND-RUN BICYCLE ACCIDENT OR CRIME? SHE FOUGHT WITHOUT A LAWYER AND WON CRIME VICTIM'S COMPENSATION (Posted by Brooklyn injury attorney Gary E. Rosenberg on April 22, 2011)
NEW YORK CITY COPS ARREST NINE FOR STAGED 3-CAR ACCIDENT (Posted by Brooklyn injury attorney Gary E. Rosenberg on March 23, 2011)
DRIVER WHO OPEN DOOR AND FORCED BICYCLIST UNDER BUS CHARGED WITH FELONY "LEAVING THE SCENE" (Posted byBrooklyn injury attorney Gary E. Rosenberg on January 31, 2011)
DO WE NEED NEW N.Y.S. CRIMINAL LAW TO PROTECT PEDESTRIANS AND BICYCLISTS FROM NEGLIGENT BUT SOBER NEGLIGENT DRIVERS? (Posted by Brooklyn injury attorney Gary E. Rosenberg on October 21, 2010)
The plaintiff alleged that he was wrongfully arrested by New York City police officers based on their erroneous assertion that he was operating his motor vehicle without insurance or a driver's license. He further alleged that he was assaulted and falsely imprisoned by the police. With regard to his own automobile insurance carrier, Sentinel Insurance Company, Ltd., which was named in the summons and complaint as Hartford Insurance Company (hereinafter the defendant), the plaintiff alleged that the defendant negligently "failed to provide proper documentation that [the] plaintiff's vehicle was duly insured."
The defendant moved pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against it for failure to state a cause of action, contending in part that the factual allegations of the complaint, and the plaintiff's own testimony at a General Municipal Law § 50-h hearing, negated the element of proximate cause which was essential to the negligence claim against it. In the order appealed from, the Supreme Court granted the motion in part and denied it in part. We reverse the order insofar as appealed from.
On a motion to dismiss pursuant to CPLR 3211(a)(7), the motion court must accept the facts alleged in the complaint as true, afford them every reasonable inference favorable to the plaintiff, and determine only whether the facts as alleged fit within any cognizable legal theory. Moreover, if the motion court considers evidentiary material submitted in support of the motion, the inquiry becomes whether the plaintiff has a cause of action, not merely whether he has stated one. On those relatively rare occasions that the submissions on the motion prove that a material fact alleged by the plaintiff is not a fact at all and that no significant dispute exists regarding it, dismissal of the complaint is warranted.
To state a cause of action in negligence, a party must allege the existence of a duty of care owed to the injured party, a breach of that duty, and an injury proximately caused by that breach. Here, the allegations of the complaint itself negated the essential element of proximate cause with regard to the defendant, since the pleading alleged that the plaintiff's arrest was predicated upon the lack of a driver's license in addition to a lack of insurance, and the plaintiff's own General Municipal Law § 50-h hearing testimony established probable cause for his arrest based solely on his lack of a driver's license. Accordingly, there was an independent ground for the plaintiff's arrest, completely unrelated to any purported negligence on the part of the defendant, and any alleged act or omission of the defendant did not proximately cause the plaintiff's injuries.
Furthermore, the plaintiff's hearing testimony demonstrated that the sole basis for his arrest was his lack of a valid driver's license, and that no inquiry was made and no problem was discovered with regard to his insurance documentation at the time of his arrest. This testimony, which constituted a judicial party admission, conclusively refuted the allegation in the complaint that the arrest was premised upon a lack of insurance. Although the plaintiff contends that his hearing testimony should not have been considered because there is no evidence that a transcript of the testimony was received and signed by him, the plaintiff adopted the contents of the transcript by appending it to his sworn bill of particulars and serving it upon the defendants during discovery. Moreover, the affidavit submitted by the plaintiff in opposition to the defendant's motion failed to warrant the denial of the motion.
« ANOTHER ACCIDENT CASE DISMISSED ON SUMMARY JUDGMENT FOR ASSUMPTION OF THE RISK: ACCIDENT OCCURRED WHILE SLIDING DOWN INFLATABLE SLIDE |
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| FALSE ARREST CASE DISMISSED; PLAINTIFF HAD NO DRIVER'S LICENSE, LACK OF CAR INSURANCE NOT AN ISSUE »
Court: Supreme Court, Appellate Division, First Department, New York.
Case: Fernandez v. Joel Moskowitz, M.D.
Date: June 21, 2011.
From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx; Brooklyn Queens accident injury attorney)
Order, Supreme Court, New York County (Joan B. Lobis, J.), entered June 15, 2010, which, in an action alleging medical malpractice relating to the prenatal care and delivery of infant plaintiff, denied defendants' motions for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the complaint dismissed. The Clerk is directed to enter judgment accordingly.
Infant-plaintiff, Marques Fernandez (infant), and his mother, plaintiff Ruth De Los Santos (mother), allege that defendants Dr. Moskowitz and New York University Medical Center (N.Y.UMC) deviated from the standard of care during prenatal care, and labor and delivery, and that defendants failed to obtain informed consent for the emergency caesarean section. As a result of this alleged malpractice, plaintiffs claim infant suffered a hypoxic-ischemic brain injury which has resulted in developmental delays and neurological impairments.
RELATED POSTS:
NO MEDICAL MALPRACTICE WHERE CANCER VICTIM REFUSED TESTS; DOCTOR WINS SUMMARY JUDGMENT (Posted by Brooklyn accident attorney Gary E. Rosenberg on May 29, 2011)
CALL IT AN ACCIDENT OR CALL IT MEDICAL MALPRACTICE; NEW YORK CITY HOSPITAL INJURES ELDERLY PATIENT (Posted by Brooklyn accident attorney Gary E. Rosenberg on April 4, 2010)
200 PATIENTS WHOSE HEART TESTS WERE NEVER REVIEWED BY DOCTORS DIED IN NEW YORK CITY HOSPITAL (Posted by Brooklyn accident attorney Gary E. Rosenberg on May 29, 2010)
BROOKLYN PERSONAL INJURY ATTORNEY - MEDICAL MALPRACTICE (Posted by Brooklyn accident attorney Gary E. Rosenberg on October 20, 2010)
SHE'S 20 YEARS-OLD AND DIED FOR BEAUTY, TRYING TO GET A BIGGER BOOTY (Posted by Brooklyn accident atttorney Gary E. Rosenberg on February 10, 2011)
Mother first saw Dr. Moskowitz on January 2, 2004 for prenatal care. Ultrasounds were performed on February 25, 2004 and April 21, 2004, and both showed that the fetus was growing at a normal rate. The third and final ultrasound was performed on June 30, 2004. It revealed that the fetus's growth rate had changed from the previous two ultrasounds, and that the ratio of head circumference to abdominal circumference was outside the normal range.
Upon delivery on July 4, 2004 the infant cried spontaneously, had normal Apgar scores, and had normal cord blood gases. He was taken to the newborn nursery where he ate well, had good color and muscle tone and did not experience any seizures or other neonatal complications. Mother and infant were discharged from the hospital four days after birth.
Infant proceeded to develop normally during the first year of his life and his pediatric records indicate he was a healthy baby. In November 2005, an MRI of infant's brain, which was done because of an eye condition, yielded normal results. In July 2006, during his two-year-old visit to his pediatrician, the doctor observed some speech delays and behaviors that suggested a developmental disorder on the autism spectrum. The pediatrician referred infant for a comprehensive evaluation by New York City Early Intervention, which diagnosed him with Pervasive Developmental Disorder (PDD). This disorder is within the mild to moderately autistic range. In May 2007, infant underwent another MRI of his brain, and it too yielded normal results. Plaintiffs commenced this medical malpractice action in August 2007, alleging that negligent prenatal care and negligent delivery resulted in a brain injury and developmental delays.
The motion court should have granted defendants' summary judgment motions because plaintiffs did not adequately address defendants' prima facie showing that there was no hypoxic-ischemic brain injury, which occurs when the brain is deprived of oxygen. Plaintiffs were required to establish that Dr. Moskowitz and NYUMC departed from the standard of care in treating plaintiffs and that those departures were the proximate cause of infant's injuries.
Defendants' experts contended that infant's developmental and cognitive delays, separate and apart from PDD, were the result of his eye condition, which is a genetic visual impairment that has a shown association with autism. Additionally, defendants' experts cited infant's normal Apgar scores and cord blood gases as further evidence that he did not suffer a brain injury at birth. Moreover, they noted the two normal MRIs of infant's brain.
Plaintiffs' experts opined that the developmental delays were due to a brain injury, and contended the brain injury occurred as a result of intrauterine growth restriction (IUGR) and a prolapsed umbilical cord. Plaintiffs' obstetrical expert, Dr. Halbridge, alleged that the June 30, 2004 ultrasound evidenced the presence of IUGR, and as a result, infant did not receive enough oxygen to his brain. Dr. Halbridge further alleged that the type of brain injury this infant suffered is commonly subtle at birth and over the first few months of life.
However, Dr. Halbridge failed to refute the MRIs relied on by defendants' experts, both of which yielded normal results, and were administered well past the first few months of infant's life. Indeed, infant developed normally for an extended period of time and did not exhibit signs of delay until he was two years old, facts which remain unexplained by plaintiffs' experts. Both Dr. Halbridge and plaintiffs' expert pediatrician and neurologist, Dr. Trifiletti, in a conclusory fashion, state that infant's developmental delays are not related to his genetic visual impairment, and that the only reasonable etiology is a brain injury that occurred as a result of IUGR and a prolapsed umbilical cord. However, the experts fail, via medically supported assertions, to establish the basis for this conclusion. The mere contention that defendants deviated from the standard of care by failing to diagnose IUGR and not lifting infant's head off of the umbilical cord prior to the emergency caesarean section, does not establish that the alleged deviations were the proximate cause of infant's developmental delays, which appeared two years after the delivery.
The motion court also should have granted summary judgment to defendants on plaintiffs' informed consent claim because plaintiffs were unable to rebut defendants' prima facie showing of lack of proximate cause. Although mother alleges that she was not properly informed after the June 30, 2004 ultrasound that vaginal delivery involved excessive risk, she fails to establish that the decision not to perform a caesarean section on June 30th led to the developmental problems that infant is now experiencing.
« BACKING-UP S.U.V. HITS PEDESTRIANS; KILLS MOTHER IN ACCIDENT, INJURES DAUGHTER |
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| BRAIN DAMAGED BABY MEDICAL MALPRACTICE CASE DISMISSED ON SUMMARY JUDGMENT; NO BRAIN INJURY SHOWN AT TIME OF BIRTH »
Court: Supreme Court, Appellate Division, Second Department, New York.
Case: Reidy v. Raman
Date: June 14, 2011
From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx; Brooklyn Queens accident injury attorney)
Comment: Another "assumption of the risk" case. If you engage in a sporting or recreational activity, you assume the risk of accident and injury. I don't understand why plaintiffs' personal injury lawyers don't get this; they bring these cases and lose, time after time. See my links, below, for assumption of the risk decisions throwing out plaintiffs' cases on summary judgment motions for almost every imaginable sport and recreational activity.
In this case, plaintiff was hurt sliding down an inflatable slide. Her lawyers tried to be extra clever and hired an "expert." I'm guessing that thios expert never saw the slide and gave a typical, "rent-an-expert" opinion, which the appeals court disregarded as "speculative."
Holding: In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Jones, Jr., J.), dated March 11, 2010, which granted the separate motions of the defendants Jeff S. Raman and One Stop Party Rental, Inc., and the defendant Lindenhurst Sport Club, Inc., for summary judgment dismissing the complaint insofar as asserted against each of them.
ORDERED that the order is affirmed, with one bill of costs payable to the respondents appearing separately and filing separate briefs.
RELATED POSTS:
ASSUMPTION OF THE RISK BLOCKS HORSEBACK RIDING ACCIDENT CLAIM (Posted by Brooklyn accident lawyer Gary E. Rosenberg on June 14, 2011)
INJURED CHEERLEADER ASSUMED RISK; LOSES SUMMARY JUDGMENT TO SCHOOL (Posted by Brooklyn accident lawyer Gary E. Rosenberg on May 30, 2011)
ASSUMPTION OF THE RISK TOSSES CASE OF TENNIS PLAYER WHO FALLS ON TORN NET (Posted by Brooklyn accident lawyer Gary E. Rosenberg on May 16, 2011)
ROLLERBLADER DID NOT ASSUME RISK OF SIDEWALK ACCIDENT (Posted by Brooklyn accident lawyer Gary E. Rosenberg on April 13, 2011)
VICTIMS OF ACCIDENTS AND INJURIES WHILE PLAYING SPORTS OFTEN CAN'T SUE BECAUSE OF LEGAL PRINCIPLE KNOWN AS ASSUMPTION OF THE RISK (Posted byBrooklyn accident lawyer Gary E. Rosenberg on December 25, 2010)
BASEBALL GAME SPECTATOR ASSUMES RISK & CAN'T SUE FOR ACCIDENT (Posted by Brooklyn accident lawyer Gary E. Rosenberg on April 20, 2011)
The plaintiff Catherine R. Reidy injured her ankle while sliding down an inflatable slide owned by the defendant One Stop Party Rental, Inc., and erected at an event sponsored by the defendant Lindenhurst Sport Club, Inc. (hereinafter LSC). The injured plaintiff and her husband, suing derivatively, commenced this accident lawsuit against One Stop Party Rental, Inc., and Jeff S. Raman, its owner (hereinafter together One Stop), and LSC. One Stop and LSC separately moved for summary judgment dismissing the complaint insofar as asserted against each of them on the ground, inter alia, that the action was barred by the doctrine of assumption of risk. The Supreme Court granted the motions. We affirm.
"A plaintiff is barred from recovery for injuries which occur during voluntary sporting or recreational activities if it is determined that he or she assumed the risk as a matter of law" ( Leslie v. Splish Splash at Adventureland, 1 AD3d 320, 321; see Morgan v. State of New York, 90 N.Y.2d 471). A voluntary participant in a recreational activity consents to those commonly-appreciated risks which are inherent in and arise out of the nature of such activity generally, and which flow from the participation (see Morgan v. State of New York, 90 N.Y.2d at 484; Leslie v. Splish Splash at Adventureland, 1 AD3d at 321). "[A]thletic and recreative activities possess enormous social value, even while they involve significantly heightened risks ... these risks may be voluntarily assumed to preserve these beneficial pursuits as against the prohibitive liability to which they would otherwise give rise" (Trupia v. Lake George Cent. School Dist., 14 NY3d 392, 395).
One Stop and LSC demonstrated their prima facie entitlement to judgment as a matter of law by presenting evidence that the injured plaintiff understood and voluntarily assumed the risks inherent in the activity at issue (see Leslie v. Splish Splash at Adventureland, 1 AD3d at 321; cf. Trupia v. Lake George Cent. School Dist., 14 NY3d 392). In opposition, the plaintiffs failed to raise a triable issue of fact. Contrary to the plaintiffs' contention, they did not raise a triable issue of fact as to the existence of a dangerous condition over and above the risk inherent in the subject activity (see Leslie v. Splish Splash at Adventureland, 1 AD3d at 321; Loewenthal v. Catskill Funland, 237 A.D.2d 262, 263). Furthermore, the plaintiffs' expert report and affidavit submitted in opposition to the motions did not raise a triable issue of fact because the expert was not qualified to render an opinion as to the condition of the inflatable slide (see Kasner v. Pathmark Stores, Inc., 18 AD3d 440, 441). In any event, the expert's conclusions were speculative (see Leslie v. Splish Splash at Adventureland, 1 AD3d at 321; Van Skyock v. Burlington N.-Santa Fe Co., 265 A.D.2d 545, 546).
Accordingly, the Supreme Court properly granted the separate motions of One Stop and LSC for summary judgment dismissing the complaint insofar as asserted against each of them.
« ONE YEAR TO MOVE TO DISMISS COUNTERCLAIM IN ACCIDENT CASE OR ELSE IT'S DEEMED ABANDONED |
Main
| ANOTHER ACCIDENT CASE DISMISSED ON SUMMARY JUDGMENT FOR ASSUMPTION OF THE RISK: ACCIDENT OCCURRED WHILE SLIDING DOWN INFLATABLE SLIDE »
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DEATH, DEATH AND MORE DEATH IN ONE DAY OF MOTOR VEHICLE ACCIDENTS - CARS, BUSES, TRUCKS AND PEDESTRIANS ALL INVOLVED (Posted by Brooklyn injury lawyer Gary E. Rosenberg on January 6, 2010)
TEENAGE PEDESTRIAN, CROSSING STREET, STRUCK BY AMBULETTE AND DIES FROM INJURIES (Posted by Brooklyn injury lawyer Gary E. Rosenberg on June 11, 2008)
ELDERLY PEDESTRIAN IN CAR ACCIDENT; DIES FROM INJURIES (Posted by Brooklyn injury lawyer Gary E. Rosenberg on April 6, 2008)
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On Thursday, June 30, 2011 a Ford Explorer was backing up on Manhattan's Amsterdam Avenue near 89th Street, trying to grab a parking spot.
A mother and daughter were crossing the street at the time. The mother was killed, the daughter was seriously injured in the accident.
"Two ladies come crossing. They had the right of way. This man just came out of nowhere, just hit them, hit both ladies. The elderly lady took the worst impact because she started bleeding all over the place," said one witness at the scene. "He couldn't wait to get his parking. I don't think he even bothered to look.
This horrible accident happened at around 5:00 in the late afternoon.
The mother, Yolanda Casal, age 78, was thrown through the air and suffered massive head injury. She was pronounced dead at Saint Luke's Hospital.
Casal's daughter, Anais Emmanuel, age 41, suffered broken ribs, and after the accident could only console her dying mother as she lay on the street, surrounded by onlookers.
"Look out! Look out!" a man screamed as the maroon Ford Explorer zipped in reverse along an upper West Side street and headed straight for Yolanda Casal, 78, and her daughter.
"The lady just flew," said David Gomez, 47, who was sitting outside a nearby laundermat.
His friend was the one who had yelled the unheeded warning.
The driver, a New Jersey man, Edwin Carrasco, age 38, remained at the scene, was arrested and charged with driving with a suspended license and other charges related to the accident, the police said.
« CRITICAL INJURY FROM ACCIDENTS: MANHATTAN BICYCLIST HIT BY CAR; 7 YEAR-OLD QUEENS GIRL HIT BY BUS; 6 YEAR-OLD QUEENS GIRL HIT BY DRUNK DRIVER |
Main
| BACKING-UP S.U.V. HITS PEDESTRIANS; KILLS MOTHER IN ACCIDENT, INJURES DAUGHTER »
Case: Giglio v. NTIMP, Inc., doing business as Napper Tandy's Pub
Court: Supreme Court, Appellate Division, Second Department, New York.
Date: June 14, 2011
From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx; Brooklyn Queens accident injury attorney).
Comment: When someone being sued (a defendant) wants to make a claim against the party suing, the defendant serves a document called an "Answer" and includes a "Counterclaim."
DILLON, J.P. These appeals provide an occasion to clarify for the bar issues of timeliness and procedure related to default judgments sought against plaintiffs who fail to reply to defendants' counterclaims.
RELATED POSTS:
LAWSUIT BROUGHT TO GET HOSPITAL RECORDS FOR 75 CENTS PER PAGE (Posted by Queens injury attorney Gary E. Rosenberg on June 22, 2011)
SUMMARY JUDGMENT DENIED IN "DRAM SHOP" CASE (Posted by Queens injury attorney Gary E. Rosenberg on June 15, 2011)
PRODUCTS LIABILITY CASE: BOTTLE CAN'T BE DESTROYED BY TESTING WHERE SWALLOWED GLASS CLAIM (Posted by Queens injury attorney Gary E. Rosenberg on June 9, 2011)
ACCIDENT VICTIM'S LAWYER BLOWS THREE-YEAR STATUTE OF LIMITATIONS WHILE MESSING WITH ARBITRATION (Posted by Queens injury attorney Gary E. Rosenberg on June 7, 2011)
2 HIT & RUN ACCIDENTS - ONE ACCIDENT IN QUEENS, ONE ACCIDENT IN BROOKLYN (Posted by Queens injury attorney Gary E. Rosenberg on May 22, 2011)
I. Relevant Facts
The facts underlying this appeal are tragic. On April 11, 2006, Robert A. Giglio, Sr. (hereinafter Robert Sr.), his 19-year old son, Robert A. Giglio, Jr. (hereinafter Robert Jr.), and Robert Sr.'s brother, Shawn P. Giglio (hereinafter Shawn), consumed alcoholic beverages at a pub owned by the defendant, NTIMP, Inc., doing business as Napper Tandy's Pub (hereinafter Napper Tandy), on County Road 83 in the Town of Brookhaven. Shawn thereafter drove from the pub in a vehicle owned by the defendant Kathleen P. D'Agostino, in which Robert Jr. was a passenger. The vehicle crashed into a tree and, as a result, Shawn and Robert Jr. were killed. The Chief Medical Examiner of the County of Suffolk determined that Shawn and Robert Jr.'s brain alcohol levels were .12% and .08%, respectively. On January 29, 2007, the plaintiff Susanne Giglio (hereinafter Susanne), Robert Jr.'s mother, was appointed as administrator of Robert Jr.'s estate.
Susanne, suing individually and in her capacity as administrator of the estate of Robert Jr., commenced this action together with Robert Sr. to recover damages against Napper Tandy and D'Agostino for this accident. The plaintiffs asserted causes of action against Napper Tandy alleging, inter alia, violations of General Obligations Law § 11-100 for the unlawful sale of alcoholic beverages to Robert Jr., who was a minor, and General Obligations Law § 11-101 for the unlawful sale of alcoholic beverages to Shawn at a time when Shawn was visibly intoxicated. The plaintiffs asserted a cause of action against D'Agostino, among other things, in her capacity as the owner of the motor vehicle operated by Shawn with her alleged knowledge and consent.
Napper Tandy interposed an answer dated May 2, 2007, denying the material allegations of the complaint, asserting 20 affirmative defenses, and interposing a cross claim against D'Agostino and a counterclaim against the plaintiff Robert Sr. Specifically, the counterclaim alleged that any injuries sustained by Robert Jr. In the accident were caused in whole or in part by the negligent acts of Robert Sr., which presumably allude to Robert Sr.'s acquiescence to the consumption of alcohol by Shawn and Robert Jr., and to Shawn's subsequent operation of D'Agostino's automobile. An affidavit of service evidences service of Napper Tandy's answer upon the plaintiffs' counsel on May 2, 2007, via regular mail.
Approximately 11 months later, D'Agostino and Shawn's estate settled with the plaintiffs for the combined sum of $50,000. In furtherance of that partial settlement, the settling parties executed a notarized general release, releasing D'Agostino and Shawn's estate, and their heirs, executors, administrators, successors, and assigns, from "all actions, causes of action, suits, debts, dues, sums of money ... damages, judgments, extants, executions, claims, and demands whatsoever." The release cited the sum of $50,000 as the consideration received and acknowledged by the plaintiffs, and there is no dispute that this $50,000 was, in fact, paid. In a decree dated August 20, 2008, the Surrogate's Court, Suffolk County, approved the settlement on behalf of Robert Jr.'s estate. Payment of the $50,000 settlement was then made by D'Agostino's insurer, Progressive Insurance Company, via three checks issued on or about August 27, 2008, payable to Robert Sr., to the plaintiffs' counsel, and to a funeral home, respectively.
Thereafter, Napper Tandy impleaded Dawn McNeil, as administrator of the estate of Shawn P. Giglio, by the filing and service of a third-party summons and complaint dated April 30, 2009. Issue was joined in the third-party action by service of an answer, which pleaded, as an affirmative defense, inter alia, the release provisions of General Obligations Law § 15-108.
Independent of the partial settlement and the third-party action, Napper Tandy moved, among other things, for a default judgment on its counterclaim against Robert Sr., based upon his failure to serve a reply to the counterclaim that had been asserted against him. The notice of motion was dated June 5, 2008, approximately 13 months after the service, on May 2, 2007, of the answer containing the counterclaim.
By notice dated June 23, 2008, the plaintiffs cross-moved to dismiss the counterclaim asserted against Robert Sr. or, alternatively, for leave to serve a late reply. The plaintiffs argued that more than one year had elapsed from the date upon which a reply to the counterclaim had become due and that, accordingly, the counterclaim should be dismissed as abandoned pursuant to CPLR 3215.
Napper Tandy opposed that branch of the cross motion which was to dismiss its counterclaim, arguing that it had timely moved for a default judgment against Robert Sr. by serving its notice of motion and supporting papers within one year of his default. Napper Tandy contended that Robert Sr.'s default did not occur until the lapse of more than 35 days after it had served the answer containing the counterclaim upon Robert Sr.'s attorney. Specifically, Napper Tandy argued that, by virtue of CPLR 303, Robert Sr.'s time for service of a reply to the counterclaim was 30 days rather than 20 days, because Robert Sr. had designated his attorney as his agent for service, and that when that 30-day period of time was added to the 5-day extension provided by CPLR 2103(b)(2) to account for the service by mail of the answer containing the counterclaim, Robert Sr. had a total of 35 days to reply to the counterclaim. By Napper Tandy's calculation, the additional 10 days afforded by CPLR 303 for the service of the reply meant that Robert Sr. was not in default unless he failed to serve a reply within 35 days after May 2, 2007, i.e., by June 6, 2007, that Robert Sr. was in default as of June 7, 2007, and that its motion for a default judgment against Robert Sr.--served on June 5, 2008, or less than one year after the default--was timely.
By separate notice of motion dated September 1, 2009, McNeil, as the administrator of Shawn's estate, moved pursuant to CPLR 3211(a)(5) to dismiss the third-party complaint on the ground that Shawn's estate was released from any and all liability by operation of the $50,000 settlement, the general release that was executed in furtherance of the settlement, and General Obligations Law § 15-108. Napper Tandy opposed the separate motion, arguing that the Surrogate Court's decree dated August 20, 2008, was limited to the release of D'Agostino, and that the $50,000 payment was made by D'Agostino's insurer solely on her behalf. Accordingly, Napper Tandy maintained that the written release did not bar its cause of action for contribution from Shawn's estate, and that, in any event, the Surrogate's Court never approved any settlement as to Shawn's estate.
The motions and cross motion were resolved by the Supreme Court in an order dated November 30, 2008. In that order, the Supreme Court, inter alia, granted that branch of the plaintiffs' cross motion which was pursuant to CPLR 3215(c) to dismiss Napper Tandy's counterclaim as abandoned, concluding that its motion for a default judgment against Robert Sr. was not made within one year of his default, as mandated by the statute. Additionally, the Supreme Court denied McNeil's motion pursuant to CPLR 3211(a)(5) to dismiss the third-party complaint, determining that, under the circumstances of the case, General Obligations Law § 15-108 did not preclude Napper Tandy's third-party cause of action for contribution.
McNeil appeals from so much of the order as denied her motion pursuant to CPLR 3211(a)(5) to dismiss the third-party complaint on the ground of release, and Napper Tandy separately appeals from so much of the same order as granted that branch of the plaintiffs' cross motion which was to dismiss its counterclaim against Robert Sr.
II. Dismisssal of the Counterclaim as Abandoned
The Supreme Court properly granted that branch of the plaintiffs' cross motion which was pursuant to CPLR 3215(c) to dismiss Napper Tandy's counterclaim against Robert Sr. CPLR 3215(c) provides that:
"[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed."
Here, Napper Tandy's motion for a default judgment on the counterclaim was untimely. CPLR 3012(a) requires that service of an answer or reply shall be made within 20 days after service of the pleading to which it responds. The affidavit of service for Napper Tandy's answer, containing the counterclaim against Robert Sr., evidences its service by regular mail on May 2, 2007. A reply to the counterclaim was, therefore, due 25 days later by virtue of the 5-day extension that is applicable since the reply would have been responsive to a pleading served by mail; thus, the reply was required to be served no later than May 27, 2007 (see CPLR 2103[b][2]; Carp v. Marcus, 105 A.D.2d 584, 585), after which Robert Sr. was in default. Since Robert Sr. did not serve a reply by that date, he was in default as of May 28, 2007. Napper Tandy admittedly did not serve its motion for a default judgment until June 5, 2008, more than one year after the date of default.
The papers submitted by Napper Tandy in support of its motion for a default judgment on the counterclaim failed to set forth any argument addressing the issue of whether it had a reasonable excuse for its failure to seek a default judgment against Robert Sr. within the requisite one-year period after his default. Rather, Napper Tandy merely argued that its motion was timely, an argument that is without merit. Where, as here, a party moving for a default judgment beyond one year from the date of default fails to address any reasonable excuse for its untimeliness, courts may not excuse the lateness and "shall" dismiss the claim pursuant to CPLR 3215.
Napper Tandy's contention on its appeal, that any violation of the one-year deadline of CPLR 3215(c) was due to excusable law office failure is unavailing. A "bald and unsubstantiated claim of law office failure" is insufficient to explain a delay in meeting the one-year deadline of CPLR 3215.
III. The Release of the Third-Party Defendant by Partial Settlement Under
General Obligations Law § 15-108
The Supreme Court should have granted the third-party defendant's motion pursuant to CPLR 3211(a)(5) to dismiss the third-party complaint on the ground of release.
Here, the language of the release is neither vague nor ambiguous and it provides that the plaintiffs release Shawn's estate from, among other things, "all actions, causes of action [and] suits" in exchange for consideration of $50,000, "receipt whereof is hereby acknowledged." It is undisputed that the plaintiffs received monetary consideration of greater than one dollar as part of the agreement (see General Obligations Law § 15-108[d] [1] ), and that the release was delivered prior to the entry of judgment. Accordingly, Shawn's estate has no potential liability for contribution to Napper Tandy. Napper Tandy's contention, in essence, that the failure of Shawn's estate to specifically contribute to the $50,000 of consideration paid by D'Agostino's insurer takes the release outside the scope of General Obligations Law § 15-108(a), is unavailing. Here, the plain language of the release cites that consideration in the sum of $50,000 was exchanged for the release of both D'Agostino and Shawn's estate, and it is undisputed that the payment was, in fact, made.
QUEENS COUNTY COMMUNITIES
Serving Queens neighborhoods of: Arverne, Astoria, Auburndale, Bayside, Beechhurst, Bellaire, Belle Harbor, Bellerose, Blissville, Breezy Point, Briarwood, Broad Channel, Cambria Heights, College Point, Corona, Douglaston, East Elmhurst, Edgemere, Elmhurst, Far Rockaway, Flushing, Forest Hills, Fresh Meadows, Fresh Pond, Glen Oaks, Glendale, Hillcrest, Hollis, Holliswood, Howard Beach, Hunters Point, Jackson Heights, Jamaica, Jamaica Estates, Jamaica Hills, Kew Gardens, Laurelton, Lefrak City, Linden Hill, Lindenwood, Little Neck, Long Island City, Malba, Maspeth, Middle Village, Murray Hill, Neponsit, Oakland Gardens, Ozone Park, Pomonok, Queens Village, Queensboro Hill, Rego Park, Richmond Hill, Ridgewood, Rockaway Park, Rockaway Point, Rosedale, Saint Albans, Seaside, South Jamaica, South Ozone Park, Springfield Gardens, Steinway, Sunnyside, Utopia, Wave Crest, Whitestone, Woodhaven and Woodside.
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