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.

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.

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.

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.

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.

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.

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)

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.

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.

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.

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.

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.

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)

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."

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)

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.