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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.
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.
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.
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] ).
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.
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.
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.
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.
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.
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.
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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.
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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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.
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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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.
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.
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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.
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).
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)
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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.
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)
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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.
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."
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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.
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.
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UNDERINSURED MOTORIST ARBITRATION STAYED; NOT ENOUGH INSURANCE (Posted by Brooklyn injury attorney Gary E. Rosenberg on June 16, 2011)
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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.
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.
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.
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.
Case: Hluch v. Ski Windham Operating Corp.
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; Queens injury lawyer)
Facts: Allegedly, on February 3, 2008, the plaintiff was injured at a ski resort operated by the defendant Ski Windham Operating Corp. (hereinafter Ski Windham) when he was struck by an "unmanned and unsecured" ski patrol sled which was "careening out of control."
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WOBBLY FACTS GET JELL-O CASE DISMISSED (Posted by Queens injury lawyer Gary E. Rosenberg on January 29, 2008)
TAKES NERVE TO BE A GAMBLER; TAKES BIGGER NERVE TO BLAME YOUR GAMBLING ON OTHERS (Posted by Queens injury lawyer Gary E. Rosenberg on March 9, 2008)
BAREFOOT IN THE (N.Y.C.) PARK; KIDS GETTING BURNED (Posted by Queens injury lawyer Gary E. Rosenberg on July 21, 2008)
On or about October 2, 2007, the injured plaintiff signed an application for membership (hereinafter the Application) with the U.S. Ski and Snowboard Association (hereinafter USSA) which included an "Assumption of Risk and Release of Liability" agreement (hereinafter the Release). The Release included a forum selection clause providing that lawsuits for personal injury or related loss against USSA "must be maintained in state courts sitting in Summit County, Utah or federal district courts sitting in the District of Utah, Central Division."
Allegedly, on February 3, 2008, the plaintiff was injured in an accident at a ski resort operated by the defendant Ski Windham Operating Corp. (hereinafter Ski Windham) when he was struck by an "unmanned and unsecured" ski patrol sled which was "careening out of control." Thereafter, he commenced this action against Ski Windham, among others, to recover damages for personal injuries sufferd in his accident. In their answer, the defendants asserted various affirmative defenses, including release.
Ski Windham moved for summary judgment dismissing the complaint insofar as asserted against it based on the forum selection clause in the Release, and, in effect, based on the affirmative defense of release. The accident victim cross-moved, in effect, pursuant to CPLR 3211(b) to dismiss the affirmative defense of release insofar as asserted by Ski Windham. The Supreme Court granted that branch of Ski Windham's motion which was for summary judgment dismissing the complaint insofar as asserted against it based on the forum selection clause and did not reach that branch of Ski Windham's motion which was, in effect, for summary judgment dismissing the complaint insofar as asserted against it based on the affirmative defense of release. It denied the plaintiff's cross motion as academic. We reverse, and remit the matter to the Supreme Court, Queens County, for further proceedings in accordance herewith.
" 'A contractual forum selection clause is prima facie valid and enforceable unless it is shown by the challenging party to be unreasonable, unjust, in contravention of public policy, invalid due to fraud or overreaching, or it is shown that a trial in the selected forum would be so gravely difficult that the challenging party would, for all practical purposes, be deprived of its day in court' " ( Bernstein v. Wysoki, 77 AD3d 241, 248-249, quoting Stravalle v. Land Cargo, Inc., 39 AD3d 735, 736). " 'Absent a strong showing that it should be set aside, a forum selection agreement will control' " ( Bernstein v. Wysoki, 77 AD3d at 249, quoting Horton v Concerns of Police Survivors, Inc., 62 AD3d 836, 836; see Di Ruocco v Flamingo Beach Hotel & Casino, 163 A.D.2d 270, 272).
"As a general rule, 'only parties in privity of contract may enforce terms of the contract such as a forum selection clause found within the agreement' " ( Bernstein v. Wysoki, 77 AD3d at 251, quoting Freeford Ltd. v. Pendleton, 53 AD3d 32, 38). "However, 'there are three sets of circumstances under which a nonparty may invoke a forum selection clause: First, it is well settled that an entity or individual that is a third-party beneficiary of the agreement may enforce a forum selection clause found within the agreement. Second, parties to a "global transaction" who are not signatories to a specific agreement within that transaction may nonetheless benefit from a forum selection clause contained in such agreement if the agreements are executed at the same time, by the same parties or for the same purpose. Third, a nonparty that is "closely related" to one of the signatories can enforce a forum selection clause. The relationship between the nonparty and the signatory in such cases must be sufficiently close so that enforcement of the clause is foreseeable by virtue of the relationship between them' " ( Bernstein v. Wysoki, 77 AD3d at 251, quoting Freeford Ltd. v. Pendleton, 53 AD3d at 38-39).
Here, Ski Windham was not a party to either the Release or the Application, and it failed to establish, prima facie, that it could enforce the forum selection clause as a third-party beneficiary or a party to a global transaction (see Bernstein v. Wysoki, 77 AD3d at 251; see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324). Moreover, Ski Windham's moving papers did not present evidence that the relationship between Ski Windham and USSA was sufficiently close so that enforcement of the forum selection clause was foreseeable by virtue of the relationship between them (see Bernstein v. Wysoki, 77 AD3d at 251-252). Ski Windham submitted a copy of the Application in support of its motion, and the Release set forth therein defines "USSA" as the "United States Ski & Snowboard Association, its subsidiaries, affiliates, officers, directors, volunteers, employees, coaches, contractors and representatives, local ski clubs, competition organizers and sponsors, and ski and snowboard facility operators " (emphasis added). The forum selection clause provides that it applies to "all lawsuits for personal injury or related loss against USSA." Thus, reading the aforementioned provisions of the Release together establishes that the forum selection clause applies to personal injury lawsuits against USSA's "ski and snowboard facility operators." However, Ski Windham is not named as a USSA ski and snowboard facility operator anywhere in the Application, including in the Release, and Ski Windham did not tender any evidence to show that it had a relationship with USSA such that it could be deemed a USSA "ski and snowboard facility operator [ ]" for purposes of enforcing the forum selection clause (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562-563).
Under the foregoing circumstances, Ski Windham failed to make a prima facie showing that it had a sufficiently close relationship with USSA such that its enforcement of the forum selection clause was foreseeable to the plaintiff by virtue of that relationship (see Bernstein v. Wysoki, 77 AD3d at 252). Accordingly, the Supreme Court should have denied that branch of Ski Windham's motion which was for summary judgment dismissing the complaint insofar as asserted against it based on the forum selection clause, without regard to the sufficiency of the plaintiff's opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853).
Because the Supreme Court directed the dismissal of the complaint insofar as asserted against Ski Windham solely on the ground that the forum selection clause was enforceable by Ski Windham in this action, it did not reach that branch of Ski Windham's motion which was, in effect, for summary judgment dismissing the complaint insofar as asserted against it based on the affirmative defense of release (see Llanos v. Shell Oil Co., 55 AD3d 796, 799). That branch of Ski Windham's motion remains pending and undecided (id. at 799). In addition, in light of our determination, the plaintiff's cross motion, in effect, pursuant to CPLR 3211(b) to dismiss the affirmative defense of release insofar as asserted by Ski Windham is no longer academic. Accordingly, we remit the matter to the Supreme Court, Queens County, for a determination of the aforementioned pending and undecided branch of Ski Windham's motion and a determination on the merits of the plaintiff's cross motion.
In light of our determination, we need not reach the plaintiff's remaining contentions.
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.
Case: Fernandez v. 707, Inc.
Court: Supreme Court, Appellate Division, First Department, New York.
Date: June 16, 2011
From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx; Queens accident lawyer)
Comment: This accident case involves a newly constructed tree well or tree pit, which the City of New York had not yet approved. It still belongs to the City, and the injured accident victim loses.
RELATED POSTS:
CITY OF NEW YORK, NOT BUILDING OWNER, RESPONSIBLE FOR INJURY IN TREE PIT; SUMMARY JUDGMENT GRANTED (Posted by Queens accident lawyer Gary E. Rosenberg on June 18, 2011)
BIKE RIDER THROWN BECAUSE OF TREE WELL CAN'T SUE CITY WITHOUT "PRIOR WRITTEN NOTICE" (Posted by Queens accident lawyer Gary E. Rosenberg on June 8, 2011)
BROOKLYN SIDEWALK IS ACCIDENT WAITING TO HAPPEN (Posted by Queens accident lawyer Gary E. Rosenberg on March 31, 2010)
TREE LIMB IN N.Y.C.'S CENTRAL PARK FALLS SUDDENLY AND KILLS BABY, INJURES MOTHER (Posted by Queens accident lawyer Gary E. Rosenberg on June 27, 2010)
FORGET THE DANGERS OF TEXTING WHILE DRIVING; HOW ABOUT TEXTING WHILE WALKING? (Posted by Queens accident lawyer Gary E. Rosenberg on December 18, 2009)
Order, Supreme Court, Bronx County (Barry Salman, J.), entered July 22, 2010, which granted defendant 707, Inc.'s motion for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs. Order, same court and Justice, entered July 22, 2010, which denied defendant Biltmore Contracting, Inc.'s motion for summary judgment dismissing the complaint as against it, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed enter judgment in Biltmore's favor dismissing the complaint as against it.
707, Inc. (707) obtained a "Builder's Pavement Plan" permit from the New York City Department of Transportation, dated May 3, 2006, to rebuild the sidewalks abutting its Bruckner Boulevard property. By its agent Hagivah, 707 hired Biltmore to perform the work, instructing Biltmore to leave specified sections of the sidewalk open to accommodate tree wells. 707 also obtained a tree planting permit from the New York City Department of Parks & Recreation and hired another company to plant the trees.
Biltmore commenced work on or about August 24, 2006 and completed it on or about September 14, 2006. On October 15, 2006, injured accident victim allegedly was injured when he stepped into a tree well that was not level with the sidewalk. At the time, the City had yet to sign off on the sidewalk, and no trees had been planted. Subsequently, on October 30, 2006, 707's project engineer certified that the sidewalks had been constructed in accordance with the specifications set forth in the Rules and Regulations of the Department of Highways.
Although Administrative Code of the City of New York § 7-210 (eff September 14, 2003) imposes tort liability on property owners who fail to maintain abutting city-owned sidewalks in a reasonably safe condition, 707 cannot be held liable for injured accident victim's injuries by virtue of its status as an abutting landowner because a property owner's responsibility for a sidewalk does not extend to tree wells (see Vucetovic v. Epsom Downs, Inc., 10 NY3d 517, 521 [2008]; Grier v. 35-63 Realty, Inc., 70 AD3d 772 [2010] ). The motion court correctly rejected injured accident victim's argument that the area where he fell was not a tree well because at the time of the accident the City had yet to "sign off" on the project and no tree had been planted. These considerations do not bear on the character of the area, which the court described as "a square or rectangular dirt area surrounded by cement designed to accommodate one or more trees." Accordingly, 707 cannot be held liable for injured accident victim's injuries unless it affirmatively created the dangerous condition, negligently made repairs to the area, or caused the dangerous condition to occur through a special use of the area (see Vucetovic, 10 NY3d at 520).
A property owner ordinarily is not responsible for the negligence of an independent contractor retained to work upon its property, unless the work is inherently dangerous, or the owner interferes with and assumes control over the work (see Kleeman v. Rheingold, 81 N.Y.2d 270, 273 [1993]; Rosenberg v Equitable Life Assur. Socy. of U.S., 79 N.Y.2d 663, 668 [1992]; Laecca v. New York Univ., 7 AD3d 415 [2004], lv denied 3 NY3d 608 [2004] ). On its motion for summary judgment, 707 submitted proof that it hired Biltmore to build the sidewalk and tree well. It also submitted the deposition transcript of Biltmore's president who testified that a representative of the owner gave him a layout showing where to leave the tree wells and that the president's uncle was present on a daily basis and supervised the work.
In opposition, injured accident victim failed to raise a triable issue of fact whether any exception to the "independent contractor rule" applied (see Campbell v. HEI Hospitality, LLC, 72 AD3d 860, 861 [2010] ). A senior project manager for Hagivah testified at his deposition that he explained to Biltmore where to place the tree wells, and "that's it." Injured accident victim did not submit any proof that would rebut this or raise an issue whether 707 controlled the method and means of Biltmore's work. That 707's architect or engineer may have drawn up the plans, or that 707 may have inspected the work, does not establish that 707 had supervisory authority (see Haefeli v. Woodrich Eng'g Co., 255 N.Y. 442, 450 [1931] ). "[T]he mere retention of general supervisory powers over an independent contractor cannot form a basis for the imposition of liability against the principal" ( Goodwin v. Comcast Corp., 42 AD3d 322, 323 [2007]; Melbourne v. New York Life Ins. Co., 271 A.D.2d 296, 297 [2000] ).
Biltmore made a prima facie showing of its entitlement to judgment as a matter of law by demonstrating that it owed no duty of care to injured accident victim (see Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 140 [2002] ). Biltmore's president testified at his deposition that when Biltmore completed the work, approximately one month before the accident, the tree well was level with the sidewalk. While some of his responses suggested that he was referring to Biltmore's general custom or practice, others addressed the subject tree well. The record further indicates that 707 paid Biltmore's invoice and that its senior project manager had no problem with Biltmore's work.
In opposition, injured accident victim failed to raise a triable issue of fact whether Biltmore created the alleged hazardous condition (Espinal, 98 N.Y.2d at 141-142; Peluso v. ERM, 63 AD3d 1025 [2009] ). Although a contractor may be liable for an affirmative act of negligence that results in the creation of a dangerous condition upon a public street or sidewalk (Barbitsch v. City of New York, 241 A.D.2d 472 [1997] ), "it would be mere speculation [on the record before us] to conclude that the allegedly dangerous condition which caused the injured accident victim to trip and fall was caused by any affirmative act of negligence by [Biltmore]" (Kleeberg v. City of New York, 305 A.D.2d 549, 550 [2003]; Humphreys v. Veneziano, 268 A.D.2d 461 [2000] ). There is no evidence that Biltmore breached its contractual obligations, or that it assumed a continuing duty to return to the premises after completing its work and remedy any defects that eventually developed there (see Horowitz v. Marel Elec. Servs., 271 A.D.2d 572 [2000]; Long v. Danforth Co., 236 A.D.2d 781 [1997] ).
Case: Progressive Northeastern Insurance Co. v. Vanderpool
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 injury attorney)
Comment: I've written before about whether there's an insurance coverage where an accident might not really be "an accident."
Facts: Driving away from a police officer (Wayne Vanderpool) trying to carry out an arrest warrant, Yvette Pullum hit him with her car, and injured him. This took occurred on November 12, 2005.
RELATED POSTS:
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 Brooklyn injury attorney Gary E. Rosenberg on April 1, 2011)
EIGHT THINGS YOU SHOULD KNOW ABOUT YOUR NEW YORK CAR ACCIDENT-PART ONE - THE FIRST FOUR QUESTIONS (Posted by Brooklyn injury attorney Gary E. Rosenberg on June 1, 2010)
EIGHT THINGS YOU SHOULD KNOW ABOUT YOUR NEW YORK CAR ACCIDENT-PART TWO - THE SECOND FOUR QUESTIONS (Posted by Brooklyn injury attorney Gary E. Rosenberg on June 2, 2010)
CAR ACCIDENT? HERE'S WHAT YOU NEED TO KNOW ABOUT YOUR INSURANCE (Posted by Brooklyn injury attorney Gary E. Rosenberg on February 7, 2010)
AFTER A CAR CRASH: CAN I HANDLE MY INJURY CLAIM MYSELF? (A FREQUENTLY ASKED QUESTION) (Posted by Brooklyn injury attorney Gary E. Rosenberg on January 3, 2010)
As you might imagine, this added a whole new world of criminal charges against Yvette Pullum to whatever charges were in the warrant already being carried by Officer Vanderpool. Pullum pled guilty to Second Degree Assault for hitting Officer Vanderpool with her car.
Dear Readers, Do you see where this is going? Now it's about insurance.
Officer Vanderpool filed a claim with his automobile insurance carrier, Progressive Insurance, to try to access his Supplemental Underinsured Motorist coverage under the supplemental uninsured/underinsured motorist endorsement on his automobile insurance policy.
Now it's not clear from this decision if Pullum was "underinsured" - meaning her car insurance paid something, and Vanderpool is looking for some additional money from his own personal car insurance policy because of the seriousness of his injuries - or if Pullum was "uninsured" - meaning her car had no insurance and Vanderpool is looking to his own insurance company (Progressive Insurance) for his entire monetary damages from ihs personal injury.
And don't forget, as a cop hurt in the line of duty, Vanderpool is also entitled to Worker's Compensation insurance benefits and, possibly also, a disability retirement depending on how bad he's hurt, which we don't know from this opinion..
Anyway, Vanderpool's insurance carrier, Progressive, disclaimed (refused) coverage, claiming that Vanderpool's injuries were not caused by an "accident," as that term is used in its insurance policy SUM endorsement.
Vanderpool challenged by demanding arbitration.
Progressive Insurance started a lawsuit to permanently stay (freeze) arbitration. After a hearing, the Supreme Court denied the petition and directed the parties to proceed to arbitration. Progressive Insurance appealed.
The appeals court noted:
The Court of Appeals recently held in State Farm Mut. Auto. Ins. Co. v Langan (16 NY3d 349) that, for the purposes of a SUM endorsement, an occurrence should be viewed from the perspective of the insured, rather than of the tortfeasor. When, from the insured's perspective, the occurrence was " 'unexpected, unusual and unforeseen'," it qualifies as an "accident." Thus, the Court held in Langan that, even though the holder of SUM coverage was the victim of an intentional assault, there had been an "accident" because the assault was unexpected or unintended from the insured's perspective, and SUM coverage was triggered (see Langan, 16 NY3d at 355).
Pullum's guilty plea also enters into the mix.
Second Degree Assault (New York State Penal Law § 120.05[3]) contains as an element that the defendant intended to prevent a police officer from performing a lawful duty and thereby caused the officer to suffer physical injury. It does not contain as an element that the defendant intended to cause physical injury to the officer. This is very important. Because while Pullum intended to interfere with the officer, she did not intend to hurt Vanderpool. So, from both Vanderpool's and Pullum's points of view, this was an accidental injury.
Here, from Vanderpool's perspective, his encounter with Pullum's vehicle was unexpected, unusual, and unforeseen. And it seems that Pullum denies intending to hit Vanderpool. Consequently, whatever Pullum's intent, the occurrence was an "accident" within the meaning of the SUM endorsement of Vanderpool's insurance policy with Progressive.
Held: Lower court's decision affirmed; the petition was correctly denied and the parties were directed to proceed to arbitration.
NEWS from CPSC
U.S. Consumer Product Safety Commission
Napa Home & Garden Recalls NAPAfire and FIREGEL Pourable Gel Fuel Due to Fire and Burn Hazards
From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx; Brooklyn accident attorney)
Comment: I just recently blogged about this product. It only recently hit the press, so the CPSC moved with lightning speed to get Firegel recalled.
RELATED POSTS:
"FIREGEL" A DANGEROUS PRODUCT, EXPLOSIVE FIREBOMB BURNS CONSUMERS (Posted by Brooklyn accident attorney Gary E. Rosenberg on June 12, 2011)
RECALL OF DEHUMIDIFIERS THAT CATCH FIRE AND CREATE A BURN HAZARD (Posted by Brooklyn accident attorney Gary E. Rosenberg on December 24, 2009)
WILLIAMS-SONOMA RECALLS BABY BOTTLE WARMERS DUE TO DANGER OF BURNS (Posted by Brooklyn accident attorney Gary E. Rosenberg on August 26, 2010)
PRODUCT RECALLS; ALL DUE TO ACCIDENTAL RISK OF INJURY DUE TO FIRE AND BURN HAZARD (Posted by Brooklyn accident attorney Gary E. Rosenberg on December 19, 2010)
LEAD PAINT LEADS TO RECALL OF WOODEN TOYS (Posted by Brooklyn accident attorney Gary E. Rosenberg on January 10, 2010)
WASHINGTON, D.C. - The U.S. Consumer Product Safety Commission, in cooperation with the firm named below, today announced a voluntary recall of the following consumer product. Consumers should stop using recalled products immediately unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product.
Name of Product: Pourable NAPAfire and FIREGEL Gel Fuel bottles and jugs
Units: About 460,000 bottles and jugs
Distributor: Napa Home & Garden, of Duluth, Ga.
Hazard: The pourable gel fuel can ignite unexpectedly and splatter onto people and objects nearby when it is poured into a firepot that is still burning. This hazard can occur if the consumer does not see the flame or is not aware that the firepot is still ignited. Fuel gel that splatters and ignites can pose fire and burn risks to consumers.
Incidents/Injuries: Napa is aware of 37 reports of incidents, including 23 burn injuries to consumers.
Description: The product is a clear, pourable gel fuel packaged in clear one-quart plastic bottles and one-gallon plastic jugs and sold in non-scented and citronella scents. The fuel is poured into a stainless steel cup in the center of firepots or other decorative lighting devices and ignited.
Sold at: Bed Bath & Beyond, Shopko, Restoration Hardware, specialty and gift shops, furniture stores, and home and garden stores nationwide, as well as through Amazon.com, home and garden catalogs, and home decorators and landscape architects between December 2009 and June 2011 for between $5 and $78.
Remedy: Consumers should immediately stop using the pourable gel fuel in firepots and return all bottles or jugs to the retailer where the consumer purchased the fuel for a full refund. A retrofit for the Napa brand firepots is being evaluated and may be available in the near future.
Consumer Contact: For additional information, call Napa Home & Garden at (888) 893-2323 between 9 a.m. and 6 p.m. ET Monday through Friday, visit Napa's website at http://www.napahomeandgarden.com/ or write to Napa, 3270 Summit Ridge Parkway, Suite 240, Duluth, GA 30096-1617.
RECALL PICKED UP AND REPORTED ON BY THE NEW YORK TIMES:
A maker of pourable fuel gel for decorative firepots is recalling about a half-million bottles after learning of dozens of accidents, including two near-fatal ones in New York, the Consumer Product Safety Commission announced on Wednesday.
In these and other cases, witnesses and victims likened the fuel gel to napalm, saying it exploded in a flash, stuck to clothing and would not stop burning even when a victim dropped to the ground and rolled or the flames were covered with a blanket.
Reports of severe burn accidents connected to the use of gel-fueled firepots, a relatively new product, have surfaced in states like California, Florida and Indiana since The New York Times first reported on June 11 on the two accidents in New York. One involved a 14-year-old Riverhead boy who remains in a coma in a Long Island hospital.
Products liability lawyers, meanwhile, have pounced on the recent burn cases. Napa Home and Garden is being sued in federal court in Spartanburg, S.C., by a Florida couple who were seriously wounded there in May. The woman, Barbara Satterfield, remains in the intensive care unit at a burn center in Augusta, Ga., according to the lawsuit, which was filed on Tuesday.
Other companies make and distribute fuel gel products. BirdBrain Inc., a competing manufacturer based in Ypsilanti, Michigan, is being sued by the parents of teenage New Jersey girl, an 8-year-old Maryland boy and a 3-year-old Illinois girl, each of whom spent weeks in the hospital recovering from severe burns last year.
The CPSC recall does not extend to BirdBrain products, but a commission spokesman said its investigation into other companies and burn cases was "open and active."
Case: Fernandez v. 707, Inc.
Court: Supreme Court, Appellate Division, First Department, New York.
Date: June 16, 2011
From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx; Brooklyn injury lawyer)
Comment: This accident case involves a newly constructed tree well or tree pit, which the City of New York had not yet approved. It still belongs to the City, and the injured accident victim loses.
RELATED POSTS:
CITY OF NEW YORK, NOT BUILDING OWNER, RESPONSIBLE FOR INJURY IN TREE PIT; SUMMARY JUDGMENT GRANTED (Posted by Brooklyn injury lawyer Gary E. Rosenberg on June 18, 2011)
BIKE RIDER THROWN BECAUSE OF TREE WELL CAN'T SUE CITY WITHOUT "PRIOR WRITTEN NOTICE" (Posted by Brooklyn injury lawyer Gary E. Rosenberg on June 8, 2011)
BROOKLYN SIDEWALK IS ACCIDENT WAITING TO HAPPEN (Posted by Brooklyn injury lawyer Gary E. Rosenberg on March 31, 2010)
TREE LIMB IN N.Y.C.'S CENTRAL PARK FALLS SUDDENLY AND KILLS BABY, INJURES MOTHER (Posted by Brooklyn injury lawyer Gary E. Rosenberg on June 27, 2010)
FORGET THE DANGERS OF TEXTING WHILE DRIVING; HOW ABOUT TEXTING WHILE WALKING? (Posted by Brooklyn injury lawyer Gary E. Rosenberg on December 18, 2009)
Order, Supreme Court, Bronx County (Barry Salman, J.), entered July 22, 2010, which granted defendant 707, Inc.'s motion for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs. Order, same court and Justice, entered July 22, 2010, which denied defendant Biltmore Contracting, Inc.'s motion for summary judgment dismissing the complaint as against it, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed enter judgment in Biltmore's favor dismissing the complaint as against it.
707, Inc. (707) obtained a Builder's Pavement Plan permit from the New York City Department of Transportation, dated May 3, 2006, to rebuild the sidewalks abutting its Bruckner Boulevard property. By its agent Hagivah, 707 hired Biltmore to perform the work, instructing Biltmore to leave specified sections of the sidewalk open to accommodate tree wells. 707 also obtained a tree planting permit from the New York City Department of Parks & Recreation and hired another company to plant the trees.
Biltmore commenced work on or about August 24, 2006 and completed it on or about September 14, 2006. On October 15, 2006, injured accident victim allegedly was injured when he stepped into a tree well that was not level with the sidewalk. At the time, the City had yet to sign off on the sidewalk, and no trees had been planted. Subsequently, on October 30, 2006, 707's project engineer certified that the sidewalks had been constructed in accordance with the specifications set forth in the Rules and Regulations of the Department of Highways.
Although Administrative Code of the City of New York § 7 210 (eff September 14, 2003) imposes tort liability on property owners who fail to maintain abutting city-owned sidewalks in a reasonably safe condition, 707 cannot be held liable for injured accident victim's injuries by virtue of its status as an abutting landowner because a property owner's responsibility for a sidewalk does not extend to tree wells (see Vucetovic v. Epsom Downs, Inc., 10 NY3d 517, 521 [2008]; Grier v. 35 63 Realty, Inc., 70 AD3d 772 [2010] ). The motion court correctly rejected injured accident victim's argument that the area where he fell was not a tree well because at the time of the accident the City had yet to sign off on the project and no tree had been planted. These considerations do not bear on the character of the area, which the court described as a square or rectangular dirt area surrounded by cement designed to accommodate one or more trees. Accordingly, 707 cannot be held liable for injured accident victim's injuries unless it affirmatively created the dangerous condition, negligently made repairs to the area, or caused the dangerous condition to occur through a special use of the area (see Vucetovic, 10 NY3d at 520).
A property owner ordinarily is not responsible for the negligence of an independent contractor retained to work upon its property, unless the work is inherently dangerous, or the owner interferes with and assumes control over the work (see Kleeman v. Rheingold, 81 N.Y.2d 270, 273 [1993]; Rosenberg v Equitable Life Assur. Socy. of U.S., 79 N.Y.2d 663, 668 [1992]; Laecca v. New York Univ., 7 AD3d 415 [2004], lv denied 3 NY3d 608 [2004] ). On its motion for summary judgment, 707 submitted proof that it hired Biltmore to build the sidewalk and tree well. It also submitted the deposition transcript of Biltmore's president who testified that a representative of the owner gave him a layout showing where to leave the tree wells and that the president's uncle was present on a daily basis and supervised the work.
In opposition, injured accident victim failed to raise a triable issue of fact whether any exception to the independent contractor rule applied (see Campbell v. HEI Hospitality, LLC, 72 AD3d 860, 861 [2010] ). A senior project manager for Hagivah testified at his deposition that he explained to Biltmore where to place the tree wells, and that's it. Injured accident victim did not submit any proof that would rebut this or raise an issue whether 707 controlled the method and means of Biltmore's work. That 707's architect or engineer may have drawn up the plans, or that 707 may have inspected the work, does not establish that 707 had supervisory authority (see Haefeli v. Woodrich Eng'g Co., 255 N.Y. 442, 450 [1931] ). [T]he mere retention of general supervisory powers over an independent contractor cannot form a basis for the imposition of liability against the principal ( Goodwin v. Comcast Corp., 42 AD3d 322, 323 [2007]; Melbourne v. New York Life Ins. Co., 271 A.D.2d 296, 297 [2000] ). Biltmore made a prima facie showing of its entitlement to judgment as a matter of law by demonstrating that it owed no duty of care to injured accident victim (see Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 140 [2002] ). Biltmore's president testified at his deposition that when Biltmore completed the work, approximately one month before the accident, the tree well was level with the sidewalk. While some of his responses suggested that he was referring to Biltmore's general custom or practice, others addressed the subject tree well. The record further indicates that 707 paid Biltmore's invoice and that its senior project manager had no problem with Biltmore's work.
In opposition, injured accident victim failed to raise a triable issue of fact whether Biltmore created the alleged hazardous condition (Espinal, 98 N.Y.2d at 141 142; Peluso v. ERM, 63 AD3d 1025 [2009] ). Although a contractor may be liable for an affirmative act of negligence that results in the creation of a dangerous condition upon a public street or sidewalk (Barbitsch v. City of New York, 241 A.D.2d 472 [1997] ), it would be mere speculation [on the record before us] to conclude that the allegedly dangerous condition which caused the injured accident victim to trip and fall was caused by any affirmative act of negligence by [Biltmore] (Kleeberg v. City of New York, 305 A.D.2d 549, 550 [2003]; Humphreys v. Veneziano, 268 A.D.2d 461 [2000] ). There is no evidence that Biltmore breached its contractual obligations, or that it assumed a continuing duty to return to the premises after completing its work and remedy any defects that eventually developed there (see Horowitz v. Marel Elec. Servs., 271 A.D.2d 572 [2000]; Long v. Danforth Co., 236 A.D.2d 781 [1997] ).
Court: Supreme Court, Nassau County, New York
Case: Halio v. IOD Incorporated
Date: June 14, 2011
From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx; Brooklyn accident lawyer)
Comment: Interesting case. When attorneys take a personal injury or accident case, they usually have to obtain the injured person's medical records. Used to be, a hospital or doctor could charge as much as it liked. Businesses were created that made a profit on getting and selling patient medical records.
Then the accident lawyers woke up and got New York State Public Health Law Section 18 passed. That law limited the fee that could be charged for records to 75¢ pert page.
This lawsuit is by defendants in a personal injury action who were being charged $1.50 per page and didn't want to pay it. They lost the case. Too bad they didn't have a Brooklyn accident lawyer, like me.
RELATED POSTS:
AT LEAST THE DOG DIDN'T EAT HER HOMEWORK (Posted by Brooklyn accident lawyer Gary E. Rosenberg on November 15, 2007)
PREVENT IDENTITY THEFT (Posted by Brooklyn accident lawyer Gary E. Rosenberg on November 24, 2007)
AFFIRMING PHYSICIANS' REPORTS (Posted by Brooklyn accident lawyer Gary E. Rosenberg on December 17, 2007)
MANHATTAN LAWYER ADMITS USING A RUNNER (Posted by Brooklyn accident lawyer Gary E. Rosenberg on December 16, 2007 )
WOBBLY FACTS GET JELL-O CASE DISMISSED (Posted by Brooklyn accident lawyer Gary E. Rosenberg on January 29, 2008)
Petitioners move to compel Respondent to charge no more than 75¢ per page for copies of medical records pursuant to Public Health Law § 18(2)(e). Respondent argues that Petitioners do not fit into the definition of a "qualified person" under Public Health Law § 18(1)(g), and therefore the 75¢ per page limit does not apply.
The petition is denied.
Petitioners are defendants in a personal injury action in the Supreme Court, Nassau County under index number 14334/2010 entitled Frank Villegas v. Barbara Halio and Solomon Halio. In that action, the plaintiff (hereinafter "Villegas") alleges injuries frmo an accident while handling a chainsaw at Petitioner's residence. In defending the underlying action Petitioners' submitted an authorization signed by Villegas requesting Villegas's medical records. In response to the request Respondent, acting on behalf of the medical provider, Nassau University Medical Center, requested a fee of $1.50 per page for 792 pages on top of a basic fee of $25.00 and shipping costs of $10.65 for a total fee of $1,223.65.
Public Health law § 18(2)(e) provides that a "qualified person" shall have access to medical records and that the medical provider "may impose a reasonable charge for ... copies, not exceeding the costs incurred by such provider," but, "the reasonable charge for paper copies shall not exceed seventy-five cents per page." Public Health Law § 18(1)(g) defines a "qualified person" as, inter alia, "any properly identified subject; ... or an attorney representing a qualified person ..." Public Health law § 18(1)(h) defines "subject" as "an individual concerning whom patient information is maintained or possessed by a health care provider."
It is clear from the plain language of the statute that Villegas is a "qualified person" as he is the "individual concerning whom patient information is maintained or possessed by a health care provider". As such, copies of medical records requested by Villegas cannot cost more than 75¢ per page. Similarly, it is clear that an attorney representing Villegas cannot be charged more than 75¢ per copy. The question is whether an attorney acting on behalf of a third party who is authorized by the "subject" to receive copies of the subject's medical records is entitled to the 75¢ per page maximum copy charge because the authorization came from a "qualified person".
In support of their contention that authorization by a "qualified person" subjects the medical provider to the 75¢ per page maximum copy charge Petitioners cite McCrossan v. Buffalo Heart Group, 265 A.D.2d 875 (4th Dept.1999). There, as here, the attorneys representing defendants in a negligence action were authorized by the plaintiff to obtain the plaintiff's medical records and the medical provider charged more than 75¢ per page for the copies. The Fourth Department, citing Casillo v. St. John's Episcopal Hosp., 151 Misc.2d 420 (Supreme, Suffolk 1992), held that despite the fact that neither the medical provider nor its attorney is a "qualified person" the medical provider is subject to the 75¢ per page maximum copy charge because the plaintiff, a "qualified person", authorized the release of the records to a third party.
In opposition, Respondent cites Davenport v. County of Nassau, 245 A.D.2d 331 (2nd Dept.1997), in which the Court, in a similar situation, held that attorneys representing defendants in a negligence action were not entitled to the 75¢ per page maximum charge because they did not meet the definition of a "qualified person". Petitioners argue that Davenport v. County of Nassau should not be followed as the facts are different because there the medical records were subpoenaed. As such, according to Petitioners, McCrossan v. Buffalo Heart Group is the only case on point. The Court disagrees.
A review of the decision and the Briefs in Davenport v. County of Nassau, supra, (1997 WL 34663982; 1997 WL 34663981) establishes that the subpoena was not material to the decision. The request for medical records was originally made by the attorneys for the defendants by sending the medical provider an authorization signed by the plaintiff. It was only after the medical provider refused to supply the records because the attorneys for the defendants would not pay more than 75¢ per page that a subpoena was served. Therefore, Davenport v. County of Nassau is on point since it found the subpoena to be unnecessary. The result is a conflict between the Second and Fourth Departments.
There is some persuasive value in the Fourth Department's reasoning that because a "qualified person" authorized the release of the medical records the third party receiving the records should be entitled to the 75¢ per page copy maximum. Further, it may seem inequitable to charge more to a defendant in this situation. However, the Second Department's reasoning more closely follows the constructive history of Public Health Law § 18. Further, and in any event, this Court is bound by the Second Department's holding.
The original construction of Public Health law § 18 did not include attorneys as a "qualified person". The case cited by the Fourth Department and also relied upon by Petitioners, Casillo v. St. John's Episcopal Hosp., supra, was decided prior to the June 30, 1992 amendment that includes the language referenced hereinabove regarding attorneys. The Court in Casillo v. St. John's Episcopal Hosp. held that an attorney authorized by a patient to obtain the patient's medical records is a "qualified person". However, the decision limits the definition to attorneys acting on behalf of the patient.
Subsequent to the Casillo v. St. John's Episcopal decision the legislature amended Public Health Law § 18 to include "an attorney representing a qualified person" (emphasis added) as a "qualified person". By omitting any language referencing attorneys acting on behalf of a third party in a lawsuit it appears that the legislature did not intend to include such attorneys in the definition. As such, attorneys acting on behalf of defendants are not entitled to the 75¢ per page maximum charge despite the fact that a "qualified person" authorized receipt of the records.
Accordingly, Petitioner's petition is denied.
Case: Colon v. Vincent Plumbing & Mechanical Co.
Court: Supreme Court, Appellate Division, First Department, New York.
Entered: June 16, 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: Bronx accident victims screwed by No-Fault "serious injury" threshold and lose defense summary judgment motion. One plaintiff (Colon) had knee surgery. Her orthopedic surgeon - who carried out the surgery - found problems with "limited range of motion" in the knee but because he did not say HOW he made this diagnosis, his word didn't count. Thus, she hasn't shown her injury was from the accident and the court throws out her case.
The other plaintiff, 71 year-old Puente, showed a lot of wear and tear-type injuries (degenerative) and the court found that he, too, didn't make out an injury related to this accident.
The moral of this story? Soft tissues accident and injury cases have to be carefully and thoroughly documented by treating doctors. And you better have an experienced personal injury accident lawyer to handle your case.
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Order, Supreme Court, Bronx County (Robert E. Torres, J.), entered July 14, 2010, which denied defendants Almonte and Collado's motion for summary judgment dismissing the complaint on the threshold issue of serious injury under Insurance Law §§ 5102 and 5104, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment in favor of said defendants dismissing the complaint as against them.
Defendants established prima facie their entitlement to judgment as a matter of law by submitting medical evidence that plaintiffs did not sustain a serious injury and that any injuries were not caused by the accident.
With respect to Puente, defendants met their initial burden by submitting the report of a radiologist who opined that the MRI of Puente's lumbar spine revealed regional discogenic changes representing longstanding wear, tear and degenerative changes unrelated to the accident and consistent with Puente's age (71 years). An MRI of the right knee showed no evidence of acute or recent injury; it showed significant and advanced degenerative changes involving all three joint compartments, menisci and anterior cruciate ligament, representing chronic wear-and-tear degenerative change unrelated to the accident. A neurologist found some limited range of motion in the cervical spine, "observed to be limited by volitional guarding." The motor examination of the knee was normal. An orthopedic surgeon found normal ranges of motion in the lumbar spine and right knee.
In opposition, Puente failed to present medical evidence sufficient to raise a triable issue. His treating doctor did not identify any serious injury; his diagnoses included, as relevant here, possible L4-5 sciatica discogenic disease and SP lumbar strain (severe). The doctor did not make any reference to the claimed injury to the right knee or address the fact that, as noted in the doctor's report, Puente had complained of lower back pain eight months before the accident.
Moreover, while his report indicated some limitation in back motion, the doctor failed to indicate the normal ranges of motion for the areas tested, and did not provide an objective assessment of Puente's claimed range of motion limitations.
Regarding plaintiff Colon, a radiologist found that an MRI of the left knee revealed no evidence of acute or recent injury and no evidence of traumatic tear or rupture of the regional ligaments, tendons or menisci. The radiologist found degenerative changes of the lateral meniscus and patella. An MRI of the cervical spine revealed regional discogenic changes unrelated to the accident. A neurologist found some limited range of motion in the cervical spine and normal range of motion in the knee, and an orthopedist found normal range of motion in the cervical spine and knee.
In opposition, plaintiffs did not submit any medical evidence indicating that Colon's claimed cervical spine injury was causally related to the accident. Regarding the knee injury, while the orthopedic surgeon who performed arthroscopic surgery on Colon to repair a torn meniscus submitted a report indicating that the injury was the result of the accident, that Colon had "limited range of motion" in the knee, and that she could fully extend the knee but flex was limited to about 115/135 degrees, the surgeon "fail[ed] to identify or describe the objective medical tests employed in measuring the alleged restrictions in range of motion." "Nor did he explain the significance of his findings, or provide a sufficient description of the qualitative nature of the limitations based on the normal function and use of the knee." Thus, Colon failed to raise any issue of fact under the permanent consequential limitation and significant limitation categories of Insurance Law § 5102(d).
Regarding plaintiffs' 90/180-day claims, defendants appropriately relied on plaintiffs' deposition testimony. Puente testified that he was not confined to home or bed for more than a brief period of time, "negat[ing] his chance of establishing a 90/180-day serious injury claim under section 5102(d)." As for Colon, the only evidence in the record on this issue is that she missed some days of work. Even if she had missed 90 days of work, that would not be determinative. Her inconsistent testimony regarding how much time she was out of work as a beautician in her beauty salon, coupled with the absence of any other evidence that she was prevented from performing substantially all of her usual and customary daily activities for the requisite period, is insufficient to support her claim.
Case: Garbowski v. Hudson Valley Hospital Center
Court: Supreme Court, Appellate Division, Second Department, New York
Date: June 7, 2011
From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx; Brooklyn Queens medical malpractice injury attorney)
Comment: This is a medical malpractice case for developmental and neurological injury to a new-born baby. The pregnant plaintiff had gestational diabetes and was taken into the hospital so labor could be induced using Pitocin. Due to abnormalities in the fetus's heart rate, the baby was delivered by C-Section.
On defendants' summary judgment motion, The Court knocked out some of the medical malpractice victims' claims, and let some stand.
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The plaintiffs commenced this medical malpractice action against, among others, Dr. Kalinsky, Dr. Lasser, and the hospital, alleging that various deviations from accepted medical practice by these defendants in prenatal care, during labor and delivery, and in treating the infant plaintiff after birth proximately caused the infant plaintiff's neurological and developmental injuries. Thereafter, each of these defendants moved for summary judgment dismissing the complaint insofar as asserted against each of them.
The defendant Jay Kalinsky and his practice, the defendant Obstetrics and Gynecology Associates, provided prenatal treatment to the medical malpractice plaintiff Stephanie Garbowski during her pregnancy in 2001, which was complicated by a diagnosis of gestational diabetes. In accordance with his standard practice of treatment for patients with gestational diabetes, Dr. Kalinsky made the decision to induce labor at the defendant Hudson Valley Hospital Center which involved the administration of Pitocin, a labor-inducing medication that required electronic monitoring of the fetal heart rate. During labor, a number of late decelerations in the fetal heart rate were detected, and Dr. Kalinsky made the decision to deliver the infant plaintiff by cesarean section. The defendant Michael Lasser was the attending pediatrician during the infant plaintiff's delivery and hospitalization and provided care and treatment to the medical malpractice infant plaintiff in the months after his birth.
The Supreme Court denied those branches of Dr. Kalinsky's motion which were for summary judgment dismissing the complaint insofar as asserted against him to the extent the complaint alleges a failure to continually monitor the fetal heart rate during the administration of Pitocin and a failure to perform a more timely cesarean section, but otherwise granted the motion for summary judgment dismissing the complaint insofar as asserted against him. The Supreme Court also denied the hospital's motion as to the plaintiffs' cause of action alleging a failure on the part of its nursing staff to continually monitor the fetal heart rate during the administration of Pitocin, but otherwise granted the motion for summary judgment dismissing the remainder of the complaint insofar as asserted against it. The Supreme Court granted Dr. Lasser's motion for summary judgment dismissing the complaint insofar as asserted against him. The plaintiffs appeal, and Dr. Kalinsky and the hospital separately cross-appeal. We affirm.
"On a motion for summary judgment, a defendant doctor has the burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby" ( Heller v. Weinberg, 77 AD3d at 622-623; see Stukas v. Streiter, 83 AD3d at 24; Dolan v. Halpern, 73 AD3d at 1118). "The requisite elements of proof in a medical malpractice action are a deviation or departure from accepted community standards of practice and evidence that such departure was a proximate cause of injury or damage" ( Heller v. Weinberg, 77 AD3d 622, 622; see Stukas v. Streiter, 83 AD3d 18; Dolan v. Halpern, 73 AD3d 1117, 1118). In opposition, "a plaintiff must submit evidentiary facts or materials to rebut the defendant's prima facie showing, so as to demonstrate the existence of a triable issue of fact" ( Deutsch v. Chaglassian, 71 AD3d 718, 719; see Stukas v. Streiter, 83 AD3d at 24; Brady v Westchester County Healthcare Corp., 78 AD3d 1097, 1098). "General allegations of medical malpractice, merely conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice, are insufficient to defeat defendant physician's summary judgment motion" ( Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 325; see Deutsch v. Chaglassian, 71 AD3d at 719).
The hospital established its prima facie entitlement to judgment as a matter of law by submitting, inter alia, an expert affirmation asserting that the Hospital nursing staff did not deviate from accepted standards of medical practice and that, in any event, any departure was not the proximate cause of the infant plaintiff's injuries. In opposition, the plaintiffs' two medical experts raised a triable issue of fact by asserting that the nursing staff failed to continuously monitor the fetal heart rate during the administration of Pitocin, and that this deviation from accepted medical practice proximately caused the infant plaintiff's injuries (see Costello v. Kirmani, 54 AD3d 656, 657). However, the affirmations of the plaintiffs' experts, including the entirety of an affirmation from a registered nurse, were otherwise conclusory and failed to address the specific assertions of the hospital's expert with respect to the remaining theories of liability asserted against it. Accordingly, the Supreme Court properly granted the hospital's motion for summary judgment dismissing the complaint insofar as asserted against it except to the extent that the complaint alleges a failure to continually monitor the fetal heart rate.
Here, Dr. Kalinsky established his prima facie entitlement to judgment as a matter of law by submitting, inter alia, his deposition testimony and his affidavit, in which he asserted that he did not deviate from accepted standards of medical practice (see Joyner-Pack v. Sykes, 54 AD3d 727, 729; Thomas v. Richie, 8 AD3d 363, 364), and an affirmation from an expert who opined that the cause of the infant plaintiff's injuries was genetically based and, thus, any departure from accepted standards of medical practice was not the proximate cause of the injuries. However, in opposition, the plaintiffs raised triable issues of fact by submitting affirmations of two physicians asserting that Dr. Kalinsky failed to continuously monitor the fetal heart rate during the administration of Pitocin and failed to initiate an emergent C-section rather than an urgent C-section, and that these deviations from accepted medical practice proximately caused the infant plaintiff's injuries (see Brady v Westchester County Healthcare Corp., 78 AD3d at 1099; Feinberg v. Feit, 23 AD3d 517, 519; Erbstein v. Savasatit, 274 A.D.2d 445, 445-446; cf. Shectman v. Wilson, 68 AD3d 848, 849-850). Contrary to the plaintiffs' contention, however, their expert affirmations were otherwise conclusory and failed to address the specific assertions of Dr. Kalinsky with respect to the remaining theories of liability asserted against him (see Alvarez v. Prospect Hosp., 68 N.Y.2d at 325; Graziano v. Cooling, 79 AD3d 803, 804-805). Accordingly, the Supreme Court properly granted those branches of Dr. Kalinsky's motion which were for summary judgment dismissing the complaint insofar as asserted against him except to the extent that the complaint alleges a failure by Dr. Kalinsky to continually monitor the fetal heart rate during the administration of Pitocin and a failure to perform a more timely cesarean section.
Dr. Lasser established his prima facie entitlement to judgment as a matter of law by submitting, inter alia, an expert affirmation asserting that he did not deviate from accepted standards of medical practice and that, in any event, any departure was not the proximate cause of the infant plaintiff's injuries. In opposition, the plaintiffs failed to raise a triable issue of fact with respect to any departure from accepted standards of medical practice on the part of Dr. Lasser, as their expert in pediatrics and neurology offered conclusory and unsubstantiated allegations of malpractice (see Alvarez v. Prospect Hosp., 68 N.Y.2d at 325; Simmons v. Brooklyn Hosp. Ctr., 74 AD3d 1174, 1178; Ramsay v. Good Samaritan Hosp., 24 AD3d 645, 647). Accordingly, the Supreme Court properly granted Dr. Lasser's motion for summary judgment dismissing the complaint insofar as asserted against him.
In an action to recover damages for medical malpractice, etc., the plaintiffs appeal from so much of an order of the Supreme Court, Westchester County (Smith, J.), dated February 3, 2010, as granted those branches of the motion of the defendants Obstetrics and Gynecology Associates and Jay Kalinsky which were for summary judgment dismissing the complaint insofar as asserted against them except to the extent the complaint alleges a failure by those defendants to continually monitor the fetal heart rate during the administration of Pitocin and a failure to perform a more timely cesarean section, granted those branches of the motion of the defendant Hudson Valley Hospital Center which were for summary judgment dismissing the complaint insofar as asserted against it except to the extent the complaint alleges a failure by that defendant to continually monitor the fetal heart rate, and granted the motion of the defendant Michael Lasser for summary judgment dismissing the complaint insofar as asserted against him, the defendant Hudson Valley Hospital Center cross-appeals from so much of the same order as denied that branch of its motion which was for summary judgment dismissing the complaint insofar as asserted against it to the extent the complaint alleges a failure to continually monitor the fetal heart rate, and the defendants Obstetrics and Gynecology Associates and Jay Kalinsky separately cross-appeal from so much of the same order as denied those branches of their motion which were for summary judgment dismissing the complaint insofar as asserted against them to the extent the complaint alleges a failure by those defendants to continually monitor the fetal heart rate during the administration of Pitocin and a failure to perform a more timely cesarean section.
ORDERED that the order is affirmed insofar as appealed and cross-appealed from, with one bill of costs to the defendant Michael Lasser, payable by the plaintiffs.
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.
Court: Supreme Court, Appellate Division, Second Department, New York.
Case: Vellios v. Green Apple
Date: May 31, 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: Let's get this straight once and for all, people. A tree well or tree pit is a cut-out in the sidewalk, found all over New York City's boroughs - Queens, Brooklyn, Bronx, etc. - where trees are planted. Now, repeat after me. "Tree well are owned by the City of New York, not the owner of the adjacent house or building." Unless the homeowner does something special to make the tree well more dangerous, such as putting up a little fence or placing some slippery bricks down, the homeowner or building owner is not liable or responsible if there is an accident.
For cases like the one discussed below, I blame lawyer stupidity. This accident happened in Brooklyn. The accident victim-plaintiff caught the front wheels of his walker in a tree well. Are they kidding? I must say, cases like this give us accident and injury lawyers a bad name. Really. And they waste the judges' time.
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In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Velasquez, J.), dated October 16, 2009, which granted the motion of the defendants Carmine Pellone and Rosemary Pellone, and the cross motion of the defendant Green Apple, for summary judgment dismissing the complaint insofar as asserted against them.
ORDERED that the order is affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs.
On June 23, 2006, the plaintiff was walking with the aid of a walker when the front wheels of that walker went into a tree well and he lost his balance and fell, allegedly sustaining injuries. The accident occurred in front of premises located on Kings Highway in Brooklyn, which was owned by the defendants Carmine Pellone and Rosemary Pellone (hereinafter the Pellones) and occupied by the defendant Green Apple (hereinafter Green Apple), a commercial tenant.
In support of their motion and cross motion for summary judgment, the Pellones and Green Apple, respectively, established their prima facie entitlements to judgment as a matter of law by demonstrating that they had no duty to maintain the tree well, which is owned by the City of New York (see Vucetovic v. Epsom Downs, Inc., 10 N.Y.3d 517, 860 N.Y.S.2d 429, 890 N.E.2d 191; see also 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, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642). In opposition, the plaintiff failed to raise a triable issue of fact.
The plaintiff's remaining contentions are without merit.
Accordingly, the Supreme Court correctly granted the motion and cross motion for summary judgment.
Case: Messiana v. Eleni Drivas
Court: Supreme Court, Appellate Division, Second Department, New York.
Date: June 7, 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 another defense at summary judgment to try to throw out (dismiss) the accident victim's case for failure to breach New York's No-Fault "serious injury" threshold.
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FIRST, the defense made its case.
The defendants established, prima facie, that the plaintiff Daniel Messiana (hereinafter the appellant), who allegedly sustained injuries to, inter alia, the lumbosacral and cervical regions of his spine as a result of the subject accident, did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of that accident (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345; Gaddy v. Eyler, 79 N.Y.2d 955). The defendants submitted competent medical evidence establishing, prima facie, among other things, that the alleged injuries to the lumbosacral and cervical regions of the appellant's spine did not constitute serious injuries within the meaning of Insurance Law § 5102(d) (see Rodriguez v. Huerfano, 46 AD3d 794, 795).
SECOND, the accident victim returned the defense volley.
However, in opposition, the appellant submitted competent medical evidence raising a triable issue of fact as to whether the alleged injuries to the lumbosacral and cervical regions of his spine constituted serious injuries under the permanent consequential limitation of use and/or significant limitation of use categories of Insurance Law § 5102(d) (see Dixon v. Fuller, 79 AD3d 1094, 1094-1095). He also provided an adequate explanation for the cessation of his medical treatment (see Abdelaziz v. Fazel, 78 AD3d 1086).
THIRD, the defense tried to be cute. It tried to raise an issue as to the accident victim's prior (old) injury. The defense tried to stick the "burden" on the accident victim to show that the injury benig sued for in THIS case were recent and related to THIS accident. The appeals court showed some good sense and wasn't buying. It found that the defense had to show that the injuries being sued for in this case were old. Only then would the accident victim have to show the injuries wer recent. See the court's language, below:
Contrary to the determination of the Supreme Court, in opposing the defendants' motion, the appellant was not obligated to "address" the issue of whether the alleged injuries to the lumbosacral and cervical regions of his spine were caused by the subject accident, as opposed to a prior accident he was involved in, in which he sustained injuries to those regions. As the appellant pointed out when moving for leave to reargue, the defendants did not argue, or submit any evidence on their motion for summary judgment to establish, that the alleged injuries to those regions were caused by the prior accident. Thus, the defendants did not make a prima facie showing that those alleged injuries were caused by the prior accident (see Hightower v. Ghio, 82 AD3d 934, 935). "Therefore, the burden did not shift to the [appellant] to raise a triable issue of fact as to whether [those alleged] injuries were caused by the subject accident" (id. at 935; see Stukas v. Streiter, 83 AD3d 18, 24-25; cf. Franchini v. Palmieri, 1 NY3d 536).
Case: In the Matter of AIU Insurance Company v. Delroy Hibbert, et al.
Court: Supreme Court, Appellate Division, Second Department, New York.
Filed: June 7, 2011
From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx; Brooklyn Queens accident injury attorney)
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On January 31, 2004, the accident victim-respondents were involved in an automobile accident when the vehicle in which they were traveling was struck in the rear by a motor vehicle, which was pushed into the accident victims' vehicle by a vehicle insured by nonparty Travelers Insurance Company (hereinafter Travelers).
The accident victims' vehicle was insured under a policy of insurance issued by the petitioner AIU Insurance Company (hereinafter AIU) to the respondent Delroy Hibbert. The other passengers in the insured vehicle at the time of the accident, which includes two of the other accident victims, were considered "insured" persons under the provisions of the AIU policy.
Travelers, as the tortfeasor's insurer, paid $15,000 to respondent Gina Stewart, $5,000 to the respondent Delroy Hibbert, and $5,000 to the respondent Phyllis Hibbert. It also paid $25,000 to another passenger in the insured vehicle, nonparty Sharon Stewart, exhausting its bodily injury liability coverage of $50,000.
Subsequently, the accident victims made a demand for arbitration of their claims under the AIU policy's endorsement for supplementary uninsured/underinsured motorist (hereinafter SUM) benefits in the total sum of $50,000. The AIU policy was underwritten with SUM benefits in the amount of $25,000 per person and $50,000 per accident, which was equal to its bodily injury liability limits.
AIU filed a petition which sought, in part, to permanently stay the arbitration. The Supreme Court denied that branch of AIU's petition seeking to stay the arbitration. We reverse.
Since the AIU policy had identical bodily injury liability policy limits as the Travelers policy issued to the tortfeasor, the tortfeasor's vehicle was not underinsured (see Insurance Law § 3420[f][2][A]; Matter of Allstate Ins. Co. v. Rivera, 12 NY3d 602, 607-608; Matter of Prudential Prop. & Cas. Co. v Szeli, 83 N.Y.2d 681, 684). Payment by Travelers to the other passenger in the insured vehicle in the amount of $25,000 did not render the tortfeasor's vehicle "underinsured" for the purpose of triggering the AIU SUM endorsement since the other passenger was also an "insured" under the AIU policy and not an "other person" (11 NYCRR 60-2.3[f]; Matter of Allstate Ins. Co. v. Rivera, 12 NY3d at 609-610). Therefore, AIU correctly contends that the Travelers bodily injury policy limits were equal to its own since it did not have to reduce the Travelers policy limits by payments made on behalf of the tortfeasor to any of the occupants in the AIU insured vehicle (see Matter of Allstate Ins. Co. v Rivera, 12 NY3d at 610).
Moreover, AIU was entitled to offset the $50,000 received by its insureds from Travelers against its own SUM limits, thereby precluding any recovery under the SUM endorsement (see 11 NYCRR 60-2.1[c] ).
Case: Theresa Poppke v. Portugese American Club of Mineola
Court: Supreme Court, Appellate Division, Second Department, New York.
Date: June 7, 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: This case presents a claim under New York's Dram Shop law. Basically, a seller of alcohol who makes an "illegal" sale is liable for injuries caused by the person who had the drink. Illegal sales include, most often, sales to persons that are visibly intoxicated or sales to underage drinkers.
Holding: The defendants failed to meet their respective burdens of demonstrating, prima facie, that the driver of the vehicle which struck the plaintiff-accident victim was not visibly intoxicated when sold alcohol
RELATED POSTS:
INJURED CHEERLEADER ASSUMED RISK; LOSES SUMMARY JUDGMENT TO SCHOOL (Posted by Brooklyn Queens accident injury lawyer Gary E. Rosenberg on May 30, 2011)
NO MEDICAL MALPRACTICE WHERE CANCER VICTIM REFUSED TESTS; DOCTOR WINS SUMMARY JUDGMENT(Posted by Brooklyn Queens accident injury lawyer Gary E. Rosenberg on May 29, 2011)
NO NOTICE OF CONDITION IN SUPERMARKET SLIP AND FALL; ACCIDENT VICTIM LOSES ON SUMMARY JUDGMENT (Posted by Brooklyn Queens accident injury lawyer Gary E. Rosenberg on May 28, 2011)
ICY SLIP AND FALL SIDEWALK ACCIDENT VICTIM DEFEATS SUMMARY JUDGMENT (Posted by Brooklyn Queens accident injury lawyer Gary E. Rosenberg on May 27, 2011)
DOCTOR'S REPORT CONTRADICTS INJURED CONSTRUCTION WORKER IN LADDER FALL; SUMMARY JUDGMENT DENIED (Posted by Brooklyn Queens accident injury lawyer Gary E. Rosenberg on May 24, 2011)
---------------------------
DECISION & ORDER
In an action to recover damages for personal injuries, the defendant Portugese American Club of Mineola appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Feinman, J.), dated July 27, 2010, as denied that branch of its motion which was for summary judgment dismissing the complaint insofar as asserted against it, and the defendant Mineola Portugese Center, Inc., separately appeals, as limited by its brief, from so much of the same order as denied that branch of its cross motion which was for summary judgment dismissing the complaint insofar as asserted against it.
ORDERED that the order is affirmed, with one bill of costs.
In order to establish entitlement to recovery pursuant to a cause of action under General Obligations Law § 11-101(1), a plaintiff is required to prove, inter alia, that the defendant sold alcohol to a person who was visibly intoxicated (see Adamy v. Ziriakus, 92 N.Y.2d 396, 400; Romano v. Stanley, 90 N.Y.2d 444, 447; Kelly v. Fleet Bank, 271 A.D.2d 654, 655). Proof of visible intoxication can be established by circumstantial evidence, including expert and eyewitness testimony (see Kish v. Farley, 24 AD3d 1198, 1200; Kelly v. Fleet Bank, 271 A.D.2d at 655; Roy v. Volonino, 262 A.D.2d 546, 547).
Contrary to their contentions, the defendants Portugese American Club of Mineola (hereinafter the Club) and the Mineola Portuguese Center, Inc. (hereinafter the Center), failed to meet their respective burdens of demonstrating, prima facie, that the driver of the vehicle which struck the plaintiff-accident victim was not visibly intoxicated when sold alcohol (see Aughenbaugh v Napper Tandy's of Northport, 78 AD3d 745, 746; McGovern v. 4299 Katonah, 5 AD3d 239, 240; Smith v. Blue Mtn. Inn, 255 A.D.2d 920). The Center's remaining contention is without merit. Consequently, the Supreme Court properly denied the respective branches of the motion and cross motion of the Club and the Center which were for summary judgment dismissing the complaint insofar as asserted against each of them, regardless of the sufficiency of the plaintiff's opposition papers (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324).
Date: June 7, 2011
Case: Quigley v. Frost Valley YMCA
Court: Supreme Court, Appellate Division, Second Department, New York.
From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx; Brooklyn accident injury lawyer)
In an action to recover damages for personal injuries suffered while horseback riding, the accident victim lost on defendant's motion for summary judgment. Plaintiff lost again on appeal.
RELATED POSTS:
INJURED CHEERLEADER ASSUMED RISK; LOSES SUMMARY JUDGMENT TO SCHOOL (Posted by Brooklyn accident injury 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 injury lawyer Gary E. Rosenberg on May 16, 2011)
ROLLERBLADER DID NOT ASSUME RISK OF SIDEWALK ACCIDENT (Posted by Brooklyn accident injury 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 by Brooklyn accident injury lawyer Gary E. Rosenberg on December 25, 2010)
BASEBALL GAME SPECTATOR ASSUMES RISK & CAN'T SUE FOR ACCIDENT (Posted by Brooklyn accident injury lawyer Gary E. Rosenberg on April 20, 2011)
Accident victim was mounting a horse at a stable owned by defendant. The horse ran a little and threw her. The courts throw out this case based on our old friend, "assumption of the risk."
Voluntary participants in a sporting activity are presumed to have consented to those risks which are known, apparent, or reasonably foreseeable (see Kirkland v. Hall, 38 AD3d 497, 498; Eslin v. County of Suffolk, 18 AD3d 698, 699; Kinara v Jamaica Bay Riding Academy, Inc., 11 AD3d 588). The defendant established its prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff assumed the risk of a horse acting in an unintended manner, which is a danger inherent in the sport of horseback riding (see Kinara v Jamaica Bay Riding Academy, Inc., 11 AD3d 588). In opposition, the plaintiff failed to raise a triable issue of fact as to whether the defendant created a heightened risk by its alleged negligent conduct (see Zuckerman v. City of New York, 49 N.Y.2d 557, 562; Glenn v. Annunziata, 72 AD3d 886, 887; Lipari v. Babylon Riding Ctr., Inc., 18 AD3d 824, 825).
Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint.
Product warning - reported by the New York Times
From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx; Brooklyn accident injury lawyer)
This consumer product danger is so new that the Consumer Product Safety Commission has just now opened an investigation.
The product is a gel or jelly-like fuel for outdoor ceramic lamps, that has a citronella scent to repel insects. New York, Brooklyn, Queens residents have been getting nasty burns in accidents with this product.
The fuel is called "FireGel," and sold as the Safe Pourable Gel.
RELATED POSTS:
DUMB PRODUCT RECALL: KNIFE IN AXE HANDLE CAN SLICE YOU BY ACCIDENT (Posted by Brooklyn accident injury lawyer Gary E. Rosenberg on March 24, 2011)
ABOUT TWO DIFFERENT CONSUMER PRODUCT RECALLS: RECLINING DESK CHAIRS (Posted by Brooklyn accident injury lawyer Gary E. Rosenberg on January 30, 2011)
PRODUCT RECALLS; ALL DUE TO ACCIDENTAL RISK OF INJURY DUE TO FIRE AND BURN HAZARD (Posted by Brooklyn accident injury lawyer Gary E. Rosenberg on December 19, 2010)
WILLIAMS-SONOMA RECALLS BABY BOTTLE WARMERS DUE TO DANGER OF BURNS (Posted by Brooklyn accident injury lawyer Gary E. Rosenberg on August 26, 2010)
RECALL OF DEHUMIDIFIERS THAT CATCH FIRE AND CREATE A BURN HAZARD (Posted by Brooklyn accident injury lawyer Gary E. Rosenberg on December 24, 2009)
Witnesses say it explodes like a firebomb. Like gasoline in a bottle, except it's more like napalm, which sticks on the skin and keeps burning. So the gel "cooks" your body.
Those reported injured in horrible Firegel accidents include a 14-year-old Long Island boy injured on May 28th and now fighting for his life, after trying to light a lamp for a backyard wedding, and a 24-year-old New York City man badly burned on June 3rd while sitting outside with a friend.
Relatives and survivors say the jelly-like product has insufficient warnings and does not indicate how it can inflict lethal injury in an accident. New York consumers' unfamiliarity with the fuel gel could pose a risk - especially if they try to refill lit lamps or lamps that are still hot.
Told by The New York Times about the two explosions in New York, Napa Home & Garden Inc., which manufactures the lamps and packages the fuel, asked Bed Bath & Beyond on Friday to recall both products from store shelves until it could add stronger accident prevention warning labels to both.
The parent of one 24-year-old accident victim is quoted as saying, "It should say 'lethal weapon."
The Consumer Product Safety Commission announced that it was opening an investigation into this product.
The CPSC said it had received eight reports of explosions or burns involving firepots or fuel gel, several of them serious, since April 2010, not counting the New York cases.
It is unclear what companies produced the products involved in those cases.
There may very well be products liaiblity lawsuits brought in the future on behalf of these burned New York accident victims. Beware residents of Brooklyn and Queens.
Case: Caldwell v. Cablevision Systems Corp.
Court: Supreme Court, Appellate Division, Second Department, New York.
Date: May 31, 2011
From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx; Brooklyn accident injury attorney)
Comment: A very interesting case having to do with a witness to an accident. A witness who is asked to testify must be paid $15.00. The question in his case Is can a party to a lawsuit pay a witness more? And what if it does?
Is the witness's testimony inadmissible? Or, must a jury be given specific jury instructions pertaining to potential bias?
RELATED POSTS:
BIKE RIDER THROWN BECAUSE OF TREE WELL CAN'T SUE CITY WITHOUT "PRIOR WRITTEN NOTICE" (Posted by Brooklyn accident injury attorney Gary E. Rosenberg on June 8, 2011)
NO MEDICAL MALPRACTICE WHERE CANCER VICTIM REFUSED TESTS; DOCTOR WINS SUMMARY JUDGMENT (Posted by Brooklyn accident injury attorney Gary E. Rosenberg on May 29, 2011)
DOCTOR'S REPORT CONTRADICTS INJURED CONSTRUCTION WORKER IN LADDER FALL; SUMMARY JUDGMENT DENIED (Posted by Brooklyn accident injury attorney Gary E. Rosenberg on May 24, 2011)
COURT TOSSES SIDEWALK ACCIDENT CASE AFTER VERDICT FOR WRONG PRIOR NOTICE (Posted by Brooklyn accident injury attorney Gary E. Rosenberg on May 14, 2011)
NYPD DETECTIVE CHARGED WITH PERJURED TRIAL TESTIMONY (Posted by Brooklyn accident injury attorney Gary E. Rosenberg on December 18, 2007)
The accident defendant was hired to install fiber-optic cable underground in upstate New York.
To install the cable, the defendant cut a 3,000 foot long-trench. Next to the trench were exploratory holes it made so it could locate existing underground utility lines.
The injured was walking her dog in the rain when she tripped and fell in the road. At the time of the injured plaintiff's accident, the defendant had previously dug and backfilled the trench and test pits, but had not repaved the road.
The accident victim claims that the defendant had thereby created a dangerous condition which was the cause of the accident.
The case took its normal course and eventually came to trial.
The action proceeded to trial, at which the injured plaintiff testified that she fell when she tripped on a "dip" in one of the test pits along the trench. To counter plaintiff's testimony, the defendant called as a witness Dr. Barry Krosser, an orthopedic surgeon who had examined the injured plaintiff in an emergency room after the accident. Dr. Krosser was called during the liability phase of the trial solely to testify as a fact witness, a to the description of the accident given to him by the injured plaintiff and recorded in his hospital chart.
Dr. Krosser's note was admitted into evidence as a business record. Based upon the note, as opposed to his independent recollection, Dr. Krosser testified that plaintiff told him that she had tripped over her dog in the rain. Dr. Krosser further testified that he was appearing by virtue of a subpoena served upon him by defense counsel, and that the defendant was paying him for his lost time in the sum of $10,000.
Plaintiff's attorney was allowed to cross-examine Dr. Krosser regarding this payment. Dr. Krosser testified that he was normally paid a large fee when he came to court to testify as a medical expert witness.
The plaintiff's attorney moved to strike Dr. Krosser's testimony on the ground that it was improper for the defendant to have paid $10,000 to a fact witness. Alternatively, the plaintiffs' attorney sought a jury instruction pertaining specifically to the payment.
The defense attorney opposed the motion, arguing that the defendant was allowed to pay Dr. Krosser for the time he was taken away from his medical practice.
The case ended in a defendant's verdict, the accident victim's case was denied - she was, essentially, thrown out of court.
On appeal the injured plaintiff claims that Dr. Krosser's testimony should have been stricken or, alternatively, that the jury should have been specifically instructed as to the potential bias created by the $10,000 payment made to the witness.
The appeals court notes: "the propriety of such payments is questionable from a public policy standpoint. '[T]he giving of testimony as to facts within one's knowledge is a matter of public duty'; it is an "inherent burden of citizenship," which requires no compensation." Agreements where witnesses ask for large payments to secure their appearance and testimony in court, threaten the integrity of the judicial system by giving the appearance that justice is a commodity.
But, this is permitted.
There is a difference between compensating a witness for the reasonable value of lost time and paying a witness for his or her testimony. Where a fact witness is compensated for losses, he or she does not stand to gain anything by giving testimony but, rather, is kept in the same position as if he or she had not been required to take the time to testify. Payment to a fact witness which bears no relation to the witness's reasonable losses, on the other hand, is nothing more than a fee for testifying that permits "strangers to [the] litigation" to "profit" from it. The boundary between the two is fuzzy.
The plaintiff asserts that paying $10,000 to Dr. Krosser for one afternoon of his time spent in court testifying does not constitute reasonable compensation for time lost and his testimony
should be ruled to be inadmissible. The defendant maintains that the payment, which was made directly to Dr. Krosser's medical practice, was proper compensation for the time that Dr. Krosser, an orthopedic surgeon, could otherwise have spent seeing patients or performing surgery.
The defendant suggests that the payment made to Dr. Krosser was commensurate with the amount Dr. Krosser ordinarily charges to testify as an expert. There are, however, important differences between expert witnesses and fact witnesses. Experts are under no public duty, nor can they be compelled, to testify.
The testimony of a particular expert is not ordinarily necessary to the resolution of a case in the same manner as is the testimony of a fact witness who has personal knowledge peculiar to the case at hand. Thus, while fact witnesses have a public duty to testify and are limited to receipt of statutory fees and compensation for lost time, expert witnesses are justified in receiving compensation for their efforts.
We need not determine whether the payment to Dr. Krosser was reasonable in order to resolve this appeal. The question, rather, is what effect the payment to the fact witness had on the action in which that witness's testimony was presented.
Here, as in cases in which interested witnesses testify or in which testimony is induced by a promise of a reduced sentence, "we have confidence in the jury's ability to assess counsels' arguments" about the suspect credibility of factual testimony by a paid fact witness and "to evaluate [that] witness' credibility accordingly."
Even assuming that the $10,000 payment was unreasonable, the exclusion of Dr. Krosser's testimony was not the required remedy in this case.
Therefore, we conclude that the appropriate remedy in a case such as this one, where one might reasonably infer that a fact witness has been paid a fee for testifying, is to permit opposing counsel to fully explore the matter of compensation on cross-examination and summation, and to leave it for a properly instructed jury to consider whether the payment made to the witness was, in fact, disproportionate to the reasonable value of the witness's lost time and, if so, what effect, if any, that payment had on the witness's credibility.
In fashioning this remedy, we note that we are not presented with a situation in which a fact witness was paid a fee contingent upon the outcome of the litigation. We also do not foreclose the possibility that, in certain cases, the disproportionality of the payment to the reasonable value of the witness's lost time might be determinable as a matter of law, in which case the court would instruct the jury accordingly. The only question then left for the jury would be the effect, if any, of the payment on the witness's credibility.
In this case, the Supreme Court properly allowed the plaintiffs' counsel to cross-examine Dr. Krosser without limitation regarding the $10,000 payment that was made to him, and also properly permitted counsel to adequately address the issue in summations. The Supreme Court erred, however, in denying the plaintiffs' request for an explicit instruction to the jury regarding witness compensation.
Although the trial court here failed to give a specific instruction regarding fact-witness compensation to the jury, under the particular circumstances of this case, the charge error does not require reversal.
Just as a jury that hears testimony in a criminal trial from a witness who is testifying in exchange for a promise of leniency is given a specific instruction regarding the possibility of bias, we conclude that, in light of the important public policy considerations concerning fees paid to fact witnesses, more than the general credibility charge is also warranted where, as here, a reasonable inference can be drawn that a fact witness has been paid an amount disproportionate to the reasonable value of his or her lost time. While the Supreme Court instructed the jury that it should consider bias or prejudice in determining the weight to be given to any particular witness's testimony, this general charge was insufficient under the circumstances. In crafting an appropriate instruction, trial courts should bear in mind the general principles regarding fact-witness testimony heretofore discussed, including a fact witness's public duty to testify for the statutory fee of $15; the permissibility of voluntary compensation for the reasonable value of time spent in testifying; the goal of drawing the line between compensation that merely eases the burden of testifying and that which tends to unintentionally influence testimony; the inference, which may be drawn from the disproportionality of the payment to the reasonable value of lost time, that a fee for testimony has been paid; and the potential for unconscious bias that such a fee may create.
Dr. Krosser was called as a witness by the defendant for the sole purpose of testifying as to a single fact recorded in his chart. Dr. Krosser had no personal recollection of speaking with the accident victim and his testimony was based only on what he wrote down on the day of the accident. The credibility of Dr. Krosser's testimony is not in question, the injured plaintiff disputes the accuracy of the note itself.
KINGS COUNTY COMMUNITIES
Serving Brooklyn neighborhoods of: Bath Beach, Bay Ridge, Bedford-Stuyvesant, Bensonhurst, Bergen Beach, Boerum Hill, Borough Park, Brighton Beach, Broadway Junction, Brooklyn Heights, Brownsville, Bushwick, Canarsie, Carroll Gardens, City Line, Clinton Hill, Cobble Hill, Coney Island, Crown Heights, Cypress Hills, Ditmas Park, Downtown Brooklyn, DUMBO, Dyker Heights, East Flatbush, East New York, Flatbush, Flatlands, Fort Greene, Fort Hamilton, Fulton Ferry, Georgetown, Gerritsen Beach, Gowanus, Gravesend, Greenpoint, Highland Park, Homecrest, Kensington, Manhattan Beach, Marine Park, Midwood, Mill Basin, New Lots, Ocean Hill, Ocean Parkway, Paerdegat Basin, Park Slope, Plum Beach, Prospect Heights, Prospect Lefferts Gardens, Prospect Park South, Red Hook, Remsen Village, Rugby, Sea Gate, Sheepshead Bay, Spring Creek, Sunset Park, Vinegar Hill, Williamsburg, Windsor Terrace and Wingate.
Case: Mattern v. Hornell Brewing Co., Inc.
Court: Supreme Court, Appellate Division, Second Department, New York.
Date: May 31, 2011
From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx; Brooklyn accident injury lawyer)
Accident victim sued a Suffolk County deli, the Arizona iced tea company, and several others claiming that he was injured by swallowing pieces of glass while drinking from a 20-ounce glass bottle in a products liability case. The bottle was covered in a label made of plastic "shrink wrap."
The company that made the bottle made a motion to ask the court to allow its expert to fill the bottle with water, take the plastic shrink wrap label off of the bottle, and examine and test the bottle. Everyone else in the lawsuit (including the injured plaintiff/accident victim) opposed letting the manufacturer remove of the label because it would destroy the bottle. On October 13, 2010, the lower court granted the bottle manufacturer's motion. The appeals court modified the order.
RELATED POSTS:
LEAD PAINT LEADS TO RECALL OF WOODEN TOYS (Posted by Brooklyn accident injury lawyer Gary E. Rosenberg on January 10, 2010)
LACERATION/CUTTING HAZARD CAN SLICE AND DICE AND INJURE CONSUMERS (Posted by Brooklyn accident injury lawyer Gary E. Rosenberg on January 21, 2010)
WIND CHIME TOYS RECALLED; THEY PRESENT PUNCTURE AND LACERATION HAZARDS TO CHILDREN (Posted by Brooklyn accident injury lawyer Gary E. Rosenberg on February 13, 2010)
PARTY BROKEN UP BY SHOWER OF BROKEN GLASS (Posted by Brooklyn accident injury lawyer Gary E. Rosenberg on February 28, 2010)
RECALL OF CRATE AND BARREL BRAND GLASS WATER BOTTLES; THEY PRESENT RISK OF ACCIDENT AND INJURY DUE TO LACERATION HAZARD (Posted by Brooklyn accident injury lawyer Gary E. Rosenberg on April 6, 2010)
Comment: Dear Readers: What happened here is yet another example of bad lawyering.
The appeals court properly points out that if a party to a lawsuit wants to destroy evidence by testing it, it must justify the reason for so doing and show why nondestructive testing is not good enough. Going further, the party seeking to do this must completely describe the tests it intends to perform, and tell everyone the extent ot which each test will change or destroy the object being tested (here, a bottle).
Comment: This seems like a simple enough rule. To get around it, whoever wants to test must submit an affidavit to the court giving this information and, ideally, it should come from an expert (probably with fancy, schmancy credentials) who's actually going to perform the testing.
In this case, the bottle manufacturer, "failed to establish the basis for its belief that nondestructive testing was inadequate and failed to indicate the extent to which its proposed testing would alter or destroy the bottle."
Comment: I'm guessing the bottle maker didn't put in an affidavit with its motion requesting permission to destroy the bottle. Evidently it tried to cover its own butt by putting in an expert affidavit in its reply papers - a no, no becuase by then it was too late.
But the appeals court decided it was o.k. to let the bottle manufacturer put water into the bottle. Whatever good that will do, I couldn't say.
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.
Court: Supreme Court, Appellate Division, First Department, New York.
Case: Tucker v. The City of New York
Date: May 26, 2011
From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx; Brooklyn accident injury attorney)
RELATED POSTS:
INJURED WHEN STAIRS COLLAPSE, ACCIDENT VICTIM CAN'T SUE: NO NOTICE OF DEFECT (Posted by Brooklyn accident injury attorney Gary E. Rosenberg on May 6, 2011)
NEW YORK CITY BUS KILLS BICYCLIST, KEEPS GOING (Posted by Brooklyn accident injury attorney Gary E. Rosenberg on March 26, 2011)
BICYCLE HELMETS PROTECT CHILDREN'S BRAINS IN CASE OF AN ACCIDENT (Posted by Brooklyn accident injury attorney Gary E. Rosenberg on February 28, 2011)
DRIVER WHO OPEN DOOR AND FORCED BICYCLIST UNDER BUS CHARGED WITH FELONY "LEAVING THE SCENE" (Posted by Brooklyn accident injury attorney Gary E. Rosenberg on January 31, 2011)
BICYCLIST PLOWS INTO PEDESTRIAN IN MANHATTAN'S CENTRAL PARK, AND KEEP GOING (Posted by Brooklyn accident injury attorney Gary E. Rosenberg on August 8, 2010)
It is well established that the City of New York can't be sued for an accident because of a broken or defective sidewalk unless it was sent "prior written notice" of the condition.
This is usually a high hurdle.
The question in this case and appeal is whether the New York City's Pothole Law mandates that an accident victim prove that the City received prior written notice of a defect in a tree pit in a sidewalk.
The question becomes if a tree pit is part of a sidewalk. In this case, plaintiff was injured when his bicycle hit a tree pit or well, throwing him off the bike.
The appeals court here interprets a case from New York's highest court, the Court of Appeals, named Vucetovic. It finds that a tree well is part of a sidewalk.
In Vucetovic, the Court of Appeals, "guided by the principle that 'legislative enactments in derogation of common law, and especially those creating liability where none previously existed,' must be strictly construed," held that "section 7-210 does not impose civil liability on property owners for injuries that occur in city-owned tree wells" ( 10 NY3d at 521 [citation omitted] ).
Section 7-210 of the N.Y.C. Administrative Code, which was enacted "in an effort to transfer tort liability from the City to adjoining property owners as a cost-saving measure" thereby creating new liability, provides, in pertinent part:
"a. It shall be the duty of the owner of real property abutting any sidewalk, including, but not limited to, the intersection quadrant for corner property, to maintain such sidewalk in a reasonably safe condition.
"b. Notwithstanding any other provision of law, the owner of real property abutting any sidewalk, including, but not limited to, the intersection quadrant for corner property, shall be liable for any injury to property or personal injury, including death, proximately caused by the failure of such owner to maintain such sidewalk in a reasonably safe condition. Failure to maintain such sidewalk in a reasonably safe condition shall include, but not be limited to, the negligent failure to install, construct, reconstruct, repave, repair or replace defective sidewalk flags and the negligent failure to remove snow, ice, dirt or other material from the sidewalk.
"c. Notwithstanding any other provision of law, the city shall not be liable for any injury to property or personal injury, including death, proximately caused by the failure to maintain sidewalks ... in a reasonably safe condition."
Section 7-201(c)(2) was enacted to address "the vexing problem of municipal street and sidewalk liability." Recognizing "the reality that municipal officials are not aware of every dangerous condition on its streets and public walkways," the section ensures that the City receives written notice of defects in the public way so that it may repair a problem before there is liability. In contrast to section 7-210, which is limited to sidewalks, section 7-201(c)(2) provides:
"No civil action shall be maintained against the city for damage to property or injury to person or death sustained in consequence of any ... sidewalk ... or any part or portion of any [sidewalk] including any encumbrances thereon or attachments thereto, being out of repair, unsafe, dangerous or obstructed, unless it appears that written notice of the defective, unsafe, dangerous or obstructed condition, was actually given to the commissioner of transportation or any person or department authorized by the commissioner to receive such notice" (emphasis added).
This broad language, encompassing a sidewalk and "any encumbrances thereon or attachments thereto," is addressed to the features of a sidewalk, and not to the type of maintenance work to be performed, and requires a plaintiff to show that the City received prior written notice of the alleged tree well defect, a soil level below the sidewalk area, in violation of 34 RCNY 2-09(f)(4)(xx)(B).
We reject the argument that a tree well is not an "encumbrance" on or an "attachment" to the sidewalk, but an area adjacent to and separate and distinct from the sidewalk. While the terms "encumbrances thereon or attachments thereto" are not defined in the statute, the American Heritage Dictionary of the English Language 589 (4th ed.2006) defines an encumbrance as "a burden or impediment." It defines an impediment as "something that impedes, a hindrance or obstruction." (id. at 879). As the photographs in the record before us demonstrate, the tree well is inserted into the sidewalk, which surrounds it on three sides, and is clearly an impediment to pedestrians who traverse the sidewalk.
Plaintiff's argument that excluding tree wells from Administrative Code § 7-210 while including them in § 7-201(c)(2) would lead to an illogical outcome ignores the difference in the language employed in the two sections.
Given the applicability of the Pothole Law, the lack of prior written notice of the alleged defect, and the absence of any evidence that the City created the alleged defect through an affirmative act of negligence or made a special use of the subject tree well, the City may not be held liable even if it had actual or constructive notice of the alleged defect, and notwithstanding that, as it happens, it owns the abutting property.
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.
Court: Supreme Court, Appellate Division, Second Department, New York.
Case: Mose v. Sangiovanni
Date: May 17, 2011.
From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx; Brooklyn accident injury lawyer)
Comment: A tough loss for the injured accident victim, but you'll see how this could happen if your accident lawyer is not super experienced and extra careful.
Accident plaintiff loses and case dismissed because case is barred by the three-year statute of limitations.
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This action arises out of a motor vehicle accident that occurred on July 4, 2006.
The case started as an uninsured motorist accident claim. The accident victim exercised his right under his insurance policy and on July 23, 2008, demanded uninsured motorist arbitration from his insurance carrier, Allstate.
Allstate went to court to stop the arbitration. Allstate submitted papers showing that the Chevrolet pickup truck that he had the accident with was covered by insurance - if true, the injured accident victim could not collect from Allstate. He would have to go against the pickup truck and its insurance.
On December 2, 2008, the lower court granted Allstate's petition for an order staying (freezing) the arbitration and ordered a hearing to determine whether the pickup truck had insurance.
Then the lawyer for the accident victim (Mose) messed up, because he or she did nothing. The lawyer should have started a lawsuit against the pickup truck's owner and driver as a "just in case" for what happened next.
On July 30, 2009, the date the hearing was supposed to take place, the pickup truck's insurance company admitted that it insured the pickup truck. And this is when, most likely, the injured plaintiff's lawyer realized he or she had a problem.
That lawyer tried to make a deal in court. The plaintiff's counsel stated that the plaintiff would withdraw his demand for arbitration if the court would rule that the three-year statute of limitations in would be tolled (frozen) during the period that the lower stayed the arbitration pending the hearing - this way, the accident victim's lawyer figured, the three-year time limit to sue would not be blown.
Without any further argument, the lower court (probably figuring why not? And giving the accident victim's lawyer a break) ruled that the statute of limitations was tolled from the initial date of the stay of arbitration until July 30, 2009.
On July 31, 2009, the plaintiff commenced a regular lawsuit for personal injuries (this one) against the pickup truck's owner and driver. The defendants moved to dismiss the complaint pursuant to CPLR 3211(a)(5) on the ground that it was barred by the three-year statute of limitations and won.
The appeals court writes:
"Contrary to the plaintiff's contention, the Supreme Court's finding in the CPLR article 75 proceeding that the statute of limitations was tolled is not binding on the defendants in this action. "Collateral estoppel, or issue preclusion, 'precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party ... whether or not the tribunals or causes of action are the same' "
"The doctrine applies if the issue in the second action is identical to an issue which was raised, necessarily decided and material in the first action, and the [party] had a full and fair opportunity to litigate the issue in the earlier action"
The doctrine of collateral estoppel is inapplicable here because the Supreme Court's finding that the statute of limitations was tolled was a gratuitous finding that was not material to a determination of the CPLR article 75 proceeding
Court: Court of Appeals of New York
Case: Kabir v. County of Monroe
Date: Feb. 17, 2011
From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx; Brooklyn accident injury attorney)
Background: Driver of vehicle rear-ended by a vehicle driven by a county deputy sheriff brought action against deputy sheriff, county, and others to recover damages for injuries allegedly sustained in the accident. The Supreme Court, Monroe County, granted defendants' motion for summary judgment and denied driver's cross motion seeking partial summary judgment. Driver appealed. The Supreme Court, Appellate Division, reversed. Defendants appealed.
Holding: The Court of Appeals,, held that reckless disregard standard of liability for drivers of emergency vehicles only applied when driver was engaged in one of four categories of privileged conduct exempted from rules of the road. Affirmed.
The Court points out: The fact is, though, that in the majority of cases implicating Section 1104, the conduct allegedly causing the accident is, in fact, listed in subdivision (b).
Three judges (of seven) dissent.
Comment: This is a game-changing opinion for victims of police, ambulance or fire company carelessness that causes a motor vehicle accident. This is a 4 to 3 decision, so pay attention to the dissent.
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OPINION OF THE COURT
On this appeal, we hold that the reckless disregard standard of care in Vehicle and Traffic Law § 1104(e) only applies when a driver of an authorized emergency vehicle involved in an emergency operation engages in the specific conduct exempted from the rules of the road by Vehicle and Traffic Law § 1104(b). Any other injury-causing conduct of such a driver is governed by the principles of ordinary negligence.
I.
At 3:57 P.M. on September 20, 2004, the defendant police officer, a County Deputy Sheriff, received a radio dispatch directing him to respond to a stolen vehicle report. He soon received a second radio dispatch, which requested backup for another officer who was responding to a burglary alarm.
Because the 911 center categorized the burglary alarm as "classification one"--meaning "a serious call ... that ... needs immediate attention"--the deputy acknowledged the request, telling the dispatcher that he would assist with the burglary alarm before addressing the stolen vehicle report. The dispatcher transmitted information about the burglary call, including the address and the names of cross streets, to the mobile data terminal inside the deputy's vehicle.
The officer did not activate the emergency lights or siren on his vehicle; he was traveling at a speed of 25 to 30 miles per hour in a 40-mile-per-hour zone, and does not recall if he speeded up or slowed down after receiving the dispatch.
He touched the terminal and "looked down for two to three seconds" at the display "to view [the names of] the cross streets." When the deputy lifted his gaze, he realized that "traffic had slowed." Although he immediately applied his brakes, he was unable to stop before rearending the vehicle in front of him, which was driven by the injured accident plaintiff. The injured plaintiff had stopped for a red traffic light, and was just beginning to move forward when her car was hit.
The injured accident victim sued. The parties disputed whether Vehicle and Traffic Law § 1104 applied, making the officer liable for the accident only if he acted with "reckless disregard for the safety of others."
On September 26, 2008, Supreme (lower) Court awarded summary judgment to defendants, concluding that the officer's conduct was covered by Section 1104, and that the accident victim had not raised a triable issue of fact as to whether the officer acted with reckless disregard.
On December 30, 2009, the Appellate Division reversed, with two Justices dissenting. The majority held that the reckless disregard standard in Section 1104(e) is limited to accidents caused by conduct privileged under Section 1104(b). Because the officer's injury-causing conduct was not exempt under this provision, the majority concluded that "the applicable standard for determining liability [was] the standard of ordinary negligence."
The court further observed that "a rearend collision with a vehicle in stop-and-go traffic creates a prima facie case of negligence with respect to the operator of the rear vehicle"; therefore, "partial summary judgment on liability in favor of the person whose vehicle was rearended is appropriate in the absence of a nonnegligent explanation for the accident" Concluding that the accident victim had met her burden on the cross motion and that defendants had not put forward a nonnegligent explanation, the court reinstated the complaint against defendants and granted Kabir's cross motion for partial summary judgment on liability.
The dissent interpreted Section 1104 differently, taking the position that the reckless disregard standard was applicable to any injury-causing conduct of a driver of an emergency vehicle involved in an emergency operation.
II.
Section 1104 was put in place in 1957 as part of what is now title VII of the Vehicle and Traffic Law, Subdivision (a) of this provision empowers the driver of an "authorized emergency vehicle" to "exercise the privileges set forth in this section [1104], but subject to the conditions herein stated " (emphases added). The statute then lists these privileges in subdivision (b):
"1. Stop, stand or park irrespective of the provisions of this title [VII];
"2. Proceed past a steady red signal, a flashing red signal or a stop sign, but only after slowing down as may be necessary for safe operation;
"3. Exceed the maximum speed limits so long as he does not endanger life or property;
"4. Disregard regulations governing directions of movement or turning in specified directions" (Vehicle and Traffic Law § 1104[b] ).
Subdivision (c) of section 1104 sets out prerequisites or conditions upon the exercise of the privileges listed in subdivision (b): except in the case of police vehicles or bicycles "the exemptions herein granted" are available only when the authorized emergency vehicle is making use of prescribed audible and visual signals.
Finally, subdivision (e) of section 1104 specifies that "[t]he foregoing provisions shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of his reckless disregard for the safety of others" (emphasis added). Thus, subdivision (e) cautions these drivers to operate their vehicles as safely as possible in an emergency and makes them answerable in damages if their reckless exercise of a privilege granted by subdivision (b) causes personal injuries or property damage.
But defendants and the dissent do not see it that way. They understand subdivision (e) to apply the reckless disregard standard of care to all injury-causing conduct of drivers of authorized emergency vehicles involved in emergency operations, whether or not that conduct is exempt under subdivision (b). But subdivision (e) links the reckless disregard standard of care to "[t]he foregoing provisions," which include the conditions in subdivision (c) and the privileges in subdivision (b).
The dissent complains that we have "interpret[ed] Vehicle and Traffic Law § 1104(e) as if it read: 'When the driver of an emergency vehicle engages in privileged conduct, that driver will be protected from liability unless he or she acts in reckless disregard of the safety of others' "
The dissent, however, interprets subdivision (e) to mean "The driver of an authorized emergency vehicle involved in an emergency operation shall be protected from liability unless he or she acts in reckless disregard of the safety of others." As the dissent acknowledges, though, subdivision (e) is written in the negative; it refers only to "[t]he foregoing provisions"; and the "foregoing provisions" only privilege the conduct identified in subdivision (b), not any and all conduct of a driver.
This discussion confirms that these provisions are interrelated such that subdivision (e) does not create a reckless disregard standard of care independent of the privileges enumerated in subdivision (b).
Additionally, we note that this is the first time we have been asked to decide the question presented by this appeal. This is not entirely surprising: subdivision (b) exempts the conduct most likely to lead to a motor vehicle accident severe enough to prompt a lawsuit; for example, speeding or running a red light. Defendants and amici curiae insist, however, that in our prior decisions, particularly Saarinen and Szczerbiak v. Pilat, 90 N.Y.2d 553, 664 N.Y.S.2d 252, 686 N.E.2d 1346 (1997), we have held that the reckless disregard standard of care applies when the conduct of an emergency vehicle driver involved in an emergency operation causes personal injuries or property damage, regardless of whether that conduct is privileged under Vehicle and Traffic Law § 1104(b).
Dissent:
The majority's new rule is inconsistent with the public policy underlying Section 1104 because it creates an unjustifiable distinction that extends the protection of qualified immunity only to police, fire or ambulance personnel who speed, run a red light or violate a handful of other traffic laws while responding to emergency calls. Thus, the majority holding has the perverse effect of encouraging conduct directly adverse to the public policy of requiring emergency responders to exercise the utmost care during emergency operations.
Because the defendant police officer was operating an "authorized emergency vehicle" as defined in Vehicle and Traffic Law § 101 while engaged in an "emergency operation" as defined in Vehicle and Traffic Law § 114-b, any liability arising from his conduct must be assessed under the standard set forth in Vehicle and Traffic Law § 1104.
That statute contains two provisions that are at the heart of this controversy. The first-Ssection 1104(b)-creates four categories of "privileged" conduct, specifically permitting an emergency responder to disregard a variety of traffic laws, including proceeding through red lights and exceeding maximum speed limits. In other words, section 1104(b) exempts emergency responders from compliance with certain rules of the road. As a result, the operator of a fire truck who, for example, drives through a red light while responding to a call cannot receive a traffic citation since that conduct is permitted under Ssection 1104(b).
But Section 1104(b) says nothing about the standard of liability that applies when an emergency responder is involved in an accident giving rise to a lawsuit seeking civil damages. That issue is addressed in Section 1104(e), which provides:
"The foregoing provisions shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of his reckless disregard for the safety of others."
Although we have previously recognized that this provision is not a model of clarity, in Saarinen, 84 N.Y.2d 494, 620 N.Y.S.2d 297, 644 N.E.2d 988 we determined that it imposes a heightened "reckless disregard" standard of care applicable to police officers and other responders engaged in emergency operations.
Since Saarinen, Vehicle and Traffic Law § 1104 has been understood to impose a two-part test: if the driver was operating an "authorized emergency vehicle" and was involved in an "emergency operation" as those terms are defined in the statutory scheme, the driver was entitled to the qualified immunity afforded by the reckless disregard standard.
The majority now adds a third component to the equation, precluding emergency responders from obtaining the benefit of the reckless disregard standard unless--ironically--they violated one of the traffic rules listed in section 1104(b). Police officers, firefighters or ambulance drivers who manage to obey traffic signals or travel within the speed limit are out of luck if they are involved in an accident. Their conduct will be assessed under the ordinary negligence standard, making it much easier for these "law abiding" emergency responders to be held liable for damages. Does this make sense?
The precise issue presented in this case was not raised by the parties in Saarinen and the police officer whose conduct was under review in that case had apparently exceeded the speed limit, thereby engaging in privileged conduct. But our explanation of the legislative policy underlying the statute--as well as our analysis in that case and others--is antithetical to the approach now taken by the majority.
We thus applied the reckless disregard standard to all of the officer's conduct, including claims that he failed to properly consider the fact that other traffic might be in the area and failed to promptly report the chase to his supervisors (who might have ordered him to desist). We did not analyze the privileged conduct under the heightened standard and then apply another, less stringent standard to conduct not addressed in section 1104(b).
For all of these reasons, I would reverse the order of the Appellate Division and reinstate Supreme Court's judgment dismissing plaintiff's complaint.
Case: Lomonico v. Massapequa Public Schools
Court: Supreme Court, Appellate Division, Second Department, New York.
Date: May 17, 2011
From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx; Brooklyn accident injury attorney)
Facts: Plaintiff - a high school cheerleader - was hurt when a teammate fell on her during cheerleading practice while trying to perform the "liberty" stunt.
Held: Lower court's denial of summary judgment to defendant reversed and summary judgment granted to defendant and against injured accident victim/plaintiff (on this appeal).
Comment: Another, another, another "assumption of the risk" case throwing out an accident victim's claim for injury sustained during a sporting activity.
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Plaintiff sues for injuries she suffered during a cheerleading accident. She claims that her school
was negligent in failing to instruct and supervise the cheerleaders properly in performing the stunt and in failing to provide protective floor mats.
The appeals court finds that our plaintiff - can you guess? - assumed the risk of the cheerleading activity by participating in the sport..
The appeals court notes that "assumption of the risk" doesn't block every injury claim from every student/participant in a sport: "Even where the risk of injury is assumed, however, a school must exercise ordinary reasonable care to protect student athletes voluntarily involved in extracurricular sports from 'unassumed, concealed, or unreasonably increased risks'."
But the defense successfully argued that the accident victim was an experienced cheerleader and knew the risks involved in the stunt that she was attempting when injured. The school also showed that there was no lack of supervision and, also, the accident victim assumed the obvious risk of injury from practicing on a bare gym floor.
Accordingly, the Supreme Court should have granted the defendant's motion for summary judgment dismissing the complaint.
From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx; Brooklyn accident injury lawyer)
Case: Melnik-Mirzakhan v. Michael Tavdy
Court: Supreme Court, Appellate Division, Second Department, New York.
Date: May 17, 2011
Comment: Sometimes I see dumb cases that make me angry. Why? Because bringing claims that lack merit for victims of accident or medical malpractice make all plaintiff's injury lawyers and attorneys look bad. This is one of those cases.
Decision: Medical malpractice plaintiff appeals from an order which granted the defendant doctors' motion for summary judgment dismissing the medical malpractice complaint. The order granting summary judgment dismissing the medical malpractice complaint is affirmed by the appeals court.
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On August 11, 2006, the decedent died of colon cancer. The plaintiff's father, the decedent/medical claimant malpractice, was a patient of the defendant, a doctor specializing in internal medicine, who was a member of the defendant medical group, based in Brooklyn.
Shortly before his death, the decedent had commenced this action against the defendants to recover damages for medical malpractice. After his death, the plaintiff was substituted in his place.
The complaint alleged that between January 2004 and February 2006, the defendants failed to adequately refer the decedent for colon cancer screening tests, which resulted in their failure to diagnose him with cancer and his ultimate death.
The defendants claimed that they had on several occasions advised the deceased so-called medical malpractice victim thathe undergo colon cancer screening tests and gastrointestinal consultations.
The deceased refused the tests and specialist consultation.
In their summary judgment motion, defendants claimed that if they debated from good medical practice, any alleged departure on their part did not cause the decedent's injury and death.
In opposition, the plaintiff contended that the decedent's mental state was such that the defendants should have told his family about his refusal to undergo colon cancer screening tests and that, in any event, the defendants should have performed the less-invasive stool occult blood test.
The appeals Court rules:
The defendants met their initial burden of showing the absence of any departure from good and accepted medical practice. In opposition, the plaintiff failed to raise a triable issue of fact.
Accordingly, the lower court properly granted the defendants' motion for summary judgment dismissing the complaint. We affirm.
FROM: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx; Brooklyn accident injury attorney)
Case: Chang v. Adams Fairacre Farms, Inc.
Court: Supreme Court, Appellate Division, Second Department, New York.
Date: May 17, 2011
Holding: Defendant granted summary judgment dismissing the plaintiff/accident victim's complaint.
Comment: For more than 25 years I've seen supermarket slip/trip and fall cases lose when the accident victim can't show "notice." This means the store either knew about the dangerous or slippery condition or should have known about it, and it existed long enough for the store to clean up. This rule is carved in stone, no matter how bad the plaintiff is injured. If the person hurt in an accident can't say or get a witness that can say how long this condition existed or worse, doesn't know what he or she slipped on, the case must lose.
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The injured plaintiff) claims that while inside the defendant's supermarket when she slipped and fell on a single green bean on the floor in the produce section.
In a slip-and-fall case, a defendant moving for summary judgment has the burden of demonstrating, prima facie, that it did not create the alleged hazardous condition or have actual or constructive notice of its existence for a sufficient length of time to discover and remedy it.
Defendant showed no "actual notice," because it did not create the complained-of condition and no one complained about it before the accident.
The defendant also showed no "constructive notice" of the green bean on the floor, because the alleged condition was not present for a sufficient period of time for it to have discovered and corrected it.
In opposition, the accident victim failed to make out a "triable issue of fact" as to whether the defendant created the complained-of condition, or had actual or constructive notice thereof.
The accident victim failed to show that the defendant had actual notice of a recurring hazardous condition such that it could be charged with constructive notice of the condition which caused the injured plaintiff to fall.
FROM: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx; Brooklyn accident injury lawyer)
COURT: Supreme Court, Appellate Division, First Department, New York.
CASE: Massey v. Newburgh W. Realty, Inc.
DATE: May 17, 2011
HOLDING: Defendant loses motion for summary judgment against accident victim.
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MAJORITY OPINION: Injured accident victim claims to have slipped and fallen on a sheet of ice on the sidewalk in front of defendant's building, a convenience store in Newburgh, New York. She claims it was not raining or snowing so that there was no "storm in progress."
Plaintiff testified that she felt something slippery under both her feet, that her right foot slipped out from under her; when she looked she saw ice on the ground.
At her oral deposition, plaintiff/accident victim identified the general location of the accident using a black-and-white facsimile image of a photograph of the accident location.
The defense asked the court for summary judgment dismissing the lawsuit against it. The defense had hired an expert meteorologist or weatherman, who gave an affidavit to the court.
The meteorologist swore that there was no rain or snow for one week before the accident, and that for the two days before the accident the temperature had been n the 50s or 60s - so there could not have been ice.
Plaintiff opposed the motion for summary judgment, contending that the affidavit of defendant's expert meteorologist was speculative insofar as it did not take into account the relevant testimonial and photographic evidence in the case in concluding that there was no snow or ice on the ground.
Plaintiff asserted, in any event, that she had raised a triable issue of fact. Plaintiff relied on her deposition testimony and affidavit submitted in opposition to the motion, in which she averred that the ice she had slipped on was "hard, dry and approximately one inch thick."
Plaintiff relied, in addition, on certified meteorological records which indicated that in the 14 days prior to and including the date of her accident, the temperature fell below freezing on each and every day.
The appeals court noted: "Summary judgment in a snow or ice case is proper where a defendant demonstrates, through climatological data and expert opinion, that the weather conditions would preclude the existence of snow or ice at the time of the accident."
"Defendant's expert opinion was arguably speculative insofar as it failed to take into account plaintiff's testimony concerning the nature of the ice, nor did it address plaintiff's photograph showing ice at the accident location."
"Further, as noted by the motion court, defendant did not satisfy its burden of establishing lack of constructive notice as a matter of law since it failed to submit an affidavit, deposition testimony or other competent evidence from a store employee establishing that any employees regularly inspected the sidewalk."
"In this case, unlike storm-in-progress cases, we are not presented with the difficulty of determining whether a fall was attributable to old ice, as opposed to freshly accumulating snow."
"The dissent asserts that plaintiff failed to establish the origin of the ice patch on which she slipped. However, it may reasonably be inferred from plaintiff's description of the ice, the photo, and the climatological data showing freezing temperatures that the ice was attributable to a prior winter storm. We accordingly find, at this stage, that plaintiff has sufficiently raised a triable issue of fact."
DISSENTING OPINION: Because I believe that defendant established prima facie entitlement to summary judgment and that plaintiff failed to raise a triable issue of fact on the issue of notice, defendant is entitled to summary judgment, and therefore I dissent.
Plaintiff did not see the ice before her fall, but based on post-fall observations described the patch as large and spanning several feet. She had no idea when it had last snowed and saw no other ice or snow prior to her fall.
Defendant's meteorologist concluded that on March 14 at 9:30 P.M., there was no ice or snow on the ground at the location of this accident.
In opposition to defendant's motion, plaintiff submitted an affidavit, wherein she stated that a photograph annexed thereto was a fair and accurate representation of the patch of ice upon which she fell, and that the ice was hard, dry, and an inch thick. Plaintiff also submitted an affidavit from her boyfriend, wherein he states that he took the photograph. He likewise stated it was a fair and accurate representation of the patch of ice upon which plaintiff fell, describing in the same was as plaintiff. Lastly, plaintiff submitted climatological records evincing that in the days prior to her fall the temperatures had dipped below freezing.
The mere presence of an ice patch, by itself, does not cast a defendant in negligence thereby making him or her liable for an accident. Instead, to establish liability for an icy condition, it must be proven that a defendant had either actual or constructive notice of the icy condition
Here, contrary to the motion court's decision and the assertions by the majority, defendant established prima facie entitlement to summary judgment. Defendant's meteorologist, based upon his review of pertinent climatological records, also submitted with defendant's motion, opined that given the weather conditions existing at the time of plaintiff's accident and in the seven days preceding it, there was no ice existing on the sidewalk where plaintiff alleges to have fallen. By establishing the absence of any ice at this location for at least two days prior to plaintiff's fall, defendant not only controverts the existence of any ice, but as relevant here, negates actual and constructive notice and thus establishes prima facie entitlement to summary judgment.
That the meteorologist did not review and comment on some of the evidence offered by the plaintiff, namely her testimony and a photograph of the condition does not alter my holding because his opinion is undergirded by the aforementioned climatological reports.
Plaintiff, in a final attempt at establishing constructive notice seeks to link the icy condition to a prior storm or a period of prior precipitation. While this is of course one way to establish the origin of an icy condition thereby establishing constructive notice, plaintiff fails to meet her burden since the evidence tendered must in fact link the condition to a prior storm. Here, plaintiff simply submits climatological records and merely asserts that dips in the temperature, to below freezing, confirm the patch's existence. There is no specific attempt, by an expert or anyone else for that matter, to particularize the weather pattern from which it can be inferred that the ice upon which plaintiff fell originated from prior precipitation or a previous storm.
Accordingly, I believe that plaintiff fails to raise an issue of fact sufficient to preclude summary judgment in defendant's favor.
From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx; Brooklyn accident injury lawyer)
Supreme Court, Appellate Division, Second Department, New York.
Case: Merriman v. Intergrated Building Controls, Inc.
Date: May 10, 2011.
Comment: This is a New York State Labor Law case, involving a construction worker's accident and fall from a ladder. Defendants and plaintiff each brought a summary judgment motion to try to win on paper before a judge, and without having to go to a jury. Plaintiff, the accident victim, wanted to win on the issue of liability. Defendants wanted the plaintiff (accident victim's) case thrown out.
The defense claims it should win because the injured plaintiff was the "sole proximate cause" of his own accident. If this is the case, then the accident is all his own fault. The lower court (Queens County) denied this argument and the appeals court agreed:
"The evidence submitted by the defendants in support of that branch of their cross motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law § 240(1) failed to eliminate all triable issues of fact as to whether the plaintiff's alleged negligence was the sole proximate cause of the subject accident."
The accident victim/plaintiff thinks he should win because of a defective ladder. If this is so, his case should prevail on paper, without even the necessity of a jury trial on the issue of liability.
The lower court agreed with the plaintiff's argument and granted him summary judgment. The appeals court disagreed, pointing out that the accident victim went to a doctor (neurologist) six weeks after his accident and the doctor prepared a report of the examination. The doctor wrote that the injured accident victim (his patient) gave an accident history that, while descending the ladder on which he had been working, the plaintiff "missed a step." If this is true, than the defense should win.
The injured plaintiff disagreed with this statement and denied saying it. However, according to the appeals court, he was equivocal (wishy-washy) at his oral deposition about the possibility that he did, in fact, miss a step while coming down the ladder.
And even though the neurologist's report is technically hearsay, "proof which might be inadmissible at trial may, nevertheless, be considered in opposition to a motion for summary judgment, particularly when the inadmissible evidence does not provide the sole basis for the denial of summary judgment."
The court can't decide who to believe so nobody wins on paper, and this matter must go a jury for resolution at a trial.
RELATED CASES:
"OPEN AND OBVIOUS" ARGUMENT DOESN'T WIN SUMMARY JUDGMENT IN CASE WHERE ACCIDENT ON STEP (Posted by Brooklyn accident injury lawyer Gary E. Rosenberg on May 19, 2011)
"SERIOUS INJURY" THRESHOLD MOTION NICELY DEFEATED IN CAR ACCIDENT CASE (Posted by Brooklyn accident injury lawyer Gary E. Rosenberg on April 28, 2011)
YOUR CASE CAN BE LOST IF YOUR ACCIDENT LAWYER ISN'T COMPUTER LITERATE (Posted by Brooklyn accident injury lawyer Gary E. Rosenberg on March 30, 2011)
TWO IRON WORKERS DIE IN CONSTRUCTION SITE FALL (Posted by Brooklyn accident injury lawyer Gary E. Rosenberg on February 8, 2011)
POSSIBLE NEW YORK LABOR LAW VIOLATIONS LEAD TO ACCIDENTAL FALL OF CONSTRUCTION WORKER AT WORLD TRADE CENTER (Posted by Gary E. Rosenberg on March 9, 2010)
Supreme Court, Appellate Division, Second Department, New York.
Case: Ul Haque v. Daddazio
Date: May 10, 2011.
From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx; accident injury Brooklyn lawyer)
Comment: When an accident victim dies as a result of his or her accident, there are potentially two legal claims that can be brought. First is "conscious pain and suffering," which belongs to the Estate. Second is "wrongful death," which is for the benefit of the deceased accident victim's heirs.
The plaintiff's decedent died in an accident when she tried to cross a highway in upstate New York on foot. She was hit by defendant's car; there was neither a crosswalk or intersection where she crossed.
A summary judgment motion was made, to try to throw out the accident victim's lawsuit on paper.
The lower court granted summary judgment and threw out plaintiff's entire complaint. In response to a later motion by plaintiff, the court then reconsidered its position, and reinstated the accident victim's cause of action seeking to recover damages for conscious pain and suffering.
The appeals court stated the rule as follows:
"[W]hile a plaintiff bears the ultimate burden of proof at trial on the issue of conscious pain and suffering, on a motion for summary judgment the defendant bears the initial burden of showing that the decedent did not endure conscious pain and suffering"
The appeals court then pointed out that, in support of that branch of her motion which was for summary judgment dismissing the cause of action to recover damages for conscious pain and suffering, the defendant submitted the decedent's medical records which showed that the decedent was rendered unconscious immediately following the accident and remained so until her death eight hours later.
In response to defendant's showing that the deceased accident victim was never conscious after the accident, "the plaintiff failed to raise a triable issue of fact." The plaintiff never showed that the deceased pedestrian "experienced any level of cognitive awareness following the accident."
The appeals court found: The Supreme Court improvidently exercised its discretion in granting that branch of the plaintiff's motion which was for leave to reargue his opposition to that branch of the defendant's prior motion which was for summary judgment dismissing the cause of action to recover damages for conscious pain and suffering.
Thus, the plaintiff offered no new evidence to warrant the lower court even reconsidering its prior decision to throw out the accident victim's entire case.
Holding: "A motion for leave to reargue "is not designed to provide an unsuccessful party with successive opportunities to reargue issues previously decided, or to present arguments different from those originally presented."
Case dismissed.
RELATED POSTS:
BROOKLYN PEDESTRIAN CROSSING STREET STRUCK AND KILLED BY VAN IN HORRIBLE ACCIDENT (Posted by accident injury Brooklyn lawyer Gary E. Rosenberg on April 1, 2011)
TRACTOR TRAILER BACKS UP AND KILLS PEDESTRIAN (Posted by accident injury Brooklyn lawyer Gary E. Rosenberg on March 19, 2011)
PEDESTRIAN KILLED BY CAR (Posted by accident injury Brooklyn lawyer Gary E. Rosenberg on December 31, 2007)
BLVD. OF DEATH VICTIM CALLED 'GOOD MOM' (Posted by accident injury Brooklyn lawyer Gary E. Rosenberg on December 22, 2007)
PEDESTRIAN KILLED BY POLICE CAR (Posted by accident injury Brooklyn lawyer Gary E. Rosenberg on March 18, 2008)
From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx; accident injury Brooklyn attorney)
Court: Supreme Court, Appellate Division, Second Department, New York.
Case: Ryan v. City of New York
Date: May 10, 2011
Comment: Another case where a municipal defendant let an accident case go past verdict and then asked the Court to dismiss the case and got the case dismissed for lack of "prior written notice" of a roadway or street defect. Why do lawyers waste so much time and effort on an accident case that can't withstand dismissal?
The accident plaintiff sued in Queens County Supreme Court (in Jamaica). He claimed that his motorcycle hit a roadway defect, throwing him off the bike and injuring him.
The plaintiff took the case all the way through a trial, and obtained a verdict of $447,640.45 for his injuries. After the verdict came in, the City applied to the Court to throw out the judgment notwithstanding the verdict.
Once again, and as we have seen with a recent blog post (listed below), the municipal agency succeeded in having the verdict and the entire accident case thrown out on appeal.
The appellate court decided that defendant was entitled to "judgment as a matter of law." The Court pointed out: "A motion for judgment as a matter of law may be granted only when the trial court determines that, upon the evidence presented, there is no valid line of reasoning and permissible inferences which could possibly lead rational persons to the conclusion reached by the jury upon the evidence presented at trial, and no rational process by which the jury could find in favor of the nonmoving party"
Here, the trial court should have granted the municipal defendant's motion, since the accident plaintiff failed to submit evidence sufficient to establish, prima facie, that the it had prior written notice of the alleged defective condition that purportedly caused the accident or that there was written acknowledgment by the defendant of the defective condition.
Accident plaintiff's case dismissed.
RELATED POSTS:
COURT TOSSES SIDEWALK ACCIDENT CASE AFTER VERDICT FOR WRONG PRIOR NOTICE (Posted by Brooklyn accident injury attorney Gary E. Rosenberg on May 14, 2011)
REPORT SHOWS SENIOR CITIZENS SUFFER HIGHER PEDESTRIAN FATALITY RATES FROM ACCIDENTS (Posted by Brooklyn accident injury attorney Gary E. Rosenberg on May 20, 2010)
BROOKLYN SIDEWALK IS ACCIDENT WAITING TO HAPPEN (Posted by Brooklyn accident injury attorney Gary E. Rosenberg on March 31, 2010)
SPECIAL PAINT INTENDED TO CUT ELECTROCUTION RISK (Posted by Brooklyn accident injury attorney Gary E. Rosenberg on December 24, 2007)
STATEN ISLAND MAN SLIPS IN STREET, KILLED BY BUS (Posted by Brooklyn accident injury attorney Gary E. Rosenberg on September 30, 2010)
Court: Supreme Court, Appellate Division, First Department, New York.
Case: Saretsky v. 85 Kenmare Realty Corp.
From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx; accident injury Brooklyn lawyer)
Date: May 12, 2011
Held: Summary judgment granted by lower court reversed, accident victim's (plaintiff's) complaint reinstated.
Comment: "Open and obvious" is a legal doctrine sometimes used to defeat accident claims. It means, "you should have seen the darn thing, and avoided it." This case holds that a judge can't, on paper, throw out an accident case where the defect is open and obvious. This defense has to be decided by a jury as part of an accident claimant's "comparative fault."
May 21, 2007: Plaintiff is hurt when she falls off a raised walkway in front of the defendant's building, after leaving the co-defendant's store. Photographs show that a platform-like raised walkway runs approximately the length of the building, across several storefronts.
The plaintiff describes the walkway as extending about 4½ feet out from the front of the building and ending at a step approximately five inches high in the middle of the sidewalk.
Plaintiff sues. She claims that the step was unsafe and dangerous and makes the usual claims we see in an unsafe step accident case: the step was improperly repaired an maintained, and had no barriers or warnings, etc. She said that she had not noticed that she stepped onto a raised walkway before she missed the step down.
The defendants argued that the step presented an "open and obvious" condition and that plaintiff fell due to her own carelessness - if she had been paying better attention, she wouldn't have had her accident.
The lower court accepted the defense argument and threw out plaintiff's accident case on paper, granting summary judgment to defendants. The appeals court says: "This was error. Not only did the motion court mischaracterize plaintiff's testimony, but its implicit conclusion, that had plaintiff been looking she would have seen the hazard and avoided injury, was premised on a finding that the transition step to the sidewalk was open and obvious. As such, the precedent of this Court mandates reversal."
The Court then confuses things slightly by noting: "More significantly, for the plaintiff in this case, . . . even visible hazards do not necessarily qualify as open and obvious because the nature or location of some hazards, while they are technically visible, make them likely to be overlooked."
The Court then embraces the affidavit of plaintiff's expert engineer, who says that the plaintiff suffered from "optical confusion" because the concrete on the sidewalk and the walkway were similar shades of gray and although the edge of the walkway was painted with a red line, the paint in front of the defendant's store was "very worn."
The Court finishes by finding: "In any event, even had the plaintiff seen the transition step going into the store, evidence that the transition step was less visible coming out of the store is sufficient to raise a triable issue of fact precluding summary judgment."
Comment: So the Court makes it clear that an argument of "open and obvious" can't prevail on a summary judgment motion, but things get blurry because the Court seems persuaded by plaintiff's engineer. If there was no such expert engineer and plaintiff just said "I didn't see it" would she still defeat a defense claim of "open and obvious"? What seemed an obvious "yes" at the beginning of this legal opinion is not so clear by the end.
Further Comment: "Open and obvious" is the opposite (sort of) of the "trivial defect" doctrine.
RELATED POSTS:
BAD BALANCE, BRITTLE BONES - ELDERLY ESPECIALLY LIKELY TO GET SERIOUSLY INJURED IN ACCIDENTAL FALLS (Posted by accident injury Brooklyn lawyer Gary E. Rosenberg on February 3, 2011)
BROOKLYN MAN KILLED AFTER FALLS INTO DOUGH MIXING MACHINE (Posted by accident injury Brooklyn lawyer Gary E. Rosenberg on January 25, 2011)
BROOKLYN TEACHER FAKES STAIRWAY ACCIDENT TO TRY TO SAVE JOB (Posted by accident injury Brooklyn lawyer Gary E. Rosenberg on August 3, 2010)
COLLEGE STUDENT FLEEING ROBBERS TUMBLES FROM ROOF; WAS IT AN ACCIDENT OR WAS HE PUSHED? (Posted by accident injury Brooklyn lawyer Gary E. Rosenberg on April 11, 2010)
JACKSON HEIGHTS WORKER GETS THE SHAFT; FATAL ACCIDENT AND INJURY LEADS TO DEATH (Posted by accident injury Brooklyn lawyer Gary E. Rosenberg on February 12, 2010)
From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx; accident injury Brooklyn attorney)
Supreme Court, Appellate Division, First Department, New York.
Case: Portillo v. NYCTA
Decided: May 12, 2011.
Plaintiff was injured when his leg got caught in the gap between a subway car and the platform at the Union Square Station. Allegedly, the press of passengers exiting the car caused him to release his grip on the pole he had been holding, and be pushed out the door. Although plaintiff filed a timely notice of claim, defendant moved to dismiss the complaint on the ground, in part, that the notice of claim was defective for failing to specify the exact location of the accident.
A notice of claim must set forth, among other things, the time and place of an accident and the manner in which it occurred. This statutory requirement is designed to enable the governmental entity involved to obtain sufficient information to promptly investigate, collect evidence, evaluate the merit of the claim, and assess the municipality's exposure to liability. In considering the sufficiency of a notice of claim in the context of a motion to dismiss, a court is not confined to the notice of claim itself, but may also look to evidence adduced at a § 50-h hearing, and to such other evidence that is properly before the court.
Plaintiff reported his accident to defendant on the day it occurred, providing the train line that he was on, the station where the accident occurred, and the time at which the accident took place. He provided enough information for defendant to identify the train in which he was a passenger and to inspect the train on the same day as the accident. In addition, based on plaintiff's testimony at the § 50-h hearing, defendant was able to determine that plaintiff was riding in one of 3 cars out of 10 cars on tha
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