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Friday, September 18, 2015

2nd Judicial Department, Appellate Division Roundup: September 16, 2015 Edition

The following cases and their summaries were released by the 2nd Judicial Department on September 16, 2015:

 Bracco v. NU Image Associates Group, Inc. et al

On November 5, 2012, Michelle Bracco died of carbon monoxide poisoning when a plumber who was working on her house after Hurricane Sunday accidentally left a gas generator on in her garage. The defendants tried to say that the generator was outside of the garage, but the plaintiff decedent's son and her neighbor stated that the plumber used the generator in the garage and the plumber closed the garage door. The defendant's motion for summary judgment was denied.

Leora Hackel v. We Transport, Inc. et al.

While getting off the bus to her preschool, Leora Hacker's four-year-old-child cut her hand on a seatbelt cutter that was stored next to the mechanism to open and shut the bus door, and children getting off the bus would have to pass by it. Ms. Hackel sued the bus company and the preschool alleging that the defendants were negligent in storing the seatbelt cutter so close to where kids could get hurt and for not supervising the children getting on and off the bus. The defendants' motion for summary judgment was denied, because the teaching assistant who escorted the child from the bus to the school, failed to establish that the child did not stop, reach, or touch anything as she exited the bus.

Caroline Swoboda v. Adrian Phillip Fontanetta

Carolina Swoboda went to Dr. Fontanetta, a surgeon, for an arthroscopic subacromial decompression of her right shoulder in 2007. Shortly afterwards, she felt pain in her collarbone and she went back to Dr. Fontanetta, who sent her home. Two weeks later, she went back to the doctor, who examined her and saw that her collarbone was, in fact, broken. Ms. Swoboda sued Dr. Fontanetta for medical malpractice, claiming that Dr. Fontanetta broke her collarbone during the right shoulder surgery and failed to diagnose it properly. In a surprising move, the Court denied the defendants' motion for summary judgment on the plaintiff's claims of res ipsa loquitur, a legal term that means that this is a narrow category of medical malpractice cases requiring no expert to enable the jury to reasonably conclude that the plaintiff's injury would not happen without negligence.

Daphne Jordan v. Juncalito Abajo Meat Corp.

Ms. Jordan slipped and fell in the defendant's grocery store. The defendant moved for summary judgment, and was denied because the surveillance video failed to show that there was no water in the area where Ms. Jordan fell, and the defendant did not give evidence of the last time that the floor was cleaned or inspected prior to Ms. Jordan's fall.

Maldari v. Mount Pleasant Central School District

A high schooler, tormented and bullied by other kids in his class, sued his high school for failing to properly supervise and protect him from the emotional damage of being constantly bullied. The defendant moved for summary judgment, and the Court granted it and dismissing the plaintiff's complaint because schools are not "insurers of the safety of their students" and an assault against the student in the cafeteria was an "unforeseeable act and that it had no actual or constructive notice of prior conduct."

TRIAL TIP: Memenza v. Cole

At trial,the plaintiff testified that she was struck by a motor vehicle while walking across the street within a crosswalk with a light in her favor, while the defendant testified that the plaintiff was riding a bicycle and came out between two parked cars. A redacted police accident report was entered into evidence, which indicated that the plaintiff was riding a bicycle and that the accident occurred in the middle of the block. However, the police officer who prepared the report did not remember how he investigated the accident, could not remember seeing a bicycle, could not remember how he identified the middle of the block as the scene of the accident, and could not recall who told him this information. Even though the defendant was found not negligent, the Court ordered a NEW TRIAL. The Court found that the police report, which is admissible so long as the report is made based upon the officer's personal observations and while carrying out his duties, contains hearsay statements, the statements must be themselves admissible under the business records exception. If not, the police report cannot come in. Furthermore, since the information contained in the accident report bore directly on the ultimate issue to be determined by the jury, the error was not harmless.


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