Feldman, Kronfeld & Beatty Law Blog

Wednesday, October 28, 2015

1st Judicial Department, Appellate Division Roundup: October 20, 2015 Edition

In this threshold-case heavy selection from the First Department, we have one unusual case where Justices Tom and Andrias dissent on the question of what the defendant must show to make a prima facie case that they did not have constructive notice of a condition.  More, after the jump . . . 

Dylan P. v. Webster Place Associates, L.P.

The infant plaintiff, injured by a missing drain cover in the building’s laundry room, had his claim challenged by the defendant, which moved for summary judgment “solely on the basis that it had neither actual nor constructive notice of the dangerous condition.” The defendant’s representative, a building superintendent, testified that he routinely swept and inspected the laundry room but could not recall whether he did so or the allegedly defective condition existed on the date of the incident, and that was found to be insufficient to establish, as a prima facie matter of law, that the defendant did not have constructive notice. The dissent, written by Justices Tom and Andrias, states that “[t]he operative issue is whether there is admissible proof that defendant or its employees acquired timely knowledge of the alleged hazardous condition so as to afford them sufficient opportunity to remedy the defect prior to the accident.” They argue that the majority puts the wrong burden on the defendant, that the majority is requiring the defendant to prove a prima facie case that the drain cover was properly affixed rather than prove that the defendant prove a prima facie case that they did not have constructive notice that the drain cover was not properly affixed. As the defendant successfully demonstrated that they had no notice of the drain cover being missing on the day of the incident, and the infant plaintiff’s mother could not identify that she noticed the defect before the accident, there was no evidence that the defect existed for a sufficient period of time for constructive notice to be imputed to the defendant.

Shah Rabb v. Alam Mohammed

In this threshold motion for serious injury in a motor vehicle accident, the plaintiff successfully prevailed against the defendant’s motion. The plaintiff was able to prove, via the affirmation by his treating orthopedist, that there was limitation of range of motion, that the MRI films showed no evidence of degeneration, and the injury was likely traumatically induced. It is to be noted that the Court especially took note of the plaintiff’s age, 27, in making these findings. The defendants, however, failed to rebut the 90/180 day category of serious injury, since they did not dispute the fact that the plaintiff did not return to work for more than three months following the accident.

Kofi Adu v. Lloyd Kirby & Melvin Castillo v. Jessenia Abreu

In these two threshold cases, they are important to note that the defendant first met their burden of proving no serious injury, and the plaintiff successfully rebutted only for one body part, in both situations the shoulder. However, it is to be noted that if the plaintiff successfully establishes any serious injury for any body part they may, at trial, if they prove the serious injury threshold for that body part, then recover for any injury causally related to the accident, regardless of whether it meets the serious injury threshold.

Francis Padilla v. Zulu Services, Inc.

Francis Padilla was the passenger in a vehicle driven by Mr. F.W. Nagel. Mr. Nagel’s vehicle was rear-ended by a vehicle owned by Zulu Services, Inc., and Mr. Padilla was injured thereby. He sued Zulu Services, Inc., which then initiated a third-party complaint against Mr. Nagel. During an exchange of motions (it is unclear from the record which motion it was), Mr. Nagel cross-moved to dismiss the third party complaint. The Supreme Court denied the motion, which the Court reversed. Because Mr. Nagel was struck in the rear by the Zulu Services, Inc. vehicle, Zulu Services, Inc. had to rebut a prima facie case of negligence against it, and was unable to do so.

DISCOVERY: Orlando Almonte v. Clara Mancuso

In this motor vehicle accident case, the defendant requested access to the plaintiff’s entire employment file. The Court found that, because the plaintiff had put his medical condition at issue, the plaintiff was required to provide a written authorization for the release of medical records in his employment file. However, the Court also found that other records in the employment file, including disciplinary records, is not material and necessary to the defense of the action.

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