Feldman, Kronfeld & Beatty Law Blog

Thursday, January 7, 2016

2d Judicial Division, Appellate Department Roundup Special Edition: November 18, 2015, Slip/Trip and Fall

Since the Appellate Division, 2d Department, decided 6 slip-or-trip-and-fall cases on November 18, 2015, the Roundup decided to do a special edition just to go over these cases. Hutchinson came down only a few months ago, and it’s always a service to clearly outline how the law is and how the law changes in this important area of personal injury law.

A landowner has a duty to exercise reasonable care in maintaining its property in a safe condition under all the circumstances, including the likelihood of injury to others, the seriousness of the potential injuries, the burden of avoiding the risk, and the foreseeability of a potential plaintiff’s presence on the property. However, a landowner has no duty to protect or warn against an open and obvious condition which, as a matter of law, is not inherently dangerous, or where the allegedly dangerous condition can be recognized as a matter of common sense. This was the law as stated in Dean Boland v. 480 East 21st Street, without a comment as to what the case was really about. 

But this statement ties into another case, Kristi Mucciariello v. A&D Hylan Boulevard Associates, LLC. The plaintiff was an employee at the defendant’s premises and was injured on the walkway leading to the building. As she moved to the side of the walkway to make room for a person in a wheelchair, her left foot tipped over the edge of the walkway and stepped into a bed of decorative stones. The complaint was that the height differential between the walkway and the stone bed was a hazardous condition, but the Court found that the condition was open and obvious and not inherently dangerous, and the plaintiff was not able to recover.

When someone trips and falls, it is important to identify why that person tripped and fell and whether it was the property owner’s responsibility to repair the hazardous condition that caused the fall. In Joel Fishelson v. Kramer Properties, LLC, a patron of a bagel store in Queens fell on a single-stop riser that led to an elevated dining area with tables and chairs. Although the condition did not require that handrails be installed, the plaintiff successfully argued at the Supreme Court that there were insufficient visual cues alerting the plaintiff to the step. The Appellate Division threw out the plaintiff’s expert’s report, and found that because the plaintiff had perceived the step and had navigated it with no difficulty earlier, it was an open and obvious condition and the plaintiff could not claim otherwise.

In another trip and fall, in April of 2013, the plaintiff was injured while walking across the lobby of the defendant’s credit union. As she was walking over a rug covering a portion of the tile floor, she tripped and fell. After the plaintiff fell, she noticed that part of the black rubber edge around the rug was bent upwards. The plaintiff, any defendant, nor the surveillance footage could demonstrate that the rug was folded up before she fell. Because it would require the jury to impermissibly speculate as to the cause of her fall, the case was thrown out for not meeting a basic burden of demonstrating with some evidence of how she fell.

However, for slip and fall, the burden shifts slightly. Since the condition is generally not open and obvious, since water, or ice, is transparent and difficult to see, and inherently dangerous, as it causes people to slip and fall, the question then shifts to whether the defendants had notice. In a constructive notice case, where the defendants should reasonably have been on notice of the defect, a defendant in a slip-and-fall case must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell. In Carmen Buitrago v. Gutman Management Co., Inc., the plaintiff allegedly slipped and fell on a puddle of water near a planter in the hallway of a building owned by the defendants. Because the defendants failed to proffer evidence as to when the area where the plaintiff was last inspected or cleaned in relation to the plaintiff’s accident, they failed in their summary judgment motion.

In Dodo Milorava v. Lord & Taylor Holdings, LLC, the plaintiff fell in May 2010 on water that accumulated on certain marble tile flooring near the entrance of the defendant’s department store premises. The defendants here failed to establish when the area where the plaintiff fell, or any of the entrances to the store, were last inspected in relation to the plaintiff’s fall. The only testimony was in regards to general policies from 2012, two years after the plaintiff fell. 

Wednesday, January 6, 2016

Appellate Division, 2d Department Roundup: November 18, 2015 Edition

In this edition of the Roundup, employees at a local psychiatric hospital are attacked by a patient, and a dialysis patient falls off the scale during a weigh-in, as well as several motor vehicle accidents. The most exciting element was that the City was found to have constructive notice of expansion joists that were not flush with the pavement on the bike path of the Manhattan Bridge, allowing plaintiff's practitioners to sidestep at least one aspect of the prior written consent law. More, after the jump . . . 

Read more . . .

Tuesday, January 5, 2016

NYS Trooper Found Liable for Using Excessive Force

A famous attorney once said that the best trial attorneys are those who hate bullies. They stand up for the average person who gets a raw deal and has nowhere to go. A lawsuit isn’t about revenge, but about balance, justice, and protecting the vulnerable.

New York State Trooper Imani Kirkland, for example, pulled over Roseann Payne in 2011 on the Taconic Parkway. Ms. Payne, a 51-year-old grandmother with multiple scelorosis, had her license suspended for failing to pay a fine. So the trooper, Mr. Kirkland, called a tow truck and Ms. Payne called her daughter to come pick her up.

However, Mr. Kirkland didn’t wait for Ms. Payne’s daughter to arrive. He grabbed Ms. Payne out of her car and threw her to the ground. Her dog, scared of the commotion, ran out of the car and into traffic. Ms. Payne pleaded with the trooper to let her go get her dog, but the trooper reportedly said, “I don’t give a f- about your dog.”

A jury in Westchester County rejected the argument that Ms. Payne was resisting arrest and found the trooper liable for using excessive force in the arrest. While this is the result of only one trial, and past performance cannot guarantee future results, it can show that, with effort and persistence, justice can be obtained for those who are the victims of arrests by excessive force.

If you, or a loved one, is the victim of an arrest where you believe the arresting officer used excessive force, call the experienced trial lawyers at Feldman, Kronfeld & Beatty at (212) 425-0230 or at for a free consultation.

Monday, January 4, 2016

Court of Appeals Alert: Hospitals & Doctors Can Be Responsible for Motor Vehicle Accidents Caused by their Patients

When a loved one is hurt or killed in a motor vehicle collision, a common and reasonable step to take is to explore options for possible claims. Since hospital bills, reduced income, and sometimes, sadly, funeral expenses, put great hardships on friends and family, those who have been victimized by negligent drivers or others look to find balance. New York Courts, including the New York Court of Appeals, function as a gatekeeper to whom may be held responsible for a loved one’s injury. And often, they can help us understand the complexities of these injuries in modern day life. The case of Edwin Davis v. South Nassau Communities Hospital, recently decided by the New York Court of Appeals, is a signal case to this cause. More, after the jump . . .

Read more . . .

Tuesday, December 15, 2015

#visionzeroisntzero: Woman Struck Dead by MTA Bus While Crossing Brooklyn Street

The attorneys at Feldman, Kronfeld & Beatty are very familiar with the terrible tolls of vehicles striking pedestrians in New York City. We have observed, on numerous occasions, how despite the CIty's continued efforts to prevent these terrible accidents, they still keep occurring. The only way that the attorneys at Feldman, Kronfeld & Beatty have learned to deal with negligent drivers is to hold them accountable for the pain and suffering that they cause, including the MTA.

A woman was fatally struck by an MTA bus driver as she crossed a Sheepshead Bay intersection Monday afternoon, police said. Eleonora Shulkina, 62, was crossing East 17th Street and Avenue Z when a B36 bus driver making a left turn onto East 17th hit her at 5:55 p.m. Ms. Shulkina is not the first, or the last, pedestrian who will be killed by inattentive drivers.

If you, or a loved one, has been a pedestrian who has been injured by negligent and inattentive drivers, you can contact the experienced motor vehicle collision attorneys at Feldman, Kronfeld & Beatty for a free consultation at (212) 425-0230 or at

Monday, December 14, 2015

Three Workers Partially Buried at Williamsburg Construction Site

The experienced construction injury trial attorneys at Feldman, Kronfeld & Beatty work night and day to protect the safety of construction workers as they do their jobs. Because New York has one of the toughest construction safety laws in the country, it should be enough to keep people safe. However, it's not. Everyday people are still being harmed by the careless and negligence of building owners and general contractors. Last month, a building collapsed, killing a construction worker. Reports abound about how inconsistent safety standards and insufficient Department of Building inspectors are putting lives at risk.

This morning at around 9 AM, at 146 Wilson Street in Brooklyn, three workers were buried under dirt and rubble when a retaining wall collapsed at their excavation site. They had to be rescued from the yard. One of the workers was so injured he had to be taken to Bellevue Hospital, while the others were lucky enough to have only minor injuries. There are no construction permits filed for that site, and the FDNY had to put in a complaint on its own.

Since the Department of Buildings is not doing their job, we have to step in to protect construction workers and help them and their families if they are injured. If you, or a loved one, is injured on the job at a construction site, you can contact us at (212) 425-0230 or at for a free consultation.

Wednesday, December 9, 2015

#visionzeroisntzero: 17-Year-Old Struck and Killed by Hit-and-Run Driver

Jaremello Ovidio, a 17-year-old junior at St John's Prep in Astoria, was crossing the street in the walkway at Junction and Northern boulevards at 10:50PM last night when he was struck by a black Toyota Camry. The driver never stopped after he hit the boy. Ovidio was taken to Elmhurst Hospital, where he was pronounced dead.

Despite the City's indication and our repeated warnings that Vision Zero isn't working and that, in fact, #visionzeroisntzero, pedestrians are still being killed, even in crosswalks, in our city. The pedestrian injury and motor vehicle accident attorneys at Feldman, Kronfeld & Beatty work tirelessly to protect victim's rights and bring those who hurt others to justice. If you, or a loved one, has been hurt by a motor vehicle while in a crosswalk, you can contact us at (212) 425-0230 or at for a free consultation.

Tuesday, December 8, 2015

Bricks and Debris Plummet from East 63rd and 1st Avenue

Imagine if, as you were walking down the street, a building on the Upper East Side tore itself apart and rained bricks down upon you. That's what happened last night on the corner of First Avenue and East 63rd street, where a two-story by 100-foot section of facade tore itself off, throwing debris out on the street.

Unfortunately, this has become a too-common occurrence in New York. Greta Greene, a 2-year-old, was killed by bricks raining down on her and her grandmother from a building at 305 West End Avenue back in May. The investigation into the death lead to the arrest of a licensed building engineer and detailed recommendations that the Department of Buildings must undertake to prevent this kind of tragedy from happening. But again, as we see, the facades of buildings of New York continue to be dangerous to passers-by.

If you, or a loved one, have been injured by falling bricks and debris from buildings, the experienced premises liability and building attorneys at Feldman, Kronfeld & Beatty may be able to help. You can contact us at (212) 425-0230 or at for a free consultation.

Monday, December 7, 2015

#visionzeroisntzero: Woman Is Killed, Four Injured, When Truck Hops Curb in Fort Greene

On Sunday, Marlon Sewell was driving his Chevrolet Suburban eastbound on Fulton Street at about 5:30 in the evening. He didn't have a license or insurance policy; he should not have even been on the road. He swerved right to avoid a city bus in front of him, and went up onto the sidewalk near South Portland Place. Victoria Nicodemus, an art curator and artist, was killed. A 37-year-old man, Victoria's boyfriend, was taken to Brooklyn Hospital in serious condition. Victoria was the 14th person to die by being struck by an automobile while on a sidewalk or inside a building since 2015 - three times as many as in 2014.

At Liberty Avenue and 170th Street, Debra Blackwell was trying to cross the street to do laundry at about 9 AM, when she was struck by an automobile. The driver got out, spoke with her briefly, and then left the scene.

The continued danger and toll of irresponsible and criminally negligent and even criminal motorists in New York City continues. If you, or a loved one has been injured or hurt by a hit-and-run driver, you can contact the experienced motor vehicle attorneys at Feldman, Kronfeld & Beatty for a free consultation at (212) 425-0230 or at

Friday, December 4, 2015

Happy (Safe) Holidays from Feldman, Kronfeld & Beatty!

The diverse and community-oriented attorneys at Feldman, Kronfeld & Beatty want to wish you a safe and happy holiday season. In preparation for what will be a time to spend with family and friends, decorating your home and enjoying the spirit of the holiday season, we ask that you practice good safety while you are in the holiday season.

Tree Tips: Preventing a Fir Forest Fire

  • A tree should be selected two weeks prior to Christmas, and no earlier. Dry trees are a fire hazard.
  • When selecting a tree for Christmas, needles on fresh trees should be green and hard to pull back from the branches. The needles should not break if the tree had been freshly cut. The trunk should be sticky to the touch. You can tell old trees by bouncing the tree trunk on the ground; if a significant amount of needles are shed, the tree was cut too long ago.
  • Do not place a tree close to a heat source, such as a fireplace, radiator, or heat vent. The heat will dry out the tree, making it more susceptible to fires. Do not light candles or cigarettes near the tree.
  • Keep the tree stand filled with water at all times.
  • Dispose your tree by taking it to a recycling center or having it hauled away by a community pick up service.

Decoration Tips: Keep Those Lights Burning Bright, Not Your Curtains

  • READ THE MANUALS before installing decorations. The warnings that trial lawyers insist come with retail products like Christmas lights are there for a reason!
  • Always check to see if Christmas decorations are fire resistant or flame-retardant.
  • If string lights have worn, frayed, or broken cords or loose bulb connections, then it should be discarded.
  • Candles, like Channukah menorah candles, must be in stable holders and placed where they cannot be easily knocked over, and away from flammable materials. DO NOT LEAVE LIT CANDLES UNATTENDED.
  • Never dispose of gift wrapping in a fireplace.

Have a safe and happy holidays everyone!

Thursday, December 3, 2015

#visionzeroisntzero: Cars Continue to Kill in New York City

The experienced and dedicated motor vehicle accident attorneys continue to fight for the rights of victims of criminal and negligent drivers in the City. We continue to implore the City, the Mayor's office, and the state capitol to do something to protect those who have been hurt while walking in New York City. On Wednesday night, just before Thanksgiving, a 54-year-old man was fatally struck by a sedan as he crossed Starr Avenue at Van Dam Street in Long Island City. He was rushed to New York Presbyterian-Weill Cornell Medical Center with severe head and leg trauma. He was pronounced dead shortly thereafter. He was not the only one.

The 24-year-old driver of a Mercedes rear-ended a Nissan Murano at the corner of Pennsylvania Avenue and Stanley Avenue. He tried to flee the scene, killing a woman trying to get into her Toyota Sienna. Three other people were injured as the driver barrelled into other cars trying to flee, and then ending with a desperate attempt to carjack other vehicles before he was finally arrested.

The continued danger and toll of irresponsible and criminally negligent and even criminal motorists in New York City continues. If you, or a loved one has been injured or hurt by a hit-and-run driver, you can contact the experienced motor vehicle attorneys at Feldman, Kronfeld & Beatty for a free consultation at (212) 425-0230 or at

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