2nd Department

Monday, May 2, 2016

Go-Kart Injuries are Especially Hazardous to Children

A go-kart injury can change your life. According to the U.
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Wednesday, March 30, 2016

2d Department Appellate Roundup: Cases of Interest

Two cases are of particular interest, both decided today:

In Chilinski v. LMJ Contracting, Inc.
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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 . . .

Wednesday, December 2, 2015

2d Judicial Department, Appellate Division Roundup: November 12, 2015 Edition

In this edition of the Roundup, we have an interesting round of construction accident and motor vehicle cases, most of which shows the powerful extent of timely summary judgment motions to clear the air of issues. In a construction accident case, summary judgment removed most of the height-related issues but kept the key failure of the case. But in a few slip-and-fall on ice cases, the Court was relunctant to introduce habit evidence or find that the City had time to correct the icy crosswalk. More, after the jump . . . 

Read more . . .

Thursday, November 12, 2015

2d Judicial Department, Appellate Division Roundup: November 4, 2015 Edition

In this edition of the Roundup, we have a number of auto accident cases and some interesting, run-of-the-mill, bread-and-butter practice tips for proper timing. In general, nothing to be too excited over, but there are several decisions regarding practice that help the plaintiff's bar. More, after the jump . . . 

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Friday, November 6, 2015

2d Judicial Department, Appellate Division Roundup: October 28, 2015 Edition

In this good dozen decisions, we have a basic lesson on hearsay evidence, as well as multiple occasions where cases against municipalities are lost due to proper notice requirements, and some cases laying out the basic law regarding medical malpractice. Also, a foray of teen house parties into the realm of premises and landowner negligence, after the jump . . .

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Friday, October 30, 2015

2d Judicial Department, Appellate Division Roundup: October 21, 2015 Edition

In this edition of the Roundup, we explore the voiding of a jury verdict for $0 for future pain and suffering for a slip-and-fall in a grocery store, and the defeat of defendants' summary judgment motion in a case involving an elementary school teacher abusing his pupils. We also explore some more slip-and-fall cases, some automobile threshold actions, and an interesting note regarding preclusion and the bill of particulars. More, after the jump . . .

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Tuesday, October 27, 2015

2d Judicial Department, Appellate Division Roundup: October 14, 2015 Edition

In this edition, be prepared to explore summary judgments, including several involving slip-and-falls in the rain, bus shelters shattering on people for no reason, and some interesting labor law cases. More, after the jump . .  . 

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Thursday, October 15, 2015

2d Judicial Department, Appellate Division Roundup: October 7, 2015 Edition

This is a particular exciting edition of the Roundup, as there are three big cases dealing with complicated issues, including one involving a multi-million dollar verdict for the plaintiffs. There are several cases having to deal with threshold and serious injuries in motor vehicle accidents, as well as a number of cases dealing with bread-and-butter litigation issues. We'll explore more, after the jump . . . 

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Wednesday, October 7, 2015

2d Judicial Department, Appellate Division Roundup: September 30, 2015 Edition

In this edition of the 2d Judicial Department, Appellate Division Roundup, which was light on detailed personal injury cases, we bring to you some interesting elements of presenting a successful case against municipal defendants, and the 2d Judicial Department's thoughts on the necessities of motion to compel discovery: 

Bachvarov v. Lawrence Union Free School District and County of Nassau

This case again shows the difficulty of proving “prior written notice” when municipal defendants are being sued for personal injuries related to defective conditions. The plaintiff was hurt when she tripped and fell over a defect in a sidewalk abutting a premises owned by the school district in Nassau. Unlike New York City, which generally makes the landowner responsible for sidewalks with the exception of certain family residences, in counties like Nassau it is the municipality’s responsibility. However, the county needed to have prior written notice of the defect in order to be sued over it. Here, the Court said that even though the Nassau County of Public Works, the entity in charge of actually fixing the defect, had prior written notice, because the statute required that the Office of the County Attorney get the notice, the County could not be held liable. Therefore, the plaintiff’s case was dismissed.

Fridman v. New York City Transit Authority

Another case where the trial lawyers have to be experienced with the ecosystem of municipal defendants in New York City in order to properly provide clients with a chance at recovery. In this case, the plaintiff was injured when the Q60 bus on Queens Boulevard suddenly stopped, throwing him forward and fracturing his hip. The correct defendant to sue was the MTA Bus Company, but instead, the lawyers for the plaintiff sued the MTA and the New York City Transit Authority. Since the MTA Bus Company, although a subsidiary of the New York City Transit Authority, was a different entity, the plaintiff’s lawyers missed the statute of limitations and the motion for summary judgment was granted.

Friedman v. Rogerson

In this motor vehicle accident case, the plaintiff was granted summary judgment on the issue of liability, when she proved that was walking within an unmarked crosswalk, that she had observed the conditions of approaching traffic before she began to cross, and that the defendant driver did not yield the right of way.

Pardo v. O’Halleran Family Chiropractic

In this medical malpractice case, the defendant lost their application for summary judgment on whether the defendant’s chiropractic treatment caused the plaintiff’s injury, and also failed to establish with reasonable certainty that the plaintiff would not be able to prove lost earnings. Furthermore, as a practice tip, it should be noted that the court simply threw out the motion for compelling discovery since the required affirmation of good faith effort to resolve the dispute was missing.

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