Feldman, Kronfeld & Beatty Law Blog

Tuesday, October 6, 2015

2d Judicial Department, Appellate Division Roundup: September 26, 2015 Edition

BInani v. City of New York

The Court granted a motion for summary judgment on behalf of the City and the Department of Education, DISMISSING the case. During a wiffle ball game, the plaintiff, a child, was jogging between home base and first base when he was struck in the head by a fellow student taking a practice swing. This was considered a type of accident which was "spontaneous and unforeseen . . . which could not ave been prevented by any reasonable degree of supervision," and so the Department of Education and the City bore no responsiblity to the child and to the parents to prevent this kind of accident from happening again.

Calamari v. Panos

At Decisions 2015 last weekend, hosted by the New York State Trial Attorneys, attorneys at Feldman, Kronfeld & Beatty heard many stories about the patients of the orthopedic surgeon Spyros Panos. The Court prevented the plaintiffs from bringing extra claims against Mid Hudson Medical Group, P.C. and Hudson Valley Center at Saint Francis, LLC because, along with the claims of medical malpractice, the plaintiffs wanted to allege negligent hiring and negligent supervision. Because the plaintiffs waited too long to bring the extra claims, they weren't allowed to amend their complaint and include those causes of action.

Chou v. Ocean Ambulette Service, Inc.

The Court reversed the denial of a summary judgment motion in favor of the plaintiff, granting the plaintiff's summary judgment motion for liability against the defendant. The plaintiff had waited for the pedestrian signal, and was crossing the street, walking at a steady normal pace, and having almost crossed to the other side she was struck by the vehicle operated by the defendant driver. Since the defendant driver came from behind and failed to yield the right of way, it was considered that there were no facts that the defendant could bring up that would make the plaintiff partially responsible for her injury.

Correnti v. Chinchilla

A plaintiff had slipped and fallen on a grassy slope on defendant's property. The Court found that this was the kind of open and obvious condition that was not inherently dangerous to people using it so that the defendant had some duty to prevent the plaintiff from being injured by it. The case was dismissed.

Yeo v. Spa Castle, Inc.

In this case, the defendant, Spa Castle, Inc. owned a vehicle in which the plaintiff was a passenger. Another defendant, Jin, turned in front of the Spa Castle vehicle and caused the accident. In a motion for summary judgment, the plaintiff was able to rebut testimony, via the plaintiff's deposition transcript, that Jin violated several elements of the Vehicle and Traffic Law and failed to yield. However, they were unable to raise a triable issue of fact that the driver of the Spa Castle vehicle was at fault, and the case against that defendant was dismissed.

Lewis v. City of New York

An NYPD officer was shot in the torso while apprehending a suspect in Queens County. His bulletproof vest, issued by the City, did not cover the bullet's entry point. The officer sued the City, claiming that the City was negligent in failing to provide him with a vest that covered a larger area of his torso. However, the Court found that this was the kind of decision that is a discretionary governmental function, and it was entitled to qualified immunity and could not be sued for this kind of behavior and dismissed the NYPD officer's case.

Rabenstein v. Suffolk County Department of Public Works

In this case, the plaintiff was on Health Science Center Road, which was controlled by a flashing red light, in Brookhaven. A bus, operated by the County of Suffolk, was on Health Science Center Drive, which was controlled by a flashing yellow light. The bus struck the plaintiff. The bus, moving for summary judgment, alleged that as a matter of law, the case should be dismissed. However, even if the bus had the right of way, a driver may nevertheless be found to have contributed to the happening of the accident if he or she did not use reasonable care to avoid the accident. Therefore, the motion for summary judgment was properly denied.

Richardson v. Brooklake Associates

The plaintiff, producing and directing a play at the Galapgos Art Space, fell into a water-filled trench when her right foot went off an unguarded edge of the walkway leading to the stage from the center aisle of the venue. The area where the plaintiff had been walking was dark at the time of the accident, while the stage was lit, and this was the first rehearsal of the play. The Court found that this was not the kind of open, obvious, and not inherently dangerous condition that would warrant dismissal of the complaint. The defendant had controlled the venue and removed the railing around the area where the accident occurred and controlled the lighting. Therefore, the defendant's motion for summary judgment was properly denied.

PRACTICE TIP (default judgment & disclaimer): Gershman v. Ahmad

This is a "Dram Shop" case, one in which the plaintiff alleges that one of the defendants, in this case Billiard Balls Management, LLC doing business as Slate, served alcoholic beverages to a visibily intoxicated person, in this case the defendant Sammy Ahmad, who then got into an auto accident involving the plaintiff. The Slate was ten months late in serving in Answer, because their insurance policy had "disclaimed" and refused to provide Slate with attorneys to defend them. Furthermore, the defendant failed to do the most important thing: get an affidavit from the owner of Slate stating facts that would prove they had a meritorious defense to the Dram Shop action. The default judgment was granted.

PRACTICE TIP (contractual indemnification): Cordova v. Town of Islip

In this case, a motion of summary judgment dealing with contractual indemnification, the Court gave an interesting discussion between two parties in a wrongful death action involving an employee of one of the parties. In November of 2002, Mr. Cordova was working at a paper recycling facility owned by his employer, Giove Company, Inc. A truck driven by employees of the Town of Islip was unloading paper in the facility, in which two parts of the facility were separated by a wall of stacked cement blocks. The employee of the town testified that the mechanical arm that pushed paper off the back of the truck wasn't working normally, and when he went to go check, he saw that some parts of the cement wall had fallen off, presumably on top of Mr. Cordova. However, the testimony also demonstrated that the wall was just cement blocks stacked on top of each other with no mortar or anything else to secure them, and usually employees of Giove helped others to unload paper from the trucks. The NY Department of Buildings issued a violation for the wall to Giove after an investigation. The Court found that common-law indemnification and contribution applied here, but because there was no contractual relationship between Giove and the Town and the Town failed to introduce evidence that it was an "intended third-party beneficiary" to the contract between Giove and Islip Resource Recovery Agency, a cause of action for contractual indemnification was improper and should have been dismissed.


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