Feldman, Kronfeld & Beatty Law Blog

Friday, October 30, 2015

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

In this edition of the Roundup, we have a trial jury verdict that is overturned and sent for re-trial and a sexual abuse negligence case that survives summary judgment. More, after the jump . .  .

Juana Santana v. Western Beef Retail, Inc.

This decision has two parts, and two important parts for the trial lawyer in slip-and-fall premises cases. In this case, the plaintiff fell while walking in the produce section of defendant’s supermarket in Staten Island, where she allegedly slipped and fell on water that had been used to spray vegetables. At the close of the plaintiff’s liability case, the plaintiff successfully moved under CPLR 4401 for judgment as a matter of law; the Court agreed that the jury could not rationally have concluded that the plaintiff did not fall as a result of the wet floor, nor could they have concluded that the floor wasn’t wet because of the defendants’ spraying of vegetables.

The second part is a little bit more interesting: the jury awarded the plaintiff $20,000.00 for past pain and suffering and $0 for future pain and suffering, despite the evidence that the shoulder injury plaintiff received was going to be with her the rest of her life. The plaintiff moved, and the judge granted, a CPLR 4404(a) motion to set aside the jury verdict by the plaintiff as contrary to the weight of the evidence, and the Court affirmed and ordered a new trial on damages.

Nevaeh T. v. City of New York

The City of New York, even when faced with despicable conduct of its own employees, will defend them against legitimate people who are injured. This case highlights that. On June 19, 2013, Simon Watts, an elementary school teacher at PS 15 in Springfield Gardens, was convicted of molesting five of his students over three years. This case arose out of that, when an infant plaintiff sought to recover against the City of New York and the Department of Education for negligent hiring, training, and supervision. The City moved for summary judgment, claiming, among other things, that  it had no specific knowledge or notice of Watss' propensity to engage in sexual molestation. However, at the plaintiffs deposition, which the defendant included in their motion papers, contained evidence that one of the infant plaintiffs had been regularly abused over the course of two years and she had once complained of the conduct to an assistant principal. Therefore, the Court found that, as a matter of law, the defendant failed to make a prima facie case for negligence. Furthermore, the plaintiff, although it did not make out a theory of respondeat superior against the DOE for Watts' conduct, as it was outside the scope of employment, other employees of the DOE (such as Watts' supervisors, perhaps) may be negligence in the performance of their duties, and therefore respondeat superior applies.

Sara Kronreich v. Young Men’s and Young Women’s Hebrew Association of Boro Park, Inc.

In this slip-and-fall case, the issue that comes up is whether the YMYWHA is responsible for the injury of the plaintiff. In their gym, the defendants had a whirlpool, sauna, and showers, and it is there the plaintiff slipped and fell. The Court found that the defendants were entitled to summary judgment because the wet condition of the area was “necessarily incidental to its use,” in other words, it was wet because there was lots of water work in the area.

Sharon Lennon v. Cornwall Central School District

In this success against a motion for summary judgment filed by the school district, the deposition testimony failed to make out a prima facie case as to whether the school district had notice of the student that caused the harm's potential for causing harm. The dissent, written by Justice Eng, found that the evidence demonstrated the the act here, which was running towards the exit door during a field trip, was an impulsive one which could not have been reasonably anticipated. Interestingly enough, this demonstrates that, during discovery, any file kept by the school on the student that causes the harm is extremely relevant to prove the action.


Simply, the plaintiff failed to amend their bill of particulars as ordered by the Supreme Court to specifically state the different allegedly negligence acts of each defendant. As a consequence, the plaintiff was precluded, and the Court affirmed, offering certain proof at trial for failure to comply with court-ordered disclosure.

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