Feldman, Kronfeld & Beatty Law Blog

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 . . . 

Jose Cardenas v. BBM Construction Corp,

In this construction accident case, the plaintiff was a construction worker working on installing a 500-pound beam into the wall of a house. The plaintiff and his coworkers used a hoist to lift the beam 14 to 15 feet onto a scaffold upon which the plaintiff was standing. The hoist was then removed from the beam, and one end of the beam was temporarily connected to the wall of the house, while the other end of the beam remained on top of the scaffold. The plaintiff took the end of the beam that was resting on top of the scaffold and manually lifted it about 1.5 feet to connect it to the wall of the house. That lifting of the 500-lb beam, ordered by the defendant construction company, caused the plaintiff to suffer severe back and spinal injuries. The defendant, while winning summary judgment on height-related injuries, there is an industrial code that applies to the factual situation here. During the final placing of structural steel members, like beams, loads shall not be released from hoisting ropes until the members are securely fastened. If the hoist could have assisted with the plaintiff’s lifting, he may have avoided injury.

Veronica Gucciardi v. New Chopsticks House, Inc.

Ms. Gucciardi, while visiting a restaurant owned by the defendant, slipped and fell on ice in the parking lot outside. After a jury trial, the defendant was found not liable. The plaintiff sought to introduce evidence at trial, from an investigator, that for seven or eight times, a worker from the restaurant dumped the remains of a mop bucket near the area where the plaintiff fell. The plaintiff sought to introduce the evidence at trial to prove the defendant’s habit of dumping water into the parking lot, which would have amounted to circumstantial evidence that the defendant was responsible for the dangerous condition that caused her injuries. But since the earliest proferred instance of the habit occurred more than two months after Ms. Guicciardi’s fall, and only observed on seven occasions over the following six weeks, it was insufficient to a habit or regular usage relevant to the trial. The jury verdict was allowed to stand.

Donna Jones v. Ricardo Pinto

In this motor vehicle collision case, Ms. Jones was driving her car northbound on Merrit Road in Farmingdale near its intersection with T. Powell Boulevard. Mr. Pinto was operating his vehicle on T. Powell Boulevard, travelling west. Westbound traffic on T. Powell Bouelvard is controlled by a stop sign, but Merritt Road doesn’t have a stop light or stop sign. As Mr. Pinto attempted to make a left turn onto Merritt Road, the two vehicles collided and Ms. Jones was injured. The plaintiff was able, under these facts, to win on summary judgment.

Deborah Leavy v. Louis Thayer Merriam

In 2004, Mr. Leavy went to Stony Brook University Hospital to remove his gallbladder with Stony Brook Surgical Associates, P.C. Two days after the surgery, he had a heart attack. A month later, he had a second heart attack and died. The plaintiff's wife sued the surgical corporation and treating surgeons and physicians for medical malpractice. The plaintiff was able to establish that the doctors and the surgical professional corporation could not defeat a summary judgment motion, but the fellows and residents were not proper defendants.

Eileen Lorenzo v. 7201 Owners Corp.

Years ago, Mr. Steven Lorenzo tripped and fell as a result of a crack in the floor of defendant’s premises. The defendant attempted to move for summary judgment and failed because, as the Court noted, “[a] defendant moving for summary judgment dismissing a complaint cannot satisfy its initial burden merely by pointing to gaps in the plaintiff’s case . . . It was not the plaintiff’s burden to show . . . that the decedent fell as a result of the alleged crack. Rather, it was the defendant’s burden to show, in the first instance, that the alleged crack was not the cause of the decedent’s fall.”

Adam Rusin v. City of New York

Adam Rusin was walking in the crosswalk in Brooklyn when he slipped and fell on snow and ice. He sued the City of New York for the injuries he suffered. The City moved for summary judgment, alleging that they did not have a reasonable opportunity to remedy the allegedly dangerous condition that was created by the extraordinary snowstorm. The accident occurred 57 hours after a snow storm that resulted in a total of approximately 20 inches of snow falling, and in the 57 hours afterwards, the temperatures rose above, and fell below, freezing. The Court found that the City could not be held responsible for keeping the sidewalk clear.

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