Appellate Decisions

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.
Read more . . .

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 . . .

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 . . .

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 . . .

Monday, November 16, 2015

1st Judicial Department, Appellate Division Roundup: November 5, 2015 Edition

In this edition of the Roundup, we're limited by only three personal injury related cases decided on November 5 - a medical malpractice, a workplace injury indemnification dispute, and a summary judgment motion on the slope of the interior floor of an apartment on a slip-and-fall.

Michael Ferrante v. Metropolitan Transportation Authority

Michael Ferrante is a "sandhog", someone who works in the tunnels beneath the city of New York. The law firm of Feldman, Kronfeld & Beatty often represent construction workers and those who have suffered injury from construction accidents. Here, Mr. Ferrante is working on a project connecting Metro North Station with Pennsylvania Station. One of the defendants, Kelley Engineered Equipement, LLC, designed a transporter used in that project. Mr. Ferrante was asked to stand on top of the transporter while it was carrying a roadheader, or a machine used to mine the tunnel. The transported tipped over, and Mr. Ferrante was injured. While this was a motion for summary judgment for Kelley to get out of the case, Mr. Ferrante's immediate employer, Dragados-Judlaw, may have been aware that the roadheader would be unstable unless loaded with its boom arm configured to offset any off-side on the load. Therefore, Kelley was not able to get out of the case.

Julio Anthony Lopez v. Vincent Gramuglia, DPM

Dr. Gramuglia, a podiatrist, is alleged in this case to have failed to diagnose a condition called "deep vein thrombosis" or DVT, a medical condition that caused plaintiff's pulmonary embolism. Mr. Lopez, the plaintiff, is alleging medical malpractice against the defendant doctor. The Court sides with the doctor, finding that the doctor did deviate from care in failing to account plaintiff's risk factors for developing DVT, since there was not evidence of the risk factors for the case at bar.

Jorge DaSilva v. KS Realty, LP

This is a unique case, because it involves a tenant suing the landlord for personal injury due to defects within the plaintiff-tenant's apartment. In this case, the plaintiff alleged that the sloping condition in his apartment caused his desk chair to roll on the hallway floor, which caused him to fall. The defendant was able to defeat the case on summary judgment because he had an expert who gave an opinion that the 4% slope in the area where plaintiff allegedly fell was not a dangerous condition and was not a proximate cause of the accident. The plaintiff's expert failed to address how the slope was a proximate cause of plaintiff's fall from his chair.

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 . . . 

Read more . . .

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 . . .

Read more . . .

Wednesday, November 4, 2015

1st Judicial Department, Appellate Division Roundup: October 29, 2015 Edition

In this edition, the 1st Department takes a hard look at some rulings and verdicts at trial. 

Patricia Imperati v. David S. Lee, MD

This is a medical malpractice case, and an unusual reach by plaintiff's counsel. The plaintiff wanted to amend the complaint to allege a cause of action of wrongful death. Defense counsel, in opposition, submitted evidence that plaintiff was seriously ill before the alleged malpractice, and didn't die until nearly two years after the malpractice, with many procedures and care in between. The most important part, though, was that plaintiff's counsel failed to include an affidavit from a medical expert testifying that there was a causal connection between the death and the alleged malpractice despite the difference in time and treatment, and only included a conclusory assertion of the affirmation by plaintiff's counsel. The Court denied the amendment.

Helena Ashton v. EQR Riverside A, LLC

The plaintiff won a non-jury trial in Civil Court, which was reversed by the Supreme Court and the reversal was affirmed. The height differential between a recessed well, covered in carpeting, and the surrounding marble tile caused the plaintiff's fall. The plaintiff introduced evidence that the defendants created the condition by glying the carpet to the floor of the well, failing to install a drainage system under the well, and improperly maintained the carpet, causing the carpet to become matted. However, the plaintiff's expert did not examine the carpet that was present on the day of the accident and there was no evidence that the replacement carpet was identical, and the plaintiff's expert failed to cite any industry standard or authoritative treatise supporting his opinion concerning proper maintenance and design of the area. Therefore the Court found, as a matter of law, the plaintiff failed to meet their burden of proving that the defendant had constructive or actual notice of the defective condition.

Maria Sikora v. Earth Leasing Property Limited Liability Company

Constructive notice issues for freezing of the sidewalks has been an area of difficulty. When the sidewalk has been exposed to above-freezing temperatures for a long period of time, the Courts have usually found that the defendants did not have a responsibility to clear the sidewalks for snow and ice as it should have melted. However, here, because of the significant snow and ice buildup for the two weeks prior to the slip and fall and the comparatively short time frame in which it could have melted, the defendant did not show that the icy condition could not have been present at the time of plaintiff's fall. Furthermore, it did not present evidence as to the last time the sidewalk was inspected or written record of snow or ice removal; therefore, it could not meet the burden that even if it had snowed, it would have been cleared at the time of the plaintiff's fall.

William Davis v. Shana Turner

In this motor vehicle accident case, the defendant failed to rebut the plaintiff's showing that, as a matter of law, the defendant caused the accident by pulling out of a parked position and into a lane of moving traffic without making sure it was safe to do so in violation of the Vehicle and Traffic Law.

Santa Roman v. Sullivan Paramedicine, Inc.

After a jury verdict was entered finding that one of the defendants was 20% liable for the motor vehicle accident, the trial judge granted a motion to set aside the jury verdict as against the weight of the evidence and dismissed the complaint against that defendant. The Court reversed and reinstated the jury verdict. Since the defendant created a foreseeable danger that vehicles would have to brake aggressively in an effort to avoid the lane obstruction created by his vehicle, thereby increasing the risk of rear-end collisions, and there was evidence that this defendant struck a vehicle in front of it in the rear, there was reason to reinstate the jury verdict. In short, in a three-car collision, the middle car can be held liable after striking another car in the rear if its car creates a "lane obstruction" and increases the risk of rear-end collisions, thereby getting rid of the standard rule that cars that are struck in rear-end collisions have no comparative negligence.

TRIAL EVIDENCE: Lisette Cruz v. City of New York

Elements of non-party witness statements in trial evidence were discussed here: 1) the identity of a witness used to lay the foundation of a non-party statement does not need to be disclosed during discovery in order to be called to testify during the trial; 2) a document which has a signature that a non-party witness admits "looks like hers" but denies signing the document may be introduced into evidence as a non-party statement, 3) non-party witness statements may be properly admitted, even if not provided in discovery, if there is no indication in the record that production of the statement was sought and refused.

STATUTE OF LIMITATIONS: John Kahegias v. Waldo Avenue Building

In this property damage action, a defective catch basin caused flooding on the plaintiff's property. However, the plaintiff first noticed the damage in 2006 and that is when the action accrued. But, since the flooding was a continuous wrong and gave rise to successive causes of action that accrued each time the wrong was committed, the plaintiff was only barred to recover from damage that was caused prior to the statute of limitations deadline.

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