Appellate Decisions

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 . . .

Read more . . .

Wednesday, October 28, 2015

1st Judicial Department, Appellate Division Roundup: October 20, 2015 Edition

In this threshold-case heavy selection from the First Department, we have one unusual case where Justices Tom and Andrias dissent on the question of what the defendant must show to make a prima facie case that they did not have constructive notice of a condition.  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 . .  . 

Read more . . .

Wednesday, October 21, 2015

1st Judicial Department, Appellate Division Roundup: October 15, 2015 Edition

A short update, but unusual as it includes a split regarding a Labor Law motion. Check it out below:

Pedro Quinones v. Olmstead Properties, Inc.

 In this SPLIT opinion Labor Law 240(1) case, we will first address the facts, then the Court's findings and then the dissent's:

While painting over graffiti on a billboard, plaintiff lost his balance and fell. The billboard had a row of concrete blocks in front of it to prevent it from tipping over, and the plaintiff was standing on three of them to reach up to the top. He was loosening one of the straps that held the image to the frame so he could paint underneath it. He had been provided a cherry picker, a safety harness and landyard, and two ladders.

The Court found that the defendant had properly made a showing, by means of an expert, that the defendant had provided via testimony of an executive of the defendant's corporation that he had seen a worker using a cherry picker to change the billboard, and via expert submission that the plaintiff could have used the billboard's frameworks to tie off the landyard of the safety harness.

The dissent, however, found that the defendant executive's testimony didn't rise to the level of raising an issue of fact, as the testimony did not establish that the cherry picker that the executive had seen or the work that had been done using said cherry picker was the same as the plaintiff's situation. Furthermore, the dissent found as a matter of law that the expert's statements were conclusory as although the expert identified spots where the landyard could be tied off, the expert failed to include physical properties of those spots necessary to support plaintiff's weight if he fell and the steps he used to identify those spots. Therefore, the dissent found that the evidence adduced would not reach to the level of rebutting plaintiff's proof.

Robert McCullough v. One Bryant Park, et al.

This labor law and common-law negligence case involved a construction worker who was passing from an exterior roof to an interior room. He stepped into an uncovered "drain hole" and fell to the floor. The Court reversed the granting of summary judgment in favor of One Bryant against the plaintiff on two grounds. First, the doorway was considered a passageway for the purpose of proving a Labor Law 241(6) violation of 12 NYCRR 23-1.7(e)(1). Second, just because the defendants lacked supervisory control over plaintiff's work, they could not be dismissed from common-law negligence claims because the injuries arose from the condition of the workplace, rather than the method used in performing the work, and they failed to make a prima facie case showing that they lacked constructive notice of the uncovered drain hole.

Eduardo Velasquez v. MTA Bus Company

In this case, the plaintiff, on his bicycle, was struck when the defendant bus driver changed lanes. Even though the plaintiff was in the middle lane of traffic, and the bus driver was trying to switch to the left lane of traffic to pass the bicycle, by the defendant driver's own admissions it made a prima facie case of negligence and the plaintiff won on summary judgment.

Mark Walker v. Robert C. Whitney, III

In this threshold motion, the plaintiff's case was dismissed at the Supreme Court and affirmed by the Appellate Division. The defendant submitted reports of an orthopedist and neurologist who found full range of motion, and a radiologist which found degenerative diseases and no evidence of causally related injury. In opposition, the plaintiff failed to properly submit admissible evidence. The unaffirmed MRI findings, which would not be admissible anyways, failed to explain how mild hypertrophic changes of the AC joint could be explained by traumatic injury rather than degeneration. The medical records reviewed by defendant's experts in preparation for their exams were also properly held out. The only admissible evidence was a review by plaintiff's orthopedic surgeon shortly after his arthroscopy, which failed to provide measurements of the decreased range of motion in the left shoulder, and did not provide evidentiary support for a statement that plaintiff's shoulder condition was related to the accident, or address the defendants' experts that any shoulder injury was not due to ongoing pathology and degenerative changes.


Wednesday, October 21, 2015

Court of Appeals Alert: Trivial Defects Discussed in Depth in Hutchinson

On October 15, the Court of Appeals had a huge and in-depth discussion of three trip-and-fall personal injury cases that arrived on its docket on a motion for summary judgment for the triviality of the defect. In discussing the defect, the Court gave practitioners a good perspective on future slip and fall cases. To summarize, the Court gave three clarifying notes:

1)  The triviality of a defect does not have to do with its height or other physical characteristics so much as it has to do with whether its intrinsic characteristics or the surrounding circumstances magnify the dangers it poses.

2) The relevant question is not whether the defect is capable of being a trap, but whether the defect was difficult to see or to identify as a hazard or difficult to pass over safely on foot in light of the surrounding circumstances.

3) The defendant must make a prima facie showing of the triviality of the defect as a matter of law.

More, after the jump . . .

Read more . . .

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 . . . 

Read more . . .

Friday, October 9, 2015

1st Judicial Department, Appellate Division Roundup: October 1 & October 6, 2015 Edition

As most of the personal injury cases backlogged on the Court's docket seems to have been dealt with a few weeks ago, there are really only two cases worth mentioning:

Muth v. Wali Mohammed, MD, PC

In this case, the plaintiff committed suicide three weeks after meeting with Dr. Radcliffe, a staff psychologist with a firm that examined plaintiff on three separate occasions for a Workers' Compensation examination and evaluation. The Court dismissed the case that sought to find Dr. Radcliffe's responsible for plaintiff's suicide, since the Court found as a matter of law that "the choices Dr. Radcliffe made were not a proximate cause of [plaintiff's] suicide, an event which occurred three weeks after he last visited with Radcliffe."

Obiotta v. Dukes System Corp.

In this case, the defendant Dukes System Corp., the owner of a truck, and the driver of the truck, were dismissed from a case. The plaintiff's vehicle was being towed, and the tower of the vehicle crossed double yellow lines and nearly hit the truck. In order for the tower to avoid hitting the truck, the plaintiff's vehicle hit the truck, which was stopped. The Court found as a matter of law the truck could not be held liable for the accident, nor could its failure to take evasive action be responsible for the accident.

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.

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.


Thursday, October 1, 2015

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

The 1st Department is issuing a significant number of decisions against, but most of them on September 29, 2015 dealt with criminal appeals. However, there were a few cases involving personal injuries:

Golubowski v. City of New York, et al. and 150 Williams Street Associates, L.P. et al.

The plaintiff, a plumber, was dismantling pipes in a building owned by the defendant, 150 Williams Street. He was on a ladder, and a leaky overhead sprinkler system was dripping water down on top of him. The ladder became wet and slippery, and he slipped and fell and sustained personal injuries. The plaintiff won his summary judgment motion, because the defendants provided him the ladder, and the scaffold that the defendants already provided was in use by plaintiff's co-worker and unavailable for the particular project.

In re Jacobs v. New York State Division of Human Rights

On July 17, 2013, the New York State Division of Human Rights found that Mr. Jacobs had engaged in housing discrimination based on age and discrimination, and had caused mental pain and suffering and punitive damages to the woman that was discriminated against. In all, Jacobs had to pay $75,000.00 in damages, $20,000.00 to the woman he discriminated against. Furthermore, it was confirmed that compensatory damages for mental pain, suffering, and anguish in a housing discrimination case was proper.

PRACTICE TIP: Kenneh v. Jey Livery Service

This case arose out of a discovery dispute in a personal injury action. Jeh Livery Service had filed a motion demanding that plaintiff provide HIPAA-compliant authorizations for production of medical records relating to the plaintiff's pre-existing diabetic condition. The plaintiff, however, never put his diabetic condition at issue by arguing anxiety or other symptoms following the accident. The plaintiff only alleged injuries to his right knee, shoulders, and spine. Therefore, the 1st Department found that the discovery relating to the diabetic condition was improper and affirmed the denial of the defendant's motion.

Friday, September 18, 2015

2nd Judicial Department, Appellate Division Roundup: September 16, 2015 Edition

The following cases and their summaries were released by the 2nd Judicial Department on September 16, 2015:

 Bracco v. NU Image Associates Group, Inc. et al

On November 5, 2012, Michelle Bracco died of carbon monoxide poisoning when a plumber who was working on her house after Hurricane Sunday accidentally left a gas generator on in her garage. The defendants tried to say that the generator was outside of the garage, but the plaintiff decedent's son and her neighbor stated that the plumber used the generator in the garage and the plumber closed the garage door. The defendant's motion for summary judgment was denied.

Leora Hackel v. We Transport, Inc. et al.

While getting off the bus to her preschool, Leora Hacker's four-year-old-child cut her hand on a seatbelt cutter that was stored next to the mechanism to open and shut the bus door, and children getting off the bus would have to pass by it. Ms. Hackel sued the bus company and the preschool alleging that the defendants were negligent in storing the seatbelt cutter so close to where kids could get hurt and for not supervising the children getting on and off the bus. The defendants' motion for summary judgment was denied, because the teaching assistant who escorted the child from the bus to the school, failed to establish that the child did not stop, reach, or touch anything as she exited the bus.

Caroline Swoboda v. Adrian Phillip Fontanetta

Carolina Swoboda went to Dr. Fontanetta, a surgeon, for an arthroscopic subacromial decompression of her right shoulder in 2007. Shortly afterwards, she felt pain in her collarbone and she went back to Dr. Fontanetta, who sent her home. Two weeks later, she went back to the doctor, who examined her and saw that her collarbone was, in fact, broken. Ms. Swoboda sued Dr. Fontanetta for medical malpractice, claiming that Dr. Fontanetta broke her collarbone during the right shoulder surgery and failed to diagnose it properly. In a surprising move, the Court denied the defendants' motion for summary judgment on the plaintiff's claims of res ipsa loquitur, a legal term that means that this is a narrow category of medical malpractice cases requiring no expert to enable the jury to reasonably conclude that the plaintiff's injury would not happen without negligence.

Daphne Jordan v. Juncalito Abajo Meat Corp.

Ms. Jordan slipped and fell in the defendant's grocery store. The defendant moved for summary judgment, and was denied because the surveillance video failed to show that there was no water in the area where Ms. Jordan fell, and the defendant did not give evidence of the last time that the floor was cleaned or inspected prior to Ms. Jordan's fall.

Maldari v. Mount Pleasant Central School District

A high schooler, tormented and bullied by other kids in his class, sued his high school for failing to properly supervise and protect him from the emotional damage of being constantly bullied. The defendant moved for summary judgment, and the Court granted it and dismissing the plaintiff's complaint because schools are not "insurers of the safety of their students" and an assault against the student in the cafeteria was an "unforeseeable act and that it had no actual or constructive notice of prior conduct."

TRIAL TIP: Memenza v. Cole

At trial,the plaintiff testified that she was struck by a motor vehicle while walking across the street within a crosswalk with a light in her favor, while the defendant testified that the plaintiff was riding a bicycle and came out between two parked cars. A redacted police accident report was entered into evidence, which indicated that the plaintiff was riding a bicycle and that the accident occurred in the middle of the block. However, the police officer who prepared the report did not remember how he investigated the accident, could not remember seeing a bicycle, could not remember how he identified the middle of the block as the scene of the accident, and could not recall who told him this information. Even though the defendant was found not negligent, the Court ordered a NEW TRIAL. The Court found that the police report, which is admissible so long as the report is made based upon the officer's personal observations and while carrying out his duties, contains hearsay statements, the statements must be themselves admissible under the business records exception. If not, the police report cannot come in. Furthermore, since the information contained in the accident report bore directly on the ultimate issue to be determined by the jury, the error was not harmless.

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