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Appellate Decisions

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.


Wednesday, September 16, 2015

Rivera v. Fernandez: Motor Vehicle Accidents and Degenerative Injuries at the Court of Appeals

It is important, when finding trial lawyers to assist in a potential motor vehicle accident case, that the lawyers have familiarity with the medicine and the law surrounding auto accidents. Because of the strictness of the no-fault law in New York, if the medicine that is submitted to the Court isn’t comprehensive and accurate, there is a chance that the plaintiff’s case will be dismissed.

On August 27, 2015, in the case of Richard Rivera v. Fernandez & Ulloa Auto Group, New York’s highest court, the Court of Appeals, affirmed the decision of the 1st Department Appellate Division in a one short paragraph. This decision, while brief, impacts the rights of victims of motor vehicle accidents to sue in court to recover for their injuries.

On June 26, 2010, Mr. Rivera was rear-ended by a vehicle driven by the defendants. He told the Court and the defendants that he suffered meniscus tears in the left knee and had to undergo surgery. His doctor wrote an affidavit to the Court that the injuries he suffered were from the auto accident.

However, the defendant’s doctors wrote to the Court that Mr. Rivera’s injuries were “preexisting and degenerative,” and the plaintiff’s doctor only wrote that the plaintiff’s knee injuries were “secondary” to the accident. The plaintiff’s complaint was dismissed by the trial court, and appealed to the 1st Department.

The 1st Department agreed with the trial court. Because the injury was “secondary” to the car accident and plaintiff’s “surgeon not only failed to address or contest the opinion of defendants’ medical experts that any condition was chronic and unrelated to the accident, but also failed to address or contest the findings of degenerative changes in the MRI report in plaintiff’s own medical records.”

What this means, in summary, is that “anyone with degenerative changes [who is in an automobile accident] is automatically presumed to not have a traumatically induced injury even when the plaintiff’s doctor gives a medical opinion that the injury is traumatically induced” (NYSTLA Letter-Brief, pg. 8).

While this is one case, and every case is different, what this shows is that if you are in a motor vehicle accident, the attorneys that you choose to help you with your potential case must understood the medicine and the law surrounding motor vehicle accident cases in New York. Although attorneys are not doctors, attorneys should be familiar with the basics of anatomy, orthopedic surgery, and the difference between traumatic injury and degenerative and chronic injuries to work with you and your doctors to present the Court with all of the evidence it needs to prevent an untimely dismissal of your case.


Monday, September 14, 2015

Dog Bites: The Most Recent Bronx Attack and Current Law

We here at Feldman, Kronfeld & Beatty are responsible and loving dog owners, but that does not change our commitment to providing justice for those that have been hurt in vicious dog attacks.

On Friday, a man was attacked by two pit bulls in the Bronx. Dog bites are particularly dangerous, and almost always they require the supervision of a medical professional to prevent the spread of infections or virulent diseases like rabies. For example, the two pit bulls in question are being examined right now to make sure that they do not have rabies. If you are bitten by an unknown dog, make sure to immediately speak to a medical professional to get the proper treatment.

In New York, under certain circumstances, individuals who are bit and maimed by dogs can initiate a lawsuit against the dog owner and the landlord of the dog's owner for negligence. It is, in general, very difficult to maintain an action against the owner of a dog because of the "one bite rule." This rule was reinforced in the recent Court of Appeals case Doerr v. Goldsmith, which held against the plaintiff for failing to prove "whether defendants had notice of the animals' harmful proclivities." In short, if a dog hasn't bitten anyone before, it will be very difficult to sue the dog owner.

However, it appears that in this case, the dog had attacked several other dogs over the course of the summer and had a reputation as a dangerous animal. In those situations, a lawsuit may possibly be maintained against the dog owner for any bites from that dog. As in all possible lawsuits, make sure to contact an attorney who can protect your rights if you believe that you have been a victim of a dog bite attack. And if you are bitten by a dog, unknown or known, make sure to contact the NYC Department of Health and Human Hygiene to report the attack.


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