Law Blog

Assumption of Risk Defense Does Not Apply in Case of Student Hit With Ball During Track and Field Practice

In E.Z., Etc., et al v. Hewlett-Woodmere Union Free School District (County of Nassau, Index No. 610104/18), a defendant school district's efforts to dismiss a personal injury case, pre-trial, were unsuccessful as the Appellate Division, Second Department (decided on May 22, 2024) upheld that the "assumption of risk" defense does not apply.  The case arose when the plaintiff, a student of the middle school's track and field team, alleged injuries after she was stretching in an area designated by her track coaches (which was in the center of the middle school's track) and was thereafter struck in the face with an errant lacrosse ball that was thrown by a member of the school's lacrosse team (which, at the time, was practicing on the same field).  At some point after a lawsuit was filed, the defendant school district filed a motion for summary judgment, seeking a pre-trial dismissal of the case.  The trial court denied the motion, and the defendant appealed the decision.

The Appellate Division, Second Department held the following: "[I]t is not necessary to the application of assumption of risk that he injured plaintiff have foreseen the exact manner in which his or her injury occurred, so long as he or she is aware of the potential for injury of the mechanism from which the injury results.  A participant is not, however, deemed to have assumed risks that are concealed or unreasonably enhanced [...]. Here, the defendant failed to establish, prima facie, that the doctrine of primary assumption of risk barred the plaintiff's recovery.  The defendant submitted evidence raising a triable issue of fact as to whether it unreasonably enhanced the risk of injuries by requiring the infant plaintiff to stretch on an area of the field while lacrosse practice was occurring nearby (see Buffalino v. Sport Fitness, 202 AD3d 902, 904).  Accordingly, the Supreme Court properly denied the defendant's motion for summary judgment dismissing the complaint, without regard to the sufficiency of the plaintiff's opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853).

Salvatore R. Marino, Esq.

June 11, 2024

Arbitrator's Award Vacated Due to Lack of Evidentiary Support

In In the Matter of Richardson v.  Markovich (County of Nassau, Index No. 600363/21), the Appellate Division, Second Department (decided on May 22, 2024) affirmed a lower court's Order to vacate an arbitrator's decision.  The case arose in 2016, when the plaintiff allegedly sustained injuries after the defendant's vehicle struck the rear of a vehicle operated by the plaintiff.  At some point after a lawsuit was filed, the parties decided to arbitrate the case; and after the arbitration hearing, the Arbitrator awarded no amount to the plaintiff as the arbitrator determined that "'[t]he evidence fails to disclose that claimant [plaintiff] sustained a serious injury' because she 'failed to distinguish between injuries from the two prior accidents and the [2016] accident].'"  Thereafter, the plaintiff commenced a proceeding pursuant to CPLR 7511 to vacate the arbitration award.  The Supreme Court granted the petition and vacated the award; and the defendant appealed.

The Appellate Division, Second Department affirmed the lower court's order, and the decision included the following: "The arbitrator issued an award in [defendant's] favor upon a finding that [plaintiff] failed to distinguish between injuries that she purportedly sustained in accidents occurring in 1994 and 1999 and injuries she sustained in the 2016 accident.  However, on the issue of damages, [plaintiff] submitted, inter alia, medical reports from her treating physician explaining that [plaintiff] had no history of recent injury and casually relating her claimed injuries to the 2016 accident.  [Plaintiff's] deposition testimony established that, although she did not remember which body parts, if any, were injured in the 1994 and 1999 accidents, those accidents did not result in any injury to the relevant body parts and that, on both occasions, she returned to work.  [Defendant] did not submit, and the arbitrator did not consider, any other evidence as to [plaintiff's] purported prior injuries.  Accordingly, there was 'no proof whatever' to justify the arbitrator's award."

Salvatore R. Marino, Esq.

June 11, 2024

NYS Court of Claims, Bicycling, and the "Assumption of Risk" Defense

In Alfieri v. State of New York, 2024 Slip Op. 00886 (decided on February 21, 2024), the Appellate Division, Second Department reversed a NYS Court of Claims decision to dismiss an injured claimant's case - as the appellate court held, among other things, that the Court of Claims incorrectly applied the "assumption of risk" doctrine/defense to the case.

The case arose after the claimant commenced a claim in the NYS Court of Claims (a court which entertains just lawsuits, or "claims," against the State of New York).  The claim was against the State of New York, and it requested to recover damages for personal injuries allegedly sustained when the claimant fell from his bicycle as he rode on a paved path around Rockland Lake in Rockland Lake State Park.  At a non-jury trial (as the Court of Claims does not permit jury trials - but rather only "bench-trials," or trials in which a NYS/Court of Claims judge decides matters of both law and fact involving a NYS defendant), the claimant testified that he fell when his bicycle ran into loose asphalt at the end of a crack in an asphalt patch as he attempted to maneuver to the edge of the path to go around two people walking on the path.  After the bench-trial, the Court of Claims justice found that the claim was barred by the doctrine of primary assumption of risk; and thereafter, the court issued a judgment dismissed the claim. The claimant thereafter appealed.

The Appellate Division, Second Department, revered the Court of Claims' decision - thereby restoring the case (and remitting the case back to the Court of Claims for a decision on those issues left undecided as a result of its determination), holding, among other things, the following: "Here, the Court of Claims erred in determining that the path where the claimant's accident occurred was a designated venue used specifically for bicycling.  When the injury occurred, the claimant was engaged in a recreational bicycle ride on a paved, public surface.  The claimant was not participating in an organized group event or sponsored ride.  The claimant testified at trial that he could both bike and walk the path.  That, in addition to the presence of pedestrians who precipitated the accident, demonstrated that the path was for public use, and not a designated venue for bicycling.  Therefore, the claimant, by participating in recreational bicycling, cannot be said to have assumed the risk of being injured as a result of an alleged defective condition on the paved path, and therefore, the doctrine of primary assumption of risk is inapplicable to the claimant's activity...."

Salvatore R. Marino, Esq.

March 9, 2024

"Serious Injury" Need Not Be "Permanent" For Auto-Accident Case

In Strong v. Sigman, et al, 2024 N.Y. Slip Op. 1028 (decided on February 28, 2024), the Appellate Division, Second Department reversed a trial court's granting of a defendants' summary judgment motion - thereby restoring the case - as the appellate court found, among other things, that triable issues of fact existed with respect to whether the plaintiff's non-permanent injury constituted a "serious injury" by way of Article 51 of the NYS Insurance Law (also known as the "No-Fault serious injury threshold law").  

The case arose due to an automobile accident between the plaintiff and the defendants.  At some point after the accident, the plaintiff filed suit against the defendants, and set forth allegations including that the defendants were negligent and caused the accident, and that the plaintiff sustained injuries/damages.  During the pre-trial process, the defendants filed a motion for summary judgment which requested dismissal of the case as, the defendants' contended, the plaintiff's injuries were not "permanent" and therefore no "serious injuries" existed as a matter of law.  A Queens County Supreme Court Justice agreed with the defendants' position, and granted the motion, and the plaintiff thereby appealed.

The Appellate Division, Second Department, reversed - thereby restoring the case - and the decision included the following: "In opposition, however, the plaintiff raised a triable issue of fact as to whether she sustained a serious injury to the cervical and lumbar regions of her spine under the significant limitation of use category of Insurance Law 5102(d) [citing Perl v. Meher, 18 NY3d 208].  Contrary to the defendants' contention, Insurance Law 5102(d) does not expressly set forth any temporal requirement for the significant limitation of use category and a 'significant limitation' need not be permanent in order to constitute a serious injury [citing Vasquez v. Almanzar, 107 AD3d 538; Estrella v. GEICO Ins. Co., 102 AD3d 730]."  

Salvatore R. Marino, Esq.

March 9, 2024

Questions of Fact Exist Regarding Ice Formation Prior to Snow Storm

In Townsend v. City of New York, et al (Index No. 711239/17, Queens County), the Appellate Division, Second Department recently affirmed a lower court's denial of a defendant's motion for summary judgment in a slip-and-fall due to ice case.  The case arose in January 2017, when the plaintiff allegedly slipped and fell on a walkway at the Queensbridge Houses South, in Long Island City.  At his 50-H hearings, the plaintiff testified that he fell due to ice; and at his deposition during the discovery process, he testified that the hazard was "dirty, crunchy" snow.  It is undisputed that at the time the plaintiff fell, it was snowing, with at least some snow accumulated on the ground.  At some point during the litigation, the defense filed a motion for summary judgment, seeking to dismiss the case by way of the "storm in progress" doctrine (which, if accepted by the Court, could result in a case dismissal).  The motion was denied, and the defense appealed.

The Appellate Division, Second Department notes applicable case law, including a case recently handled by Marino & Marino, P.C. titled Maharaj v. Kreidenweis (in which this firm, in March 2023, successfully defeated on appeal a motion for summary judgment from a defendant property owner in a slip-and-fall/ice case), as the Court stated the following: "As the proponent...of the motion for summary judgment, the defendant...had the burden of establishing, prima facia, that [it] neither created the icy condition nor had actual or constructive notice of its existence for a sufficient length of time to discovery and remedy it [citing Maharaj v. Kreidenweis, 214 AD3d 717, 719]."

The Court then goes on to hold that the lower court properly denied the defendants' motion - as even though the defense properly satisfies their summary judgment burden, the plaintiff, in opposition, raised triable issues of fact.  Particularly, the Court held: "An affidavit of the plaintiff's expert, in combination with the plaintiff's testimony and the sworn statement of the sole witness to the accident, was sufficient to raise a triable issue of fact as to whether the plaintiff slipped on ice, rather than snow, and whether such ice formed prior to the storm such that the defendant had a duty to make the path safe prior to the alleged time of the plaintiff's accident."

Salvatore R. Marino, Esq.

December 29, 2023

NY Court of Appeals/Grady Decision and the "Assumption of Risk" Doctrine

The doctrine of “assumption of risk” has been in place in New York since the enactment of C.P.L.R. 1411 in 1975.  It is applicable only in very particular circumstances where a participant takes part in a sport and/or recreational activity, and the danger inherent in the activity is obvious and necessary.  The participant in such an activity must be aware of the risk, appreciate the nature of the risk, and voluntarily assume the risk.  Exceptions to these are if the risks are hidden or unreasonably enhanced.

In the recent New York Court of Appeals decision Grady v. Chenango Valley Central School District et.al. (2023 WL 3102723, decided on April 27, 2023), two cases within the context of high school athletics and concerning the doctrine of assumption of risk were reviewed.  In Secky, the plaintiff, while playing basketball, was injured during a drill in which teammates competed to retrieve a rebound ball.  The plaintiff sustained a serious injury to his shoulder when another player collided with him and caused him to fall into the bleachers.  The Court affirmed defendants’ motion for summary judgment (thereby dismissing the case) because it held the plaintiff’s injury was inherent in the sport of basketball and therefore, he assumed the risk of injury.  However, in Grady, the plaintiff sustained vision loss in one of his eyes while participating in a complex baseball drill involving multiple balls being thrown and protective screens set up on the field in various locations.  In this case, the Court reversed the lower courts’ granting of defendants’ motion for summary judgment – thereby restoring the case – because it held the use of screens and the complexity of the practice/drill created a unique and dangerous condition that rose above the usual inherent dangers in this particular sport and within the context of a high-school athletics program (and as a result, the Court held that one does not assume the risk of same).

Of interest in this decision is the dissent by Justice Rivera, who concurs in Grady but dissents in Secky (a dissent is when a Judge disagrees with the majority decision of the Court and states their own opinion after the decision).  Justice Rivera discusses the legislative intent of C.P.L.R. 1411, which “expressly abolished contributory negligence and assumption of risk as absolute defenses,”  and that the intent of the legislation was to allow plaintiffs to recover in part for injuries they are partially liable for.    Justice Rivera further analyzes the broad interpretation of the definition of “recreational activity,” as well as discusses in detail numerous publications on the abuse and retainment of the assumption of risk doctrine in the court system.  Justice Rivera suggests that assumption of risk should be abolished, and such an abolition will not cause the dire consequences to sporting events and activities suggested in prior case analysis, and a comparative fault analysis is sufficient in these cases. Justice Rivera further states that the Court should reverse both Grady and Secky and remit for trial with juries instructed on comparative fault.

Giulia R. Marino, Esq.

May 22, 2023

MVAIC Petition Denied as Petitioner Did Not Demonstrate Reasonable Efforts to Ascertain the Identity of Owner/Operator of Vehicle in Hit-and-Run Accident

In the Matter of Cymba Melville v. Motor Vehicle Accident Indemnification Corporation (decided on or around November 14 2022, Index No. 705389/19), the Appellate Division, Second Department affirmed a Queens County Supreme Court Order which denied a petition, in a hit-and-run accident, which sought permission to file a lawsuit against the Motor Vehicle Accident Indemnification Corporation (“MVAIC”).  

The case arose when the petitioner allegedly was injured when a vehicle in which she was a passenger in was struck by another vehicle.  As she initially claimed to not know the identity of the owner and/or operator of the other vehicle – and as she presumably did not know whether that vehicle was insured, as the vehicle she was in was likely uninsured, and as she likely did not have any automobile insurance of her own (including by way of her household) – then she filed a Notice of Intention to Make a Claim with MVAIC (as MVAIC, a non-profit organization created by NYS legislation, is often a last resort and option for injured persons in automobile accidents when there is no other available insurance).

The Supreme Court, however, denied the petition, and the Appellate Division affirmed – with a holding that included the following: “The Supreme Court did not err in denying the petition pursuant to Insurance Law Section 5218 for permission to commence an action against MVAIC to recover damages for personal injuries sustained and caused by the negligence of an unknown party.  MVAIC was created in 1958 to compensate innocent victims of hit-and-run motor vehicle accidents…Here, although there is no dispute that the petitioner was a qualified person pursuant to Insurance Law Section 5202(b), the petitioner failed to sustain her burden of demonstrating that the accident was one in which the identity of the owner and operator of the vehicle was unknown or not readily ascertainable through reasonable efforts.”  The Court further noted – and what appears to be a significant and decisive factor in the Court’s reasoning – is, “While testifying at an examination under oath, the petitioner identified the driver of the vehicle which struck her vehicle as an individual with whom she was acquainted.”  

Salvatore R. Marino, Esq.

November 13, 2022

High School Football Player Did Not "Assume the Risk" of Weightlifting Injury

Annitto, etc. v. Smithtown Central School District (decided on or around November 4, 2022, Index No. 611093/17) highlights the “assumption of risk” doctrine/defense in the context of high school athletic programs.  In the case, the plaintiff, on a high school football team, sustained serious injuries (including one of his fingers being crushed) when he was engaging in weight training exercises at the high school.  The incident happened during an off-season weight training test overseen by the school’s football coach.  Thereafter, the plaintiff’s mother commenced a lawsuit on his behalf against the school and in the Suffolk County Supreme Court, including, among other things, alleging negligent supervision.  At some point during the pre-trial process, the school moved to dismiss the case by way of a summary judgment motion – including asserting an argument that the plaintiff “assumed the risk” – and the Supreme Court granted the motion.

On appeal, however, the Appellate Division, Second Department reversed (thereby restoring the case), and with its decision including the following: “While the weight test was related to the infant plaintiff’s conditioning, and was occasioned by his membership on the school’s football team, that does not mean that the risk of being injured while lifting a heavy bar is inherent in the sport of football.  We cannot conclude that the fact that a person is getting in shape to play a sport means that the person assumes all of the risks associated with getting in shape, such that a school district would have no duty to its students to provide safe conditions for lifting weights and proper supervision of that activity.”

Salvatore R. Marino, Esq.

November 13, 2022

Plaintiff Swimming Official Did Not "Assume the Risk" of Injury Due to Water Leaking From Negligently Maintained Pipe Onto Pool Deck

In O'Brien v. Asphalt Green, Inc. (Index No. 12847/14, decided on April 28, 2021), a denial of a defendant pool operator's motion for summary judgment was affirmed by the Appellate Division, Second Department, for reasons including that the plaintiff did not "assume the risk" of injury when slipping and falling on a wet pool deck due to water leaking from a defective pipe.  Particularly, the case arose when the plaintiff, who was a swimming official, allegedly was injured when she slipped and fell on a wet condition on a pool deck at an indoor swimming facility located in Manhattan, and which was operated by the defendant Asphalt Green, Inc.  The plaintiff thereafter filed a lawsuit against the pool operator, but before trial the defendant moved for summary judgment (which sought to dismiss the plaintiff's case) contending, among other things, that it cannot be held liable for the plaintiff's accident since the wet condition was necessarily incidental to the use of an indoor pool, and that no triable issues of fact exist for trial.  The Queens County Supreme Court denied the motion, and the defendant appealed.

On appeal, the Appellate Division affirmed the lower court's decision, holding, among other things, the following: "The defendant failed to establish, prima facie, that water accumulation on an indoor pool deck from condensation that had formed and dripped from overhead pipes or ductwork was necessarily incidental to the use of an indoor swimming facility...Further, the defendant failed to make a prima facie showing of entitlement to judgment as a matter of law based upon the doctrine of assumption of risk.  Under the doctrine of primary assumption of risk, a voluntary participant in a sporting or recreational activity 'consents to those commonly appreciated risks [that] are inherent in an arise out of the nature of the sport generally and flow from such participation'...Here, the hazardous condition of an indoor pool deck wet from condensation that had formed and dripped was not open and obvious and created a risk beyond that inherent in the sport of swimming in an indoor swimming facility...Further, 'the doctrine of assumption of risk does not exculpate a landowner from liability for ordinary negligence in maintaining a premises'...."

Salvatore R. Marino, Esq.

May 8, 2021

Motion for Directed Verdict Decision Reversed

In Creutzberger v. County of Suffolk, et al (Index No. 39984/08, decided on February 26, 2020), the Appellate Division, Second Department, reversed a trial court's decision that denied a defendants' motion for a directed verdict pertaining to an issue of creation of a dangerous condition.  The case arose in September, 2007, when the plaintiff, while attending a music festival at property owned by the County of Suffolk and occupied by the Long Island Maritime Museum, was caused to fall and sustain injuries after the bicycle he was riding on grass struck the edge of a portion of a boardwalk.  Thereafter, he commenced a lawsuit against the aforesaid entities, alleging, among other things, that the defendants breached their duty to adequately illuminate the incident location area, and that they created a dangerous condition by cutting the grass to the same level as the boardwalk, thereby concealing the height differential between the boardwalk and the grass path. 

The matter proceeded to a jury trial, and after the plaintiff presented his direct case, the defendants' attorneys made a CPLR 4401 motion for a directed verdict to dismiss plaintiff's case.  The motion included an argument that the plaintiff failed, as a matter of law, to prove that the defendants created a dangerous condition, and as such, the plaintiff's case should be dismissed.  The trial court denied the motion, and thereafter the jury found that the County of Suffolk was 45% at fault, the Long Island Maritime Museum was 40% at fault, and that the plaintiff was 15% at fault.  On appeal, however, the Appellate Division, Second Department, reversed the trial court's aforesaid motion for directed verdict decision, holding as follows:

"A trial court's grant of a CPLR 4401 motion for judgment as a matter of law is appropriate where the trial court finds that, upon evidence presented, there is no rational process which the fact trier could base a finding in favor of the nonmoving party...Where, as here, a municipality has enacted a prior written notice statue, it may not be subjected to liability for a defect within the scope of the law unless it received prior written notice of the defect or an exception to the prior written notice requirement applies...The only two recognized exceptions to a prior written notice requirement are the municipality's affirmative creation of a defect or where the defect is created by the municipality's special use of the property...

Here, the plaintiff asserted that the requirement for prior written notice was obviated because the defendants created a dangerous or defective condition through an affirmative act of negligence by cutting the grass to the same level as the boardwalk, thereby concealing the height differential between the boardwalk and the path.  However, at trial, the plaintiff failed to proffer any evidence that the defendants mowed the grass abutting the boardwalk to the same level of the boardwalk...To the contrary, the plaintiff presented testimony of a park supervisor employed by the County, who testified that the grass was not cut to make it even with the boardwalk, but rather, the grass was cut '[d]own to the ground.'  Thus, upon the evidence presented at trial, there was no rational process by which the jury could base a finding in favor of the plaintiff on the theory that the defendants created a dangerous condition through an affirmative act of negligence....Since a general verdict sheet was submitted to the jury, we cannot ascertain whether the jury's verdict was predicated on a finding in the plaintiff's favor on the theory that the defendants breached their duty to adequately illuminate the area where the accident occurred, or on the affirmative negligence theory, which should not have been submitted to the jury...Accordingly, the interlocutory judgment must be reversed, and the matter remitted to the Supreme Court, Suffolk County, for a new trial on the issue of liability."

Salvatore R. Marino, Esq.

March 4, 2020

Village's Motion Denied as Prior Written Notice Exists

In Bochner v. Town of Monroe, et al (Index No. 8529/14, decided on or around February 8, 2019), a defendant municipality's motion for summary judgment was denied by the Appellate Division, Second Department, as that defendant submitted evidence in support of its motion that demonstrated that it received prior written notice of the subject defective condition.  Particularly, the case arose in August 2013, when the plaintiff was injured in the Village of Kiryas Joel, as she stepped off a curb and into a pothole in the roadway of Carter Lane, thereafter suffering injuries and commencing a lawsuit against entities including the Village of Kiryas Joel.  At some time during the pre-trial litigation process, the defendant Village of Kiryas Joel moved for summary judgment (seeking to dismiss the plaintiff's case) contending that it did not receive the requisite written notice of the subject dangerous condition prior to the date of the plaintiff's incident.

The Supreme Court of Orange County denied the defendant's motion, and the Appellate Division, Second Department affirmed the trial court's decision, holding, among other things, as follows: "In supports of its motion, the Village submitted evidence that itself demonstrated the existence of triable issues of fact as to whether it had received the requisite prior written notice of the alleged defect.  This evidence established that in the weeks before the plaintiff allegedly was injured, an officer designated by the Village Code as a recipient of written notice, the Village Superintended of Public Works, himself drafted two worksheets detailing defects in the roadway of Carter Lane.  Additionally, the Village submitted evidence that the Village Superintendent of Public Works emailed those worksheets to the Village Clerk - the other officer designated under the Village Code as a proper recipient of written notice - weeks before the date on which the plaintiff was allegedly injured...."

The Court also noted that although it was not clear whether the worksheets identified the precise defect that allegedly caused the plaintiff's injuries, the documents still presented a triable issue a fact (thereby warranting a denial of the motion) as, "'A recent prior written notice that does not provide an exact location, but which nevertheless reasonably identifies the area of the purported defect, may give rise to a question of fact for the jury as to the sufficiency of the notice' [citing Massey v. City of Cohoes, 35 AD3d 996; Blanc v. City of Kingston, 68 AD3d 1525; and Delaney v. Town of Islip, 63 AD3d 658]."

Salvatore R. Marino, Esq.

February 17, 2019

New Trial Ordered in Subway Gap Case

In Noreen Stallings-Wiggins v. New York City Transit Authority, NY Slip Op 07774 (decided on November 14, 2018), a personal injury case arising from a subway gap, the Appellate Division, Second Department, granted the defendant New York City Transit Authority's motion to set aside a jury verdict on the issue of liability as contrary to the weight of the evidence and for a new trial.  The case arose on November 23, 2009, between approximately 8:15 a.m. and 8:30 a.m., when the plaintiff allegedly was injured while attempting to board a train at a subway station in Brooklyn, and after she stepped into a gap between the train and the station platform.  After the completion of the discovery process, and following a trial regarding the incident, a Kings County jury found that the defendant New York City Transit Authority was negligent, that its negligence was a substantial factor in causing the accident, and that the injured plaintiff was not negligent.  The defendant, thereafter, moved  pursuant to CPLR 4404(a) to set aside the jury verdict on the issue of liability as contrary to the weight of the evidence and for a new trial.  The Supreme Court denied the motion, and the defendant thereafter appealed.

The Appellate Division, Second Department, reversed the trial court's denial of defendant's motion, thereby granting defendant's request for a new trial, holding, among other things, the following: "The jury's finding that the NYCTA [defendant] was solely at fault for the accident was contrary to the weight of the evidence.  The evidence at trial demonstrated that, just prior to the accident, the injured plaintiff had exited the B train and stepped over the subject gap, without incident, onto the plaintiff of the Prospect Park station.  She then stepped into that same gap while attempting to reenter the train moments later.  Additionally, the injured plaintiff had used the Prospect Park station on several occasions.  She testified that, for approximately one year, she had been taking the B train to the Prospect Park station where she would transfer to the shuttle train if it was at the station when she arrived.  Under the circumstances, the jury's verdict on the issue of liability completely absolving the injured plaintiff of comparative fault was not supported by a fair interpretation of the evidence [citing McDonald v. Long Is. R.R., 77AD3d 712]."

Salvatore R. Marino, Esq.

November 24, 2018

Destroyed Accident Site Leads to Spoliation Charge

In Osorio v. Louis Richardt Holdings LLC (21487/12E, NYLJ 1202784005507, Supreme Court, Bronx County, decided March 23, 2017), Bronx Supreme Court Justice Lizbeth González granted a plaintiff an adverse inference jury charge against several defendant property owners and/or operators, after holding that those defendants, during the discovery stage of litigation, wrongfully destroyed the accident location premises in which the plaintiff claims caused him to fall and sustain serious injuries.  

Particularly, the plaintiff alleges that as a result of the defendants' negligence, he sustained serious injuries when a defective step collapsed as he ascended the basement stairs of premises located in Bronx County, causing him to fall to the ground.  Approximately one year later in June 2013, and after the plaintiff commenced a lawsuit, the defendants replaced and destroyed the basement staircase without prior notice to the plaintiff's counsel - despite the plaintiff's counsel's requests for a site inspection.  As a result, the plaintiff made a motion to strike the defendants' answers, and alternatively sought an adverse inference jury charge based on defendants' spoliation of material evidence.

The Court granted plaintiff's motion in part, holding as follows: "After careful consideration and review, the court finds that as a matter of law, defendants willfully and deceptively destroyed material evidence - the basement staircase - with notice that the evidence would be needed for litigation.  The court notes that defendants moreover failed to correct their attorney's representation that the staircase remained unchanged post-accident as referenced in [plaintiff's counsel's] email to [defendants' counsel].  Plaintiff's motion is granted to the extent that the sanction of an adverse inference in plaintiff's favor is hereby ordered; this sanction shall be communicated to the jury in the event of trial.  Striking the answers herein, however, is not warranted since the Preliminary Conference Order does not reference any inspections and plaintiff waited more than two years before attempting to schedule an inspection date...."

Salvatore R. Marino, Esq.

April 22, 2017

Store Not Liable for Employee's Assault

In Villongco v. Tompkins Square Bagels (153093/2014, NYLJ 1202758483091, decided May 18, 2016), a New York County personal injury case, a bagel store's motion for summary judgment was granted against the plaintiff when he was assaulted by an employee of the store.  Particularly, it is alleged that the plaintiff called a female worker at the bagel store a derogatory name, and a co-worker was informed of this and confronted the plaintiff outside, thereby assaulting him.  As a result of the assault, the plaintiff commenced a personal injury action, contending, among other things, that the defendant bagel store is vicariously liable for the employee's actions towards the plaintiff.

After discovery was completed, the defendant bagel store made a motion for summary judgment, contending that the plaintiff's action should be dismissed as there are no triable issues of fact.  Justice Carol Edmead agreed with the defendant bagel store, granting its motion, noting, among other things, that at the time of the assault the employee was not working (and was "off the clock"), and therefore was not acting within the scope of his employment.  The Court also stated the following: "'An employer cannot be held vicariously liable for an alleged assault where the assault was not within the scope of the employee's duties, and there is no evidence that the assault was condoned, instigated or authorized by the employer [citing Yeboah v. Snapple, Inc., 286AD2d 204, 729 NYS2d 32 (1st Dept 2001)].'"

Salvatore R. Marino, Esq.

July 28, 2016

Roadway Defects in 1285 England

In New York, if one is injured by a roadway defect, then a lawsuit can be brought against the owner of that roadside - many times the State or a municipality (a village or town).  However, whether one succeeds in such a lawsuit often depends on whether there is prior written notice of the defect, or if the owner created the defect - strict requirements imposed by law.  Unfortunately, as a result, often times roadway (as well as other area) defects do not get repaired until an accident or tragedy occurs (including a serious injury or death).

According to Danny Danziger and John Gillingham in their book "1215, The Year of Magna Carta," major roadways in England in the 12th and 13th centuries generally had to be properly maintained, as required by the King - and this was not dependent on requirements such as "prior written notice" or otherwise.  The authors note one instance in particular, where in 1285 Edward I strongly reminded the priory and townspeople of Dunstable of their obligation with respect to Icknield Way and Watling Street:

"We have learnt that the high roads going through your town are so damaged and pitted by the heavy traffic of carts that those using them are in constant danger of being badly injured.  We therefore command you, each and every one of you according to your station and resources, to ensure that the roads are mended and the holes filled as has been done in times past.  Otherwise it will be necessary for us to move in and with a heavy hand."

Salvatore R. Marino, Esq.

June 5, 2016

Inadmissible Hearsay Results in New Trial

In Watch v. Gertsen (10373/10, NYLJ 1202719688567, at 1, App. Div., 2nd, decided March 4, 2015), a personal injury case involving a motor vehicle accident, a plaintiffs' motion for a new trial was granted as a result of inadmissible hearsay permitted at trial.  Particularly, the trial judge allowed a New York State Trooper (who responded to the accident scene) testify and, over the plaintiffs' objections, defense counsel was permitted to elicit the following testimony from him: that the Trooper had indicated on the police accident report he prepared that each of the plaintiff motorcyclists was a contributing factor to the accident; and that he had made no such notation with respect to the defendant driver.  Ultimately, the jury rendered a decision against the plaintiffs (thereby dismissing their complaint), and the plaintiffs thereafter made a motion to set aside the verdict and for a new trial.

The Appellate Division, Second Department granted plaintiff's motion for a new trial, and did so as a result of the Trooper's testimony regarding his police report notations, which the Court deemed was inadmissible hearsay.  The Court held the following: "We agree with the plaintiffs that the Trooper's testimony concerning the notations in his accident report regarding who was at fault in the happening of the accident constituted inadmissible hearsay...[f]urthermore, contrary to the defendants' contention, the record does not demonstrate that the plaintiffs stipulated to the admission of the Trooper's opinion.  The admission of the Trooper's opinion testimony constituted prejudicial and reversible error because it bore on the ultimate issue to be determined by the jury, i.e., which of the parties was at fault in the happening of the accident (see CPLR 2002; Sanchez v. Steenson, 101 AD3d at 983 [...])."

Salvatore R. Marino, Esq.

March 7, 2015

U.S. Supreme Court Edits Decisions Without Notice

According to a recent article in the New York Times by Adam Liptak ("Final Word on U.S. Law Isn't: Supreme Court Keeps Editing," 5/24/14), the United State Supreme Court has been regularly editing its decisions - without making public notice of the revisions.  According to Richard J. Lazarus in the article, law professor at Harvard and the author of a new study regarding the practice, the edits include "truly substantive changes in factual statements and legal reasoning."

This practice is seemingly troublesome - particularly for attorneys across the country - as the decisions are relied upon for guidance, and the finality of them is now discovered to be uncertain with respect to significant legal holdings.  This was particularly noted by Jeffrey L. Fisher in the article, a law professor at Stanford, who stated, "[i]n Supreme Court opinions, every word matters...[w]hen they’re changing the wording of opinions, they’re basically rewriting the law."

One reason the article notes for the revisions is due to the time constraints the Justices have when writing and publishing their decisions (which sometimes lead to inaccuracies and misstatements of law).  Also, according to Mr. Liptak, the final versions of decisions do not always fully replace the original ones, and the only way the public can identify most changes is by a rigorous comparison of early versions of decisions to ones published years later.

Salvatore R. Marino, Esq. 

May 26, 2014

Meteorologist Report Fails to Create Issue of Fact

In Gibel v. Resnik Holdings (30761/2010, NYLJ 1202638795883, at 1, Sup., Westchester, decided January 8, 2014), on Sunday February 14, 2010, the plaintiff slipped and fell on chunks of ice in front of East 5th Street near its intersection with South Fulton Avenue, Mount Vernon.  Prior to the accident, it had snowed 10 inches on February 10, 2010, but there was no additional precipitation between then and the day of the plaintiff's accident.  On February 17, 2012, the plaintiff commenced a personal injury action against the defendant, the owner of the building located at 336 South Fulton Avenue, in Mount Vernon.  After the discovery process concluded, the defendant moved for summary judgment seeking to dismiss the plaintiff's complaint on the ground that the defendant did not create nor have notice of the icy condition which caused plaintiff's fall.

In support of its motion, the defendant relied on, among other things, the affidavit of its president, who stated that in February 2010 he did not observe any condition on the sidewalk which would constitute a dangerous condition or defect.  The defendant also relied on his deposition, in which he testified that he did not receive any complaints regarding the condition of the sidewalk before plaintiff's accident, and that the businesses in his building were closed on Saturday and Sunday that week and since there was no precipitation on those days, no one returned to the premises to check the condition of the sidewalk.  In opposition, the plaintiff argued that there are questions of fact regarding whether defendant created the icy condition.  In support of her opposition, the plaintiff submitted the affidavit of a meteorologist, who opined that the ice chunks upon which plaintiff fell were made by artificial means.

The Westchester County Supreme Court ultimately granted the defendant's motion, thereby dismissing the plaintiff's claim, stating the following: "Defendant has establish prima facie entitlement to summary judgment by establishing that it lacked either actual or constructive notice of the condition that allegedly caused plaintiff's fall.  Plaintiff's opposition to the motion fails to raise a triable issue of fact as to whether the ice condition was created by defendant or whether defendant had notice of the condition for a sufficient length of time prior to the accident to permit the defendant to discover and remedy it...Plaintiff's attempt to raise an issue of fact by submitting the affidavit of [a Meteorologist] is unavailing because [his] opinion that the ice chunks upon which plaintiff fell were artificially made is pure speculation.  [He] did not observe the ice chucks which caused the fall or even the area where plaintiff fell.  Rather, he bases his opinion solely on the weather conditions in New York City at the time of plaintiff's accident.  Accordingly, defendant's motion for summary judgment dismissing the complaint is granted." 

Salvatore R. Marino, Esq.

January 19, 2014

Late Request for Jury Trial Denied

In Phillip v. Lancman (7556/11, NYLJ 1202635385724, at 1, Sup., Kings, decided December 19, 2013), the facts are as follows: the plaintiffs served a summons and complaint on April 1, 2011; on June 3, 2011, the defendant served an answer with affirmative defenses; on November 19, 2012, the plaintiff served and filed a note of issue, requesting a trial without a jury; and on JUne 28, 2013, the defendant made until June 28 a motion requesting permission to request a jury (as the defendant failed to timely do so pursuant to the CPLR, which requires one to request a jury no later than 15 days after the filing of the note of issue).

In opposing the defendant's motion, the plaintiffs note, among other things, that the statutory deadline for filing a jury trial demand expired more than seven months ago, and that the plaintiffs would be unduly prejudiced if the defendant was permitted to demand a jury trial because the infant plaintiff and plaintiff's counsel have been preparing for a trial based upon the assumption that it would be a non-jury trial.  In reply, the defendant reiterates and argues, among other things, that the failure to timely file a jury demand was due to the inadvertence of counsel, and that there would be no prejudice to plaintiffs because there have been settlement discussions and a scheduled mediation.

The Kings County Supreme Court denied the defendant's motion, citing CPLR 4102 (a), which states that "[a]ny party served with a note of issue not containing such a demand may demand a trial by jury by serving upon each party a demand for a trial by jury and filing such demand in the office where the note of issue was filed within fifteen days after service of the note of issue."  The Court also held the following: "[h]ere, the extent of defendant's delay in seeking the requested relief - over 7 months - weighs heavily against a finding of excusable conduct...[f]urthermore, the Second Department has held that a defendant's explanation that he or she failed to realize that the note of issue was filed with a request for a non-jury trial (as defendant herein claims) is an inadequate excuse...[c]onsequently, under the circumstances presented herein, defendant has failed to make an adequate factual showing that her failure to demand a jury trial was inadvertent.  Accordingly, the motion is denied." 

Salvatore R. Marino, Esq.

January 13, 2014

New Trial on Damages Ordered

In Killon v. Parrotta (51539, NYLJ 1202635187065, at 1, Sup., Warren, decided December 23, 2013), an action for battery was commenced after the plaintiff was allegedly attacked by the defendant with a baseball bat, resulting in serious injuries to the plaintiff's face that required substantial medical and surgical treatment.  A trial was held in this case, and the jury awarded damages to the plaintiff in the amount of $200,000.00 for past medical expenses, no damages for past pain and suffering, and $25,000.00 for future pain and suffering.  After the verdict, the plaintiff then moved pursuant to CPLR 4404(a) for an order setting aside the verdict of the jury as to the $25,000.00 award for future pain and suffering and their award of no damages for past pain and suffering. The plaintiff argued that the verdict, in those two instances, was contrary to the weight of the evidence and inadequate as a matter of law, materially deviating from what is considered reasonable compensation for the pain and suffering experienced and to be experienced in the future (the plaintiff does not contest the jury's verdict in the amount of $200,000.00 for medical expenses though).

The Court noted the following with respect to the applicable law: "[t]he standard on a motion to set aside the jury's verdict as against the weight of the evidence is whether the evidence so preponderated in favor of the movant that the verdict could not have been reached on any fair interpretation of the evidence...[f]urthermore, the amount of damages to be awarded for pain and suffering is primarily a question of fact and considerable deference should be accorded to the interpretation of the evidence by the jury...[a]s frequently observed, awards for pain and suffering cannot be precisely quantified and their reasonableness is measured by reviewing comparable cases, and analyzing such factors as 'the nature, extent and permanency of the injuries, the extent of past, present and future pain and the long-term effects of the injury'...[t]he challenge on a motion such as this is the inherently subjective nature of non-economic awards which will not produce mathematically precise results and the shortage of 'comparable cases' entombed in memorandum opinions with limited facts - a task which 'is easier said than done.'"

The Court ultimately held that the jury's award of no damages for past pain and suffering could not have been reached on any fair interpretation of the evidence, and that the jury's future pain and suffering award without setting forth the period of years of which such amounts were intended to provide compensation was problematic.  As a result, the Court ordered a new trial on the issue of damages for the plaintiff's past and future pain and suffering.

Salvatore R. Marino, Esq.

January 2, 2014

Family Member Not "Licensee"

A recent Nassau County District Court decision highlights the definition of a "licensee" with respect to summary eviction proceedings against family members.  In Kakwani v. Kakwani (2013 NY Slip Op 23200), the petitioner (the owner of a premises) brought a summary eviction proceeding against a family member who was a tenant of the premises pursuant to RPAPL Section 713(7).  The petitioner alleged that the tenant was a "licensee" whose license to reside at the premises (which was the respondent's marital residence) has been revoked, thereby allowing service of a 10 day notice to quit before an eviction proceeding was brought (as opposed to a 30 day notice that's required for other types of summary eviction proceedings).  The tenant's defense was that she is a "family member" who cannot be evicted in a summary proceeding.

Although the statutory law does not indicate whether a "licensee" includes family members, the Court noted that case law does.  According to the Court, case law holds that a family member is not a "licensee" for purposes of a RPAPL Section 713(7) action, and that an ejectment action commenced in the Supreme Court (as opposed to a summary eviction proceeding) is the proper avenue in such situations involving family members (it should be noted that an ejectment action is generally more time consuming than a summary eviction proceeding).

The Court stated the following: "These cases seemingly show that occupancy due to familial relationship does not constitute a licensee agreement as intended by RPAPL 713 (7).  There are various forms of family relationships ranging from spousal, parent and child, and even nonmarried couples. They are unique and thus should not be terminated through summary proceedings, which tend to be speedy.  Instead, more appropriate avenues must be taken such as ejectment actions or proceedings in Family Court....All this court holds is that a family member may not be summarily evicted from the family home with a 10-day notice to quit.  A more deliberate process is required and is readily available."

Salvatore R. Marino, Esq.

June 30, 2013

Supplemental Vs. Amended Bill of Particulars

A recent Appellate Division, Second Department decision highlights the difference between an amended and supplemental bill of particulars in a personal injury case.  (A bill of particulars is a written statement that amplifies the allegations or defenses in a lawsuit.)  In Erickson v. Cross Ready Mix, Inc., et al. (2^nd Dept. 2012, Index No. 11947/05), the plaintiff allegedly was injured on a construction site when he was struck by a swinging chute on the back of a cement truck.  In his initial response to a demand for a bill of particulars, the plaintiff claimed that his medical treatment would include “lumbar spinal fusion surgery.”  After the surgery was performed, the plaintiff made a motion to amend his bill of particulars to include, among other things, further injuries which he allegedly sustained during the surgery.

The Court dismissed plaintiff’s motion as it was unnecessary, holding the following: “pursuant to CPLR 3043(b), a plaintiff in a personal injury action may serve a supplemental bill of particulars containing ‘continuing special damages and disabilities,’ without leave of the court, if it alleges ‘no new cause of action . . . or new injury.’  Where, as here, the plaintiff seeks to allege continuing consequences of the injuries suffered and described in previous bills of particulars, rather than new and unrelated injuries, the contested bill of particulars is a supplemental bill of particulars rather than an amended bill of particulars.  Since the document entitled 'Amended Response To Defendant’s Demand For A Verified Bill Of Particulars,' which we deem to be a supplemental bill of particulars, was served more than 30 days prior to trial, leave of court was not required (see CPLR 3043[b]).  Accordingly, the plaintiff’s motion must be denied as unnecessary."

Salvatore R. Marino, Esq.

September 14, 2012

Scooter Not "Dangerous Instrument"

In Zarilla v. Pennachio (2d Dept., Index No. 100107/10, decided on or around December 27, 2011), the plaintiff lost her negligence case against the mother of a child that injured her. 

The plaintiff was allegedly injured when she was struck by a battery-powered scooter operated by a child.  At the time of the incident, the child was under the care of the plaintiff and her husband.  The defendant, who is the child’s mother, was not present.  The plaintiff and her husband, suing derivatively, commenced a negligence against the defendant alleging, among other things, that the defendant negligently entrusted the child with a dangerous instrument.  The defendant moved for summary judgment dismissing the complaint, but the lower court denied this motion.

On appeal, the Appellate Division reversed the lower court’s decision.  The Court stated the following: “a parent owes a duty to protect third parties from harm that is clearly foreseeable from his or her child’s improvident use or operation of a dangerous instrument, where such use is found to be subject to the parent’s control…[however,] 'items that are commonly used by children, of suitable age in a manner consistent with their intended use, may not, as a matter of law, be classified as dangerous instruments' ([citing] Rios v Smith, 95 NY2d at 653).  Here, the defendant made a prima facie showing of entitlement to judgment as a matter of law…[the child] was of a suitable age to use the subject scooter, a toy manufactured for children between the ages of three to six.  Further, [the child’s] operation of the scooter was consistent with its intended use.  In opposition, the plaintiffs failed to raise a triable issue of fact.”

Salvatore R. Marino, Esq.     

January 7, 2012

Affirmation Lacking in Products Liability Defense

In Chow v. Reckitt & Colman, Inc., 17 N.Y.3d 29 (2011), a recent decision from the highest state court in New York, the New York Court of Appeals, a defense attorney's affirmation in support of its defense was held to be insufficient to satisfy its summary judgment burden.  In the case, the plaintiff sued entities responsible for the manufacture, distribution and package design of a product sold under the brand name “Lewis Red Devil Lye” (“RDL”).  RDL, commonly referred to as "lye," is 100% sodium hydroxide and is commonly used to clear clogged drains.  The plaintiff was injured when he was using RDL to clear a clogged floor drain of the Manhattan restaurant where he worked.  The defendants argued that the plaintiff mishandled the RDL product.

The Court denied the defendants motion, stating the following: “in support of their motion here…defendants state only, in effect, that lye is what it is, that everyone knows lye is dangerous…while it is true that lye is dangerous and that [RDL] is lye, a mere statement in an attorney’s affirmation in support of a motion for summary judgment to that effect does not result in a shift of the burden to plaintiff to then explain how RDL could be made safer…defendants were required to demonstrate that RDL was reasonably safe for its intended us, but they offered no such evidence.”

Salvatore R. Marino, Esq.

May 16, 2011

No Prior Written Notice Causes Reversal

In Vardoulias v. County of Nassau, 923 N.Y.S.2d 577 (2d Dept. 2011), the plaintiff sued the County of Nassau after tripping, falling and sustaining injury on a Nassau County sidewalk.  The plaintiff claimed that a dangerously defective condition on the sidewalk caused the accident and injury.  The plaintiff argued that the County received prior written notice of the defect because the Nassau County Recreation and Parks Department received prior written notice. 

According to the Nassau County Administrative Code, Section 12-4.0[e]: “no civil action shall be maintained against the County for damages or injuries to person or property sustained by reason of any sidewalk ... unless written notice of such defective, unsafe, dangerous or obstructed condition of such sidewalk [is given] ... [and] such written notice shall specify the particular place and nature of such and that ... notice required to be given as herein provided shall be made in writing by certified or registered mail directed to the Office of the County Attorney.” 

At the completion of the plaintiff’s case the defense moved for judgment as of matter of law in its favor because the County never received notice in accordance with Section 12-4.0(e).  The trial court judge denied the motion, but on appeal the motion was granted by the Appellate Division.  The Appellate Division agreed with the County in that prior written notice to the Parks and Recreation Department was inadequate because it was not in accordance with the Nassau County Administrative Code requirements, which specifically states that the Office of the County Attorney must be given notice.  According to the Court, prior written notice provisions are always strictly construed (see Gorman v. Town of Huntington, 2009 NY Slip Op 02648), and absent prior written notice of a dangerous or defective condition where a written notice statute is in effect a municipality cannot be held liable for injuries (see Amabile v. City of Buffalo, 93 N.Y.2d 471 [1999]). 

Salvatore R. Marino, Esq.

May 14, 2011

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