Monday, July 31, 2017

Doctor Not Defamed by Incorrect Report

            In Rosenthal v. MDX (16519/14, NYLJ 1202794299180, App. Div., 2nd, decided July 26, 2017), a New York doctor brought a lawsuit against an operator of a website after the website repeatedly misidentified him as being deceased.  In the lawsuit, commenced in New York Supreme Court, Kings County, the doctor sought damages for defamation, negligence, and prima facie tort - but the complaint did not allege any special damages.  As a result, the website operator moved pursuant to CPLR 3211(a)(7) to dismiss the complaint for failure to state a cause of action.  The Supreme Court granted the motion, and the doctor appealed to the New York Appellate Division, Second Department.

            The Appellate Division affirmed the trial court's decision, thereby dismissing the doctor's lawsuit.  With respect to the defamation claim, the Court held the following: "A false written statement is libelous per se, and thus actionable without allegation or proof of special damage, if it 'tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of rightthinking persons, and to deprive him of their friendly intercourse in society'...A false written statement is also libelous per se if it 'tends to disparage a person in the way of his office, profession or trade'...Contrary to the plaintiff's contention, the defendant's alleged act of misidentifying him as deceased does not fall within these definitions...."

Salvatore R. Marino, Esq.

Saturday, April 22, 2017

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 Gonz├ílez 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.

Monday, January 23, 2017

Court Strikes Errata Sheet Corrections

            In Murillo v. The City of N.Y. (155467/2014, NYLJ 1202776765237, decided December 16, 2016), a personal injury case, the New York County Supreme Court held that a plaintiff's corrections made on errata sheets for his deposition transcript should be stricken as they were improper.  Particularly, the defendant made a motion requesting the Court to strike the plaintiff's errata sheet corrections, contending the following: that plaintiff failed to provide any explanations for the changes as required by CPLR Rule 3116(a); that the errata sheet corrections were not accompanied by an affidavit from a Spanish translator; and that the changes are so substantive in nature that they materially alter his testimony.  In opposition to the motion, plaintiff submitted two sets of errata sheets, one in Spanish and one in English, each signed and acknowledged by plaintiff; plaintiff's submission was also accompanied by an affidavit from a person who certified that he or she was fluent in Spanish and English, and that the errata sheets were translated from Spanish to English.

            The Court granted the defendant's motion, and held, among other things, the following: "It is undisputed that plaintiff's errata sheets, as initially served, are improper under the statute as none of the changes are accompanied by an explanation or a reason for the change...As for the second submission, the Court notes that it is technically untimely under CPLR Rule 3116(a), which states that '[n]o changes to the transcript may be made by the witness more than sixty days after the submission to the witness for examination.'  Here, the deadline for plaintiff's changes was April 7, 2016, yet the explanations to plaintiff's EBT changes and affidavit of translation were e-filed with his first set of opposition papers on April 12, 2016.  Although the Court may extend time under CPLR Section 2004, such relief is appropriate only upon a showing of good cause...Even though the second submission is untimely by a mere few days, plaintiff failed to give any justification for the delay in providing reasons or explanations for the EBT changes. Therefore, the motions could be granted on this basis alone."

Salvatore R. Marino, Esq.

Tuesday, October 25, 2016

Summary Judgment Based on Res Ipsa Granted

            In Bonacci v. Brewster Service Station, Inc. (50474/2015, NYLJ 1202770540779, decided October 5, 2016), a Westchester County Supreme Court personal injury case, a plaintiff's motion for summary judgment as to liability against a defendant was granted based on the doctrine of res ipsa loquitar.  Particularly, the case arose after the plaintiff was injured by his motor vehicle after it rolled off a lift at a mechanic's garage (after he brought it in for inspection, and was waiting for the inspection to be completed).  After the completion of the discovery process, the plaintiff thereafter a motion for summary judgment, contending, among other things, that the res ipsa loquitar doctrine applied as a result of the following: (1) the incident could not have ordinarily occurred in the absence of defendant's negligence; (2) the incident was caused by an agency or instrumentality within the exclusive control of the defendant; and (3) the incident was not due to any voluntary action or contribution on the part of the plaintiff.  In opposition to the plaintiff's motion, the defendant contended, among other things, that the plaintiff should not have been standing near the lift because there was signage advising customers that they were not permitted to enter the area.

            The Court granted the plaintiff's motion, and held the following: "The court finds that this is one of those rare cases recognized by [Morejon v. Rais Construction Company, 7 NY3d 203 (2006)] when res ipsa loquitur can be applied in order to determine whether plaintiff is entitled to summary judgment as to liability.  The court's research reveals that the issue arises primarily in medical malpractice cases...and that this analysis requires a careful case by case examination of the facts.  However, as recognized by Morejon, supra, at footnote 8, there have been non-medical malpractice cases where the doctrine has been applied to justify the granting of the motion for partial summary judgment.  Harmon v. United States Shoe Corp., 262 AD2d 1010 [4th Dept 1999] (summary judgment is properly granted in a res ipsa loquitur case where defendant has totally failed to rebut the inescapable inference of negligence); cited by Mejia v. New York City Transit Authority, 291 AD2d 225 [1st Dept 2002] (res ipsa loquitur was applicable on summary judgment motion where pedestrian was struck by a piece of ceiling while waiting for a train on a subway platform), cited by Flossos v. Waterside Redevelopment Co., L.P., 108 AD3d 647 [2d Dept 2013] (genuine issue of material fact existed as to whether doctrine of res ipsa loquitur applied, precluding summary judgment for owner and managers of an apartment building on painter's negligence claim, seeking to recover damages for injuries he sustained when a piece of ceiling he was painting fell down on him, propelling him and ladder on which he was standing to the floor).  Here, the court finds that this is a case where the inference of res ipsa loquitur should apply as the evidence of defendant's negligence is inescapable."

Salvatore R. Marino, Esq.

Thursday, July 28, 2016

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.

Sunday, June 5, 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.

Friday, April 1, 2016

Procedurally Defective Motion is Denied

            In Dolan v. Frigidaire and Sears, Roebuck & Co. (602744/14, NYLJ 1202753683906, decided March 22, 2016), a Nassau County Supreme Court personal injury case, the Court denied the defendants' motion for summary judgment as, among other reasons, it was procedurally defective.  Particularly, the case involved claims of negligence and breach of warranty to recover for personal injuries sustained by the plaintiff while using a stove manufactured by the defendant Frigidaire, and distributed by the defendant Sears, Roebuck & Company.  After conclusion of the discovery process, the defendants moved pursuant to CPLR 3212 to dismiss the plaintiff's action (contending that there were no triable issues of fact for trial).

            The Court denied the defendants' motion, noting that the defendants failed to attach to their motion a certificate of conformity with their expert affidavits, as well as include the entire pleadings, holding as follows: "It is well settled that every motion for summary judgment shall be supported by an affidavit and a copy of all the pleadings and other available proof such as depositions and written admissions...[t]he pleadings are a requisite part of the record of a CPLR §3212 motion and omission of same mandates the denial of summary judgment relief...[t]he failure to support a motion for summary judgment with a copy of the pleadings requires denial of the motion, regardless of the merits of the motion."

Salvatore R. Marino, Esq.