Sunday, December 2, 2018

Plaintiff's Cross-Motion for Costs Granted Based on Defendants' Frivolous Post-Trial Motion

            In Cram v. Keller, 2018 NY Slip Op 08007 (decided on November 21, 2018), the Appellate Division, Second Department granted a plaintiff's cross-motion for costs based on a defendants' frivolous post-trial motion.  The case arose when the plaintiff, who was visiting her son at a house he rented from the defendants, was caused to fall and sustain injuries after she fell down exterior stairs of the house.  As a result of the incident, plaintiff commenced an action against the defendants, with claims including that the defendants were at fault for failing to install a handrail on the righthand portion of the stairs (the area where the plaintiff ultimately fell to the ground).  At the trial for this matter, the jury determined that the defendants were sixty (60) percent at fault in the happening of the incident.  The defendants thereafter moved pursuant to CPLR 4404(a) to set aside the jury verdict and for judgment as a matter of law dismissing the complaint, contending that the plaintiff failed to establish that the defendants owned the subject house, and that the allegedly dangerous condition was open and obvious.  The plaintiff thereafter cross-moved for costs pursuant to 22 NYCRR 130-1.1 on the ground that the defendants' motion was frivolous.  The Supreme Court granted the defendants' motion, denied the plaintiff's motion, and the plaintiff thereafter appealed the decision.

            With respect to the defendants' motion, the Appellate Division reversed the lower court's decision, holding, among other things, the following: "The plaintiff read into the record excepts from the deposition of the [defendants] where [defendants] admitted that, since purchasing the property, he put up a wrought iron railing and that the defendants had rented the property to a tenant.  The admission by [defendants] that he and his wife had purchased the property, made an improvement on it, and had rented it out is legally sufficient evidence of ownership.  Regarding the defendants' contention that the condition was open and obvious, a rational jury could have concluded that the defendants were negligent in maintaining the property, and that their negligence was the proximate cause of the plaintiff's injuries...'Proof that a dangerous condition is open and obvious does not preclude a finding of liability against an owner for failure to maintain property in a safe condition' [citing Russo v. Home Goods, Inc., 119 AD3d 924]...

            With respect to the plaintiff's cross-motion for sanctions based on defendants' frivolous conduct in making their motion, the Appellate Division reversed the lower court's decision pertaining to this matter as well, holding, among other things, the following: "Here, the Supreme Court should have granted the plaintiff's cross motion for an award of costs in the form of reimbursement of reasonable attorneys' fees pursuant to 22 NYCRR 130-1.1 based on the frivolous conduct of the defendants [in making their motion]...Under the circumstances of this case, the defendants' post-trial motion to set aside the verdict, to the extent predicated on the issue of ownership, was frivolous, given the evidence presented by the plaintiff at trial, the failure of the defendants to offer any contrary evidence at trial, the known fact that the defendants owed the property, the lack of good faith underlying the denial of ownership appearing in the defendants' answer, and the lack of a good faith basis for the exclusion of the additional deposition testimony [by the trial court] that would have eliminated any doubt on the issue of ownership."

Salvatore R. Marino, Esq.

Saturday, November 24, 2018

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 trial 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.

"Unusual and Violent" Stop Not Established in Bus Accident Case

            In Fuentes v. Nassau Inter-County Express, 2018 NY Slip Op 07411 (decided on November 7, 2018), a Nassau County Supreme Court Judge granted a defendants' bus owner and operator's motion for summary judgement (seeking to dismiss the plaintiff's case), finding that no triable issues of fact exist regarding the liability aspect of the case.  The case arose when the plaintiff was injured after boarding a bus owned and operated by defendants, and when the bus suddenly stopped, causing the plaintiff to lose balance, fall, and sustain injuries.  After the defendants' motion was granted, the plaintiff thereafter appealed the decision to the Appellate Division, Second Department.

            The Appellate Division affirmed the trial court's decision, holding, among other things, the following: "'In seeking summary judgment dismissing the complaint, however, common carriers have the burden of establishing, prima facia, that the stop was not unusual and violent' [citing Alandette v. New York City Tr. Auth., 127 AD3d 896].  Here, the defendants established their prima facia entitlement to judgment as a matter of law by submitting the plaintiff's deposition testimony demonstrating that the stop of the bus was not unusual and violent...In opposition, the plaintiff failed to raise a triable issue of fact.  Accordingly, we agree with the Supreme Court's granting of the defendants' motion for summary judgment dismissing the complaint."

Salvatore R. Marino, Esq.

Dog Bite Lawsuit Dismissed

            In Hai v. Psoras, 2018 Slip Op 07704 (decided on November 14, 2018), the Appellate Division, Second Department affirmed a Queens County Supreme Court Judge's decision to dismiss a plaintiff's personal injury case that arose from a dog bite.  Particularly, the case arose on June 3, 2008, when the plaintiff, 11 years old, was allegedly bitten by a dog in the care of one of the defendants, who was walking the dog (as when the plaintiff walked by the dog, the dog jumped up an bit the plaintiff in the arm).  The plaintiff thereafter commenced a lawsuit against defendants, including the owner of the dog, to recover for personal injuries, and after the discovery process concluded, the defendant moved for summary judgment (seeking to dismiss plaintiff's case) contending, among other things, that the defendants had no notice of the dog's alleged vicious propensities.  The trial court granted the defendants' motion, and the plaintiff thereafter appealed.

            The Appellate Division, Second Department affirmed the lower court's decision, holding, among other things, the following: "The deposition testimony of [defendants], and the plaintiffs demonstrated that, in the time that the dog was being cared for by [defendants], it never bit anyone, nor did not growl, snarl, bark, lunge, snap, or bare its teeth.  In opposition, the plaintiffs failed to raise a triable issue of fact as to whether [defendants] knew or should have known of the dog's alleged vicious propensities...  The fact that the dog had previously bitten and locked its jaws on a stick was insufficient to raise a triable issue of fact as to whether it had vicious propensities...[defendants] testimony that he told [plaintiff] to get away from the dog just before the attack does not indicate that he believed the dog to be dangerous...Further, the nature and severity of the attach does not demonstrate that [defendants] knew or should have known of the dog's alleged vicious propensities..."

Salvatore R. Marino, Esq.

Saturday, July 21, 2018

Defect in Floor Not Inherent in Sport

            In Leitner v. City of New York (New York County Supreme Court, Index No. 153361/13, decided on or around June 28, 2018), the defendant City of New York's motion for summary judgment was denied as the Court held, among other things, that an "assumption of risk" defense does apply in a premises liability case when the subject defect is not inherent in the sport being watched by a plaintiff.  Particularly, the case arose after the plaintiff, while on a City of New York basketball court and watching others play basketball, was caused to fall and sustain injuries as a result of a crack in the basketball court floor.  The defendant eventually moved for summary judgment, seeking to dismiss the case, with arguments including that the plaintiff voluntarily "assumed the risk" as he was a spectator at a sporting event.

            The Court denied the defendant's motion, holding, among other things, the following: "...[T]his Court finds that cracks in a basketball court are not inherent in the sport of basketball.  Nor do cracks 'arise out of the nature of the sport generally and flow from such participation' of playing basketball...While the doctrine may apply in situations where plaintiff's injury was caused by an irregular surface, such application is proper to 'irregular surfaces or features in playing spaces that existed as they were designed'...Basketball court are not designed with cracks in them...it cannot be said that the basketball court was designed with cracks in it.  Indeed, tripping hazards of this nature indicate that the surface was not maintained; this sort of state of disrepair should not exculpate a landowner from liability."

Salvatore R. Marino, Esq.

Friday, January 5, 2018

Golf Cart is "Motor Vehicle" Under NY VTL

            In Guadagno v. Glen Oaks Club (Index No. 704798/15), Queens County Supreme Court Justice Livote denied defendant's motion for summary judgment against a plaintiff injured by a golf cart.  Particularly, at the time of the incident, the plaintiff was a passenger in a golf cart operated by an employee of defendant, and it is undisputed that the driver was operating the vehicle at a high speed, thereby causing the vehicle to flip over and cause plaintiff injuries.  At some time after plaintiff commenced a lawsuit, the defendants moved for summary judgment (seeking to dismiss the case), arguing, among other things, that the golf cart was not a "motor vehicle" within the meaning of the New York Vehicle and Traffic Law.

            The trial court denied defendant's motion, holding, among other things, the following: "Vehicle and Traffic Law Section 125 defines a motor vehicle, in pertinent part, as '[e]very vehicle operated or driven upon a public highway which is propelled by any power other than muscular power'...the sole fact that [the driver] was operating defendant's golf cart on the Glen Oaks Club premises indicates the golf cart may have been operated in a public way or place.  Given this undisputed fact, the absence of evidence that the golf cart was not on a 'public highway,' and the golf cart's undisputed qualification as a motor vehicle in all other respects, defendant has not met its burden to establish that the golf cart was not a motor vehicle under VTL Sections 125 and 388."


Salvatore R. Marino, Esq.

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.