No Police "Special Duty" Created

In Valdez v. City of New York, 2011 NY Slip Op 07252, the facts are as follows: in 1996, the plaintiff’s ex-boyfriend called her and threatened to kill her; thereafter, she called the police and informed them of this threat, and also informed them that for her safety she left her apartment with her children and were heading to a family member’s house; in response, a police officer told her to return to her apartment and that the ex-boyfriend would be arrested immediately (though he never ended up being arrested at that time); she then went back to her apartment, and the night went by without incident; the following night, while leaving her apartment to take out garbage, the ex-boyfriend, emerged and shot her several times, resulting in serious personal injuries.

The Plaintiff brought a negligence action against the City of New York, alleging the following: that the City had undertaken a “special relationship” with her that created a duty of care; that the City was negligent in failing to arrest the ex-boyfriend prior to the attack; and that the City’s negligence was a proximate cause of the shooting. 

The matter went to trial, where a jury awarded $9.93 million dollars against the City, finding the ex-boyfriend and the City to be both 50% at fault in causing the plaintiff’s injuries.  However, on appeal, the Appellate Division reversed the verdict, and now the Court of Appeals has affirmed the reversal.  The Court held the following: “[the phone call between the plaintiff and the police officer] did not create a special relationship.  It was not reasonable for her to conclude, based on nothing more than the officer’s statement that the police were going to arrest [the ex-boyfriend] immediately, that she could relax her vigilance indefinitely, a belief that apparently impelled her to exit her apartment some 28 hours later without further contact with the police.”  Also, the Court noted, among other things, that she did not make a follow up call to the police after the threat to confirm that he was arrested, which was her common practice in the past whenever her and her ex-boyfriend had disputes.

Salvatore R. Marino, Esq.

County's Summary Judgment Motion Untimely

In Deberry-Hall v. County of Nassau, 2011 NY Slip Op 06993 (2d Dept.), the plaintiff alleged that she sustained personal injuries on September 9, 2005 when she tripped and fell over a defective portion of the southside walkway to the West Annex of the Nassau County Courthouse in Mineola.  The walkway was situated on property owned by the defendant, the County of Nassau.  The County’s records showed that, from September 7, 2005 through September 9, 2005 its employees were present and in the process of repairing the walkways to the Nassau County Courthouse and its West and East Annexes.

The plaintiff filed her note of issue on June 30, 2009, and pursuant to a certification order, motions for summary judgment were due no later than 60 days from the filing of the note of issue.  The County, however, did not move for summary judgment until September 2, 2009, which was 64 days after the filing of the note of issue.  

Due to the County’s noncompliance with the certification order, and because the County did not demonstrate good cause for its failure to timely file its motion, its motion was denied by the Supreme Court.  The Appellate Division, Second Department affirmed. 

Salvatore R. Marino, Esq.

Res Judicata Doctrine Not Applicable

In Farren v. Lisogorsky, 2011 NY Slip Op 06366 (2d Dept.), the plaintiff sued a pharmacist for incorrectly filling a prescription for the plaintiff and, after ingesting the drugs, the plaintiff incurred personal injuries.  The pharmacist sought to dismiss the plaintiff’s case pursuant to CPLR 3211 (a)(5) due to the applicability of the “res judicata” doctrine (also known as “claim preclusion”).  

The pharmacist argued that since the plaintiff commenced and settled a lawsuit against the pharmacist’s employer already, then the plaintiff is precluded from suing the pharmacist individually, since the pharmacist was in privity with the pharmacy and the same questions in the previous lawsuit were being litigating again.  (“Privity” means the connection or relationship between two parties, each having a legally recognized interest in the same subject matter.)

The Supreme Court granted the pharmacist’s motion, but on appeal the Appellate Division, Second Department disagreed and reversed, holding for the plaintiff.  The Court held the following: “the doctrine of res judicata is inapplicable to the instant action, as the plaintiff never asserted any claim against the defendant in his capacity as an employee of [the pharmacy], and seek here to hold him liable solely in his professional capacity as a pharmacist.  The fact that the plaintiff sued one tortfeasor, [the pharmacy], does not automatically preclude him from suing another tortfeasor, such as the defendant herein, in a subsequent action.”  The Court also noted that there was insufficient evidence to conclude that the pharmacist was in privity with the pharmacy.

Salvatore R. Marino, Esq.

Out of Possession Landlord

            In Sciammarella v. Manorville Postal Associates, 2011 NY Slip Op 06122 (2d Dept.), the plaintiff sustained injuries when she allegedly fell after stepping into a hole in the parking lot of a premises leased to the United States Postal Service by the defendant landlord.  The landlord made a motion for summary judgment seeking to dismiss the complaint.  The landlord’s basis of the motion was that it owned the property, but it was totally out of possession of it, and it was not contractually responsible for the plaintiff’s injuries. 

The Court agreed with the defendant and granted the motion, stating the following: “an out-of-possession landlord may not be liable for injuries occurring on its premises unless it is contractually obligated to perform maintenance and repairs or it has retained control over the premises.”

Salvatore R. Marino, Esq.

Motion to Set Aside Verdict Denied

In Kim v. New York City Transit, 2011 NY Slip Op 06123 (2d Dept.), the plaintiff, while walking across Roosevelt Avenue in Queens, was hit by a bus owned by the defendant New York City Transit Authority.  The plaintiff sued the defendant for negligence, alleging that the defendant failed to yield the right of way to a pedestrian lawfully in a crosswalk at the time a steady green traffic signal was exhibited, and it failed to see what was there to be seen.  The case made it to trial, where a jury found the defendant to not be negligent.  The plaintiff then made a motion pursuant to CPLR 4404(a) to set aside the jury verdict and for judgment in their favor on the issue of liability or to set aside the verdict as contrary to the weight of the evidence and for a new trial.  The Supreme Court granted the motion, but on appeal the Appellate Division denied it. 

The motion was denied because the Court felt that there was enough evidence to support the jury’s decision.  Particularly, the Court noted the following: the plaintiff  testified that she saw the bus in motion before she entered the roadway at a fast pace in order to meet someone nearby; a witness testified that the bus was in the middle of its turn when it struck her; and the bus driver testified that he did not observe any pedestrians upon looking in all directions before proceeding into the intersection, and that the plaintiff was in the street near the rear wheels of his bus immediately after the impact.

The Court stated the following: “a jury verdict should not be set aside as contrary to the weight of the evidence unless ‘the evidence so preponderates in favor of the moving party that the jury could not have reached the verdict by any fair interpretation of the evidence’…it is within the province of the jury to determine issues of credibility, and great deference is accorded to the jury given its opportunity to see and hear the witnesses.”

Salvatore R. Marino, Esq.

Auto Accident "Serious Injury" Law

            If one is injured in a motor vehicle accident in New York, then he or she might be entitled to No-Fault insurance benefits for economic losses (generally up to $50,000), regardless of who was at fault, and if one is a driver, passenger or pedestrian.  A lawsuit for negligence can also be brought, but only if economic losses exceed $50,000, or if a “serious injury” has been suffered.  According to Article 51 of the New York State Insurance Law, the following constitutes a “serious injury”:

(1)   Death;

(2)   Dismemberment;

(3)   Significant disfigurement;

(4)   Fracture;

(5)   Loss of a fetus;

(6)   Permanent loss of use of a body organ, member, function or system;

(7)   Permanent consequential limitation of use of a body organ or member;

(8)   Significant limitation of use of a body function or system; or

(9)   Medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.

Salvatore R. Marino, Esq.

Landlord's Damages Limited in Breach Case

In Weaver Street Properties, LLC v. Cold Stone Creamery, Inc., 2011 NY Slip Op 05803 (2d Dept.), a landlord and a tenant entered into a lease whereby the tenant rented store space in a shopping center owned by the landlord.  The tenant then entered into a sublease with a company owned by two parties, which ran an ice cream store as a franchise of the tenant.  The franchisee defaulted in the payment of rent, and thereafter closed the store about 18 months into the lease term.  The landlord then sued the tenant to recover damages for breach of contract, alleging, among other things, that it was entitled to damages in the amount of the rent due for the remainder of the lease term (which exceeded a 12 month period).

The Appellate Division, Second Department, disagreed with the landlord.  The lease stated that “notwithstanding anything contained herein or elsewhere in the lease to the contrary, landlord and tenant agree that tenant’s liability upon any breach of default hereunder for non-payment of rent shall not exceed an aggregate amount equal to twelve (12) months base rent or the remainder of the rent due pursuant to this lease, whichever is less.”  Therefore, in light of this language in the lease, the Court limited the landlord's damages (for a period not to exceed 12 months), stating the following: “where, as here, a real property transaction contract was negotiated at arm’s length between sophisticated, counseled parties, special import must be given to the rule that a written agreement that is complete, clear, and unambiguous on its face must be enforced according to the plain meaning of its terms.”

Salvatore R. Marino, Esq.

Lender Denied Foreclosure

A recent court decision highlights the federal Home Affordable Modification Program (also known as “HAMP”).  HAMP was established to assist eligible home owners with loan modifications on their home mortgage debt, and it is part of the Making Home Affordable Program which was created by the Financial Stability Act of 2009.

In Aames Funding Corporation v. Houston, 2011 NY Slip Op 5642 (2d Dept.), a judgment of foreclosure sale was entered against the homeowner, and a year later the Supreme Court granted the lender’s motion to extend a notice of pendency for an additional three years. Several years after the notice of pendency was granted, the homeowner was notified by America’s Servicing Company (also known as ASC, which is the homeowner’s loan servicer) that the homeowner might be eligible for federal HAMP assistance.  As a result, the homeowner submitted an application to ACS.  When the application when pending, however, the lender published a notice of foreclosure sale.  

In response to the notice, the homeowner moved for an emergency stay (postponement) of the foreclosure sale pending a determination on his HAMP application.  The Appellate Division, Second Department held for the homeowner and ordered the stay, citing Version 2.0 of the “Making Home Affordable Program Handbook,” which states the following: “a servicer may not refer any loan to foreclosure or conduct a scheduled foreclosure sale unless and until the borrower is evaluated for HAMP and is determined to be eligible for the program.”

Salvatore R. Marino, Esq.

"Open and Obvious" Defense Fails

            In Demuth v. Best Buy Stores, L.P., 2011 NY Slip Op 5014 (2d Dept.), the plaintiff allegedly was injured when she tripped and fell over a cluster of concrete protruding from the ground in an area adjacent to a Best Buy store.  Best Buy sought to dismiss her case, alleging that the cause of the plaintiff’s accident was “open and obvious” and “not inherently dangerous.”

The Court disagreed with Best Buy and held for the plaintiff in this case, stating the following: “while a landowner has a duty to maintain its premises in a reasonably safe manner, it does not have a duty to protect against an open and obvious condition which, as a matter of law, is not inherently dangerous.  [In this case, however, due to insufficient evidence submitted by Best Buy], Best Buy failed to demonstrate that the cluster of concrete on which the plaintiff tripped was a naturally occurring topographic condition or some other condition that a landowner could not reasonably be expected to remedy, and thus failed to show that it was not inherently dangerous.”

Salvatore R. Marino, Esq.

Assumption of Risk Doctrine

             A recent Appellate Division, Second Department court decision highlights the "assumption of risk" doctrine as it applies in negligence cases.  In Reidy v. Raman, 2011 NY Slip Op 5251 (2d Dept.), the plaintiff injured her ankle when she slid down an inflatable slide owned by the defendant One Stop Party Rental, Inc., and set up at an event sponsored by the defendant Lindenhurst Sport Club, Inc.  The plaintiff ultimately lost her case because of the application of the “assumption of risk” doctrine.

            The Court stated the following: “a plaintiff is barred from recovery for injuries which occur during voluntary sporting or recreational activities if it is determined that he or she assumed the risk as a matter of law.  A voluntary participant in a recreational activity consents to those commonly-appreciated risks which are inherent in and arise out of the nature of such activity generally, and which flow from the participation.  Athletic and recreative activities possess enormous social value, even while they involve significantly heightened risks…these risks may be voluntarily assumed to preserve these beneficial pursuits as against the prohibitive liability to which they would otherwise give rise.”  Additionally, the Court held that the affidavit the plaintiff’s expert provided (in an attempt to counter the assumption of risk defense) was insufficient because he was not qualified to render an opinion as to the condition of the inflatable slide, and because his conclusions were speculative.

Salvatore R. Marino, Esq.

Theory of Law Raised Too Late

            In Hubbard v. City of New York, 924 N.Y.S.2d 533 (2d Dept. 2011), the plaintiff commenced a lawsuit against the City of New York as a result of an alleged trip and fall accident over a downed lamppost that was lying in the gutter of a street and which was not visible to her due to significant snowfall on the ground.  In her pleadings, she alleged negligence on the part of the City in permitting the site where the accident occurred to remain in a dangerous condition.  Particularly, she alleged that the City knew or should have known of such dangerous condition, and therefore is responsible for her injuries.  The case went to trial, where a jury awarded her a favorable verdict.  However, the City appealed, and the Appellate Division reversed the jury award.

            At trial, the plaintiff argued that the City was liable under a theory of an affirmative act of negligence (also known as a theory of “creation”).  Specifically, she argued that a City plow truck knocked over the subject lamppost, and afterward City workers moved the lamppost into the gutter of the street, where the plaintiff ultimately tripped over it.  The Court, on appeal, held that the trial court erred in allowing the plaintiff to proceed under this theory because it was never raised at any pre-trial stage.  According to the Court: “the theory was not contained in either the plaintiff’s pleadings or her bill of particulars.  In fact, in its demand for a bill of particulars, the City explicitly asked the plaintiff to state if actual or constructive notice were claimed, and additionally, whether she alleged that the City created the condition.  In her bill of particulars in response, she only stated that actual and constructive notice were claimed.  She did not claim that the City created the condition.  As this was a new theory not previously disclosed [before trial], the City had no opportunity to prepare for rebuttal.”

Salvatore R. Marino, Esq.

Lost Will Presumed Destroyed by Testator

A recent Appellate Division, Second Department court decision highlights an important aspect of the law of wills in New York.  In Matter of Winters, 923 N.Y.S.2d 730 (2d Dept. 2011), a decedent validly executed a will, but when he died his will could not be found.  Because his will could not be found, his son filed a petition in the Surrogate’s Court to obtain letters of administration for the estate of the decedent.  The decedent’s attorney, however, filed an answer and objections to the petition in which he alleged that the original will had be fraudulently destroyed during the decedent’s lifetime.  This attorney then cross-petitioned to admit a copy of the will to probate, but the Surrogate’s Court dismissed his petition.  The Appellate Division now affirms the lower court’s decision.

            According to the Court: “if a will, shown once to have existed and to have been in the testator’s possession, cannot be found after the testator’s death, the legal presumption is that the testator destroyed the will with the intention of revoking it.  This legal presumption may be overcome, and the lost will may be admitted to probate, if the party seeking probate establishes that the will was not revoked during the testator’s lifetime.”  The Court ultimately held that the decedent’s attorney offered no proof to support his contention that the will was fraudulently destroyed during the decedent’s lifetime, and therefore his petition should be dismissed.  According to the Court, the decedent’s attorney was merely speculating as to whether the will was fraudulently destroyed, and speculation alone is insufficient to overcome the applicable presumption.

Salvatore R. Marino, Esq.

Employee Fails to Show City at Fault

In Loschiavo v. City of New York, 923 N.Y.S.2d 676 (2d Dept. 2011), the plaintiff, an employee of the New York City Department of Sanitation, was allegedly injured when a metal bar he was recycling ejected from one of the truck’s hoppers, struck him in the head, and knocked him into the path of an oncoming bus.  The plaintiff thereafter sued the City alleging that it was negligent in failing to provide a safe recycling truck despite a notice that this model of truck sometimes ejected material from the hoppers during recycling operations.

            Ultimately the Court held for the City because it felt that the City’s decision to use that particular truck was a discretionary governmental act involving the exercise of reasoned judgment.  According to the Court: “the City submitted evidence showing that the Department [of Sanitation] made the decision to use this particular dual hopper truck after considering hoppers from several manufacturer’s, conducting field tests, and determining that the hopper was reasonably safe.  In examining available hoppers, the Department found that no hopper design completely eliminated the risk that material would sometimes eject during recycling collection operations, except for one design that posed alternate, greater safety risks.”  Because the plaintiff didn’t provide evidence in opposition to the City’s evidence, the Court dismissed the plaintiff’s complaint.

Salvatore R. Marino, Esq.

Vehicle Rear-End Collision Law

In Kastritsios v Marcello, 2011 NY Slip Op 04425 (2d Dept.), the plaintiff while driving her car was allegedly hit in the rear by the defendant driver.  The plaintiff made a motion for summary judgment, arguing that no triable issues of fact exist in regards to the defendant’s liability.  In making the motion the plaintiff provided an affidavit that states that she was hit in the rear by the defendant, and in opposition to the motion the defendant provided an affidavit which stated that plaintiff’s vehicle made a sudden stop.  The trial court denied the plaintiff’s motion, but the Appellate Division reversed and found for the plaintiff. 

The Court stated the following: “a rear-end collision establishes a prima facie case of negligence on the part of the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a non-negligent explanation for the collision…[in this case], the claim that the lead vehicle made a sudden stop, standing alone, is insufficient to rebut the presumption of negligence on the part of the following vehicle.  Accordingly, the Supreme Court erred in denying the plaintiff’s motion for summary judgment on the issue of liability.”

Salvatore R. Marino, Esq.

The Emergency Doctrine

A recent Appellate Division, Second Department court decision highlights the "emergency doctrine" as it applies in negligence cases.  In Brannan v. Korn, 923 N.Y.S.2d 345 (2d Dept. 2011), the plaintiff, while attempting to walk across a road in Nassau County, was struck by a hit and run driver and, as a result of the impact, was propelled onto a second vehicle operated by the defendant.  The Appellate Division, Second Department held that the plaintiff’s case against the defendant is dismissed because the defendant was faced with a valid emergency and therefore the application of the “emergency doctrine” bars the lawsuit.

The Court stated the following: “under the emergency doctrine, when an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct, the actor may not be negligent if the actions taken are reasonable and prudent in the emergency context.”

Salvatore R. Marino, Esq.

No "Serious Injury" in Auto Accident Case

A recent Appellate Division, Second Department court decision highlights an aspect of the law in New York in regards to automobile accident cases and “soft-tissue” injuries (a “soft tissue” injury is one that is not a fracture but is rather damage to the muscles, ligaments or tendons).  

The law in New York is that if a person is injured in a car accident then he or she can seek No-Fault insurance benefits up to $50,000 for economic losses pertaining to the accident (such as medical treatment expenses and lost earnings), regardless of who is at fault in causing the accident.  One goes about seeking such benefits by timely submitting a No-Fault application.  A person is able to sue the other driver directly to seek more compensation, but only if the economic losses exceeds $50,000, or if a “serious injury” exists.  A “serious injury” is defined by law as it includes death, fracture, and a permanent limitation of or permanent loss of use of a body part or function, as well as a significant limitation of use of a body function or system.  “Serious injury” also includes a non-permanent loss of use of a body member or organ that substantially impairs a person from engaging in customary everyday activities for 90 out of 180 days after the accident.  This “non-permanent use” category is also called a “soft-tissue” injury, and it is the most difficult for plaintiffs to prove. 

In Lewars v. Transit Facility Management Corp., 923 N.Y.S.2d 701 (2d Dept. 2011), the plaintiff lost her case (when defendant’s summary judgment motion was granted) when the Court held that she not sustain a “serious injury” because she missed only one week of work as a result of the accident (therefore, the “90 out of 180 day” category was not satisfied).  Also, the Court held the following in regards to the plaintiff’s doctor’s findings: “the affirmation and annexed submissions of [the plaintiff’s doctor] did not make any findings that were sufficiently contemporaneous with the subject accident as to the existence of significant limitations in either the plaintiff’s cervical or lumbar range of motion.  Indeed, while [the plaintiff’s doctor] examined the injured plaintiff the day after the accident, he failed to quantify any lumbar or cervical spine range of motion as of that date.  Rather, he asserted merely that the injured plaintiff had “decreased” range of motion.  Even with respect to this unquantified finding, he did not set forth the objective testing he performed.  The earliest quantified findings concerning lumbar or cervical range of motion provided by the plaintiffs was from an examination performed six months after the subject accident.  These findings were not sufficiently contemporaneous with the subject accident and did not overcome the deficiencies in [the plaintiff doctor’s] earlier examination.”

Salvatore R. Marino, Esq.

Prior Notice Law Not Applicable For Defense

In Giarraffa v. Town of Babylon, 923 N.Y.S.2d 697 (2d Dept. 2011), the plaintiff was allegedly injured when he stepped into what he described as a dirt-covered sinkhole immediately adjacent to the bulkhead for a slip where his boat was moored in Tanner Park, in the Town of Babylon.  The plaintiff sued the Town of Babylon for negligence. 

The defendant Town argued that there was no prior written notice of the defect pursuant to Town Code Section 158-2 and therefore the action must fail.  The Court disagreed with the Town on this point, stating the following: “the Town failed to demonstrate its prima facia entitlement to judgment as a matter of law because it did not show that the area where the plaintiff fell was within the scope of the applicable prior written notice provisions.  Contrary to the Town’s contention, the dirt-covered area providing access to boats moored at the slips within Tanner Park is neither a boardwalk nor other functional equivalent of a sidewalk.”  The Court, however, noted that if Section 158-2 was applicable then the plaintiff would lose because the Town Supervision received such notice rather than the Town Clerk or the Commissioner of the Department of Public Works, who are the only parties would could validly receive such notice under Section 158-2.

Salvatore R. Marino, Esq.

Dog Bite Law

In New York, if a person is attacked and sustained injuries from a dog (or any domestic animal), then a claim for “absolute liability” (also known as “strict liability”) must be brought.  (“Absolute liability” is defined as the legal responsibility for damages even if the defendant was not at fault or negligent.)  A negligence claim cannot be brought in a dog bite scenario.  See Collier v. Zambito, 775 N.Y.S.2d 205 (2004).  However, one will only be successful in bringing an absolute liability claim if he or she alleges and proves that the dog exhibited "vicious propensities" prior to the attack, and that the dog's owner knew or should have known of the dog’s vicious propensities prior to the attack.  Id.  In regards to the above, the following should be noted.  

The mere fact that a dog was kept enclosed or chained or that a dog previously barked at people is not sufficient to establish that it had vicious propensities.  Id.  Also, “Beware of Dog” signs, standing alone, are insufficient as well.  See Altmann vs Emigrant Savings Bank, 670 N.Y.S.2d 859 (2d Dept. 1998).  More has to be shown to constitute vicious propensities, such as evidence of a prior attack, the dog’s tendency to growl, snap or bare its teeth, the manner in which the dog was restrained, the fact that the dog was kept as a guard dog, or other evidence of the dog's proclivity to act in a way that puts others at risk of harm.  See Bard v. Jahnke, 815 N.Y.S.2d 16 (2006).  This law applies regardless of what type of breed of dog is involved (see Snyder v. National Parking Systems, 2004 NY Slip Op 51311). 

One of the most common ways to show that a dog has exhibited vicious propensities is to prove that it bit someone before (hence why the law in this area is loosely referred to as "the dog bite law").  Another way is to have a person familiar with the dog testify to its vicious propensities (such as a member of the household or a neighbor).

 

Salvatore R. Marino, Esq.

Intestate Distribution of an Estate

There are many important reasons why a person should have a will, but there is one reason in particular that stands out – the laws of intestacy.  If a person does not execute a will when he or she is alive, or if a will was executed but was found by a court after the person's death to be invalid for any reason, then that person’s estate will be distributed pursuant to the laws of intestacy.

            The New York Estate, Powers, and Trusts Law (the EPTL), Article Four, Section 4-1.1 sets forth intestate distribution:

(1)   If survived by a spouse and issue (“issue” are descendants in any degree from a common ancestor), then $50,000 plus one half of the residue goes to the surviving spouse, and the balance of the estate goes to the issue by representation.

(2)   If survived by a spouse and no issue, then the whole goes to the spouse.

(3)   If survived by the issue and no spouse, then the whole goes to the issue by representation.

(4)   If survived by one or both parents, and no spouse and no issue, then the whole goes to the surviving parent or parents.

(5)   If survived by the issue of parents (includes siblings), and no spouse, issue or parent, then the whole goes to the issue of the parents by representation.  

The EPTL also sets forth intestate distribution if survived by grandparents and grandchildren and great-grandchildren, which is in Article Four as well.

Salvatore R. Marino, Esq.

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.

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.