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.