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.

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.

Growling Not Enough to Show "Vicious Propensities" in Dog Bite Case

            In Gervais v. Laino (111537/10, NYLJ 1202636603421, at 1, App. Div., 1st, decided December 31, 2013), the Appellate Division, First Department reversed a lower court's order denying a defendant's motion for summary judgment in a dog bite case.  The relevant facts are as follows: the plaintiff brought a lawsuit against a dog owner (the defendant) after she was allegedly scratched or bitten in the face by the dog; the plaintiff stated that she was walking in Central Park when she saw the defendant's dog, whose hind paw was caught in a fence, wailing in pain; the plaintiff claimed that she was leaning over the dog and deciding what to do, when the dog lunged at her and scratched or bit her face (however, both the hospital records and police report state that plaintiff was attempting to free the dog); the defendant dog owner, who was present and rushing over to her dog, stated that the plaintiff wrapped her arms around the dog's head and neck.

            In support of the motion for summary judgment, the defendant submitted evidence of her dog's gentle disposition and her lack of knowledge of any vicious propensities, including four affidavits from neighbors and other dog owners who know the defendant's dog, as well as test results indicating that the dog was awarded the American Kennel Club's Good Citizen certification.  In opposition, the plaintiff submitted deposition testimony from the defendant's neighbor who stated that, prior to this incident, the neighbor's two dogs and defendant's dog, had a history of growling at each other and had been involved in two scuffles, one where one of the neighbor's dogs bit defendant's dog and one or possibly two where defendant's dog was the aggressor but she retreated when the neighbor reprimanded her.  The neighbor further testified that she complained to defendant about her dog's behavior, but acknowledged that defendant's dog was not aggressive toward her and had never bitten or hurt her dogs.

            After the discovery process, the defendant made a motion for summary judgment, seeking to dismiss the plaintiff's lawsuit on the theory that no triable issues of fact exist for trial.  The trial court denied the defendant's motion, and the plaintiff appealed.  On appeal, the Appellate Division reversed the trial court decision, stating the following: "[i]n order to establish liability, there must be some evidence that the dog demonstrated vicious propensities prior to the incident...[t]he only case with facts at all comparable to those here is Rosenbaum v. Rauer, 80 AD3d 686 (2nd Dept 2011), in which the plaintiff was also injured when trying to assist a dog who was caught in a fence.  In Rosenbaum, however, there was evidence that the defendants' dog 'had frequently…growled, shown its teeth, and snapped at the plaintiffs'...[a]ccordingly, the Second Department found that there was a triable issue of fact as to the animal's vicious propensities when it bit the injured plaintiff." 

            The Court then held the following: "[n]o court has found that a dog's growling at one or two other dogs is sufficient to establish vicious propensities, and the Third Department has specifically held that growling and baring of teeth, even at people, is insufficient to give notice of a dog's vicious propensities...[h]ere, the evidence, which establishes only that defendant's dog growled at two other dogs, one of whom had bitten her, and never growled or bared her teeth at any people, is insufficient to raise an issue of fact as to the dog's vicious propensities.  Accordingly, defendant is entitled to summary judgment dismissing the complaint."

Salvatore R. Marino, Esq.

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.