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.

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.

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.

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.