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 train 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.
Saturday, November 24, 2018
"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.
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.
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.
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