In Cram v. Keller, 2018 NY Slip Op 08007 (decided on November 21, 2018), the Appellate Division, Second Department granted a plaintiff's cross-motion for costs based on a defendants' frivolous post-trial motion. The case arose when the plaintiff, who was visiting her son at a house he rented from the defendants, was caused to fall and sustain injuries after she fell down exterior stairs of the house. As a result of the incident, plaintiff commenced an action against the defendants, with claims including that the defendants were at fault for failing to install a handrail on the righthand portion of the stairs (the area where the plaintiff ultimately fell to the ground). At the trial for this matter, the jury determined that the defendants were sixty (60) percent at fault in the happening of the incident. The defendants thereafter moved pursuant to CPLR 4404(a) to set aside the jury verdict and for judgment as a matter of law dismissing the complaint, contending that the plaintiff failed to establish that the defendants owned the subject house, and that the allegedly dangerous condition was open and obvious. The plaintiff thereafter cross-moved for costs pursuant to 22 NYCRR 130-1.1 on the ground that the defendants' motion was frivolous. The Supreme Court granted the defendants' motion, denied the plaintiff's motion, and the plaintiff thereafter appealed the decision.
With respect to the defendants' motion, the Appellate Division reversed the lower court's decision, holding, among other things, the following: "The plaintiff read into the record excepts from the deposition of the [defendants] where [defendants] admitted that, since purchasing the property, he put up a wrought iron railing and that the defendants had rented the property to a tenant. The admission by [defendants] that he and his wife had purchased the property, made an improvement on it, and had rented it out is legally sufficient evidence of ownership. Regarding the defendants' contention that the condition was open and obvious, a rational jury could have concluded that the defendants were negligent in maintaining the property, and that their negligence was the proximate cause of the plaintiff's injuries...'Proof that a dangerous condition is open and obvious does not preclude a finding of liability against an owner for failure to maintain property in a safe condition' [citing Russo v. Home Goods, Inc., 119 AD3d 924]...
With respect to the plaintiff's cross-motion for sanctions based on defendants' frivolous conduct in making their motion, the Appellate Division reversed the lower court's decision pertaining to this matter as well, holding, among other things, the following: "Here, the Supreme Court should have granted the plaintiff's cross motion for an award of costs in the form of reimbursement of reasonable attorneys' fees pursuant to 22 NYCRR 130-1.1 based on the frivolous conduct of the defendants [in making their motion]...Under the circumstances of this case, the defendants' post-trial motion to set aside the verdict, to the extent predicated on the issue of ownership, was frivolous, given the evidence presented by the plaintiff at trial, the failure of the defendants to offer any contrary evidence at trial, the known fact that the defendants owed the property, the lack of good faith underlying the denial of ownership appearing in the defendants' answer, and the lack of a good faith basis for the exclusion of the additional deposition testimony [by the trial court] that would have eliminated any doubt on the issue of ownership."
Salvatore R. Marino, Esq.
