MVAIC Petition Denied as Petitioner Did Not Demonstrate Reasonable Efforts to Ascertain the Identity of Owner/Operator of Vehicle in Hit-and-Run Accident

In the Matter of Cymba Melville v. Motor Vehicle Accident Indemnification Corporation (decided on or around November 14 2022, Index No. 705389/19), the Appellate Division, Second Department affirmed a Queens County Supreme Court Order which denied a petition, in a hit-and-run accident, which sought permission to file a lawsuit against the Motor Vehicle Accident Indemnification Corporation (“MVAIC”).  

 

The case arose when the petitioner allegedly was injured when a vehicle in which she was a passenger in was struck by another vehicle.  As she initially claimed to not know the identity of the owner and/or operator of the other vehicle – and as she presumably did not know whether that vehicle was insured, as the vehicle she was in was likely uninsured, and as she likely did not have any automobile insurance of her own (including by way of her household) – then she filed a Notice of Intention to Make a Claim with MVAIC (as MVAIC, a non-profit organization created by NYS legislation, is often a last resort and option for injured persons in automobile accidents when there is no other available insurance).

 

The Supreme Court, however, denied the petition, and the Appellate Division affirmed – with a holding that included the following: “The Supreme Court did not err in denying the petition pursuant to Insurance Law Section 5218 for permission to commence an action against MVAIC to recover damages for personal injuries sustained and caused by the negligence of an unknown party.  MVAIC was created in 1958 to compensate innocent victims of hit-and-run motor vehicle accidents…Here, although there is no dispute that the petitioner was a qualified person pursuant to Insurance Law Section 5202(b), the petitioner failed to sustain her burden of demonstrating that the accident was one in which the identity of the owner and operator of the vehicle was unknown or not readily ascertainable through reasonable efforts.”  The Court further noted – and what appears to be a significant and decisive factor in the Court’s reasoning – is, “While testifying at an examination under oath, the petitioner identified the driver of the vehicle which struck her vehicle as an individual with whom she was acquainted.”  

 

Salvatore R. Marino, Esq.

High School Football Player Did Not "Assume the Risk" of Weightlifting Injury

Annitto, etc. v. Smithtown Central School District (decided on or around November 4, 2022, Index No. 611093/17) highlights the “assumption of risk” doctrine/defense in the context of high school athletic programs.  In the case, the plaintiff, on a high school football team, sustained serious injuries (including one of his fingers being crushed) when he was engaging in weight training exercises at the high school.  The incident happened during an off-season weight training test overseen by the school’s football coach.  Thereafter, the plaintiff’s mother commenced a lawsuit on his behalf against the school and in the Suffolk County Supreme Court, including, among other things, alleging negligent supervision.  At some point during the pre-trial process, the school moved to dismiss the case by way of a summary judgment motion – including asserting an argument that the plaintiff “assumed the risk” – and the Supreme Court granted the motion.

 

On appeal, however, the Appellate Division, Second Department reversed (thereby restoring the case), and with its decision including the following: “While the weight test was related to the infant plaintiff’s conditioning, and was occasioned by his membership on the school’s football team, that does not mean that the risk of being injured while lifting a heavy bar is inherent in the sport of football.  We cannot conclude that the fact that a person is getting in shape to play a sport means that the person assumes all of the risks associated with getting in shape, such that a school district would have no duty to its students to provide safe conditions for lifting weights and proper supervision of that activity.”

 

Salvatore R. Marino, Esq.

Slip-and-Fall/Negligent Design and Construction Case Dismissed Due to Inadequate Expert

In Shuttleworth v. Saint Margaret’s Roman Catholic Church in Middle Village, et al (Index No. 703517/19, Queens County, decided on or around October 14, 2022), the Appellate Division, Second Department reiterated the importance of a plaintiff’s expert, in a slip-and-fall/premise liability case which alleges negligent design and construction of property, to include in his or her opinion any “violations of industry-wide standards or accepted practices.”

 

In Shuttleworth, the plaintiff allegedly slipped and fell on a metal drainage grate located within the defendant’s exterior parking lot in Queens.  At the time, it was raining, and the wet condition of the metal grating allegedly caused the plaintiff to slip, fall and sustain serious injuries.  Thereafter, the plaintiff commenced a personal injury lawsuit against the defendant proper owner and/or operator.  At some point in the litigation, the defendant filed a motion for summary judgment – which sought dismissal of the case – and argued, among other things, that it was not negligence in causing the accident and resulting injuries.

 

A Justice of the Queens County Supreme Court denied the defendants motion – and the defendant thereafter appealed.  On appeal, however, the Appellate Division, Second Department reversed – which resulted in the plaintiff’s case being dismissed – and in its decision held the following: “The mere fact that the grate was wet from the falling rain was insufficient to establish the existence of a dangerous condition…In opposition, the plaintiff failed to raise a triable issue of fact.  Contrary to the plaintiff’s contention, the conclusion of her expert that the parking lot was defectively designed, without setting forth any violations of industry-wide standards or accepted practices in the field of parking lot design and construction, was insufficient to raise a triable issue of fact…Accordingly, the Supreme Court should have granted the defendant’s motion for summary judgment dismissing the complaint.”

 

As the Shuttleworth appellate decision focuses mostly on the plaintiff’s claims of negligent design and construction of the premises and/or subject metal grating system, then it is unknown (from reviewing the decision alone) if the plaintiff did not also have other viable claims or arguments, including: that defendant had actual and/or constructive notice of the dangerously slippery condition (which would be that the defendant knew, or should have known, that water existed on the grate for a substantial period of time prior to the accident - and that it should have timely cleaned the area and made it safe); and/or that the defendant created the dangerous condition (such as, for example, due to faulty maintenance services).

Salvatore R. Marino, Esq.

Contractors Not Liable Despite Hazardous Condition Existing

In Hodzic v. Cary, Inc, et al (decided February 23, 2022), 22 NY Slip Op 01149, the Appellate Division, Second Department affirmed a judgment dismissing a trip-and-fall/injury case against a construction contractor and subcontractor .  The case arose after the plaintiff, an employee of a bank, alleged injuries after she tripped and fell due to a height differential between floors of the premises of her employer/bank.  

Prior to the incident, the bank hired M. Cary, Inc. as a general contractor for a renovation project at the bank, and this project included raising the floor adjacent to the bank's printer room.  The general contractor hired the defendant Dimensional Drywall & Acoustics, LLC to perform that work.  The plans and specifications, which were prepared by the bank's architect, did not include raising the floor in the printer room or installing a ramp between the printer room and the floor in the adjacent room.  As a result of the foregoing, and after the work was completed, there was a height differential of approximately 2 inches between the floor in the printer room and the floor in the adjacent room - thereby eventually leading the plaintiff to trip, fall and sustain injuries due to this condition.

As a result of her incident/injuries, in March 2012 the plaintiff commenced a lawsuit against, amongst others, the general contractor and the subcontractor.  The case went to trial, and the defendant contractors made separate applications pursuant to CPLR 4401 for judgment as a matter of law dismissing the complaint insofar as asserted against each of them.  The Supreme Court granted the applications, thereby dismissing plaintiff's case against the contractors, and thereafter the plaintiff appealed the decision to the Appellate Division, Second Department.

The Appellate Division held, among other things, the following: "To be awarded judgment as a matter of law pursuant to CPLR 4401, there must be 'no rational process by which the fact trier could base a finding in favor of the nonmoving party' upon the evidence presented at trial...Here, the Supreme Court properly granted the defendants' applications for a directed verdict based upon the plaintiff's failure to establish that the defendants owed her a duty of care.  Generally, an independent contractor owes no tort duty of care to third parties [citing Espinal v. Melville snow Contrs., 98 NY2d 136).  One exception to that general rule is 'where...the contracting party, in failing to exercise reasonable care in the performance of its duties, launches a force or instrument of harm'... Another exception to that rule is where the contracting party has 'entirely displaced the other party's duty to maintain the premises safely.'"

The Court further held the following: the contractors in this case did not owe a duty of care to the plaintiff; "the defendants' awareness of the height differential and failure to correct and warn of the defect did not launch a force or instrument of harm for which they may be liable"; the plans were not so "defective" that "a contractor of ordinary prudence would not have performed the work"; and the contractors did not entirely displace the bank's duty to maintain the premises.

The Court, however, does not elaborate further as to why the contractors did not "launch a force or instrument of harm."  The architect plans did not include that the floor should be raised, yet the floor appears to have been raised due to the contractors' work (or, at least, this is what the plaintiff in this action seems to have argued).  Perhaps, the Court believed that the plaintiff did not present adequate evidence at trial to demonstrate same.

The decision also does not state if the plaintiff was working at the time of the incident and if she was injured during the course of her employment.  Assuming that she was,  then she was likely unable to sue her employer due to the Workers Compensation law (as this law allows an injured worker to obtain Workers Compensation benefits from an employer, but it also prevents the employee from being able to sue the employer).  In this scenario, one could attempt to obtain additional compensation by way of a lawsuit against a non-employer/third-party - such as, for example, construction contractors - and perhaps this is what occurred in the Hodzig case.  One benefit of being able to sue a third-party in a workplace/injury scenario (as opposed to relying on just receiving Workers Compensation benefits) is because Workers Compensation benefits are limited in scope, and do not include damages such as pain and suffering.

Salvatore R. Marino, Esq.