Car Dealership Test Drive and Permissive Use/Vicarious Liability

Madrigal v. Paragon Motors of Woodside, Inc., et al, 2025 NY Slip Op 01620 (App. Div., 2nd Dept., decided on or around March 19, 2025) involves a car dealership, an accident that occurred during the course of a test drive of a car from the dealership, and a question of permissive/authorized use of that vehicle.

The case arose when, in 2021, a plaintiff was allegedly injured when her vehicle was struck in the rear by a vehicle driven by the defendant driver.  At the time of the accident, the defendant driver was test driving a vehicle owned by the defendant Paragon Motors of Woodside, Inc (with the test drive's purpose to determine whether to purchase the vehicle).  A lawsuit was filed, and at some point the injured plaintiff filed a motion for summary judgment, which included a request to the trial court to determine that no triable issues of fact existed for a jury with regards to the negligence of the car dealership (as, plaintiff claimed, as the dealership owned the car, then it should be vicariously liable for the accident/resulting injuries).  The court granted the motion - thereby determining, as a matter of law, that the car dealership, as the owner of the car, is vicariously liable for the defendant driver's conduct.

On appeal, however, the Appellate Division, Second Department reversed that aspect of the lower court's determination, with the appellate decision setting forth the following: "...an owner [of a vehicle] may avoid liability under the statute [VTL 388]  if the driver exceeded the time, place[,] and purpose of the use permitted by the owner"...Here, [the defendant driver] testified at his deposition that [a car dealership sales representative] gave him the keys to the vehicle and told him to 'go ahead and do your thing.'  [The defendant driver] then drove the vehicle on local roads near Paragon's dealership before proceeding to the expressway, where he operated the vehicle for more than ten minutes before the collision occurred.  However, in support of her motion, the plaintiff also submitted a transcript of the deposition testimony of [the car dealership salesman], who testified that he advised [the defendant driver] to drive 'around the block one time' and to return within 'five or ten minutes'...The plaintiff was therefore not entitled to summary judgment on the issue of liability against Paragon, since there were triable issues of fact as to whether [the defendant driver] 'was driving the vehicle in a place and' for the time period 'that exceeded the terms of the consent given.'"

Salvatore R. Marino, Esq.

Assumption of Risk Defense Does Not Apply in Case of Student Hit With Ball During Track and Field Practice

In E.Z., Etc., et al v. Hewlett-Woodmere Union Free School District (County of Nassau, Index No. 610104/18), a defendant school district's efforts to dismiss a personal injury case, pre-trial, were unsuccessful as the Appellate Division, Second Department (decided on May 22, 2024) upheld that the "assumption of risk" defense does not apply.  The case arose when the plaintiff, a student of the middle school's track and field team, alleged injuries after she was stretching in an area designated by her track coaches (which was in the center of the middle school's track) and was thereafter struck in the face with an errant lacrosse ball that was thrown by a member of the school's lacrosse team (which, at the time, was practicing on the same field).  At some point after a lawsuit was filed, the defendant school district filed a motion for summary judgment, seeking a pre-trial dismissal of the case.  The trial court denied the motion, and the defendant appealed the decision.

The Appellate Division, Second Department held the following: "[I]t is not necessary to the application of assumption of risk that he injured plaintiff have foreseen the exact manner in which his or her injury occurred, so long as he or she is aware of the potential for injury of the mechanism from which the injury results.  A participant is not, however, deemed to have assumed risks that are concealed or unreasonably enhanced [...]. Here, the defendant failed to establish, prima facie, that the doctrine of primary assumption of risk barred the plaintiff's recovery.  The defendant submitted evidence raising a triable issue of fact as to whether it unreasonably enhanced the risk of injuries by requiring the infant plaintiff to stretch on an area of the field while lacrosse practice was occurring nearby (see Buffalino v. Sport Fitness, 202 AD3d 902, 904).  Accordingly, the Supreme Court properly denied the defendant's motion for summary judgment dismissing the complaint, without regard to the sufficiency of the plaintiff's opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853).

Salvatore R. Marino, Esq.

Arbitrator's Award Vacated Due to Lack of Evidentiary Support

In In the Matter of Richardson v.  Markovich (County of Nassau, Index No. 600363/21), the Appellate Division, Second Department (decided on May 22, 2024) affirmed a lower court's Order to vacate an arbitrator's decision.  The case arose in 2016, when the plaintiff allegedly sustained injuries after the defendant's vehicle struck the rear of a vehicle operated by the plaintiff.  At some point after a lawsuit was filed, the parties decided to arbitrate the case; and after the arbitration hearing, the Arbitrator awarded no amount to the plaintiff as the arbitrator determined that "'[t]he evidence fails to disclose that claimant [plaintiff] sustained a serious injury' because she 'failed to distinguish between injuries from the two prior accidents and the [2016] accident].'"  Thereafter, the plaintiff commenced a proceeding pursuant to CPLR 7511 to vacate the arbitration award.  The Supreme Court granted the petition and vacated the award; and the defendant appealed.

The Appellate Division, Second Department affirmed the lower court's order, and the decision included the following: "The arbitrator issued an award in [defendant's] favor upon a finding that [plaintiff] failed to distinguish between injuries that she purportedly sustained in accidents occurring in 1994 and 1999 and injuries she sustained in the 2016 accident.  However, on the issue of damages, [plaintiff] submitted, inter alia, medical reports from her treating physician explaining that [plaintiff] had no history of recent injury and casually relating her claimed injuries to the 2016 accident.  [Plaintiff's] deposition testimony established that, although she did not remember which body parts, if any, were injured in the 1994 and 1999 accidents, those accidents did not result in any injury to the relevant body parts and that, on both occasions, she returned to work.  [Defendant] did not submit, and the arbitrator did not consider, any other evidence as to [plaintiff's] purported prior injuries.  Accordingly, there was 'no proof whatever' to justify the arbitrator's award."

Salvatore R. Marino, Esq.

Case Against County Dismissed as Defect Did Not Arise Immediately After Work Performed

In McConnell v. County of Nassau, et al (County of Nassau, Index No. 605166/14), a plaintiff's slip-and-fall case was dismissed by the Appellate Division, Second Department (on June 5, 2024) - despite that plaintiff initially winning his case at trial.  The case arose after the plaintiff allegedly slipped, fell, and sustained injuries on July 4, 2013  at premises owned by the defendant County of Nassau.  A lawsuit was filed thereafter, and the plaintiff's theory of liability at trial was that he slipped and fell on a defective painted depth marker, which was a sign painted onto the pool deck indicating the depth of the water at that location (as, he testified at trial that after he fell, he stood up and ran his foot along the painted area and it felt like "a sheet of ice").    The evidence adduced at trial showed that depth markers were applied to the pool deck by the County between 2006 and 2008 using a mixture of sand and paint.  Further, the plaintiff's expert testified, among other things, that the County's method of sprinkling sand on top of the paint was not the safest way to paint the depth markers because this practice did not ensure equal distribution of the sand or that the sand would remain permanently on the paint; and that the best method of painting the depth markers was utilizing a paint that already had sand mixed into the paint. 

At the conclusion of the trial on the issue of liability, the jury returned a verdict, finding that the County was negligent and that its negligence was a substantial factor in causing the accident.  Thereafter, the County made an application, in effect, pursuant to CPLR 4404(a) to set aside the verdict on the issue of liability and for judgment as a matter of law dismissing the complaint insofar as asserted against it.  The Court denied the application.  After a jury returned a verdict in favor of the plaintiff and against the County on the issue of damages, the Court issued a judgment in favor of the plaintiff and against the County in the principal sum of $170,000.  The County appealed.

On appeal, the Appellate Division, Second Department revered the trial court's decision, thereby dismissing the plaintiff's case.  The Appellate Division noted that there was no prior written notice demonstrated with respect to the alleged defect, and that no exceptions to this requirement applied, such as creation of the defect.  Particularly, the Appellate Division held the following: "Although the plaintiff's expert testified at trial that the County's method of applying depth markers was inferior to the practice of using a paint that already contained sand, the plaintiff failed to present any evidence demonstrating that the County's application of the depth markers on the pool deck immediately resulted in the existence of a dangerous condition[...]The plaintiff's expert testimony indicated that over time, weather conditions, such as rain, could cause the sand in the paint to degrade and that the depth markers should have been repainted approximately every two to three years.  The plaintiff's evidence at trial, at most, established that environmental effects over time created the alleged dangerous condition, which was insufficient to impose liability on the County (see Loghry v. Village of Scarsdale, 149 AD3d 716).

Salvatore R. Marino, Esq.

NYS Court of Claims, Bicycling, and the "Assumption of Risk" Defense

In Alfieri v. State of New York, 2024 Slip Op. 00886 (decided on February 21, 2024), the Appellate Division, Second Department reversed a NYS Court of Claims decision to dismiss an injured claimant's case - as the appellate court held, among other things, that the Court of Claims incorrectly applied the "assumption of risk" doctrine/defense to the case.

The case arose after the claimant commenced a claim in the NYS Court of Claims (a court which entertains just lawsuits, or "claims," against the State of New York).  The claim was against the State of New York, and it requested to recover damages for personal injuries allegedly sustained when the claimant fell from his bicycle as he rode on a paved path around Rockland Lake in Rockland Lake State Park.  At a non-jury trial (as the Court of Claims does not permit jury trials - but rather only "bench-trials," or trials in which a NYS/Court of Claims judge decides matters of both law and fact involving a NYS defendant), the claimant testified that he fell when his bicycle ran into loose asphalt at the end of a crack in an asphalt patch as he attempted to maneuver to the edge of the path to go around two people walking on the path.  After the bench-trial, the Court of Claims justice found that the claim was barred by the doctrine of primary assumption of risk; and thereafter, the court issued a judgment dismissed the claim. The claimant thereafter appealed.

The Appellate Division, Second Department, revered the Court of Claims' decision - thereby restoring the case (and remitting the case back to the Court of Claims for a decision on those issues left undecided as a result of its determination), holding, among other things, the following: "Here, the Court of Claims erred in determining that the path where the claimant's accident occurred was a designated venue used specifically for bicycling.  When the injury occurred, the claimant was engaged in a recreational bicycle ride on a paved, public surface.  The claimant was not participating in an organized group event or sponsored ride.  The claimant testified at trial that he could both bike and walk the path.  That, in addition to the presence of pedestrians who precipitated the accident, demonstrated that the path was for public use, and not a designated venue for bicycling.  Therefore, the claimant, by participating in recreational bicycling, cannot be said to have assumed the risk of being injured as a result of an alleged defective condition on the paved path, and therefore, the doctrine of primary assumption of risk is inapplicable to the claimant's activity...."

Salvatore R. Marino, Esq.

"Serious Injury" Need Not Be "Permanent" For Auto-Accident Case

In Strong v. Sigman, et al, 2024 N.Y. Slip Op. 1028 (decided on February 28, 2024), the Appellate Division, Second Department reversed a trial court's granting of a defendants' summary judgment motion - thereby restoring the case - as the appellate court found, among other things, that triable issues of fact existed with respect to whether the plaintiff's non-permanent injury constituted a "serious injury" by way of Article 51 of the NYS Insurance Law (also known as the "No-Fault serious injury threshold law").  

The case arose due to an automobile accident between the plaintiff and the defendants.  At some point after the accident, the plaintiff filed suit against the defendants, and set forth allegations including that the defendants were negligent and caused the accident, and that the plaintiff sustained injuries/damages.  During the pre-trial process, the defendants filed a motion for summary judgment which requested dismissal of the case as, the defendants' contended, the plaintiff's injuries were not "permanent" and therefore no "serious injuries" existed as a matter of law.  A Queens County Supreme Court Justice agreed with the defendants' position, and granted the motion, and the plaintiff thereby appealed.

The Appellate Division, Second Department, reversed - thereby restoring the case - and the decision included the following: "In opposition, however, the plaintiff raised a triable issue of fact as to whether she sustained a serious injury to the cervical and lumbar regions of her spine under the significant limitation of use category of Insurance Law 5102(d) [citing Perl v. Meher, 18 NY3d 208].  Contrary to the defendants' contention, Insurance Law 5102(d) does not expressly set forth any temporal requirement for the significant limitation of use category and a 'significant limitation' need not be permanent in order to constitute a serious injury [citing Vasquez v. Almanzar, 107 AD3d 538; Estrella v. GEICO Ins. Co., 102 AD3d 730]."  

Salvatore R. Marino, Esq.

Questions of Fact Exist Regarding Ice Formation Prior to Snow Storm

In Townsend v. City of New York, et al (Index No. 711239/17, Queens County), the Appellate Division, Second Department recently affirmed a lower court's denial of a defendant's motion for summary judgment in a slip-and-fall due to ice case.  The case arose in January 2017, when the plaintiff allegedly slipped and fell on a walkway at the Queensbridge Houses South, in Long Island City.  At his 50-H hearings, the plaintiff testified that he fell due to ice; and at his deposition during the discovery process, he testified that the hazard was "dirty, crunchy" snow.  It is undisputed that at the time the plaintiff fell, it was snowing, with at least some snow accumulated on the ground.  At some point during the litigation, the defense filed a motion for summary judgment, seeking to dismiss the case by way of the "storm in progress" doctrine (which, if accepted by the Court, could result in a case dismissal).  The motion was denied, and the defense appealed.

The Appellate Division, Second Department notes applicable case law, including a case recently handled by Marino & Marino, P.C. titled Maharaj v. Kreidenweis (in which this firm, in March 2023, successfully defeated on appeal a motion for summary judgment from a defendant property owner in a slip-and-fall/ice case), as the Court stated the following: "As the proponent...of the motion for summary judgment, the defendant...had the burden of establishing, prima facia, that [it] neither created the icy condition nor had actual or constructive notice of its existence for a sufficient length of time to discovery and remedy it [citing Maharaj v. Kreidenweis, 214 AD3d 717, 719]."

The Court then goes on to hold that the lower court properly denied the defendants' motion - as even though the defense properly satisfies their summary judgment burden, the plaintiff, in opposition, raised triable issues of fact.  Particularly, the Court held: "An affidavit of the plaintiff's expert, in combination with the plaintiff's testimony and the sworn statement of the sole witness to the accident, was sufficient to raise a triable issue of fact as to whether the plaintiff slipped on ice, rather than snow, and whether such ice formed prior to the storm such that the defendant had a duty to make the path safe prior to the alleged time of the plaintiff's accident."

Salvatore R. Marino, Esq.

School District/Negligent Supervision Case Dismissed

In C.P.G., Etc., et al v. Uniondale School District (Index No. 612957/19, Nassau County), an infant/minor plaintiff, by way of his father, brought a lawsuit against a school district alleging, among other things, that the plaintiff sustained injuries due to negligent supervision by way of the school's employees.  Particularly, the action alleged that the infant plaintiff, who was an eighth grade student at a school located within the defendant Uniondale School District, was injured while playing a "pickup" game of soccer on a field at Turtle Hook Middle School during a school-sponsored event; it is further alleged that the infant plaintiff was injured due to dangerous conditions on the field - including, it is claimed, pebbles and wet grass - and negligent supervision by the school district's employees.  At some point during the litigation, the defendant school district moved for summary judgment (seeking dismissal of the case), and the trial court Judge denied the motion.

On appeal, however, the Appellate Division, Second Department reversed the lower court's decision - which, in effect, dismissed the plaintiff's case.  The basis of the appellate decision is the application of the doctrine of "assumption of risk," as the Court notes, "Risks inherent in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of the participation...[and] Participants are not deemed to have assumed the risk of reckless or intentional conduct, or concealed or unreasonably increased risks."  The Court then holds that in the instant case, "...merely allowing children to play on a field with pebbles and wet grass does not constitute negligent supervision"; and "To hold otherwise would effectively prohibit schools from utilizing outdoor playing fields."  

The Court further holds that the plaintiff fails to raise a triable issue of fact (which, in turn, allows the Court to grant the defendants' motion) - however, no explanation is provided by the Court as to why this is (such as what arguments and/or evidence was submitted by the plaintiff in opposition to the motion).  Absent from the appellate decision as well is a discussion with regards to the actual supervision and monitoring, if any, by the school district teachers/employees in relation to the infant plaintiff (which is arguably relevant, to an extent; as, for example, if the employees are not watching the infant plaintiff at all, and if the employees knew or should have known that an injury is likely to occur given the underlying facts and circumstances, then perhaps issues of fact could exist).

Salvatore R. Marino, Esq.

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.

Plaintiff Swimming Official Did Not "Assume the Risk" of Injury Due to Water Leaking From Negligently Maintained Pipe Onto Pool Deck

In O'Brien v. Asphalt Green, Inc. (Index No. 12847/14, decided on April 28, 2021), a denial of a defendant pool operator's motion for summary judgment was affirmed by the Appellate Division, Second Department, for reasons including that the plaintiff did not "assume the risk" of injury when slipping and falling on a wet pool deck due to water leaking from a defective pipe.  Particularly, the case arose when the plaintiff, who was a swimming official, allegedly was injured when she slipped and fell on a wet condition on a pool deck at an indoor swimming facility located in Manhattan, and which was operated by the defendant Asphalt Green, Inc.  The plaintiff thereafter filed a lawsuit against the pool operator, but before trial the defendant moved for summary judgment (which sought to dismiss the plaintiff's case) contending, among other things, that it cannot be held liable for the plaintiff's accident since the wet condition was necessarily incidental to the use of an indoor pool, and that no triable issues of fact exist for trial.  The Queens County Supreme Court denied the motion, and the defendant appealed.

On appeal, the Appellate Division affirmed the lower court's decision, holding, among other things, the following: "The defendant failed to establish, prima facie, that water accumulation on an indoor pool deck from condensation that had formed and dripped from overhead pipes or ductwork was necessarily incidental to the use of an indoor swimming facility...Further, the defendant failed to make a prima facie showing of entitlement to judgment as a matter of law based upon the doctrine of assumption of risk.  Under the doctrine of primary assumption of risk, a voluntary participant in a sporting or recreational activity 'consents to those commonly appreciated risks [that] are inherent in an arise out of the nature of the sport generally and flow from such participation'...Here, the hazardous condition of an indoor pool deck wet from condensation that had formed and dripped was not open and obvious and created a risk beyond that inherent in the sport of swimming in an indoor swimming facility...Further, 'the doctrine of assumption of risk does not exculpate a landowner from liability for ordinary negligence in maintaining a premises'...."

Salvatore R. Marino, Esq.

Plaintiff Customer's Fall/Injury Case Dismissed as "Seconds" Before Incident He Stepped Onto Allegedly Defective Area Without Issue

In Vaughan v. Triumphant Church of Jesus Christ, et al (Index No. 501243/15, decided on April 28, 2021), a plaintiff's fall/injury case was dismissed as the Appellate Division, Second Department held, among other things, that a defendant property owner did not have sufficient notice of the alleged defect in which plaintiff claims caused his fall and subsequent injuries.  The case arose when the plaintiff, while walking inside a deli (which was operated by United Express Deli, and which leased the premises from the property owner Triumphant Church of Jesus Christ) where he was a customer, sustained personal injuries when he fell through an open trapdoor in the premises ground.  The plaintiff thereafter commenced a lawsuit against entities including the owner of the premises, and the defendant owner eventually moved to dismiss the case (by way of a pre-trial motion for summary judgment).  The Supreme Court, Kings County, denied the motion, thereby leading the defendant property owner to appeal.

On appeal, however, the Appellate Division reversed the lower court's decision, thereby dismissing the plaintiff's case, holding, among other things, the following: "...the owner established, prima facie, that it did not create the allegedly dangerous condition or have actual or constructive notice of its existence...At his deposition, the plaintiff testified that he walked over the trapdoor, and then 'seconds' later when he stepped back, he fell through a hole caused by the open trapdoor.  Accordingly, even though the owner did not present evidence of the last time it inspected the trapdoor, the plaintiff's testimony establishes lack of constructive notice as a matter of law...."

Salvatore R Marino, Esq.

Verdict Set Aside/New Trial Ordered, as Defendants' Expert's Opinion Was Speculative and Contrary to the Weight of the Evidence

In Montesione, et al v. Newell Rubbermaid, Inc. (Index No. 71324/14, decided on March 3, 2021), the Appellate Division, Second Department ordered that a trial judgment be reversed, on the law and facts, pursuant to a plaintiff's motion pursuant to CPLR 4404(a) - which requested to set aside a jury verdict as contrary to the weight of the evidence, and for a new trial to occur.  The case arose when the plaintiff claims to have sustained injuries after a step stool, manufactured by the defendant, collapsed while she stood on it during work.  She thereafter commenced a lawsuit against the defendant, and the case eventually went to trial.  

At the liability stage of the trial, the defendant's expert testified, over the plaintiff's objection, that the injured plaintiff's accident may have occurred because she slipped and fell onto the step stool.  Over the plaintiff's objection, the jury was asked the question, "Did the subject step stool collapse under the [injured] plaintiff while she was standing on it [on the incident date] causing the [injured] plaintiff's accident?"  The jury answered, "No" - thereby finding in favor of the defendant on the ground that the accident did not occur as the injured plaintiff said it did.  Thereafter, the plaintiff moved pursuant to CPLR 4404(a) to set aside the jury verdict as contrary to the weight of the evidence and for a new trial - and the Supreme Court denied the motion.  The plaintiff thereafter appealed, including arguing that the defendant's expert should not have been permitted to testify that the accident may have occurred when the injured plaintiff fell onto the step stool.

The Appellate Division, however, reversed the lower court's determination, holding the following: "CPLR 4404(a) states...that a court may set aside a jury verdict and...'order a new trial...where the verdict is contrary to the weight of the evidence.'  A jury verdict should not be set aside as contrary to the weight of the evidence unless the 'evidence so preponderate[s] in favor of the [moving party] that the jury could not have reached the verdict by any fair interpretation of the evidence'...In reviewing a judgment of Supreme Court, the Appellate division has the power to determine whether a particular factual question was correctly resolved by the trier of facts...It is settled and unquestioned law that opinion evidence must be based on facts in the records or personally known to the witness...He [or she] cannot reach his [or her' conclusion by assuming material facts not supported by evidence...'[A]n expert's opinion not based on facts is worthless'..."

The Appellate Court further holds: "We agree with the plaintiffs that the evidence so preponderates in favor of the plaintiffs on the issue of whether the subject step stool collapsed as the injured plaintiff stood on it causing her accident, that the jury could not have reached the verdict it did by any fair interpretation of the evidence...Moreover, the testimony of the defendant's expert that the accident may have happened because the injured plaintiff fell onto the step stool was speculative, lacked support in the record, and should not have been admitted in evidence...Therefore, the Supreme Court should have granted plaintiffs' motion pursuant to CPLR 4404(a) to set aside the verdict as contrary to the weight of the evidence and for a new trial."

Salvatore R. Marino, Esq.

Homeowners Away on Vacation Not Insulated From Ice/Injury Incident on Their Property

In Giambruno v. Albrechet (Index No. 601245/18, recently decided on March 3, 2021), the Appellate Division, Second Department denied a defendants/homeowners' motion for summary judgment, holding, among other things, that they failed to demonstrate that no issues of fact existed regarding the issue of notice of an allegedly icy/dangerous condition.  The case arose due to an incident on February 18, 2015, in which the plaintiff - a letter carrier employed by the United States Postal Service - when delivering mail to the defendants/homeowners, was caused to slip, fall, and sustain injuries due to snow and/or ice on their ground.  He thereafter commenced a lawsuit against the homeowners, which included claims that defendants had actual and constructive notice of the snow and/or icy condition.  The defendants eventually filed a motion for summary judgment (which sought dismissal of the case), and the lower court denied it.

On appeal, the Appellate Division affirmed the lower court's ruling, holding as follows: "The evidence...demonstrated that it had snowed the day prior to the plaintiff's accident, and that the plaintiff observed snow on the ground immediately before he fell.  The defendants also submitted affidavits in which they attested that they did not shovel or disturb any snow or ice which may have been on their driveway.  Moreover, the defendants were not relieved of their 'duty to keep their property in a reasonably safe condition' even though they were away on vacation at the time of the plaintiff's accident...and they did not submit evidence demonstrating that they arranged for the inspection and maintenance of their property while they were away.  Accordingly, the Supreme Court properly denied the defendants' motion for summary judgment dismissing the complaint."

Salvatore R. Marino, Esq.

Negligent Supervision Case Survives Summary Judgment Motion from School District

In Cole Nizen-Jacobellis v. Lindenhurst Union Free School District (Index No. 1616/16, and recently decided on February 24, 2021), the Appellate Division, Second Department denied a defendant school district's motion for summary judgment (which sought dismissal of a case), finding that issues of fact warranted the matter to proceed to trial.  The case arose due to an incident occurring on April 22, 2014, in which the plaintiff - then a 10th grade student at a pubic high school within the defendant Lindenhurst Union Free School District - suffered injuries after being attacked by a student (particularly, after a class ended, the plaintiff's head was thrust into a bulletin board by another student).  Thereafter, in February 2016, the plaintiff commenced a lawsuit against the defendant school district, alleging claims including negligent supervision.  At some point during the pre-trial process, the defendant moved for summary judgment, and the lower court granted the motion - thereby dismissing the lawsuit.

On appeal, however, the Appellate Division reversed (resulting in the case being restored), holding, among other things, the following: "While the plaintiff testified that he had never been physically assaulted by the other student prior to the subject incident, he testified that the other student always made threatening comments to him during Spanish class, of which seven or eight were serious in nature, and three or four were accompanied by a closed fist motion in an attempt to get the plaintiff to flinch.  The plaintiff also testified that he complained about these threats to the Spanish teacher, who had witnessed the other student make a closed fist motion toward the plaintiff on at least one or two occasions, and that he asked the teacher if she could do something about these threats, but she never said anything to the other student...With respect to proximate cause, the School District did not demonstrate, prima facie, that the subject incident occurred so quickly and spontaneously 'that even the most intense supervision could not have prevented it'...The plaintiff testified that approximately 10 minutes before the end of class on the date of the assault, while the class was silently working on an assignment, the other student threatened out loud to stab him, which was overheard by the rest of the class and the teacher."

Salvatore R. Marino, Esq.

Motion for Directed Verdict Decision Reversed

In Creutzberger v. County of Suffolk, et al (Index No. 39984/08, decided on February 26, 2020), the Appellate Division, Second Department, reversed a trial court's decision that denied a defendants' motion for a directed verdict pertaining to an issue of creation of a dangerous condition.  The case arose in September, 2007, when the plaintiff, while attending a music festival at property owned by the County of Suffolk and occupied by the Long Island Maritime Museum, was caused to fall and sustain injuries after the bicycle he was riding on grass struck the edge of a portion of a boardwalk.  Thereafter, he commenced a lawsuit against the aforesaid entities, alleging, among other things, that the defendants breached their duty to adequately illuminate the incident location area, and that they created a dangerous condition by cutting the grass to the same level as the boardwalk, thereby concealing the height differential between the boardwalk and the grass path. 

The matter proceeded to a jury trial, and after the plaintiff presented his direct case, the defendants' attorneys made a CPLR 4401 motion for a directed verdict to dismiss plaintiff's case.  The motion included an argument that the plaintiff failed, as a matter of law, to prove that the defendants created a dangerous condition, and as such, the plaintiff's case should be dismissed.  The trial court denied the motion, and thereafter the jury found that the County of Suffolk was 45% at fault, the Long Island Maritime Museum was 40% at fault, and that the plaintiff was 15% at fault.  On appeal, however, the Appellate Division, Second Department, reversed the trial court's aforesaid motion for directed verdict decision, holding as follows:

"A trial court's grant of a CPLR 4401 motion for judgment as a matter of law is appropriate where the trial court finds that, upon evidence presented, there is no rational process which the fact trier could base a finding in favor of the nonmoving party...Where, as here, a municipality has enacted a prior written notice statue, it may not be subjected to liability for a defect within the scope of the law unless it received prior written notice of the defect or an exception to the prior written notice requirement applies...The only two recognized exceptions to a prior written notice requirement are the municipality's affirmative creation of a defect or where the defect is created by the municipality's special use of the property...

Here, the plaintiff asserted that the requirement for prior written notice was obviated because the defendants created a dangerous or defective condition through an affirmative act of negligence by cutting the grass to the same level as the boardwalk, thereby concealing the height differential between the boardwalk and the path.  However, at trial, the plaintiff failed to proffer any evidence that the defendants mowed the grass abutting the boardwalk to the same level of the boardwalk...To the contrary, the plaintiff presented testimony of a park supervisor employed by the County, who testified that the grass was not cut to make it even with the boardwalk, but rather, the grass was cut '[d]own to the ground.'  Thus, upon the evidence presented at trial, there was no rational process by which the jury could base a finding in favor of the plaintiff on the theory that the defendants created a dangerous condition through an affirmative act of negligence....Since a general verdict sheet was submitted to the jury, we cannot ascertain whether the jury's verdict was predicated on a finding in the plaintiff's favor on the theory that the defendants breached their duty to adequately illuminate the area where the accident occurred, or on the affirmative negligence theory, which should not have been submitted to the jury...Accordingly, the interlocutory judgment must be reversed, and the matter remitted to the Supreme Court, Suffolk County, for a new trial on the issue of liability."

Salvatore R. Marino, Esq.

Rehabilitation Center's Lawsuit Against Former Caretaker Dismissed

In Santoro v. Poughkeepsie Crossings LLC (2019 NY Slip Op 08883, decided on December 11, 2019), the Appellate Division, Second Department dismissed a lawsuit brought by a rehabilitation center against a former caretaker of a decedent suing the rehabilitation center.  Particularly, the plaintiff's mother was a patient at the rehabilitation center of Poughkeepsie Crossing (hereinafter referred to as "PC"), after the mother was hospitalized after a heart attack.  While at PC, however, in March 2015, she was caused to fall, sustaining injuries including fractured ribs and punctured lungs.
In May 2015 she passed away, and her former caretaker, and eventual executor of her estate, commenced a lawsuit against entities including PC for claims alleging negligence and inadequate treatment (as it was claimed that the March 2015 fall at PC ultimately resulted in her mother's passing).  In response to this lawsuit, however, PC sued the executor plaintiff for indemnification and contribution, alleging that negligent supervision of the former caretaker/executor's mother and failing to follow PC's discharge instructions resulted in the plaintiff's fatal injuries.

The lower court granted PC's motion, but the Appellate Division, Second Department reversed, thereby dismissing PC's action, and holding, among other things, the following: "The defendant [PC] would impose a new duty on those who live with infirm individuals 'to use reasonable care' and 'be liable for harm caused by the failure to use reasonable care by affirmative act or omission'...A lower court has recognized such a duty, but would define it as a duty owned by 'a child who assumes responsibility for the care of a parent who is limited by age or illness, or both'...The imposition of such an obligation carriers with it public policy considerations of possible negative consequences, such such a general obligation could discourage persons from residing with the infirm, discourage children and inform parents from living together, and discourage the infirm from attempting to resume independent living...The circumstances alleged here 'provide no justification for creating' such a duty...."

Salvatore R. Marino, Esq.