Res Judicata Doctrine Not Applicable

In Farren v. Lisogorsky, 2011 NY Slip Op 06366 (2d Dept.), the plaintiff sued a pharmacist for incorrectly filling a prescription for the plaintiff and, after ingesting the drugs, the plaintiff incurred personal injuries.  The pharmacist sought to dismiss the plaintiff’s case pursuant to CPLR 3211 (a)(5) due to the applicability of the “res judicata” doctrine (also known as “claim preclusion”).  

The pharmacist argued that since the plaintiff commenced and settled a lawsuit against the pharmacist’s employer already, then the plaintiff is precluded from suing the pharmacist individually, since the pharmacist was in privity with the pharmacy and the same questions in the previous lawsuit were being litigating again.  (“Privity” means the connection or relationship between two parties, each having a legally recognized interest in the same subject matter.)

The Supreme Court granted the pharmacist’s motion, but on appeal the Appellate Division, Second Department disagreed and reversed, holding for the plaintiff.  The Court held the following: “the doctrine of res judicata is inapplicable to the instant action, as the plaintiff never asserted any claim against the defendant in his capacity as an employee of [the pharmacy], and seek here to hold him liable solely in his professional capacity as a pharmacist.  The fact that the plaintiff sued one tortfeasor, [the pharmacy], does not automatically preclude him from suing another tortfeasor, such as the defendant herein, in a subsequent action.”  The Court also noted that there was insufficient evidence to conclude that the pharmacist was in privity with the pharmacy.

Salvatore R. Marino, Esq.

Out of Possession Landlord

            In Sciammarella v. Manorville Postal Associates, 2011 NY Slip Op 06122 (2d Dept.), the plaintiff sustained injuries when she allegedly fell after stepping into a hole in the parking lot of a premises leased to the United States Postal Service by the defendant landlord.  The landlord made a motion for summary judgment seeking to dismiss the complaint.  The landlord’s basis of the motion was that it owned the property, but it was totally out of possession of it, and it was not contractually responsible for the plaintiff’s injuries. 

The Court agreed with the defendant and granted the motion, stating the following: “an out-of-possession landlord may not be liable for injuries occurring on its premises unless it is contractually obligated to perform maintenance and repairs or it has retained control over the premises.”

Salvatore R. Marino, Esq.

Motion to Set Aside Verdict Denied

In Kim v. New York City Transit, 2011 NY Slip Op 06123 (2d Dept.), the plaintiff, while walking across Roosevelt Avenue in Queens, was hit by a bus owned by the defendant New York City Transit Authority.  The plaintiff sued the defendant for negligence, alleging that the defendant failed to yield the right of way to a pedestrian lawfully in a crosswalk at the time a steady green traffic signal was exhibited, and it failed to see what was there to be seen.  The case made it to trial, where a jury found the defendant to not be negligent.  The plaintiff then made a motion pursuant to CPLR 4404(a) to set aside the jury verdict and for judgment in their favor on the issue of liability or to set aside the verdict as contrary to the weight of the evidence and for a new trial.  The Supreme Court granted the motion, but on appeal the Appellate Division denied it. 

The motion was denied because the Court felt that there was enough evidence to support the jury’s decision.  Particularly, the Court noted the following: the plaintiff  testified that she saw the bus in motion before she entered the roadway at a fast pace in order to meet someone nearby; a witness testified that the bus was in the middle of its turn when it struck her; and the bus driver testified that he did not observe any pedestrians upon looking in all directions before proceeding into the intersection, and that the plaintiff was in the street near the rear wheels of his bus immediately after the impact.

The Court stated the following: “a jury verdict should not be set aside as contrary to the weight of the evidence unless ‘the evidence so preponderates in favor of the moving party that the jury could not have reached the verdict by any fair interpretation of the evidence’…it is within the province of the jury to determine issues of credibility, and great deference is accorded to the jury given its opportunity to see and hear the witnesses.”

Salvatore R. Marino, Esq.

Auto Accident "Serious Injury" Law

            If one is injured in a motor vehicle accident in New York, then he or she might be entitled to No-Fault insurance benefits for economic losses (generally up to $50,000), regardless of who was at fault, and if one is a driver, passenger or pedestrian.  A lawsuit for negligence can also be brought, but only if economic losses exceed $50,000, or if a “serious injury” has been suffered.  According to Article 51 of the New York State Insurance Law, the following constitutes a “serious injury”:

(1)   Death;

(2)   Dismemberment;

(3)   Significant disfigurement;

(4)   Fracture;

(5)   Loss of a fetus;

(6)   Permanent loss of use of a body organ, member, function or system;

(7)   Permanent consequential limitation of use of a body organ or member;

(8)   Significant limitation of use of a body function or system; or

(9)   Medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.

Salvatore R. Marino, Esq.

Landlord's Damages Limited in Breach Case

In Weaver Street Properties, LLC v. Cold Stone Creamery, Inc., 2011 NY Slip Op 05803 (2d Dept.), a landlord and a tenant entered into a lease whereby the tenant rented store space in a shopping center owned by the landlord.  The tenant then entered into a sublease with a company owned by two parties, which ran an ice cream store as a franchise of the tenant.  The franchisee defaulted in the payment of rent, and thereafter closed the store about 18 months into the lease term.  The landlord then sued the tenant to recover damages for breach of contract, alleging, among other things, that it was entitled to damages in the amount of the rent due for the remainder of the lease term (which exceeded a 12 month period).

The Appellate Division, Second Department, disagreed with the landlord.  The lease stated that “notwithstanding anything contained herein or elsewhere in the lease to the contrary, landlord and tenant agree that tenant’s liability upon any breach of default hereunder for non-payment of rent shall not exceed an aggregate amount equal to twelve (12) months base rent or the remainder of the rent due pursuant to this lease, whichever is less.”  Therefore, in light of this language in the lease, the Court limited the landlord's damages (for a period not to exceed 12 months), stating the following: “where, as here, a real property transaction contract was negotiated at arm’s length between sophisticated, counseled parties, special import must be given to the rule that a written agreement that is complete, clear, and unambiguous on its face must be enforced according to the plain meaning of its terms.”

Salvatore R. Marino, Esq.

Lender Denied Foreclosure

A recent court decision highlights the federal Home Affordable Modification Program (also known as “HAMP”).  HAMP was established to assist eligible home owners with loan modifications on their home mortgage debt, and it is part of the Making Home Affordable Program which was created by the Financial Stability Act of 2009.

In Aames Funding Corporation v. Houston, 2011 NY Slip Op 5642 (2d Dept.), a judgment of foreclosure sale was entered against the homeowner, and a year later the Supreme Court granted the lender’s motion to extend a notice of pendency for an additional three years. Several years after the notice of pendency was granted, the homeowner was notified by America’s Servicing Company (also known as ASC, which is the homeowner’s loan servicer) that the homeowner might be eligible for federal HAMP assistance.  As a result, the homeowner submitted an application to ACS.  When the application when pending, however, the lender published a notice of foreclosure sale.  

In response to the notice, the homeowner moved for an emergency stay (postponement) of the foreclosure sale pending a determination on his HAMP application.  The Appellate Division, Second Department held for the homeowner and ordered the stay, citing Version 2.0 of the “Making Home Affordable Program Handbook,” which states the following: “a servicer may not refer any loan to foreclosure or conduct a scheduled foreclosure sale unless and until the borrower is evaluated for HAMP and is determined to be eligible for the program.”

Salvatore R. Marino, Esq.

"Open and Obvious" Defense Fails

            In Demuth v. Best Buy Stores, L.P., 2011 NY Slip Op 5014 (2d Dept.), the plaintiff allegedly was injured when she tripped and fell over a cluster of concrete protruding from the ground in an area adjacent to a Best Buy store.  Best Buy sought to dismiss her case, alleging that the cause of the plaintiff’s accident was “open and obvious” and “not inherently dangerous.”

The Court disagreed with Best Buy and held for the plaintiff in this case, stating the following: “while a landowner has a duty to maintain its premises in a reasonably safe manner, it does not have a duty to protect against an open and obvious condition which, as a matter of law, is not inherently dangerous.  [In this case, however, due to insufficient evidence submitted by Best Buy], Best Buy failed to demonstrate that the cluster of concrete on which the plaintiff tripped was a naturally occurring topographic condition or some other condition that a landowner could not reasonably be expected to remedy, and thus failed to show that it was not inherently dangerous.”

Salvatore R. Marino, Esq.