New Trial on Damages Ordered

            In Killon v. Parrotta (51539, NYLJ 1202635187065, at 1, Sup., Warren, decided December 23, 2013), an action for battery was commenced after the plaintiff was allegedly attacked by the defendant with a baseball bat, resulting in serious injuries to the plaintiff's face that required substantial medical and surgical treatment.  A trial was held in this case, and the jury awarded damages to the plaintiff in the amount of $200,000.00 for past medical expenses, no damages for past pain and suffering, and $25,000.00 for future pain and suffering.  After the verdict, the plaintiff then moved pursuant to CPLR 4404(a) for an order setting aside the verdict of the jury as to the $25,000.00 award for future pain and suffering and their award of no damages for past pain and suffering. The plaintiff argued that the verdict, in those two instances, was contrary to the weight of the evidence and inadequate as a matter of law, materially deviating from what is considered reasonable compensation for the pain and suffering experienced and to be experienced in the future (the plaintiff does not contest the jury's verdict in the amount of $200,000.00 for medical expenses though).

The Court noted the following with respect to the applicable law: "[t]he standard on a motion to set aside the jury's verdict as against the weight of the evidence is whether the evidence so preponderated in favor of the movant that the verdict could not have been reached on any fair interpretation of the evidence...[f]urthermore, the amount of damages to be awarded for pain and suffering is primarily a question of fact and considerable deference should be accorded to the interpretation of the evidence by the jury...[a]s frequently observed, awards for pain and suffering cannot be precisely quantified and their reasonableness is measured by reviewing comparable cases, and analyzing such factors as 'the nature, extent and permanency of the injuries, the extent of past, present and future pain and the long-term effects of the injury'...[t]he challenge on a motion such as this is the inherently subjective nature of non-economic awards which will not produce mathematically precise results and the shortage of 'comparable cases' entombed in memorandum opinions with limited facts - a task which 'is easier said than done.'"

The Court ultimately held that the jury's award of no damages for past pain and suffering could not have been reached on any fair interpretation of the evidence, and that the jury's future pain and suffering award without setting forth the period of years of which such amounts were intended to provide compensation was problematic.  As a result, the Court ordered a new trial on the issue of damages for the plaintiff's past and future pain and suffering.

Salvatore R. Marino, Esq.

Family Member Not "Licensee"

            A recent Nassau County District Court decision highlights the definition of a "licensee" with respect to summary eviction proceedings against family members.  In Kakwani v. Kakwani (2013 NY Slip Op 23200), the petitioner (the owner of a premises) brought a summary eviction proceeding against a family member who was a tenant of the premises pursuant to RPAPL Section 713(7).  The petitioner alleged that the tenant was a "licensee" whose license to reside at the premises (which was the respondent's marital residence) has been revoked, thereby allowing service of a 10 day notice to quit before an eviction proceeding was brought (as opposed to a 30 day notice that's required for other types of summary eviction proceedings).  The tenant's defense was that she is a "family member" who cannot be evicted in a summary proceeding.

Although the statutory law does not indicate whether a "licensee" includes family members, the Court noted that case law does.  According to the Court, case law holds that a family member is not a "licensee" for purposes of a RPAPL Section 713(7) action, and that an ejectment action commenced in the Supreme Court (as opposed to a summary eviction proceeding) is the proper avenue in such situations involving family members (it should be noted that an ejectment action is generally more time consuming than a summary eviction proceeding).

The Court stated the following: "These cases seemingly show that occupancy due to familial relationship does not constitute a licensee agreement as intended by RPAPL 713 (7).  There are various forms of family relationships ranging from spousal, parent and child, and even nonmarried couples. They are unique and thus should not be terminated through summary proceedings, which tend to be speedy.  Instead, more appropriate avenues must be taken such as ejectment actions or proceedings in Family Court....All this court holds is that a family member may not be summarily evicted from the family home with a 10-day notice to quit.  A more deliberate process is required and is readily available."

Salvatore R. Marino, Esq.

Stepfather Not “Immediate Family” for “Zone-of-Danger” Claim

            A recent Appellate Division, Second Department decision highlights the law for bringing an emotional distress claim caused by witnessing a family member's serious injury or death as a result of another person's negligent act.  In Thompson v. Dhaiti, et al (2^nd Dept 2013) (Index No. 24951/09), the plaintiff, the decedent’s stepdaughter, was standing in front of a barbershop when cars driven by defendants Dhaiti and Pacific collided.  One of the vehicles jumped onto the sidewalk, struck the decedent, who had been walking on the sidewalk, and crashed through the front window of the barbershop, pushing the decedent through the window and pinning him against a chair in the shop.  The decedent later died of his injuries.  The plaintiff then brought a lawsuit against the defendants, seeking damages for emotional distress caused by having witnessed the decedent’s death while being in the “zone-of-danger.”

            The Appellate Division ultimately held that the plaintiff was not entitled to recover damages under this claim, and as a result her lawsuit was dismissed (by way of defendants’ motion for summary judgment) as the decedent was not the plaintiff’s “immediate family.”  The Court notes that although the decedent was plaintiff’s stepfather, and the plaintiff lived with him since she was four years old and he had financially supported her for the majority of her life and acted as her father, he was not her biological father and therefore not considered to be her "immediate family" member (citing Bovsun v. Sanperi, 61 NY2d 219 and Trombetta v. Conkling, 82 NY2d 549).  The Court stated the following: “There is no blood relationship, even if the plaintiff and the decedent had the same quality of relationship that a parent has with his or her biological child.  In light of the strong public policy limiting liability under the zone-of-danger rule and favoring an objectively defined class of individuals who fall within ‘immediate family’ for purposes such as liability, we concluded that stepchildren are not immediate family members.  Thus, the Supreme Court properly granted the motion of the moving defendants for summary judgment dismissing the complaint insofar as asserted by [plaintiff] against each of them.” 

Salvatore R. Marino, Esq.

Supplemental Vs. Amended Bill of Particulars

           A recent Appellate Division, Second Department decision highlights the difference between an amended and supplemental bill of particulars in a personal injury case.  (A bill of particulars is a written statement that amplifies the allegations or defenses in a lawsuit.)  In Erickson v. Cross Ready Mix, Inc., et al. (2^nd Dept. 2012, Index No. 11947/05), the plaintiff allegedly was injured on a construction site when he was struck by a swinging chute on the back of a cement truck.  In his initial response to a demand for a bill of particulars, the plaintiff claimed that his medical treatment would include “lumbar spinal fusion surgery.”  After the surgery was performed, the plaintiff made a motion to amend his bill of particulars to include, among other things, further injuries which he allegedly sustained during the surgery.

            The Court dismissed plaintiff’s motion as it was unnecessary, holding the following: “pursuant to CPLR 3043(b), a plaintiff in a personal injury action may serve a supplemental bill of particulars containing ‘continuing special damages and disabilities,’ without leave of the court, if it alleges ‘no new cause of action . . . or new injury.’  Where, as here, the plaintiff seeks to allege continuing consequences of the injuries suffered and described in previous bills of particulars, rather than new and unrelated injuries, the contested bill of particulars is a supplemental bill of particulars rather than an amended bill of particulars.  Since the document entitled 'Amended Response To Defendant’s Demand For A Verified Bill Of Particulars,' which we deem to be a supplemental bill of particulars, was served more than 30 days prior to trial, leave of court was not required (see CPLR 3043[b]).  Accordingly, the plaintiff’s motion must be denied as unnecessary."

Salvatore R. Marino, Esq.

Defective Gate Claim Against City Dismissed

           In Silvia Durri v. City of New York, et al. (2nd Dept 2012, Index No. 25767/08), the facts are as follows: as the plaintiff was attempting to open a metal gate at the defendants’ parking lot, the hinges of the gate came apart; although the plaintiff tried to hold up the gate with her hands, she was unable to do so, and the gate ultimately fell on top of her, causing her to fall and allegedly sustain injuries.  Thereafter the plaintiff sued the City of New York and other parties alleged to have been responsible for the defective gate.  After discovery was completed, the defendants made a motion for summary judgment, which was granted by the trial court and affirmed by the Appellate Division, Second Department.

The Appellate Division held the following: “[the defendants established] that they did not create or have actual or constructive notice of any hazardous condition...the defendants’ custodian testified at a deposition that he inspected the gate twice a week, never observed any defects in the gate, and never received any complaints about the gate prior to the accident.  In opposition, the plaintiff failed to raise a triable issue of fact as to whether the defendants had actual or constructive notice of the alleged hazardous condition.  [Additionally,] contrary to the plaintiff’s contention, the doctrine of res ipsa loquitur is not applicable here.  The evidence did not show that the defendants were in exclusive control of the gate.”

Salvatore R. Marino, Esq.

Notice of Claim Not Required for Equitable Action

           In Howard Johnson v. City of Peekskill (2d Dept. 2012, Index No. 009-09430, decided on January 24, 2012), the plaintiff commenced a civil action against the City of Peekskill seeking an injunction to compel the City to issue him a building permit for a two-family house and for money damages, both compensatory and punitive, arising from the City’s failure to issue the permit.  The Supreme Court granted the City’s motion to dismiss the complaint for failure to serve a timely notice of claim pursuant to New York General Municipal Law §§ 50-e and 50-i, and denied the plaintiff’s cross-motion for leave to serve a late notice of claim.

            On appeal, the Appellate Division, Second Department reversed the lower court’s decision, holding that a notice of claim did not have to be served because a tort action was not commenced.  The Court stated the following: “General Municipal Law § 50-e mandates that a notice of claim must be served as a condition precedent to the commencement of a tort action against a municipality…[however,] the plaintiff’s claim is not subject to the notice of claim statute because his claim is primarily equitable in nature…although the complaint also demands compensatory and punitive damages for the alleged wrongful act committed by the City, compliance with the notice of claim requirements of section 50-e is not necessary where, as here, the action is brought in equity to restrain a continuing act and where a demand for money damages is merely incidental to the requested injunctive relief.”

Salvatore R. Marino, Esq.

Scooter Not "Dangerous Instrument"

            In Zarilla v. Pennachio (2d Dept., Index No. 100107/10, decided on or around December 27, 2011), the plaintiff lost her negligence case against the mother of a child that injured her. 

The plaintiff was allegedly injured when she was struck by a battery-powered scooter operated by a child.  At the time of the incident, the child was under the care of the plaintiff and her husband.  The defendant, who is the child’s mother, was not present.  The plaintiff and her husband, suing derivatively, commenced a negligence against the defendant alleging, among other things, that the defendant negligently entrusted the child with a dangerous instrument.  The defendant moved for summary judgment dismissing the complaint, but the lower court denied this motion.

On appeal, the Appellate Division reversed the lower court’s decision.  The Court stated the following: “a parent owes a duty to protect third parties from harm that is clearly foreseeable from his or her child’s improvident use or operation of a dangerous instrument, where such use is found to be subject to the parent’s control…[however,] 'items that are commonly used by children, of suitable age in a manner consistent with their intended use, may not, as a matter of law, be classified as dangerous instruments' ([citing] Rios v Smith, 95 NY2d at 653).  Here, the defendant made a prima facie showing of entitlement to judgment as a matter of law…[the child] was of a suitable age to use the subject scooter, a toy manufactured for children between the ages of three to six.  Further, [the child’s] operation of the scooter was consistent with its intended use.  In opposition, the plaintiffs failed to raise a triable issue of fact.”

Salvatore R. Marino, Esq.