No Police "Special Duty" Created

In Valdez v. City of New York, 2011 NY Slip Op 07252, the facts are as follows: in 1996, the plaintiff’s ex-boyfriend called her and threatened to kill her; thereafter, she called the police and informed them of this threat, and also informed them that for her safety she left her apartment with her children and were heading to a family member’s house; in response, a police officer told her to return to her apartment and that the ex-boyfriend would be arrested immediately (though he never ended up being arrested at that time); she then went back to her apartment, and the night went by without incident; the following night, while leaving her apartment to take out garbage, the ex-boyfriend, emerged and shot her several times, resulting in serious personal injuries.

The Plaintiff brought a negligence action against the City of New York, alleging the following: that the City had undertaken a “special relationship” with her that created a duty of care; that the City was negligent in failing to arrest the ex-boyfriend prior to the attack; and that the City’s negligence was a proximate cause of the shooting. 

The matter went to trial, where a jury awarded $9.93 million dollars against the City, finding the ex-boyfriend and the City to be both 50% at fault in causing the plaintiff’s injuries.  However, on appeal, the Appellate Division reversed the verdict, and now the Court of Appeals has affirmed the reversal.  The Court held the following: “[the phone call between the plaintiff and the police officer] did not create a special relationship.  It was not reasonable for her to conclude, based on nothing more than the officer’s statement that the police were going to arrest [the ex-boyfriend] immediately, that she could relax her vigilance indefinitely, a belief that apparently impelled her to exit her apartment some 28 hours later without further contact with the police.”  Also, the Court noted, among other things, that she did not make a follow up call to the police after the threat to confirm that he was arrested, which was her common practice in the past whenever her and her ex-boyfriend had disputes.

Salvatore R. Marino, Esq.

County's Summary Judgment Motion Untimely

In Deberry-Hall v. County of Nassau, 2011 NY Slip Op 06993 (2d Dept.), the plaintiff alleged that she sustained personal injuries on September 9, 2005 when she tripped and fell over a defective portion of the southside walkway to the West Annex of the Nassau County Courthouse in Mineola.  The walkway was situated on property owned by the defendant, the County of Nassau.  The County’s records showed that, from September 7, 2005 through September 9, 2005 its employees were present and in the process of repairing the walkways to the Nassau County Courthouse and its West and East Annexes.

The plaintiff filed her note of issue on June 30, 2009, and pursuant to a certification order, motions for summary judgment were due no later than 60 days from the filing of the note of issue.  The County, however, did not move for summary judgment until September 2, 2009, which was 64 days after the filing of the note of issue.  

Due to the County’s noncompliance with the certification order, and because the County did not demonstrate good cause for its failure to timely file its motion, its motion was denied by the Supreme Court.  The Appellate Division, Second Department affirmed. 

Salvatore R. Marino, Esq.

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.