Recent Appeals

New York State Supreme Court, Appellate Division, Second Department
Chong v. Scheelje, 218 A.D.3d 693, 192 N.Y.S.3d 250 (2023)
Motor Vehicle
Facts: Plaintiff was struck by a vehicle operated by the Defendant. The defendant moved for summary judgment dismissing the complaint, contending that the plaintiff's violation of Vehicle and Traffic Law § 1152(a) was the sole proximate cause of the accident. The Supreme Court granted the motion, and Plaintiff appealed.
Result: The appellate court affirmed the decision, holding that summary judgment was correctly granted to the Defendant driver based upon Vehicle and Traffic Law § 1152(a).  The Court agree that Plaintiff was the sole proximate cause of the accident. 


New York State Supreme Court, Appellate Division, Second Department
Alonso v. Crest Transportation Serv., Inc., No. 2023-02607, 2024 WL 1423570 (N.Y. App. Div. Apr. 3, 2024)
Motor Vehicle
Facts: Plaintiff's parked vehicle was hit by Defendant's ambulance, operated by a nonparty with lights and sirens on, straddling the double-yellow line at a speed under 20 mph. Plaintiff claimed the collision occurred on the rear driver's side, but the ambulance driver said it was between mirrors while both vehicles moved. We sought summary judgment, contending the ambulance wasn't operated recklessly, but the motion was denied. We appealed.
Result: The Appellate Division overturned the lower court's decision, granting our motion for summary judgment in favor of our client. They agreed that the driver's actions were governed by the reckless disregard standard of care. Despite operating an emergency vehicle with sirens and lights, the driver's behavior didn't meet the threshold for reckless disregard, being protected under Vehicle and Traffic Law § 1104(b).

New York State Supreme Court, Appellate Division, First Department
Crosby v. AJA Tpk. Properties, 224 A.D.3d 538, 203 N.Y.S.3d 603 (2024)
Insurance Coverage
Facts:  A construction company subcontracted with a contractor, obligating the company to secure insurance for indemnification. After a worker was injured, the contractor sought indemnification from the construction company, which then sued the insurance agency for failing to obtain proper coverage. The agency couldn't prove entitlement to summary judgment, as conflicting testimony existed about whether they secured the requested coverage, preventing judgment in the construction company's favor.
Result: The court modified the original judgment, denying JMJ's motion for summary judgment and vacating the award of attorneys’ fees, suggesting potential for future renewal.



New York State Supreme Court, Appellate Division, Second Department 
Moraskin v. Lati, 222 A.D.3d 744, 201 N.Y.S.3d 213 (2023)
Motor Vehicle
Facts: Plaintiffs, a driver and passenger in a vehicle, were involved in a collision with the Defendant. The Defendant asserted various affirmative defenses, as well as a counterclaim against Plaintiff, alleging that  the injuries sustained by the Plaintiff passenger were caused in whole or in part by the driver’s culpable conduct. We moved to dismiss the counter claim, contending that, pursuant to General Obligations Law § 15–108(b), the counterclaim was barred by the release. The Supreme Court denied this motion. Plaintiff appealed.
Result: The appellate court overturned the decision, stating the Supreme Court should have granted the Plaintiff's motion to dismiss the counterclaim. The release signed by the driver exempts her from liability to the defendant for contribution. Arguments about the release's validity, not raised during the initial Supreme Court proceedings, were considered improper when first brought up on appeal.


New York State Supreme Court, Appellate Division, Fourth Department
Brooks v. Vill. of Fairport, 215 A.D.3d 1234, 188 N.Y.S.3d 290 (2023)
Premises Liability- Municipal
Facts: Plaintiff brought action seeking damages for injuries sustained in a trip and fall incident due to a raised crack in a sidewalk that was caused by the roots of an adjacent tree. Defendant filed a motion for summary judgment, based on establishing that they did not receive proper written notice of the allegedly dangerous condition. Plaintiff appealed.
Result: The appellate court affirmed the lower court’s decision, in favor of our client as Plaintiff did not meet their burden of proof to raise a triable question of fact. The Court agreed with our argument that even if they planted the tree and failed to maintain it that the failure to do so is not affirmative negligence, but nonfeasance. 


New York State Supreme Court, Appellate Division, First Department 
Diaz v. P&K Contracting, Inc., 224 A.D.3d 405, 204 N.Y.S.3d 486 (2024)
Labor Law
Facts: The plaintiff, a steel construction laborer, fell and got injured while unloading a truck at a jobsite. He testified that a Steel Construction supervisor's instructions led to his fall. The contractor brought indemnification and contribution claims against a third-party. We sought summary judgment, arguing the construction manager wasn't a statutory agent under Labor Law, which the Supreme Court granted in favor of the defendant's construction company. Plaintiff appealed.
Result: The lower court's decision was upheld on appeal. The First Department agreed that our motion for summary judgment was rightly granted, dismissing the plaintiff's Labor Law § 200 claim. The manager and contractor were deemed not liable for workplace safety statute violations as we demonstrated they only had general supervisory authority and did not control the work methods.


New York State Supreme Court, Appellate Division, First Department
Bindler v. Lenox Hill Neighborhood House, Inc., 217 A.D.3d 440, 190 N.Y.S.3d 61 (2023)
Facts: Plaintiff was injured at a nonprofit event when another person fell on her on the dance floor. Plaintiff claimed the nonprofit failed to supervise and warn her of potential injury. We filed for summary judgment, arguing the nonprofit wasn't negligent, lacked control over its members, and the accident was unavoidable. The Supreme Court denied our motion,  we appealed.
Result:  The appellate court reversed its decision and stated that the member was not permitted to assert than the nonprofit owed her a duty and the fall was not reasonably foreseeable. 


New York State Supreme Court, Appellate Division, Second Department
Abney v. Meridian Properties, LLC, 222 A.D.3d 921, 201 N.Y.S.3d 661 (2023)
Negligence- Third-Party Liability
Facts: Plaintiff brought action against the owner, operator, and managers of apartment building to recover damages for injuries sustained when they slipped on fell on rocks when exiting the building. Defendants brought a third-party complaint against a general contractor hired to perform renovation work. We filed a motion for summary judgment on behalf of the third-party and the motion was denied. We appealed. 
Result: The appellate court reversed the lower court’s opinion and held that the contractor did not affirmatively create the allege dangerous  condition that caused the resident’s accident. 


New York State Supreme Court, Appellate Division, Second Department
Vallejo v. Uzzi, 213 A.D.3d 794, 184 N.Y.S.3d 92 (2023)
Motor Vehicle
Facts: Plaintiff was a passenger in a vehicle and was struck by a vehicle owned by a city. Plaintiff brought action against the city, the driver of the city’s vehicle, and the driver of the vehicle in which Plaintiff was a passenger. We moved pursuant to CPLR 3126 to strike the complaint based upon Plaintiff’s failure to comply with discovery demands. The Supreme Court granted our motion to stroke the complaint. Plaintiff appealed. 
Result: The appellate court affirmed the lower court’s decision, emphasizing that the plaintiff had failed to comply with court orders and had not provided a reasonable excuse for their failures. 


New York State Supreme Court, Appellate Division, Second Department
Espinosa v. Covington, 217 A.D.3d 842, 191 N.Y.S.3d 477 (2023)
Motor Vehicle
Facts: Plaintiff in a disability transportation service vehicle brought action against the driver of the vehicle, transportation service, and motorist who struck the vehicle from behind for personal injuries she sustained in the accident.  The transportation service and driver moved for summary judgment alleging that the driver of the other vehicle was the sole proximate cause of the action. The Supreme Court denied the motion. We appealed. 
Result: The lower court’s decision was reversed. The appellate court held that the driver of the disability transportation service vehicle and transportation service were not liable for the passenger’s injuries because the driver of the other vehicle was the sole proximate cause of the action. 


United States Court of Appeals, Second Circuit
TAL Properties of Pomona, LLC v. Vill. of Pomona, No. 22-1826, 2023 WL 2924571 (2d Cir. Apr. 13, 2023)
Facts: Plaintiff, a real-estate developer, filed two lawsuits against the Village of Pomona and several Village officials, alleging religious discrimination. The first claim was dismissed by the district court for a failure to state a claim.  The second lawsuit repeated the allegation from the first suit but introduced new evidence of religious animus directed at the Orthodox Jewish community in Pomona. Most of the claims in the second lawsuit were barred by res judicata, and when the real-estate developer moved for reconsideration and requested an extension of time to file an amended complaint it was denied by the district court. Plaintiff appealed.
Result: The appellate court affirmed the district court’s ruling. The court determined that the real-estate developer’s claims against Banks were properly dismissed for failure to state a claim, as the allegations were conclusory and lacked factual support. 

​New York Supreme Court, Appellate Division, First Department
Kwan v. Kuie Chin Yap, et al., 2023 NY Slip Op 5005 (2d Dept. 2023)
Premises Liability
Facts:  Infant plaintiff decedent fell from the window of a condominium unit being leased by infant plaintiff's mother.  Plaintiff commenced a lawsuit against both the individual condominium unit owner and against the condominium Board of Managers alleging a failure to install window guards and a failure to send notices as to the installation of guards.  We moved for dismissal pre-discovery on the basis that the individual unit owner, not the Board, was responsible for the window guards based upon the plain language of the controlling statutes and the terms of the bylaws.  The motion court denied the motion.  We appealed. 

Result: The Appellate Division unanimously reversed in part the lower court’s denial of our motion, granting dismissal in favor of our client as the Board was not an "owner" as defined by the statute and had no responsibility for the installation of window guards.  The Court, however, did affirm, citing insufficient evidence to determine whether the Board exerted "control" over the unit such that it may still have had an obligation to issue notices.  This was the first decision directly on point at the appellate level which established the responsibilities in a condominium building with respect to application of the window guard statutes.  

​New York Supreme Court, Appellate Division, First Department
Fedirnan Obando v. Dane Espeut, et al., 2023 NY Slip Op 1144 (1st Dept. 2023)
Motor Vehicle
Facts:  Defendant was driving straight and gradually applied his brakes due to traffic conditions ahead. The Co-Defendant trailing driver who rear-ended the our client claimed that our client stopped suddenly, despite Co-Defendant's acknowledgement that he allowed him into the lane.  We moved for summary judgment prior to depositions, which was denied.  Subsequently, we moved to renew following completion of depositions.  The motion court denied both motions.  We appealed. 

Result: The Appellate Division unanimously reversed the lower court’s denial of our motion for summary judgment, granting dismissal in favor of our client.  The Court agreed with our arguments on appeal that our client gradually and appropriately applied his brakes and that the trailing driver failed to keep sufficient distance between the vehicles.  

New York State Supreme Court, Appellate Division, Second Department
Hodzic v. M. Cary, Inc., et al., 2022 NY Slip Op 01149 (2d Dept. 2022)
Premises Liability
Facts: Plaintiff, a bank manager, tripped and fell on an elevated "lip" between rooms while working at the bank.  The area had recently undergone renovation performed by Co-Defendant general contractor M. Cary, Inc.  Defendant Dimensional Drywall and Co-Defendant Quality Craft Marble Tile were subcontractors retained in connection with this work.  The "lip" was created due to a misleveling between a room in which renovation work had been performed and an adjacent printer room which was not part of such work.  After the liability portion of the trial, Defendants moved for a directed verdict pursuant to CPLR 4401, arguing that no liability runs from a contractor to a third party not in privity.  Defendants further argued that the "lip" claimed to be a defect was present in the plans and schematics provided by the bank, and that the Defendants did not launch a force or instrument of harm or displace the bank’s duty of care to maintain its premises.  The Supreme Court granted the motions for a directed verdict against each Defendant.  Plaintiff appealed. 
Result: The Appellate Division affirmed the granting of the directed verdict motions.  The Court agreed that the Defendants did not launch an instrument of harm, and that their contract was not sufficiently comprehensive to completely displace the bank's responsibility as landowner to maintain its premises, nor was Plaintiff a third party beneficiary thereof.  The Court also recognized the precedent upon which Defendants relied that a contractor following a plan which includes a defective condition did not establish liability, absent evidence that the defect was so obvious that a builder of reasonable prudence would have found it to be dangerous. 

New York State Supreme Court, Appellate Division, Second Department
Rosner v. Srulovic, 2022 NY Slip Op 00449 (2d Dept 2022)
Motor Vehicle Accident 
Facts: Infant Plaintiff was injured when she was struck while in the roadway by a vehicle operated by the Defendant.  Undisputed testimony indicated that the child "darted out" from between parked cars in the middle of a block, that Defendant driver was driving under the speed limit, and that he had only a second or two to react before the impact.  The Supreme Court granted a motion by Defendant based upon the emergency doctrine, which argued that Defendant driver was faced with an unforeseen and sudden circumstance beyond his control and that he acted reasonably faced with such circumstances.  Plaintiff appealed.
Result: The Appellate Division affirmed, holding that summary judgment was correctly granted to Defendant driver based upon the emergency doctrine, as the evidence indicated that infant Plaintiff's emergence on to the roadway was sudden and unexpected, and that Defendant driver's actions were reasonable under the circumstances.

New York State Supreme Court, Appellate Division, First Department
Green v. Incorporated Village of Great Neck Plaza, 190 A.D.3d. 702 (2d Dept 2021)
Premises Liability; Municipal 
Facts: Plaintiff was injured when he allegedly tripped and fell on a "lip" between a sidewalk ramp and the adjoining asphalt pavement.  The Supreme Court granted a motion by the Village of Great Neck Plaza, the MTA, and the LIRR  for summary judgment based upon the "prior written notice" rule, requiring plaintiffs to establish that the municipal entity had prior written notice of a specific condition in order for liability to attach.  Plaintiff appealed.
Result: The Appellate Division affirmed, holding that Plaintiff had failed to establish the existence of prior written notice against the municipal entities.  Furthermore, the Court held as to Plaintiff's argument that the condition had been created due to negligent design and construction of the area, that the "lip" was not a hazard created as an immediate result of any conduct by these entities.   

New York State Supreme Court, Appellate Division, First Department
Gumbs v. MTA Bus Company, 193 A.D.3d. 617 (1st Dept 2021)
Motor Vehicle Accident
Facts: Plaintiff was injured while exiting an MTA bus when the bus operator allegedly closed the door before she had safely stepped out. The Supreme Court denied MTA's motion to change venue. MTA appealed.
Result: The Appellate Division unanimously reversed, holding that the motion to change venue should have granted as the principal place of business of the only remaining defendant, MTA Bus Company, was New York County.   

New York State Supreme Court, Appellate Division, First Department
Paulino v. Braun, 195 A.D.3d. 491 (1st Dept 2021)
Premises Liability
Facts: Plaintiff was injured when he slipped and fell while he was a passenger on a sightseeing boat. The Supreme Court granted summary judgment dismissing the Complaint. Plaintiff appealed.
Result: The Appellate Division affirmed unanimously, pursuant to the doctrine of primary assumption of risk. Specifically, the Court recognized that the boat was rising up and down as a result of passing waves and that Plaintiff's injuries occurred as a result of commonly appreciated risks inherent in the recreational activity in which he was engaged.    

Second Circuit Court of Appeals
Johnson El v. Chambers, et al, 20-3377 (2nd Cir. 2021)
Civil Rights; Municipal
Facts: Plaintiff claimed a violations of his Fourth, Fifth, and Second Amendment rights arising from a traffic stop and subsequent revocation of his pistol permit.  The Southern District Court of New York granted summary judgment to the municipal entities. Plaintiff appealed.
Result: The Second Circuit affirmed, finding that the traffic stop was reasonable, and that Plaintiff's due process and Second Amendment rights were not violated, as his pistol permit was revoked for a clear and legitimate reason under the law.     
 

New York State Supreme Court, Appellate Division, First Department
Mendriski v. New York City Housing Authority, 189 A.D.3d. 410 (1st Dept 2020)
Labor Law
Facts: Plaintiff was working on a ladder when his supervisor pulled on an extension cord, causing the ladder to fall.  At the time, Plaintiff was working in a NYCHA building and employed by Rockmore, a General Contractor.  URS was retained by NYCHA as a construction manager at the property.  The Supreme Court granted URS' motion for summary judgment as to Plaintiff's Labor Law 200 cause of action.
Result: The Appellate Division affirmed, holding that the construction manager's general supervisory authority over the site was insufficient to establish liability under the statute, as the construction manager did not control the means and methods of the work being performed.   

New York State Supreme Court, Appellate Division, First Department
Stevens & Thompson Paper Company, Inc. v. Middle Falls Fire Department, Inc., et al, 188 A.D.3d. 1504 (3rd Dept 2020)
Premises Liability; Municipal 
Facts: Plaintiff, a hydroelectric company, commenced an action against the Village of Greenwich, the Middle Falls Fire Department, and an adjoining landowner for negligence, nuisance, and trespass arising from damage to Plaintiff's property sustained during efforts to extinguish a fire at the adjoining property.  Each of the Defendants moved for summary judgment, and such motions were granted by The Supreme Court.  Plaintiff appealed.
Result: The Appellate Division affirmed, holding, in relevant part, that the Village and fire department were not subject to liability for negligence pursuant to the doctrine of governmental immunity.  The Court further found that there was no intent to interfere with Plaintiff's property and that the firefighters engaged in their duties did not commit any trespassory actions.   

New York State Supreme Court, Appellate Division, First Department
Kaffash v. Village of Great Neck Estates, 190 A.D.3d. 709 (2d Dept 2020)
Premises Liability; Municipal
Facts: Plaintiff was injured when he was allegedly struck by a Village snowplow operator as he was moving in reverse. The Supreme Court denied the municipal defendant's motion for summary judgment. Defendant appealed. 
Result: The Appellate Division affirmed reversed and Plaintiff's complaint was dismissed.  The Court found that the snowplow operator did not act with reckless disregard for the safety of others, as he was proceeding slowly, using his lights and mirrors, and reversing while using the vehicle's beeping alert. 

New York State Supreme Court, Appellate Division, First Department
Mikenshina v. Tishman Construction Corporation, 187 A.D.3d. 546 (1st Dept 2020)
Labor Law; Premises Liability
Facts: Plaintiff was injured when her scaffolding lanyard was allegedly caught on a handrail of a scaffold, causing her to fall and sustain injuries. The Supreme Court dismissed Plaintiff’s Labor Law § 200 and common law negligence claims against Defendants. Plaintiff appealed.
Result: The Appellate Division affirmed, holding that Defendants established through photographic and testimonial evidence that the scaffolding handrail was open and obvious and not inherently dangerous. Defendants also established, through an expert affidavit, that the handrail, which was a prefabricated component, was consistent with custom and practice in the industry and was not a hazardous projection in violation of OSHA regulations

New York State Supreme Court, Appellate Division, Second Department
Race v. Village of Brewster, 185 A.D.3d. 1071 (2d Dept 2020)
Premises Liability
Facts: Plaintiff allegedly slipped and fell on ice that had accumulated on a sidewalk in the Village of Brewster. The Village moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against it, arguing that it did not have prior written notice of the alleged defect and did not affirmatively create same. The plaintiffs opposed, relying on an expert’s affidavit on the issue of creation. The Supreme Court granted the Village’s motion.
Result: The Appellate Division affirmed, holding that Village demonstrated that it lacked prior written notice of the allegedly defective sidewalk condition and that its repaving of the subject sidewalk about a year prior to the occurrence did not create the allegedly defective condition through an affirmative act of negligence that immediately resulted in the existence of a dangerous condition.

New York State Supreme Court, Appellate Division, Second Department
Cames v. Craig, 181 A.D.3d. 851 (2d Dept 2020)
Motor Vehicle Accident
Facts: Plaintiff, a passenger in a car operated by Defendant Craig, commenced a personal injury action following a motor vehicle accident. The Supreme Court denied Craig’s renewed motion to dismiss the complaint based upon Plaintiff’s acceptance of $500 to settle the case and her execution of the release.
Result: The Appellate Division reversed, holding that the express terms of the release barred Plaintiff from pursuing the action against Craig. The Second Department concluded that Plaintiff failed to raise a triable question of fact as to whether there was fraud, mutual mistake, or some other ground to set aside the release.

New York State Supreme Court, Appellate Division, Second Department
Salitan v. Town of Yorktown, 178 A.D.3d. 979 (2d Dept 2019)
Property Damage
Facts: Plaintiff commenced an action against Town of Yorktown alleging continuing water damage to his property.  The Supreme Court granted the Town’s motion for summary judgment.  Plaintiff appealed.
Result: The Appellate Division affirmed, holding that the Town established, prima facie, that it was entitled to governmental immunity for the allegations that it negligently designed and permitted the installation of the storm drainage system.  The Second Department also dismissed Plaintiff’s claims of negligent maintenance of the storm drainage system, the culverts, and the roadway, on the basis that the Town did not receive prior written notice of any maintenance issues regarding those structures, as required by the Code of the Town of Yorktown § 250–23.

New York State Supreme Court, Appellate Division, First Department
Chambers v. Tilden Towers Housing Co., 177 A.D.3d 413 (1st Dept 2019)
Premises Liability
Facts: Tenant brought a personal injury action against the apartment building owners after an elevator suddenly dropped five floors causing her injuries. The Supreme Court granted the owners' motion for summary judgment. Tenant appealed.
Result: The Appellate Division affirmed, holding that the owners showed that they had no notice of a problem with the elevators in the building suddenly dropping.  In opposition, plaintiff failed to raise a triable issue of fact. Her reliance on the doctrine of res ipsa loquitur to impute notice to owner defendants was deemed misplaced. Exclusive control of the instrumentality bringing about the injury, which is necessary for the doctrine to apply, was absent where the owner has ceded all responsibility for maintenance and repair to its elevator service contractor. 

New York State Supreme Court, Appellate Division, Second Department
Castillo v. Port Authority of New York, 159 A.D.3d 792 (2d Dept 2018)
Premises Liability
Facts: The plaintiff alleged that she was injured on a patch of ice in the employee parking lot. Pursuant to a contract, the defendant managed the parking lot, but was not responsible for snow or ice removal therein. The defendant moved for summary judgment dismissing the complaint and all cross-claims, but the motion court denied the motion.
Result: The Appellate Division modified, holding that the defendant did not owe the plaintiff a duty of care because it did not create or exacerbate the condition, and because its contract was not comprehensive and exclusive so as to displace the owner’s duty to keep the premises in a safe condition. The Court also dismissed cross-claims for contribution and common law indemnification. As to contribution, it held that the defendant did not owe it a duty of care outside of its contractual obligations and did not owed the plaintiff a duty of care. As to common law indemnification, it held that the defendant was neither actively at fault nor could be found liable by operation of law.

New York State Supreme Court, Appellate Division, Second Department
Ustelimova v. Madar, 159 A.D.3d 984 (2d Dept 2018)
Motor Vehicle Accident
Facts: The plaintiff claimed that she was struck by the defendant’s vehicle while crossing the street at the intersection. The plaintiff moved for summary judgment on the issue of liability, the motion court denied the motion with leave to renew.
Result: The Appellate Division affirmed, holding that the defendant raised a triable question of fact as to how the accident occurred, whether he was negligent, and whether the plaintiff was comparatively at fault by stating in his affidavit that the plaintiff was still on he sidewalk when he began the turn and had almost completed it when the plaintiff’s cart came into contact with the rear passenger side of his vehicle.  

New York State Supreme Court, Appellate Division, Second Department
Dunajski v. Kirillov, 148 A.D.3d 991 (2d Dept 2017)
Motor vehicle accident
Facts: The plaintiff-pedestrian moved for summary judgment on the issue of liability, arguing that she was crossing the intersection in a crosswalk with a traffic light in her favor when she was struck by the defendants’ vehicle. The motion court granted the motion.
Result: The Appellate Division reversed, holding that there was an issue of fact as to the plaintiff’s comparative fault, which was raised through the photographs depicting damage just above the front passenger tire of the defendants’ vehicle and through the driver’s assertions that the plaintiff walked or ran into the side of his car after he had already completed his right-hand turn.

New York State Supreme Court, Appellate Division, First Department
Lopez v. Archdary, 155 AD3d 553 (1st Dept 2017)
Motor Vehicle Accident
Facts: The plaintiff sought to recover for injuries he sustained while a passenger on a motorcycle owned by the defendant. After the accident, the unidentified operator fled the scene. The defendant-owner moved for summary judgment and the motion court denied the motion.
Result: The Appellate Division reversed, holding that the owner rebutted the presumption that the unidentified individual was operating the motorcycle with his permission through the affidavit and documentary evidence showing that the motorcycle had been stolen before the accident, that the owner made calls to 311, 911, and his insured when he discovery the theft, and that he had both sets of keys to the ignition, as well as the license plate in his possession.

New York State Supreme Court, Appellate Division, Second Department
De Souza v. Empire Transit Mix, Inc., 155 A.D.3d 605 (2d Dept 2017)
Contractual Indemnification
Facts: The plaintiff commenced a personal injury action as a result of a construction site accident. The defendant-owner moved for summary judgment on its contractual indemnification cross-claim against the construction manager. The motion court denied the motion.
Result: The Appellate Division reversed, holding that the owner established its freedom from fault, that the plaintiff’s alleged injuries resulted from the performance of the work contemplated by the agreement, and that the manager’s responsibility under that agreement encompassed the plaintiff’s work.

New York State Supreme Court, Appellate Division, Second Department
Johnson v. City of New York, 148 AD3d 1126 (2d Dept. 2017)
Res Judicata, Failure to State a Cause of Action
Facts: The plaintiff had previously commenced an action sounding in assault and battery, which was dismissed as untimely. The plaintiff then commenced another action, alleging that the arrest was negligent, careless, and reckless. The defendants moved to dismiss the second complaint. The Supreme Court granted the motion.
Result: The Appellate Division affirmed, holding that the purported negligence cause of action arose from the same operative facts as the dismissed intentional tort claims, and was thus barred by the doctrine of res judicata. The Court also observed that there is no cause of action for negligent assault in New York.

New York State Supreme Court, Appellate Division, Second Department
Croci v. Town of Haverstraw, 146 AD3d 748 (2d Dept 2017)
Municipal Liability
Facts: The plaintiff commenced an employment discrimination lawsuit, alleging that she was sexually harassed by a coworker while employed by the defendant-town. The facts revealed that after the plaintiff complained to her supervisor about the alleged harassment, the town investigated and it was determined as a result of a lack of corroboration and reliability that the plaintiff was not the victim of sexual harassment. After the plaintiff brought the civil lawsuit against the town, the town arranged for a second investigation, which resulted in disciplinary charges against the coworker, his transfer, and prohibition of any contact between him and the plaintiff. The town moved for summary judgment and the Supreme Court granted the motion.
Result: The Appellate Division affirmed, holding that the town established its entitlement to summary judgment by showing that it did not encourage, condone, or approve the sexual harassment, and that once it was aware of the complaints, it took prompt action to investigate and remedy the situation. 

New York State Supreme Court, Appellate Division, First Department
Pripkhan v. Karmon, 140 AD3d 634 (1st Dept 2016)
Motor vehicle accident
Facts: The plaintiff alleged that he was injured when he was struck by a vehicle driven by the defendant. The Supreme Court granted the defendant’s motion for summary judgment, dismissing the complaint against the operator.
Result: The Appellate Division affirmed, holding that the driver established that he was driving his vehicle in a non-negligent manner when the severely intoxicated plaintiff suddenly appeared in his lane of traffic. The Court further held that the emergency situation of the plaintiff’s sudden appearance left the operator without time to sound his horn, apply the brakes, or swerv to avoid the accident.

New York State Supreme Court, Appellate Division, First Department
Cross v. Supersonic Motor Messenger Courier, Inc., 140 AD3d 503 (1st Dept 2016)
Vicarious Liability
Facts: The plaintiff alleged that he suffered injuries while unloading supplies from a truck operated by a co-defendant. Defendant-trucking company moved for summary judgment on the grounds that it was not the employer of the defendant-driver so as to be vicariously liable for his conduct. The Supreme Court denied the motion.
Result: The Appellate Division affirmed, in part, holding that there were questions of fact as to whether the driver was an independent contractor or an employee of the trucking company. Although the operator worked pursuant to a contract, he was required to maintain insurance in the amount dictated by the trucking company, his delivery process was controlled by the company’s dispatcher, he used the trucking company’s forms and was required to wear a company shirt, and the truck bore the company’s logo.

New York State Supreme Court, Appellate Division, Second Department
Masciello v. Incorporated Village of Lloyd Harbor, 140 A.D.3d 834 (2d Dept 2016)
Municipal Liability
Facts: The plaintiff alleged false arrest and malicious prosecution. The defendants moved to dismissed the complaint for failure to state a cause of action and the plaintiff cross-moved for summary judgment on the issue of liability. The Supreme Court searched the record and awarded summary judgment to the defendants.
Result: The Appellate Division affirmed, holding that the record established that there was probable cause to charge the plaintiff with the offense of harassment in the second degree based on the sworn statements of his wife, which served as a complete defense to both claims.

New York State Supreme Court, Appellate Division, Second Department
Gucciardi v. New Chopsticks House, 133 AD3d 633 (2d Dept 2015)
Premises Liability
Facts: The plaintiff commenced this negligence action after slipping and falling on ice that froze in a parking lot. The plaintiff alleged the defendant purposely dumped water in the parking lot as part of its cleaning measures, which in turn, froze and created an ice patch. During the trial, the judge precluded plaintiff from offering into evidence post-accident surveillance videos of the defendant. The jury subsequently found in favor of the defendant.
Result: The appellate court held that the trial judge properly precluded the post-accident surveillance videos because they were taken after the plaintiff’s accident and were too sparse to constitute habit evidence.

New York State Supreme Court, Appellate Division, Second Department
Niedra v. Mt. Sinai Hosp., 129 AD3d 801 (2d Dept 2015)
Medical Malpractice
Facts: The plaintiff commenced this medical malpractice and wrongful death action alleging that the defendant failed to interpret the decedent’s echocardiograms. The defendant had reviewed to echocardiograms and noted that the decedent had severe aortic stenosis and aortic insufficiency. The defendant discussed these findings with the decedent’s cardiologist. Upon the defendant’s motion for summary judgment, the trial court dismissed the action insofar as asserted against the defendant.
Result: The appellate court upheld the dismissal finding that the plaintiff’s expert failed to show how the defendant departed from the applicable standard of care and that the expert failed to differentiate the alleged acts of negligence of the defendant and the other co-defendants. 

New York State Supreme Court, Appellate Division, Second Department
Batista v. MTA Bus Co., 129 AD3d 1003 (2d Dept 2015)
Storm in Progress
Facts: The plaintiff was a passenger riding a bus operated by the defendant during a storm. There was snow falling when the plaintiff embarked, and it continued to snow through the duration of the bus ride. As plaintiff attempted to disembark, he slipped on ice and water on the steps of the bus. The trial court denied the defendant’s motion for summary judgment.
Result: The appellate court reversed and dismissed the complaint. The appellate court held that the defendant did not breach any duty to the plaintiff because it would have been unreasonable to expect the driver to continually clean the steps during a storm.

New York State Supreme Court, Appellate Division, Second Department
Sharp v. Incorporated Village of Farmingdale, 129 AD3d 821 (2d Dept 2015)
Municipal Liability
Facts: The plaintiff commenced an action against the municipal defendant seeking money damages for increased costs stemming from the municipality’s alleged delay in issuing a building permit. The municipal defendant, relying on the immunity afforded to municipalities for discretionary determinations, moved to dismiss the complaint based upon the plaintiff’s failure to state a cause of action. The lower court granted the motion.
Result: The appellate court upheld the dismissal of the complaint.  

New York State Supreme Court, Appellate Division, Second Department
Montalto v. Colgate Scaffolding Corp., 128 AD3d 916 (2d Dept. 2015)
Civil Practice
Facts: The plaintiff originally commenced this personal injury action in Bronx County. The defendants subsequently moved to change venue to Suffolk County. While the venue motion was granted, the plaintiff never served a notice of appeal from the order transferring venue. After the file was transferred, the plaintiff filed a unilateral notice of discontinuance in Suffolk County and recommenced the action in Kings County. The defendants moved to vacate the notice of discontinuance. The trial court denied the motion.
Result: The appellate court reversed and held that the plaintiff could not unilaterally discontinue the Suffolk County action. It explained that the notice of discontinuance was untimely and the facts supported a finding that the plaintiff was attempting the circumvent the order transferring venue to Suffolk County.

New York State Supreme Court, Appellate Division, First Department
Sicilia v. City of New York, 127 AD3d 628 (1st Dept 2015)
Indemnification
Facts: The plaintiff, while working on top of an elevator, tripped and fell on a drop light that had become disconnected. The contractor sought contractual indemnification from a subcontractor, represented by MDAFP, and also sought to add a cause of action for breach of contract for failure to procure insurance. The trial court denied the contractor’s motion.
Result: The appellate court upheld the denial of the contractor’s motion finding an issue of fact as to whether the contractor was responsible for providing lighting in elevator shaftway. The appellate court also held that the proposed cause of action for breach of contract patently lacked merit.

New York State Supreme Court, Appellate Division, Second Department
Riccio v. Kid Fit, Inc., 126 A.D.3d 873 (2d Dept. 2015)
General Liability
Facts: The plaintiff was injured at the defendant’s facility after carrying a chafing tray with a lit sterno canister. As she walked to dispose the tray, her clothes caught on fire from the lit sterno, thereby causing burn injuries. The facility moved for summary judgment arguing that the plaintiff’s own actions in carrying the tray close to her body were the sole proximate cause of her injuries.
Result: The appellate court upheld the dismissal of the complaint.   

New York State Supreme Court, Appellate Division, Second Department
Matter of Progressive Northern Ins. Co. v. Scott, 123 A.D.3d 932 (2d Dept. 2014)
Uninsured Motorist Claim
Facts: A motorist sought uninsured motorist benefits for alleged injuries sustained in a hit-and-run accident. The insurance company moved to permanently stay the arbitration of the claim because there was no physical contact between the motorist’s motorcycle and the hit-and-run vehicle. After a hearing, the referee determined that there was insufficient evidence to show physical contact, and therefore, the arbitration was permanently stayed.
Result: The appellate court upheld the hearing referee’s finding of no physical contact.

New York State Supreme Court, Appellate Division, Second Department
Javid v. Sclafmore Constr., 117 AD3d 908 (2d Dept. 2014)
Premises Liability
Facts: Plaintiff allegedly slipped and fell on a patch of ice on a parking lot. The defendant had a contract with the owner of the premises for snow removal. Plaintiff sued the snow removal company for alleged personal injuries stemming from the slip and fall. The snow removal company moved for summary judgment arguing that the plaintiff was not a third-party beneficiary to the contract between the snow removal company and the parking lot owner, and therefore, the snow removal company owed no duty to the plaintiff.
Result: The appellate court affirmed the order granting the summary judgment motion of the snow removal company.

New York State Supreme Court, Appellate Division, First Department
Edelman v. O This Way Up, Inc., 117 AD3d 640 (1st Dept. 2014)
General Liability
Facts: Plaintiff commenced this action after allegedly sustaining injuries when a medicine cabinet in a bathroom fell and hit her. The defendant moved for summary judgment and argued that it did not install the medicine cabinet.
Result: The appellate court reversed the denial of the defendant’s summary judgment motion and dismissed the complaint.

New York State Supreme Court, Appellate Division, First Department
Park v. Kovachevich, 116 AD3d 182 (1st Dept. 2014)
Medical Malpractice
Facts: The plaintiff commenced this action on behalf of her deceased husband, who committed suicide following treatment with the defendants. The decedent was prescribed medication from his family physician to alleviate his anxiety. Following involuntary treatment at a medical facility, the decedent denied suicidal ideation. The decedent nonetheless committed suicide over 10 days after being discharged.
Result: The lower court denied the defendant’s summary judgment motion. The appellate court, however, reversed and dismissed the complaint.

New York State Supreme Court, Appellate Division, Second Department
Sola v. Village of Great Neck Plaza, 115 AD3d 661 (2d Dept 2014)
Municipal Liability
Facts: The plaintiff allegedly suffered personal injuries after tripping and falling on a median as a result of height differential between a concrete patch and the deteriorating asphalt by the patch. The defendant moved for summary judgment on the ground that it did not receive any prior written notice of the alleged defect as required by the written notice statutes.
Result: The appellate court upheld the dismissal of the complaint.

New York State Supreme Court, Appellate Division, Second Department
Kong v. MTA Bus Co., 112 AD3d 581 (2d Dept. 2014)
Motor Vehicle Accident
Facts: Plaintiff sued the MTA after allegedly sustaining injuries while riding on a bus that jerked forward to avoid a collision with a car that suddenly cut in front of the bus. The MTA argued that under the emergency doctrine, it responded to an unexpected emergency situation and that the driver’s actions were reasonable under the circumstances.
Result: The appellate court upheld the dismissal of the complaint finding that the MTA was entitled to dismissal of the complaint under the emergency doctrine.

New York State Supreme Court, Appellate Division, Second Department
Fraumeni v. Oakwood Dental Arts, LLC, 108 AD3d 495 (2d Dept. 2013)
Medical Malpractice
Facts: Plaintiff commenced the action alleging that the defendant committed malpractice in connection with root canal therapy. Over three years, however, passed between the plaintiff’s last visit with the defendant and the commencement of the action. The defendant moved to dismiss the complaint as barred by the applicable statute of limitations.
Result: The appellate court upheld the dismissal of the complaint as time-barred and found that the telephone conversation between the plaintiff and defendant, which took place less than two years prior to the commencement of the action, did not constitute continuous treatment to toll the statute of limitations.

New York State Supreme Court, Appellate Division, First Department
Phillips v. Atlantic-Hudson, Inc., 105 AD3d 639 (1st Dept. 2013)
Premises Liability
Facts: The plaintiff commenced the action claiming that the defendant was negligent by failing to clear the sidewalk of ice and snow. The plaintiff alleged personal injuries after slipping and falling as he tried to board a bus. The defendant moved for summary judgment arguing that it was not responsible to maintain the area where the plaintiff fell.
Result: The appellate court affirmed the order granting the defendant’s summary judgment motion.

New York State Supreme Court, Appellate Division, First Department
Frye v. Montefiore Med. Ctr., 100 AD3d 28 (1st Dept 2012)
Medical Malpractice
Facts: Plaintiff commenced this obstetrical medical malpractice action arising from the defendants’ alleged failure to treat her diabetes following the discharge from the medical facility, to diagnose the encephalocele during her pregnancy, and in not performing a timely cesarean section. The defendants originally moved for summary judgment, which was denied and upheld on appeal. The defendants subsequently moved to preclude the plaintiff-expert’s theories as unreliable and not generally accepted in the medical community. This subsequent motion was granted, and the complaint was dismissed.
Result: The appellate court found that the denial of a summary judgment motion does not bar a subsequent motion in limine to preclude expert testimony as unreliable. The appellate court affirmed the order dismissing the complaint.

New York State Supreme Court, Appellate Division, Second Department
Fils v. Stanford, 99 AD3d 756 (2d Dept. 2012)
Medical Malpractice
Facts: Plaintiff commenced this medical malpractice action alleging that the defendant erred by performing a surgical biopsy as opposed to a stereotactic biopsy. After trial, the jury found in favor of the defendant.
Result: The appellate court upheld the defense verdict.

New York State Supreme Court, Appellate Division, First Department
Casale v. City of New York, 95 AD3d 744 (1st Dept 2012)
Municipal Liability
Facts: Plaintiff commenced this action for alleged personal injuries against the City of New York, among others. The plaintiff moved for leave to serve a late notice of claim, which the trial court granted.
Result: The appellate court reversed and denied plaintiff’s motion seeking leave to serve a late notice of claim. The appellate court found that plaintiff failed to offer a reasonable excuse for its belated actions and that the City of New York did not have knowledge of the facts constituting the claim.

Court of Appeals of New York
Groninger v. Village of Mamaroneck, 17 NY3d 125 (2011)
Municipal Liability
Facts: Plaintiff sued the Village of Mamaroneck after she slipped and fell on ice in a parking lot owned and maintained by the Village. The defense argued that it never receiver prior written notice nor did it create the condition. The Court of Appeals held that the Village was entitled to notice and an opportunity to correct the defect.
Result: The Court of Appeals affirmed the Appellate Division which granted defendant’s motion for summary judgment dismissing the complaint.

New York State Supreme Court, Appellate Division, Second Department
Cole v. Johnson, 90 AD3d 441 (2d Dept 2011)
Medical Malpractice
Facts: The plaintiff sued the defendant-dentist alleging that the dentist departed from the standard of care by placing cavit, a putty-like substance, over her tooth until a root canal could be performed. After a trial, the jury found in favor of the dentist.
Result: The appellate court upheld the defense verdict.

New York State Supreme Court, Appellate Division, Second Department
Shor v. Touch-N-Go Farms, Inc., 933 N.Y.S.2d 686 (2d Dept 2011)
Sexual Assault
Facts: Plaintiff alleged that she was sexually assaulted on the premises of the defendant Touch-N-Go Farms, Inc. while taking equestrian lessons from defendant’s employee. Plaintiff alleged that Touch-N-Go was negligent in hiring, retaining, supervising and investigating their employee. The Court found that the defendant did not have reason to know of their employee’s alleged propensity for the conduct which caused the injury.
Result: The appellate court dismissed the complaint and granted summary judgment for the appellants. 

New York State Supreme Court, Appellate Division, Second Department
Belt v. Girgis, 82 AD3d 1028 (2nd Dept. 2011)
Motor Vehicle Accident
Facts: The plaintiff was hit by a motor vehicle and sustained injuries. The defendant, a food products salesman, stopped at a client supermarket and left the keys in his motor vehicle. Defendant’s passenger, who was intoxicated, waited until defendant left and drove away, ultimately mounting a sidewalk and striking plaintiff. A witness reported that the passenger continued to apply the vehicle’s accelerator pedal after the vehicle had stopped and pinned plaintiff. The trial court determined that Belt’s damages totaled $37,492, 000, including $5 million for past pain and suffering, $10 million for future pain and suffering, and $10 million for punitive damages. Defendant appealed.
Result: The appellate court found that the awards for past pain and suffering, future pain and suffering, and future medical expenses were not warranted under the circumstances of the case. It also found that the award of past medical expenses was not supported by the record. In addition, the plaintiff was not entitled to punitive damages because she neither demanded them in her pleadings nor attempted to conform the pleading to the proof.

United States Court of Appeals for the Second Circuit
Riley v. Battery Place Car Park, 210 Fed.Appx. 76 (2nd Cir. 2006).
Slip and Fall
In a suit arising from a slip and fall on a ramp in defendant’s parking garage, the court affirmed an order granting summary judgment in favor of defendants holding that plaintiffs failed to raise a triable issue of fact as to whether defendants had actual or constructive notice of the offending oil patch.

New York State Supreme Court, Appellate Division, First Department
Maria T. v. New York Holding Co. Associates, 52 A.D.3d 356 (1st Dept. 2008).
Negligence- Foreseeability
Plaintiff, who was sexually assaulted in her apartment by a man who followed her into her building, sued the building owner and security company for allegedly failing to provide adequate security. In reversing the order appealed from, the appellate court granted summary judgment in favor of defendants since defendants established that the sexual assault was not reasonably predictable, which the court held was needed to establish foreseeability.

New York State Supreme Court, Appellate Division, First Department
Castillo v. Aubuchon Hardware, 49 A.D.3d 395 (1st Dept.2008).
Products Liability- Defectively Designed Product
Plaintiff claimed to have suffered injuries when she fell from a step ladder she was using in her home. In affirming summary judgment in favor of defendants, the appellate court found that Plaintiff had used the step stool, the product whose design was in question, for several years preceding her fall and was unable to identify anything defective or dangerous about the stool. Furthermore, an expert who examined and performed tests on the stool concluded that damage to the stool was the result and not the cause of Plaintiff’s fall.

New York State Supreme Court, Appellate Division, Second Department
Government Employees Insurance Company v. Young, 39 A.D.3d 751 (2nd Dept. 2007).
Insurance- Automobile Insurance- Underinsured Motorist Endorsement
The appellate court affirmed the granting of GEICO’s petition to permanently stay arbitration of a claim for underinsured motorist benefits. Appellants, who claimed to have suffered injuries when the vehicle they were traveling in was struck in the rear, settled with the insurance company who insured the vehicle that struck their vehicle in the rear for a total sum of $50,000, representing the limits for bodily injury liability under the tortfeasor’s policy. Appellants then made a demand for arbitration under the endorsement for supplementary uninsured/underinsured motorist benefits of a policy issued by GEICO to the owner of the vehicle in which the Appellants were traveling. The appellate court found that the SUM endorsement of the GEICO policy was unambiguous and held that GEICO properly offset the $50,000 Appellants from the tortfeasor’s insurer and that the tortfeasor was not underinsured.

New York State Supreme Court, Appellate Division, Second Department
Guachichulca v. Laszlo N. Tauber & Associates, 37 A.D.3d 760 (2nd Dept. 2007).
Insurance- Exclusions
The appellate court reversed the order appealed from and granted insurance company’s motion for summary judgment dismissing the Complaint. Insurer issued a general liability insurance policy containing an exclusion for bodily injury to an employee of insured if the injury occurred during the course of employment. Insured’s employee was injured during the course of employment and sued the general contractor of the project. The general contractor in turn brought an action against insurer seeking indemnification. The court held that exclusions in coverage were unambiguous and that the plain meaning of the exclusion was to relieve the insurer of liability when an insured was sued or indemnification was requested for damages arising out of bodily injury to an employee sustained in the course of employment.

New York State Supreme Court, Appellate Division, Second Department
Pazmino v Universal Distributors, LLC., 45 A.D.3d 554 (2nd Dept. 2007).
Motor Vehicle, Insurance- No Fault Automobile Insurance, Serious Injury
The appellate court reversed order appealed from and granted defendant’s motion for summary judgment dismissing the complaint on the ground that Plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). Court held that defendants met their prima facie burden and the plaintiffs could only provide speculative conclusions of an injury since plaintiff had been in "several" other accidents since the doctor last examined him.

New York State Supreme Court, Appellate Division, Second Department
Groom v Village of Sea Cliff, 50 A.D.3d 1094 (2nd Dept.2008).
Negligence- Duty of Landowner
Municipal defendants were not liable for injuries sustained by a child who climbed onto a moss-covered jetty at the beach and fell. The appellate court held that the slippery condition of the jetty was open and obvious and inherent or incidental to the nature of the property and could be reasonably anticipated by those using it.