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Recent Appeals

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 MDAF, 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.



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