In Parker v. Dunn, the Supreme Court, Wayne County recently granted summary judgment for defendant Hazlitt’s 1852 Vineyards dismissing plaintiffs’ claims arising from a fatal motorcycle accident. The facts: The action arises from a motor vehicle accident which occurred on May 31, 2009, on State Route 414 in the Town of Hector, New York at approximately…
Read More Court Rejects Action Under “Dram Shop Act” Against VineyardIn Malouf v. Equinox Holdings, Inc., the Appellate Division, First Department affirmed the lower court’s granting of (1) plaintiff’s motion “for spoliation sanctions to the extent of precluding defendant from arguing at trial that the treadmill plaintiff was using at the time of her accident was operating properly or was free from defects”, and (2) third-party defendant Life…
Read More Failure to Preserve Allegedly Defective Treadmill Results in Spoliation Sanctions Against EquinoxA recent Appellate Division, Second Department, decision, Williams v. Spencer-Hall, illustrates the application of the general rule that: When the driver of an automobile approaches another automobile from the rear, he or she is bound to maintain a reasonably safe rate of speed and control over his or her vehicle, and to exercise reasonable care…
Read More Summary Judgment Should Have Been Granted For Rear-Ended PlaintiffPlaintiff was injured when she slipped on an accumulation of water and fell in the bathroom of her apartment in defendants’ building. The water that caused plaintiff’s fall came from a leak in the bathroom ceiling. The trial court denied defendants’ motion for summary judgment, and the Appellate Division, First Department, affirmed. The case is Hernandez…
Read More Apartment Occupant Can Continue Case Arising Out of Slip-and-Fall On Water From Ceiling LeakIn Seleznyov v New York City Tr. Auth., the Appellate Division, First Department reversed summary judgment for, and reinstated plaintiff’s complaint against, defendants New York City Transit Authority and the City of New York. It held: NYCTA failed to establish entitlement to judgment as a matter of law, in this action where plaintiff was injured…
Read More Questions Regarding Adequacy and Reasonableness of Subway Cleaning Schedule Result in Reinstatement of Slip-and-Fall CaseIn Tompa v. 767 Fifth Partners, the Appellate Division, First Department affirmed the dismissal of plaintiff’s slip-and-fall case. Plaintiff alleged that she slipped and fell on a thin sheet of ice on the plaza in front of defendant’s building. Defendant presented evidence that it neither created nor had notice of the icy condition of the…
Read More Court Dismisses Slip/Fall Case Based on Fluid Dynamics Theory Requiring Expert TestimonyIn a recent case, Harrison v. New York City Tr. Auth., the First Department clarified how juries must be instructed on the issue of constructive notice in a slip-and-fall case. There, the court reversed a judgment entered on a $500,000 jury verdict for plaintiff and ordered a new trial on liability. Plaintiff “slipped and fell on…
Read More Citing Erroneous Jury Instruction on Constructive Notice, Court Orders New Liability Trial in Subway Slip/Fall CaseIn Pulver v. City of Fulton Dept. of Public Works (App. Div. 4th Dept. Jan. 3, 2014), the court reversed the lower court’s denial of defendant’s motion for summary judgment, and dismissed plaintiff’s complaint. There, [plaintiff sued] to recover damages for injuries that she allegedly sustained when she tripped and fell in a hole in the…
Read More Defendant Wins in Trip and Fall Case, Where Plaintiff Could Not Demonstrate “Affirmative Negligence” Exception to “Prior Written Notice” RequirementIn Dove v. Manhattan Plaza Health Club, the Appellate Division, First Department dismissed plaintiff’s complaint seeking recovery for injuries after slipping on water around a health club’s indoor pool. Defendants “showed that the presence of such water was ‘necessarily incidental’ to the use of the pool.” In response, plaintiff failed to raise a triable issue…
Read More Pool Slip/Fall Case Dismissed; Water Was “Necessarily Incidental” to Use of PoolIn Dixson v Waterways at Bay Pointe Home Owners Assn., Inc., the Appellate Division, Second Department reversed the summary judgment dismissal of plaintiff’s injury claim under Labor Law § 241(6). The court held that plaintiff, who was injured while power washing buildings in preparation for painting them, was indeed engaged in a specifically enumerated activity under the…
Read More Power Washing in Preparation for Painting Was Sufficient to Support Personal Injury Action by Worker Under Labor Law § 241(6)