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Month: December 2013

2 lawyers reviewing medical malpractice case for NY client

Dog Bite Case: Action Against Defendant to Recover Damages Dismissed

Dog Bite Case, action against defendant’s dismissed

Decided on December 26, 2013

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

2012-07349
(Index No. 33521/09)

[*1]Emmeline Sareyani-Coffey, respondent,

v

Nancy McAleer, as Administrator of the Estate of Ann Zelda Shikora, also known as Annzelda Shikora, deceased, et al., appellants.

In an action to recover damages for personal injuries, the defendants appeal an order of the Supreme Court, Suffolk County (Cohalan, J.), dated May 29, 2012, as denied their respective motions for summary judgment dismissing the complaint. The Appellate Division reversed, and dismissed the plaintiff’s complaint.

The plaintiff sued for personal injuries as a result of being attacked by a dog the defendant was taking care of while the dog’s owner’s were on vacation.

To recover in strict liability in tort for a dog bite or attack, a plaintiff must prove that the dog had vicious propensities and that “the owner or the person in control of the dog” knew or should have known of such propensities. Here, The evidence submitted established that the “defendants were not aware, nor should they have been aware, that this dog had ever bitten anyone or exhibited any aggressive behavior” and the plaintiff, in opposition, failed to submit any evidence sufficient to raise a triable issue of fact.

The Appellate Division also found that the Supreme Court also should also dismissed the cause of action for common law negligence, since “New York does not recognize a common-law negligence cause of action to recover damages for injuries caused by a domestic animal”

medical damages law firm NYC

Building Lobby Slip and Fall Case Action Reinstated by AD

Slip and Fall case in a lobby of a building, action reinstated

Osbourne v 80-90 Maiden Lane Del, LLC (2013 NY Slip Op 08602)

Decided on December 26, 2013

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

2012-04362
(Index No. 8697/09)

[*1]Juliet Osbourne, appellant,

v

80-90 Maiden Lane Del, LLC, et al.,

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County dismissing the case. Appellate Division reversed and reinstated the complaint.

The plaintiff alleged that she fell on an accumulation of rainwater in the lobby of a building owned by the defendants. The law is that a defendant [landowner] may be held liable for an injury proximately caused by a dangerous condition created by water, snow, or ice tracked into a building if it either created the hazardous condition, or had actual or constructive notice of the condition and a reasonable time to undertake remedial action.

Here, the Appellate Division found that since the moving defendants failed to present any evidence as to when the subject area was last cleaned or inspected before the plaintiff’s fall, they failed to establish, prima facie, that they did not have constructive notice of the allegedly dangerous. Accordingly, the AD held that the Supreme Court should have denied the defendants’ motion to dismiss.

vehicle damaged in accident

Collision Trial on Damages & Plaintiff Directed Verdict was Denied

Rear end collision, directed verdict for plaintiff should have been granted

Trial on the issue of damages only is ordered.

Clarke v Phillips (2013 NY Slip Op 08585)

Decided on December 26, 2013

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
2012-08525
2013-00967
(Index No. 7516/10)

[*1]Jellicoe Clarke, appellant,

v

Derek J. Phillips, respondent.

In an action to recover damages for personal injuries, the plaintiff appeals from (1) a judgment of the Supreme Court, Dutchess County which denied the plaintiff’s request for a directed verdict at the close of the evidence at trial and which resulted in a verdict in favor of the defendant.

The AD ordered the judgment reversed, the complaint is reinstated, the plaintiff’s motion pursuant to CPLR 4401 for judgment as a matter of law is granted, and the matter is remitted to the Supreme Court, Dutchess County, for a trial on the issue of damages and for an appropriate amended judgment thereafter.

This case involves a rear-end collision between two cars. At trial, the plaintiff testified that his car was fully stopped at a red traffic light, that he remained stopped even after the light turned green to let pedestrians finish crossing the street, and that his car was then struck in the rear by the defendant’s car.

The defendant testified that, prior to the accident, his car was fully stopped behind the plaintiff’s car, and when the traffic light changed to green, the plaintiff’s car began to move forward and the defendant, in turn, moved forward. As he began to move forward, the defendant saw a group of pedestrians on the sidewalk to the right, and he turned his head to the right for a split second to make sure that no one darted out in front of him. When he brought his attention back to the road ahead of him, he saw that the plaintiff’s car had come to a stop because a pedestrian had run out in front of the plaintiff. The defendant could not stop his vehicle in time to avoid the accident.

The trial court denied the plaintiff’s motion pursuant to CPLR 4401 for judgment as a matter of law made at the close of evidence. The jury found that the defendant was negligent, but that his negligence was not a proximate cause of the accident. A judgment was entered in favor of the defendant and against the plaintiff, dismissing the complaint. Thereafter, the trial court denied the plaintiff’s subsequent motion pursuant to CPLR 4404(a) to set aside the verdict and for judgment as a matter of law on the issue of liability or, in the alternative, to set aside the verdict as contrary to the weight of the evidence and for a new trial.

A trial court’s grant of a motion for judgment as a matter of law is appropriate where the trial court finds that, upon the evidence presented, there is no rational process by which the fact trier could base a finding in favor of the nonmoving party.

A rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence with respect to the operator of the moving car and imposes a duty on that driver to rebut the inference of negligence by providing a nonnegligent explanation for the collision.

Here, the AD found that viewing the evidence in the light most favorable to the defendant, there is no rational process by which the jury could find that the defendant had a nonnegligent explanation for the accident, or that the plaintiff was, to any extent, at fault in the happening of the accident. Thus, the accident was attributable to the defendant’s own inattentiveness in taking his eyes off the road in front of him, and not to any negligence on the part of the plaintiff

Accordingly, the Supreme Court should have granted the plaintiff’s motion for judgment as a matter of law made at the close of evidence.

legal reference books

New York City Elementary School Closes Playground Citing Safety

Winter is a joyful time of year — especially for young children. Between the holidays, break from school and snow on the ground, there’s a lot to look forward to. The reality, however, is that winter weather can pose challenges and safety risks, especially in terms of potential slip-and-fall accidents.

Not long ago, school in New York’s Upper West Side made the decision to close their playground due to concerns that it might not be safe for children. The playground at this school features large cement blocks that form a slope. After a recent snowfall, it became impossible to completely clear the blocks, so there were concerns that kids could slip and fall.

Of course, children might be disappointed that they will miss out on recess time for the remainder of the winter. However, safety issues were an overriding concern.

In addition to safety issues in the winter, parents of schoolchildren have previously voiced concerns about the playground. For some time, there have been efforts to redesign the playground, which has been deemed as dangerous by some. In fact, some have attributed serious injuries to the playground’s existing design, because the blocks pose a tripping hazard without snow on the ground.

This school’s decision may serve as a reminder for property owners this winter. If there’s any indication that children might be playing on their property, it may be important to make sure that snow or ice is cleared in order to prevent slip-and-fall injuries.

At the same time, those who are injured due to a failure to maintain property for winter condition may want to be advised of their legal options. The health effects of a serious injury, such as a concussion, can be especially concerning for young people who are going through critical stages of development.

Source: DNAinfo New York, “Snow Closes ‘Dangerous’ UWS Playground to Students During Recess,” Emily Frost, Dec. 19, 2013

NYC skyline

Week-Long Gas Leak Suspected Cause of Deadly Explosion

Was week-long gas leak the cause of a fatal apartment explosion?

When people make the decision to live in a rental property, they do so with the understanding that their landlord will be responsible for many critical aspects of maintenance. As we have observed in multiple situations on this blog, failing to regularly maintain a rental property can have devastating consequences.

A report from the New York Daily News may have local renters concerned about how quickly their landlords or superintendents respond to maintenance calls. Recently, an apartment complex in Alabama exploded. As two apartment buildings toppled in the blast, several adults and children suffered injuries. First responders found that one woman died as a result of the explosion.

In total, it took about two hours for firefighters to extinguish the fires created by the explosion. Now, investigators will try to determine what caused this horrifying residential accident.

Although no official report from the investigation has been issued, residents of the apartment complex say that they smelled a natural gas odor in or near the building for about a week prior to the accident. Apparently, they had complained about the smell. If it turns out that a gas leak caused the explosion and the landlord failed to respond to residents’ concerns, then there could be very important questions about liability that deserve answers.

Those injured in this apartment blast could be dealing with severe burn injuries for many months or years to come. As a result, medical expenses could become overwhelming. Knowing this, it may be beneficial for the victims of the explosion to determine their legal options for compensation. Doing so could provide relief in a time of need.

Source: The New York Daily News, “1 dead, several hurt in explosion at Alabama apartment complex,” Joe Kemp, Dec. 17, 2013

discussing vehicle accident case and client injuries

Pregnant NY Woman Fatally Injured Falling Down Stairs

Woman slips and falls down stairs in Brooklyn

With many people in New York City living in apartments and condominiums, they are frequently exposed to common areas. A common area is a place in one’s building that is open to the public or, at the very minimum, the residents of the building. Because it is used by many people and because it is not the responsibility of anyone but the owner to properly maintain it, if someone is injured in a common area it has the possibility of leading to a premises liability lawsuit.

Although the details of a Brooklyn woman’s death remain somewhat unclear, it is possible that her fall down the stairs in her home could lead to a similar lawsuit. If, however, the stairs were entirely within her control, then her husband and children would likely be prohibited from bringing a premises liability lawsuit.

The Irish Independent reports that the 37-year-old mother fell down the stairs of her home, but doesn’t go into much more detail than that. If the newspaper is talking about the front steps at or an interior stairwell within an apartment building, the business owner may be liable for her fatal injuries. If, however, the paper is talking about stairs that were completely within her home (be that a townhouse or a condominium), her family would be unable to collect under a premises liability lawsuit.

While the differences above may be confusing or the reasoning convoluted, a Accident Attorney would be a helpful tool in determining whether someone could file a premises liability lawsuit following a slip-and-fall accident.

Source: Irish Independent, “Irish mother of two dies in freak accident in New York,” Ralph Riegel, Nov. 22, 2013

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