First Department Denies Defendant’s "Threshold Motion" Due to Untimely IME?
In Quinones v. Ksieniewicz, the First Department modified the decision of New York County Supreme Court, which had granted defendant’s “threshold” summary judgment motion. Plaintiff’ underwent an IME, which demonstrated no “permanent consequential limitation of use”. Plaintiff then failed to raise a triable issue of fact in opposition to defendant’s motion. The First Department noted, however, that defendants failed to prove that plaintiff did not sustain a non-permanent injury for 90 of the 180 days immediately following the accident. The Court notes that the medical reports relied upon by defendants are dated approximately 2 years after the accident, as opposed to the six months immediately following the accident. The Court implies, then, that if plaintiff’s medical reports are dated later than 6 months after the date of loss, no defendant can meet their burden of demonstrating that plaintiff did not sustain a non-permanent injury. This is troubling, because the statute of limitations for negligence, the most common cause of action in auto accidents, is three years. A plaintiff could conceivably wait a year to bring suit, thereby rendering a defendant’s threshold motion moot, at least as to a non-permanent injury. Thanks to Brian Gibbons for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00270.htmRead More
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“Trivial” Defect in Sidewalk Does Not Constitute a Dangerous Condition
In Vasquez v. JRG Realty Corp. et al., the First Department examined a personal injury case in which a plaintiff alleged that she tripped and fell in front of defendants’ property and suffered personal injuries. The defendants argued that the supposed defect on which plantiff tripped was a trivial one, in that based upon their measurements, the “defect” was approximately the height of a nickel. In opposition, although plaintiff failed to submit any expert testimony, she testified at her deposition that the defect was approximately three quarters of an inch to one inch. The Court granted defendants’ motion for summary jusgment after finding that plaintiff’s testimony was speculative (not to mention that plaintiff’s account seems to corrorborate the measurements of the defendant’s expert). Moreover, the Court found that plaintiff failed to rebut defendants’ argument that the defect was trivial. Not surprisingly, the Court does not specficically define what does or does not constitute a trivial defect. As such a determination must be made on a case by case basis based upon the facts. Nevertheless, the Court sets a precedent here in that a defect the size of a nickel or smaller (i.e., a dime or a penny?) may be regarded as a trivial one under similar facts to this case. Thanks to Brian Gibbons for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2011/2011_01349.htmRead More
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Real Estate Agent a “Volunteer” and Thus Not Covered By New York’s Labor Law
In Lipsker v. 650 Crown Equities, the plaintiff, a real estate agent for defendant Skyline, was injured when he fell from a ladder while putting up a sign at Skyline’s office. The plaintiff commenced suit against the owner and manager of the building alleging violations of the Labor Law and common-law negligence. The lower court dismissed the plaintiff’s Labor Law claims, finding that plaintiff was a volunteer and thereby not entitled to the protections of the Labor Law. The First Department affirmed. In doing so, the court focused on the fact that plaintiff was acting as a volunteer when he helped his boss put up the sign and that he was paid on commission. Thanks to Gabriel Darwick for his contribution to this post. http://www.nycourts.gov/reporter/3dseries/2011/2011_01246.htmRead More
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No Notice of Defect in Escalator Defeats Plaintiff’s Claim
Plaintiff alleged that she sustained personal injuries when the escalator she was riding suddenly began to shake, causing her to fall to the ground. Defendants, owners and lessees of the premises, argued that they had no actual or constructive notice that anything was wrong with the escalator, and were therefore entitled to summary judgment. The First Department agreed, noting that the plaintiff failed to raise a triable issue of fact as to defendants’ notice of any defect. Further, plaintiff testified that she rode this particular escalator often, knew of no complaints regarding its operation, and saw no obvious and apparent problems with the escalator prior to her fall. The opinion was silent as to whether plaintiff had also brought suit against the manufacturer or installer of the allegedly defective escalator, but the Court granted the respective summary judgment motions of the lessees and owners of the premises. Thanks to Brian Gibbons for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2011/2011_03967.htmRead More
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Criminal Penalties for “Tweeting” Jurors
We have reported on several occasions about how social media has been slowly changing the legal landscape, particularly in terms of instructions to be given to jurors during trial proceedings. While judges must always instruct jurors not to communicate with anyone about the pending proceedings, jurors have continuously failed to comprehend that the judge’s instructions also apply to Facebook and twitter. California has decided to be proactive about such juror actions, and is amending its jury instruction to include a prohibition against “any form of electronic or wireless communication.” Violators potentially face six months in jail. New York was a bit ahead of the game on this issue as it revised its jury instructions in May 2009. A “tweeting juror” in NY can be charged with criminal contempt, and very nearly was in the case of People v. Rios, 2010 WL 625221 (N.Y. Sup., 2010) during a well publicized arson trial in Bronx County. Thanks to Biran Gibbons for his contribution to this post.Read More
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Criminal Penalties for “Tweeting” Jurors
We have reported on several occasions about how social media has been slowly changing the legal landscape, particularly in terms of instructions to be given to jurors during trial proceedings. While judges must always instruct jurors not to communicate with anyone about the pending proceedings, jurors have continuously failed to comprehend that the judge’s instructions also apply to Facebook and twitter. California has decided to be proactive about such juror actions, and is amending its jury instruction to include a prohibition against “any form of electronic or wireless communication.” Violators potentially face six months in jail. New York was a bit ahead of the game on this issue as it revised its jury instructions in May 2009. A “tweeting juror” in NY can be charged with criminal contempt, and very nearly was in the case of People v. Rios, 2010 WL 625221 (N.Y. Sup., 2010) during a well publicized arson trial in Bronx County. Thanks to Biran Gibbons for his contribution to this post.Read More
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Louboutin’s Ruby Soles May Soon Have More Company In Oz.
Christian Louboutin has made a good living understanding the psychology of shoes. His good fortune may be about to change. In Louboutin v. Yves Saint Laurent America, Inc., 11 Civ. 2381 (S.D.N.Y. Aug. 10, 2011), Louboutin sued YSL for trademark infringement of its famous red soles. After some initial discovery, Louboutin moved for a preliminary injunction stopping YSL from using red soles in an upcoming fashion line. To obtain a preliminary injunction, Louboutin had to show a “likelihood of success on the merits.” In evaluating the history the red sole, the Court traced its history to “King Louis XIV’s red-heeled dancing shoes or Dorothy’s famous ruby slippers in ‘The Wizard of Oz.’ ” The court also found that in fashion, color serves ornamental and aesthetic functions vital to competition. Accordingly, the court found that Louboutin’s trademark was overly broad and its continuation would likely hinder competition. YSL did not move for summary judgment, but the court encouraged it to do so, and indicated on such a motion it would likely revoke Louboutin’s trademark. We can bet that this decision won’t die down quietly, and will be appealed, as the red soles are “fashion to die for!” Special thanks to Cheryl Fuchs for her contributions to this post. For more information about it, or WCM’s intellectual property practice, please contact Bob Cosgrove at rcosgrove@wcmlaw.com.Read More
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Appellate Division Infers Judge’s Intent Regarding Personal Jurisdiction
In McConnell v. Santana, a wrongful death action, the defendant failed to answer the complaint and the plaintiff was granted a default judgment. When the defendant moved to vacate he also argued that the court lacked personal jurisdiction because he was never properly served. After a Traverse hearing, the court granted his motion stating in sum, the motion “to vacate a default is granted.” The court never stated whether or not the complaint was properly served. After trial, judgment was entered in favor of the plaintiff. The defendant then moved to vacate the judgment on the grounds that the court lacked jurisdiction because he was never properly served. The Appellate Division denied the motion. The court did not address the merits of the moving papers, rather the court reasoned that if the trial court had found that the defendant had not been properly served at the Traverse hearing, it would have had no authority to take any action other than to dismiss the complaint. Since the court did not dismiss the complaint, in effect, the Supreme Court found that service was properly effected. Thanks to Bill Kirrane for his contribution to this post. http://www.nycourts.gov/reporter/3dseries/2011/2011_06251.htmRead More
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Application of Revised “First Bite” Doctrine Results in Dismissal of Suit
In 2007, John Smith brought suit against Marijane Reilly because her dog broke free from its leash, ran into the street and collided with plaintiff Smith’s bicycle. As a result of the collision, Smith was thrown over the handlebars of his bicycle and fell to the ground, causing injury. Defendant moved for summary judgment, citing that she had “no knowledge of her dog’s alleged propensity to interfere with traffic.” At trial, the Court denied defendant’s motion, because the court ruled that the prior instances of the dog of escaping defendant’s control and running towards the road constituted triable issues of material fact. The Court of Appeals disagreed and reversed, because the dog’s prior actions were insufficient to raise a material issue of fact, since the dog had never specifically chased cars or bicycles before. The decision strongly suggests that in order for an owner to be liable for the actions of his/her dog, there must be evidence that the dog had a propensity to behave in a manner very similar to what is alleged in the case at bar. Here, the dog chased a bicycle, but because the dog had never specifically chased a bicycle in the street before, there was no triable issue of material fact regarding the dog’s propensity. Thanks to Brian Gibbons for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2011/2011_07478.htmRead More
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NY Court of Appeals Rules That Labor Law May Apply to “Same Level” Case
In Wilinski v. 334 E. 92nd Housing Development Fund, the Court of Appeals up-ended an evolving body of case law that precluded a plaintiff from recovering under Labor Law § 240(1) when the plaintiff and the base of the object that fell on him stood on the same level. There, the plaintiff was demolishing brick walls at a vacant warehouse owned by defendant. Previous demolition of the ceiling and walls left metal, vertical pipes measuring four inches in diameter and standing ten feet tall, exposed and unsecured. Before plaintiff began work, he voiced concern to his supervisor about the pipes. Nonetheless, they were not secured. Later that day, debris from a nearby wall knocked the pipes down, injuring plaintiff. The Supreme Court granted plaintiff summary judgment, but the Appellate Division reversed and awarded defendant summary judgment. In doing so, it held that plaintiff’s accident was not the type of accident § 240(1) was meant to guard against since both the pipes and plaintiff were at the same level. Thus, the incident was not sufficiently attributable to elevation differentials to warrant imposition of liability. In rejecting the “same level” rule applied by the Appellate Division, the Court of Appeals, quoting Runner v. New York Stock Exch., 13 NY3d 599 (2009), stated that, “the single decisive question is whether plaintiff’s injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential.” Applying this rule, the Court found an issue of fact as to whether the defendant violated § 240. The Court focused on the fact that plaintiff stood 5’6″ tall, that the pipes fell at least 4 feet before striking plaintiff, and that since they were 4″ in diameter, the height differential could not be described as de minimis given the amount of force the pipes were able to generate over their descent. Given these factors, the Court found that plaintiff suffered harm that flowed directly from the application of the force of gravity to the pipes. However, although injuries arose the risk arose from a physically significant elevation differential, there was an issue of fact as to whether plaintiff’s injury was the direct consequence of a failure to provide adequate protection against that risk. In that regard, neither the plaintiff nor the defendant submitted sufficient evidence to establish that a protective device prescribed by the statute would have been applicable or inapplicable. Thanks to Gabriel Darwick for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2011/2011_07477.htmRead More
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