Failure to Confirm Judgment Leads to Defense Victory (NY)
When a plaintiff obtains a default judgment against a defendant, sometimes the fight is far from over. While the discretion ultimately remains with the court, a default judgment may be vacated against a defendant, or an inquest will be held if the motion to vacate is denied. However, even after an inquest is held and damages are determined, a plaintiff must submit a notice of settlement and proposed judgment within 60 days or else it will be void. 22 NYCRR 202.48(a) For example, in Cruz v. Pierce, 2022 NY Slip Op 07054 (2nd Dep’t December 14, 2022) the plaintiff was injured while performing work at real property that was owned by the defendant. After being served with the summons and complaint, the defendant failed to answer. Plaintiff subsequently moved for leave to enter a default judgment. The Court not only granted the motion but directed an inquest for damages. At the close of the inquest, Plaintiff was entitled to recovering $274,541.54. The Court directed the plaintiff to settle judgment on notice. Thereafter, the plaintiff failed to submit a notice of settlement and proposed judgment until nearly 2 years after the order. Accordingly, the defendant moved to vacate the decision made after the inquest based upon the plaintiff’s failure to submit the notice of settlement and proposed judgment within 60 days as the Court directed them to. Accordingly, the Second Department granted the Defendant’s motion on the grounds that the plaintiff failed to timely settle the judgment pursuant to 22 NYCRR 202.48(a) and on plaintiff’s failure to show good cause for his lengthy delay in submitting the notice. This case shows that the procedural rules must always be followed – or not, at your own peril. Thanks to Lauren Howard for her contribution to this article. Should you have any questions, contact Matthew Care.Read More
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A Motion to Amend the Complaint in NY Leads to Dismissal of Action
When a plaintiff seeks to recover damages for personal injuries from the defendants and thereafter, moves for leave to amend the complaint, the Court must not only consider the motion for leave to amend but must also consider any defendant’s motion for dismissal. For example, in Langley v. Melville Fire Dist., 2023 NY Slip Op 00656 (2d Dep’t February 8, 2023), the plaintiff was standing in a roadway in Melville when he was struck by a tree limb that fell from a tree adjacent to the roadway. Plaintiff subsequently commenced a lawsuit against the defendants, Melville Fire District and Melville Fire Department to recover damages for personal injuries. The defendants moved pursuant to CPLR 3211(a)(7) to dismiss the complaint for failure to state a cause of action. Subsequently, the plaintiff cross-moved pursuant to CPLR 3025(b) for leave to amend the complaint. In opposition, the defendants’ argued the amended complaint should be dismissed because the evidentiary submissions demonstrated there was no cause of action for plaintiff to recover. The lower court held that the defendants’ motion should be denied, but the second department recently reversed this decision. The Second Department reasoned “[w]here a court considers evidentiary material in determining a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), but does not convert the motion into one for summary judgment, the criterion becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless the movant shows that a material fact as claimed by the plaintiff is not a fact at all and no significant dispute exists regarding the alleged fact, the complaint shall not be dismissed.” Accordingly, the Second Department held that the amended complaint was predicated on a special relationship existing between the plaintiff and Fire Department and the evidentiary proof established there was no special relationship wherein defendants had no duty to maintain or prune the tree because it was not on their land. As such, the Supreme Court should have granted the defendants’ motion to dismiss. Thanks to Lauren Howard for her contribution to this article. Should you have any question, contact Matthew Care.Read More
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Is a Witness Unavailable if the Presiding Trial Judge Personally Views the Witness in an Ambulance? (NY)
Typically, a trial judge has the ability to determine if a witness is unavailable for testimony. However, in this instant matter, apparently emergency transportation from the courthouse in an ambulance after falling ill in the middle of trial may be insufficient to be deemed unavailable on its own. This was the case in the Second Department’s recent decision, 244 Linwood One, LLC, et al., v. Tio Deli Grocery Corp. 2020-04245, Index No. 514636/17. In this lawsuit regarding seeking the declaration of a lease null, the premises owner Latchman Awad, was in the midst of giving testimony when he fell ill, requiring an ambulance to be called to bring him to the hospital. Shortly after this, the trial judge, informed the attorneys about the situation and, sua sponte, had Awad’s testimony up to that point struck from the record and deemed Awad to be unavailable for testimony. His reasoning for this was that it was unclear when he would be available for testimony in the future – or even if Awad would ever be available. With this, the judge then allowed Awad’s deposition testimony to be read into the record. After this, the lease and addendum were deemed void ab initio. Upon appeal, the Second Department determined that the trial judge abused his discretion in determining Awad unavailable, despite having actual notice of the emergent condition. Its reasoning was that this decision was made without sufficient determination as to the severity of Awad’s illness. Specifically, the Court had received no evidence as to the severity of Awad’s illness. Moreover, the trial Court received no records determining what specifically Awad was suffering from, what his treatment consisted of, or if he went to the hospital and if so, for how long. The Second Department clearly felt that without this information, the trial judge had jumped to conclusions in determining Awad was unavailable without further information to show just how bad his condition really was. Due to this decision, the Second Department sent the case back to the trial court for a new trial. This decision is an interesting one as the Courts generally find a trial judge has a wide latitude in making decisions in their courtrooms, yet in this case, the Second Department found that this was a step too far. Thanks to Patrick Argento for his contribution to this article. Should you have any questions, contact Matthew Care.Read More
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Dog Doesn’t Get One Free Bite If Propensity To Do So Is Evident Prior To Attack (NY)
In Zicari v. Buckley, 2023 NY Slip Op 00788 (4th Dept. 2023), plaintiff alleged serious injuries due to a dog attack when he visited the defendant’s home to obtain signatures on a local political petition, and immediately upon the door opening, was attacked by defendant’s dog. Defendant said the dog had never attacked anyone before that day. At pretrial phase, Defendant moved for summary judgment to strike the dog bite claim, arguing they had no prior knowledge of any dangerous or violent propensity from the dog. Defendant further argued that “the dog was protective” and would protect the house when a “stranger” entered it. The trial court granted summary judgment on this issue. The plaintiff appealed and the Fourth Department overturned the trial court’s decision, holding that defendant failed to meet his initial burden on that part of the motion seeking to dismiss the “propensity” argument because defendant/owner failed to establish that he neither knew nor should have known that the dog had any vicious propensities (see Young v. Grizanti, 164 A.D.3d 1661, 1662 [4th Dept 2018]; cf. Brady v. Contangelo, 148 A.D.3d 1544, 1546 [4th Dept 2017]). The appellate division noted that “an animal that behaves in a manner that would not necessarily be considered dangerous or ferocious, but nevertheless reflects a proclivity to act in a way that puts others at risk of harm, can be found to have vicious propensities” (Collier v. Zambito, 1 NY3d 444, 447 [2004]). The evidence showed prior veterinary records indicating the dog had known territorial issues and that the dog barked at people it did not like. The owner was recommended to engage the dog in socialization exercises to help with these issues. The court felt these factors could be used to show the owner should have known of the dog’s propensity for violence. The Fourth Department’s reasoning shows that any past evidence of aggression by animals, even if that evidence does not show any physical manifestation of violence or prior attack, can be used to prove a propensity for violence thus leaving it for a jury to decide. Thanks to Raymond Gonzalez for his assistance with this post. Should you have any questions, feel free to contact Tom Bracken.Read More
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Eyewitness Accounts Of A Rear-End Motor Vehicle Accident Ignored In Summary Judgment Motion (NY)
Recent case law regarding rear-end motor vehicle collisions highly favors the front most car. It is increasingly difficult to dispute liability and defense counsel are typically left mitigating damages. This has been re-affirmed by a recent Second Department decision, An v. Abbate, 2023 NY Slip Op 00977, where the lower court’s decision was overturned and summary judgment was granted in favor of plaintiff. While, it comes to no surprise to some that plaintiff was awarded summary judgment on the issue of liability, what is surprising is what plaintiff was able to overcome in obtaining judgment in their favor. The accident occurred on Roosevelt Avenue near 154th Street in Queens. It appeared to be standard rear-end collision, plaintiff claimed to be fully stopped, and defendant’s vehicle came into contact with the rear bumper. However, Defendant Abbate was able to obtain an affidavit of an eyewitness who swore that while defendant was driving forward, he witnessed plaintiff’s vehicle go in reverse and back up before the two vehicles made contact. Despite this eyewitness affidavit, the Second Department overturned the lower court’s grant of summary judgment to defendant on the issue of liability and specifically stated that the eyewitness account “that the plaintiff’s vehicle was backing up at the same time was insufficient to raise a triable issue of fact because that statement related only to the plaintiff’s comparative fault.” (An v. Abbate, 2023 NY Slip Op 00977 citing Rodriguez v City of New York, 31 NY3d at 323-324; Whitehead v David Rosen Bakery Supplies, Inc., 208 AD3d 533). Thus, courts are bending over backward to permit plaintiffs get their cases to a jury, and even ignore eyewitness accounts. Thanks to Christopher Palmieri for his assistance with this post. Should you have any questions, please contact Tom Bracken.Read More
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Video of Bicyclist-Pedestrian Collision Raises Many Questions, Just No Triable Issues of Fact
New York judges continue to disagree on what constitutes a triable issue of fact, even where a bicyclist-pedestrian was caught on video surveillance. In a single-paragraph decision issued on February 9, 2023, the New York Court of Appeals affirmed the First Department’s grant of summary judgment to the defendant bicyclist in Zhong v. Matranga, which reversed the trial court’s denial of that motion. Of the 12 judges to consider the motion (albeit at different stages), eight found that plaintiff pedestrian failed to raise an issue of fact, while four held that she had. All watched the same video.
The First Department’s 3-2 decision – after a lively oral argument in which a divided panel peppered attorneys with questions – thoroughly examined the many dinner-table questions presented by a split-second collision on 91st Street and First Avenue on a busy Friday evening of Memorial Day weekend in 2016.
The majority held that defendant was riding his bicycle through the intersection with the green light in his favor, while plaintiff suddenly walked off the curb and into the bicycle lane against the red light for pedestrians without looking both ways and less than ten feet from the incoming bicyclist. It was undisputed that the bicyclist was riding at approximately 14mph, well below the 25mph speed limit. For those reasons, the First Department held that defendant was not negligent, and plaintiff was the sole proximate cause of the accident. The Court further held that the plaintiff’s expert’s testimony was insufficient to raise an issue of fact as it expressed in a conclusory manner that defendant was riding at an excessive speed when compared to the speed of the three other bicyclists in the video and could have slowed down, stopped, or maneuvered around plaintiff to avoid the collision. The majority pointed to the defense expert who opined that defendant could not have evaded plaintiff to the left or right without putting himself or other pedestrians at risk.
The two-Justice dissent, endorsed by Judge Rivera of the Court of Appeals, stated that, although neither party disputed that the bicyclist had the right of way, plaintiff raised a triable issue of fact through her deposition testimony that she had looked both ways and did not see defendant coming before stepping off the curb, which a jury might find indicative of excessive speed. Despite both experts testifying that defendant was riding at approximately 14mph, the dissent pointed to the video showing that defendant was at least keeping pace with a bus driving in the same direction. Moreover, a jury might find defendant’s riding faster than other bicyclists in the video surveillance probative of what constituted a safe speed under the circumstances. Ultimately, the dissent suggested that the majority was sifting and weighing relevant facts, which should be within the province of the jury.
Thanks to Abed Bhuyan for his contribution to this post. Please contact Heather Aquino with any questions.
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New York Appellate Court Continues Trend of Finding No Coverage For Financial Loss Due To COVID-19 Related Closures
The Appellate Division, First Department recently followed the national trend in rejecting Madison Square Garden’s (“MSG”) claim that it was entitled to insurance coverage for losses related to the COVID-19 pandemic. In Madison Square Garden Sports Corp. v. Factory Mutual Insurance Company, 35 related MSG companies sued four of its insurers, alleging that they failed to provide coverage for losses caused by COVID-19 related closures. MSG alleged that it suffered substantial financial losses due to seats being empty for almost a year. The lower court granted the insurers’ motion for partial dismissal of the complaint, except for MSG’s claims for coverage under the policies communicable disease and claims preparation cost provisions. The First Department affirmed the lower court’s decision, holding that MSG failed to allege actual physical damage that occurred as a result of the closures and loss of business caused by the COVID-19 pandemic. Citing its prior decision in Consolidated Rest. Operations, Inc v. Westport Insurance Corp., 205 A.D. 3rd 76, 80-87 (1st Dep’t 2022), lv granted in part, dismissed in part, 39 N.Y. 3rd 943 (2022), the Court held that to recover under the terms of policies that ensure against physical loss or damage, plaintiffs must allege actual physical damage. Simply alleging loss based on COVID-19 related closures is insufficient to state a cause of action for breach of contract and insufficient to warrant coverage under the defendants’ policies. The Court added that the lower court properly declined MSG’s request to take judicial notice of the various executive orders, scientific studies and other matters concerning COVID-19 as those documents are not “matters of common and general knowledge well established and authoritatively settled.” In light of it ruling, the Court declined to address the parties’ arguments regarding whether certain exclusions applied to bar recovery. Although the MSG decision did not completely dispose of the lawsuit and the issue of coverage under the policies communicable disease clauses remain, the decision follows the clear trend of state and federal courts not supporting property coverage claims for COVID-19 business losses in the absence of physical loss or damage. We will continue to monitor and report on these decisions. Thank you to Arianna Arca for her contribution to this post. Please contact Andrew Gibbs with any questions.Read More
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Starbucks Has No Sidewalk Liability As Commercial Tenant (NY)
Sidewalk liability lawsuits involving accidents occurring on New York City sidewalks typically involve claims under Administrative Code of the City of New York §7-210, which states in relevant part that “[I]t shall be the duty of the owner of real property abutting any Sidewalk. . . to maintain such sidewalk in a reasonably safe condition.” In cases involving leased commercial properties, courts often evaluate whether tenants also have liability. In Choudhry v. Starbucks Corp., the Appellate Division, First Department recently addressed whether Starbucks was obligated to fix an allegedly defective sidewalk adjacent to the property that it leased from co-defendant owner Parkchester. The plaintiff alleged that he tripped and fell due to a dangerous condition on the sidewalk. In reversing the trial court’s decision to deny Starbucks’ motion for summary judgment, the First Department stated that “[T]here is no question that §7-210 by its terms unambiguously imposes liability upon defendant Parkchester for failure to repair the alleged defect in the sidewalk that cause plaintiff’s personal injury.” The Court observed that such a duty “is an affirmative, non-delegable obligation” and that although a landlord can enter into agreements having the tenant perform the work of maintaining the sidewalk, the duty to plaintiff remains exclusively with the landlord.” The Court then addressed the lease, finding that there was no obligation for Starbucks to make any sidewalk repairs. The Court added that even if the lease imposed a duty on Starbucks, they would not owe the plaintiff a duty as he would be a third-party to the agreement. This decision serves as a reminder that when defending cases involving 7-210, landlords will retain a non-delegable duty to maintain adjacent sidewalks although commercial tenants may liability based on a contractual obligation to do so. The wording of the lease can be crucial and should be evaluated to determine whether a tenant has potential contractual liability. Thank you to Corey Morgenstern for his contribution to this post. Please contact Andrew Gibbs with any questions.Read More
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New York’s Storm In Progress Rule Requires Evidence Of Precipitation (NY)
Under New York’s “storm in progress” rule, “a property owner will not be held responsible for accidents occurring as a result of the accumulation of snow and ice on its premises until an adequate period of time has passed following the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the storm.” However, in order for this rule to apply, courts have required defendants to prove that precipitation occurred at or near the time of the accident. For example, in Bodoff v. Cedarhurst Park Corp., plaintiff slipped and fell on ice and the defendants moved for summary judgment, arguing that the storm in progress rule applied. The Supreme Court denied the motion on the basis that fact issues existed as to whether the rule applied under the circumstances. The Appellate Division, Second Department agreed and affirmed the decision, finding that the defendants had failed to establish, prima facie, that there was a storm in progress at the time of the accident. In so holding, the Court noted that the defendants’ certified meteorological data and Affidavit from a meteorologist established that only trace amounts of precipitation, totaling less than one-tenth of an inch, fell during the morning of the date of the accident, and that there was no snowfall on the day prior to the incident. The other evidence in the case, including deposition testimony, also presented triable issues of fact as to whether any precipitation occurred at or near the time that plaintiff slipped and fell so the trial court’s denial of summary judgment under the rule was proper. The Bodoff decision confirms that a defendant seeking to assert a defense under the “storm in progress” rule must have evidence of precipitation in the form of snow, sleet, or freezing rain at or near the time of an accident. The lack of such evidence will likely result in the failure of the defense. Thank you to Rebecca Pasternak for her contribution to this post. Please contact Andrew Gibbs with any questions.Read More
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Open And Obvious Condition Of Exterior Step Extinguished Defendant’s Liability (NY)
Generally, a New York landowner has a duty to maintain his or her property in a reasonably safe condition. However, there is no duty to warn of or protect against conditions that are not inherently dangerous and are “open and obvious.” A condition is deemed “open and obvious” if it is readily observable by those reasonably using their senses given the surrounding conditions at the time of the alleged accident. The resolution of this issue depends on the specific facts of each case. In Martinez v. Fairfield Hills E., LLC, the Appellate Division, Second Department recently addressed these issues in a case where plaintiff alleged that she was injured while descending exterior steps on the defendant’s premises. The lower court granted the defendant’s motion for summary judgment, finding that the condition of the step upon which the plaintiff allegedly fell was both open and obvious and not inherently dangerous. The Second Department affirmed, finding that that the condition of the step was readily observable had plaintiff reasonably used her senses given the conditions at the time of the alleged accident. The Court based this holding on plaintiff’s deposition testimony in which she stated that she ascended the step moments before her alleged accident without incident, that the accident took place on a sunny day, and there was nothing obstructing her view of the step. The takeaway from Martinez is that premises defendants should explore an “open and obvious” defense where the allegedly dangerous condition was readily observable to a plaintiff at the time of his or her alleged accident and plaintiff had used that part of the property before without incident. Thank you to Gabriella Scarmato for her contribution to this post. Please contact Andrew Gibbs with any questions.Read More
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