APPEALS

The lower court’s dismissal of plaintiff’s slip and fall case from alleged dangerous bathroom stairs in their Church is unanimously reversed by Appellate Court.

Reyes v Latin Am. Pentecostal Church of God Inc., 121 N.Y.S.3d 26, 181 AD3d 459 [1st Dept 2020].

The plaintiff alleged that this East Harlem Church provided a set of dangerous stairs to walk down to reach the stalls in the women’s bathroom. It was alleged that the handrail fell off and was not replaced, non-skid rubber treads on the stairs fell off and were not replaced, the two steps were at different heights, the first step down sloped downward, and the bottom floor sloped was not level, sloping downward at a 7 percent incline.

Defendant and their counsel conceal evidence, monetary sanctions insufficient punishment.

Lucas v. Stam, 147 A.D.3d 921, 48 N.Y.S.3d 150 [2d Dept. 2017]

The plaintiff alleges that prior to the surgery, a surgical booker working at the Hospital gave the decedent a history and physical form to provide to his internist, the defendant Lawrence Stam, in order to obtain medical clearance for the surgery. The form, which was partially completed by the surgical booker, indicated that the surgery was going to take place under local anesthesia.

Construction worker who fell from ladder was denied judgment in error, lower court reversed.

Saavedra v 89 Park Ave. LLC, 143 A.D.3d 615, 39 N.Y.S.3d 462 [1st Dept. 2016)].

A Construction fell from an A-frame ladder after repeatedly complaining the conditions were unsafe. The defendant tried to blame the construction worker even though he was directed to perform the work in these unsafe conditions. The lower court agreed with the defendants and the Appellate division reversed in favor of the worker.

Order, Supreme Court, New York County (Nancy M. Bannon, J.) entered April 7, 2016, which denied plaintiff’s motion for partial summary judgment on the issue of liability on his Labor Law S 240 (1) claim, unanimously reversed, on the law without costs and the motion granted.

Denial of summary judgment on plaintiff’s claim pursuant to Labor Law S 240 (1) was in error where plaintiff electrician was injured when he fell from an A-frame ladder as he was attempting to descend it. Plaintiff use of a six—foot ladder that required him to stand on the top step did not make him the sole proximate cause of his accident where the eight—foot ladder could not be opened in the space due to the presence of construction debris (see moor v City of New York, 130 ÄD3d 536 [1st Dept 2015] dismissed 27 NY3d 975 [2016]; Keenan v Simon Prop, Group , Inc., 106 AD3d 586 [1st Dept 2013]). Defendants’ reliance on the affidavit of the high—rise superintendent is misplaced. Although the superintendent speculated that there was sufficient space to open an eight-foot ladder, this was inconsistent with his prior deposition testimony and was thus calculated to create a feigned issue of fact (see e.g. Pinto v Selinger ice Cream corp., 47 AD3d 496 [1st Dept 20081).

Nor was plaintiff a recalcitrant worker (see Stolt v General Foods Corp., 81 NY2d 91 g t 920 [1993]). While the site safety manager who worked for a subcontractor of defendants testified that she told plaintiff that he should not work in the room because it was unsafe due to all the debris, she explicitly denied that she directed plaintiff to stop work, explaining that she had no such authority. Moreover, prior communications between plaintiff and the safety manager, as well as the site safety logs and photographs, indicate that the debris was an ongoing safety issue. On more than one occasion prior to the accident date, the site safety manager told plaintiff that she had passed along his complaints about the debris, and was trying to get the area cleaned. There was no reason for plaintiff to believe that, on the day of his accident, the site safety manager was directing him to cease working because of the recurring condition that was well known to both of them in the months prior.

THIS CONSTITUTES THE DECISION AND ORDER? THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: OCTOBER 25, 2016

Construction workers’ multi-million dollar verdict upheld

Janda v. Michael Rienzi Trust, 78 AD3d 899, 912 NYS2d 237 [2d Dept. 2010].

An illegal Polish immigrant was injured while performing construction work on the defendant’s prPises.The defendant argued that he was not entitled to his lost earnings claim because he was illegal and contended that he was not disabled. The jury in a unanimous verdict in Queens County found otherwise and both the lower court and the appellate division upheld the majority of the verdict.

Defendant Old Navy may be responsible for Employee’s Death

Ruiz v. Griffin, 71 AD3d 1112, 898 NYS2d 590 [2d Dept. 2010].

The Appellate Division reveresed the lower court’s decision dismissing the case against Old Navy. A man with a rifle shot and killed an Pployee of Old Navy while being escorted to his car by Old Navy agents. The two agents had no security training and left the plaintiff alone as they approached the car so they could get cigarettes. Old Navy had the plaintiff park in same spot every day to catch the perpetrator which also let the perpetrator know where to find the plaintiff. Whether Old Navy knew or should have known that a third person may cause harm to the plaintiff and failed to take reasonable action, and whether Old Navy increased the risk of injury were issues of facts to be decided by the jury, not the Court.

Village Crossing Guard may be Liable for Car striking a Child

Lopez v. Beltre, 59 A.D.3d 683, 873 N.Y.S.2d 726 [2d Dept. 2009].

The Appellate Divsion reversed the lower court’s decision dismissing the case against the Village holding that it was an issue that required a jury determination.

Defendant Loses Motion to Dismiss Wrongful Death Case

Ruiz v. Griffin, 50 A.D.3d 1005, 856 N.Y.S.2d 641 [2d Dept. 2008]

The Appellate Division affirmed the Lower Court finding that summary judgment was prPature and that the Workers’ Compensation Law did not bar the suit against Old Navy.

Defendant held Responsible for Poorly Maintained Roadway at Railroad Crossing

Reyes v. CSX Transportation, Inc., 19 A.D.3d 193, 796 N.Y.S.2d 606 [1st Dept. 2005].

The Appellate Division reversed, reinstated the plaintiff’s complaint, and granted plaintiff partial summary judgment, holding that N.Y. R.R. Law § 21 imposed a duty of maintenance which required the railroad to maintain grade crossings in a reasonable, safe condition and that such duty was continuous, non-delegable, and not abrogated.

Novice Horseback Rider Did Not Assume Risk of Injury When Trail Guides Left him Alone on Trail

Lipari v. Babylon Riding Center, Inc., 18 A.D.3d 824, 796 N.Y.S.2d 632 [2d Dept. 2005].

The Appellate Division reversed, reinstating the complaint, and held that the plaintiff, a novice horseback rider did not assume the heightened risk created by the alleged negligent conduct of the trail guides in leaving him unattended in the rear of a line of horses.

Plaintiff Quashes Defendant’s Subpoena for a Deposition of a Treating

Physician Tannenbaum v. Tenenbaum, 8 A.D.3d 360, 777 N.Y.S.2d 769 [2d Dept. 2004].

The Appellate Division affirmed the Order of the Lower Court which granted the plaintiff’s motion for a protective order pursuant to CPLR 3103 quashing his subpoena of a nonparty treating physician, with costs against the defendant.

Plaintiff’s Default Judgment Against Defendant Upheld

Rivera v City of New York, 7 A.D.3d 774, 776 N.Y.S.2d 867 [2d Dept. 2004].

After a trial, the Appellate Division upheld the judgment against the defendant, finding no reasonable excuse for the failure to timely vacate the default.

Plumber Who Fell into Excavated Hole that Collapsed is Permitted to Have The Case Heard by a Jury

Fernez v. Kellogg, 2 A.D.3d 397, 767 N.Y.S.2d 864 [2d Dept. 2003].

The Appellate Court reversed, reinstated the complaint, and held that the plaintiff dPonstrated issues of material fact as to Labor Law 200 and 241(6) violations involving an unguarded excavation that collapsed while a plumber was working to fix a leaking pipe.

Jury’s Award against Dentist Who Negligently Fails To Diagnose Periodontal Disease and Treat the Patient is Upheld

Davanzo v. Fisher, D.D.S., 304 A.D.2d 452, 758 N.Y.S.2d 49 [1st Dept. 2003].

Appellate Division upholds jury trial verdict of $271,600 alleging failure to diagnose or treat periodontal disease. The trial court properly dismissed defendant’s defense alleging genetic predisposition as there was no evidence to support the claim. The court’s missing witness charge was proper.

Court Permits Inmate to Recover $100,000 For Assault and Broken Nose

Zucker v. County of Westchester, 271 A.D.2d 604, 706 N.Y.S.2d 154 [2d Dept. 2000].

The Appellate Division upheld the liability verdict against correctional facility for failing to protect inmate from being attacked by other inmates, though finding the damages of $330,000 for a broken nose excessive, reducing the award to $100,000.

Defendants Continuous Treatment Prevents Dismissal Based Upon Statute Of Limitations

Dolfini v. Morilla, 261 A.D.2d 431, 690 N.Y.S.2d 79 [2d Dept. 1999].

Appellate Division reversed and reinstated the complaint, finding there were disputed issues of material fact as to whether the statute of limitations was tolled by defendants’ continuous treatment of a lump later diagnosed as malignant breast cancer.

Defendant Held Responsible for Construction Worker Who Falls Off Ladder

Grayson v. City of New York, 241 A.D.2d 338, 659 N.Y.S.2d 287 [1st Dept. 1997].

Appellate Division unanimously reversed and granted plaintiff’s motion for summary judgment pursuant to Labor Law § 240 (1) after falling off a ladder that did not have proper braces to prevent movPent while using a drill.

Defendant Denied A Second Physical Examination of Plaintiff

Fortuniewicz v. Lawrence Hospital, 229 A.D.2d 514, 644 N.Y.S.2d 1015 [2d Dept.1996].

Appellate Division upholds Lower Court’s denial of a further physical examination of the infant plaintiff as defense counsel failed to dPonstrate unusual or unanticipated circumstances after the filing of the note of issue.

Court’s Failure To Permit Plaintiff an Adjournment of Trial Held Improper

Goichberg v. Sotudeh, 187 A.D.2d 700, 590 N.Y.S.2d 283 [2d Dept. 1992].

Appellate Division reverses and holds trial court abused discretion in not granting an adjournment due to experienced’s unavailability.

APPEALS

APPEALS

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