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HRRV in the Courtroom 2014

Tarantino v. Queens Ballpark Company, L.L.C.
Appellate Division, Second Department
Index Number: 8674/2012
December 31, 2014

Appellate Court Affirms Pre-Answer Dismissal of Suit Commenced by Luxury Suite Patron Hit by Foul Ball

HRRV successfully moved to dismiss in lieu of answering on behalf of the defendants Queens Ballpark Company, L.L.C. (“QBC”), Sterling Mets, L.P., Sterling Mets Operations, LLC, Sterling Project Development Group, LLC, Sterling Equities, Inc. the City of New York and the New York City Industrial Development Agency (“NYCIDA”) in a personal injury action involving a plaintiff who was struck by a foul ball that entered a luxury suite at Citi Field.  The plaintiff, who received complimentary tickets from a casino in order to watch the game from the luxury suite, admitted that he was sitting near an open window and alternating between watching the baseball game and a basketball game on the suite television before he was struck by an errant baseball.  The luxury suite was located on the “Empire Level” of the premises above the protected area behind home plate.  The plaintiff did not allege that he was seated at field level, or in the area behind home plate when he was struck, or that any of the defendants failed to provide screening of a sufficient extent to provide adequate protection for as many spectators as may reasonably be expected to desire protected seats behind home plate in the course of an ordinary game. Consequently, the complaint failed to state a cause of action.

The Appellate Division, Second Department affirmed the motion court’s decision, holding that the allegations in the complaint were not sufficient to allege that any of the defendants breached any duty to the plaintiff  based on the doctrine of assumption of the risk of an open and obvious conditions at the ballpark. QBC, in turn, demonstrated that the requisite protected area was provided behind home plate, but the plaintiff elected to sit in the luxury suite. Under the unique circumstances presented, the Appellate Division, Second Department confirmed that  no duty or care was owed regarding the existence of the open and obvious condition. Furthermore, the complaint with respect to the NYCIDA was dismissed as untimely. Pursuant to New York’s General Municipal Law Section 880(2), the plaintiff had one year after the date of the accident  to commence an action against the NYCIDA and he failed to do so.  

Although the plaintiff sought permission to appeal to New York’s Court of Appeals, the Court of Appeals denied plaintiff’s motion.

Carla Varriale and Farng-Yeang Foo represented the defendants.

Kemler v. Malverne Lanes, Inc.
Supreme Court, Nassau County
Index Number 601421/14
December 22, 2014

Commercial Tenant Relies Upon Lease Language To Win Dismissal of Case Brought by Patron Who Fell on Sidewalk Ice

Plaintiff Matthew Kemler commenced a negligence action for injuries sustained when he purportedly tripped and fell on the sidewalk abutting the premises leased to the tenant Malverne Lanes, Inc. d/b/a San-Dee Lanes (“San-Dee Lanes”), due to the defendants’ failure to properly remove snow and ice from the sidewalk, following a major snow storm in January 2014. The premises were owned by Bell-Rex Associates, Inc. (“Bell-Rex”), who leased the basement to San-Dee Lanes to operate a bowling alley.  Bell-Rex leased the premises first floor to GMN 344 General Merchandise, Inc. d/b/a Malverne General Store (“Malverne General Store”), to operate a convenience store.  Plaintiff slipped and fell on ice on the sidewalk prior to entering the bowling alley, and attempted to hold defendants liable for his injuries.

At the outset of the litigation, we quickly moved for summary judgment, arguing that San-Dee Lanes had no duty to maintain, control, or keep the adjacent sidewalk free from snow and ice where Matthew Kemler’s injuries occurred, based on the relevant lease agreements.  The lease between Bell-Rex and San-Dee Lanes stated that San-Dee Lanes leased the “basement, entrance thereto and stairway exits thereof”, and further that the tenant had a duty to keep the adjacent sidewalk free from snow and ice if it was situated on the first floor.  We argued that since San-Dee Lanes leased only the basement at the premises, it had no such duty here.  Moreover, we pointed to the lease agreement between Bell-Rex and Malverne General Store, which contained similar language regarding the tenant’s duty to maintain the sidewalk, and argued that the lease agreements made it the responsibility of Malverne General Store, and not San-Dee Lanes to maintain the sidewalk free of snow and ice.  In opposition, Malverne General Store argued that since San-Dee Lanes leased the entranceway, located on the street level, as well as the basement at the premises, it too had a duty to maintain the sidewalk.  Both Bell-Rex and Malverne General Store argued there existed a question of fact as to defendants’ liability, and that the court should deny San-Dee Lanes’ motion.   

The court agreed with our position and awarded San-Dee Lanes summary judgment.  The court determined that the lease agreements make it perfectly clear that it was the responsibility of Malverne General Store, and not San-Dee Lanes to maintain, control, and keep the adjacent sidewalk free from snow and ice where Matthew Kemler’s injuries occurred.  Thus, if plaintiff can demonstrate liability, it is clear that the responsible entity would be Malverne General Store.  The Court accordingly dismissed plaintiff’s Complaint against San-Dee Lanes.   

Steven H. Rosenfeld represented Malverne Lanes, Inc.

Broniek v. Plaza Construction Corp.
Supreme Court, New York County
Index Number 451078/14
November 13, 2014

Summary Judgment Granted Dismissing Labor Law Claims

In Marek Broniek v. Plaza Construction Corp., Toscano Clements Taylor, LLC, Mount Vernon Group Architects, Inc. and Citistructure, LLC, Justice Debra James of the Supreme Court, Queens County granted summary judgment dismissing the plaintiff’s Verified Complaint and all cross-claims against Citistructure, LLC (“Citistructure”).

The plaintiff was allegedly injured on January 23, 2013 while working for Acranom Masonry at the premises known as PS/IS 30 a/k/a P.S. 331, located at 70-02 4th Avenue, Brooklyn, New York.  The plaintiff claimed that a stone/window sill fell from a height onto him.  The plaintiff alleged violations of New York Labor Law §§ 200, 240(1) and 241(6).

Citistructure moved for summary judgment prior to any party depositions based upon an Affidavit from its Partner and the documentary evidence.  This evidence established that Citistructure did not have any responsibility for the subject premises or the plaintiff’s work.  Although Citistructure was hired on July 22, 2010 to provide masonry and cast stone services, as demonstrated by a “Final Release and Waiver of Lean” with Plaza Construction, Citistructure was terminated from the project on March 16, 2012- more than ten months before the accident.

Accordingly, the Court granted Citistructure’s motion for summary judgment and dismissed all claims and cross-claims asserted against it. The Court found that Citistructure had no responsibility for the accident and that it demonstrated that it could not be held liable pursuant to Labor Law §§200, 240 or 241(6) because it did not contract for, direct, control or supervise the plaintiff’s work at the premises.  Further, it was not the contractor responsible for the project and not the owner or general contractor or their agents.

Judge James stated in her decision:

The Release and Waiver dated March 16, 2012 that pertain to the Plaza Construction Corporation Contract of Citistructure dated July 10, 2010  . . .[is] irrefutable documentary evidence that Citistructure had no presence or responsibility at the work site at the time of plaintiff’s accident . . .

Carla Varriale represented Citistructure.

Chien v City of New York, et al.
Supreme Court, New York County
Index No. 150210/2011
September 10, 2014

Halloween Parade Organizers and City Held Not Liable to Participant

Plaintiff, who was participating in The Village Halloween Parade, an annual Greenwich Village event, alleged that he was injured when the railing on a parade float on which he was riding gave way and caused him to fall to the ground. The railing was pulled away by someone dressed as a clown, who was walking in the parade and attempted to climb onto the float.

Judge Anil Singh granted summary judgment and dismissed all claims and cross claims against The Village Halloween Parade, its longtime director, Jeanne Fleming, and The City of New York. Judge Singh held that that there was no evidence that The Village Halloween Parade or Ms. Fleming owed any duty to the plaintiff, since neither was responsible for security at the parade and neither designed, inspected, built or supervised the building of the subject float. The court also held that the City’s action relative to inspecting the float and providing police at the parade – including controlling the crowd – was a governmental function, therefore making the City immune from liability.  The court, however, refused to dismiss the case against the entity which designed and built the float, finding a question of fact as it pertained to the design and overall safety of the float.

Steven H. Rosenfeld represented The Village Halloween Parade, Jeanne Fleming, and The City of New York.

Edna Mawhinney v. Long Island Ducks Professional Baseball Club, LLC
Supreme Court, Suffolk County
Index Number 28456/10
September 4, 2014

Court Finds That Ducks Were Not Negligent With Regard To Turnstile Condition

Judge Peter H. Mayer, sitting in the Supreme Court, Suffolk County, granted defendant Long Island Ducks Professional Baseball Club, LLC’s (“the Ducks”) motion for summary judgment to dismiss the plaintiff Edna Mawhinney’s Verified Complaint in its entirety.   

The plaintiff alleged that on June 30, 2009, she sustained personal injuries while entering the Stadium where the Ducks play baseball, located at 3 Courthouse Drive, Central Islip, New York, when she tripped and fell while entering the Stadium through a turnstile. She claimed that there was not sufficient turnstile space to enter and that, although she was handicapped due to the fact that she walked with a cane, no one offered her assistance in entering the Stadium.

Following the completion of discovery, the Ducks moved for summary judgment arguing, among other things, that the Ducks did not breach a duty of care as the turnstile met all statutory requirements, the Ducks did not create the condition or have actual or constructive notice of any purported condition and that there was no basis for the plaintiff’s American with Disabilities Act (ADA) claims.

The Ducks relied upon, among other things, the deposition testimony of numerous witnesses. For example, the plaintiff’s friends who were with the plaintiff at the time of the accident, consistently testified that the plaintiff had weakness in her feet due to post-polio syndrome, that she had a history of falling, that the plaintiff did not have her cane with her at the time of the accident, that the plaintiff was tired from volunteering for several hours that day, that they were not aware of any prior accidents or complaints concerning the turnstiles although they had been to the Stadium on previous occasions and that there were no tripping hazards present on the date of accident. The Ducks also relied upon the deposition testimony of its President and General Manager as well as its former Merchandise and Operations Manager, who both testified that the Ducks’ ticket takers were trained that handicapped patrons could request to enter the Stadium through an adjacent gate rather than the turnstiles.

Judge Mayer granted the Ducks’ motion for summary judgment. Judge Mayer opined that the Ducks established that it did not create or have actual or constructive notice of any alleged turnstile defect. Judge Mayer also determined that even if the plaintiff had properly pleaded an ADA cause of action, it had no merit because the plaintiff’s claims were based on a flawed expert affidavit. The Court made this finding based on several inaccurate measurements averred to by the plaintiff’s engineering expert. Judge Mayer also concluded that the undisputed evidence, including documents and deposition testimony, established that the turnstile/gate configuration at the Stadium complied with the ADA. Further, the Ducks’ engineering expert, Jacques Wolfner, established that the turnstile and entrance way configuration complied with the requisite statutory standards. Judge Mayer also determined that the plaintiff’s allegations of violations of state handicapped rules were without merit since the plaintiff was unsure whether she was carrying a cane at the time of her accident.

Carla Varriale and Lindsay R. Kaplow represented the defendant Long Island Ducks Professional Baseball Club, LLC.   

Irizarry v. 1915 Realth LLC
Supreme Court, Bronx County
Index No. 301668/2013
August 1, 2014

Court Credits Testimony of Building Superintendent and Discounts Absence of Handrail in Dismissing Slip and Fail Claim

Jasmin Irizarry claimed that she slipped and fell on wet and dirty water on a stairway in the defendant’s building. She speculated that the condition was caused by the superintendent’s recently mopping the stairs, based on her claim that she saw a mop, bucket, and wet floor sign in the lobby after her fall. The plaintiff also alleged that the lack of a handrail on one side of the stairs contributed to her accident. The defendant moved for summary judgment, and submitted deposition testimony and an affidavit that the superintendent was not mopping that day, by his own recollection and his general procedure for doing so. The defendant’s superintendent also attested that he inspected the stairs immediately after the plaintiff’s fall, and found them to be dry.

The court held that the defendant met its prima facie burden on summary judgment, and that plaintiff’s speculative testimony about what she saw in the lobby was not enough to create a question of fact. The court also ruled that the absence of a second rail was not a proximate cause of the fall, given plaintiff’s testimony that she did not attempt to find or hold a handrail when she slipped. The court granted the defendant summary judgment, and dismissed the complaint in its entirety.

The defendant was represented by Tara C. Fappiano.

Lebron v. 3573 Dekalb Realty, LLC
Supreme Court, Bronx County
Index No. 021078/2011E
July 3, 2014

Court Dismisses Claim of Slip and Fall Injury by Knife, Finding Injuries Consistent with Defensive Wound

Emma Lebron claimed that she injured her right hand when she slipped and fell on water on the bathroom floor of her apartment, in a building owned by the defendant. At her deposition, plaintiff testified that she was holding a small knife in her right hand at the time of the fall. However, she testified that she dropped the knife after she slipped, and that the injury to her right hand (nerve and tendon damage to several fingers) was caused not by the knife, but was caused merely by her bracing herself against the wall with her hand. The defendant moved for summary judgment, and submitted the affidavit of a hand surgeon, Dr. Barry Dolich, in support of its motion. In his affidavit, Dr. Dolich opined that it was impossible for the injury plaintiff sustained to have been caused in the manner she described.

The court found that the defendant met its burden of proof on summary judgment through the deposition testimony and expert affidavit. Specifically, the court held that the defendant showed that the injuries complained of were not consistent with the accident as described, but instead were consistent with a defensive wound in defending against a knife attack (and there was testimony that an argument was overheard that evening). The court found that the manner of injury described by plaintiff was incredible as a matter of law, and that plaintiff failed to provide any evidence to contradict Dr. Dolich’s expert opinion. The defendant was granted summary judgment and the complaint dismissed in its entirety.

The defendant was represented by Tara C. Fappiano.

Soto v. New Frontiers 2 Hope HDFC, Inc., New Frontiers II, L.P., and Hope Community Inc.
Appellate Division, First Department
Index No. 300500/2010
June 10, 2014

Postal Worker’s Claim Dismissed Based on Absence of Notice

Heyda Soto, a postal worker, allegedly sustained injuries when a recessed mailbox in the defendants’ building fell into the wall, as she was closing the unit after distributing the mail. The Appellate Divison, First Department affirmed the lower court’s granting of defendants’ motion for summary judgment.

The court found that defendants established that they did not cause, create, or have actual or constructive notice of a defect with the mailbox unit. The defect was not visible or apparent, and a reasonable inspection would not have revealed the box was loose. Further, the First Department agreed that the doctrine of res ipsa loquitor was not applicable because the defendants did not have exclusive access to the unit.

The defendants were represented by Tara C. Fappiano.

Lynch v Queens Ballpark Company, L.L.C., et al.
Supreme Court, Queens County
Index No. 14447/13
May 22, 2014

Court Dismisses Police Officer’s Claim that he was Assaulted by Intoxicated Patrons

A New York City police officer performing paid detail duty at Citi Field, alleged that he was assaulted while escorting a drunk or disorderly patron out of the stadium. Plaintiff alleged defendants Edward H. Sansone and Edward H. Sansone, Jr. (the “Sansone defendants”) assaulted him and pushed him down a flight of stairs. He also sued Queens Ballpark Company, L.L.C. (“QBC”) and asserted negligence claims pursuant to New York General Municipal Law Section 205-e for based on QBC’s failure to comply with vague “statutory mandates” such as New York Alcoholic Beverage Control Law 65 (2).

General Municipal Law Section 205-e provides police officers with a right to recover where injury results from a failure to comply with the requirements of the statutes, ordinances, rules and requirements of a governmental entity. However, to establish a claim pursuant to General Municipal Law Section 205-e, a plaintiff must establish: (1) identify the statute or ordinance that the defendant failed to comply with; (2) describe the manner in which he or she was injured; and (3) set forth those facts from which it may be inferred that defendant’s negligence directly or indirectly caused harm. Here, plaintiff claimed that QBC violated New York Alcoholic Beverage Control Law 65 (2) by selling alcohol to an already intoxicated person(s), i.e., the Sansone defendants and that this constituted a statutory predicate pursuant to his General Municipal Law Section 205-e claim.

QBC filed a pre-answer motion to dismiss plaintiff’s vague and unsupported pleading because it either failed to state a cause of action or was otherwise defeated by documentary evidence. In support of its motion, QBC submitted an agreement with concessionaire Aramark Sports and Entertainment Services, LLC (“Aramark”) which established that Aramark possessed the exclusive right to sell alcohol at Citi Field. The agreement constituted documentary evidence that resolved all factual issues and completely disposed of the claims against QBC because the agreement established that QBC did not sell alcohol at Citi Field at the time of the subject incident and, therefore, could not violate the New York Alcoholic Beverage Control Law 65 (2).. The court noted that the Legislature has prohibited the unlawful sale of alcohol, as opposed to the provision thereof.  As such, there was no statutory predicate for liability against QBC pursuant to New York’s General Municipal Law Section 205-e.. The court granted QBC’s motion to dismiss.

Queens Ballpark Company, L.L.C. was represented by Carla Varriale.

Hardware, et ano v. Ardowork Construction and J.D.C. Equities, Inc. v. Hardware
Appellate Division, First Department
May 20, 2014
117 A.D.3d 561; 986 N.Y.S.2d 445 (1st Dept., 2014)

Appellate Division, First Department Affirms Exercise of Personal Jurisdiction Over Father of Infant Plaintiff Brought into Action as Third-Party Defendant

Plaintiffs claimed that an infant plaintiff was exposed to lead-based paint inside an apartment owned by the owner and management company of the property, Ardowork Corporation and J.D.C. Equities, Inc.  A third-party action was commenced against the infant-plaintiff’s father, Lloyd Hardware, asserting claims for indemnity and contribution based upon his personal ownership of a private home in Bridgeport, Connecticut. That property was found to contain lead-based paint around the same time the defendants’ apartment allegedly had lead-based paint. The third-party action was filed only after Mr. Hardware was deposed as a non-party witness in December 2010.

Mr. Hardware was personally served at his Bridgeport home in November of 2011. Personal jurisdiction in New York was based upon his testimony that he worked for NASA 90% of the time at a “ classified” location in Manhattan. Mr. Hardware moved to dismiss the third-party complaint on the grounds that the court lacked personal jurisdiction over him. He argued that, as of February 2011, he no longer worked in New York, but in various unidentified locations outside of the country, still for NASA. The lower court concluded that jurisdiction was properly exercised over Mr. Hardware, and denied the motion to dismiss. The defendants/third party plaintiffs also filed a cross-motion, which was granted, to deem personal service upon Mr. Hardware sufficient and proper.

The Appellate Division, First Department, affirmed the lower court’s decision. Specifically, the court found that the third-party plaintiffs showed that Mr. Hardware was, in fact, “doing business” in New York through a voluntary, continuous, and self-benefitting course of conduct. Thus, general jurisdiction was appropriate, pursuant to CPLR 301. Specifically, in addition to testimony about his long term employment with NASA, there was documentary evidence that Mr. Hardware was a designated agent for service of process for a different New York company, which he had failed to disclose. The affidavit, submitted only in response to the cross-motion, was properly discredited by the lower court, as being self-serving and tailored to avoid the consequences of earlier inconsistent deposition testimony and representations in his own moving papers as to his continued employment in New York.

The court did not confer jurisdiction under CPLR 302 (a) (3) on a theory of “persistent course of conduct within the state”, because the situs of the alleged exposure was not New York, but Connecticut. Personal service upon Mr. Hardware, in Connecticut, was deemed proper, pursuant to CPLR 313.

The defendants/third-party plaintiffs were represented by Tara C. Fappiano

Tuitt v. 2084-2086 BPE, LLC
Supreme Court, Bronx County
Index No. 021566/2011E
April 15, 2014

Claim Against Property Owner Dismissed Based on Testimony of Surveyor and Finding of Trivial Defect

James Tuitt allegedly sustained injuries when he trip and fell on a raised portion of sidewalk, which he alleged abutted the property owned by 2084-2086 BPE, LLC. Based upon the testimony of plaintiff identifying the location of the fall and the affidavit of an expert surveyor, HRRV argued that the site of the alleged defect was on the other side of the property line, and that the specific portion of sidewalk did not abut the property owned by 2084-2086 BPE, LLC. Therefore, 2084-2086 BPE, LLC did not have a duty to maintain same. The court agreed that the defendant met its burden in this regard; and concluded that 2084-2086 BPE, LLC did not owe any duty to plaintiff with respect to the location of the fall. The court rejected plaintiff’s argument that the disclosure of an expert surveyor was untimely, as the CPLR does not require such a disclosure at any specific time. Further, the court found there was no showing of prejudice, because plaintiff always knew the location of the accident and did not retain its own surveyor or pursue an action against the abutting landowner himself.

In addition, HRRV argued that the defect that caused the accident was trivial, relying upon the affidavit of a liability expert. The court concluded that HRRV met its prima facie burden in showing that there was no dangerous condition. The plaintiff’s argument that the site inspection was done two years post-accident was also disregarded. HRRV showed through the testimony of the defendant’s superintendent and property manager, as well as that of the plaintiff, that there had been no change in the sidewalk’s condition since the date of the accident.  The complaint was dismissed in its entirety, with costs.

The defendant was represented by Tara C. Fappiano.

Zapot v. Samantha Deli Grocery Corp., et al.
Supreme Court, Bronx County
Index No: 306410/11
April 8, 2014

Finding that Building Owner and Property Manager Have No Duty Results in Dismissal of Action and Indemnification in Their Favor

Mario Zapot was allegedly injured when he stepped into an open cellar door located in a grocery store owned by the Samantha Deli Grocery Corp. (“Samantha Deli”). Third Avenue Bronx Holdings (“Third Avenue”) was the owner of the property and Park Avenue South Management (“Park Avenue South”) was the property manager.

Third Avenue and Park Avenue South moved for summary judgment, arguing that the accident occurred solely because of conditions for which they, as an out of possession owner/owner’s agent, were not responsible. Third Avenue and Park Avenue South further moved for dismissal of all cross-claims, and for summary judgment on their cross-claims against the Samantha Deli, the tenant.

The court concluded that Third Avenue and Park Avenue South had no duty to maintain the trap door at issue, and the reservation of a right to enter the premises was insufficient to impose liability absent a statutory duty to repair. There was no defect or issue with the maintenance of the door identified. Further, the Court concluded that general statutes standing alone were insufficient to impose liability on an out-of-possession owner. The open door also was not found to be a structural defect. Thus, all claims against Third Avenue and Park Avenue South were dismissed.

Samantha Deli was further required to indemnify Third Avenue and Park Avenue South pursuant to the unambiguous language of the lease agreement.

Tara C. Fappiano and Lindsay R. Kaplow represented Third Avenue Bronx Holding and Park Avenue South management.

Phillip, et ano v. The City of New York, et al
Supreme Court, Kings County
Index No. 18198/2013
April 1, 2014

Court Rejects Petition to File Late Notice of Claim and Dismisses Lawsuit Against City and Agents of City

Kyjahmy Phillip, an eight year old boy, was allegedly injured on February 4, 2013 when he was pushed by another child and fell while participating in afterschool program administered by the New York Junior Tennis League (“NYJTL”). The accident occurred at P.S. 9, located at 80 Underhill Avenue, Brooklyn, New York.

Petitioners (the infant and his mother) did not file a Notice of Claim with the City within the requisite (90) days. Instead, petitioners let more than eight months pass before it filed a formal law suit against The City of New York, the New York City Department of Youth and Community Development (“DYCD”) and NYJTL on October 15, 2013.  Petitioners first notified defendant City by serving the Summons and Complaint on October 25, 2013.

The Complaint alleged that the City controlled and supervised DYCD, which administered the afterschool program at P.S. 9. It was alleged that Kyjahmy Phillip suffered serious personal injuries due to the carelessness and negligence of defendants in failing to adequately manage, control, and supervise the children in the afterschool program.

Petitioners subsequently filed a Notice of Claim with the City on November 22, 2013, more than nine months after the accident occurred. Petitioners then sought leave to file a late Notice of Claim, nearly one year after the accident occurred.

The Court denied petitioners’ request to file a late notice of claim against the City of New York. The court ruled that plaintiffs failed to demonstrate a reasonable excuse for their failure to timely file a notice of claim, or that their claim has merit. The court also found that The City, DYCD and NYJTL would be prejudiced by plaintiffs’ failure to file the notice of claim within the time frame dictated by the statute, and accordingly denied the petition. 

The Court has dismissed the case against all defendants, noting that the petitioners had referred to the DYCD and NYJTL as agents of the City, and as such, could not maintain an untimely claim against these entities either.

Steven H. Rosenfeld represented the defendants.

Yvette Utley v. Heart Share Human Services of New York, Roman Catholic Diocese of Brooklyn, Juan Morales and Salvador Camacho
Supreme Court, Kings County
Index No.:  15269/2011
February 6, 2014

Summary judgment granted in favor of vehicle owner and driver based on facts of motor vehicle accident

HRRV obtained summary judgment granting dismissal of plaintiff’s complaint and all cross-claims asserted by the co-defendant as against Heart Share Human Services of New York, Roman Catholic Diocese of Brooklyn (hereinafter “Heart Share”) and Juan Morales (hereinafter “Morales”). The Court found that Heart Share and Morales had no liability in the happening of the two-vehicle motor vehicle accident.

Plaintiff Yvette Utley claimed that she sustained serious personal injuries when she was involved in a motor vehicle accident that occurred on April 6, 2011 on Blake Avenue at or near its intersection with Hinsdale Street, Brooklyn, New York.  At the time of the accident, plaintiff alleged that she was a rear-seat passenger in a taxi-cab operated by defendant Salvador Camacho (hereinafter “Camacho”). At the time of the alleged accident, Camacho was reversing his vehicle on a one-way street when he backed up into the vehicle operated by Morales, an employee of Heart Share, which was stopped and parked at the subject location. The testimony from all the witnesses, including plaintiff, and both defendants Morales and Camacho, confirmed that immediately prior to the accident, the Camacho vehicle was in reverse.  As a result of the subject accident, plaintiff commenced an action against Heart Share and Morales, and Camacho seeking recovery for injuries allegedly sustained in the accident.  

HRRV filed a motion for summary judgment seeking dismissal of plaintiff’s complaint and all cross-claims on the issue of liability as the testimony elicited from all parties confirmed that the Camacho vehicle caused the subject accident by reversing into the Heart Share vehicle.  HRRV argued that the plaintiff could not establish that the Heart Share and Morales were negligent and/or liable for the happening of the subject accident as the evidence demonstrated that the sole cause of the accident was the negligence of defendant Camacho in reversing his vehicle on a one-way street without ensuring it was safe to do so. HRRV further argued  that given the facts and circumstances of this case, there was no evidence that they breached a duty of care or that their actions, or inactions, proximately caused plaintiff’s injuries.  Consequently, HRRV asserted that Heart Share and Morales had demonstrated that there were no material issues of fact requiring a trial and, as such, summary judgment should be granted.

Justice Leon Ruchelsman of the Supreme Court, Kings County, noted that it is well settled that a vehicle may not back up when unsafe to do so (Vehicle and Traffic Law §1211(a)) and that a driver backing up without looking to see whether other vehicles are present constitutes negligence requiring a demonstration of evidence raising any issue of fact. Judge Ruchelsman determined that the only evidence offered by the plaintiff or co-defendant to raise an issue of fact is that Heart Share’s vehicle was likewise negligent in failing to observe the co-defendant’s vehicle as it moved in reverse. However, the Judge held that given the circumstances of the accident and the fact that there was no time in which the Heart Share vehicle could have reacted or anything that could have been done to avoid the accidence, there could be no negligence on the part of Heart Share or Morales. As such, the court granted summary judgment on the issue of liability effectively determining that defendants Morales and Heart Share were not at fault for the happening of the accident. As such, plaintiff’s Complaint and co-defendant’s cross-claims were dismissed as against Morales and Heart Share.

Gail L. Ritzert and Jessica Serva represented Heart Share Human Services of New York and Juan Morales.

Ibrahim and Wilson v. The Doe Fund
Supreme Court, Kings County
Index Nos.: 500207/2011 and 12946/2011
February 4. 2014

Collateral estoppel applied to dismiss action even though the issue previously resolved against party was raised against new parties not part of the prior action

Plaintiffs Naglaa Ibrahim and Beverly Wilson commenced personal injury actions against defendants Metropolitan Transit Authority (“MTA”), The Doe Fund, Inc. (“Doe Fund”), Randy Harrell, and Jimmie Cotton. Both plaintiffs were allegedly injured while passengers in the MTA’s bus (operated by Cotton), which rear-ended the vehicle driven by Harrell and owned by The Doe Fund.

Based on the same occurrence, defendant Harrell commenced his own action and was awarded summary judgment on liability against the MTA since there was no evidence of any liability against Harrell. Since the MTA’s liability was already decided in the Harrell action, pursuant to the doctrine of collateral estoppel, Ibrahim and Wilson were awarded summary judgment as to liability against the MTA.

Accordingly, pursuant to collateral estoppel, The Doe Fund and Harrell moved for summary judgment seeking a dismissal of all claims and cross-claims, asserting that the MTA as well as both plaintiffs are prevented from re-litigating the issue of liability as it has been decided in the Harrell action.

New York Courts have generally recognized two elements necessary for the invocation of the doctrine of collateral estoppel: 1) the identical issue was decided in the prior action and is decisive in the present action, and 2) the party opposing collateral estoppel had a full and fair opportunity to contest the decision now said to be controlling. Schwartz v. Public Adm’r of County of Bronx, 24 N.Y.2d 65, 298 N.Y.S.2d 955 (1969); Gilberg v. Barbieri, 53 N.Y.2d 285, 441 N.Y.S.2d 49 (1981).

At first glance it may appear that collateral estoppel should not have applied in this case since neither Ibrahim or Wilson were parties in the Harrell action. However, in granting The Doe Fund and Harrell’s motion for summary judgment, Judge Dawn Jiminez-Salta agreed that the fact that neither plaintiff was a party in the prior action was of no consequence since the issue of both drivers’ comparative fault was already determined by the court. 

Collateral estoppel reflects underlying policy considerations: Once a court has resolved an issue after evaluating the facts and the law, a second court should not reexamine that issue, because it would waste judicial resources, burden the parties, and could lead to inconsistent determinations. D’Arata v. New York Cent. Mut. Fire Ins. Co., 76 N.Y.2d 659, 563 N.Y.S.2d 24 (1990). Collateral estoppel is a flexible doctrine where the fundamental inquiry is whether re-litigation should be permitted in a particular case in light of the aforementioned competing policy considerations. Staatsburg Water Co. v. Staatsburg Fire Dist., 72 N.Y.2d 147, 531 N.Y.S.2d 876 (1989).  In Staatsburg, the Court of Appeals of New York stated that “no rigid rules are possible, because even these factors may vary in relative importance depending on the nature of the proceedings.”

Judge Jiminez-Salta agreed with the argument present on behalf of The Doe Fund and Harrell -- that the relevant inquiry for purposes of collateral estoppel is the identity of issues and the doctrine’s applicability is so broad that it serves to preclude a party from litigating issues previously resolved against it when raised against new parties not part of the prior action. See, Corto v. Lefrak, 203 A.D.2d 94, 610 N.Y.S.2d 214 (1st Dept. 1994); Early v. King, 22 Misc.3d 1135(A), 881 N.Y.S.2d 363 (N.Y. Sup. Ct. 2009). 

The issue before the court, as was the issue in the Harrell Action, was whether there was any comparative negligence on the part of The Doe Fund and Harrell as it relates to the negligence of the MTA and Cotton. Admittedly, neither plaintiff was a party in the Harrell action.  However, their absence from the case was in no way relevant or dispositive. 

Gail L. Ritzert and Jessica Serva represented The Doe Fund and Randy Harrell.

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