Danette Hartley v. Burnside Housing Development Fund Corp.

(209 A.D.3d 608; Appellate Division, First Department):

Successfully appealed and reversed the denial of defendant’s summary judgment motion. Plaintiff, a resident of the defendant’s apartment complex, alleged that she slipped on a wet condition in the stairwell and sued the apartment complex. While plaintiff was initially successful in defeating defendant’s summary judgment motion, the Appellate Division reversed and dismissed the plaintiff’s complaint, finding that defendants established that they did not have actual or constructive notice of the wet condition. Defendant’s submission of a reasonable cleaning schedule was sufficient to prove that they had a plan in place that addressed any ongoing or recurring conditions. Further, defendant was not required to provide a written schedule of its cleaning activities, the unrefuted testimony of their building porter was sufficient to establish their schedule.

Corie White v. U-Haul Co. of Arizona, et.al.

2024 WL 1545631; Appellate Division, Second Department):

Successfully appealed and reversed the denial of defendant’s summary judgment motion. Plaintiff, a passenger in a taxi driven by co-defendant, sued U-Haul as a result of an accident involving a rented vehicle. Justice Ventura of Supreme Court, Queens County denied U-Haul’s motion for summary judgment based on the Graves Amendment, filed prior to the completion of party depositions, asserting that the bare allegation within plaintiff’s complaint that there may have been mechanical problems with the rented U-Haul vehicle was sufficient to defeat summary judgment.

On appeal, the Second Department found that the U-Haul defendants met their prima facie burden, agreeing that the submission of an affidavit by the person who rented the U-Haul vehicle, attesting that they experienced no mechanical difficulties or issues with the vehicle in the 24-hour period they had been driving it prior to the accident, was sufficient. The Court found that the plaintiff failed to raise a triable issue off fact, as speculative arguments that a summary judgment motion is premature are insufficient to defeat a prima facie showing.

Cristian Alfonso v. Trucar Leasing Corp., et.al.

(225 A.D.3d 401; Appellate Division, First Department)

Successfully appealed and reversed the denial of defendant’s summary judgment motion. Defendant, Dry Ice Corp., moved to dismiss the only causes of action plead against them by plaintiff, a civil claim for Reckless Endangerment in the Second Degree, and a declaratory judgment to invalidate a contract between Dry Ice Corp., and Trucar Leasing Corp. for the lease of the truck that plaintiff was driving at the time of his accident. Dry Ice Corp. argued that there was no right to a private cause of action for Reckless Endangerment in the Second Degree, and that plaintiff, who was not a party to the aforementioned contract, did not have standing to assert a declaratory judgment action.

While the Supreme Court, Bronx County denied Dry Ice Corp.’s motion, the Appellate Division, First Department reversed and dismissed all causes of action against Dry Ice Corp. The Appellate Division agreed that Reckless Endangerment in the Second Degree was enacted for the benefit of the general public, and therefore, no private cause of action may be implied therefrom.

The Court further agreed that there was no merit to plaintiff’s declaratory judgment action, as he was neither a party to, nor an intended beneficiary, of the lease agreement between Dry Ice Corp. and Trucar Leasing Corp.

Lochan Ragoo v. Port Authority of New York and New Jersey, et.al.

(226 A.D.3d 444; Appellate Division, First Department)

Successfully defended appeal filed by plaintiff who sought to overturn denial of their summary judgment motion. The Appellate Division affirmed the lower court’s decision finding that there was a question of fact as to whether it was necessary for the injured plaintiff to traverse the area where he tripped and fell on debris.

Second Department Upholds Summary Judgment in Slip and Fall on Ice Case

The Appellate Division, Second Department, recently affirmed the Supreme Court’s Decision to uphold a favorable ruling on a summary judgment motion that Angela A. Lainhart, Esq., of Nicoletti, Gonson Spinner & Owen LLP obtained in connection with a slip and fall accident on ice, entitled Max Gershfeld et al. v. Marine Park Funeral Home, Inc., Index No.: 36467/04, Supreme Court, Kings County.

The matter arose from an alleged incident that occurred on January 19, 2004 in front of a funeral home in Brooklyn, New York. It was alleged that the plaintiff had slipped on an invisible sheet of ice on an exterior rubber mat in front of the premises. Plaintiff alleged that he sustained injuries consisting of a finger fracture, cervical disc herniations and bulging, cervical radiculopathy and an aggravation of a lumbar spine condition. The plaintiff claimed that the injuries necessitated him to undergo a cervical disc fusion surgery and he claimed a need for future fusion surgery of the lumbar spine.

Our firm moved for summary judgment, on the ground that there was no evidence establishing that the defendant either created the condition or had actual or constructive notice of the condition, citing the snow/ice clearing measures undertaken by the funeral home, as well as citing the case law on “black ice” cases. The Supreme Court, Judge Martin, granted an Order of dismissal dated January 2, 2008 and the plaintiffs appealed.

The Appellate Division upheld the Supreme Court’s ruling and held that our client had established its prima facie entitlement to judgment as a matter of law by demonstrating that it did not create the alleged defect or have actual or constructive notice of the defect. The Court also ruled that the plaintiffs’ contention that the icy condition was a result of the funeral home’s negligent snow removal efforts was speculative. Additionally, the Court cited cases holding that a general awareness that a hazardous condition may be present is insufficient to establish notice.

Second Department Confirms Trial Verdict in Defendant's Favor

Josephine Vittorio v. U-Haul, New York App. Div., Second Dep’t, Docket # 2009-2412

In October 2008, in the New York State Supreme Court, County of Dutchess, Partner Kevin Pinter engaged in a five-day jury trial defending U-Haul in an action stemming from a trip and fall incident at the local U-Haul facility in Poughkeepsie, New York. At trial, we argued that the condition in question (a missing piece of floor tile) created no more than a trivial defect, which did not constitute a dangerous condition to members of the general public. The jury returned a unanimous verdict in U-Haul’s favor on October 24, 2008.

Plaintiff appealed the trial verdict, asserting that both the Court’s jury charge and verdict sheet were objectionable, and additionally, that the verdict was against the weight of the credible evidence presented at trial. We asserted (in a brief prepared by associate Pauline Glaser) that the propriety of the jury charge and verdict sheet was not preserved for appellate review, due to trial counsel’s failure to object to either during the trial. We further argued that the jury’s finding that the flooring within the subject U-Haul location was in reasonably safe condition on the date in question was amply supported by the evidence adduced at trial.

On October 7, 2010, Mr. Pinter argued the appeal before the Appellate Division, Second Department, and on October 26, 2010, the panel issued its decision, unanimously affirming the judgment in U-Haul’s favor.