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.
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.
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