New York Civil Service Lawyer & Attorney : Kevin P. Sheerin : Serving New York City, Long Island, Manhattan, Bronx, Brooklyn, Queens, Staten Island

Fernandez v. City of New York

Defendant, Rite Aid, moved for an order dismissing plaintiff’s slip and fall complaint, alleging that the City of New York was on notice of the broken sidewalk and should be responsible for fixing it.

Administrative Code of NYC states that the property owner is responsible for maintaining the sidewalk in a safe condition. In order for the city to be liable for a defective sidewalk, they must have caused and created the defective condition that caused the plaintiff’s accident. Rite Aid employed trial testimony of a supervisor for the NYC Department of Environmental Protection who stated that the condition of the sidewalk appeared to be a result of a fire hydrant malfunctioning or leaking.

Rite Aid failed to provide any evidence that definitively proves that the City is responsible for the alleged defect under the theory of cause and create. They also failed to establish the City’s affirmative negligence and that the condition alleged caused the sidewalk to immediately break and not simply erode over time. Also Rite Aid failed to demonstrate that the sidewalk in proximity to the fire hydrant falls within the special use exception.

Accordingly, the Supreme Court denied the motion for summary judgment.

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Munoz v City of New York

Plaintiff, New York City Police Officer Andres Munoz alleged that his police car was stuck by Defendant, Washington Vera, when responding to an emergency. Defendant, Petrocelli Electric Co., Inc. moved for summary judgment claiming that no issues of triable fact exist.

Vera entered into the intersection while the light was red due to the traffic light having a history of malfunctioning. The issue then becomes whether or not the malfunctioning traffic light is the proximate cause of the plaintiff’s injuries. The Court, though the City and Petrocelli retain responsibility for maintaining properly functioning traffic lights, finds that the malfunction of the light at the time of the accident was not the proximate cause of plaintiff’s injuries.

Accordingly, the Supreme Court ordered that the motions for summary judgment by the City and Petrocelli are granted and the complaint and cross claims dismissed.

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The New York State Department of Motor Vehicles has a comprehensive Frequently Asked Questions page which can be found here: www.nydmv.state.ny.us/dmvfaqs.htm

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Early Childhood Center’s Motion for Summary Judgment Denied

Castro v. City of New York Department of Education

Index No. 104826/05

The Supreme Court of New York County denied defendants’ motion for a summary judgment.

 Infant Plaintiff, three-year old “special needs” student, Nicholas Castro was allegedly injured by another student on three occasions at defendants’ early childhood center. The final injury was a broken femur. Plaintiffs wish to hold defendants liable for negligent supervision.

 The plaintiffs introduced sufficient evidence to raise a triable issue of fact concerning the defendants’ awareness of prior injuries to this child while under their care and custody and to raise factual issues as to the adequacy of supervision.

 Accordingly, the Supreme Court denied the school authorities’ motion for summary judgment.

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S.K. v. City of New York

Index No. 2131/01

Defendants move for an order dismissing plaintiff’s complaint pursuant to CPLR §§3211 and 3212.

Plaintiff, SK, was injured during a fight with LC, a fellow student at the end of gym class on October 20, 1999. The blow to SK’s head resulted in a hemorrhage of a latent congenital vascular malformation resulting in approximately ten brain surgeries. Plaintiff alleges that the New York City Board of Education was aware of plaintiff’s history of abuse by fellow students, including LC, and that the Board was negligent in supervising the students, did not take the necessary steps to protect plaintiff, and ignored the requests of plaintiff’s father to transfer plaintiff to a safer school.

Defendants move for summary judgment on the grounds that the plaintiff was a voluntary participant in the fight, the Board had no reason to consider LC a threat because he has no prior history of violence, and plaintiff’s allegations of prior incidents do not raise a triable issue of fact. Additionally, pursuant to the New York Education Law and the New York City Charter, the city of New York is not a proper party to this action.

The court accepts as true the evidence provided by the plaintiff and therefore a triable issue of facts exists as to whether the Board, in light of the alleged specific knowledge it had that the plaintiff had previously been targeted by classmates, should have provided supervision of plaintiff or taken other steps to ensure plaintiff’s safety during school hours. As for whether plaintiff was a voluntary participant in the fight or simply acting in self-defense, the court feels it is up to a jury to decide.

The defendant’s motion for summary judgment dismissing the complaint is granted as to the City of New York because the City cannot be held liable for torts allegedly committed by the Board of Education and its employees. The motion is denied as to the Board of Education of the City of New York.

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In this personal injury action defendant was granted summary judgment in that plaintiff did not suffer a serious injury within the meaning of the Insurance Law.  On appeal the Appellate Division Second Deparment held that the Plaintiff's treating chiropractor in her affidavit created a question of fact based on her contemporaneous and most recent examinations of the plaintiff which showed a herniated disc at C5-6 and that range of motion limitations were related to the subject accident.   Nigro v. Kovac
www.nycourts.gov/courts/ad2/calendar/webcal/webcal.html

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A high school student cut his hand on a glass door playing basketball in a Nassau County school. His mother sued on his behalf argued that the school should have had safety glass installed. The Appellate Division, Second Deparment granted Defendant Diocese of Rockville Centre summary judgment holding that the glass in the subject door complied with all building codes in effect when the school was built. Dwyer v. Diocese of Rockville Centre 

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In this Nassau County personal injury case plaintiff was a 16 year old cheerleader in a Carle Place School District.  While practicing a stunt wherein she would be torn the air with two fellow cheerleaders in as spotters under the supervision of the cheerleading coach.  There was a question of fact whether the injured girl landed on a mat or on the wooden gym floor.  The intention was for the to spotters to throw her in the air that she would perform a stunt.  Prior to disrobing completed she lost her balance and fell as result the plaintiff suffered personal injuries.  Judge Phelan held that the school district must exercise ordinary care to protect student athletes involved in extra curricular sports from on assumed were unreasonably increased risks.  Defendant's motion for summary judgment pursuant to CPLR 3212 was granted, in that, defendant school district did not breach any duty by failing to provide additional safeguards against such a remote risk as her landing off the mat.

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White v. Incorporated Village of Hempstead In this Nassau County personal injury case following a default judgment in favor of the defendant the plaintiff moved for vacatur of the default citing law office failure. Plaintiff’s motion was granted and defendant also moved for summary judgment claiming lack of notice of the defective playground where plaintiff was injured. The Appellate Division, Second Department held that although the code of the village of Hempstead section 39-1 (b) allegedly requires that as a condition precedent to suit that Village be provided with prior notice of defective playground equipment New York State General Municipal Law section 50-e (4) prohibits a village from requiring prior written notice of defects at municipal locations other than streets, as highways, as bridges, his culverts, sidewalks or crosswalks. The Court held that that plaintiff suit would survive in that plaintiff created a triable issue of fact as to whether the village created the condition that caused the plaintiffs injuries.

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Plaintiff must prove Serious Injury at Inquest

Abbas v. Cole recently decided by the Appellate Division, Second Dept. held that even when a defendant defaults the plaintiff must submit proof in admissible form of serious injury at inquest to prevail.   In the instant case defendant defaulted and in a motor vehicle accident case for personal injuries. Plaintiff moved for a default judgment and defendant moved for more time to answer. Plaintiff’s motion was granted and defendant’s denied. Defendant appeal the entry of judgment on the ground that improper evidence was admitted at the inquest. The Appellate Division affimed the Supreme Court decision that serious injury, if not previously determined, must be proven at an inquest. 

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