You are here: / Question of Fact Raised About Owner’s Knowledge of Presence of Lead Pa...

Search Results

/ , ,

Question of Fact Raised About Owner’s Knowledge of Presence of Lead Paint

The Fourth Department determined a question of fact had been raised about whether a defendant/owner of the apartment had constructive notice of the presence of lead paint:

The deposition testimony of [defendant] was equivocal and inconsistent with respect to whether he had constructive notice of a dangerous lead paint condition on his property. For instance, Weston alternately testified that there “could have been” peeling or chipping paint, that he did not recall whether there was peeling or chipping paint, and that he had “no problem” with peeling or chipping paint. [Defendant] similarly contradicted himself as to whether he knew that a child lived in the apartment.  Regarding the other [Chapman v Silber (97 NY2d 9)] factors, [defendant] testified that he believed that he had a right to re-enter the apartment to make repairs, and he admitted that he knew by 1990 that lead was bad for children and that it could be found in houses like his. In short, [defendant’s] testimony … raised triable issues of fact regarding constructive notice … .  Watson v Priore, et al, 293, CA 12-00977, 4th Dept. 3-22-13

 

 

/ ,

Cause of Action Based on the Failure to Warn Mechanic About Remote Car Starter Survived Summary Judgment

The denial of summary judgment was affirmed by the Fourth Department.  The plaintiff, a mechanic, was injured when a remote car starter started the car he was working on, dragging and running over him.  The Court determined plaintiff had alleged sufficient facts to support the theory that the defendants (the owners/users of the car in question) had a duty to warn the plaintiff the car was equipped with a remote starter which could start the car when it was in gear and the clutch was not depressed:

Contrary to the contention of defendants, we conclude that Supreme Court properly denied their motion for summary judgment dismissing the complaint. “Under general tort rules, a person may be negligent because he or she fails to warn another of known dangers or, in some cases, of those dangers [of] which he [or she] had reason to know”… .  Chambers v Evans, et al. 291, CA 12-01517, 4th Dept. 3-22-13

 

 

/ ,

Defendant Could Not Deny Ownership Of Vehicle (Which Was Allegedly Transferred to Another Prior to the Accident) Because License Plates Had Not Been Removed

The Fourth Department determined that a defendant, Myers, was estopped from denying ownership of a vehicle, which was alleged to have been transferred to another defendant, Herring, because Myers’ license plates had not been removed:

With respect to the issue of ownership, we note that, pursuant to Vehicle and Traffic Law § 420 (1), “[u]pon the transfer of ownership .. . of a motor vehicle . . . , its registration shall expire; and the seller . . . shall remove the number plates from the vehicle.” Consequently, “[a] registered owner who transfers a vehicle without removing the license plates is estopped as against an injured third party from denying ownership” … . Inasmuch as Myers admittedly left his license plates on the vehicle after purportedly transferring ownership to Herring, Myers is estopped from denying ownership of the vehicle as against plaintiffs. Marafferi, et al v Herring, et al, 267, CA 12-01829, 4th Dept. 3-22-13

TRAFFIC ACCIDENTS

/ , ,

Individual Employees of Defendant Can Be Named In the Complaint Even Though They Were Not Named in the Notice of Claim

In this case a notice of claim was filed naming the Erie County Medical Center Corporation (ECMCC) as defendant. In the complaint, the individual doctors, employees of ECMCC, were named as defendants. Overruling precedent to the contrary, the Fourth Department determined it was not necessary to name the individual employees in the notice of claim in order to sue them. In a full-fledged opinion by Justice Scudder, the Fourth Department wrote:

 …[D]efendants contend that, although service of the notice of claim on the Employee Defendants was not required, plaintiff was nevertheless required to name those individual defendants in the notice of claim as a condition precedent to the commencement of an action against them. Despite precedent supporting that contention, we agree with Supreme Court that there is no such requirement. * * *

Although “[p]recedents involving statutory interpretation are entitled to great stability” …, we conclude that the courts have misapplied or misunderstood the law in creating, by judicial fiat, a requirement for notices of claim that goes beyond those requirements set forth in the statute.

If the legislature had intended that there be a requirement that the individual employees be named in the notices of claim, it could easily have created such a requirement. Goodwin, et al, v Pretorius, et al, 101, CA 12-01441, 4th Dept. 3-22-13

 

/ , ,

Failure to Identify Notice Witness, Erroneous Missing Witness Charge and Erroneous Preclusion of Evidence Required Reversal.

A judgment in favor of the plaintiff after trial was reversed by the First Department because: (1) plaintiff’s son, a notice witness who testified about the alleged defective condition at the core of the lawsuit, had not been identified before trial; (2) a missing witness charge re: a purported employee of the defendant was given in the absence of proof of the employee’s existence; and (3), the testimony of defense witnesses was erroneously precluded or limited.  Collazo v Riverbay Co-op, 2013 NY Slip Op 01904, First Dept. 3-21-13

 

/

Injury to Officer from Collapsing Stretcher Deemed Accidental

The Third Department annulled a determination denying a police officer’s claim for accident disability benefits.  The officer was injured when a wheeled stretcher collapsed.  The Third Department determined the collapse of the stretcher was not a foreseeable consequence of the officer’s ordinary duties and, therefore, constituted an accident.  In the Matter of Scharp v DiNapoli, 515287, 3rd Dept. 3-21-13

 

/

Injuries from Subduing Mentally Disturbed Person Not Accidental

In confirming the denial of a police officer’s application for accidental disability retirement benefits, the Third Department noted that the injuries suffered when subduing a mentally disturbed person were the result of a risk inherent in the duties of a police officer and did not constitute “a sudden, fortuitous, out of the ordinary and unexpected event that [did] not result from an activity undertaken in the performance of regular or routine employment duties” … . In the Matter of Carpenter v DiNapoli, 515251, 3rd Dept. 3-21-13

 

/ , , ,

Criteria for Punitive Damages Award

In an opinion by Chief Judge Lippman, the Court of Appeals explained the criteria for the award of punitive damages in the context of the intentional diversion of storm water onto plaintiff’s property.  In finding the award of punitive damages was not warranted the Court noted:  “…[T]he conduct justifying such an award must manifest ‘spite or malice, or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that the conduct may be called willful or wanton’ …, ‘…conduct that represents a high degree of immorality and shows such wanton dishonesty as to imply a criminal indifference to civil obligations’ “. Marinaccio v Town of Clarence, et al, No. 31, CtApp 3-21-13

 

/

Presumption Disability Related to World Trade Center Work Not Rebutted

In reversing the dismissal of an Article 78 proceeding which sought to annul the denial of petitioner’s application for World Trade Center (WTC) disability benefits, the First Department determined the “World Trace Center presumption” had not been rebutted by the respondents:

Once a petitioner establishes that he worked the requisite number of hours at the site, the “World Trade Center presumption” places the burden on the respondents to show that the petitioner’s qualifying injury was not incurred in the line of duty … . If a determination is made, even postretirement, that the applicant is disabled by a qualifying WTC condition, it will be presumed, unless rebutted, that the disability was sustained due to a work-related accident, thus entitling the applicant to RSSL [Retirement and Social Security Law] § 605(h) disability retirement benefits.

Although the WTC presumption does not mandate enhanced [accident disability retirement] benefits for first responders in all cases, it is nonetheless incumbent on respondents to come forward initially with affirmative credible evidence to disprove that the officer’s disability was causally related to his work at the WTC site … . The Board may not deny benefits solely by relying on the lack of evidence connecting the disability to the exposure, or by “rely[ing] on petitioner’s deficiencies to fill its own gap in proof” … .  Matter of Samadjopoulos v New York City Employee’s Retirement Sys., 2013 NY Slip Op 01901, 400912/10, 9493, 1st Dept. 3-21-13

 

/

Worker’s Claim Not “Truly Closed” So As to Preclude Further Proceedings 

The Third Department reversed the finding of the Worker’s Compensation Board that the claimant’s knee injury case had been “truly closed” in 2009, more than 18 years after the original injury.  Worker’s Compensation Law section 123 prohibits an award of benefits “after a lapse of eighteen years from the date of the injury … and also a lapse of eight years from the date of the last payment of compensation” … .  Knee replacement surgery had been authorized in 2009.  “Considering the nature of the surgery being requested, and the fact that medical examinations of claimant in … 2008 revealed that claimant had a moderate partial disability …, the Board’s conclusion that no further proceedings were contemplated in … 2009 when surgery was authorized is dubious ….”.  In the Matter of Riley v P & V Sadowski Construction, 515259, 3rd Dept. 3-21-13

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy