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Sufficient Factual Allegations of Malpractice Not Made/Denial of Motion to Reargue Appealable as of Right Because the Merits Were Dealt with By the Motion Court

The Third Department, in affirming the dismissal of a legal malpractice complaint, determined that the fact that the motion court dealt with the merits of a motion to reargue while denying it rendered the denial appealable as of right:

As a general proposition, “no appeal lies from the denial of a motion to reargue” … . Where, however, the court actually addresses the merits of the moving party’s motion, we will deem the court to have granted reargument and adhered to its prior decision — notwithstanding language in the order indicating that reargument was denied … . Accordingly, Supreme Court’s April 2013 order is appealable as of right (see CPLR 5701 [a] [2] [viii]…). * * *

To survive defendants’ motion to dismiss, it was incumbent upon plaintiff to, among other things, “plead specific factual allegations establishing that but for counsel’s deficient representation, there would have been a more favorable outcome to the underlying matter” … , i.e., an earlier — and successful — award of partial summary judgment on the issue of liability. This plaintiff failed to do. Rodriguez v Jacoby & Meyers, LLP, 2015 NY Slip Op 02151, 3rd Dept 3-19-15

 

 

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Abutting-Property-Owners Not Responsible for Defects in Sidewalk Tree Wells/City Did Not Have Written Notice of Defect in Tree Well Where Plaintiff Fell

The Second Department noted that NYC abutting-property-owners are not liable for the condition of tree wells within the sidewalk.  Here the city had not received notice of a defect in the tree well where plaintiff fell, therefore summary judgment was granted to the city:

A tree well does not fall within the applicable Administrative Code definition of “sidewalk” and, thus, “section 7-210 does not impose civil liability on property owners for injuries that occur in city-owned tree wells” … . * * *

“A municipality that has adopted a prior written notice law’ cannot be held liable for a defect within the scope of the law absent the requisite written notice, unless an exception to the requirement applies” … . The Court of Appeals has recognized two exceptions to this rule: (1) where the locality created the defect or hazard through an affirmative act of negligence; and (2) where a special use confers a special benefit upon the locality … . The affirmative creation exception is “limited to work by the City that immediately results in the existence of a dangerous condition” … .

In order to hold the City liable for injuries resulting from defects in tree wells in City-owned sidewalks, a plaintiff must demonstrate that the City has received prior written notice of the defect or that an exception to the prior written notice requirement applies (see Administrative Code of City of NY § 7-201[c][2]…). Donadio v City of New York, 2015 NY Slip Op 02093, 2nd Dept 3-18-15

 

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Plaintiff Could Not Demonstrate Cause of Her Fall Without Resorting to Speculation

The Second Department determined summary judgment was properly granted to the defendant in a slip and fall case because the plaintiff could not identify the case of her fall:

“Ordinarily, a defendant moving for summary judgment in a trip-and-fall case has the burden of establishing that it did not create the hazardous condition that allegedly caused the fall, and did not have actual or constructive notice of that condition for a sufficient length of time to discover and remedy it. However, a defendant can make its prima facie showing of entitlement to judgment as a matter of law by establishing that the plaintiff cannot identify the cause of his or her fall without engaging in speculation” … .

“[A] plaintiff’s inability to identify the cause of the fall is fatal to the cause of action, because a finding that the defendant’s negligence, if any, proximately caused the plaintiff’s injuries would be based on speculation” … . “Where it is just as likely that some other factor, such as a misstep or a loss of balance, could have caused a slip and fall accident, any determination by the trier of fact as to causation would be based upon sheer conjecture” … .

Here, the defendants established their prima facie entitlement to judgment as a matter of law by submitting a transcript of the plaintiff’s deposition testimony, which demonstrated that the plaintiff could not identify the cause of her fall without resorting to speculation … . Mitgang v PJ Venture HG, LLC, 2015 NY Slip Op 02101, 2nd Dept 3-18-15

 

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The Jury Should Have Been Instructed on the Res Ipsa Loquitur Doctrine—Infection Developed After Injection

The Second Department determined plaintiff’s motion to set aside the verdict should have been granted because the jury should have been instructed on the res ipsa loquitur doctrine.  Plaintiff developed an infection after a cortisone injection.  There was expert testimony that such an infection would not develop if standard procedures had been followed:

Under appropriate circumstances, the evidentiary doctrine of res ipsa loquitur may be invoked to allow the factfinder to infer negligence from the mere happening of an event (see Restatement [Second] of Torts § 328D). “Res ipsa loquitur, a doctrine of ancient origin …, derives from the understanding that some events ordinarily do not occur in the absence of negligence” … . “In addition to this first prerequisite, plaintiff must establish, second, that the injury was caused by an agent or instrumentality within the exclusive control of defendant and, third, that no act or negligence on the plaintiff’s part contributed to the happening of the event … . Once plaintiff satisfies the burden of proof on these three elements, the res ipsa loquitur doctrine permits the jury to infer negligence from the mere fact of the occurrence” … . Moreover, “expert testimony may be properly used to help the jury bridge the gap’ between its own common knowledge, which does not encompass the specialized knowledge and experience necessary to reach a conclusion that the occurrence would not normally take place in the absence of negligence, and the common knowledge of physicians, which does .. .

Here, the plaintiff presented expert testimony that a MRSA infection from an injection does not occur if the podiatrist adheres to the accepted standard of care. Bernard v Bernstein, 2015 NY Slip Op 02084, 2nd Dept 3-18-15

 

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Out-of-Possession Landlord Not Liable—Criteria Described

The Second Department determined summary judgment should have been granted to the out-of-possession landlords and explained the applicable law. Plaintiff’s leg went through the roof of landlords’ building:

“An out-of-possession landlord can be held liable for injuries that occur on its premises only if the landlord has retained control over the premises and if the landlord is contractually or statutorily obligated to repair or maintain the premises or has assumed a duty to repair or maintain the premises by virtue of a course of conduct” … . Here, the building defendants established, prima facie, that I Bldg and Surfside were out-of-possession landlords with no contractual obligation by submitting the lease, which obligated the tenant to maintain the premises and make all structural and nonstructural repairs … . Although I Bldg and Surfside retained a right to enter the premises, the plaintiff failed to raise a triable issue of fact as to whether the allegedly dangerous condition on the premises violated an applicable statutory provision sufficient to impose liability upon them … . The plaintiff did not contend that the building defendants assumed a duty to repair the premises by virtue of a course of conduct. Martin v I Bldg Co., Inc., 2015 NY Slip Op 02100, 2nd Dept 3-18-15

 

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Failure to Link Specific Monetary Loss to Acts or Omissions of the Attorneys Required Dismissal

The Second Department determined plaintiff’s legal malpractice action should have been dismissed because the plaintiff did not demonstrate a specific monetary loss was proximately caused by the negligence of the attorneys. Plaintiff alleged the attorneys failed to ensure that a note, guarantee and mortgage were enforceable against Nina, who disaffirmed liability on the ground of legal incapacity:

In an action to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney’s breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages … . To establish causation, the plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, “but for the attorney’s negligence” … .

…The plaintiff failed to demonstrate the amount it could or would have collected if the note, the guaranty, and mortgage had been enforceable against Nina … . In addition, the plaintiff failed to demonstrate that it was unable to recover the amounts due under the note by other legal means available to it under the terms of the note and guaranty, or that it was unable to obtain equitable relief from Nina even after she disaffirmed liability on the ground of legal incapacity (see Restatement [Second] of Contracts § 14, Comments b, c; see also Restatement of Restitution § 139). Since the plaintiff failed to demonstrate the extent to which it would have been unable to enforce the note and the guaranty after it was disavowed by Nina, and the precise extent to which it would have been able to recover had the note, the guaranty, and the mortgage been enforceable against her, the plaintiff failed to establish, prima facie, that any negligence on the part of [the attorneys] was a proximate cause of actual and ascertainable damages … . Quantum Corporate Funding, Ltd. v Ellis, 2015 NY Slip Op 02104, 2nd Dept 3-18-15

 

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Proof of General Cleaning Procedures Not Sufficient for Summary Judgment to Defendant in a Slip and Fall Case

In a slip and fall case, reversing Supreme Court, the Second Department explained (once again) that proof of general cleaning procedures (as opposed to proof when the area in question was last inspected or cleaned) is not sufficient to warrant summary judgment to the defendant:

A defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it did not create the hazardous condition which allegedly caused the fall, and did not have actual or constructive notice of that condition for a sufficient length of time to discover and remedy it … . To meet their burden on the issue of lack of constructive notice, the defendants were required to offer some evidence as to when the accident site was last cleaned or inspected prior to the injured plaintiff’s fall … . “Mere reference to general cleaning practices, with no evidence regarding any specific cleaning or inspection of the area in question, is insufficient to establish a lack of constructive notice” … . Here, the affidavit of the Safety and Security Manager for the subject IKEA store, which was submitted in support of the defendants’ motion, only provided information about the store’s general cleaning and inspection procedures concerning the promenade, and did not show when the subject area had last been inspected or cleaned prior to the happening of the accident … . Thus, the defendants failed to establish, prima facie, that they lacked constructive notice of the allegedly dangerous condition … . Furthermore, the defendants failed to establish, prima facie, that the alleged condition was too trivial to be actionable, or was open and obvious and not inherently dangerous as a matter of law. Barris v One Beard St., LLC, 2015 NY Slip Op 02083, 2nd Dept 3-18-15

 

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Motion to Set Aside Verdict Properly Denied—The Jury Determined Defendant’s Negligence Was Not the Proximate Cause of the Accident—Analytical Criteria Explained

In finding the plaintiff’s motion to set aside the verdict as contrary to the weight of the evidence was properly denied, the Second Department explained how to analyze the jury’s conclusion the defendant’s negligence was not the proximate cause of the accident:

A jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached the verdict by any fair interpretation of the evidence … . “A jury’s finding that a party was at fault but that such fault was not a proximate cause of the accident is inconsistent and against the weight of the evidence only when the issues are so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause” … . “[W]here there is a reasonable view of the evidence under which it is not logically impossible to reconcile a finding of negligence but no proximate cause, it will be presumed that, in returning such a verdict, the jury adopted that view” … . Moffett-Knox v Anthony’s Windows on the Lake, Inc., 2015 NY Slip Op 01929, 2nd Dept 3-11-15

 

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Jury’s Failure to Award Damages for Future Pain and Suffering Did Not Warrant Setting Aside Verdict

The Second Department determined Supreme Court should not have granted plaintiff’s motion to set aside the verdict based upon the jury’s failure to award damages for future pain and suffering.  The court explained the relevant analytical criteria:

In determining a motion pursuant to CPLR 4404(a) to set aside a verdict as against the weight of the evidence, the court must decide whether the evidence so preponderates in favor of the movant that the verdict could not have been reached upon any fair interpretation of the evidence … . Resolution of the motion does not involve a question of law, but rather requires a discretionary balancing of many factors … . Moreover, “[g]reat deference is accorded to the fact-finding function of the jury, and determinations regarding the credibility of witnesses are for the factfinders, who had the opportunity to see and hear the witnesses” … . Thus, “[w]here the verdict can be reconciled with a reasonable view of the evidence, the successful party is entitled to the presumption that the jury adopted that view” … .

Contrary to the plaintiff’s contention, the jury’s failure to award damages for future pain and suffering was based upon a fair interpretation of the evidence presented at trial, with consideration given to the credibility of the witnesses and the drawing of reasonable inferences therefrom, and there was no basis in the record for the trial court to disturb the jury’s resolution of credibility issues against the plaintiff … . Raso v Jamdar, 2015 NY Slip Op 01934, 2nd Dept 3-11-15

 

3/4 Inch Depression Obscured by Puddle of Water Not Trivial As a Matter of Law

The Second Department determined Supreme Court should not have granted summary judgment to the defendant in a slip and fall case.  Plaintiff fell when she stepped in a depression which was filled with water.  Defendant argued the 3/4 inch depression was trivial and Supreme Court agreed.  The Second Department explained the “trivial defect” analytical criteria and noted that plaintiff had alleged the area was poorly lit:

“[W]hether a dangerous or defective condition exists on the property of another so as to create liability depends on the peculiar facts and circumstances of each case and is generally a question of fact for the jury” … . “Property owners may not be held liable for trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub his or her toes, or trip” … . “[T]here is no minimal dimension test’ or per se rule that a defect must be of a certain minimum height or depth in order to be actionable” …, and “a mechanistic disposition of a case based exclusively on the dimension of the . . . defect is unacceptable” … . To determine whether a defect is trivial as a matter of law, a court must examine “the facts presented, including the width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance’ of the injury” … . “A condition that is ordinarily apparent to a person making reasonable use of his or her senses may be rendered a trap for the unwary where the condition is obscured or the plaintiff is distracted” … . Tesoriero v Brinckerhoff Park, LLC, 2015 NY Slip Op 01938, 2nd Dept 115 3-11-2015

 

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