Representative Cases
New York Civil Appeals and Litigation Support
• In Lazzari v Qualcon Const., LLC, (1st Dept 2018), the court found that plaintiff sufficiently raised triable issues of fact in opposition to defendants’ no-fault threshold motion to dismiss. In particular, the court referenced plaintiff’s medical evidence that the accident aggravated plaintiff’s pre-existing back condition, causing new post-accident symptoms; that plaintiff's prior degenerative changes were not the cause of the current injuries; and that significant limitation of use resulted from the surgical placement of instrumentation.
• In Reaves v Lakota Const. Group, Inc., 154 AD3d 637 (1st Dept 2017), a personal injury action involving a slip and fall on construction debris at plaintiff’s place of employment, the court affirmed the denial of defendants’ motions for summary judgment. As to the contractor and the construction manager, plaintiff established issues of fact concerning the scope of their work and their creation/contribution to the dangerous condition. As to the property owner, the plaintiff sufficiently disputed the claim that it was the alter ego of plaintiff's employer.
• In Matter of Tenzer, 144 AD3d 1044 (2nd Dept 2016), an estate proceeding, the court affirmed the decree directing appellant to transfer real property back to the estate. The court held that the Surrogate's determination that the decedent’s purported signature on the deed was a forgery was supported by the weight of the trial evidence.
• In Behringer v 19407 Linden, LLC, 139 AD3d 777 (2nd Dept 2016), a commercial mortgage foreclosure action, the court affirmed the denial of appellants' motion to vacate the judgment of foreclosure and sale, rejecting the claim that the bank's purported lack of standing was not a defect that deprived the lower court of subject matter jurisdiction.
• In Pantojas v Lajara Auto Corp., 117 AD3d 577 (1st Dept 2014), a personal injury action stemming from a motor vehicle accident, the grant of summary judgment was reversed. The court held, inter alia, that the motion court erred in dismissing the complaint on gap-in-treatment grounds as defendants did not raise that issue in their motion.
• In Grskovic v Holmes, 111 AD3d 234 (2nd Dept 2013), the court excused, under CPLR §2001, appellant's error in failing to timely commence an action where he learned days after the statute of limitations expired that the e-filing had mistakenly been with NYSCEF's "practice/training" system and not in its "live system" due to a glitch in the system. Because the "filing" was performed in a mistaken manner and method, appellant was not obligated to demonstrate an absence of prejudice to respondent.
• In Cedano v City of New York, 93 AD3d 441 (1st Dept 2012), the court affirmed the liability and damages verdict, holding that there was sufficient evidence for the jury to have reasonably concluded that the City, and not some other entity, affirmatively created the condition that caused plaintiff’s accident.
• In Angamarca v New York City Partnership Housing Development Fund Co., Inc., 87 AD3d 206 (1st Dept 2011), the court decided three important issues stemming from plaintiff's damages trial: (1) the court held that the trial court's preclusion of testimony about worker's immigration status and expressed desire to return to his native country was a provident exercise of discretion because it would have been based on speculation; (2) the $100,000 award for past pain and suffering and $1 million award for future pain and suffering deviated materially from reasonable compensation to the extent it deviated from the sums of $1.5 million and $3.5 million, respectively; and (3) the $16.7 million award for future medical expenses for plaintiff with traumatic brain injury did not warrant reduction.
• In Mathew v A.J. Richard & Sons, 84 AD3d 1038 (2nd Dept 2011), the court reversed the denial of summary judgment to defendant retail store, holding that the injury-producing condition — the open lid of a barbecue grill — was open and obvious and not inherently dangerous.
• In Rojas v Schwartz, 74 AD3d 1046 (2nd Dept 2010), the court affirmed the dismissal of plaintiff's Labor Law §200 claim against defendant homeowners, holding that they did not have the authority to supervise or control the plaintiff’s work and they did not create or have notice of the alleged defective condition.
• In Schwartz v City of New York, 74 AD3d 945 (2nd Dept 2010), the court reversed the denial of summary judgment to defendant homeowners. The court held that the liability exemption afforded by NYC Administrative Code §7-210 to owners of two-family dwellings used exclusively for residential purposes applied to the defendants despite the fact that 50% of the dwelling was owned by individuals and the other 50% was owned in combination by individuals and a corporation.
• In Coogan v City of New York, 73 AD3d 613 (1st Dept 2010), the court affirmed the grant of summary judgment to defendant, holding that, as the owner of a two-family dwelling used exclusively for residential purposes, he was exempt from liability under NYC Administrative Code §7-210. The court refused to adopt plaintiff's argument that defendant’s occasional use of his laptop at home for incidental, business-related matters transformed his residence into an office.
• In Schindler v Ahearn, 69 AD3d 837 (2nd Dept 2010), the plaintiff, an experienced elevator mechanic and inspector, was injured when the elevator cab that he stepped into, and knew had a faulty brake, precipitously descended. The court affirmed the grant of summary judgment to defendant property owner, stating that a landowner need not guard against hazards inherent in the worker’s work, hazards caused by the condition the worker is engaged to repair, or hazards that are readily observed by someone of the worker’s age, intelligence, and experience.
• In Hodges v P.C. Richard & Son Service Co., Inc., 59 AD3d 679 (2nd Dept 2009), the court was asked to determine whether plaintiff, a temporary employee who elected to receive workers’ compensation benefits from his general employer, a temporary staffing agency, was barred, pursuant to Workers’ Compensation Law §29(6), from suing defendant, a special employer. The court affirmed the lower court’s dismissal of plaintiff’s complaint.
• In Smith v Matinale, 58 AD3d 829 (2nd Dept 2009), the court reinstated plaintiff’s complaint, finding that triable issues existed as to whether plaintiff sustained a serious injury under Insurance Law §5102. In particular, the court found that any gaps in plaintiff’s medical treatment were adequately explained.
• In Angamarca v New York City Partnership Housing Development Fund Co., Inc., 56 AD3d 264 (1st Dept 2008), the court reversed the lower court’s denial of summary judgment to plaintiff, a construction worker who sustained catastrophic injuries after falling through a skylight opening. The court held that defendants violated Labor Law §240(1) because they failed to provide plaintiff with proper protection from such an elevated-related hazard. Plaintiff went on to obtain a $20 million verdict.
• In Baccash v Sayegh, 53 AD3d 636 (2nd Dept 2008), a legal malpractice action, the court agreed with appellant that the lower court erred in denying his motion to set aside the verdict, and for judgment as a matter of law dismissing the complaint, because plaintiff failed to prove that she suffered any direct damages as a consequence of appellant’s alleged acts of legal malpractice.
• In Sacca v 41 Bleecker Street Owners Corp., 51 AD3d 586 (1st Dept 2008), the court reversed the denial of summary judgment to defendant landowner, finding that plaintiff pedestrian, who was struck by a window screen that allegedly fell from defendant's building, could not rely on the theory of res ipsa loquitur because he could not establish that the screen and its mechanism were within defendant’s exclusive control.
• In Kermanshah Oriental Rugs, Inc. v Gollender, 47 AD3d 438 (1st Dept 2008), plaintiff, a dealer of oriental rugs, sustained property damage as a result of a water leak from a washing machine sold by appellant and installed by respondent. The court, reversing the motion court, held that appellant was entitled to contractual indemnification and reimbursement of attorneys’ fees from installer.
• In Lee v Boro Realty, LLC, 39 AD3d 715 (2nd Dept 2007), the court upheld the dismissal of plaintiff's complaint on the ground that the action was barred by a general release.
• In Bingham v Louco Realty, LLC, 36 AD3d 845 (2nd Dept 2007), the court affirmed the denial of summary judgment to defendants, noting that they failed to establish that plaintiff’s burn injuries were not a foreseeable consequence of defendants' alleged negligence in improperly repairing the running hot water faucet in his apartment, or that their alleged negligence was not a proximate cause of his injuries.