New York Personal Injury Lawyer Blog

A man, his wife and his two children watched a concert at an indoor arena in New York City on May 28, 2005. On their way out of the venue at the end of the concert, they were all coming down the stairs: the mother in front, nearest the left railing, the father right behind the mother and their two daughters behind.

The mother tripped and fell while going down the steps. She tried to grab the railing on her left but was unable to and she sustained injuries. As the wife was falling, the husband tried to reach his wife to keep her from falling but the husband also had a trip and fall on the same step. He bounced on his bottom down three or four steps of the stairs.

The man and his wife then sued the arena. During discovery, the couple testified with the aid of a Spanish interpreter. They testified that immediately after the accident the couple was in pain that they did not look at the steps of the stairway to determine exactly what caused them to trip and fall. It was only six months after the accident that the husband went back to the arena to inspect the stairs and found that the defect was a semi-circle shaped chip or wear on the concrete step.

A guard at the arena also testified that he heard the sound of someone falling and that he heard shouts but he did not see the accident
happened. He also testified that he did not inspect the steps to see if there was any dangerous condition on them. He testified that he was unsure if there was any procedure he should have followed after reporting the accident to his supervisor.

Later, as a support of their Bill of Particulars, the couple submitted the sworn affidavit of their daughter who was 14 years old at the time of the accident. She saw her mother trip and fall and she also saw her father try to catch his mother from falling and then fall at the same place her mother had fallen. She was the one who looked at the place on the top step and saw that the step was broken and chipped. She saw a part of the step indented in a semi-circle shape. She stated that she saw black tape partially covering the missing part.

The owner of the arena and the property manager moved for a summary judgment of dismissal on the ground that the couple failed to prove that they created the fault or defect or that even if they had not, that they had notice of the defect and yet failed to remedy it. They also claimed that the couple just feigned their testimony and changed their testimonies to avoid the consequences of having the case dismissed.

The Court ruled that the change in the testimony alluded to by the arena owner and the property manager are really amplifications of their earlier testimony. In their latest affidavit, they provided more details than their first affidavit but they did not change their theory of the case.

The owner of the arena and the property manager aver that the couple did not provide preliminary evidence that the chip or broken part was the proximate cause of the accident and that it did not exist at the time of the accident. The Court ruled that these questions are triable issues of fact. The motion for summary judgment is denied.

Continue reading "A man, his wife and his two children watched a concert at an indoor arena in New York City" »

A female stenographer who worked for a transcribing company in New York City was ordered by her employer to travel to Toronto, Canada to take down the minutes of depositions there. She went to Toronto with several employees. They stayed there for a few days and were going home to New York to type up the depositions before the New Year holiday on December 30, 1980. As the female stenographer was going to take a shower before leaving for the airport to board her return to New York City, she slipped and fell while stepping into the bathtub to take her shower.

She brought suit for compensation for the injury she sustained. The Workers’ Compensation law judge determined that the injury she sustained arose out of and in the course of her employment. The Workers’ Compensation Board affirmed this finding. The Board stated further that the stenographer would not have gone to Toronto were she not required to travel there on the business of her employer. She was directed to stay there for a length of time and that her status as employee continued while she was in Toronto. Her employer benefited from her work during her stay in Toronto and in fact, the employer contributed to her injury when he required her presence in Toronto where the accident took place.

The Appellate Division reversed the Workers’ Compensation Board finding and held that taking a shower is a purely personal act. Even if the employee were on a business trip out-of-town at the instance of her employer, she sustained the injury while doing a purely personal act which is not compensable.

The Workers’ Compensation Board appealed the reversal of the Appellate Division. The only question raised on appeal is whether or not the injury sustained by the trip and fall in the hotel bathtub by the employee while on business trip is compensable.

The Supreme Court opined that traditionally, employees are compensated when they sustain injuries while traveling in the business of his employer and while they employee was acting in furtherance of his employer’s business. But this rule has been expanded when the courts recognized that when the employer changes the environment of the employee, as when he is required to go out-of-town on the business of the employer, the employee is at greater risk of sustaining injuries.

The acts of dressing and taking a shower used to be regarded only as purely personal acts such that the employee cannot be compensated if he sustains injury while committing these purely personal acts. However, the Supreme Court has also ruled in other cases in the past that when employees slipped and fell in a hotel bathtub while preparing to return to their place of employment, the injuries they sustained even while acting in purely personal acts were found to be compensable. This is because the employer has increased their risk of injury by taking them to a place that is new and unfamiliar to them. The Supreme Court also cited cases where it has awarded compensation to employees who sustained injuries while dressing and bathing in the bathroom facility within the premises of the employer on the same basis that the employer’s facilities were a new environment that created greater risk of injury for the employer.

The Appeals Division should not have reversed the findings of the Workers’ Compensation Board as these are considered conclusive on the courts if supported by substantial evidence.
Thus, the Supreme Court applied the expanded theory of compensation to employees who sustain injury while doing purely personal acts when they are traveling on business of their employer. For this reason, the Appellate Division’s order reversing the Workers’ Compensation Board is reversed and set aside. The decision of the Workers’ Compensation Board is reinstated.

Continue reading "A female stenographer who worked for a transcribing company in New York City" »

A couple from New York City checked in a five-star hotel expecting to have a comfortable and luxurious stay after a day’s work but unfortunately, the wife tripped and fell on their hotel room the day they arrived. The wife attributes the accident to the duvet cover being improperly draped on the floor by the hotel's staff, which she claims created a tripping hazard. Her husband brings a derivative claim for loss of services. The Hotel requests to dismiss the complaint on the grounds that there are no issues capable of trial because the couple cannot establish a legitimate case of negligence thus, the Hotel does not owe the couple a duty.

Sources revealed that around six in the morning, the wife checked in as a guest in a Hotel located at Madison Avenue, New York. She checked in at the bell desk and went straight to work without going up to the room. Her husband arrived separately later that evening at around nine in the evening. Upon entering the room, he threw his bag on the floor, turned on the lights, and began reading the New York Times for about 20 to 30 minutes and he did not recall using the bed.

At approximately ten in the evening, the wife returned to the hotel after attending an industry dinner. Her husband was waiting for her in the hotel room and was still reading the newspaper in a chair. The wife recalled that when she entered the room, the bed was made and there was a duvet cover on it. The bed appeared very low to the ground as if the bed frame was missing and the bed was sitting on the floor. She noticed that there was very little lighting in the room, but did not remember where any of the lighting fixtures were located and could not describe any of the other furniture in the room. She went to the bathroom to undress and she walked over to kiss her husband. When walked back towards the bathroom, she allegedly tripped over the duvet cover, which she claims was touching the floor. She fell forward to the wall and floor resulting in alleged injury.

The wife did not notice the duvet cover before she tripped. However, when she looked back to see what caused her to fall she saw a portion of it hanging off the bed and onto the floor. The portion of the duvet cover that was draped onto the floor was bunched up and folded. The wife believes that she tripped over the bunched up portion of the duvet cover because when she looked back directly after her fall, she could clearly see it and also felt that she did not drag the duvet cover off the bed when she fell.

According to reports, the husband saw her wife trip and fall, but he did not know what caused the accident. He saw her trip over the bedding but he did not know whether she tripped on the duvet cover, bed skirt or something else. Nor did he know if the duvet cover was touching the floor. He did not think that the plaintiff tripped over the mattress or bed itself because he would have heard banging against the bed.

Right after the incident, the Director of Housekeeping for the hotel was called to the room of the couple at around ten in the evening. He did not have a chance to thoroughly observe the bed, but he did not believe that the bed was made. The wife reported that she had tripped over the bed skirt, and the Housekeeping Director filled out an incident report noting that the husband had called to report that plaintiff tripped over the bed skirt.

The Housekeeping Director also testified that at the time of the incident, the beds in the hotel's guestrooms were metal bed frames with a box spring and a mattress on top that were of standard height, length and width. The hotel had very high standards and specific design elements, and made sure that its standards were adhered to. The rooms were inspected everyday throughout the day whenever a room was cleaned and after a room was cleaned. When he had the opportunity to inspect the way a bed was made in a particular room, the sheets or covers did not touch the floor if the bed was made. If a bed had been made and a duvet cover was touching the floor, it would not have been up to the standards of the hotel. Prior to the date of the accident, the hotel had never received any complaints from guests about bedding touching the floor, and no guest had ever tripped on bedding or sheets hanging on the floor.

The complaint neither created the condition that caused the accident, nor had actual or constructive notice of a dangerous condition. The Hotel also argues that the couple cannot establish that a defect even existed, since the allegedly defective condition was open and obvious and not inherently dangerous.

The couple asserts that the condition of the bed was entirely within the Hotel’s control since only the hotel staff was responsible for cleaning the rooms, and that the hotel had exclusive possession of the room prior to their arrival. The couple also contends that the bed was not made fully or was made negligently, thus violating the Hotel's own safety standards.
The Court does not find that the Hotel met its initial burden of demonstrating that it created nor had actual or constructive notice of any hazardous conditions prior to the accident. The couple presented the testimony of the Hotel Staff indicating that the hotel's rooms were inspected daily and throughout the day, and that if a bed was made with the duvet cover touching the floor it would not have been up to the hotel's standards. The Housekeeping Director’s own inspections of the hotel's rooms revealed that the sheets or covers did not touch the floor if the bed was made. When he appeared in the room of the couple following the accident, he recalled that the bed was unmade. He also testified that at no time prior to the accident had the hotel ever received any complaints from guests about bedding touching the floor, and that prior to this incident no guest had ever tripped on bedding or sheets hanging on the floor.

Furthermore, the couple’s allegation that the Hotel had exclusive possession of the room prior to plaintiff's arrival is disproven by the evidence, as it is undisputed that the husband was present in the room alone for at least 30 minutes before his wife returned, nor can the couple establish constructive notice as there is no evidence establishing how long the condition complained of existed, or any testimony of any prior accidents. In order to constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to allow the defendant to discover and remedy it.

The Court has also considered the couple’s remaining arguments in opposition to summary judgment, and finds them to lack merit. Accordingly, the Hotel’s motion for dismissing the complaint was granted.

Continue reading "A couple from New York City checked in a five-star hotel" »

While walking on the sidewalk, a man allegedly had a trip and fall accident on a portion of the sidewalk near the City Library which rests against metal grating. As a result of the accident, Gray sustained injuries to his left hand, his left forth finger, and to other parts of his body. He filed summons and complaint against five defendants. The action is to recover monetary damages for personal injuries sustained.

Sources revealed that Defendant A is a City in the U.S, Defendant B is a City Transit Authority, Defendant C is a Metro Transit Authority, Defendant D is an electric service provider and Defendant E is a public library. Defendants B and C requested to dismiss the complaint and all cross claims made against them. They contend that the plaintiff and the co-defendants have failed to state a cause of action as against them and that there are issues capable of trial in dispute as they do not own, maintain, operate or control the sidewalk or the grating where plaintiff fell. Defendant A argued that it is neither the owner of the subject sidewalk, nor is responsible for its maintenance. Defendant D argues that a question of fact exists whether it was responsible for maintaining the sidewalk as the Library has admitted in a previous case that it entered into a contract with a construction company for its rehabilitation and replacement.

The Plaintiff claims that the contractors previously performed work on behalf of the Library at the location of the accident.

The Authorities submit an affidavit from a civil engineer employed by the Defendant B states that she reviewed Gray's notice of claim, the bill of particulars, and photos of the grating in question and conducted a search for blueprints of the sidewalk grating. The civil engineer maintains that she found no files or records relating to the subject area and further states that Defendant B does not own, maintain, operate or control the sidewalk or the grating where plaintiff fell. The civil engineer’s affidavit also states that the grating where plaintiff fell has a diamond pattern and hinges, which are utilized by Defendant D and not utilized by Defendant B. She concludes that transit gratings are curbside and are used to provide ventilation to train passengers directly below. This grating does not serve Defendant B and is not located at or on the Transit Authority system.

The Authorities also argue that, according to City Charter, public streets in the City are the property of the City and the City has the duty to maintain and repair any defects or dangerous conditions. They contend that, because the sidewalk in question is a public thoroughfare and the grating is the property of another party, the Authorities have no control or authority over said area. In addition, the Authorities contend that there is no evidence that they received prior notice of any perceived or alleged condition, nor has there been any showing that they created or caused the condition stated in plaintiff’s complaint.

The City contends that the Administrative Code of the City states that liability for the accident arising from a defective sidewalk has been shifted from the City to the owner of the real property which abuts the defective sidewalk. The City states that unless an exception is found to exist, liability for defective sidewalks attaches to the landowner and not to the City.

The Plaintiff contends that the Authorities' motion should be denied as the affidavit of the civil engineer is self-serving and as the testimonies of the parties have not yet been conducted. He also argues that although the civil engineer claims that the grating does not belong to Defendant B and is of the type utilized by Defendant D, Defendant D has not affirmatively stated that the grating is in fact their own.

Continue reading "While walking on the sidewalk, a man allegedly had a trip and fall accident" »

A widow of a deceased employee found herself responding to the appeal made by his deceased husband’s employer and its insurance carrier. The sudden death of her husband while on a business trip is in question.

On the morning of March 1972, as the now deceased man was in the process of checking out at the front desk of an Inn and Country Club. While on the front desk, he suddenly fell and struck his head on the floor. He came home to New York but unfortunately died one week later. His medical records revealed that the cause of his death is head injury and skull fracture. The said man is the Director of sales training for the employer in New York. He left New York on a business trip to Florida. The evidence discloses that the main objective of the trip of the now deceased man was to give the opportunity to carry on business discussions with customers of the employer and ultimately to address a sales meeting in Florida. All of the expenses of the trip were paid by the employer.

The employer and its insurance carrier appeal from the decision of the board which affirmed an award for death benefits allowed to the widow of the deceased employee based upon findings that the deceased had suffered a compensable accidental fall which resulted in his skull fracture and resultant death and that said accident arose out of and in the course of his employment. The widow claims that his husband did not have an accident arising out of the employment and that the damage was not occasioned by the willful intention of the employee. If the deceased man’s injury was occasioned by intent, he would, of course, be barred from compensation.

The Court found substantial evidence in the record to confirm the finding of the board that the now deceased man was in the course of his employer's business at the time of his accident. In addition to the fact that the employer paid the expenses of the trip, the board found that during the now deceased man’s stay in the Inn and Country Club he was in frequent contact with a major customer of the employer.

The next contention of the appellants is that the accident did not arise out of the deceased man’s employment. The establishment of the fact that the fall was within the course of employment raises the presumption of the Workmen's Compensation Law that it also arose out of the employment in the absence of substantial evidence to the contrary. The Appellants contend that the presumption has been overcome by direct evidence that the fall was unknown in origin, and therefore non-compensable. The Court disagrees. The physicians who examined the deceased testified that they could not discover an internal cause for the fall, nor could they determine whether decedent's fracture caused or was caused by an internal brain hemorrhage. The only person present at the time of the accident could not state the cause of the fall and did not see the deceased hit the floor.

Thus, although the accident was in a sense witnessed, there is no proof on the question of whether it was self-originated, or whether it was caused by or its consequences contributed to by the desk or some other thing present in the environment in which decedent found himself in the course of his employment. An unexplained accident is the equivalent of an un-witnessed one.

Since it was not demonstrated that the fall was of unknown cause and arising spontaneously and caused in any part by the physical condition of the deceased, the accident is entitled to the presumption of the statute. The decision was affirmed.

Continue reading "A widow of a deceased employee found herself responding to the appeal" »

The defendants in this case had filed for a motion seeking to dismiss the complaint of the plaintiff regarding a personal injury case. The court granted the motion filed by the defendants based on the facts and information presented.

The plaintiff was a woman in her sixties and allegedly sustained injuries caused by a trip and fall incident. According to the testimony of the plaintiff, she parked her car along the road that leads to a church. During the day of the accident, she was walking across the parking lot to get to the church. She attends mass at 12 noon. The plaintiff knew the area since she visited the neighbourhood at least twice per month. While walking, the plaintiff kept her eyes straight ahead and also at the sidewalk. Before the incident, the plaintiff had noticed the existence of the uneven sidewalk and even thought to herself that the sidewalk was prone to accidents.

The plaintiff was aware of the seam or crevice on the sidewalk. However, she turned her head in the other direction because she heard the screaming voices of children. It was at that instant that she fell on the ground. One of the children’s fathers came over and helped her get up.

The defendant in this case admitted to owning the property near the area the plaintiff fell. The defendant owned the house near the road. According to the statement of the defendant, he said that he has been maintaining his lawn including the curb and the sidewalk. Since the defendant’s property has many trees, he lets a professional company maintain the trees for him.

The defendant admitted to knowing that there was an uneven portion of the sidewalk fronting his home. However, the defendant did not see or know of anyone who stumbled or tripped over that portion of the sidewalk.

In her complaint, the plaintiff cited overgrown trees as the reason for her fall. She further claimed that the presence of overgrown trees on the sidewalk has hidden any potentially harmful and uneven slabs of concrete. This can create some kind of trap to an unknowing victim.

The defendant challenged the plaintiff’s claim that even though they planted the trees, it does not automatically mean that they are liable. The defendant also pointed out one of the statements of the plaintiff in which she did not remember exactly which house fronted the sidewalk during her fall.

Upon review of the facts, the court has noted that the plaintiff knew of the overgrown trees and the uneven sidewalk even before the accident. Even if the overgrown trees hid the crevice on the sidewalk, the court explains that the situation should be viewed from the perspective that the plaintiff was already a regular user of that sidewalk. Even if she did not see the uneven sidewalk while walking, this doesn’t mean that there was negligence on the part of the defendant.

The court has also noted that she was not looking at the sidewalk while walking. There was no due diligence on her part concerning her safety. The plaintiff even admitted that she knew where the uneven sidewalk was because of her frequent trips to the neighbourhood. The whole thing should be considered an accident. No party was liable to pay damages for injuries.

Furthermore, the court has found the absence of notice since the location of the fall is questionable at this point. The provisions of the law state that a written notice concerning any defect on that particular property should be present for the complainant to have some bearing on the case. Without sufficient evidence, the defendant’s motion is granted and the case is dismissed.

Continue reading "The defendants in this case had filed for a motion seeking to dismiss the complaint" »

The plaintiff filed a deposition involving a trip and fall accident that allegedly occurred while the plaintiff was walking along the sidewalk between the two buildings. According to the complaint filed by the plaintiff, the two buildings were owned by a restaurant and a pub. The plaintiff pointed out that the weather was clear during that time. The accident occurred in broad daylight.

Based on the testimony of the plaintiff, he came upon two uneven slabs of the sidewalk, causing him to trip on the slab that jutted out of the sidewalk. He fell onto the ground and sustained injuries. The plaintiff was not aware of this uneven portion of the sidewalk since he was looking straight ahead while walking along. The plaintiff further stated that his fall was caused by a seam in the sidewalk. According to his supporting statements, one part of the sidewalk was higher compared to the other part. The plaintiff’s shoe got caught in the seam, causing the plaintiff to fall on the ground.

It was noted by the court that the plaintiff lived near the area and had walked on the same sidewalk frequently. She did not notice the presence of the seam until the accident. The plaintiff was also not aware of incidents prior to the filing of this case.

Upon reviewing how the plaintiff was involved in the accident, the court must then determine the ownership of the buildings flanking the sidewalk. According to the facts presented in the case, the lease of the buildings was owned by a restaurant. Based on the terms of the lease, all tenants must observe the proper repair and maintenance of the sidewalk. This includes the fixtures inside the premises as well as those outside the building. In the lease agreement, the terms also state that all tenants are tasked to be responsible in preserving the fixtures and sidewalks in good working condition.

It has been noted by the court that the main lease agreement contained the provision that the landlord of the property is responsible for initiating repairs of utilities including everything else that’s outside such as the walls, the roof and the sidewalk.

With these terms indicated on the lease agreement, the restaurant has moved for dismissal of the case. The restaurant identifies three reasons why a dismissal should be ordered by the court. For the first reason, the restaurant clearly believes that it has no responsibility for such sidewalk repairs as stated in the lease agreement. The second ground for dismissal involves the plaintiff’s allegation. It should be viewed by the court as mere speculation since the plaintiff failed to establish what really caused the fall. The third reason for dismissal was there was no notice of any defect on the sidewalk. There was no record of anyone complaining of an uneven sidewalk.

The plaintiff contends the statements of the restaurant. According to the statements, the restaurant was fully aware of the defect on the sidewalk but did not do anything about it. The plaintiff cites a provision on the lease agreement concerning the part that the tenant was obliged to report any defect found on the premises including the sidewalk.

After reviewing the provisions of law, the lease and facts presented on the case, the court has ruled that it is the duty of the property owner to maintain and repair the sidewalk for public safety. In this regard, it is the property owner that will become liable in the event that an accident has occurred because of negligence. The court has granted the restaurant’s motion for dismissal and proceeded to clear it of any obligation to pay damages.

Continue reading "The plaintiff filed a deposition involving a trip and fall accident" »

Two female pre-school teachers took 72 pre-school students to watch a puppet show at a theatre in Queens. The two teachers, in different areas of the theatre, seated each of their students before the start of the show and before going to their own seats.

As they were walking to their seats, the houselights were suddenly turned off. The entire theatre went dark. As a result of the sudden turning off of the houselights, one teacher missed her step while on the theatre stairs. She fell on her knees and was seriously injured. After she fell, she noticed that there was a strip of light at the edge of each step on the theatre stairs.
The other teacher across the theatre also missed her step on the theatre stairs when the theatre lights were turned off as she was going back to her seat after seating her pupils. She slightly injured her knee.

The teacher (who was more seriously injured) brought a suit in damages for the injury she sustained. She sued the theatre owner as well as the production company. The production company had a lease agreement with the theatre owner. She claimed that the theatre owner and the production company failed to maintain adequate and appropriate lighting in the theatre. She also maintained that the theatre employees were inadequately trained as they turned off the lights in the theatre even before all the patrons in the theatre were seated.

During the deposition, the theatre manager and the artistic director of the production company both testified that they have been staging the puppet show for 20 years and have not had problems with the lighting in the theatre. Both testified that the practice was for a member of the production company to give a welcome speech. After the welcome speech was finished, a member of the production company, the stage manager or the person who gave the speech would speak into a microphone to tell the lighting operator to dim the lights. Both testified that it is never completely dark in the theatre during the performance as there are wall lights, exit lights and strip lights along the floor and on the edge of the steps of the stairs. They both testified that the lights are not turned off but dimmed. They also testified that as the houselights were dimmed, the other lights automatically came on. Both testified that the building’s structure and lighting facilities were all inspected and they all conformed to the requirements of law. Both also testified that they were not altogether sure if they were both inside the theatre at the time of the incident.

The theatre owner and the production company moved for summary judgment on the ground that upon joining of the issues and with the depositions during discovery, there are no issues of fact that still need to be tried. Opposing the motion, the teacher claimed that there was an issue left to be tried: it was not just that the lighting was inadequate or inappropriate but that the operation of the lights in the theatre also constituted the hazard.

The trial court dismissed the complaint on summary judgment which is now appealed. The only questions are: whether or not the trial court erred in allowing the case to proceed to summary judgment; and whether or not the case should have been dismissed.

The Supreme Court upheld the orders of the trial court. One justice dissented.

In finding for the theatre owner and the production company, the Court emphasized that the teacher must prove that there is a pre-existing condition or hazard that the theatre owner and the production company knew about but refused to remedy.

Here, there is no pre-existing condition or hazard proved as the teacher herself testified that when the lights were turned off or dimmed, other smaller lights turned on automatically. It was proved that this practice has been in place for 20 years and no similar accidents have occurred as a result of any inadequacy of the lighting.

The plaintiff stresses that the theatre owner and the production company should have exercised diligence in waiting and making sure that all the patrons were seated before turning off the lights. She also insisted that an announcement should have been made that the lights would be dimmed before dimming the lights.

To this the Court demurred: when a person goes to a theatre, the person reasonably expects that the lights will be dimmed so that the show can be comfortably viewed. There is no requirement in law for the theatre owner or the production company to make an announcement before dimming the lights. To require them to do so and to find them liable in damages for failing to do so would impose on them a requirement that is higher than that required by law.

Continue reading "Two female pre-school teachers took 72 pre-school students to watch a puppet show " »

The management of a big park in New York City leased a building and the premises adjacent to it on 31 West 71st Street. After leasing the building and the premises, the park’s management corporation decided to renovate the façade of the building. It entered into a contract with a construction firm to do the brickwork. The construction company hired a scaffolding company to put up a scaffold in front of the building so that brickwork can be done on the building.

On March 9, 2007, a man tripped and fell on a broken and cracked portion of the sidewalk in front of the building leased by the park. As the man fell, he tried to arrest his fall: he reached out to hold on the scaffolding pole which had bolts protruding from the pole. But as he was falling, his hand struck the scaffolding pole and his hand broke at the wrist and he fell on his face. For the injury he sustained on his trip and fall, he sued the Park, the management corporation of the Park, the owner of the building and the premises, the construction company laying the brickwork on the building and the company that erected the scaffolding on the sidewalk.

The injured man claimed that his trip and fall was primarily due to the sidewalk but that he was forced to walk on that portion of the sidewalk that was broken because the scaffolding obstructed the sidewalk. Although he tripped and fell on the sidewalk, the fractured bone of his hand was caused when his hand struck the scaffolding which was in his way.

After the deposition of the injured man was terminated, the Park, the management corporation of the Park, the owner of the building, the contractor and the scaffolding company all moved that the case be submitted for summary judgment. The Park moved also that the building owner, the construction company and the scaffolding company pay its attorney’s fees as it was sued along with them although it had no responsibility for the injured man’s injuries whatsoever and should not have been sued with the others.

The trial court granted the motion for summary judgment and dismissed the complaint of the injured man. He appealed the dismissal.

It is evident from the testimony of the injured man during his deposition that the cause of his trip and fall was not the scaffolding but the broken sidewalk. He repeatedly admitted this. The injured man was shown a photograph of the sidewalk outside the building during his testimony on deposition and he indicated with an x mark the place where he tripped and fell. The other deponents established that the scaffolding was about 25 feet away from that broken portion of the sidewalk.

To establish a cause of action for negligence, the injured man had to demonstrate that the Park, the management corporation, the construction company and the scaffolding company all owed the plaintiff a duty of care. The injured man also needed to show that all the defendant corporations were in breach of that duty. He must also prove that the breach of the duty was the proximate cause of the injury of the man.

It can be inferred that none of the corporations that were sued owed the injured man a duty to exercise care when it put up the scaffolding. None of the corporations was in breach of any duty to the plaintiff. And even if there were a breach in the duty of care, there is no evidence that the breach of duty was the cause of the injured man’s injury.

Because it was established that the scaffolding did not cause the injury, there are no issues of fact that are left to be tried. The trial court then did not err when it allowed the case to be submitted for summary judgment. The dismissal of the case was upheld by the Supreme Court.

Continue reading "The management of a big park in New York City leased a building" »

On May 3, 2005, a woman was walking down a flight of stairs leading from the ground floor lobby of the Chase Manhattan Plaza to the Wall Street subway station. The heel of her shoe was caught on the defective anti-skid treading which was glued to the steps of the stairway. The treading was partially covering the step and this caused her to trip and fall. When she fell, she sustained bone injury on her elbow and ankle which needed surgery, a two-week stay in the hospital and physical therapy.

The lady sued the City of New York, the New York Transit Authority which operates not only the subway but also all the stairways leading to the subway stations.

After the injured lady was deposed, the city of New York moved for a summary judgment on the case. It argued that it has no duty of care t the injured lady as it has leased the area to the Transit Authority. It is the Transit Authority, as the corporation that manages the premises of the subway station that owes the injured lady a duty of care to see that any defect in the structure of the premises be remedied by it.

The injured lady opposed the motion of the city of New York. She insisted that even if the property was leased by the Transit Authority from the City of New York, then New York had the right and duty to inspect the premises and to maintain it so that no injury can result to pedestrians who use it. Such that if an injury is sustained by anyone on the premises, the City of New York can be held liable for negligence on a significant structural or design defect that is contrary to a safety provision in law.

The trial court denied the motion of the City of New York. The order denying the motion to submit case on summary judgment is here on appeal before the Supreme Court.

The Supreme Court began its opinion with the statement that a summary judgment is a drastic remedy that should be granted only when there is no doubt that no genuine issue of fact remains to be tried. The Court also mentioned that the City of New York has the burden of proving that it is entitled to a summary judgment. It has to proffer evidence that there are no more material issues of fact that needs to be tried.

The Court reversed the trial court’s denial of the City’s motion for summary judgment. The flight of stairs leading to the subway is not under the control, supervision and possession of the City anymore when the trip and fall occurred. In a long line of cases since 1953 when the Transit Authority leased the premises from the City of New York, the Court has consistently held that the stairs leading to the subway are necessary for the operation of the subway station and is part of the leased property over which the City has relinquished control and possession. Thus, the City has no duty whatsoever to the plaintiff, and therefore, it cannot be held liable for the trip and fall that occurred there.

The Supreme Court granted the motion of the City of New York for summary judgment. The complaint and cross-claims against the City of New York are dismissed. But the remainder of the action against the Transit authority and the other defendants is remanded for further trial.

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A lady was crossing the street at the corner of East 151st Street and Morris Avenue in the Bronx in New York City. She tripped and fell on an uneven part of the roadway. She sued the City of New York and the Corporation who repaired the road.

The lady’s deposition was taken by the corporation during the discovery. During the deposition, the lady said that her trip and fall occurred on Morris Avenue. When the transcript of the deposition was given by the transcriber/stenographer for her to read it and sign it, the lady saw the mistake she made and made an errata sheet stating that her trip and fall occurred on East 151st street and not on Morris Avenue. She explained that she remembers having tripped and fallen just outside her apartment building but her apartment building is on a corner and it had two entrances. So she mistakenly testified on deposition that she had tripped and fallen on Morris Avenue when it truth, she really tripped and fell on East 151st street.

The lady submitted the errata sheet containing the correction and her explanation to the defendant corporation four months after making the corrections. During trial, the defendant corporation moved to suppress the errata sheet and to strike out the explanation. The motion was made by the corporation three years after the lady returned the transcript and the correction.

The corporation explains that it repaired the road on East 151st Street but not on Morris Avenue. The suppression of the errata sheet was vital to the corporation’s defense. It asserted that when the lady submitted her corrections to the corporation, it was four months delayed, in violation of the provisions of CPLR 3116 (a) which provides that the lady may make corrections on her deposition but she must make the corrections within 60 days from submission to her of the transcript for her comments. Since the errata sheet was submitted beyond the 60-day period provided for by CPLR 3116 (a), it should be suppressed.

The lady countered that the corporation itself was guilty of unreasonable delay. It should have moved to suppress the errata sheet long ago and not three years after she submitted the explanation.

The trial court denied the corporation’s motion. This denial of their motion was appealed by the corporation to the Supreme Court.

The issues to be determined are: whether or not the lady failed to timely comply with the CPLR 3116 (a); whether or not her delay in submitted the corrections constitute proper grounds to suppress the errata sheet; and whether or not the corporation’s delay in raising the issue of the timeliness of the corrections should be reason enough to deny its motion.

The plaintiff/witness has the right to make changes about personal injury in the form and substance of her testimony on deposition if the transcriber/stenographer made a mistake in rendering her testimony or if she simply made a mistake and wants to change her answer.

The law CPLR 3116 (a) imposes two requirements on making changes in form and substance to deposition testimonies. The first requirement is that the changes to the deposition must be entered at the end of the deposition transcript and the changes requested must be accompanied with reasons that constitute good cause for the changes.

The second requirement obligates the witness or deponent to submit the corrections she has made about the personal injury to the party who requested the deposition to be taken within a reasonable period of 60 days from the time the transcript of the deposition was given to her.

This 60-day period has not been strictly imposed by the Court especially when there is a good cause for the delay in transmitting the changes. Here, the lady did not give a sufficient explanation as to why it took her 120 days to transmit the changes to the corporation.

But, despite the delay of the lady of four months, the one who is in greater delay was the corporation. It should have promptly and diligently objected to the errata sheet within a reasonable time from the date it was submitted to it. The corporation took three years before moving for the suppression of the corrections.

Within that time of three years, the lady had reason to believe that the corporation had read the corrections and did not have any objections to her changes. She already relied on the corporation’s acceptance of the changes she had made because of the lapse of time.

The Court found the motion of the corporation as just another dilatory tactic and ruled that it cannot allow the corporation to benefit from its own negligent delay. The motion was denied.

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A lady went to her see her accountant at his office. She entered the office and conducted her business there but as she was exiting the office, she tripped and fell by the office door. She filed a case for damages from the personal injury she sustained during her trip and fall. She claimed that the accountant negligently left the welcome mat by the door to become rolled up and this is what caused her to trip and fall and because of which, she suffered personal injury. She alleged that the mat was a tripping hazard left there by the accountant.

During pre-trial the accountant requested a deposition to be made of the lady. During her deposition, she stated that she did not know what caused her to trip and fall as she went through the door on her way out of the accountant’s office. She also testified that she did not notice the mat at any time when she went into the office or any time before she fell. It was only when she had already fallen that she noticed that the mat was rolled up.

When the issues had been joined before the trial court, the defendant filed a motion asking that the case be submitted for summary judgment. The trial court dismissed the complaint.
The only issue before the Supreme Court was whether or not the trial court erred in dismissing the complaint against the accountant. The Supreme Court upheld the dismissal.

Under the law, the accountant can only be made liable for the lady’s trip and fall if there was any evidence presented that there was a dangerous or defective condition existing in the accountant’s office; there must also be evidence that the accountant created the defective or dangerous condition; or that the accountant knew about the defective or dangerous condition and yet, the accountant failed or refused to remedy the defective condition within a reasonable time.

The accountant had the burden of proving that it had a right to have the case summarily decided by the trial court. The accountant submitted in evidence the very deposition of the lady who testified that she did not know what caused her trip and fall. She also testified that she had never noticed the mat before she tripped and fell. It was only after she had already fallen did she notice that the welcome mat to the office was all rolled up.

The Court held that the lady failed to prove that the mat was a pre-existing dangerous or defective condition as she never noticed the mat rolled up before. She also did not prove that the accountant knew that the mat was rolled up and could present a tripping hazard. She also failed to prove that the accountant did not fix the rolled up mat even when he was informed that the mat was rolled up and that it posed a danger.

The Court ruled that the mat could have rolled up because the lady tripped and fell; that it was the lady’s fall that had caused the mat to be rolled up. The Court ruled that the rolled up mat was not a pre-existing condition. To allow the case to be brought before the jury would require the jury to speculate as to what caused the fall.

For this reason, the trial court was correct in deciding the case on summary judgment and it was also correct in dismissing the complaint. The appeal of the lady is dismissed.

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