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New York Appellate/Trial Alert - March 2019

NewYork, N.Y. (March 1, 2019) - Lewis Brisbois has the deepest bench of trial and appellate attorneys in New York. Recently, we have had a string of successes.

We are pleased to have recently won an appellate reversal of a jury verdict and the right to retry the case, which shows both the strength of our trial team and the benefits of diligence in post trial motion practice.

Appellate Reversal and Right to New Trial

In Landau v. Sam’s Place (Claim No. GL-2410), a New York team led by Partners James M. Strauss and Joelle T. Jensen obtained an appellate reversal of a jury verdict in excess of $500,000 and the right to a new trial.

The plaintiff fell down an interior stairway in the insured’s restaurant in Manhattan on December 9, 2012, sustaining an injury that required surgery. Prior to trial, we moved for summary judgment. The judge denied the motion but granted it in part, finding that the plaintiff’s claimed building code violations were inapplicable.

The case proceeded to trial in the Supreme Court, New York County before Judge Nervo. The plaintiff alleged three defects in the staircase: that the handrail was too short, the bottom step created an “optical illusion,” and the risers and treads were uneven.

We filed a trial motion asking that the jury be instructed that the building code claims were inapplicable, based on the summary judgment order, but the judge denied the motion. The plaintiff’s counsel requested a verdict sheet asking only the single question of whether the defendant was negligent, rather than separate questions for each of the three theories of liability. During deliberations the jury sent a note asking the court whether the building code applied. The judge responded that there was no evidence whether the building code had been complied with or not. The jury found the defendant negligent and awarded damages in the sum of $529,964.06.

On appeal, the Appellate Division, First Department, in a decision dated January 3, 2019, reversed and ordered a new trial. The Appellate Division held that the evidence was insufficient to support the plaintiff’s allegations with respect to the handrail and riser heights, therefore it was error to charge the jury on those theories of liability, and the plaintiff’s engineer witness should not have been permitted to testify about them. Further, although the error might have been harmless depending on the grounds for the jury verdict, there is no way to know what the grounds were because the verdict sheet asked only the single question: whether defendant was negligent.

The Appellate Division further held that the lower court judge had erred in failing to respond to the jury’s note consistent with the summary judgment order, that the building code was inapplicable to the staircase. Since that error could have impacted the verdict, the verdict was reversed and a new trial ordered on liability and damages.

This result illustrates that, although jury verdicts can be difficult to overcome on appeal, a reversal can be had if the correct motions are filed during trial and before trial so as to preserve the necessary objections for appellate review. We will proceed to a new trial on all issues and, in light of the First Department’s order, the trial judge will be obligated to charge the jury properly with respect to the building code and the theory of negligence.

“Sidewalk Law” Summary Judgment Victory in Kings County for Restaurant

In Sokolov v. Gambrinus Seafood Cafe, Inc. (Claim No. GL-002924/NSS07038), New York Associate Kristen Carroll and Partner Gregory S. Katz obtained summary judgment from Judge Landicino of the Supreme Court, King County, dismissing a complaint and all cross claims against their client, an insured seafood restaurant in Brooklyn. The plaintiff alleged a trip-and-fall on a mis-leveled sidewalk flagstone based upon a violation of NYC Administrative Code 7-210, aka the “Sidewalk Law” which led to injuries requiring surgery. The plaintiff sued the insured restaurant, a tenant, and the building owner.

The landlord co-defendant moved for summary judgment, arguing that our client had sole responsibility for maintaining the sidewalk based on lease terms which obligated the restaurant to make certain sidewalk repairs. We opposed the landlord’s motion and cross-moved for summary judgment, arguing that the claimed defect was clearly “structural” and therefore outside the scope of the insured’s obligations under the lease, and based upon the case law stating that a mis-leveled sidewalk flag is a structural condition as a matter of law. We further argued that under the Sidewalk Law, only the landlord is obligated to make repairs, not tenants. Further, we argued that the co-defendant’s application for contractual indemnification should be denied as our client did not create the condition that led to the incident.

Judge Landicino granted our summary judgment motion in full. The court agreed that NYC Administrative Code 7-210 places the obligation for sidewalk maintenance directly on building owners, not on tenants. The court further agreed with our position that the landlord was not an “out of possession” owner, and that the lease terms did not impose an obligation on the insured to repair the condition alleged by the plaintiff because it was clearly structural. The court also dismissed the landlord’s claim that it did not have actual or constructive notice of the sidewalk cracks, citing the landlord’s weak testimony regarding the last inspection of the property. We believe this decision will be upheld if challenged on appeal.

Summary Judgment Dismissal in Bus Company in Kings County

In Martinez v. Mountainside Transportation Inc., et. al. (Claim No. GL-1948601-2), New York Partners Daniel Wang and Meredith Drucker Nolen recently obtained a summary judgment dismissal of the plaintiff’s complaint and all cross claims from Judge Velasquez of the Supreme Court, Kings County. The plaintiff alleged that she sustained injuries as a result of a three-vehicle intersection accident. According to the plaintiff, the co-defendant’s vehicle struck her vehicle in the rear causing the plaintiff’s vehicle to enter the opposing lane of traffic, where it then collided with the insured’s bus. The plaintiff sued the bus company, which was represented by our office and its driver as well as the vehicle that allegedly rear-ended her vehicle.

At his deposition, the co-defendant driver testified that while traveling behind the plaintiff’s vehicle, plaintiff abruptly attempted a left turn and collided with the insured’s bus, and then the insured’s bus collided with the co-defendant’s vehicle. The co-defendant denied striking the rear of the plaintiff’s vehicle. The insured bus driver testified at her deposition that she was traveling straight with a green light when plaintiff’s vehicle suddenly and unexpectedly came into her lane of traffic. The insured driver could not avoid the accident.

The bus company and driver moved for summary judgment, arguing that even though there were conflicting versions of the manner in which the accident occurred, there was no evidence of any negligence on the part of the insured’s bus driver that was a proximate cause of the accident. Rather, the accident was caused either by the co-defendant’s negligence in striking the plaintiff’s vehicle from behind or from the plaintiff’s negligence per se in violating the Vehicle and Traffic Law when she attempted to make a left-turn from the middle lane of traffic and entered the intersection in front of the insured’s bus when it was not safe to do so. The insured also argued that its bus driver was faced with a sudden and unexpected emergency situation, not of her own making, and had mere seconds, at the most, to attempt to avoid the collision.

The plaintiff opposed both motions, and attempted to submit an affidavit from her daughter, the passenger in the vehicle, which claimed that the plaintiff’s vehicle was struck from behind by the co-defendant and that the insured bus went through a red light before striking the plaintiff’s vehicle. In reply, the insured bus company argued that the affidavit submitted by the plaintiff’s daughter should not be considered because it contradicted the plaintiff’s own unequivocal testimony that the bus had a green light at the time of the accident. As such, our client argued that the affidavit was drafted solely to attempt to create an issue of fact, where none existed with respect to the insured’s negligence.

Judge Vasquez granted the summary judgment motion. The court agreed, looking at plaintiff’s own testimony, that she previously testified the insured bus had a green light to proceed straight through the intersection and that she did not know the identity of the vehicle that struck her vehicle in the rear and thus there are no triable issue of facts with regard to any negligence on behalf of either of the defendants. We believe this decision will be upheld if challenged on appeal.

“Special Employee” Designation Wins Summary Judgment Motion in Bronx County for Bus Company

In Rosalinda Ortiz v. Mar-Can Transportation Co. Inc., et ano. (Index No. 27583/216E), New York Partners Daniel Wang and Nicholas P. Hurzeler obtained summary judgment from Judge John R. Higgitt of the Supreme Court, Bronx County. The suit was brought following an accident between two Mar-Can Transportation buses. The plaintiff was working as a bus matron on the first bus, which was rear-ended. As a result of the accident, the plaintiff sustained a right knee medial and lateral meniscus tear requiring surgery, a right shoulder supraspinatus tendon tear, and disc herniations and bulges.

We moved for summary judgment and attached evidence that the plaintiff was a “special employee” such that her claim was barred by the Workers Compensation law. The motion was granted even after plaintiff attempted to oppose the motion with serving late opposition papers which the court considered in its decision.

Summary Judgment in Kings County for Ambulette Company

In Chan Pok Kim and John Suck Kim v. Manuel J. Jurado and Christian Ambulette, Inc. (Index No. 18638/2011), Associate Kristen Carroll and Partner Naomi J. Skura recently obtained a summary judgment dismissal from Judge Francois Rivera of the Supreme Court, Kings County. The court granted our motion and dismissed the complaint on liability grounds after oral argument on the record.

The plaintiffs had brought suit for damages and loss of consortium after an accident on the Brooklyn-Queens Expressway between an unknown vehicle and the ambulette transporting one of the plaintiffs, causing injury to the plaintiff. The defendants moved for summary judgment on liability and damages, arguing that the defendant-driver was driving straight and the within the speed limit when he was sideswiped by the unknown vehicle.

The plaintiff argued that the seatbelts in the ambulette were not functioning on the date of the accident, and that the driver had, on previous occasions, sped and frequently changed lanes. Importantly, we argued that the plaintiff had testified that she did not know whether the defendant-driver had moved into the left lane immediately before the accident.

We were able to successfully argue that our clients were not negligent, and the court granted summary judgment on liability.

If you would like additional information on any of these cases, or how Lewis Brisbois’ trial or appellate team can assist you in liability matters, please email Gregory S. Katz at Greg.Katz@lewisbrisbois.com or Nicholas Hurzeler at Nicholas.Hurzeler@lewisbrisbois.com or call 212.232.1300.


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