Archive for the ‘Uncategorized’ Category

240(1) does not apply to hot tar falling on roofer

Saturday, January 5th, 2013

McKenzie was a roofer who suits recover damages when a 500° bucket of asphalt fell on him. McKenzie McKenzie claimed he was injured because the bucket was uncovered and he had to climb a ladder to a section of the roof that was about 15 feet higher than the main roof area

The court determined that Kenny McKenzie’s action was not the result of elevation risks but was caused by “usual and ordinary dangers of a construction site. Accordingly McKenzie’s labor Law section 240 (1) claim tell held that his injuries did not directly flow from the application of force of gravity to an object.

This case was carried under McKenzie versus Cappelli Enterprises, 100153 – 2009 in New York County

It was decided on November 30 of this year.

Chain between two poles blocking cars is “open and obvious”

Tuesday, May 15th, 2012

We have all seen them: the chain strung between two poles that prevents cars from entering an area but allows pedestrians to go around or over them.

Well, if something like this chain was “readily observable to those employing a reasonable use of their senses” then they are not inherently dangerous and the owner will not be liable if someone is injured tripping over them.

This happened in Callen v. Comsewogue School District.  The plaintiff testified that the chain was at high ankle or shin level and the court held the School District not liable for the accident.

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NYC Fire Truck not covered by Emergency Doctrine VTL 1104(b)

Tuesday, May 15th, 2012

Usually, the driver of  a fire truck responding to an emergency call is held to a “reckless” standard when an accident occurs.  This means that the fire truck driver must have driven recklessly for the City to be liable.  In Kabir v. County of Monroe the Court of Appeals held that an emergency responder must be doing one of four enumerated acts to have the reckless disregard standard imposed upon them. These include: speeding; passing flashing red; steady red or a stop sign among others.

In the Fajardo case there was conflicting testimony as to whether the plaintiff, Fajardo was either changing lanes to get out of the path of the firetruck or cut across three lanes without warning cause the truck to strike her driver’s side rear.  Following Kabir the court held that since the fire fighter was not engaged in one of the acts listed in VTL 1104(b) the firefighter was to be held to a ordinary negligence under the circumstances standard.

Read about this New York Personal Injury case here.

NYC not liable for post protruding from sidewalk

Tuesday, May 15th, 2012

A bus rider was injured by a metal post protruding from the sidewalk.  Unfortunately for her she did not know what sign had been attached to the post before the sign was either knocked down or removed.  On the day of the accident she got off the bus at the bus stop and then was injured when she fell over the piece of metal.  The Appellate Division, First Department granted the City’s motion to dismiss the case because the party responsible for the sign could not be proven.

Read about this New York City sidewalk accident case here.

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NO LIABILITY FOR INJURIES SUSTAINED ON BUS (Burke v MTA Bus Co.)

Monday, May 7th, 2012

NO LIABILITY FOR INJURIES SUSTAINED ON BUS (Burke v MTA Bus Co.)

Plaintiff sought recovery for damages for personal injuries allegedly sustained when an MTA bus came to a sudden stop.  Plaintiff believed the defendant MTA Bus Company was liable for her injuries.

The defendant MTA Bus Company appealed a decision by the Supreme Court, Queens County which denied its motion for summary judgment dismissing the complaint insofar as asserted against it.  It was ORDERED that the order was reversed, on the law, with costs, and the motion of defendant MTA Bus Company for summary judgment dismissing the complaint and asserting against it was granted.

Plaintiff failed to prove that the halt of the bus was caused by a “jerk or lurch” that was unusual or violent.  In order to prove that, Plaintiff must have evidence that her injuries were sustained by something extraordinary, as opposed to common jerks or lurches experienced on a bus traveling in the city.

In the Plaintiffs deposition testimony in support of its motion for summary judgment it was established that the stop was not “unusual or violent” and the Plaintiff failed to raise a triable issue of fact.

The defendant, MTA Bus Company’s, motion for summary judgment dismissing the complaint should have been granted.

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No Liability for not removing snow during Storm

Friday, May 4th, 2012

NO LIABILITY FOR SNOW REMOVAL DURING STORM (Ali v Village of Pleasantville)

Plaintiff sought recovery for damages for personal injuries allegedly sustained when he slipped and fell on a sidewalk during a snowstorm.  Plaintiff believes the defendant Village of Pleasantville was liable.

The defendant Village of Pleasantville moved for, among other relief, summary judgment dismissing the complaint insofar as asserted against it.  The Supreme Court denied that branch of the Village’s motion which was for summary judgment dismissing the complaint insofar as asserted against it, and the Village appealed.

Plaintiff failed to raise a triable issue of fact as to whether the Village created or exacerbated the allegedly dangerous condition through an affirmative negligent act during the course of its efforts to abate the effects of the snowstorm.  Due to the fact that the snowstorm was ongoing when plaintiff injured himself, the Village had no duty to remove the snow that accumulated after the Village had already taken snow-abatement efforts.

The defendant, the Village of Pleasantville’s, motion for summary, judgement dismissing the complaint should have been granted.

Read about this fail to remove snow accident case here.

Slip and Fall in School to go to trial

Saturday, March 17th, 2012

The DOE moved to dismiss and teacher’s slip and fall claim on a school staircase. A Janitor testified that the stairs had been clean after inspection in the morning. But, the teacher fell after 7pm and there had been ongoing construction in the stairway.  Therefore, the motion to dismiss this case was denied.  Read about this New York City Accident Case.

Injury on 59th St Subway-NYCTA must defend gap

Friday, January 27th, 2012

At the 59th Street station a commuter fall when getting off the subway.  NYCTA argued that the  horizontal and vertical gaps did not exceed six inches. NYCTA had previously issued an internal memo commanding that the gap be no more than 6 inches.  Qualified Immunty allows an agency like NYCTA to be immune from suit if it follows its regulations.  In this case the First Department held that NYCTA was not entitled to Qualified Immunity because it did not state if there was a study done declaring that a six inch gap was safe nor was there a public planning body that considered the same question of risk.  Accordingly, even if the defendant NYCTA complied with its own standard this was not enough to dismiss the injury party’s case.  Tzilianos v. NYCTA.

Defendant Failed To Prove That Plaintiff Did Not Sustain A “Serious Injury” from a Motor Vehicle Accident

Wednesday, November 23rd, 2011

Sypher v Lopez

Plaintiff commenced this suit against defendant to recover damages for alleged injuries caused by a motor vehicle accident. Defendant failed to stop at a stop sign resulting, in the impact between plaintiff and defendant vehicle’s where plaintiff’s car was pushed into a pole. Plaintiff according to bill of particulars faced “loss of consciousness; abrasion to the left side of the face; scar to the left side of the face; concussion; head injuries to the left side of the head; and post concussion syndrome and headaches.” He alleges that he was confined to his bed and home for five months.

Defendant moves for summary judgment and needs to provide a basis that the injuries obtained by the plaintiff do not meet the “serious injury” requirement concerning Insurance Law 5102(d).

“Serious injury” is a “personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury.”

Plaintiff opposes and asserts that the injuries sustained are within the “limitations of use” considering the “90/180” category of the Insurance Law resulting from the accident.

“Limitations of use” states that a “plaintiff must present objective medical evidence to the extent, percentage or degree of the limitation or loss of range of motion and its duration.” There must be sufficient medical evident that diagnoses and identifies injuries and not just a pain or discomfort.

A defendant seeking summary judgment “bears the initial burden of establishing a prima facie case that the plaintiff did not sustain a “serious injury.”” Once this is established the plaintiff must submit objective proof of the “nature and degree of the alleged injury in order to meet the threshold of the statutory standard for “serious injury.””

Defendant’s orthopedist was able to identify that the plaintiff was not disabled and that the alleged cervical sprains caused by the accident had dissipated and that plaintiff’s range was not all at the normal level.

Defendant’s neurologist found that plaintiff’s range of motion for his cervical spine is full. There is also tenderness to the cervical area but no muscle spasms. Neurologist found that the plaintiff is not disabled and can function within normal daily activities with no restriction.

Defendant was unable to prove that plaintiff did not sustain a “medically determined injury or impairment of a nonpermanent nature which prevented him from performing substantially all of the material acts constituting his usual and customary activities for not less than 90 days during the 180 days immediately following the accident.”

Plaintiff was notified by a doctor not to return to work after the accident for approximately 5 months. Therefore the defendant failed to portray that the plaintiff did not sustain a “serious injury.”

Owner not liable for fall on pedestrian ramp

Monday, June 13th, 2011

The NYC Administrative Code transferred liability from New York City to the abutting landowner for falls on sidewalks.  In this case the plaintiff broke his leg on a pedestrian ramp.  The Court ruled that the ramp was not part of the sidewalk and dismissed the case against the landowner.  Read about this trip and fall case here.