When it comes to your notice of claim, what is written is written.
In this matter, plaintiff's notice of claim, in pertinent part, had read:
"[I]nfant claimant while lawfully walking in the vicinity of said dumpster was accosted, beaten, assaulted and robbed by unknown assailants who had hidden about said dumpster. That the aforesaid occurred as a result of the negligence of [defendant], its agents and/or employees in the ownership, maintenance and control of said housing project and parking lot and areas thereof; in failing to provide adequate, sufficient and operable lighting at said location with prior knowledge of similar criminal conduct and activity in the immediate vicinity and location where the plaintiff was harmed."
Plaintiff's complaint, though, alleged that defendant failed to maintain its premises in a reasonably safe condition in that it did not provide adequate lighting and security in the vicinity of the assault and robbery. The First Department dismissed the inadequate security claim, in Monmasterio v. New York City Housing Authority, decided on April 19, 2007. The court said that "nothing in the notice of claim would have alerted defendant to the need to investigate the number and adequacy of the security personnel it employed, and plaintiffs were not free subsequently to interject a new, distinct theory of liability without leave of court."
April 23, 2007
If you smell somebody, tell somebody.
The First Department found a nuisance which warranted tenant's eviction in Zipper v Haroldon Ct. Condominium, decided on April 17, 2007. The court found credible testimony that the odors coming from tenant's apartment were not of the unavoidable variety but of a kind caused by rotting food. Tenant had offered witness testimony denying any such odors but the court credited the testimony of firefighters who had visited the apartment - unannounced - a month prior to trial. In addition to the odor, one firefighter referred to "Collier-like conditions" in the apartment, which was cluttered with furnishing, boxes and debris. The court was singularly unimpressed by the fact that that the odor was slightly less noxious when the apartment's door was closed. Let's get moving.
The First Department found a nuisance which warranted tenant's eviction in Zipper v Haroldon Ct. Condominium, decided on April 17, 2007. The court found credible testimony that the odors coming from tenant's apartment were not of the unavoidable variety but of a kind caused by rotting food. Tenant had offered witness testimony denying any such odors but the court credited the testimony of firefighters who had visited the apartment - unannounced - a month prior to trial. In addition to the odor, one firefighter referred to "Collier-like conditions" in the apartment, which was cluttered with furnishing, boxes and debris. The court was singularly unimpressed by the fact that that the odor was slightly less noxious when the apartment's door was closed. Let's get moving.
April 20, 2007
What is the standard to recover damages from a property owner for injuries caused by a criminal's acts?
The owner must have known, or should have known, of the probability of a third party's conduct which was likely to endanger the safety of persons lawfully on the premises, according to the Second Department, in Rodriguez v. 1705 & 1715 Caton Associates, decided on April 10, 2007. The court noted that plaintiff's conclusory allegations as to prior robberies were insufficient to raise a triable issue of fact.
The owner must have known, or should have known, of the probability of a third party's conduct which was likely to endanger the safety of persons lawfully on the premises, according to the Second Department, in Rodriguez v. 1705 & 1715 Caton Associates, decided on April 10, 2007. The court noted that plaintiff's conclusory allegations as to prior robberies were insufficient to raise a triable issue of fact.
April 19, 2007
Arts and draughts
While plaintiff was delivering premium waters to the performance center's theater, the dolly tipped and he was injured by the falling bottles. The suit against the property owner was dismissed by the First Department, in Ragusa v. Lincoln Center for the Performing Arts, Inc., decided on April 12, 2007. "Defendants submitted evidence showing that they obtained all of the requisite permits for the installation of the sidewalk, that the slope of the sidewalk was constructed in compliance with the New York City Building Code, and that the necessary certificate of occupancy was obtained upon completion of construction. This met their burden on summary judgment." The court said that plaintiff failed to refute defendant's claims, and, when it ran the numbers, found that plantiff's expert's affidavit actually supported defendant's position.
The curtain falls.
While plaintiff was delivering premium waters to the performance center's theater, the dolly tipped and he was injured by the falling bottles. The suit against the property owner was dismissed by the First Department, in Ragusa v. Lincoln Center for the Performing Arts, Inc., decided on April 12, 2007. "Defendants submitted evidence showing that they obtained all of the requisite permits for the installation of the sidewalk, that the slope of the sidewalk was constructed in compliance with the New York City Building Code, and that the necessary certificate of occupancy was obtained upon completion of construction. This met their burden on summary judgment." The court said that plaintiff failed to refute defendant's claims, and, when it ran the numbers, found that plantiff's expert's affidavit actually supported defendant's position.
The curtain falls.
April 18, 2007
What is the proper standard for undoing a jury verdict in a medical malpractice action?
"It must be concluded that the evidence so preponderated in favor of the movant that the verdict could not have been reached on any fair interpretation of the evidence," according to the Second Department, in Scudera v. Mahbubur, decided on April 10, 2007. Here, the court found that defendant's medical experts were plainly outdueled on the issue of nerve damage resulting from plaintiff's herniated disc, and, the defense verdict notwithstanding, ordered a new trial.
"It must be concluded that the evidence so preponderated in favor of the movant that the verdict could not have been reached on any fair interpretation of the evidence," according to the Second Department, in Scudera v. Mahbubur, decided on April 10, 2007. Here, the court found that defendant's medical experts were plainly outdueled on the issue of nerve damage resulting from plaintiff's herniated disc, and, the defense verdict notwithstanding, ordered a new trial.
April 17, 2007
This plaintiff's chilled.
An SRO's tenant had installed a window air-conditioner, apparently against the house rules, and, when the weather turned cold, wanted to take it out. When the hotel's staff said they were too busy to help, the tenant tried to remove the unit herself, but she dropped it out the window and it injured plaintiff. On these facts, is the hotel liable for plaintiff's injuries? No, according to the First Department, in Grimaldi v. Manhattan Arms Hotel, Inc., decided on April 12, 2007. Assuming, without deciding, (1) that the hotel had a duty to help the tenant, (2) that its duty ran to the pedestrian plaintiff, and (3) that it was foreseeable that the tenant, acting on her own, would drop the unit, the court found that the hotel could not have foreseen that the tenant would try to remove the air-conditioner on her own.
An SRO's tenant had installed a window air-conditioner, apparently against the house rules, and, when the weather turned cold, wanted to take it out. When the hotel's staff said they were too busy to help, the tenant tried to remove the unit herself, but she dropped it out the window and it injured plaintiff. On these facts, is the hotel liable for plaintiff's injuries? No, according to the First Department, in Grimaldi v. Manhattan Arms Hotel, Inc., decided on April 12, 2007. Assuming, without deciding, (1) that the hotel had a duty to help the tenant, (2) that its duty ran to the pedestrian plaintiff, and (3) that it was foreseeable that the tenant, acting on her own, would drop the unit, the court found that the hotel could not have foreseen that the tenant would try to remove the air-conditioner on her own.
April 16, 2007
What is the standard for leave to serve a late Notice of Claim on the City?
The standard includes (1) reasonable excuse, (2) the city's having actual knowledge of the underlying facts of the claim, and (3) prejudice to the defendant, according to the Second Department, in Acosta v. City of
April 13, 2007
What is the proper standard on a motion to strike for spoliation of evidence?
The proper standard is whether the moving party has lost the chance to establish his or her position, according the Second Department, in Molinari v. Smith, decided on April 10, 2007.
Seeking damages after a fall from a trampoline, and arguing that the trampoline had been deliberately disposed of so it could not be inspected, plaintiff moved to strike defendant's answer, citing CPLR 3216.
The court denied the motion, since "the loss of the opportunity to inspect the trampoline will not deprive the plaintiffs of the means of proving their claims of negligent supervision and attractive nuisance."
The court did allow lesser sanctions, however, requiring defendants to stipulate to the admission of the manufacturer's assembly and safety instructions, and allowing a negative inference charge at trial.
The proper standard is whether the moving party has lost the chance to establish his or her position, according the Second Department, in Molinari v. Smith, decided on April 10, 2007.
Seeking damages after a fall from a trampoline, and arguing that the trampoline had been deliberately disposed of so it could not be inspected, plaintiff moved to strike defendant's answer, citing CPLR 3216.
The court denied the motion, since "the loss of the opportunity to inspect the trampoline will not deprive the plaintiffs of the means of proving their claims of negligent supervision and attractive nuisance."
The court did allow lesser sanctions, however, requiring defendants to stipulate to the admission of the manufacturer's assembly and safety instructions, and allowing a negative inference charge at trial.
April 12, 2007
After this flock got fleeced, is the high-profile pastor's employer liable?
No, according to the First Department, in Naegele v. Archdiocese of N.Y., decided on April 10, 2007. Advancing claims sounding in negligent supervision and respondeat superior, plaintiff had argued that since defendant's clergy-employees are modestly paid and in the habit of accepting monies and gifts from parishioners, defendant should reasonably have foreseen that this particular pastor would exercise undue influence over an elderly parishioner and raid her assets. The court found plaintiff's allegations to be conclusory and insufficient to establish the pastor's propensity to commit the specific tortious acts alleged. Therefore, the negligent supervision claim cannot stand. As for respondeat superior, the alleged tortious acts were clearly not in furtherance of defendant's business and, just as clearly, were outside the scope of the pastor's employment.
No, according to the First Department, in Naegele v. Archdiocese of N.Y., decided on April 10, 2007. Advancing claims sounding in negligent supervision and respondeat superior, plaintiff had argued that since defendant's clergy-employees are modestly paid and in the habit of accepting monies and gifts from parishioners, defendant should reasonably have foreseen that this particular pastor would exercise undue influence over an elderly parishioner and raid her assets. The court found plaintiff's allegations to be conclusory and insufficient to establish the pastor's propensity to commit the specific tortious acts alleged. Therefore, the negligent supervision claim cannot stand. As for respondeat superior, the alleged tortious acts were clearly not in furtherance of defendant's business and, just as clearly, were outside the scope of the pastor's employment.
April 11, 2007
Two feet high and rising.
In settling a previous action, the parties had entered into a stipulation in which, among other things, defendant agreed undertake "a study of the entire water drainage area" and to "take whatever steps it deems appropriate in accordance with such a study." Defendant did nothing, though, and three years later a severe storm resulted in flooding which caused substantial damage to plaintiff's property. In Eichler v. Town of Cortlandt, decided on April 3, 2007, the Second Department found that the alleged breach of the stipulation was actionable under general contract principles.
In settling a previous action, the parties had entered into a stipulation in which, among other things, defendant agreed undertake "a study of the entire water drainage area" and to "take whatever steps it deems appropriate in accordance with such a study." Defendant did nothing, though, and three years later a severe storm resulted in flooding which caused substantial damage to plaintiff's property. In Eichler v. Town of Cortlandt, decided on April 3, 2007, the Second Department found that the alleged breach of the stipulation was actionable under general contract principles.
April 10, 2007
Trading places.
The First Department granted defendant's motion to change venue from Bronx County to Queens, in Espinoza v. Concordia Intrl. Forwarding Corp., decided on April 5, 2007. Plaintiff lives in Queens; she was injured and treated there; and defendant-employer conducts its business there. What about Bronx County? Defendant's employee, named individually in the action, lives there, but, even if he were found liable, his employer would indemnify him.
The First Department granted defendant's motion to change venue from Bronx County to Queens, in Espinoza v. Concordia Intrl. Forwarding Corp., decided on April 5, 2007. Plaintiff lives in Queens; she was injured and treated there; and defendant-employer conducts its business there. What about Bronx County? Defendant's employee, named individually in the action, lives there, but, even if he were found liable, his employer would indemnify him.
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