It is often said that New York law allows dogs one free bite.  It is more accurate to state, however, that an owner will be liable for injuries caused by a domestic animal if he or she knows or should have known of the animal’s vicious propensities if the injuries resulted from those propensities.  Although the courts have traditionally used the term “vicious propensities,” in Waldman v. Sangiray, the Supreme Court in Nassau County clarified that the word “vicious” might not be the most accurate term to explain the rule.

beware dogThe plaintiff was 82 years old at the time of the incident.  While her three-year-old grandson and she were walking around her neighborhood, the child stepped onto the defendant’s property.  The plaintiff said she also stepped onto the property to pull the child from the grass.  She said she did not recall hearing any barking or growling before the defendant’s Siberian Husky came up to her and “hit” her.  She alleged the dog put his paws on her shoulders, knocking her to the ground.  She alleged the dog “kept hitting her” when she tried to roll over.  She said the dog rolled her onto her back.  The incident lasted for an hour.  The plaintiff said the dog bit her at one point during the encounter.  She was only able to escape with the help of a passerby and the defendant’s son.  The plaintiff alleged that she suffered several injuries, including cuts on her face and ruptured and lacerated tendons in her hand and wrist.  The plaintiff filed suit against the dog owner, and the defendant moved for summary judgment.

The defendant generally kept the dog outside, where he was contained by an electronic fence.  There was no evidence that the dog was violent or had ever bitten anyone, or even growled or bared his teeth.  There was evidence, however, that the dog tended to jump on its owners to greet them.  The defendant testified that he never saw the dog jump on strangers, but the dog did jump on the defendant’s in-laws.  There was no evidence presented that the dog had ever knocked anyone else down.

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Defendants in New York personal injury cases often attempt to prevent a case from going to trial by moving for summary judgment.  To succeed in a motion for summary judgment, the defendant must show that it is entitled to judgment as a matter of law.  To make this showing, the defendant must establish that there is no triable issue of fact.  Generally, a defendant’s motion for summary judgment should not be granted if there is conflicting evidence that speaks to an element of the claim.

cracked concreteIn the recent case of Davidson v. New York City Transit Authority, the defendant moved for summary judgment despite its own driver’s inconsistent testimony about the accident.  The plaintiff was injured when she fell as she exited a city bus, and she sued the New York City Transit Authority (NYCTA).  The NYCTA moved for summary judgment, arguing that it had not breached its duty to provide the plaintiff with a safe place to exit the bus.

New York case law has held that a common carrier, like a city bus, must stop at a safe place for its passengers to enter and exit the vehicle.  The common carrier may be liable if the driver stops the bus in a location that requires the passenger to cross a dangerous or defective path to board or exit the bus.  Even if the driver stops at an unsafe location, the common carrier may not be liable if the driver did not know of the dangerous condition.

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New York Labor Law protects construction workers and places liability on owners and contractors under certain circumstances. Plaintiffs injured in a construction accident often bring claims under multiple sections of the Labor Law, as in Daniel v 384 Bridge St. LLC.

wood boardThe plaintiff alleged he was injured when he stepped on the edge of a piece of plywood covering a hole in the floor while walking through the construction site.  The plaintiff filed suit against the owner of the construction project, the construction manager, a subcontractor hired to perform concrete work, a subcontractor hired to perform carpentry, and his employer, which had been hired to do the window work.  The plaintiff filed claims for common law negligence and violations of New York Labor Law §§ 200, 240(1), and 241(6), and his wife asserted a claim for loss of consortium.  The defendants moved for summary judgment.

Pursuant to § 240(1), known as the Scaffold Law, contractors and owners must provide certain safety devices, including scaffolding, hoists, and ladders, to protect workers.  The court granted the motion as to the § 240(1) claim, finding that the section did not apply because there was no allegation that an elevation or gravity-related risk contributed to the injury.

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In construction accident cases, the defendants are often in possession of information the plaintiff may need to prove his or her case. In New York litigation, there is to be “full disclosure of all matter material and necessary in the prosecution or defense of an action” by a party. CPLR § 3101(a). Among the discovery devices available are interrogatories and demands for discovery and inspection of documents or property. CPLR § 3102(a). Sometimes a party does not want to produce the requested documentation or property. If a party wishes to object to the disclosure, that party must make the objection within 20 days of service of the notice. CPLR § 3122(a)(1). The party may also move for a protective order under CPLR § 3103.

hard hat areaIn McDougal v. WWP Office, LLC, the defendants moved for a protective order from the plaintiff’s notice of discovery and inspection. The plaintiffs cross-moved to strike the defendants’ answer or alternatively to compel the defendants to produce the requested documents.

The plaintiff was performing construction work at the site when the ceiling struck him. The plaintiff was employed by a non-party. He filed negligence and Labor Law claims against the building owner, the building occupier, and a construction company hired by the occupier.

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It can be difficult for a plaintiff in a New York automobile accident to succeed in a personal injury case when the defendant had the right of way, but it is not impossible.  Even a driver who has the right of way has certain duties of care, and if a breach of one or more of those duties causes an accident, the driver may be liable.

left turnThe recent case of Hurst v. Belomme addressed this issue.  The plaintiff allegedly sustained injuries in a collision that occurred while she was attempting to make a left turn from the southbound lane of the road.  The defendant’s vehicle was traveling north on the same road and struck the plaintiff’s vehicle.  The plaintiff sued the defendant to recover damages for her injuries.  The defendant moved for summary judgment, arguing the sole proximate cause of the collision was the plaintiff’s negligence.  The motion was denied, and the defendant appealed.

To win a summary judgment motion in a negligence case, the defendant must show that he was not at fault for the accident.  The appellate division noted that there can be multiple proximate causes.  The court further pointed out that, although the driver with the right of way can anticipate that the other driver will follow laws requiring her to yield, the driver is negligent if he or she fails “to see what is there to be seen…”

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Liability is often difficult to determine in accidents involving multiple cars.  In some cases, however, liability can be fairly straightforward.  In New York, a rear collision with a stopped vehicle establishes a prima facie case of negligence against the driver of the rear vehicle.

crash-carOne New York court recently considered liability in a case involving a four-vehicle accident.  The plaintiff in Martey v. Gotham Area Limousine Corp. was riding as a passenger in a vehicle owned by a limousine company at the time of the accident.  The plaintiff’s affidavit state that the driver encountered stopped vehicles as he approached the intersection and struck the rear of one of the vehicles.  That vehicle then struck the vehicle in front of it, which in turn struck the vehicle in front of it.

The plaintiff filed suit against the drivers and vehicle owners.  She moved for summary judgment on the issue of liability, arguing that she was an innocent passenger who did not contribute to the accident.  The driver and owner of the vehicle in which the plaintiff was riding argued that the motion was premature because discovery had not yet been conducted.  The driver also submitted and affidavit claiming that the vehicle in front of him had caused the accident by stopping abruptly.

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New York in winter can be dangerous for pedestrians.  Although property owners in many New York cities have a duty to clear sidewalks abutting their property, New York law does not require them to remove accumulation during a “storm in progress,” and it gives them a reasonable amount of time after the storm stops to clean the sidewalk.

snowThe Supreme Court in New York County recently considered whether the storm in progress rule would prevent recovery in Bagnoli v. 3GR/118 LLC.  This case arose from a slip and fall on a sidewalk.  The injured man and his wife filed suit against the owners of the property abutting the sidewalk.  The defendants moved for summary judgment, arguing that they did not have a duty to remove the snow or ice on the sidewalk, pursuant to the storm in progress rule.  The plaintiffs argued that there was not a storm in progress at the time of the fall, and even if there was a storm in progress, the fall was the result of the defendants’ failure to remove accumulation from an earlier storm.

A defendant can support a motion for summary judgment based on the storm in progress rule by submitting “certified climatological data” that shows there was an ongoing storm at the time of the accident.  A plaintiff, however, can succeed in countering the motion by showing the accident resulted from accumulation caused by an earlier storm and that the defendants had actual or constructive notice of the snow or ice but failed to clear it.

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Workers’ compensation is generally the exclusive remedy of an employee against his or her employer for injuries incurred in the course and scope of employment.  In New York, this protection applies not only to the employee’s actual employer but also to any “special employer.”  Special employment exists when an employee is transferred for a limited time to the service of the special employer.  There must, however, be some evidence of employment by the purported special employer.

paint rollerOne New York court recently considered whether a defendant was a special employer in Clarke v. 750-760 Pelham Pkwy Owner LLC. This case arises from injuries sustained by the plaintiff when he fell from a ladder while painting or scraping a building.  The plaintiff filed suit against a number of defendants, including the owner of the property where he was working, 750-760 Pelham Parkway Owner LLC (“750-760”).  The plaintiff worked for 1160 Cromwell Avenue Owner LLC (“1160”) and received workers’ compensation benefits from his employer.  He received directions and supplies from Paul Kirby of Kirby Construction Corp.  Kirby was hired by either a consultant working for a managing agent or the property owner.

750-760 moved for summary judgment, arguing that recovery was barred under the Workers’ Compensation Law because it was a special employer of the plaintiff.  In a motion for summary judgment, the moving party has the burden of showing, with admissible evidence, that there are no genuine issues of fact.  If the moving party cannot make such a showing, the motion must be denied.

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New York Labor Law § 240(1) requires contractors and owners to provide certain safety devices, including scaffolding, hoists, and ladders, for the protection of the workers.  In the recent case of Reyes v. Campo Bros., the plaintiff filed a claim under this section, but there were conflicting accounts of how his fall occurred.

roof tilesThe plaintiff fractured his back and sustained other injuries in a fall while working as a roofing technician for a subcontractor on a job site.  His job on the day of his injury included attaching ice shields to the roof edges and the valleys of connecting roof lines.  While attaching an ice shield to a valley, he allegedly slid backwards and fell off the roof.  The roof was slippery because of frost or black ice.  The plaintiff was not provided with any safety devices to prevent or protect him from a fall, other than the ladder he used to climb up to the roof.

The plaintiff filed suit against the property owner and the company that managed the job site, including a claim under Labor Law § 240(1).  He subsequently moved for partial summary judgment on a claim under Labor Law § 240(1).

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It is common in personal injury cases for defendants to try to avoid liability by pointing fingers at each other.  In premises liability cases, there are often vendors that are contractually responsible for maintaining certain areas of the premises.  The property owner and vendor often blame each other for the plaintiff’s injuries, as in the recent case of Solomon v. Barnes & Noble, Inc.

escalatorThe plaintiff was injured on an escalator at a Barnes & Noble store.  The 21-month-old child and his nanny were riding the escalator when the child sat down and then screamed.  The nanny stated she held the child’s right hand while they were on the escalator, but when he sat down, his left hand got stuck between the step and the side wall of the escalator.  An employee of the store stopped the escalator, and a maintenance worker freed the child’s hand using a wrench.

The Department of Buildings issued a violation for the escalator, finding too much space between the step and the side wall.  It also issued a “cease use” order.

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