Recent Court Decisions

The law firm of Arye Lustig & Sassower, P.C. seeks to obtain the best results possible for our clients. We enjoy an excellent reputation in the field of Personal Injury law with an outstanding proven track record of obtaining significant verdicts and settlements on behalf of our clients. In order to maintain our position as one of the premier law firms in the Greater New York City area, it is necessary for us to have a mastery of the applicable law. That requires us to keep abreast of the latest developments in the law.

As a service to the legal profession, we intend to share our knowledge of the law by providing a summary of some of the recent developments that we regard as important. Every month or so, we will publish on our website a brief synopsis of those court decisions that we regard as particularly instructive. These summaries are not intended as an exhaustive statement of the law. However, we trust that they will be helpful.

Kastrissios v. Marcello, 84 A.D. 3d 1174: Good decision by 2nd Dept. grants summary judgment to plaintiff re: rear-end motor vehicle accident.

Palladino v. Lindenhurst Union Free School District, 84 A.D. 3d 1194: 2nd Dept. dismisses infant plaintiff's complaint re: injury while playing handball with improperly placed metal grate; but infant plaintiff was aware of risk and even warned others. But see concurring opinion by J. Skelos which urges reconsideration of 2nd Dept. precedent, especially in view of recent Court of Appeal decision in Trupia.

Groninger v. Village of Mamaroneck, 17 N.Y. 3d 125: Court of Appeal holds (4-3) that municipal parking lot constitutes a "highway". Therefore prior written notice required for slip/fall on ice.

Burke v. Hilton Resorts Corporation, 85 A.D. 3d 419: 1st Dept. grants summary judgment to plaintiff per Labor Law §240(1) where plaintiff fell 15 feet through unprotected hole in floor. Defendant subcontractor that hired plaintiff's employer and had contractual supervising authority is "agent" of construction manager even if it did not exercise that authority.

Demuth v. Best Buy Stores, 85 A.D. 3d 713: 2nd Dept. denies defendant property owner's motion for summary judgment. Court explains that "open/obvious" is normally a question of fact. To be not "inherently dangerous" alleged defect must be naturally occurring topographic condition or other condition that landowner could not reasonably be expected to remedy.

Santos-Lopez v. MTA, 85 A.D. 3d 512: 1st Dept. holds that it was proper for trial court not to charge emergency doctrine re: pedestrian's (plaintiff's) appearance in crosswalk since defendant driver should anticipate and be prepared to deal with that.

Negron v. Garcia, 85 A.D. 3d 513: 1st Dept. explains that even if emergency doctrine is charged, jury can still find defendant acted unreasonably under the circumstances.

Matter of Progressive Northeastern Insurance Company v. Vanderpool, 85 A.D. 3d 926: 2nd Dept. applies recent Court of Appeals decision in State Farm v. Langan that even if driver of offending vehicle intended to injure pedestrian (here, pedestrian is a police officer), claimant entitled to assert underinsurance claim under own policy since "accident" for underinsurance purposes determined by claimant's perspective.

Cassone v. State of New York, 85 A.D. 3d 837: 2nd Dept. holds that open/obvious usually question of fact. Here, plaintiff tripped over cone that was intended to warn of defective condition; but cone itself was obscured by large crowds on the sidewalk - so defendant's motion for summary judgment denied.

Maher v. Wood Hollow Equestrian Center, 85 A.D. 3d 876: 2nd Dept. explains that assumption of risk defense requires proof that plaintiff appreciated risk associated with activity (here, horseback riding). Court holds that defendant failed to establish that 8 year old plaintiff with limited riding experience appreciated and assumed risk.

Angamarca v. NYC Partnership Housing Development Fund, 927 N.Y.S. 2d 2: 1st Dept. (3-2) holds that evidence that illegal immigrant expressed intent to return to Ecuador not admissible re: reduction of award for medical expenses at US rates. Court will not allow any mention of his immigration status.

Sanchez v. City of New York, 85 A.D. 3d 580: 1st Dept. holds that defendant TA's internal memo that sets six inches as maximum gap is not binding on plaintiff or Court without any basis for standard. Since no evidence that public planning body considered and passed on question, TA was not entitled to qualified immunity.

Durmiaki v. IBM, 85 A.D. 3d 960: Good decision by 2nd Dept. grants summary judgment to plaintiff per Labor Law §240(1). Where plaintiff fell from defective ladder, availability of other safety devices that could have been used instead is no defense without proof that plaintiff was instructed to use those other devices and not to use the defective ladder.

Jimenez v. RC Church of Epiphany, 85 A.D. 3d 974: 2nd Dept. grants summary judgment to plaintiff per Labor Law §240(1) where plaintiff, as per supervisor's instructions, placed closed A-frame ladder on top of scaffold and scaffold moved causing ladder to fall.

Losito v. Manlyn Development Group, 85 A.D. 3d 983: 2nd Dept. grants summary judgment to plaintiff per Labor Law §240(1) where A-frame ladder collapsed. Actions of plaintiff's foreman in stepping on back of ladder not so extraordinary as to constitute "superseding cause".

McCarthy v. Turner Construction, ____ NY 3d ____, 2011 WL 2534070: Court of Appeals holds that party seeking common law indemnity re: Labor Law §240 must be vicariously liable without proof of negligence or actual supervision on its part. Common law indemnity cannot be obtained from party who merely had authority to supervise. Instead, must show actual exercise of authority - that it actually supervised and directed.