Articles Posted in Premises Liability

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This case raises two questions concerning application of the recently enacted Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA), set forth at article 5-A of the Domestic Relations Law: (1) whether (as the father urges) title 3 of that act requires this court to enforce a custody order issued by a court in the Dominican Republic, or (2) whether (as the mother and law guardian contend) this court may assume jurisdiction of the parents’ custody dispute and modify or replace the Dominican court’s order. After consultation with the original judge, consideration of the parties’ residence status, and in light of allegations of an extensive history of domestic violence that were not presented to the Dominican court before its default order of custody was entered, this court assumes jurisdiction and sets the matter for trial.

Determination whether this controversy should remain with this court or be returned to the originating court in the Dominican Republic is governed by the recently enacted Uniform Child Custody and Jurisdiction Enforcement Act, effective April 28, 2002 and replacing the former “Uniform Child Custody and Jurisdiction Act” (UCCJA). Set forth at article 5-A of the Domestic Relations Law, this statutory scheme is designed to eliminate jurisdictional competition between courts in matters of child custody. Jurisdictional priority, under the UCCJEA, is always conferred to a child’s “home state.”

The legislative history of the UCCJEA establishes that domestic violence was very much on the minds of the drafters of the statute. While earlier laws had often presumed that the party fleeing the jurisdiction with children was the wrongdoer, experience showed that it was often a victim of domestic violence who sought protection in another jurisdiction. One important purpose of the UCCJEA was to bring that area of law into conformity with the Parental Kidnaping Prevention Act (28 USC § 1738A) and the “full faith and credit” requirements of the Violence Against Women Act. Domestic violence injury is also a factor to be considered when determining whether to retain jurisdiction in the United States in an international custody case under the International Parental Kidnaping Act, and can support refusal to repatriate a child.

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Proof of service by mail to an address not specified in the part of the Dominican court record before this court was submitted to the Dominican court. The mother did not appear for the custody proceeding. In a decision dated April 17, 2002, the District Court found respondent in default for nonappearance and awarded full custody to the petitioner. Noting that the children had now been with their father for over a year, the court declined to move them again, citing the need for “stability and security in the future.” The law guardian in the proceeding took the position that custody should be awarded to the father, noting that the mother “ceded custody of said children by means of an amicable agreement signed on the 1st of December of 2000,” and urged adherence to that agreement. The mother, who asserts that she learned of the renewed custody proceeding only when she personal appeared in the Dominican Republic for a visit with the children in April 2002, filed an appeal on June 7, 2002 and inquiry was held in that court on August 7, 2002. In a decision dated October 22, 2002, the Appellate Court affirmed the grant of custody to the father.

Two weeks after the Dominican appellate decision, on November 8, 2002, the father was arrested in Bronx County for threatening to kill the mother. He was charged with two counts of aggravated harassment in the second degree and related lesser offenses. He asserted to the Criminal Justice Agency (CJA), which interviews criminal defendants prior to arraignment for the purpose of advising the court on bail, that he had been “self-employed” full time as an “entrepreneur” in the Bronx for the past two years. He gave as his address 1268 St. Nicholas Avenue, New York, New York 10033. He represented that he had lived alone at that address during the prior year. He gave a different New York address to the arresting officer: 736 West 173rd Street in Manhattan. At arraignment on November 9, 2002, a full order of protection was issued in favor of the mother. Based in part on the father’s representations of community ties, he was released on his own recognizance and remains at liberty.

Almost immediately upon release, on November 12, 2002, the father brought a petition for writ of habeas corpus in Bronx County Family Court (Docket No. V-19646-7/02), alleging that the mother removed the children from the Dominican Republic in contravention of the final order of custody issued by the Family Court in Santo Domingo and affirmed on injury appeal. A law guardian was assigned to represent the children, and the matter was made returnable for the following day, November 13, 2002, in the Integrated Domestic Violence (IDV) Court, where the criminal matter was also now pending.

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A Bronx Estate Lawyer said that, the subject children are the parties’ twin sons, born June 19, 1997 in the Dominican Republic. It is undisputed that the father obtained a default order of custody there in April 2002, an order appealed by the mother and affirmed by the Dominican court in October 2002, a month after she had brought the boys to the United States. In quick succession, the Integrated Domestic Violence Court which has jurisdiction over both criminal and family law matters received a criminal prosecution against the father based on his alleged November 8, 2002 threats to kill the mother; a writ of habeas corpus filed by the father on November 12, 2002 under article 6 of the Family Court Act seeking enforcement of the Dominican custody order; a injury petition for custody of the two boys filed by the mother on December 4, 2002 under article 6 of the Family Court Act; and a family offense petition filed the same day by the mother under article 8 of the Family Court Act, alleging additional acts of domestic violence.

A Bronx Estate Litigation Lawyer said that, a law guardian assigned on November 12, 2002 to represent the children reported an extensive history of domestic violence. Based upon this information, the court assumed temporary emergency jurisdiction under Domestic Relations Law § 76-c, and directed the Administration for Children’s Services to interview both parents and the children. A review of the documents of the Dominican proceedings confirms that the mother and father separated in November 1998. At that time, pursuant to an agreement signed before assistant to the prosecutor the father consented to the terms of an order of protection, agreeing to refrain from assaulting the mother verbally or physically, and to vacate the family home until the mother was able to find other housing. He agreed to pay child support, and was given regular visitations “as long as he behaves appropriately.”

The mother left the Dominican Republic in December 1999, leaving the children with her mother, remarrying in June 2000. Just five weeks later on August 2, 2000, while the mother was still in the United States, the father filed a claim for custody of the two children in the “Court of the First Instance for Children and Adolescents of the Distrito Nacional.” The maternal grandmother, who had physical custody of the children at the time, was named as defendant in the matter.

In a forensic report submitted to the Dominican District Court on November 10, 2000, the evaluator who had interviewed only the father, as the mother was not in the country concluded that he should have custody as the mother “is both physically and emotionally absent, and that the other family ties, according to the father, are not the most adequate for the children’s emotional or intellectual development. In this case, the father figure would be of vital importance, as such, we suggest beginning individual and family therapy to address some of the previously reported accident issues.”

On December 1, 2000, in the midst of the Dominican judicial proceeding, the mother temporarily ceded custody of their sons to the father, in a document known as a “friendly agreement,” signed before the law guardian. The custody medical dispute thus came to a halt. It is not known why, or under what circumstances, the mother did this. In February 2002, the father reactivated the Dominican custody proceeding. In his request for a hearing he alleged that “the amicable agreement between the parties is not being adhered to.” The nature of the violation that prompted the father’s action was not specified. By that time, however, the mother apparently lived in the United States and had regular, though intermittent, contact with the boys.

To Be Cont…
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A Kings Premises Liability Lawyer said that, in an action to recover damages for personal injury, the defendant appeals from a judgment of the Supreme Court, Kings County, dated July 14, 2009, which, upon a jury verdict, is in favor of the plaintiff and against it in the principal sum of $508,000. The plaintiff was allegedly injured when she fell in a hole in the street while alighting from a bus owned and operated by the defendant, New York City Transit Authority (hereinafter NYCTA). The hole was located at the curb line, next to the sidewalk. The plaintiff alleged that the bus driver parked the bus at an angle, so that the front of the bus was next to the sidewalk and the back of the bus was several feet from the curb. As the plaintiff descended the stairs of the rear exit of the bus, she stepped down with her left foot into a hole in the ground and fell.

A Kings Personal Injury Lawyer said that, the plaintiff claimed that she did not see the hole before she fell. The bus driver also claimed that he did not see the hole before the accident, because it was near the curb, and he was scanning the street in front of the bus for pedestrians. After a trial on the issue of liability, the jury found that NYCTA was negligent, and that its negligence was a substantial factor in causing the plaintiff’s construction accident. The jury found that the plaintiff was not negligent.

At a trial on the issue of damages, the plaintiff’s physician testified that she had suffered a meniscal tear and subchondral bone injury in the left knee, had an abnormal gait, and would require a total knee replacement in 5 to 10 years. NYCTA’s physician testified that the plaintiff’s left knee was normal, her gait was normal, and that she had no permanent back injury or disability. He testified that the alleged meniscal tear was an age-related degenerative change. Counsel for NYCTA requested at trial that the jury be required to determine whether the plaintiff had sustained a serious injury pursuant to the no-fault insurance law. The plaintiff’s counsel contended that the accident was not the result of the use or operation of a motor vehicle, so that the no-fault provisions did not apply. The plaintiff’s counsel noted that NYCTA had denied her claim for first-party benefits. Counsel for NYCTA stated that the reason that no-fault benefits were denied was that NYCTA had no record of the plaintiff’s bike accident. The Supreme Court denied NYCTA’s request to charge the jury as to the issue of serious injury.

A Kings Construction Accident Lawyer said that, the jury awarded the plaintiff $250,000 for her past pain and suffering, and $250,000 for her future pain and suffering. The jury also awarded the plaintiff $8,000 for past medical expenses. NYCTA appeals from the judgment entered against it.

Although there was a fair interpretation of the evidence by which the jury could have found that the bus driver should have seen the defect through the proper use of his senses, and was negligent in failing to do so, the judgment must be reversed. As a threshold matter, in an automobile accident personal injury case, the plaintiff is required to plead and prove that he or she sustained a serious injury as defined in the no-fault Insurance Law. If a plaintiff at a trial on the issue of damages fails to sustain the burden of establishing serious injury, the plaintiff is not entitled to any recovery despite proof of common-law liability. Contrary to the plaintiff’s contention, the no-fault Insurance Law does apply to her accident, as the accident arose out of “the use or operation of a motor vehicle” (Insurance Law § 5104[a] ). Therefore, in order to recover, she was required to establish that she sustained a serious injury within the meaning of Insurance Law § 5102(d).

For the no-fault statute to apply, the vehicle must be a proximate cause of the injury. To be a proximate cause of the injury, the use of the motor vehicle must be closely related to the injury. Also, the injury must result from the intrinsic nature of the motor vehicle as such, and the use of the vehicle must do more than merely contribute to the condition which produced it.

Here, the negligent operation of a motor vehicle was the proximate cause of the plaintiff’s injuries. The plaintiff’s theory of liability is that her injuries resulted from the manner in which the bus driver operated the bus, specifically his positioning of the bus next to a hole in the street when he pulled over at the bus stop. Moreover, this is not a case in which the plaintiff was completely outside of the vehicle when the accident occurred, or in which the plaintiff was the victim of an intentional tort. NYCTA was not estopped from arguing that the accident arose from the use or operation of the insured vehicle, as NYCTA never did anything to lead the plaintiff to believe that it would not argue that the accident arose from the use or operation of a motor vehicle. NYCTA stated at trial that first-party benefits had been denied because it had no record of the accident.

The issue of whether the plaintiff had sustained a serious injury within the meaning of the Insurance Law should have been submitted to the jury, as set forth in PJI 2:88A and 2:88F, as requested by NYCTA. It is for a jury to resolve the issues of credibility raised by the conflicting medical opinions. The matter must be remitted for a new trial on the issue of damages. Specifically, the jury should first be required to determine whether the plaintiff sustained a serious injury pursuant to Insurance Law § 5102(d).

In light of our determination, it is unnecessary to reach NYCTA’s remaining contention.
Accordingly, the court held that the judgment is reversed, on the law, with costs, and the matter is remitted to the Supreme Court, Kings County, for a new trial on the issue of damages.
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This is a personal injury action in which plaintiff alleges that he slipped and fell on the front steps of his apartment building, which is designated as XX Bronx Park South, Bronx, New York (the “building”). The building is owned and maintained by defendant Bronx Park South Associates (“Bronx Park”).

Plaintiff, at a deposition conducted on February 3, 1999, testified that he worked close to his residence and returned often during the day, and that when he left for work at 5:00 A.M., he did not notice any debris or oil on the steps of the building. Plaintiff maintained that he returned to his apartment for lunch at approximately 12:00 P.M., at which time there was no debris on the steps. Plaintiff then testified that he left to return to work at approximately 1:30 P.M. and slip and fell on supermarket fliers that were probably placed on the steps while he was inside his apartment eating lunch. Initially, plaintiff averred that he fell on the fliers and that was it, but, after some prodding from his attorney, who queried “didn’t you tell me you slipped on garbage and oil on the steps?”, plaintiff agreed that there was oil on the first step, but that the oil was not there earlier in the day and appeared at some point between the time he returned for lunch at noon and when he fell, one and one-half hours later.

According to Plaintiff, the discrepancy between plaintiff’s deposition testimony that he observed no debris or oil on the steps an hour-and-one-half prior to the accident and the affidavit of his neighbor that she observed “papers, garbage and grease” on the steps the previous day that had not been removed at the time of the accident presents, at most, an issue of credibility to be resolved at trial. “The assessment of the value of a witness’s testimony constitutes an issue for resolution by the trier of fact, and any apparent discrepancy between the testimony and the evidence of record goes only to the weight and not the admissibility of the testimony. The court may not weigh the credibility of the affiants on a motion for summary judgment unless it clearly appears that the issues are not genuine, but feigned.

It is well established that a landowner is under a duty to maintain its property in a reasonably safe condition under the existing circumstances, which include the likelihood of injury to third parties, the potential that any such injury would be of a serious nature, and the burden of avoiding the risk. However, in order to recover damages for an alleged breach of this duty, a party must demonstrate that the landlord created, or had actual or constructive notice of, the hazardous condition which precipitated the injury. In order to constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to allow the owner to discover and remedy it.

In light of the foregoing, plaintiff’s own deposition testimony makes it clear that none of the criteria necessary to sustain a cause of action against the landowner has been met. Plaintiff’s submission of a one-page affidavit from his neighbor, an alleged eyewitness to the accident, which consists of nothing more than two relevant sentences of conclusory allegations tailored to overcome plaintiff’s testimony, is insufficient to warrant the denial of defendant’s motion.

As we held in Phillips v Bronx Lebanon Hospital, 268 A.D.2d 318, 320, while issues of fact and credibility may not ordinarily be determined on a motion for summary judgment, where, as here, the self-serving affidavits submitted by plaintiff in opposition clearly contradict plaintiff’s own deposition testimony and can only be considered to have been tailored to avoid the consequences of her earlier testimony, they are insufficient to raise a triable issue of fact to defeat defendant’s motion for summary judgment. The court may not weigh the credibility of the affiants on a motion for summary judgment unless it clearly appears that the issues are not genuine, but feigned. Hence, Plaintiff’s petition is hereby dismissed.
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Based upon the evidence adduced at the hearing herein, including the fact that the physical description in the affidavit of service of the individual allegedly served differed considerably from the physical appearance of defendant, and the further fact that the process server failed to identify him in court as the person upon whom he had served process, there was a more than adequate basis for the hearing court’s determination that he was never personally served with process. Accordingly, we conclude that Special Term properly held that personal jurisdiction over he was not acquired by personal service of process upon him.

However, as indicated, we disagree with Special Term’s conclusion that having determined the question of acquisition of jurisdiction by service of process against the plaintiff, the issue of whether the attorney’s appearance on behalf of the defendant was authorized becomes moot. To the contrary, once it was found that personal injury jurisdiction had not been acquired, the court should have shifted its focus to the question of whether the appearance by the attorney on defendant’s behalf amounted to a waiver of the right to challenge jurisdiction. An appearance by a defendant in an action is deemed to be the equivalent of personal service of a summons upon him, and therefore confers personal jurisdiction over him, unless he asserts an objection to jurisdiction either by way of motion or in his answer. By statute, a party may appear in an action by attorney, and such an appearance constitutes an appearance by the party for purposes of conferring jurisdiction.

Simply stated, the rule, which traces its origin to English case law, holds that the unauthorized acts of a duly admitted attorney may serve to extend jurisdiction over a New York resident who has not otherwise subjected himself to the jurisdiction of the court. From its accident inception, however, the rule has been criticized and its original scope has been narrowed.

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The defendants, his brother, and his father were the principal shareholders of the corporate defendant. For several years prior to 1974 the corporation owned a restaurant in Staten Island, together with the real property upon which it was located. During this time, the brother had been the president and chief operating officer of the restaurant, while his brother defendant and his father apparently had not been actively involved in the business.

Sometime in January 1974 the president of the plaintiff real estate broker, approached the brother to discuss a possible sale of the restaurant and the real property upon which it was situated, as well as a private residence immediately adjacent thereto which was owned by him, his wife, and his father. Within a few weeks, a contract of sale was prepared and executed under which the restaurant, the property upon which it was located and the adjacent private residence were to be sold to a buyer produced by the plaintiff. Thereafter, on or about April 25, 1974, the transaction was consummated with the transfer of all of the stock of the corporate defendant together with the private residence, to the buyer. As part of the financial arrangements for the transaction the buyer gave a purchase money mortgage to defendant and the other parties. Thereafter, the purchase money mortgage was foreclosed and the real properties were conveyed to the buyer and his sons, as tenants in common.

Plaintiff commenced the instant accident action against the seeking to recover the balance allegedly due under the brokerage agreement. Following service of the summons and complaint upon him, the brother retained an attorney, to appear on his behalf and purportedly to appear as well on behalf of his brother, his father, and the corporation. Following his retention, the attorney filed a notice of appearance and an answer on behalf of all the defendants and later interposed an amended answer and filed a demand for a bill of particulars on their behalf.

On March 14, 1983, the parties–the defendants now purportedly appearing by one counsel to the other attorney entered into a stipulation in open court providing for settlement of the action for the sum of $17,000. It was further provided that if payment was not made within 30 days, Skyline could enter a default judgment against the defendants for the entire amount alleged to be due, to wit, $39,000. Thereafter, on May 10, 1983, following the defendants’ failure to pay the settlement amount within the allotted time, a judgment was entered pursuant to the parties’ stipulation against the defendants in the sum of $39,000. Based upon that judgment, Skyline’s counsel thereafter issued an execution, with notice to garnishee, to three individuals who were indebted to the defendant under a mortgage and petitioned the court for entry of a judgment directing the mortgagors to pay plaintiff the sum of $39,152 in satisfaction of the outstanding judgment against the defendants.

Thereafter, by order to show cause dated October 24, 1983, defendant moved, inter alia, for an order pursuant to CPLR 5015(a)(3) and (4), vacating the judgment insofar as entered against him. In support of his application, he alleged that he had never been served with process in the action and that he had first become aware of the action and of the judgment therein in June of 1983 when execution was levied upon the mortgage payments due to him. He claimed that without his knowledge or consent his brother had apparently retained the attorney to defend the action and that Fitzpatrick had entered an appearance on his behalf without his knowledge or authorization and without his ever having been advised of the pendency of the action.

A New York Premises Liability Lawyer said that, by order dated March 13, 1984, Special Term directed that a hearing be held on the issues of whether proper service was effected upon defendant and whether the attorney had had authority to appear on his behalf. Following the hearing, Special Term concluded that personal service had never been effected upon Frank and that it, therefore, lacked personal jurisdiction over him. Accordingly, Special Term vacated the judgment as against defendant.

The issue in this case is whether an attorney’s unauthorized appearance conferred personal injury jurisdiction over the individual for whom the attorney purported to appear when that individual neither had been served with process nor had become aware of the fact that an action had been brought against him until subsequent to judgment.

We conclude that, under such circumstances, personal jurisdiction is not acquired and the judgment entered as a result of such an unauthorized appearance must be vacated.

While Special Term’s determination as to the lack of personal service was, in our view, correct, we do not agree that the question of the attorney’s authority to appear on defendant’s behalf is moot. For the reasons stated herein, we find it necessary to reach that issue and upon our review thereof we conclude that vacatur of the judgment as against defendant was appropriate. Accordingly, we affirm.

At the outset, we address the issue of whether jurisdiction was acquired over the defendant by proper service of process. In New York, a civil action is generally commenced and jurisdiction acquired by service of a summons (CPLR 304). While there are a number of methods by which a summons may be served upon a natural person, the method claimed to have been utilized at bar to effect service was personal delivery of the summons pursuant to CPLR 308(1). It is well established that the burden of proving that personal jurisdiction was acquired rests at all times upon the plaintiff in the action. Ordinarily, a proper affidavit of a process server attesting to personal delivery of a summons to a defendant is sufficient to support a finding of jurisdiction. Where, however, as here, there is a sworn denial of service by the defendant, the affidavit of service is rebutted and the plaintiff must establish jurisdiction by a preponderance of the evidence at a hearing.

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The allegations of injury presented to this Court by the facts of the certified question, nonetheless, fall short of this standard. The question itself begs us to assume that an attorney client relationship was “actually undermined,” but on the facts given to us, we cannot so conclude. In general, plaintiff complains about the burdens imposed by the conflict of interest created when respondent sued him. The amount of time and costs of rendering adequate counsel were increased, discovery burdens increased, some of which Engel did not or could not, according to the Second Circuit, charge to his client. These do not rise to the level of atypical consequences of a lawyer being sued.

This does not mean that because plaintiff won for his client he cannot show the requisite added grievance. Nor should it suggest that he had to have been disbarred, disciplined, disqualified or dismissed in order to get his malicious prosecution claim to the jury. But here, nothing in the specific facts presented to us gives a basis for concluding that the burden, financial or otherwise, of strategizing around the conflict was substantially beyond that which would be typical of similar litigation.

The claims in the facts presented to us of lost business likewise fail to muster the requisite special injury. These claims are actually tangential to the main claims of an increased work burden due to the conflicts, and are primarily asserted in general rather than specific terms. Even though we can foresee specific, verifiable loss of business providing the necessary grievance, the loss of one client along with vague allegations of reputational loss, given plaintiff’s established practice, are not sufficient. Moreover, there has been no allegation that the consequences, in terms of lost business, have marred, in any specific and meaningful way, plaintiff’s or his law firm’s financial opportunities.

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Moreover, the current formulation of the special injury requirement contains anachronistic features. Gone are the days of the writ of ne exeat (let him not depart), which allowed a civil plaintiff the right to restrict the party sued in equity to the jurisdiction. More notably, arrest as a general provisional remedy in a civil action was abolished in 1979. To limit the special injury standard in wrongful civil proceedings to “interference with person” in the sense of an arrest, provides a mold that the law would seldom fill. Empty standards do little to sustain important public policies.

This leads naturally to the conclusion that burdens substantially equivalent to those imposed by provisional remedies are enough. Actual imposition of a provisional remedy need not occur, and a highly substantial and identifiable interference with person, property, or business will suffice. Since the role that the special injury requirement fulfills is that of a buffer to insure against retaliatory malicious prosecution claims and unending litigation, we are satisfied that a verifiable burden substantially equivalent to the provisional remedy effect can amount to special injury. Put another way, what is “special” about special injury is that the defendant must abide some concrete harm that is considerably more cumbersome than the physical, psychological or financial demands of defending a lawsuit. This standard strikes the balance required between discouraging excess litigation on the one hand and prohibiting the malicious use of the courts on the other.

To the extent that this represents a departure from the case law, it is only a minor one, an incremental step in the right direction. As the federal district court was correct to acknowledge, New York has not strictly limited special injury to the imposition of provisional remedies, and the intermediate appellate courts have allowed such claims based on involuntary bankruptcy filings, as well as prior mental illness proceedings. We now revisit the statement over a century ago in Willard that all that is required is some added grievance, for which the imposition of provisional remedies serves as but one of a more expansive set of examples of medical malpractice.

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That said, however, it seems clear that New York law has deemed special injury to be a necessary consequence of a malicious prosecution. In this regard, the parties make much of footnote two in the case. It states: “Additionally, it might be noted that an action for malicious prosecution will not lie in this situation because there has been no interference with plaintiff’s person or property”. In this case however, was not a malicious prosecution case. That case concerned abuse of process and libel. Plaintiff contends that the dicta in Williams merely provides a toehold from which we cannot climb to the conclusion that New York requires proof of special injury, especially in light of the fact that the original reason for the heightened injury requirement did not fully transplant itself here from England.

This argument, however, downplays cases from the turn of the century which strongly suggest the existence of such a requirement in New York law, and moreover, ignores more recent jurisprudence which cements its existence with sound reasoning and countervailing policy concerns.

Moreover, the defendant who defeats a frivolous civil claim is not without some possibility of recovering legal expenses. The courts’ administrative rules permit many courts, in the exercise of discretion, to award fees and costs and to impose sanctions for frivolous conduct. Such recourse, though in some cases not guaranteed, gives additional viability to the element of special injury as part of a claim of malicious prosecution.

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