Premises Liability

Published on: May 22, 2023

Appellate Division reviewed a case involving a bicyclist injured in an accident caused by a manhole cover. Bonilla v. City of New York, 165 A.D.3d 675 (1st Dep’t 2018)

by Stephen Bilkis

Bicycling is a popular mode of transportation in New York City, but it can be hazardous, especially when encountering potholes. Potholes on roads, bike lanes, and sidewalks can cause accidents and serious injuries to cyclists. In Bonilla v. City of New York. the court considered whether the City of New York was liable for a cyclist’s injuries resulting from a pothole.

Cycling has become an increasingly popular mode of transportation in New York City, with many residents opting to bike to work, school, or leisure activities. However, cycling in the city can be hazardous due to the many hazards that cyclists face, including potholes, manholes, and other road defects. The case of Bonilla v. City of New York is a premises liability case that addressed the issue of liability for a bicycle accident caused by a manhole cover.

Background

Published on: May 17, 2023

Court determined whether the State of New York was liable for a pothole accident. Focarino v. State of New York, 256 A.D.2d 642 (2d Dep’t 1998)

by Stephen Bilkis

Potholes are a common cause of bicycle accidents in New York, often resulting in serious injuries for cyclists. The responsibility for maintaining roadways in a safe condition falls on governmental entities such as the State of New York. If a pothole is present for a significant amount of time and the government entity has knowledge of its existence, but fails to take appropriate action to repair it, under premises liability law they may be liable for injuries resulting from bicycle accidents. Cyclists in New York should exercise caution when riding on roads with known potholes and report any dangerous conditions to the appropriate authorities.

Background

In Focarino v. State of New York, the plaintiff, Anthony Focarino, was riding his bicycle on a state park road in New York when he struck a pothole and was thrown from his bike. Focarino suffered several injuries, including a fractured wrist and elbow, as well as various cuts and bruises. He filed a lawsuit against the State of New York, alleging negligence on their part for failing to properly maintain the roadway and allowing the dangerous condition to persist. Specifically, Focarino argued that the pothole had been present for a significant amount of time prior to his accident, and that the State of New York had knowledge of its existence but failed to take appropriate action to repair it.

Published on: May 15, 2023

In a skateboarder injury case, the court discussed the duty of municipalities to maintain sidewalks to avoid injuries. Singh v. City of New York, 57 A.D.3d 367 (1st Dep’t 2008)

by Stephen Bilkis

Skateboarding is a popular sport among teenagers and young adults. While skateboarding can be a fun and thrilling activity, it can also be dangerous. One of the most common injuries associated with skateboarding is a sidewalk skateboard injury. In recent years, there have been several lawsuits filed against cities and municipalities for failing to maintain safe sidewalks for skateboarders. One such case is Singh v. City of New York.

A sidewalk skateboard injury can occur when a skateboarder falls off their board while riding on a sidewalk. The injuries can range from minor scrapes and bruises to more serious injuries such as broken bones, head trauma, and spinal cord injuries. According to the Centers for Disease Control and Prevention (CDC), skateboarding injuries account for approximately 66,000 emergency room visits each year in the United States.

Cities and municipalities have a duty to maintain safe sidewalks for pedestrians, including skateboarders. This duty includes repairing cracks, potholes, and other hazards that could pose a danger to pedestrians. Under premises liability law, failure to maintain safe sidewalks can result in liability for the city or municipality if a pedestrian is injured as a result of the unsafe conditions.

Published on: April 19, 2023

Liability in a motorcycle accident caused by gravel. Grunwald v. Clifton, 110 A.D.2d 869 (N.Y. App. Div. 1985)

by Stephen Bilkis

Under premises liability law, municipalities in New York have a legal responsibility to maintain their roads in a safe condition for motorists, including motorcyclists. This duty includes regularly inspecting the roads for potential hazards and promptly repairing any issues that could pose a danger to the traveling public.

Hazards that could cause motorcycle accidents include potholes, loose gravel, debris, and uneven pavement. Failure to maintain the roadways in a safe condition can result in serious accidents and injuries, and municipalities can be held liable for injuries caused by their negligence.

Motorcycle accidents caused by hazardous road conditions can result in severe injuries and even death. In the case of Grunwald v. Clifton, the plaintiff was injured in a motorcycle accident caused by gravel on the road. Gravel can be a significant hazard for motorcyclists, particularly when it is loose and not compacted into the road surface. Loose gravel can cause a motorcycle to lose traction, which can result in the rider losing control and crashing. As a result, gravel can contribute to motorcycle accidents. The case raised important legal issues about the duty of municipalities to maintain safe roads and the liability of property owners for hazardous conditions on their premises.

Published on: November 22, 2014

In a premises liability case, the court denies defendant’s motion to change venue – Coughlin v. Sarraf, 2010 NY Slip Op 30332(U) (N.Y. Sup. Ct. 2/17/2010)

by Stephen Bilkis

In this slip and fall case, the defendant moves to change venue based on the situs of his business and the fact that the plaintiff moved from the location where the accident occurred to another state.

Plaintiff Coughlin resided in an apartment building owned by 214 Street Realty Company. Defendant Sarraf is the owner of the company. The plaintiff asserts that she was seriously injured when due to the defendant’s negligence, fell down a staircase in the building which is located at 83 E 214th Street, New York, New York. The plaintiff filed a personal injury claim against Sarraf. Defendant moved for a change of venue to Westchester County, the county in which 214 Street Realty Company has its principal place of business.

Under CPLR §503(a), for personal injury claims that are commenced in New York Supreme Court, the proper venue is the county in which one of the parties resided when the action was commenced. If one of the parties is a corporation, according to CPLR §503(c) the corporation is deemed to be a resident of the county in which its principal office is located.

Published on: November 22, 2014

New York Appellate Court Hears Arguments for Change of Venue in Personal Injury Case

by Stephen Bilkis

The facts in Blake v Massachusetts Mut. Life Ins. Co., are similar to those herein. In Blake, the plaintiffs took title to a house in Westchester County on July 20, 1999, while still residing in Bronx County. Then, on August 11, 1999, the plaintiffs commenced an action, basing venue on Bronx County, where they had lived for years. In affirming the Supreme Court’s denial to change venue to Westchester County, the First Department stated: There is no dispute that plaintiffs continued to live only in the Bronx apartment while their new house was being painted, repaired and furnished, and did not move until the end of August. The First Department went on to reject defendants’ argument that because plaintiffs did not intend to remain in the Bronx apartment for some length of time or with some degree of permanency at the time of the commencement of the action, Bronx County is not a proper venue. The Court held: Absent evidence that plaintiffs continued to live in the Bronx apartment until after the commencement of the action for the sole purpose of obtaining an advantageous venue, no basis exists to disturb the motion court’s finding, made after a hearing, that plaintiffs were bona fide Bronx County residents at the commencement of the injury action.

Further, the First Department points out that a subsequent change of residence to another county does not invalidate the original designation based upon plaintiff’s residence at the time of the commencement of the action. In Iassinski, the plaintiffs commenced a personal injury action on or about November 9, 1992, electing New York County as the venue based on their alleged residence there. Plaintiffs had moved by the time they served their Bill of Particulars on March 22, 1993, four months later. After the defendants’ moved to change venue to Queens County, the plaintiffs confirmed that their residence had since changed to Queens, but averred that at the time of the commencement of the action they resided in New York County. In reversing the trial court, the First Department held, inter alia, that a subsequent change of residence to another county does not invalidate the original designation based upon plaintiffs’ residence at the time of the commencement of the action.

In Cardona, the plaintiffs commenced a personal injury action on May 2, 1988, designating Bronx County as the place of venue based upon their residence. In its motion to change venue, the defendant argued that because plaintiffs no longer live in Bronx County and, since that county therefore no longer has any nexus with the action, venue should be in New York County. The First Department rejected such reasoning, holding that a plaintiff who has designated a county of appropriate venue is under no obligation to make any showing that the county designated is in any way preferable to the one to which the change is sought unless and until the party seeking the change has made an adequate showing as to the convenience of material witnesses and the furtherance of justice.

Published on: November 20, 2014

Plaintiffs Move for an Order Pursuant to CPLR 511 to Change Venue

by Stephen Bilkis

In this personal injury action brought by plaintiff JC, defendants Mr. HS and LLC Realty move for an order, pursuant to CPLR §511, to change venue to Westchester County.

Plaintiff commenced this action through the service of a Summons and Complaint on September 30, 2009. Her Summons lists the basis of venue as her residence, 214 East 83rd Street, Apt. 5A, New York, New York 10028. In her Complaint, plaintiff alleges that Mr. HS is the owner of 214 East 83rd Street, New York, New York, the premises, and Realty is the management company of the premises. Plaintiff further alleges that on or about July 2, 2009, as a result of defendants’ negligence, she fell down an interior staircase of the premises, and suffered serious injury .

Defendants contend that, pursuant to CPLR §503(a), venue is based on the parties’ residence at the time of commencement of the action. For corporations such as Realty, residency is determined by the county where its principal place of business is listed on its certificate of incorporation. As Mr. Mr. HS resides at 10 Forthill Lane, Scarsdale, New York, New York, 10583, and Realty is a domestic limited liability company incorporated in Westchester County, with its principal office in Westchester County, defendants’ residency is Westchester County.

Published on: July 27, 2012

Defendants request summary judgement in a case involving injuries from exposure to lead paint – Scott v. City of New York, 2007 NY Slip Op 33484(U) (N.Y. Sup. Ct. 9/27/2007)

by Stephen Bilkis

Plaintiffs include several members of the Scott family, including 19 children, who resided at the Brooklyn Arms Hotel which is owned by defendant Fields. The Hotel was leased to Merco. In 1981 the plaintiffs were homeless. The City of New York placed them in the hotel. The plaintiffs claim that from the years 1981 through 1984, several of the Scott children were exposed to lead paint while at the hotel. The plaintiffs also claim that while they lived at the hotel there were no attempts made to correct the hazardous lead paint condition. The plaintiffs filed a lawsuit against the plaintiffs based on negligence, recklessness, and gross negligence. In addition, the plaintiffs allege that the Housing and Maintenance Code for New York City was violated.

The defendants filed a motion for summary judgement dismissing the case. The purpose of a summary judgement motion is to ask the court to dismiss the case without the case having to go to trial. The court will grant a motion for summary dismissal of a case if the defendant produces evidence that demonstrate that there are no genuine issues of material fact. This means that based on the undisputed facts, the law requires that the defendant wins.

In support of their summary judgement motion, the defendants make arguments related to not being aware of the problem, not having regular access to the premises, not having control over the premises, and not being aware that children lived there. The court determined that some of the defendants’ arguments are specious. Based on the evidence presented at the hearing on the motion, the court concluded that there were indeed questions of fact. For example, the court found that there were questions of fact with regard to whether the defendants were aware that paint was peeling the Hotel, whether they were aware that children under the age of 7 lived in the Hotel, and who had complete and exclusive control over the Hotel. Thus, on the issue of negligence, the court denied the defendants’ motion for summary judgement. However, the court did grant the defendants’ summary judgement motion to the extent that the plaintiffs will not be allowed to recover claims related to the breach of warranty of habitability or their claims of nuisance.

Published on: July 14, 2012

Defendants request summary judgement in a grocery store slip and fall case- Richards v. Great Atl. & Pac. Tea Co., 2010 NY Slip Op 33392 (N.Y. Sup. Ct., 2010)

by Stephen Bilkis

In a slip and fall case, the defendant grocery store moves for summary dismissal, arguing that the plaintiff does not have evidence that its negligent created the hazard that led to the plaintiff’s fall, or had real or constructive notice of it.

Plaintiff Richardson was shopping at Waldbaum’s grocery store. Defendant Great Atlantic & Pacific Tea Company is the parent company. As she walked through the produce section, plaintiff slipped and fell due to a bunched up floor mat and area that was wet due to the vegetable misting machine which sprayed water into the aisle- beyond the area where there were mats and carpets placed to prevent customers from slipping. Based on the injuries suffered when she slipped and fell, the plaintiff filed a personal injury lawsuit against the defendant. Defendant filed a motion for summary judgement dismissing the case.

Under New York law, the defendant will be entitled to summary judgement if it can make a prima facie showing that it is entitled to it. This means that the defendant must produce sufficient evidence that there are no material issues of fact. In other words, the defendant must show that the plaintiff does not have a case. If the defendant makes a prima facie showing, then the burden shifts to the plaintiff. The plaintiff must show that there is an issue of material fact that would preclude summary judgement.

Published on: May 15, 2012

Employee Injured at Work-Site, NY Appellate Court Dismisses Complaint

by Stephen Bilkis

A married woman owned a property with a two-car garage. She decided to renovate the two-car garage by making it over into a guesthouse with a fireplace. She hired a general contractor to secure the necessary permits and licenses needed for the project; to hire and to supervise sub-contractors for each and every phase of the work; and to purchase insurance to shield the owner from suits in damages for any accidents that may occur during the renovation at the worksite.

The general contractor hired a company that constructs and installs drywall. It also hired a rock supplier to provide and install sheet rock as flooring. A man was hired by the rock supplier to deliver 16-foot sheet rock. A New York Injury Lawyer said he drove the truck on which the sheet rock was delivered. He also operated the boom that lifted the sheet rock from the truck bed to the forklift. A foreman from the general contractor told him to just bring the sheet rock into the garage and rest them on the long wall. The man and his helper took one sheet rock and carried it between the two of them. They entered the garage. When they got to the room where they were supposed to pile the sheet rock, the man’s right foot slipped into a hole on the cement floor of the worksite that measured about sixteen inches in diameter. There was a pipe that protruded from the hole and the man tripped on this and fell. The man could not see where he was going as he and his helper carried the sheet rock in between them. His slip and fall made him land on the sheet rock which fell and broke.

The man sustained serious personal injury and sued the owner of the premises (premises liability), her husband, the general contractor, the drywall installer, and the rock supplier for common law negligence and for negligence under the labor code to compensate him for the damages he sustained as a result of his personal injury.