Premises Liability

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.

Published on: April 23, 2012

Landlord Prevents Tenant from Entering Their Property, New York Appellate Court Modified Orginal Judgement

by Stephen Bilkis

The plaintiff in this case is J. Leonard Spokek. The defendant is the Liberty Mutual Insurance Company.

The Case

A New York Injury Lawyer said that the plaintiff filed an action declaring that Liberty Mutual Insurance Company must defend and indemnify the plaintiffs from Cohen V. Spodek, Index Number 3456/87. The defendants from the initial case were Nevin Cohen and Kenneth Skrudna. Index Number 3456/87, was filed in the Civil Court of Kings County, and included Liberty Mutual (the defendant) appealing a judgment dated September 27th, 1988 from the Supreme Court of King’s County which granted that relief.

Published on: April 21, 2012

New York Appellate Court Decides Premises Liability Issue

by Stephen Bilkis

The plaintiff is the case is Marcia Spalma. The defendants in the case are the Lawrence Towers Apartments, LLC, and AMA, Inc.

About the Case

The defendants/movants in the case, Lawrence Towers Apartments LLC and AMA, Inc., move for a summary judgment to dismiss the complaint made against them by the plaintiff. Alternatively, a Manhattan Personal Injury Lawyer said the defendants/movants seek the case’s dismissal because allegedly the plaintiff released the defendants from liability from the personal injuries that she sustained. Additionally, the defendants/movants seek the case to be dismissed because the injuries obtained by the plaintiff were not caused by a toxic substance or mold. The defendants/movants seek a hearing based on the case of Frye versus the United States in order to contest the scientific basis of the cause of her alleged injuries.

Published on: March 31, 2012

Court Hears Premises Liabilty Case

by Stephen Bilkis

The plaintiff in the case is William Stout. In action number 1, the third party defendants are East 66th Street Corporation and the plaintiffs and respondents in the third party action is Tishman Construction Corporation. In the second action the defendant and respondent is Interstate Fire and Casualty Company and the appellants and defendants is the Zurich American Insurance Company.

The case is being heard in the New York State Supreme Court in the Appellate Division. The judges in the case are Mark C. Dillon, J.P., Ariel E. Belen, JJ, Ruth C. Balkin, and John M. Leventhal.

Case Facts

Published on: March 31, 2012

Court Hears Premises Liability Case

by Stephen Bilkis

The respondent in the case is James Davis. The respondent is represented by Jacobs, Jacobs & Giulini, Brooklyn, and Michael R. Scolnick. The appellant in the case is Bamboo 234 Restaurant, Inc. The appellant is represented by Henry Wolfman, from New York City and by Herbert Minster from Brooklyn.

The case is being held in the Second Division of the Supreme Court, Appellate Division. The judges in the case are Rabin, P.J., Hopkins, Munder, Martuscello, and Shapiro, JJ.

Court Memorandum