The Tort Report

Compiled and submitted by:
Andrea Bonina and John Bonina
Bonina and Bonina, P.C.

A Legal Update From the Tort Law Section

John Lonuzzi, Esq. Chair
Lonuzzi and Woodland, L.L.P.

This legal update will supply a summary of and a link to the full text opinion on recent significant decisions in the First and Second Departments.

We would like to thank Brooklyn Law School student Mariel Tanne for her assistance in preparing these materials.
Click on the case name to read the full text decision online

Premises Liability

Delosangeles v Asian Ams. for Equality, Inc. – 40 A.D.3d 550, 838 N.Y.S.2d 26 (1st Dept. 2007)

  • Defendant’s motion for summary judgment granted.
  • Plaintiff sustained injuries when an air conditioner fell from a window of one of the apartments in defendant=s building. The air conditioner was not installed, removed, cleaned, or maintained by defendant building owner or its employees, and thus the building had no notice of how it had been installed.

Soumas v Consolidated Edison – 40 A.D.3d 478, 836 N.Y.S.2d 186 (1st Dept. 2007)

  • Defendants’ motion for summary judgment granted by Appellate Division. Defendants satisfied their burden with uncontroverted evidence that the trench work they had performed at the subject intersection was completed four months before the accident, and as plaintiff’s expert opinion failed to establish that defendant’s trench work was negligent or a proximate cause of plaintiff’s fall.

Gramazio v 370 Lexington Ave., L.L.C. – 40 A.D.3d 303, 836 N.Y.S.2d 84 (1st Dept. 2007)

  • Defendant’s motions for summary judgment denied.
  • Plaintiff slipped and fell over broken concrete, which was the alleged result of a failure to maintain an oil fill cap and box embedded underneath the sidewalk. The sidewalk was owned by defendant I&G and previously owned by defendant Murray Hill Property Management. The Court held that there was an issue of fact as to whether the broken sidewalk was latent and undiscoverable, at the time of conveyance, and whether the new owner had a reasonable time to discover and remedy the condition since it was conveyed only a few days before the accident.

Debell v Wellbridge Club Mgt. Inc. – 40 A.D.3d 248, 835 N.Y.S.2d 170 (1st Dept. 2007)

  • Defendant’s motion for summary judgment was denied, and the decision of the Supreme Court reversed.
  • Plaintiff was injured while participating in member activities at defendant Spa under the supervision of defendant trainer. Defendants argued that plaintiff’s claims were barred by a release that included a covenant against bringing suit for personal injuries incurred in a personal training session.
  • The Appellate Court held that the motion court’s rejection of plaintiff=s claim was error, because the court=s focus should have been on whether the Spa’s purpose was recreational or instructional rather than the purpose of plaintiff=s activity. The Court held that the training sessions appeared to be ancillary to the recreational activities offered by the Spa, and thus General obligations Law ‘ 5-326, which provides that such a covenant could be void as against public policy and wholly unenforceable, applied.

Perez v Rodriguez – 40 A.D.3d 1062, 836 N.Y.S.2d 693 (2nd Dept. 2007)

  • Defendant’s motion for summary judgment granted.
  • Regardless of whether the respondent was aware that the planter which fell on the infant plaintiff was not secured to the pillar on which it stood, the infant plaintiff=s act of grabbing the edge of the planter and trying to lift himself up to do a chin-up constituted a superseding cause of such an extraordinary nature that it was not an occurrence which should have been guarded against in the exercise of reasonable care in maintaining the property in a safe condition.

Petrescu v College Racquet Club, Inc. – 40 A.D.3d 947, 838 N.Y.S.2d 574 (2nd Dept. 2007)

  • Defendant’s motion pursuant to CPLR 4401 for judgment as a matter of law was denied, and the order of the Supreme Court reversed.
  • Plaintiff was a maintenance supervisor who was changing light bulbs for the defendant Racquet Club. He was injured when he fell off a ladder, after the Club manager holding it for him suddenly let go while plaintiff was descending.
  • The Appellate Court held that the trial court=s sua sponte grant of defendant=s motion for judgment at the close of the evidence was error, as the jury could have rationally determined that the Club=s manager had voluntarily assumed a duty of care towards the plaintiff. Further, the jury could have rationally determined that the Club was vicariously liable for its manager=s negligence under a respondeat superior theory.