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                      Fitzsimons, et al. v. Brennan and Marist College

                                   N.Y.L.J.  – February 22, 2019

In this auto accident case, plaintiff appealed an order from Queens County Supreme Court, denying plaintiff’s motion for summary judgment on the issue of liability. Plaintiffs (driver and passenger) established prima facie entitlement to judgment by demonstrating that defendant violated Vehicle and Traffic Law § 1141, when defendant made a left turn directly into the path of the Plaintiff’s vehicle, and that this breach of Traffic Law was the lone instigator of this incident. In opposition to Plaintiff’s motion, defendant raised the issue as to the Plaintiff’s comparable fault in this accident.

Following an action to recover damages for personal injuries, Judge J. Solomon denied plaintiff’s cross-motion for summary judgment on the issue of liability in an order dated August 8, 2013. Pursuant to plaintiff’s appeal, the Appellate Court affirmed the denial of granting summary judgment to plaintiff on his claim against defendant Calafiore. The court reversed the lower court’s order and granted plaintiff summary judgment on use of liability claim against the three (3) Jairath defendants.

The First Department affirmed the holding of the Supreme Court, Bronx County, which denied plaintiff’s motion for summary judgment as to liability under Labor Law § 240(1) and Labor Law § 241(6), and granted the defendant’s cross motion for summary judgment to dismiss the claims under Labor Law § 240(1) and Labor Law § 241(6).

The court has dismissed the defendant’s motion for summary judgment to dismiss the complaint in part because DiSilvestro v. Samler holds that a violation of Penal Law § 265.10(5) constitutes negligence per se.   This case states that a paintball gun is an air gun as defined by Penal Law § 265.05 and therefore it is illegal for a person under the age of 16 to possess a paintball gun. DiSilvestro v. Samler, 32 A.D.3d 987, 988-89, 821 N.Y.S.2d 632, 634 (2006).

In what is likely to come as a surprise to many practitioners, on April 3, 2014 the Court of Appeals decided that CPLR 3101 (a)(4) does not require litigants seeking discovery from non-parties to first show that the information could not be obtained by other means.  This decision, Matter of Kapon v. Koch, 2014 NY Slip Op. 032327, agrees with how the First and Fourth Departments have ruled, and is contrary to the positions taken by the Second and Third Departments.