News & Blog

Category: Trial Practice

Another Falling Object Case That is Not a Labor Law § 240(1) Matter

July 1, 2013 • Posted By Joseph A. French • Construction Claims, Trial Practice

In a recent decision, the Second Department in Moncayo v. Curtis Partition Corp., 2013 NY Slip Op 03644 reaffirms that not every single case in which a fallen object case strikes a worker leads to a Labor Law §240(1) claim.  In this Queens County case, the plaintiff was allegedly injured while standing on the ground outside a school.  He was struck by a piece of sheetrock that had fallen from the third floor of the school building.  A co-worker had been using a power saw to cut out a piece of sheetrock from the ceiling to facilitate the installation of a grill for the air conditioning system.  A small piece of sheetrock fell from the co-worker’s hand then bounced off a window sill before falling through an empty window frame and striking plaintiff.

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Speculation cannot serve as a basis to establish a prima facie case Peluso v. Red Rose Restaurant, 2013 NY Slip Op 03650

June 25, 2013 • Posted By Omar Chaudhry • Trial Practice

 The Second Department rejected plaintiff’s speculation as to what happened when she fell down.  Plaintiff allegedly fell down when she exiting the defendant’s premises.  However, she could not recall what happened when she opened the door until she found herself on the sidewalk.  Defendants moved for summary judgment because plaintiff failed to establish proof of any defective condition that caused the plaintiff’s fall.  The Supreme Court granted the motion and the Second Department upheld the decision.

defendant’s premises.  However, she could not recall what happened when she opened the door until she found herself on the sidewalk.  Defendants moved for summary judgment because plaintiff failed to establish proof of any defective condition that caused the plaintiff’s fall.  The Supreme Court granted the motion and the Second Department upheld the decision.

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Lorraine Morabito v 11 Park Place LLC: A sophisticated motion defeated by a simple issue of fact

June 18, 2013 • Posted By Omar Chaudhry • Trial Practice

Did the defendant have enough time to lay down the mats in its building lobby during rainy weather?  In a slip and fall action wherein the plaintiff alleged that she slipped and fell on a wet floor in the lobby of defendant’s building, the plaintiff defeated defendant’s motion for summary judgment, because she was able to establish a material issue of fact as to how much time the defendant had to lay down the mats it usually lays down during rainy weather.  

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Omar Chaudhry, Esq. Joins French & Casey, LLP

June 14, 2013 • Posted By • Trial Practice

French & Casey, LLP is thrilled to welcome our newest associate, Omar Chaudhry, to the firm.  Omar is admitted to practice in the State of New York (2005), the United States Court of Appeals for the Second Circuit (2007), and the United States District Court for the Southern and Eastern Districts of New York (2008). Omar serves as an Arbitrator with the New York County Lawyers’ Association to resolve attorney-client disputes in accordance with the Joint Committee on Fee Disputes and Conciliation.  Omar also serves as Treasurer of the Board of the New York Civil Liberties Union, Nassau Chapter.  Omar is a graduate of Columbia College, Columbia University (B.A. and M.A.), and he earned his Juris Doctor from Hofstra U. School of Law (2004).

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District Of New Jersey Orders Spoliation Sanctions For Deletion Of Facebook Account

April 4, 2013 • Posted By Karen M. Mahon • Trial Practice

While the caselaw on this topic in New York is plentiful, New Jersey has produced very little caselaw regarding the pursuit of discovery related to social media.  However, on March 25, 2013, the District Court of New Jersey ordered the spoliation sanction of an adverse inference at trial for plaintiff’s deletion of his Facebook account.  The court refused to order attorneys’ fees and costs finding that, in this instance, there was no evidence that the plaintiff was motivated by fraudulent purposes or diversionary tactics and that the loss of evidence would not cause unnecessary delay.  Gatto v. United Air Lines, Inc., 10-CV-1090-ES-SCM (March 25, 2013).

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First Department Continues Its Review of Slip and Fall Notice Cases.

March 22, 2013 • Posted By • Trial Practice

slip

Recently the First Department came out with three separate decisions regarding slip and fall cases, all of which are instructive to the practioner.  The first, Evangelista v. the Church of St. Patrick,2013 Slip Op 01209 (1st Dept. 2013), affirms one lower court’s granting summary judgment to the defendant.  The plaintiff claimed she fell after she slipped on a patch of ice on the sidewalk outside the premises.  Defendant established that the maintenance supervisor had inspected the sidewalk 50 minutes before the plaintiff’s fall and saw no ice to remove and no need for salt.  The plaintiff testified but she was unable to establish that the defendant either created the condition through its negligent snow removal and ice removal before the incident or even that the ice existed for a sufficient period of time for the defendant to discover and remedy the condition.

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Further Considerations For Establishing That A Stairwell Defect Is Trivial, And A Trap For The Unwary

January 29, 2013 • Posted By Joseph A. French • Trial Practice

The First Department recently gave further guidance as to what a party should consider in considering a slip and fall on stairs.  In Cassizzi v. Fordham University, 2012 NY Slip Op 09172, Justice Gonzalez had granted summary judgment to the defendant.  Plaintiff had fallen while descending stairs in one of the university’s buildings.  Photographs of the stairs along with plaintiff’s expert’s affidavit demonstrate to the court that the defect was “trivial”.  In short, plaintiff failed to provide evidence that the “defect presented a significant hazard, notwithstanding its minimal dimension, by reason of location, adverse weather or lighting conditions, or other circumstances giving it the characteristics of a trap or snare.” (citation omitted).  Thus, defense counsel should keep the above in mind when attacking a plaintiff’s case, and use these to establish that a defect is trivial and that it did not constitute a trap or snare.

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The Court of Appeals recently held that the State is not liable for the deaths and injuries due to the tragic capsizing of a public vessel - - the Ethan Allen.

December 26, 2012 • Posted By Joseph A French & Paul Lee • Trial Practice

In 2005, 20 passengers were killed and several others were injured when the Ethan Allen capsized and sank on Lake George.  Claimants commenced the action against the State, alleging that it had been negligent in certifying an unsafe passenger capacity, resulting from the use of outdated passenger weight criteria, and in failing to require a new stability assessment after the vessel had been significantly modified.  The State raised governmental immunity defense.

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