New York’s new Chief Judge continues to tilt toward plaintiffs and claimants, a trend we first reported in this space yesterday.

Now this. In 2006, a conductor on a NYC subway train assaulted a subway customer. Let’s back up. The episode began when a rider complained about subway service. The conductor reacted to this complaint by calling the rider a “faggot.” The rider responded by attributing some sexual ambiguity to the conductor’s late father. So, the conductor grabbed the rider by the neck and slung him around for a bit.

The Transit Authority terminated the conductor. The case went to arbitration pursuant to the collective bargaining agreement between the Transit Authority and the union. The collective bargaining agreement provides that in cases of assault, the arbitrator shall affirm the Transit Authority’s choice of punishment (i.e., termination in this case) unless there is “credible evidence that the action by the [Transit] Authority is clearly excessive……” The arbitrator here found that termination was “clearly excessive” and gave the conductor his job back. The Transit Authority appealed.

The Court of Appeals, in a decision by Judge Lippman, has now upheld the arbitrator’s decision, and all New Yorkers are advised to keep their complaints about the subways to themselves.

http://www.courts.state.ny.us/reporter/3dseries/2010/2010_01378.htm

Fantasia Massey went to Newburgh, NY to visit her friend Michael Valerie on Sunday, March 11. The visit went well and Fantasia remained inside Mike’s apartment without once venturing outside until 9:30 p.m. on Thursday, March 14, when she felt the need to visit a local convenience store. Mike drove Fantasia to the store. He parked his car on the street in front of the store. Fantasia got out of the car and, she says, slipped and fell on ice on the sidewalk in front of the store. She fractured her ankle. She filed suit against the owner of the convenience store. http://www.courts.state.ny.us/reporter/pdfs/2010/2010_30238.pdf

The defendant moved for summary judgment, supporting its motion with an expert affidavit and data that showed that the temperature at the time of the accident was 57 degrees and that it had been as high as 73 degrees earlier that day. The expert who interpreted this arcane data opined that there could not have been any ice on the sidewalk during Fantasia’s ill-fated trip outside the apartment.

The plaintiff countered with her own affidavit, swearing that there was, indeed, ice on the sidewalk. Mike swore to the same. They produced photographs of ice on the sidewalk that they said they took two hours after the fall.

The court in New York County denied the defendant’s motion, finding a question of fact about the existence of ice.

Posted by Maju Varghese.

Jonathan Lippman became New York’s Chief Judge in January, 2009. After one year, it is now clear that he is moving the court to a more accepting and expansive point of view when rulling on personal injury claims.

Lippman has already written decisions in several cases dealing with injured workers and, in each decision, has sided with the plaintiff. In one decision, Lippman found that a prior court ruling that prohibited an injured teacher’s right to sue New York City was too restrictive and he expanded the teacher’s avenues for recovery. In another case, he ruled that the trial court had too narrowly construed a law regarding a worker’s right to seek damages from his/her employer.

In sum, Judge Lippman’s track record after his first year on the bench has been to expand plaintiffs’ rights of recovery rather than to follow the narrower rulings that came down over the last 16 years under his predecessor.

Posted by Georgia Stagias.

http://www.nytimes.com/2010/02/18/nyregion/18lippman.html?scp=1&sq=court%20of%20appeals&st=cse

Roslyn Schiffer was injured in an automobile accident. Lancer Insurance Company insured the owner and driver of the other vehicle. The policy limit was $100,000.

The Lancer policy contained a provision that Lancer would pay “All interest on the full amount of any judgment that accrues after entry of judgment….but our duty to pay interest ends when we have paid, offered to pay or deposited in court the part of the judgment that is within our Limit of Insurance.” This policy language closely tracked a NY Insurance Dept. regulation requiring that policies contain a provision that an insurer shall pay “all interest accruing after entry of judgment until the insurer has paid or tendered or deposited in court such part of such judgment as does not exceed the applicable policy limits…”

In the Schiffer personal injury case, Lancer Ins. Co. offered Schiffer its full policy limit of $100,000 before trial (and thus, obviously, before entry of judgment and the accrual of any interest). Schiffer rejected the offer and took her case to verdict. The verdict was $776,000. Judgment was entered on September 5, 2007.

Lancer sought a ruling that it owed no interest on the judgment because it had offered its full policy limit of $100,000 before the entry of judgment. A trial level court in New York has now ruled against Lancer. The court found that while Lancer had “offered” to pay its policy limit, this did not amount to “an unconditional tender of payment,” which the court found was required by the language of the Insurance Dept. regulation. Thus, the court ruled, interest began to accrue at judgment and Lancer must now pay interest on the full amount of the judgement ($776,000). Given that judgment was entered 28 months ago, the interest due on the full judgment is 21%, which comes to $163,000.

In short, Lancer offered (tendered?) its policy limit of $100,000 before trial in a good faith effort to protect its insured but now must pay not only its policy limit of $100,000 but an additional $163,000 in interest.

The Yankees don’t win everything. Security Guard 1 – Yanks 0.

In Correa v. City of NY, NY Yankees, and ESPN, the plaintiff was a security guard assigned to sit in the stands directly behind home plate. While that area was protected by a net, ESPN had created a hole or window in the net for its camera. A ball came through that hole, striking and fracturing the plaintiff’s hand.

The Yanks moved for summary judgment but their motion was denied. The court ruled that while the risk of being hit by a ball is assumed by spectators at ball games, the plaintiff here did not assume the risk that the Yankees would fail to comply with the requisite standard of care, to wit, an adequate net in the area behind home plate. The court ruled that the Yankees had not shown in their motion that they had provided adequate protection to spectators and employees seated in the stands behind home plate.

Posted by Georgia Stagias.

http://www.courts.state.ny.us/reporter/3dseries/2009/2009_07512.htm

New York’s Dram Shop Act provides that a tavern owner who unlawfully serves alcohol to an intoxicated person is liable to any third party injured by the intoxicated person. However, the intoxicated person himself/herself has no right to sue the tavern owner for his/her own injuries. In O’Gara v. Alicca, the intoxicated plaintiff, a pedestrian, was injured in an automobile accident. She sued the automobile driver, who then impleaded the tavern owner who allegedly unlawfully contributed to the plaintiff’s intoxication. The tavern owner moved to dismiss, arguing that the tavern owner could not be compelled to pay damages in a case brought by the intoxicated person.

Plaintiff Kathleen O’Gara began the evening of October 28, 2006 with a Percocet. She then went off to the Katonah Bar & Grill, where she allegedly consumed “copious amounts of alcohol.” Kath left the tavern at 5:00 a.m. and then, for reasons she can no longer recall, chose to walk across the Saw Mill River Parkway. Defendant Matthew Alacci was driving on the Parkway and his car struck the plaintiff.

The plaintiff filed suit against Alacci, claiming he was at fault for the accident. Alacci impleaded the tavern on a cause of action for contribution on the theory that the tavern wrongfully caused the plaintiff’s intoxication. In a case of first impression, an appellate court in NY ruled that the claim for contribution is valid and can go forward. The court ruled that while an intoxicated person cannot sue a tavern for damages under the Dram Shop Act, there is no reason to prohibit a defendant from seeking compensation from the tavern on the Act. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_06668.htm

A fan with good seats near third base at the Brooklyn Cyclones ballpark was injured when a player was horsing around on the field before the game and lost control of his bat, which sailed into the stands and hit the plaintiff in the nose. The plaintiff conceded that he assumed the risk of flying balls and bats during the game but took issue with being struck before the game when players were just warming up/horsing around. The court dismissed the case, ruling that the risk of such a pre-game injury is assumed by spectators equally with similar in-game risks. The negligent player, a 44th round pick in 2002, now works as a salesman for a medical supply company.

New York City’s “Sidewalk Law” of 2003 famously imposed on landowners the obligation to repair sidewalk defects and to clean up snow and ice or face the wrath of the plaintiff passers-by who populate our fair city. In recent years, the courts have refined the definition of sidewalk to exclude curbstones and tree wells. Now, an appellate court in Manhattan has further restricted the area that must be repaired and maintained by the adjacent landowner. The court ruled last week that the pedestrian ramps that are carved into the sidewalks at most intersections are not part of the sidewalk for purposes of the Sidewalk Law.

Specifically, in Ortiz v. City of New York, plaintiff, who tripped and fell in a hole at the edge of a sidewalk pedestrian ramp, sued the City of New York and the abutting property owner and managing agent. In moving for summary judgment, the City contended that it had not received prior written notice of the defect and that, in any event, it was not liable under Admin Code §7-210 (the abutting owner liability ordinance). The abutting owner and managing agent cross-moved for summary judgment, contending that a corner pedestrian ramp was not within the meaning of the term “sidewalk” as used in Admin Code §7-210.

In opposition, plaintiff submitted the affidavit of an expert, who stated that there was a height differential of 1½ to 2 inches between the base of the ramp and the street due to the absence of a protective curb, and that the City improperly paved the street next to the ramp.

The Supreme Court, New York County, denied the City’s motion, finding issues of fact as to whether the City created the defect when it repaved the street. The trial court also denied the owner and agent’s motions, holding that the pedestrian ramp was part of the sidewalk pursuant to Admin Code §7-210.

On appeal, the Appellate Division, First Department, stated that Admin Code §7-210 must be strictly construed. Therefore, if the City intended to shift liability for accidents on pedestrian ramps, the City needed to use specific and clear language in the Code to accomplish this goal. Finding no such language, the Appellate Division ruled that the abutting landowner’s liability does not extend to corner pedestrian ramps.

The Appellate Division reversed the lower court’s ruling and dismissed the complaint and cross-claims against the landowner and managing agent. The lower court’s ruling as to the City was affirmed.
http://www.courts.state.ny.us/reporter/3dseries/2009/2009_06299.htm

In Rodriguez v. Hudson View Associates (http://www.courts.state.ny.us/reporter/3dseries/2009/2009_05530.htm), the plaintiff slipped on water that had been tracked into the lobby of the building where she worked. She claimed that the owner had failed to place any mats on the floor to address this condition. The owner moved for summary judgment, claiming no notice of the condition. The motion was denied because the owner failed to offer evidence as to when the floor was last inspected or examined before the plaintiff’s accident.

Mike Monteith posted this entry.

In Butler v. City of Gloversville (http://www.courts.state.ny.us/reporter/3dseries/2009/2009_05369.htm) the plaintiff fell from a playground slide and sustained injuries. The plaintiff’s theory of recovery was that the defendants failed to use the proper ground cover, such as pea stone. The New York Court of Appeals denied the defendants’ motion for summary judgment because the plaintiff’s expert found support for his theory in the US Consumer Safety Commision’s Handbook for Public Playground Safety.

Posted by Justin Rowe.