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“Angela’s List,” and Other News from the 1st Dept, and Ct. of Appeals

Posted by Andrew J. Barovick | Apr 11, 2009 | 0 Comments

One list you do not want to be part of, if you are a New York State lawyer, is Angela's List . What is Angela's List, you may be asking?  Angela is Angela M. Mazzarelli, Presiding Justice of the Appellate Division, First Department.  And she, along with her colleagues on that rarified bench just issued a decision in the following case: In the Matter of Attorneys Who Are in Violation of Judiciary Law Section 468-a: Departmental Disciplinary Committee for the First Judicial Department, Petitioner, Attorneys in Violation of Judiciary Law Section 468-a, Respondents , NY Slip Op 02525 (1st Dept. 2009).  Let's just say that if you have not kept up with your biennial registration payments, this is a decision you might want to avoid reading.  Because here, the First Dept. has published a long list of scofflaw attorneys (last names beginning with A, through those beginning with K) who had been given an opportunity to cure their default, failed to take advantage of it, and are now suspended from the practice of law.

To continue with the cheery news, the First Dept., in an April 7, 2009 decision in a construction accident case, Kleinberg v. City of New York , wrote that the “doctrine of res ipsa loquitur may apply to this case, inasmuch as a free-falling elevator does not ordinarily occur in the absence of negligence.” 

Nice use of understatement.  Kind of akin to: “A murder does not ordinarily happen in the absence of a killer.”

While I have never been impressed with the NYCTA's safety record, I have to admit feeling a little sympathy for them upon reading the April 7, 2009 decision by the First Dept. in Grant v. NYCTA , NY Slip Op 02651 (1st Dept. 2009).  Plaintiff sued for injuries suffered when the City bus on which he was a passenger stopped suddenly, sending him flying, and causing his injuries.  In reversing the lower court's granting of the NYCTA's summary judgment motion, the Court noted that a plaintiff claiming injury from a stop in these circumstances must show that the stop “caused a jerk or lurch that was unusual and violent,” and that proof of same “must consist of more than a mere characterization of the stop in those terms by the plaintiff.”

The following proof was deemed sufficient to raise a triable issue of fact.  Plaintiff testified that: the buildings the bus passed were moving by quickly; the bus was going about 35 to 40 miles per hour before the stop; the sudden stop caused another standee to fall to his knee; and plaintiff himself was launched into the air even though he was holding an overhead grip.

The Court found that such testimony was “objective evidence” of the unusual nature of the stop, which was “of a different class than the jerks and jolts commonly experienced in city bus travel, and therefore attributable to the negligence of defendant.”    Funny, but that sounded like plaintiff's “mere characterization of the stop” to me.  If that was all the evidence put forward by plaintiff in the motion papers (and there is no way to tell from this abbreviated decision) the NYCTA got itself a raw deal. 

OK, I'm over it now.

But speaking of raw deals, The New York Court of Appeals handed one out to the plaintiff in Gorman v. Town of Huntington , NY Slip Op 02648 (2009) on April 7, 2009.   Plaintiff tripped and fell on an uneven piece of the Town's sidewalk in front of a local church.  Not four months earlier, the church's pastor had written to the department of the Town responsible for its sidewalks, notifying it that the sidewalk in front of his church needed repair.  Sounds like plaintiff has established notice of the defect here, doesn't it?

Unfortunately for the plaintiff, this  notice was deemed insufficient by the Court of Appeals.  The Town had a by-law that mandated that written notice of such a defect be provided to either the Town Clerk or the Town Superintendent of Highways.  Notice served upon any other Town entity would “invalidate” it.

Choosing formality over fairness, the Court dismissed plaintiff's complaint because the notice had not been served upon the correct Town entity.  Interestingly, the Supreme Court and the Appellate Division (2d Dept.) had sided with plaintiff, finding that the Town had “delegated its statutorily-imposed duty of keeping records pertaining to complaints of sidewalk defects from its Town Clerk and Superintendent of Highways to its Department of Engineering Services.”

The Court of Appeals reiterated that prior notice provisions are strictly construed.  The rationale behind such provisions is to place a municipality on notice of the defect, and the municipality will not be liable unless it fails to correct it.  The underlying policy behind the rule is to limit the municipality's duty of care by imposing liability for only the noticed defects, and not, as the Court so sensitively put it, for “every crack or defect within its borders.”

OK, I think I get it now.  Towns and cities need to watch their wallets.  They maybe can't afford to go around fixing all those defects that might hurt or kill people, and they will not put up with those “frivolous” actions brought by those, like the plaintiff in this case, who fall over longstanding defects in front of public houses of worship that motivate even the pastor inside to complain–to the folks who fix the Town's sidewalks.  I'm not impressed, and neither were the two dissenting justices: Ciparick and Smith.

About the Author

Andrew J. Barovick

Mr. Barovick is a graduate of Columbia College and Cardozo School of Law. He began his legal career at the Queens District Attorney’s Office, where he tried over 20 felonies to verdict, and argued an equal number of appeals before the Appellate Division, Second Department, the New York Court of Appeals and the United States Court of Appeals for the Second Circuit.

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$7.9 million dollars for infant client who suffered severe brain injuries due to post- delivery medical malpractice.

$500,000 wrongful death/medical malpractice settlement on behalf of patient brought to hospital emergency room with serious injuries who suffered complications while unmonitored and died.

$425,000 wrongful death/medical malpractice settlement during trial on behalf of senior hospital patient whose surgeon failed to timely address her worsening symptoms, resulting in her death.

$250,000 to young man whose physician failed to diagnose an impending torsion testicle, causing the loss of the affected testicle.

$200,000 to young mother whose OB/GYN failed to timely diagnose and treat her ectopic pregnancy, resulting in excruciating, long-term pain and the need for surgery to address the ectopic pregnancy once it was diagnosed.

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