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Back From the Wars, and Angry at the 1st Dept.

Posted by Andrew J. Barovick | Jun 19, 2009 | 0 Comments

OK, OK, I know it's been a while since I've checked in.  Sorry, but some of us blawgers actually have to try cases now and then.  And as any fellow trial lawyer knows, it is an all-consuming adventure.

I've been trying to relax a little since returning from the trial wars.  But then I scanned the recent 1st Dept. slip opinions, and got angry.  In  Flores v. Langsam Property Services, et al.  , NY Slip Op 04747 (1st Dept. 2009), which was decided on June 11, 2009, that Court perverted justice in a manner I have not seen for quite some time.

In this personal injury case, Ms. Flores, the plaintiff, had complained repeatedly to her landlord about hot water that was constantly dripping and streaming from her showerhead.  The complaints were ignored.  The problem was so acute that plaintiff, a grandmother, had to place towels over the showerhead to protect her grandchildren when she bathed them.  Moreover, other tenants in the building had voiced similar complaints.  Ultimately, Ms. Flores was burned by a sudden burst of scalding water from the same showerhead, after it had been turned off, prompting the law suit.

The 1st Dept., upon reviewing the lower court's denial of defendant landlord's motion for summary judgment dismissal, reversed that decision, and granted defendant's motion.  Why?  Because they found insufficient evidence that the landlord had been placed on notice of the problem.  Despite the proof submitted by plaintiff, the 1st Dept. wrote “Plaintiff's prior complaints had concerned hot water dripping from the shower.  The water that scalded plaintiff was, as described by her, a strong stream and very hot.  Notice of a dripping shower will not suffice when the defect that injured the plaintiff was unrelated and not readily apparent ” (italics are my own).

Unrelated? Right.  If you're searching for the reasoning behind this decision, don't waste your time.  There isn't any–any that could be called “sound,” anyway.  And isn't sound reasoning what we count on our appellate jurists to have and dispense?  This decision is just plain wrong on the law, lacking in common sense, and unjust to the plaintiff.  1st Dept., you get a failing grade on this one.

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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