MASIAKOS, MERCURIO & ASSOCIATES, P.C. FIRM MATTERS OF INTEREST
Our attorneys recently obtained excellent results on several cases. Below are only a handful of our successes.
EMERGENCY DOCTRINE DEFENSE UPHELD ON APPEAL
In a pedestrian knockdown case, the Plaintiff was struck by a motor vehicle driven by our client as the Plaintiff was crossing a major roadway outside of a crosswalk or intersection. The Plaintiff was standing in a westbound traffic lane when our client first saw him when suddenly he took a step back across the double yellow line and into eastbound traffic in which our client was traveling creating an emergency situation. Although our client attempted to avoid the Plaintiff, contact was made. After all discovery was completed, the firm successfully moved for summary judgment arguing that the emergency doctrine absolved the client from negligence and the case was dismissed. The Plaintiff appealed and after oral argument before the Appellate Division Second Department, the lower court’s decision dismissing the complaint was affirmed.
DISMISSAL OF LABOR LAW CLAIM
In a recent Labor Law case, the firm moved to dismiss an action in which the Plaintiff alleged under Labor Law 240 and 241(6) that he tripped on a braided steel cable at a work site that fell through a large opening in the roof causing him to sustain serious injuries. After the completion of discovery, our motion to dismiss was granted. We were able to establish that our client, a plumbing subcontractor did not use "braided steel cable" or brought it to the work location and that it was not used to complete their duties. The Plaintiff and Co-Defendants offered unsubstantiated speculation that our client caused the accident.
SUMMARY JUDGMENT IN PREMISES LIABILITY CASE AFFIRMED ON APPEAL
In a premises liability case, our client owned a two-level commercial building in the Bronx which was leased to two commercial tenants. One was a second-floor tenant and the other was a ground-floor tenant. Our client was an out-of-possession landlord and did not have keys to access the street-level staircase that led to the second-floor tenant's space. Plaintiff alleged that he was descending the staircase when he tripped and fell as a result of a defective condition. After completion of discovery, we moved for summary judgment on liability on the grounds that our client was an out-of-possession landlord, had no access to the only staircase leading to the second-floor tenant's space, and that our client had no duty to maintain or repair the staircase based upon the lease agreement with the second-floor tenant. The trial court granted summary judgment in favor of our client. Plaintiff appealed. The Appellate Division First Department affirmed the lower court's decision which granted summary judgment and ruled that we demonstrated that our client was an out-of-possession landlord that was not responsible for maintaining the stairway. It further found that the lease rider expressly stated that the second-floor tenant was required to make all repairs necessary to keep the demised premises in good condition and in compliance with all regulations. Even though our client had the right to re-enter the premises, the conditions alleged by Plaintiff were not significant structural defects such that liability may be imposed on our out-of-possession client. The Appellate Court further ruled that varying riser heights and tread and handrail violations are insufficient to impose liability on an out-of-possession landlord since they are not structural defects. The Court rejected Plaintiff's arguments that our client had exclusive control of the stairway based upon the unrebutted testimony of our clients that they did not have keys to the door leading to the stairway.
SUMMARY JUDGMENT ON PREMISES LIABILITY CASE OVERTURNED ON APPEAL
In a premises liability case, Plaintiff alleged that she fell down a staircase inside a building owned by our client. As Plaintiff descended the staircase, there was a handrail on the right side but not on the left side of the staircase. After completion of discovery, we moved for summary judgment on liability and argued that Plaintiff did not know what caused her to fall and that the staircase, which had only one handrail, was not in violation of any applicable statute or code. The trial court denied our motion. On appeal, after oral argument, the Appellate Court, Second Department reversed on the law and granted summary judgment dismissing the Complaint. The Second Department ruled that a defendant property owner moving for summary judgment can establish prima facie entitlement to judgment as a matter of law on the issue of negligent maintenance by showing that the Plaintiff cannot identify the cause of his or her accident. The Second Department considered Plaintiff's arguments that even if a Plaintiff's fall is precipitated by a misstep, where the Plaintiff testifies that he or she reached out to try and stop his or her fall, the absence of a handrail, if required by law, may raise an issue of fact as to whether the absence of the handrail was a proximate cause of his or her injury. However, the Second Department ruled that we established prima facie that the Plaintiff did not know what had caused her to fall and we further established that the building was not subject to the particular code provisions relied upon by the Plaintiff and further found that Plaintiff failed to establish that our client breached the common law duty to maintain the staircase in a reasonably safe condition by failing to install a second handrail.
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