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Premises Liability Attorneys
New York City Personal Injury AttorneysIf you are injured in a New York City accident that was due to the fault of another person or entity, you need an experienced New York City personal injury lawyer to protect your rights and assert your claim.
Stuart DiMartini practices exclusively in the area of personal injury law. He has 30 years of experience protecting the rights of persons injured in accidents. His success is measured by the results he obtains for his clients.
New York City personal injury accidents can lead to serious injuries. Some of these injuries may include:
Practicing personal injury law in New York City takes skill and experience. The defendants will try to defeat your claim and prevent you from obtaining a recovery. They have skilled and seasoned lawyers working for them with knowledge of the law. So should you!
Trip and Fall
Sometimes a case can take unexpected twists and turns that can hurt your chances of success. Having a seasoned personal injury lawyer can help your chances in such a case.
For example, recently, Mr. DiMartini defeated a motion for summary judgment in a New York City trip and fall claim.
Plaintiff in this negligence action seeks damages for personal injuries sustained in a trip and fall accident on April 5, 2012. It is alleged that the subject accident occurred due to a pothole that existed on the roadway at Far Rockaway, New York.
At a time at least years prior to plaintiffs accident, certain construction was performed along the said roadway that involved excavation and restoration of an approximately eighteen inch (18″) wide trench across the road. Photographs of the site depict that the trench ran from curbside directly in line with a metal conduit carrying electric service wires down along a utility pole No. 16 into the ground, as well as communication cables/wires running down along a separate utility pole No. 16 into the ground and terminated near the Post Office located across the street. According to plaintiff’s engineer, the trench in question was improperly excavated and restored in violation of generally-accepted construction standards and the New York City Highway Rules, thereby causing the formation of said pothole and tripping hazard. During discovery, it was learned that each of the defendants deny that they performed the subject construction work. As noted above, the defendants move to dismiss the claims and cross claims against it on the ground that they did not perform work at the subject location at the time in question. Only the motion by ABC is opposed by plaintiff. The remaining motions for summary judgment are unopposed.
Upon its initial motion, plaintiff also moved to strike the answer of the municipality, ABC and BCD. However, plaintiff has since withdrawn the branch of the motion which is to strike the answer of BCD. The motion by plaintiff to strike the answer is opposed by ABC.
The undisputed record indicates that the subject accident occurred due to a pothole that existed in the roadway located at XYZ Street between RST and STU in Far Rockaway, New York. Plaintiff’s expert engineer inspected the subject location and avers that at least three (3) years prior to plaintiff’s accident, certain construction was performed along the roadway that involved the excavation and restoration of an approximate eighteen inch (18″) trench across the road. Photographs of the site depict that the trench ran from curbside directly in line with a metal conduit carrying electric service wires down along a utility pole No. 16 into the ground, as well as communication cables/wires running down along a separate utility pole No. 16 into the ground and terminated near the Post Office located across the street. According to plaintiff’s engineer, the trench in question was improperly excavated and restored in violation of generally accepted construction standards and the New York City Highway Rules, thereby causing the formation of the subject pothole and tripping hazard. During discovery, all of the defendants denied that they performed the subject construction work. In addition, the municipality produced permits for two years prior to the subject accident that were all unrelated to the subject construction involved in this matter. The municipality declined to extend its search beyond the said two (2) year time frame.
DEF produced a project superintendent with ABC for seven (7) years who testified, in substance, that ABC engaged in sanitary sewer, storm sewer and water main construction but did not engage in any work at the subject location for the three (3) to five (5) year period prior to the subject accident. In any event, according to the project superintendent the dimensions of the trench at issue was not wide enough for sanitary sewers, storm sewers or water mains; the trench was for utilities.
BCD produced a witness on its behalf. The witness testified that he was an engineer for 15 years and that he performs research for trips and fall accidents. Against BCD and permits that were secured for any road work that was performed in the roadway or sidewalk area. According to the engineer no permits were secured and no work performed by BCDor its contractor at the subject location from 2009 to 2012. BCD acknowledged that it does install conduits under roadways, that run to a utility pole. Other than ABC, BCD and DEF this witness was unaware of any other entities that would have access to the subject utility pole.
The Witness for ABC, a senior work coordinator, testified that according to the map which he produced, there were no underground electrical facilities located at the subject location; and according to the “Maximo” system, there were no jobs at the subject location. Furthermore, after viewing photographs of the utility poles at the subject location, this witness testified that he was able to determine that the wire running along the older pole into the riser and underground were not electrical or for fire alarms which would only leave communication wires.
After reviewing documents and inspecting the subject accident the witness, a construction manager with ABC, concluded that ABC does not have any underground facilities in the area where plaintiff fell.
John Doe, an engineering supervisor who has been employed by ABC for 17 years, avers that he conducted a field investigation of the subject area which revealed that ABC installed an isolated conduit extending from the BCD pole #16 to the post office across the street in January of 1976. He also avers that his record research indicates that ABC has not done any work on the roadway where the trench and enclosed conduit area since
Motions by defendants
DEF (Sequence #3)
The motion by DEF to dismiss the complaint and cross claims asserted against it is granted as unopposed, and otherwise on the merits (Sofo v City of New York, 244 AD2d 544, 545 ).
It is well settled that “liability for a dangerous or defective condition on property is generally predicated upon ownership, occupancy, control or special use of the property .'” Where none is present, a party cannot be held liable for injuries caused by the dangerous or defective Condition of the property” (Minott v City ofNew York, 230 AD2d 719,720,645 N.Y.S.2d 879, quoting Turrisi v Ponderosa, Inc., 179 AD2d 956,578 N.y’S.2d 724; see also, James v Stark, 183 AD2d 873,584 N.Y.S.2d 137; Balsam v Delma Eng’g Corp~D2d 292,532 N.Y.S.2d 105). Here, in support of its motion for summary judgment proffered the deposition DEF proffered that deposition testimony of its senior work coordinator and a principal administrative assistant which established that DEF did not perform any work at the site of the plaintiff’s alleged injury (see, Abbenante v Larry E. Tyree Co., Inc., 228 AD2d 529, 644 N.Y.S.2d 780; Hovi v City of New York, 226 AD2d 430,640 N.Y.S.2d 782). Relatedly DEF also demonstrated that it neither created the defect in, nor exercised any control or supervision over the area where plaintiff fell, nor did it make special use of the location (see, Minott v City of New York, supra; Hovi v City of New York, supra; Giordano v Seeyle, Stevenson & Knight, 216 AD2d 439,628 N.Y.S.2d 373; Libby v Waldbaum’s Inc., 213 AD2d 457, 624 N,Y.S.2d 890; Bykofsky v Waldbaum’s Supermarkets, 210 AD2d 280,619 N.Y.S.2d 760; Herzfeld v Incorporated Vil. of Cedarhurst, 171 AD2d 647, 567 N.Y.S.2d 130). Accordingly, inasmuch as DEF established its entitlement to judgment as a matter of law and the plaintiff failed to refute its showing by proffering evidence demonstrating a triable issue of fact, sum.nar judgment dismissing the complaint and all cross claims insofar as asserted again is granted (see, Zuckerman v City of New York, 49 NY2d 557,427 N.Y.S.2d 595, 404 .E.2d 718; Hovi v City of New York, supra).
Motion by ABC (Sequence #4)
The motion by ABC dismiss the complaint and cross claims insofar as asserted against it is denied.
The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case (see, Zuckerman v City of New York, 49 NY2d 557, 562; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404). Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Matter of Redemption Church of Christ v. Williams, 84 AD2d 648, 649; Greenberg v. Manlon Realty, 43 AD2d 968, 969). Here, ABC failed to make a prima facie showing that it was not negligent in performing road work at the accident site (see Alvarez v Prospect Hosp., 68 NY2d 320; see Ingles v. City of New York, 309 AD2d 835 , and plaintiff raised an issue of fact as to whether the accident was proximately caused by the work performed rather than by the road work performed in the area by other entities (see Zuckerman v of New York, 49 NY2d 557). The only evidence proffered in support of its motion is the deposition testimony of one of its employees who testified, in substance, that ABC had no underground facilities at the location since there were “no plans” for the subject location. ABC did not comment on the physical evidence presented such as photographs depicting the riser carrying communication wires/cables to the ground from the older No, 16 utility pole or the fact that_ABC provides service to the Post Office across the street from the subject accident location. Thus ABC failed to eliminate all triable issues of fact as to whether they created the roadway defect and, thus, failed to establish their prima facie entitlement to judgment as a matter of law (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853). Under these circumstances, it is not necessary to consider the sufficiency of the plaintiffs opposition papers (see Tchjevskaia v. Chase, 15 AD3d 389).
Notably, ABC concedes in its Reply that it did in fact perform work at the subject location but indicates that the work was performed 36 years prior to the subject accident. ABC, nonetheless, failed to make a prima facie showing of entitlement to judgment as a matter of law. As such, its motion for summary dismissal of all claims and cross claims against it is denied .
Municipality (Sequence #6)
The motion by the municipality is also granted as unopposed, and otherwise on the merits (see Estrada v City a/New York, 273 AD2d 194 ). A municipality that has enacted a prior written notice law is excused from liability absent proof of prior written notice or an exception thereto (see Poirier v City of Schenectady, 85 NY2d 310, 313 ; Smith v Town of Brookhaven, 45 AD3d 567 ). Pursuant to Administrative Code of the City of New York § 7-201 (c) (2), a plaintiff must plead and prove that the municipality had prior written notice of a street defect before it can be held liable for its alleged negligence in failing to maintain its streets in a reasonably safe condition (see, Woodson v City New York, 93 NY2d 936; Katz v City of New York, 87 NY2d 241; David v City of New York, 267 AD2d 419; Salone v City of New York, 238 AD2d 332). Here, plaintiff did not plead, and municipal defendant did not receive, prior written notice of the pot hole that allegedly caused the plaintiff’s accident. Thus, unless this case falls within a recognized exception to the requirement of prior written notice, no liability can be imposed on the municipal defendant (see, Sommer v Town of Hempstead, 271 AD2d 434; Caramanica v City of New Rochelle, 268 AD2d 496; Zinno v City of New York, 160 AD2d 795).
The Court of Appeals has recognized two exceptions to this rule, “namely, where the locality created the defect or hazard through an affirmative act of negligence … and where a ‘special use’ confers a special benefit upon the locality” (Amabile v City of Buffalo, 93 NY2d 471,474 [19§9 ; see Delgado v County of Suffolk, 40 AD3d 575.575-576 ). Here, the defendant established its entitlement to judgment as a matter of law by demonstrating that it did no have prior written notice of the allegedly dangerous condition that purportedly caused the plaintiffs fall (see Rodriguez v. City of Mount Vernon, 51 A.D.3d 900 ; Smith v Town of Brookhaven, 45 AD3d at 568; Jacobs v Village of Rockville Ctr., 41 AD3d 539,540 ). The municipality also established through the Big Apple Map dated 2003, that there is no indication on the that a defect existed in the roadway where plaintiff’s accident occurred. Accordingly, the motion for summary judgment is granted.
Motion by plaintiff (Sequence #7)
By letter dated February 10, 2016, plaintiff via counsel withdrew the branch of its motion which was to strike the answer of the municipal defendant. Plaintiff moves to strike for failure to maintain a copy of the permit pertaining to the subject accident site. The motion by plaintiff to strike the answer for spoliation of evidence is denied.
Under the common-law doctrine of spoliation, a party may be sanctioned where it negligently loses or intentionally destroys key evidence (see CPLR 3126; Neve v City of New York, 117 AD3d 10060 1008 ; Samaroo v Bogopa Servo Corp., 106 AD3d 713, 713-714 ; Rodman v Ardsley Radiology, PC, 103 AD3d 871, 872 ). “The nature and severity of the sanction depends upon a number of factors, including, but not limited to, the knowledge and intent of the spoliator, the existence of proof of an explanation for the loss of the evidence, and the degree of prejudice to the opposing party” (Samaroo v Bogopa Servo Corp., 106 AD3d at 714). “The party requesting sanctions for spoliation has the burden of demonstrating that a litigant intentionally or negligently disposed of critical evidence, and fatally compromised its ability to’ ” prove its claim or defense (Utica Mut. Ins. Co. v Berkoski Oil, 58 AD3d 717, 718 (2009], quoting Lawson v Aspen Ford, Inc., 15 AD3d 628, 629 ). However, ” striking a pleading is a drastic sanction to impose in the absence of willful or contumacious conduct’ ” and, thus, the courts must” consider the prejudice that resulted from the spoliation to determine whether such drastic relief is necessary as a matter of fundamental fairness’ “(Utica Mut. Ins. Co. v Berkoski Oil Co., 58 AD3d at 718, quoting Iannucci v Rose, 8 AD3d 437,438 ; see Favish v Tepler, 294 AD2d 396, 397 ). When the moving party is still able to establish or defend a case, a less severe sanction is appropriate (see De Los Santos v Polanco, 21 AD3d 397, 398 ; Iannucci v Rose, 8 AD3d at 438; Favish v Tepler, 294 AD2d at 397). Furthermore, where the plaintiff and the defendants are equally affected by the loss of the evidence in their investigation of the accident, and neither have reaped an unfair advantage in the litigation, it is improper to dismiss or strike a pleading on the basis of spoliation of evidence (see De Los Santos v Polanco, 21 AD3d at 398; Lawson v Aspen Ford, Inc., 15 AD3d at 629-630; Ifraimov v Phoenix Indus. Gas, 4 AD3d 332, 334 (2004]). Furthermore, the determination of the appropriate sanction for spoliation is within the broad discretion of the court (see Ortega v City of New York, 9 NY3d 69, 76 ; Denoyelles v Gallagher, 40 AD3d 1027 ). Here, plaintiff failed to establish that the failure to preserve the subject work permit was willful or contumacious (see Neve v City of New York, 117 AD3d at 1008; Samaroo v Bogopa Servo Corp., 106 AD3d at 714; Lawson v Aspen Ford, Inc . 15 AD3d at 630; Ifraimov v Phoenix Indus. Gas, 4 AD3d at 334; Favish v Tepler, 294 AD2d 396 (2002J; cf Dillomenico v C & S Aeromatik Supplies, 252 AD2d 41,53 ; Squitieri v City ofNew York, 248 AD2d 201 ), or that its conduct deprived her of the means of proving her claim (see Foncette v LA Express, 295 AD2d 471,472 ; Chiu Ping Chung v Caravan Coach Co., 285 AD2d 621 ; Gitlitz v Latham Process Corp., 258 AD2d 391 ). Accordingly, the motion to strike is denied.
Motion by BCD (Sequence #8)
The motion by BCG summary judgment in its favor is granted as unopposed, and otherwise on the merits. The undisputed testimony of its witness based upon personal knowledge, as well as his review of the relevant contract documents and photographs establish that BCD did not own, operate or control the area in question (see Minott v City of New York, 230 AD2d 719,720) and did not perform any work in the roadway (Hovi v City of New York, 226 AD2d 430), except at the corners of the intersection. The evidence in the record indicates that plaintiff’s accident occurred approximately mid-block and that the work was, at all times, a minimum of 150-200 feet from where plaintiff fell.
A summary judgment motion is when the defendant asks the court to dismiss the case because there is no question of fact to be decided by a jury, and the case should be decided as a matter of law.
In this particular case, the plaintiff tripped and fell on a pothole in the street as she was attempting to enter her car. The pothole was part of a paved trench that ran from a utility pole to a Post Office that was located across the street. This indicated that the pothole was a created condition for which liability may be imposed.
Plaintiff sustained a bone contusion/travecular fracture involving the subchondral talus medially at the subtalar joint from anterior to posterior of the right ankle. She underwent right ankle arthroscopy, extensive debridement of chronic scar tissue; partial synovectomy, repair of the osteochondral lesion, primary repair with capsule shrinkage and ablation technique of the Attenuated anterior talofibular ligament, and extensive debridement of chondromalacia.
Mr. DiMartini brought claims against various utilities and the municipality.
Plaintiff’s expert engineer opined that the subject trench was improperly excavated and restored, and, as such, was in violation of generally accepted construction standards and/or practices, as well as the New York City Highway Rules. This improper excavation and restoration lead to the formation of said pothole at incident location, and thereby presented unnecessary and hazardous conditions during normal, reasonable and expected use.
No one can open a New York City Street without a permit from the City.
In this case, however, the City did not locate a permit. The permit would indicate the party that opened the street.
During the discovery phase, all of the utilities denied that they created the trench, yet all agreed that only one of them could have created the trench. This created a conundrum that made it impossible for Mr. DiMartini to prove who was the responsible party. The plaintiff’s case suddenly faced a serious problem.
All of the defendants moved for summary judgment. Mr. DiMartini cross-moved seeking to strike the answers of the defendants for spoliation of evidence.
In his opposing papers, Mr. DiMartini was able to prove that based on the testimony, photographs of the site and expert opinion, the trench was dug for communication wires only.
Based on this, the communications utility sent its engineer back to the site. The engineer confirmed that they in fact dug the trench some 40 years prior.
Mr. DiMartini released the other defendants from the case and continued the claim against the communications utility.
The court decided that the communications utility’s motion for summary judgment did not make a prima facie showing of a lack of a question of fact and denied the motion. As such, Mr. DiMartini established a viable claim against the communications utility.
We know New York City personal injury law. We will guide you through every step of the process and fight to protect your rights. With our team of highly experienced investigators and expert engineers, will conduct an immediate investigation into your accident collecting critical evidence, interviewing potential witnesses, and determining all of the responsible parties.
Since 1987, Mr. DiMartini has represented people injured in accidents throughout the New York City metropolitan area. He is a seasoned New York City personal injury attorney with a long record of success winning favorable settlements and awards for his injured clients. Mr. DiMartini only practices in the areas of personal injury litigation. He knows the legal requirements necessary to establish your claim. He will fight to get you the maximum compensation your deserve for your injuries.
Personal injury law is all we do. We know how to get results!
If you or a loved one has been injured in a New York City trip and fall accident, we are here to fight for your rights. Call Mr. DiMartini directly at 1.844.299.0030. You can also contact us online. The consultation is free. There is never a fee unless we win your case!