September 2017 Summing Up
In This Issue
 

Monte and Marriott to Give Estate Planning Presentation

Buffalo, NY - On Wednesday, September 13, Rebecca Monte, Esq. and Eric Marriott, Esq. gave an estate planning presentation at the Buffalo District Office of the United States Citizenship and Immigration Service (USCIS) to federal government employees. The presentation covered such topics as basics of wills, intestacy, contents of a will, powers of attorney, and healthcare proxies. We will also have a question and answer session following the presentation.

This presentation was in conjunction with LifeSpan Services, Inc. LifeSpan Services has conducted strictly educational mid-career and retirement planning seminars since 1980. Each year LifeSpan does approximately 300 seminars for federal agencies throughout the United States.

If you would like information about this seminar, you can email either Rebecca Monte or Eric Marriott.

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Second Department Affirms Order Dismissing Lawsuit Where Plaintiff Failed to Oppose Defendant's Motion for Summary Judgment

In Kisiletskiy v. Pena, 2017 N.Y. Slip Op. 06261 (2nd Dept., 2017), the plaintiff sued the defendant for injuries allegedly sustained following the occurrence of a motor vehicle accident. The defendants moved for summary judgment on the grounds that the plaintiff did not sustain a serious injury within the meaning of Insurance Law ยง5102(d) as the result of the accident.

Plaintiff did not submit any opposing papers to defendants' motion. At the time of oral argument, plaintiff requested an adjournment of the motion to allow additional time to submit opposition papers. The Court denied plaintiff's request for an adjournment and granted defendants' unopposed motion for summary judgment dismissing the complaint.

The plaintiff moved to vacate the order granting summary judgment. In support of this motion, plaintiff's counsel asserted law office failure as the excuse for failing to oppose defendants' summary judgment motion. Plaintiff's motion to vacate was denied by the trial court.

Plaintiff appealed the order denying his motion to vacate the order granting defendants' summary judgment motion. The Appellate Division, Second Department held plaintiff's assertion of law office failure did not demonstrate a reasonable excuse for his failure to respond to defendants' motion. The Court therefore affirmed the decision of the trial court, holding that plaintiff's motion to vacate was properly denied.


Defendants Failed to Establish Prima Facie Entitlement to Summary Judgment in Premises Liability Case

In Gallardo v. Gilbert, 2017 WL 3612045 (2nd Dept., 2017), the Second Department reversed the ruling of the Westchester County Supreme Court in granting defendant's summary judgment motion in plaintiff's action grounded in premises liability. This lawsuit was commenced by plaintiff for injuries allegedly sustained while she was performing cleaning services in the defendants' home. As plaintiff was cleaning the attic, she stepped off of a plywood landing and fell through the sheetrock ceiling of the garage below.

Following the completion of discovery, the defendants moved for summary judgment, arguing the condition of the ceiling was open and obvious. The Supreme Court granted the defendants' motion and the plaintiff's complaint was dismissed.

The Second Department reversed and reinstated the complaint, finding that the defendants failed to establish that the insufficient weight-bearing capacity of the sheetrock ceiling was open and obvious and not inherently dangerous as a matter of law. The Appellate Division further held that since defendants failed to make their requisite showing, it was not necessary to consider the sufficiency of plaintiff's opposing papers.


Plaintiff's Lawsuit for Injuries Sustained While Swimming in the Ocean at a State Park is Dismissed as the State Did Not Breach a Duty Owed to the Plaintiff

In Courtney v. State of New York, 2017 N.Y. Slip Op. 06250 (2nd Dept., 2017), the plaintiff alleged to have sustained injuries when he struck his head while diving into waves at Jones Beach State Park.

Following discovery, the plaintiff moved for summary judgment on the issue of liability. The State cross moved for summary judgment dismissing the plaintiff's claim on the grounds that it satisfied its duty to provide adequate supervision of the beach and that the plaintiff assumed the risks inherent in swimming in the ocean. In support of its cross-motion, the defendant submitted proof that it furnished a sufficient number of lifeguards, that those lifeguards were experienced and competent, and that they reacted to the situation in accordance with proper procedure. Defendant also argued that it had no duty to warn swimmers of threats arising from the existence of the natural, transitory conditions of the ocean.

The Court of Claims denied the plaintiff's motion and granted the defendant's cross-motion, and the plaintiff appealed. The Appellate Division, Second Department affirmed the decision of the Court of Claims, holding that the defendant had established its prima facie entitlement to summary judgment and plaintiff, in response, failed to raise a triable issue of fact. The Court furthermore held that the plaintiff, in his motion for summary judgment, did not meet his initial burden because he failed to demonstrate that the defendant breached a duty of care that was owed to him.

Prepared by Katie L. Renda, Esq. and Thomas P. Kawalec, Esq.


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