Plaintiff Fails to Demonstrate Diligent Efforts to Identify Defendants Prior to Expiration of Statute of Limitations
In Walker v. Hormann Flexon, LLC, 153 A.D.3d 997 (3rd Dept. 2017), the plaintiff appealed from a Supreme Court Order, which granted defendant Rytec Corporation’s motion to dismiss. The plaintiff commenced an action on August 1, 2014, three days prior to the expiration of the statute of limitations. Amongst the defendants listed on the complaint were “John Does Nos. 4 through 6.”
The plaintiff explained that these John Does were the corporate entities “who designed, manufactured, sold, distributed, assembled, installed, maintained, repaired and/or serviced the overhead door.” Ten months after filing the Summons and Complaint, the plaintiff served an amended Complaint and identified John Doe 5 as the Rytec Corporation.
Rytec moved to dismiss since the statute of limitations expired and the Supreme Court granted Rytec’s motion. The plaintiff appealed and argued that under CPLR 1024 he was entitled to “relate back” t
o the date of the original complaint, which would have been within the statute of limitations. The plaintiff argued that an inspection of the door was necessary prior to identifying Rytec. However, this inspection did not occur until May 2015 and he offered no explanation as to his lack of efforts to identify the defendants prior to the expiration of the statute. Rytec argued that the plaintiff failed to establish that diligent efforts were made to ascertain the unknown party’s identity prior to the expiration of the statute.
The Supreme Court held that the plaintiff failed to meet his burden and the Third Department affirmed. Plaintiff failed to demonstrate that diligent efforts were made to identify necessary parties prior to the expiration of the statute of limitations and failed to provide any explanation as to this failure.
Defendant Fails to Establish A Prima Facie Showing Entitling Her to Dismissal Under Negligence Theory But Succeeds on Res Ipsa Loquitur Claim
In Correa v. Matsias, 2017 WL 4159254, (2nd Dept., 2017), the defendant appealed from a Supreme Court Order which denied her motion for summary judgment dismissing the complaint. The plaintiff commenced this action after she allegedly sustained an injury when a portion of her ceiling fell on her while she was sleeping. She moved under a theory of negligence and a theory of res ipsa loquitur.
The doctrine of res ipsa loquitur is applicable when an inference of negligence can be drawn solely from the happening of the accident. The plaintiff must show: (1) the incident would not occur without someone’s negligence; (2) the injury causing instrument was in the control of the defendant; and (3) the injury was not the result of any voluntary action by the plaintiff. Here, the Court held that the doctrine of res ipsa loquitur was inapplicable because the plaintiff was residing in the apartment for more than a year prior to the incident; and therefore, the defendant would not have the requisite exclusive control.
The Court, however, found that the defendant failed to establish a prima facie case that the defendant maintained the property in a reasonably safe condition. The defendant must establish that he or she neither created the alleged defect nor had actual or constructive notice of its existence. Here, a question of fact existed because it was the plaintiff’s testimony that she had previously complained to the building superintendent of the condition relating to the ceiling and that she was afraid it might fall on her. However, the superintendent’s deposition testimony indicated that he had never received any complaints of the subject area. As such, the defendant’s motion for summary judgment under negligence was properly denied as a matter of law.
Conflicting Testimony by Doctors is Insufficient to Vacate a Jury Verdict
In Eastman v. Nash, et al., 2017 WL 4159240 (2nd Dept. 2017), at the conclusion of trial, both defendants moved to vacate a jury verdict which found that the plaintiff sustained a serious injury under the permanent consequential limitation of use and significant limitation of use categories of Insurance Law Section 5102(d). The jury awarded $150,000 for past pain and suffering and $50,000 for future pain and suffering. Only defendant Nash appealed the order denying his motion to set aside the jury verdict on the issue of damages and for judgment as a matter of law. In the alternative, defendant Nash requested that the verdict be set aside as contrary to the weight of the evidence and excessive and sought a new trial.
The action arose after the plaintiff was allegedly injured in a motor vehicle accident. At trial, the plaintiff presented a neurologist who testified that he measured the range of motion of the plaintiff’s lumbar spine and found deficits of up to 50%. The plaintiff’s neurologist also reviewed an MRI and concluded that she had no preexisting conditions and that the accident caused a disc herniation at L4-5.
In opposition, defendants presented a diagnostic radiologist who reviewed the same film and concluded that the L4-5 herniation was a result of years of degeneration. In addition, the defendants presented a neurologist who examined the plaintiff after the accident and concluded that she had decreased range of motion of the lumbar spine.
The Second Department held that defendant Nash’s motion was properly denied. The Court held that a motion under CPLR 4401 or 4404 may only be granted when the trial court determines that there is no valid line of reasoning from the evidence presented. Here, the Court held that the verdict was not contrary to the weight of the evidence. The Court further held that it was a fair interpretation of the evidence to credit the testimony of the plaintiff’s neurologist over the defendant’s diagnostic radiologist. The lower court’s decision was, therefore, affirmed.
Defendant’s Routine Cleaning of Lobby was Sufficient to Dismiss Complaint after Slip and Fall
In Kelly v. Roza 14W, 2017 N.Y. Slip Op 79735U, (2nd Dept. 2017), the plaintiff was allegedly injured when he slipped and fell on water located in the defendant’s lobby. At the time of the alleged incident, there were floor mats throughout the entry way, but none were in the area where the plaintiff fell.
The defendant moved for summary judgement dismissing the complaint. The lower Court denied the motion for which the defendant appealed.
The defendant argued that it made reasonable efforts to maintain the area where the fall occurred. The lobby had floor mats located throughout the lobby and a cleaning routine was established to maintain the area. This cleaning routine included placing wet floor signs in the lobby and having two employees assigned to walk through the lobby with a dry mop to clean and water accumulation. The defendant additionally offered proof that its employees dry mopped the area ten minutes prior to the plaintiff’s fall.
The First Department held that the defendant established a prima facie showing that reasonable efforts were made by the defendant and that it was not obligated to continuously mop up moisture tracked on the floors or cover the entire floor mat as the plaintiff argued. Furthermore, the plaintiff failed to present any proof that the defendant violated any industry practice, standard, code or regulation. The First Department reversed the lower court and dismissed the complaint.
Prepared by Rebecca R. Josefiak, Esq.