Accomplishments

April 2016

Chee v. DiPaolo:

Vincent Battista’s client, defendant-landowner, was awarded summary judgment dismissal of the complaint against it, on a premises liability action arising out of the alleged defect in the concrete sidewalk abutting the client’s property.

Attorney Battista used the plaintiff’s testimony and photographs of the incident location to successfully argue that the plaintiff knew the area well, the area was well-lit and that the defect was so minimal in size as to be trivial.

This result survived plaintiff’s appeal, and was instead affirmed by the Appellate Division, Second Department.

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Motion to Dismiss Against Out-of -Possession Landlord and Subsequent Change of Venue

In this personal injury action, Christine Capitolo, representing both the out-of-possession landlord and the tenant supermarket in possession, filed a motion to dismiss against the landlord and to change the venue from Kings County to Westchester County. The first branch of the motion was premised on the landlord’s lack of control, as supported by the lease which imparted maintenance duties to the tenant. The argument supporting the change of venue branch was part of a strategic consideration to relocate the litigation to the defendant-favoring Westchester County. The dismissal against the codefendant-landlord forced a fresh analysis of proper venue, as the Court had found previously that venue in New York County was supported by the location of landlord’s principle place of business.

The court found persuasive Attorney Capitolo’s argument that, once the action was dismissed against the out-of-possession landlord, proper venue should be the county of plaintiff’s residence, Westchester County, as supported by the correct reading of CPLR § 503(a). Simultaneously, the court found plaintiff’s reliance on CPLR § 509 to be misplaced, rendering ineffective plaintiff’s would-be choice of venue in Kings County. Ms. Capitolo’s argument was supported by Clase v. Sidoti, 20 A.D.3d 330, 799 N.Y.S.2d 194 (1st Dept. 2005), which states “where the venue is placed on the basis of the principal place of business of an improper party, a motion to change venue should be granted after the action is dismissed against the improper party.” Her argument on behalf of the client has afforded a favorable environment for subsequent litigation proceedings.

August 2015

Summary Judgement for Restaurant and Landlord in Alleged Slip-and-Fall

Ellie Konstatatos’ clients, a restaurant and an out-of-possession landlord from which the restaurant leases the premises, were awarded summary judgment dismissing all claims in a personal injury action arising out of a slip and fall on the defendants’ premises. The plaintiff claimed to have observed a wetness and oily sheen on the tiles while on the floor and alleged that employees of defendant caused such a condition.

Attorney Konstantatos argued that the defendants established a prima facie entitlement to summary judgment based on lack of constructive or actual notice. In so arguing, Ms. Konstantatos relied on evidence of the daily cleaning regimen of the restaurant, as was reflected in the extensive employee testimony on the cleaning procedure performed on the date of the incident, and the manager’s testimony that upon walk-through inspection shortly before and after the incident the floor was found to be dry. The Court found that plaintiff’s counterargument that defendant caused a substance to be on the floor was speculative, as it lacked a basis in admissible evidence.

June 2015

Amendola v. MLTK, LLC

Attorney Patricia Golden prevailed on a motion for summary judgment to dismiss all claims against her client, the owner of a supermarket. In this action, the plaintiff alleged that she was caused to fall due to the presence of “too much wax” on the supermarket floor, but did not make any other complaints or allegations regarding a defective or dangerous condition at the location of the incident other than stating that the floor was slippery and shiny. Ms. Golden successfully argued that where a plaintiff alleges only “too much wax” and neither alleges that there was negligent application of same, nor presents any expert evidence, New York courts have held that there is no cause of action. Read the full decision here.

July 2014

In an action in Supreme Court, Bronx County with the caption, DAVID JOHNSON vs. WYTHE PLACE, LLC AND RAGOO OUDHORAM , Justice Julia I. Rodriguez granted defendant’s motion for summary judgment.

Read the full decision for details.

October 2013

In an action in Supreme Court, Nassau County involving a trip and fall over a pallet of merchandise in defendant’s big box store, Justice Robert A. Bruno granted defendant’s motion for summary judgment.  The Court held that the defendant established its prima facie burden of showing that the pallet of wood upon which plaintiff claims to have fallen was readily observable by the reasonable use of one’s senses and was not inherently dangerous.  Further, the Court found plaintiff’s argument that the wooden pallet created a dangerous condition because it was left in an aisle to have been unavailing. 

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Thomas B. Hayn, representing an automobile insurance carrier, successfully opposed the petition to stay uninsured motorists arbitration arising out of an accident in New York State, arguing that Florida law governed the cancellation of a policy of insurance written in Florida to an individual claiming to reside in Florida.  Following a hearing, the court ruled that our client’s cancellation of the policy on the basis of non-payment of premiums was effective under applicable Florida law and denied the petition.

May 2013

The Appellate Division, First Department affirmed in its entirety the decision of Justice Lizbeth Gonzalez (Supreme Court, Bronx County) which granted our motion for summary judgment on an trip and fall accident.  Ellie S. Konstantatos successfully argued that the defendant established its entitlement to summary judgment based upon photographic and testimonial evidence establishing that the alleged condition, a vertical support of a bumper which ran along the base of a refrigerated display case, was open and obvious and not inherently dangerous.  Despite plaintiff’s argument that the condition was obscured from her view as she stood a few inches in front of the refrigerated display unit and her claim that she did not observe the condition, the Court held that the alleged condition was neither hidden or obscured. 

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The Appellate Division, First Department affirmed in its entirety the decision of New York Court Supreme Court Justice Briganti-Hughes which granted our motion for summary judgment on an elevator accident claim.  Thomas B. Hayn successfully argued that plaintiff was barred from recovery from our client based on the Workers’ Compensation exclusivity defense by demonstrating that an actual employer-employee relationship existed between our client and plaintiff.  The court also agreed that plaintiff’s act of jumping from the stalled elevator was an unforeseeable, superseding cause of his own accident.

January 2013

In an action in which plaintiff claimed to have slipped and fell on a liquid detergent spill in the laundry detergent aisle of the defendant’s big box store, Justice Howard H. Sherman (Supreme Court, Bronx County) granted defendant’s motion for summary judgment, finding the defendant made a prima facie demonstration that it neither created the hazardous condition, nor had actual or constructive notice of its existence.  The Court relied upon the affidavit of defendant’s manager, attesting to an inspection performed ten minutes prior to the plaintiff’s incident, in holding that the liquid detergent spill at issue was visible and apparent and that it did not exist for a sufficient period of time to be discovered and remedied prior to the incident.

November 2012

Jury Finds Defective Condition, Awards No Damages:

In this personal injury/premises liability action, plaintiff claimed to have been thrown from his bicycle after riding over a one-inch deep pothole in defendant-supermarket’s parking lot, allegedly as a result of defendant’s failure to correct a defect in the parking lot. Plaintiff suffered a fractured ankle, requiring surgical open reduction. Litigating for defendant, Bruce Torino received a jury verdict that assigned 84% fault to the plaintiff and 16% fault to the defendant. Based on inconsistencies in the plaintiff’s medical records, it was argued that plaintiff actually fell in the street due to icy conditions entirely unrelated to the condition alleged to have existed in the supermarket parking lot. During cross-examination, Attorney Torino exploited weaknesses in the expert testimony offered by plaintiff’s engineer by introducing photographic and video evidence that a mountain bike should have easily passed over the one-inch deep divot, and eliciting the expert’s concession that no bicycle had been used in his testing of the condition. Plaintiff’s motion for a new trial was summarily denied.

August 2012

In an action in Supreme Court, Westchester County, involving a trip and fall at the sidewalk curb in front of defendant’s property, Justice Bruce E. Tolbert granted our motion for summary judgment.  The Court found that the defendant wholly established that the incline or curb ramp that existed at the location where plaintiff alleged to have fallen was well within the guidelines and codes required by law.  Further, the Court noted that the mere presence of a curb in front of the defendant’s premises does not establish the existence of a defective condition simply because an injury occurred to the plaintiff at that limited location.