This is a court of law, young man, not a court of justice. Oliver Wendell Holmes, Jr.

I am fascinated and amazed by the unique, strange, curious – and often bizarre – facts that often lead to litigation.  Some examples follow:  A suit for burn injuries where a tenant tried to light a burner on the top of her gas stove; proceedings involving the application of force majeure when a wedding venue was closed pursuant to a vacate order; a claim that oysters served at a restaurant were contaminated; a negligence suit by a person injured by a piece of fish bone left in her filleted flounder; a suit claiming that a leak in home heating oil tanks violated the Navigation law; a dispute over a $5,000 bar mitzvah “gift”; a “road rage” claim against an off-duty police officer; a dispute whether a bus jerked or lurched “in an unusual and violent manner”; a claim against FedEx for failure to timely ship a bow and arrow to a hunting lodge; a suit about whether water on the tile floor of a locker room was “necessarily incidental” to the use of that area; an action to determine whether a person found not guilty of murder by reason of mental disease or defect could nevertheless be held civilly liable for his actions; a claim that a plaintiff could not appear for deposition in New York because she would not be able to take care of her pet cats; a personal injury claim by a 17-year-old who was hit by a train while crouching on the tracks; and adjudication of the liability of the owner of a building that contained a psychiatric suite for a murder committed by a former patient of one of the tenants.

Rivera v. St. Nicholas 184 Holding, LLC, 2016 NY Slip Op 00120 (App. Div. 1^st Dept. January 12, 2016)

The Court disposed of the case in a single substantive paragraph:

Plaintiff alleges that he was injured when, while attempting to repair a clothesline, he fell out the window, which was not equipped with window stops. Plaintiff testified that he fell when he deliberately stood on a garbage can and leaned out of the open window, placing his entire torso through it. Thus, plaintiff’s testimony establishes that his own voluntary conduct was the proximate cause of his accident.

Kaplan v. Tai Props., L.L.C., 2017 NY Slip Op 00729 (App. Div. 1^st Dept. February 2, 2017)

The Court summarily disposed of the appeal:

Plaintiff, a tenant in a building owned and managed by defendants, sustained a burn injury to her head when she used a match to try to light a burner on the top of her gas stove because the stove’s igniter did not work. There is no dispute that plaintiff herself had bought the stove and had it installed. The lease between the parties required the landlord to repair and maintain any appliance provided by the landlord, but imposed no duty on it to repair or maintain appliances supplied by the tenant herself. Since no duty to repair the appliance is “imposed by statute, by regulation or by contract,” defendants are not liable for the injuries plaintiff suffered as a result of the defective condition of the stove[.]

To the extent plaintiff also alleged that the accident was related to a condition created by defendants in the course of a gas pipe replacement project in the building, defendants demonstrated prima facie that the project was performed by a licensed contractor, pursuant to permits, and was inspected and certified as safe when it was completed, about two years before the accident. Defendants’ property manager also testified that the project did not involve any work on plaintiff’s stove, except to assure that there was gas service to the stove and that it was safe with no leaks when the project was complete.

Plaintiff argues that a causal relationship between the pipe replacement project and the defect in her stove may be inferred, because her stove started to malfunction sporadically at some unspecified time after the project was completed. This argument is unsupported by the evidence and thus, is insufficient to raise a triable issue of fact[.]

Goldstein v. Orensanz Events LLC, 2017 NY Slip Op 00125 (App Div. 1^st Dept. January 10, 2017)

The First Department summarized the facts:

Plaintiff seeks to recover consequential damages allegedly incurred when she was forced to find a new wedding venue on short notice after the venue she initially booked was closed pursuant to a vacate order issued by the New York City Department of Buildings upon a finding that the building was structurally unstable. Defendants, the manager and the owner of the building, moved for summary judgment citing the force majeure clause in the site rental agreement, which provides that if the event must be canceled because of “an order of the Federal, State, or City government or for any reason beyond Owner’s control,” the client’s sole remedy is either another date for the event or a refund. Plaintiff argues that the issuance of the vacate order and the ensuing cancellation were within defendants’ control.

Concluding that:

While, as the motion court found, the clause as written applies to any cancellation pursuant to a government order regardless of whether the order was unforeseeable or outside defendants’ control, it must be interpreted in light of the purpose of force majeure clauses, “to limit damages … where the reasonable expectation of the parties and the performance of the contract have been frustrated by circumstances beyond the control of the parties”…Thus, the clause must be interpreted as if it included an express requirement of unforeseeability or lack of control. The vacate order’s citation to defendants’ failure to maintain the building and the engineer’s letter citing overcrowding as a possible cause for the structural failure present issues of fact whether the failure was foreseeable or within defendants’ control and therefore whether the force majeure clause applies in this case.

Harris v. Morton’s Rest. Group, Inc, 2017 NY Slip Op 00108 (App. Div. 1^st Dept., January 10, 2017)

The First Department summarily concluded that:

Defendants failed to establish prima facie either that the oysters that plaintiff Lamont Harris…ate at their restaurant were not contaminated or that any such contamination did not cause Mr. Harris’s illness[.]

The evidence of noncontamination submitted by defendants is circumstantial, and, while relevant, it is not dispositive, as defendants admit. The evidence of causation shows that Vibrio, a bacteria typically found in undercooked seafood or seawater that may cause illness, was found in Mr. Harris’s stool sample. However, contrary to defendants’ assertion, it does not show that Vibrio was not pathogenic. The laboratory analysis of the Vibrio found in the stool sample did not conclude that the Vibrio was nonpathogenic; it concluded only that the Vibrio was “[u]nable to [be] speciate[d],” although its closest match was to Grimontia hollisae, a pathogenic species.

Moreover, defendants failed to demonstrate that plaintiffs’ evidence did not render the possibility of another explanation for Mr. Harris’s illness “sufficiently remote’ or technical’ to enable the jury to reach its verdict based not upon speculation, but upon the logical inferences to be drawn from the evidence”…The presence of Vibrio in Mr. Harris’s stool is a sufficient factual basis for a finding that it is more likely than not that Mr. Harris’s illness was caused by his ingestion of oysters from defendants’ restaurant[.]

Amiano v. Greenwich Vil. Fish Co., Inc., 2016 NY Slip Op 31688(U) [Sup. Ct., N.Y. Co., Mendez, J., September 9, 2016)

The Court summarized the facts in this action for personal injuries that plaintiff sustained while dining at Fulton Restaurant:

Plaintiff asserted causes of action for negligence, and breach of implied and express warranties.  Plaintiff claims to have been injured by a piece of fish bone left in her flounder, after she had requested that the whole founder be filleted[.]

Defendants’ contentions:

Defendants argue that under the “reasonable expectations doctrine,” the Plaintiff cannot maintain an action for negligence against the Defendants because the presence of bones in fish, even after being filleted, is reasonably expected. According to the deposition testimony of Fulton’s manager Ms. Helen Gurrera…flounder was served whole unless requested to be filleted. Upon such a request the fish would be grilled whole, then filleted by being cut in half, with the vertebrae, head and tail being removed. The Plaintiff cannot show that the Defendants were negligent because all bones visible to the eyes were removed, and all pin bones cannot be expected to be removed as they are located in the flesh of the fish.

Defendants also argue that the breach of warranty claim must be dismissed because the Plaintiff must show an existence of a warranty agreement, and there is no evidence of such an agreement. As for the claim for breach of an express warranty, this must be dismissed because there was no breach of an express warranty here. Plaintiff made the decision to order the flounder filleted, and there is no guarantee given by the restaurant, on the menu or otherwise, that the fish would be completely clear from any bones…The claim for breach of an implied warranty of fitness for human consumption must also be dismissed because the fish fillet was neither bad for consumption or unwholesome. It is common sense that a fish has bones, and the testimony given by Ms. Gurrera as to fillet preparation affirms that the flounder was fit for consumption, and the Plaintiff has failed to prove otherwise.

Defendants also argue that no cause of action against Defendant Gurrera, individually, can be sustained because as an individual shareholder he is not responsible for the alleged negligence of the corporation. Defendant Gurrera was only a corporate officer and did not run or operate Fulton, therefore no vicarious liability may attach. Defendant Citarella, as the food supplier to Fulton, supplied a whole flounder that was fit for consumption. Likewise, neither Citarella or Defendant Gurrera were involved in processing, inspecting, handling or serving the flounder, therefore they cannot be held negligently liable.

Plaintiff’s response:

Plaintiff also argues that as Fulton’s seafood supplier, Citarella cannot be dismissed from the action because it is within the food distribution chain. It therefore may be liable under the strict products liability and breaches of warranty causes of action. Plaintiff further argues that Defendant Gurrera must remain in the action because he is the owner of Fulton. Testimony from Defendants’ employees provided that Gurrera controlled the restaurant’s menu, and therefore any lack of warnings regarding fish bones could be attributed to him. For these reasons Plaintiff contends that summary judgment in favor of the Defendants must be denied.

The “implied warranty” claims:

“The ‘reasonable expectation’ doctrine provides a plaintiff can recover for breach of implied warranty of fitness if it is found that the natural substance was not reasonably anticipated to be in the food, as served. In an action for common law negligence, the ‘reasonable expectation’ test requires a restaurant owner to use ordinary care to remove from the food as served, such harmful substance as the consumer would not ordinarily anticipate…A plaintiff has no right to expect a perfect piece of fish, as everyone knows that tiny bones may remain in even the best fillets of fish[.]

A fish bone is one that is reasonably anticipated to be present in fish, even if the fish is filleted…The flounder served to Plaintiff was not spoiled, and did not contain a substance not reasonably anticipated to be present thereby warranting dismissal of an action for breach of implied warranty of fitness. Therefore, the breach of implied warranty of fitness cause of action must be dismissed.

The claim for breach of and express warranty:

To establish a cause of action alleging a breach of an express warranty, there has to be evidence that such warranty was created by “affirmation of fact or promise, “description” or “sample or model…made part of the basis of the bargain.”…Defendants argue that no such warranty existed, that there is no evidence on the menu or otherwise that the fish will be completely free from any bones, and the Plaintiff fails to provide evidence to the contrary. Therefore, the cause of action for breach of an express warranty is hereby dismissed.

The negligence claim:

However, Defendants do not provide sufficient evidence eliminating all questions of fact on the negligence cause of action against Fulton, and therefore fail to make a prima facie showing entitling them to summary judgment dismissing the Complaint in its entirety. There remain issues of fact as to whether or not the flounder was filleted properly, whether or not the Plaintiff in fact choked on a pinbone or a larger bone, and whether or not the size of the bone that injured Plaintiff’s throat is a bone that could be reasonably anticipated to be present in filleted fish…The Defendants do not provide sufficient evidence in the form of testimony or an affidavit from an individual with knowledge of the fish that was filleted and served to the Plaintiff. To the extent that the Defendants argue Plaintiff did not take care in eating the flounder, this is a question of fact for the jury to decide. Therefore, summary judgment on the negligence cause of action against Fulton is denied.

Zincke v. Pacific Energy Corp., 2017 NY Slip Op 00341 (App. Div. 2d Dept. January 18, 2017)

The Second Department outlined the facts:

The appellant’s employee overfilled the plaintiff’s two above-ground home heating oil tanks, located in the plaintiff’s cellar, while making a heating oil delivery, causing oil to leak out of a nipple valve at the bottom of one of the tanks onto the cellar floor, which contained several floor drains that emptied directly into the soil beneath the premises. The plaintiff commenced this action, inter alia, to recover damages pursuant to article 12 of the Navigation Law.

The applicable law:

Article 12 of the Navigation Law, commonly known as the Oil Spill Act, was enacted to ensure swift, effective cleanup of petroleum spills that threaten the environment…Pursuant to Navigation Law § 181(1), “[a]ny person who has discharged petroleum shall be strictly liable, without regard to fault, for all cleanup and removal costs and all direct and indirect damages, no matter by whom sustained.” A “discharge” is further defined as “any intentional or unintentional action or omission resulting in the releasing, spilling, leaking, pumping, pouring, emitting, emptying or dumping of petroleum into the waters of the state or onto lands from which it might flow or drain into said waters”…The term “waters” includes “bodies of surface or groundwater”[.]

The decision of Supreme Court:

The Supreme Court correctly determined that the plaintiff made a prima facie showing of her entitlement to judgment as a matter of law by demonstrating that an employee of the appellant overfilled the plaintiff’s oil tanks and discharged oil onto the plaintiff’s premises, and that the plaintiff’s property was damaged as a result of the discharge[.]

Concluding that:

The appellant failed to raise a triable issue of fact in opposition by demonstrating that it did not spill oil “into the waters of the state or onto lands from which it might flow or drain into said waters”…Contrary to the appellant’s contention, it was not sufficient for it to merely demonstrate that the oil spill on the plaintiff’s property did not actually reach the surface or groundwater. It was required to also demonstrate that the oil spill could not have done so…It failed to demonstrate this, prima facie, or to raise a triable issue of fact in this regard.

Zeidman v. Zeidman, 2015 NY Slip Op 25291 (Dist. Ct. Na. Co., Fairgrieve, J., August 25, 2015)

The Court summarized the claim asserted:

The plaintiff, Jordan Zeidman, claims that his mother, defendant Shirley Zeidman, refused to deliver $5,000 that was given to him by his maternal grandmother, Rachel Steinfeld, for his Bar Mitzvah gift.

Made the following finds of fact:

On February 27, 1998, the defendant and her husband, also the plaintiff’s father, divorced. In their separation agreement, the divorced couple stipulated that they would contribute pro rata to plaintiff’s college fund. The defendant has not made any such contributions into the plaintiff’s college fund and, in October of 2007, the plaintiff moved from the defendant’s home because of their uneasy relationship. The plaintiff and the defendant have been estranged ever since.

On October 20, 2007, the plaintiff and his family celebrated his Bar Mitzvah at Zachary’s restaurant in Hempstead, New York. Neither the defendant nor the plaintiff’s grandmother received an invitation to the party. However, the two “crashed” the party, and were not asked to leave. The plaintiff claims that at the celebration, his grandmother told him that she was going to give him $5,000 for his religious achievement. The grandmother supposedly gave the $5,000 to the defendant, with the understanding that it would be delivered to the plaintiff. The plaintiff testified:

The plaintiff states that the defendant never delivered the $5,000 to him. The plaintiff also claims that, in the years following, his father demanded the return of the $5,000 from the defendant, but his demand proved futile.

At trial, the plaintiff submitted into evidence a document…given to him by his father, ostensibly showing that the defendant had acknowledged and received the plaintiff’s $5,000 gift. The document, dated July 25, 2006, is a bank confirmation statement of deposits that were made into the plaintiff’s college fund. The top of the document contains a handwritten statement which reads, “I owe Jordan $190.00 + $5,000 from Baba.”

On cross-examination the defendant testified to the following concerning the handwritten statement:

“Q. Right, you don’t recall writing it, but it could be your handwriting, am I correct?

“A. It could be. It could be me. I don’t see myself writing this, that’s all.”

The defendant denied receiving a $5,000 gift from her mother for the plaintiff’s benefit.

The plaintiff testified that he was familiar with his mother’s handwriting because of the amount of time they spent living together, and the number of times he had seen her make numerous other writings.

The grandmother, Rachel Steinfeld, testified that she is often referred to by her family as “Baba.”  She also testified that she neither gave a $5,000 gift directly to the plaintiff, nor did she give the defendant $5,000 to hold for plaintiff’s benefit. However, the grandmother admitted to giving $5,000 gifts, in either cash or check form, to the plaintiff’s siblings for their Bar and Bat Mitzvahs.

Concluding that:

The elements necessary to establish an inter vivos gift are: (1) donative intent to make an irrevocable transfer of ownership; (2) actual physical or constructive delivery of the property; and (3) acceptance of the gift by the donee…The third element may be presumed where, as here, the gift in question is of significant value…The plaintiff bears the burden of proving each element of the alleged $5,000 gift by “clear and convincing evidence.”

To satisfy the first element of a valid inter vivos gift, there must be “both a coupling of an absolute and unequivocal intention by the donor to pass title and possession to the donee, with an intention that passage of such title and possession will be done at once.”…The status or relationship between a donor and a donee may be indicative of donative intent…At issue in this case is whether the plaintiff’s grandmother intended to make a $5,000 gift to the plaintiff for his Bar Mitzvah, and in fact made such a gift.

The evidence clearly establishes that the plaintiff’s grandmother came to the plaintiff’s Bar Mitzvah with the intention of giving a $5,000 gift to the plaintiff.  The grandmother gave direct testimony attesting to the fact that she went to the plaintiff’s Bar Mitzvah, uninvited, with the intent to give him a gift with “all of her heart.” The plaintiff and the grandmother both stated that the grandmother had given $5,000 gifts to the plaintiff’s older siblings for their Bar and Bat Mitzvahs in the past. More importantly, the document dated July 25, 2006, allegedly containing the defendant’s handwriting on a bank confirmation statement states, “I owe Jordan $190.00 + $5,000 from Baba,” and further supports that a gift was made. The plaintiff, the defendant, and the grandmother all confirmed that the family refers to her as “Baba.”

This evidence, coupled with the fact that the plaintiff and the grandmother share a family relationship, convinces the court that the grandmother came to the Bar Mitzvah with the intention of giving the plaintiff a $5,000 gift.

The evidence also demonstrates an irrevocable transfer of ownership, in that the defendant received delivery of $5,000 as agent for the plaintiff in a fiduciary capacity.

Further, the plaintiff has established by clear and convincing evidence that the plaintiff received constructive delivery of the $5,000 gift. Delivery to a donee, with intent to invest title, is of central importance in proving a gift[.]

Delivery may be made to someone other than the donee to accomplish a gift…That third party represents the donee as agent, and there is a valid delivery, even in circumstances where the donee does not have knowledge of the gift[.]

The law of evidence makes it possible to prove a gift where an inscription or writing serves as a reference to the past…In the case at bar, the writing made by the defendant constitutes proof that the defendant received the $5,000 for which she is liable. This writing constitutes a declaration against pecuniary interest[.]

*     *    *

[T]he writing made by the defendant admitting to owing the $5,000, was properly admitted into evidence based upon the plaintiff’s familiarity with the defendant’s handwriting[.]

Here, there was valid delivery of the $5,000 gift made to the plaintiff. The defendant was acting as agent for the plaintiff when she retained the gift. Moreover, the handwriting on the plaintiff’s banking confirmation statement proves that the defendant received the $5,000 gift as fiduciary-agent for the plaintiff. Therefore, this writing constitutes a declaration against interest of defendant’s indebtedness.

In order to establish a cause of action to recover damages for conversion, a plaintiff must show legal ownership “or an immediate superior right of possession to a specific identifiable thing and must show that the defendant exercised an unauthorized dominion over the thing in question to the exclusion of the plaintiff’s rights.”[.]

An agent who exercises dominion or control over the property “of his or her principal beyond the extent of the agent’s authority, with the intent to use or dispose of it so as to alter its condition or interfere with the owner’s dominion, is guilty of conversion.”…Fundamental to an agent-principal relationship is that an agent owes a duty of loyalty to his or her principal, and is “prohibited from acting in any manner inconsistent with his agency or trust and is at all times bound to exercise the utmost good faith and loyalty in the performance of his duties.”[.]

Thus, plaintiff is entitled to recover based upon conversion because the defendant has failed to pay plaintiff the $5,000 to which he is entitled.

The plaintiff also asserts a second cause of action, for unjust enrichment. The elements necessary to establish a cause of action for unjust enrichment are: (1) the other party was enriched; (2) at that party’s expense; and (3) that it is against equity and good conscience to permit the other party to retain what is sought to be recovered[.]

In the instant case, the evidence demonstrates that the defendant would be unjustly enriched if permitted to retain the $5,000 gift.  Therefore, the plaintiff is permitted recovery on the cause of action.

Based upon the foregoing, the plaintiff is entitled to judgment against the defendant for $5,000, which the defendant held for plaintiff’s benefit and continues to hold, in violation of her fiduciary duty.  Recovery is permitted based upon conversion or unjust enrichment.

George v. Albert, 2016 NY Slip Op 05613 (App. Div. 3d Dept. July 21, 2016)

The Court summarized the facts:

Defendant was a passenger in a vehicle driven by his girlfriend, Brooke Leavitt, when plaintiff’s vehicle passed them on a highway exit ramp. Defendant testified that he instructed Leavitt to follow plaintiff into a gas station because he believed that plaintiff was driving recklessly and posed a risk to others. Defendant approached plaintiff at the gas station, and the parties briefly exchanged insults that escalated into a physical confrontation. Defendant, an off-duty state trooper, quickly pinned plaintiff to the ground and held him there until police arrived at the scene. Defendant told the responding officers that he was an off-duty police officer and plaintiff, who was admittedly “going nuts,” was handcuffed and placed in the back of a patrol car for a brief period.

The prior proceedings:

Plaintiff brought this action sounding in intentional tort and negligence, seeking damages for physical and psychological harm inflicted by defendant and punitive damages for his conduct. Defendant moved for partial summary judgment seeking dismissal of the punitive damages claim. Supreme Court found triable issues of fact as to the nature of defendant’s conduct and denied the motion.

The applicable law:

“Punitive damages may be awarded in an action to recover damages for assault”…but “are permitted only when a defendant purposefully causes, or is grossly indifferent to causing, injury and defendant’s behavior cannot be said to be merely volitional”…Defendant’s conduct, in other words, must reflect “a high degree of moral culpability,…[be] so flagrant as to transcend mere carelessness, or . . . constitute willful or wanton negligence or recklessness”[.]

The submissions on the motion for summary judgment:

In support of his motion for summary judgment, defendant submitted affidavits from himself and Leavitt claiming that defendant did not initiate the confrontation with plaintiff, but admitting that they stopped at the gas station to get plaintiff’s license plate number, and surveillance video of the incident shows that defendant approached plaintiff’s vehicle and engaged in a verbal dispute with him. Defendant also submitted the deposition testimony of plaintiff, who stated that defendant was the aggressor, threatening plaintiff, pushing him in the chest so hard that he fell to the ground, then placing him in a choke hold that cut off his ability to breathe. The surveillance video shows the altercation, but has no audio and does not establish who instigated the brawl or how much force defendant used in subduing plaintiff. Defendant acknowledged that he then identified himself as an off-duty police officer to the responding officers and told them that plaintiff had attacked him, and the surveillance video shows plaintiff being led away in handcuffs while defendant chats with his fellow officers.

Concluding that:

Viewed in the light most favorable to the nonmoving party…the foregoing proof permits the finding that defendant pursued plaintiff and angrily confronted him over his perceived deficiencies as a driver, then physically subdued plaintiff and falsely accused him of starting the confrontation to ensure that he would be detained by police. If true, this aggressive and dishonest behavior by an off-duty state trooper is precisely the type of “morally culpable” behavior that defendant and others should be deterred from engaging in…Thus, we agree with Supreme Court that questions of fact preclude the dismissal of plaintiff’s claim for punitive damages.

Lee v. Manhattan & Bronx Surface, 2016 NY Slip Op 31251(U) [Sup. Ct. N.Y. Co., Stallman, J., June 30, 2016]

The Court outlined the facts:

On June 17, 2012 plaintiff was a bus passenger on a M7 bus, who was allegedly propelled to the floor of the bus due to a sudden, unusual, and violent jerk as the bus approached the bus stop at Amsterdam Avenue and West 86th Street in Manhattan. Plaintiff claims that she fractured her right wrist, which required surgery.

Defendant George Black was the bus operator. Plaintiff’s daughter, Robyn Lee, and her daughter’s friend, Sheila Shayon, claim that they were also passengers on the bus.

The applicable law:

“To establish a prima facie case of negligence against a common carrier for injuries sustained by a passenger when the vehicle comes to a halt, the plaintiff must establish that the stop caused a jerk or lurch that was ‘unusual and violent’.  Proof that the stop was unusual or violent must consist of more than a mere characterization of the stop in those terms by the plaintiff.”

Plaintiff’s burden of proof:

The plaintiff’s proof must provide “objective evidence of the force of the stop sufficient to establish an inference that the stop was extraordinary and violent, of a different class than the jerks and jolts commonly experienced in city bus travel and, therefore, attributable to the negligence of defendant[.]”

“‘No ‘hard and fast’ rule can be formulated as to precisely what amount of jerking or jolting of a streetcar or bus will give rise to an inference of negligence and, conversely, what amount of such jerking or jolting is usual and ordinary, incidental to the operation of such vehicle…At precisely what point such violent movements lose their character as incidents reasonably to be expected during the course of travel and assume the status of actionable negligence is a question of fact to be determined in the light of the surrounding circumstances.”‘

The fact that no other standing bus passengers fell may constitute evidence for the trier of fact to conclude that the movement of the bus was not unusual or violent.

The testimony and other evidence:

Here, the testimony of plaintiff and the averments of Sheila Shayon describing the force of the stop raises issues of fact and credibility as to whether the movement of the bus was “unusual and violent,” rather than belonging to the class of “jerks and jolts commonly experienced in city bus travel.”…Plaintiff testified at her deposition, “I was holding onto the metal pole and the bus stopped violently and it threw me down the stairs face down on the floor of the bus.”…Shayon states that the movement of the bus propelled her “from [her] seat all the way into the partition in front of [her].”[.]

Concluding that:

Whether an allegedly sudden, immediate stop of a bus going “slowly” or “gradually slowing down” could have produced enough force to have propelled plaintiff and Shayon as forcefully as they claim present issues of fact and credibility for the trier of fact. Absent information about the actual speed of the bus at the moment of the alleged stop, along with an expert opinion of the force that might be generated at that speed upon immediate braking, the Court cannot determine, as a matter of law, that the alleged sudden stop/jerk was either unusual, or commonly experienced in city bus travel. The Court’s role on this motion for summary judgment is “limited to issue finding, not issue determination.”[.]

Beardslee v. FedEx, 2016 NY Slip Op 51548(U) [City Court of Ithaca, Tompkins Co., Miller, J., July 7, 2015]

The Court summarized the facts and legal dispute:

The essential facts are not in dispute, and the legal question before the Court is whether the Plaintiff may recover the cost of a hunting trip for FedEx’s failure to timely ship his bow and arrow to a hunting lodge in Colorado, as promised. Mr. Beardslee booked a six day elk hunting trip in Colorado beginning August 30, 2014. He paid Track’Em Outfitters, LLC, a guide, $3,000.00 for guide services and lodging, spent $601.00 on a Colorado elk hunting license, paid $360.00 for airfare, and spent approximately $300.00 on airport hotels. On August 25th, Plaintiff contracted with FedEx to ship his left-handed bow to the guide for $71.69. He declared a value of $1,500.00, and paid the extra charge for declared values over $100.00. He testified that he was assured that the bow had plenty of time to arrive before August 30th. The bow did not arrive by August 30th, a Saturday. Plaintiff’s wife, Mrs. Beardslee, made over 20 calls to various agents of FedEx, attempting to track down the bow. The bow’s location was tracked to a hub station in Lewisberry, PA, but an agent informed Mrs. Beardslee that nothing would be done over Labor Day weekend. Mrs. Beardslee notified Plaintiff, but he was unable to borrow, rent, purchase, or obtain another left-handed bow for the hunting trip. Instead, Plaintiff spent the hunting trip forced to merely observe other hunters for six days as they successfully downed elk, while he remained bowless. FedEx eventually returned the bow and arrow to Plaintiff’s home in New York. The Court finds that FedEx delivered less than reliable service in this instance. In short, FedEx completely missed the mark.

The FedEx limit on liability:

On August 25, 2014, Plaintiff had completed a FedEx Ground Order Form, declaring a value of $1,500.00 for the bow and arrow, and paid the shipping fee of $71.69. The front of the Order Form directs the customer to read the reverse side, which limits FedEx’s liability. The reverse side limits liability to $100.00, or a higher declared value, and strictly limits liability for “special, incidental or consequential damages,” whether or not FedEx had knowledge that such damages might be incurred.  The Court finds the Colorado elk hunting license fee, $601.00, and the Track Em Hunting outfitter/guide package fee, $3,000.00, to be instructive on the issue of general contract damages, that is, damages approximating the value of the loss of use of the left handed bow and arrow during this very special six day elk hunting trip . General damages have been defined as “those which are the natural and probable consequence of the breach.”…In contrast, special damages are “extraordinary in that they do not flow directly from the breach.”[.]

The threshold issue:

This Court must first determine whether state common law contract or tort actions are permissible when suing a common carrier for a shipment that has traveled through interstate commerce. It is true that New York’s public policy prohibits a party from contractually insulating itself from damages caused by grossly negligent conduct…However, an interstate shipping claim against a common carrier, such as Defendant, FedEx, is governed by the Carmack Amendment to the Interstate Commerce Act…”which governs the liability of common carriers for loss or damage to goods shipped through interstate commerce.”…The Carmack Amendment…is the exclusive remedy, and pre-empts state and federal common law…In other words, since the Carmack Amendment governs this transaction, state common law does not apply, and the sole claim available is for a breach of the transportation agreement. [The Carmack Amendment] expressly provides:

Shipper waiver.—Subject to the provisions of subparagraph (B), a carrier providing transportation or service subject to jurisdiction under subchapter I or III of chapter 135 may, subject to the provisions of this chapter (including with respect to a motor carrier, the requirements of section 13710(a)), establish rates for the transportation of property (other than household goods described in section 13102(10)(A)) under which the liability of the carrier for such property is limited to a value established by written or electronic declaration of the shipper or by written agreement between the carrier and shipper if that value would be reasonable under the circumstances surrounding the transportation (boldface in original).

Disposed of the threshold issue:

In short, the Carmack Amendment does allow a carrier to limit liability in the manner that Defendant, FedEx, so limited here, and a damaged party may sue for damages only upon a breach of the shipping contract, not upon a common law state action. “Claims by a shipper for damages to good[s] in interstate commerce is an area of interstate commerce law that has been fully occupied by Congress’ passage of [the Carmack Amendment] delineating what remedies are available, leaving no room for additional state or federal common law causes of action.’”…Consequently, Plaintiff does not possess a state common law cause of action for damages, as the area has been preempted and comprehensively addressed by the Carmack Amendment.

Concluding that:

FedEx breached the shipping contract. The Court finds, as a matter of substantial justice, that the loss of use of the bow and arrow for this trip is a general damage that naturally flows from the breach of the shipping contract. The cost of the Colorado elk hunting license, $601.00, and Tracking Em package, $3,000.00 is a useful guide in assessing general damages. However, because the Carmack Amendment controls, Plaintiff’s damages are limited to the declared amount of $1,500.00. As a matter of substantial justice, $1,500.00 is fair compensation for Defendant’s breach of contract, which directly resulted in Plaintiff’s complete loss of use of his left-handed bow for six days. Plaintiff is also entitled to $71.69 which was the shipping cost.

Grossman v. TCR, 2016 NY Slip Op 06114 (App. Div. 1^st Dept. September 22, 2016)

In an appeal from denial of defendant’s motion for summary judgment dismissing the complaint in a “slip and fall” case, the Court summarized the dispositive standard:

To establish a defendant’s liability in a slip and fall case, a plaintiff must show that the plaintiff’s injury was caused by a hazardous condition on the defendant’s premises of which the defendant had actual or constructive notice[.]

Summarized the facts:

Plaintiff asserts that he slipped and fell on water on the tile floor of defendant’s men’s locker room. He testified at deposition that after swimming in defendant’s pool and then showering in the poolside showers, he walked down the corridor between the pool and the men’s locker room. Dri-Dek matting covered the ceramic tile flooring from pool-side into the corridor, but as the corridor approached the locker room area the Dri-Dek matting ended, requiring him to continue on into the locker room on the glossy ceramic floor tiles. Although plaintiff looked down at the tiles to see if they were wet prior to stepping off the matting, when he stepped onto the tiles he slipped and fell. While on the ground, he saw beads of water on the tile. He did not see any “wet floor” warning signs in the area of his fall.

The location in the locker room where plaintiff fell was apparently in a central spot from which a patron could access the showers, sinks, sauna and steam room, as well as the pool access corridor; also within a few feet was a bathing suit spinner machine mounted on a wall and a nearby floor drain. The locker room also has two separate locker areas, one for daily users, the other for annual fee-paying members; the latter locker area is carpeted.

Plaintiff asserted that at times, one of the shower stalls would cause a water problem in which water flowed into the central locker room corridor and soaked the carpeting at the entrance to the so-called annual members’ locker room; staff would periodically place towels on the floor in front of the entrance to the annual members’ locker room to protect the carpet.

One of defendant’s maintenance employees, Eddie Vega, testified that two maintenance workers would be present during the day shift to clean, and that it was customary for the maintenance staff to mop the men’s locker room every 15 to 20 minutes throughout the day; he did not testify as to when the area where plaintiff fell was inspected, or mopped, prior to plaintiff’s accident that day.

Defendant’s maintenance supervisor, Kendrick Bonner, testified that defendant’s maintenance staff did not keep logs or checklists of work performed, and that they always kept “wet floor” signs in the area of the locker room at issue, so that the patrons would exercise care and so that the maintenance staff would not have to mop the area as often.

Distinguished prior cases:

Initially, defendant cannot obtain summary judgment here by relying on the cases cited by the dissent, in which this Court dismissed personal injury claims arising out of slipping on water in gyms based on the reasoning that “water was necessarily incidental to the use of the area” (Noboa-Jaquez v Town Sports Intl., LLC, 138 A.D.3d 493 [1st Dept 2016]; Dove v Manhattan Plaza Health Club, 113 A.D.3d 455 [1st Dept 2014], lv denied 24 N.Y.3d 901 [2014]). In Dove, the plaintiff “slipped and fell on water located on the tile floor around the indoor pool of defendants’ health club,” prompting this Court to observe that “the presence of such water was `necessarily incidental’ to the use of the pool”…In Noboa-Jaquez, the plaintiff slipped on the tiled floor in the area of the gym’s showers, and this Court applied the same reasoning as in Dove to hold that “[t]he mere presence of water on a tiled floor adjacent to the gym’s showers cannot impart liability, particularly since water was necessarily incidental to the use of the area”…Neither of those holdings stands for the broader proposition that any water on a tiled floor anywhere in a locker room must preclude a claim for negligence because water is “necessarily incidental” to the entire locker room’s intended use.

Concluding that:

From the evidence before us, it does not appear that plaintiff was in the shower area, and he had clearly left the pool area. Neither the presence of a drain in the floor nor the regular use of towels on parts of the floor to sop up excess water justifies concluding as a matter of law that the presence of water was “necessarily incidental” to the use of that area of the locker room so as to preclude a finding of liability. On the contrary, the need for the towels could support a finding that there was a defective condition in the shower section of the locker room.

Nor can plaintiff’s choice of the word “beads” to describe the water he observed on the floor properly be relied on to conclude as a matter of law that the condition was non-hazardous or a hazard that had only just been created.

The submitted evidence precludes determination as a matter of law regarding whether defendant had constructive notice of a hazardous wet condition. In particular, in the testimony of defendants’ witness Eddie Vega, although he asserted that the floor was mopped “maybe every 15 to 20 minutes,” he also acknowledged that there was no written schedule or written confirmation of mopping performed, and he was unable to affirmatively state when or whether the area in question had been mopped that day. Additionally, the testimony of maintenance supervisor Kendrick Bonner that the maintenance staff put out “wet floor” signs in an effort to avoid mopping as frequently, in effect acknowledged that mopping of wet floors was avoided, permitting the inference that it did not occur as often as necessary or expected. Furthermore, plaintiff’s assertion that maintenance staff used towels at the doorway to the members’ locker room to prevent that room’s carpet from getting wet provides further support for the inference that staff did not mop up water on the main locker room tile floor with sufficient frequency to keep hazardous conditions from developing. Finally, since plaintiff was swimming for 40 minutes before returning to the locker room and slipping, the water could have accumulated at that spot and remained there for long enough to justify an inference of constructive notice.

The dissent noted that:

After swimming in defendant fitness club’s swimming pool, using a pool-side shower and toweling himself off, plaintiff walked down a matted corridor to the men’s locker room. When plaintiff reached the end of the matting, he stepped from the matting onto the ceramic tile floor of the locker room, an area equipped with a floor drain. Plaintiff knew that this area had a tendency to become wet. As plaintiff stepped onto the tile floor, he slipped and fell, injuring himself. According to plaintiff’s testimony, while the tile floor did not appear wet to him before he stepped onto it, he noticed, while lying on the floor after his mishap, “beads” or a “film” of water on the tiles.

Adverted to several precedents:

The only dangerous condition to which plaintiff attributes his accident is the presence on the tile floor of the “beads” or “film” of water. This condition, on the floor of a locker room serving a swimming pool, and containing showers, sinks, a steam room, and a sauna, was necessarily incidental to the locker room’s intended use and cannot support a cause of action for negligence, as a matter of law (see Conroy v Saratoga Springs Auth., 284 N.Y. 723 [1940], affg 259 App Div 365, 368 [3d Dept 1940]; Noboa-Jaquez v Town Sports Intl., LLC, 138 A.D.3d 493, 493 [1st Dept 2016] [“(t)he mere presence of water on a tiled floor adjacent to the gym’s showers cannot impart liability, particularly since water was necessarily incidental to the use of the area”]; Dove v Manhattan Plaza Health Club, 113 A.D.3d 455 [1st Dept 2014], lv denied 24 N.Y.3d 901 [2014])[.]

Concluding that:

The majority’s theory that the presence of water on the floor where plaintiff slipped was not “necessarily incidental” to the use of that portion of the locker room is conclusively refuted by the presence of a floor drain in that very area, as well as by plaintiff’s testimony that he knew that the floor in that area was frequently wet and by the testimony of defendant’s employee that the area required mopping “every 15 to 20 minutes.” While it is true that the floor on which plaintiff slipped was not directly adjacent to the pool, and that the showers and steam room apparently were in adjoining chambers of the locker room, the presence of the drain demonstrates that the presence of water on the floor in that area was contemplated in the design of the complex as necessarily incidental to its use, as plaintiff himself understood, by his own admission. The “beads” or “film” of water that plaintiff testified that he saw on the tile floor after his mishap would have been the normal condition of the floor in this area while in use, except perhaps immediately after being mopped. Allowing plaintiff to recover for an injury resulting from his own imprudent assumption that the floor in this area of the locker room was bone-dry because he saw no large puddle of water is, in essence, to impose strict liability on defendant.

Rosen v. Schwartz, 2017 NY Slip Op 02517 (App. Div. 1^st Dept. March 30, 2017)

The Court disposed of this appeal in a brief decision:

Although defendant was found not guilty by reason of mental disease or defect in connection with the stabbing death of his mother, the complaint stated a viable wrongful death claim against him pursuant to EPTL 5-4.1, since an insane person may be liable in tort for his actions…A wrongful death claim was also stated on behalf of defendant’s brother, who committed suicide after his mother’s murder[.]

H2 Architect, P.C. v. Stevenson, 2006 NY Slip Op 30802(U) [Sup. Ct. N.Y. Co. October 30, 2006]

Defendants moved for a protective order directing plaintiff to depose defendants, Edward Stevenson and Lorin Stevenson in Las Vegas where they reside and work.

The Court summarized the facts:

Plaintiff, an architectural firm, commenced this action for moneys allegedly due for services performed to the Stevensons’ condominium unit in Manhattan, New York, pursuant to an agreement between plaintiff and the Stevensons. The Stevensons maintain that they purchased this unit in Manhattan strictly for investment purposes, and otherwise have no other connections to New York. They have hired a broker in New York to sell the unit, and do not intend to travel to take part in any sale of the unit.

The Stevensons’ contentions:

Mr. Stevenson contends that his two businesses, located in California and Nevada, require that he remain in the West Coast to conduct business deals and negotiations, and that he has no plans to travel to New York. Mrs. Stevenson maintains that she is in school in Nevada and that any commute to New York will result in her missing her classes. Further, if forced to commute to New York, no one could take care of her cats. The Stevensons propose video conferencing in lieu of their appearance in New York for depositions.

Plaintiff’s arguments:

[P]laintiff argues that the claim that the condominium unit was purchased for investment purposes is questionable in light of a letter dated June 14, 2005, in which Mr. Stevenson stated that he wanted to “develop a design scheme for the apartment that is a reflection of us-one that we feel comfortable with and will enjoy for many years to come.” Additionally, the Stevensons expressed having a large kitchen built to accommodate celebrity chefs, a wine cooler for a specific number of bottles, custom closets in their bedroom for their respective wardrobes and guest accommodations for Mrs. Stevenson’s mother to take care of her cats. Furthermore, the Stevensons met with plaintiff in New York on several occasions to discuss the design of their condominium unit, and stayed at a facility that required a minimum 30-day stay. Nor would their deposition in New York pose a financial hardship, since Mr. Stevenson recently sold his interest in Solar Integrated Technologies for over $66 million. Plaintiff also points out that the Stevensons have interposed counterclaims in this action.

Defendants’ reply:

[T]he Stevensons essentially argue that plaintiff failed to demonstrate that it would be prejudiced if directed to take their deposition in Las Vegas. Further, that the Stevensons have filed counterclaims in New York is no reason to deny the protective order.

The applicable law:

Generally, when a party to the action is to be deposed, the deposition should take place “within the county…where the action is pending” (CPLR 3110[1]). The exception to this general rule is where the party to be examined demonstrates that examination in such county would result in “hardship” to him or her…Where, as here, defendants reside outside of New York, the convenience of such parties will be considered by the Court and the Court can utilize CPLR § 3110 to adjust the venue of the deposition[.]

CPLR 3101(a) provides:

The court may at any time on its own initiative, or on motion of any party or of any person from whom discovery is sought, make a protective order denying, limiting, conditioning or regulating the use of any disclosure device. Such order shall be designed to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts.

Concluding that:

As movants for a protective order, the Stevensons bear the burden of establishing that they will suffer a “substantial hardship” if directed to appear for depositions in New York. The Court determines that the submissions and arguments posed by the parties belie the claim that the Stevensons would suffer a “substantial hardship” if directed to appear for depositions in New York[.]

*     *     *

Mr. Stevenson claims that it would be impossible for him to attend all of his business meetings in Las Vegas if forced to travel to New York. However, Mr. Stevenson could not expect to attend these same meetings if deposed in the West Coast any more than if his deposition occurred in the East Coast. In other words, it is not location of the deposition that prevents Mr. Stevenson’s attendance at his business meetings, but his presence during the deposition that causes such a result, whether on the West Coast on in New York. Thus, Mr. Stevenson’s contention in this regard is unpersuasive. Furthermore, Mr. Stevenson’s contention that he has only the slimmest connection to New York is of no moment. “Substantial hardship” is the test, and the absence of any connection to New York, though doubtful to the Court, has no bearing on the Court’s analysis. And, that Mr. Stevenson has no plans to visit New York is of no consequence. Further, Mr. Stevenson cannot seriously argue that any meetings to be held in the future cannot be scheduled around the dates of his deposition, especially when his deposition can be scheduled well in advance.

Similarly, Mrs. Stevenson fails to recognize that any days missed from her class in order to appear for a deposition in New York would occur whether such depositions were held in the West Coast or the East Coast. Mrs. Stevenson’s claim that her attendance in New York would pose a personal hardship because no one would be able to take care of her cats, who are like children to her, is incredible, to say the least.

The Stevensons also failed to demonstrate that they would suffer financial hardship if required to appear in New York.

Weimar v. City of Mount Vernon, 2013 NY Slip Op 34129(U) [Sup. Ct. West. Co. January 17, 2013]

Before the Court was an application for an Order dismissing the complaint based upon the failure to state a cause of action:

The Court summarized the facts:

This is a negligence premises liability action wherein then 17 year old plaintiff seeks to recover for personal injuries she allegedly had sustained, on August 22, 2010. At the time, plaintiff had been walking inside a Westchester County-owned park commonly known as Scout Field Park…which is located adjacent to the Bronxville Metro-North train station. Plaintiff and a companion had walked up a dirt path situated at the far end of the Field, which path leads up to the train tracks. Plaintiff then had stepped onto the tracks whereupon she had been struck by a Metro-North train. Plaintiff alleges in her complaint that the Field is owned and/or controlled by defendant City, that defendant City had been negligent in its ownership and control of the Field in failing to post warnings regarding the dangerous condition presenting, in failing to fence or cordon off the portion of the Field and the footpath adjoining the train tracks, in failing to inspect and supervise the Field, and in creating and/or maintaining a dangerous and/or trap-like condition.

The City’s contentions:

Defendant City presently is moving to dismiss this action, arguing that plaintiff has failed to plead as a condition precedent compliance with the prior written notice requirements set forth in section 265 of the City Charter, that the City did not own the Field and it had owed no duty to plaintiff, that the City did not own, control or operate the train and/or the offending train tracks which instead are all owned, controlled and operated by Metro-North, and that plaintiff’s own conduct of crouching on the train tracks had been an intervening and superseding event which had severed any causal nexus between the occurrence of the accident and any negligence on defendant City’s part. Defendant relies in support of its motion upon the MTA Police Incident Report which establishes that the Metro-North Police Department, the Eastchester Fire Department and the Bronxville Police Department all had responded to the 911 August 22, 2010, emergency call involving plaintiff, but that Mount Vernon never had dispatched any personnel to the scene. Further, defendant argues that it is entitled to dismissal because it “did not own the [Field] property in order to possess proprietary rights to build or erect a fence or barricade,” and because the property adjacent to the tracks actually is located in Bronxville and not in Mount Vernon. Moreover, defendant argues that plaintiff had not been an invitee of defendant, nor a permit holder for the Field, and that she had not been using the Field at the time of this accident’s occurrence, and thus that no special relationship existed between plaintiff and the City at the time of her accident. Lastly, according to defendant City, plaintiff had not been struck by the train because the dirt path had been unfit or unsafe for passers by but solely because, immediately prior to plaintiff’s being struck, she had crouched on the train tracks, which activity defendant argues was so fraught with danger that it evinced a wanton disregard for plaintiff’s own safety, which precludes her recovery herein.

Plaintiff’s opposition:

Plaintiff opposes the motion, arguing with supporting evidence that Scout Field is part of the Bronx River Reservation, which is owned by the County of Westchester, and leased both to Bronxville and the City of Mount Vernon. Plaintiff argues that there is no dispute that she had been hit by the Metro-North train after she and a companion had walked along the Field’s dirt path and up on to the tracks, and that it matters not that the tracks technically may have been located in Bronxville since the adjoining path which leads to the train tracks is located within leased Scout Field, which indisputably is operated, managed, maintained and supervised by Mount Vernon, and thus that the City consequently had a duty to operate and maintain the Field in a non-negligent safe manner. Moreover, contrary to defendant City’s argument, plaintiff argues that no special relationship needed to be pleaded with respect to defendant City’s operation of the Field because said municipality operates same in its quasi-private capacity and not in its governmental capacity, and thus that the City does not have immunity for this claim. Further, defendant contends that compliance with the prior written notice requirements of the City’s Charter need not have been pleaded and established because said requirement applies only to “streets,” and plaintiff is not alleging any negligence regarding a street. Finally, plaintiff argues that defendant’s lack of proximate cause argument is misplaced and premature given that issue has not been joined and no discovery conducted.

And denied the city’s motion to dismiss because:

The Court finds that plaintiff sufficiently has pleaded that the dirt path which leads from Scout Field onto the train tracks had presented a dangerous condition and that the City of Mount Vernon, which at the time had leased the Field, had been negligent in its maintenance, operation and control of said Field, and specifically in its failure to have posted warnings and/or to have constructed fencing blocking off access to the train tracks. While there obviously remain factual questions regarding this dirt path, whether it had been included in the City’s leasing of the County-owned Field and/or whether it had been controlled and/or maintained by the City, or whether the dirt path is separate and apart from the Field and had remained under the exclusive care and maintenance of the County cannot be determined as a matter of law on the record at bar. Moreover, the issue of proximate cause and whether plaintiff’s own actions herein severed the chain of causation present jury questions not properly determined on a dismissal motion predicated upon a failure to state a cause of action[.]

Supreme Court granted defendant’s motion for summary judgment dismissing the complaint:

The Appellate Division briefly summarized the facts:

The instant negligence action arises from the tragic murder of Kathryn P. Faughey…by nonparty David Tarloff while in her office in a suite leased by Tenants in a building owned by Owners.

Concluding that:

The motion court correctly dismissed the complaint. Even though the building contained a psychiatric suite, defendants had no duty to protect decedent from the violent actions of third parties, including former patients like Tarloff; such actions were not foreseeable, given the absence of prior violent criminal activity by Tarloff or other third parties in the building[.]

Even assuming that defendants had a duty to provide “minimal precautions”…, that duty was satisfied by the provision of 24/7 doorman coverage, surveillance cameras, controlled building access, and functioning locks on the doors of the office suite and decedent’s personal office…It is purely speculative that additional security measures — such as announcing visitors, installing an office intercom or buzzer, or keeping the office doors locked after hours — would have prevented Tarloff from killing decedent.

Any claims that the door man was negligent in failing to recognize Tarloff’s suspicious behavior was not a proximate cause of decedent’s death because it was still not foreseeable that Tarloff was about to engage in a murderous rampage. Tarloff’s conduct was a superseding cause severing the causal chain. Given that the attack was targeted and premeditated, it is “unlikely that any reasonable security measures would have deterred[.]

Judge:  a law student who marks his own papers.  H.L. Mencken.