District of New Jersey Denies Summary Judgment Despite the Liquid Spilling Four Minutes Before the Fall

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On March 10, 2016, the District of New Jersey addressed the mode of operation doctrine and issues related to constructive notice.  In Romeo v. Harrah’s Atlantic City Propco, LLC, 2016 U.S. Dist. LEXIS 31456 (D.N.J. March 10, 2016), the plaintiff fell on a liquid in a common walkway at a casino.  A surveillance video showed a patron spilling his beverage on the floor and then four minutes later, the plaintiff slipped.  The casino employees also inspect the location where the plaintiff fell every thirty to forty minutes.  The defendant moved for summary judgment, arguing that it did not have constructive notice of the dangerous condition.

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New Jersey Appellate Division Holds That a Defendant is Only Required to Produce Surveillance Evidence After the Plaintiff Has Been Deposed

On September 3, 2015, the New Jersey Appellate Division reiterated the notion that trial courts should take a balanced approach when it comes to the discoverability of surveillance evidence obtained for purposes of litigation.

surveillance-152097_1280 (2)In Mernick v. McCutchen, the Appellate Division was tasked with assessing whether surveillance videos of a plaintiff were protected from discovery due to the work product doctrine. The plaintiff was injured in a car accident, and after the plaintiff filed her lawsuit, the defendants took surveillance videos of the purportedly injured plaintiff.  In their discovery responses, the defendants acknowledged that they possessed the surveillance videos but refused to produce the videos until after the plaintiff had been deposed. As a result, the plaintiff’s counsel refused to produce his client for deposition until the videos were provided. Read the rest of this entry »


Bronx County Judge Dismisses Sleeping Fan’s Defamation Lawsuit Against ESPN and Yankees

baseball-229873_1280 (2)Everyone should remember the story of Andrew Rector, the fan who was shown sleeping on camera during the Yankee-Red Sox Sunday night game on ESPN in April 2014, and subsequently sued everyone (Major League Baseball, ESPN New York, the Yankees, Dan Shulman, and John Kruk) for defamation and intentional infliction of emotional distress.  As previously noted, Mr. Rector’s lawsuit  did not appear to be legally viable because none of the comments made by the announcers (Shulman and Kruk) were extreme and outrageous and because many of the alleged defamatory statements originated from third-parties (on various websites, blogs, etc.).

On August 20, 2015, Justice Julia I. Rodriguez in the Bronx County Supreme Court granted the defendants’ motions and dismissed Plaintiff’s complaint in its entirety.  A copy of the decision can be found here. Read the rest of this entry »


NJ Appellate Division: Charitable Immunity Unavailable When a Plaintiff is on Premises as an Employee of a Third Party

The New Jersey Appellate Division affirmed a trial court’s ruling that a community college employee who was injured in a slip-and-fall at a nonprofit rehabilitation facility where she taught classes to nurses was not a beneficiary of the clinic’s charity and could not rely on the Charitable Immunity Act for a defense.   In Kostera v. Bacharach Institute for Rehabilitation, Dkt. No. A-1991-13T4 (N.J. App. Div. Aug 6, 2015), the Appellate Division also affirmed the $4 million jury award. Read the rest of this entry »


New York Court Applies Doctrine of Estoppel Against Inconsistent Positions and C.P.L.R. Section 105(u) to Dismiss Civil Lawsuit Against a City Contractor

Pisciotti Malsch recently secured summary judgment for its client, a construction company, based upon the doctrine of estoppel against inconsistent positions and C.P.L.R. § 105(u).

Plaintiff, a passenger in a car, brought suit against the City of New York and its contractor due to a one-car accident allegedly caused by the contractor’s negligent work in a construction zone.  Through investigation, it was discovered that Plaintiff had previously brought suit against the driver of the automobile and in a Verified Complaint, the plaintiff had alleged that “the aforesaid motor vehicle collision was caused solely by the negligence of the [driver] in the ownership, management, operation, maintenance, and/or control of the motor vehicle.”  This lawsuit was settled for the full policy limits ($25,000). Read the rest of this entry »


“Joint Employment” Argument Utilized to Secure Dismissal of Personal Injury Lawsuit Pursuant to New Jersey’s Workers’ Compensation Act

In a recent case in Hudson County, New Jersey, Pisciotti Malsch successfully argued that a plaintiff’s civil lawsuit against its client was barred pursuant to New Jersey’s Workers’ Compensation Act.

The plaintiff was employed as a maintenance worker for a nonprofit organization (the Charity) that supports and provides assistance to developmentally disabled adults.  The Charity leased a building on the property owned by Pisciotti Malsch’s client (the Church).  While repairing a wheelchair ramp leading to the Charity’s offices, the plaintiff fell and suffered severe injuries (back injuries and torn rotator cuff requiring multiple surgeries).  Plaintiff sued the Church, arguing that the Church owned the ramp at issue and had a duty to properly maintain the ramp. Read the rest of this entry »


Two Recent Decisions From New York’s First Department Regarding Premises Liability

Today, two decisions were issued from the First Department pertaining to premises liability.  The first decision concerns the “sole proximate cause” defense and the second decision reiterates the notion that an owner of premises will not be insulated from liability merely because it complies with the building codes.
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NJ Appellate Division Cracks Down on the Practice of Bootstrapping Expert Opinions

Last week, primarily relying on Evidence Rules 703 and 808, the New Jersey Appellate Division struck a blow to the practice of bootstrapping, which is when a testifying expert at trial improperly presents a non-testifying expert’s opinion to the jury.

In James v. Ruiz, the New Jersey Appellate Division addressed whether lawyers are allowed to ask an expert witness at trial whether his or her findings are consistent with those of a non- testifying expert. In other words, the Appellate Division confronted the practice of utilizing expert testimony to “bootstrap” into evidence unauthenticated hearsay studies, reports, or other documentary evidence.

Judge Sabatino, writing for the Court, held that such questioning is inappropriate when the purpose is to have the jury consider an absent expert’s hearsay opinions about “complex and disputed matters.”
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Redacting Confidential Personal Information From Court Filings is Now Mandatory in New York

As of March 1, 2015, parties to litigation in New York Courts are required to redact confidential personal information (“CPI”) on any documents filed in the Supreme and County Courts.  Given the number of deposition transcripts and Bills of Particulars that I have seen submitted without redacting personal information (such as social security number, taxpayer identification number, or birth date), it appears that many practicing attorneys have not received the memo.

To paraphrase the New Age Outlaws, “Oh you didn’t know, well then you better call somebody!”

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Sleeping Yankee Fan Strikes Out With Lawsuit Against ESPN

As reported by multiple media outlets, a Yankee fan who fell asleep during the New York Yankees-Boston Red Sox game on April 13th filed a lawsuit against the Yankees; ESPN New York; MLB Advanced Media; and ESPN announcers, Dan Shulman and John Kruk.

The Complaint, which was filed by Okwara & Associates, P.C. on July 3rd in the Bronx County Supreme Court, alleges that “announcers like” Shulman and Kruk “unleashed [sic] avalanche of disparaging words against the . . . plaintiff” when ESPN’s Sunday Night Baseball broadcast showed Andrew Rector “nap[ping]” during the top of fourth inning of “the rivalry game between the Boston Red Sox and the New York Yankee [sic].”  The alleged defamatory language included:  “stupor, fatty, unintelligent, [and] stupid.” Read the rest of this entry »