Hospitality and recreation successes
Hospitality & Recreation
Trial Successes
Miskanic v. Roller Jam, USA[Supreme Richmond] Defense Verdict. Plaintiff was a patron at a roller rink and claimed that she was caused to trip and fall over a 1.5 inch height differential when she attempted to exit from the rink onto the adjacent carpeted area. The Trial Court granted our motion in limine with regard to the subsequent design change that eliminated this height differential, but allowed the plaintiff to prove the defendant’s contemplation of such change in the design as of the date of the accident complained of. We presented the roller rink’s owner, who testified that the only reason he was contemplating a change of design was because teenage patrons were using the ramp at the exit of the roller rink to pick up speed and then hurtle to the air as a result of the slight height differential. The Trial Court also granted our in limine motion with respect to the proposed testimony of the plaintiff’s expert that infringed upon the jury’s prerogative to decide the ultimate issues. Plaintiff sustained an ankle fracture for which she subsequently underwent several surgical procedures, including an open reduction and internal fixation and an ankle fusion. She also claimed to have developed Regional Sympathetic Dystrophy (RSD), leaving her permanently disabled. Her lowest settlement demand in this matter was $750,000.
Littos v. CEC Entertainment[Supreme Suffolk]Defense Verdict. An 18-month-old infant was placed by her mother on a coin-operated merry-go-round located in a children’s play area of our client’s family-oriented restaurant. The mother attended closely to the child as the toy ride slowly rotated. When the mother turned away momentarily, the child fell to the floor, resulting in a significant fracture of her arm. Plaintiffs claimed our client was negligent for failing to provide a restraining belt to hold children firmly in place on the ride. We presented not only a liability expert, but also the official New York State inspector, both of whom testified that the ride met all legal requirements in spite of the absence of a restraining belt. We also presented expert testimony that a belt would be even more dangerous to an infant rider by creating a potential choking hazard. The jury determined that there was no negligence on the part of our client in operating and maintaining a coin-operated ride that had been manufactured and maintained to all legal specifications.
Travlos v. Coram Country Lanes, LLC [Supreme Suffolk] Defense Verdict Plaintiff, her husband, cousin, and a friend, alleged that she slipped and fell due to the presence of an oily substance located prior to the foul line. Plaintiff’s husband testified that he had seen a bowling alley employee utilizing a machine to apply oil several lanes away while his group was bowling. Plaintiff argued that this evidence created a reasonable inference that the oily substance in her lane had been negligently dropped by the same machine. Upon such basis, the Appellate Division Second Department affirmed the denial of our summary judgment motion. However, at trial, we successfully convinced the jury to reject such inference and to render a defense verdict based also upon plaintiff’s assumption of a risk inherent in the activity of bowling.
Andriopoulos v. Kim [Supreme Queens] Defense Verdict We successfully represented the owner of a children’s gym in a case in which the eight-year-old plaintiff was seriously injured when the floor mats she was jumping on shifted, causing her to fall onto the hardwood floor. The jury agreed with our defense that there was no proof of notice to the gym owner that the safety mats shifted, leaving exposed a portion of wooden floor.
Appellate Successes
Gibbs v. New York City Housing Auth. 272 A.D.2d 370, 707 N.Y.S.2d 222 (2d Dept. 2000) Plaintiff allegedly slipped on sand on a basketball court, and commenced an action against the Housing Authority. We moved for summary judgment, contending that plaintiff had voluntarily assumed the foreseeable risk of his accident, and that assumption of risk was a complete defense to the action. The Appellate Division agreed, granting summary judgment and dismissing the complaint.
Summary Judgment & Dispositive Motions
Cassarino-Stucker v. RAB & DEE Bowling Inc. [Supreme Richmond] Plaintiff claimed that while bowling as part of a league, she slipped on an unidentified substance that she insisted was located prior to the foul line. Plaintiff alleged that prior to her fall, she saw an employee walking across the approach area, and claimed he must have tracked some greasy substance while doing so. Plaintiff suffered a ligament tear of the right thumb, necessitating a surgical repair. In granting our summary judgment, the court agreed with our argument that plaintiff’s claim was founded upon pure speculation and surmise that was insufficient to establish a prima facie case of negligence.
Agnello v. Paccione Properties [Supreme Richmond] Plaintiff slipped and fell while bowling at our client’s facilities. Videotaped surveillance footage we obtained showed that the plaintiff slipped only after he crossed the foul line, where it is customary to oil the alleys. We moved for summary judgment, arguing that the plaintiff’s self-serving testimony to the contrary could not overcome the clear evidence of the videotape. The court dismissed the plaintiff’s complaint, holding that plaintiff’s participation in the sport of bowling constituted primary assumption of the risk, and that there was no provable fault on the part of our client.
Ilyas v. Hilt-Hunt, LLC & Hilton Huntington [Supreme Queens] Plaintiff claimed that he slipped and fell at night in the parking lot of the Huntington Hilton due to inoperative lighting. We argued on behalf of the hotel operators that there was no proof of notice of the allegedly insufficient lighting conditions. We produced maintenance records for six months prior to the date of accident, which did not reveal any complaints concerning inadequate lighting conditions in the parking lot. The court, in dismissing the complaint upon our motion for summary judgment, agreed that proof of notice was insufficient and that plaintiff had also failed to establish that inadequate lighting was the proximate cause of his accident.
Villa v. Paradise Theater Productions [Supreme New York] Plaintiff was attending a rap concert at our client’s theater. After being invited into a “VIP” section of the theater, he got into an argument with a rap artist and was slashed in the face with a box-cutter by an unknown assailant who was part of that artist’s entourage. The court agreed with the position we expressed in our summary judgment motion that the security provided at the concert by our client was reasonable, and that the assault by the unknown third-party was unforeseeable. The court also agreed with our argument that the plaintiff’s expert had not established a higher standard of care for such an event, and that the theater owner was not the guarantor of the plaintiff’s safety.
Banca v. Our Savior Lutheran School [Supreme Kings] The three-year-old infant plaintiff fell out of a plastic toy wagon being pulled by another child in an after-school program. The children were being supervised by three adults. Plaintiffs sued our client, alleging negligent supervision and a defective condition on the property. We moved for summary judgment, arguing that there was no evidence that the adult supervision was inadequate and no proof that the child fell out of the wagon due to a defective condition of the premises. Plaintiffs contended, by means of expert opinion evidence, that the surface of the schoolyard was unsafe. However, the court granted our motion for summary judgment, ruling that the accident occurred as a result of sudden and spontaneous play that no amount of supervision would have prevented; and that it was pure speculation that the child fell from the wagon as a result of a defect on the surface of the playground.
