Attorney Marc Howard Miner's Legal Cases

Personal injury

Larosa v. Corner Locations, II, L.P. 169 A.D.3d 512 (1st Dept.)

Feb 14, 2019

OUTCOME: Resolved for Plaintiff

The plaintiff tripped on the edge of a raised cellar door on the sidewalk in the theater district. The cellar door was in front of a souvenir store. The store moved to have the case dismissed against t ... hem arguing that the landlord was responsible for the cellar door, and they were only a tenant. They also argued that the edge of the cellar door was raised only one-half inch, and such a condition was trivial in nature. The court denied the tenant's motion for summary judgment because there were issues of fact as to whether it made special use of the cellar door in the sidewalk for its business and failed to maintain it in good repair. Although the owner of the premises, had a non-delegable duty to maintain and repair the sidewalk abutting the premises (Administrative Code of the City of New York § 7-210), the property owner and tenant both may be held liable as joint tortfeasors for failure to fulfill their respective maintenance obligations. Furthermore, under the facts and circumstances of this case, the court found that questions exist as to whether the alleged defect was trivial as a matter of law. Conflicting evidence as to the height differential between the level of the sidewalk and the cellar door frame, plaintiff's testimony that there was heavy pedestrian traffic blocking her view of the sidewalk, and the photographs showing a sharp edge on the door frame, prevent a finding that the condition did not constitute a tripping hazard.

Slip and fall accident

Casciano v Town/Village of Harrison, 160 A.D.3d 801 (2d Dept)

Apr 18, 2018

OUTCOME: Resolved for Plainitff

Zalman Schnurman & Miner, P.C., New York, NY (Marc H. Miner of counsel), for respondent. Opinion DECISION & ORDER In an action to recover damages for personal injuries, the defendant Town/Villag ... e of Harrison appeals from an order of the Supreme Court, Westchester County (Joan B. Lefkowitz, J.), dated September 6, 2016, which denied its motion for summary judgment dismissing the complaint insofar as asserted against it. ORDERED that the order is affirmed, with costs. The plaintiff alleges that he was injured when he slipped and fell on ice on a roadway in the vicinity of his residence in the Town/Village of Harrison (hereinafter the Town). He commenced this action against the Town and another defendant, alleging, inter alia, that the Town affirmatively created, through its negligence in constructing and paving the road, a condition which allowed water to accumulate and freeze on the roadway, and that the condition caused his fall. The Town moved for summary judgment dismissing the complaint insofar as asserted against it, contending, among other things, that it did not receive prior written notice of the alleged defective condition. The Supreme Court denied the motion, and the Town appeals. In support of its motion, the Town was required to demonstrate that it did not receive prior written notice of the alleged defective condition, and that it did not create that condition through an affirmative act of negligence that permitted water [*802] to accumulate and freeze on the roadway (see generally Morreale v Town of Smithtown, 153 AD3d 917, 918, 61 N.Y.S.3d 269; DeSalvio v Suffolk County Water Auth., 127 AD3d 804, 805, 7 N.Y.S.3d 331). The Town failed to establish, prima facie, that it did not [****2] create the alleged defective condition through an affirmative act of negligence. Contrary to the Town's contention, the evidence submitted in support of its motion failed to demonstrate, prima facie, that it did not negligently construct or pave the road in a manner that permitted water to accumulate and freeze on the roadway, or that it subsequently successfully repaired the alleged defective condition prior to the plaintiff's accident (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324, 501 N.E.2d 572, 508 N.Y.S.2d 923; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853, 476 N.E.2d 642, 487 N.Y.S.2d 316; Zuckerman v City of New York, 49 NY2d 557, 562, 404 N.E.2d 718, 427 N.Y.S.2d 595). Since the Town failed to establish its prima facie entitlement to judgment as a matter of law, the motion was properly denied without regard to [***3] the sufficiency of the plaintiff's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d at 853).

Slip and fall accident

Suarez v JPMorgan Chase Bank, 128 A.D.3d 500 (1st Dept).

May 14, 2015

OUTCOME: Resolved for Plainitff

Counsel: Zalman Schnurman & Miner PC, New York (Marc H. Miner of counsel), for respondents. Opinion Order, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered February 27, 2014, which, ... to the extent appealed from as limited by the briefs, upon renewal, denied defendant McGuire's Service Corp.'s (McGuire's) motion for summary judgment and reinstated the complaint as against it, and otherwise adhered to the prior order, same court and Justice, entered July 15, 2013, denying defendant JPMorgan Chase Bank's (JPMC) motion for summary judgment seeking dismissal of the complaint as against it and judgment on its cross claims for indemnification against McGuire's, unanimously affirmed, without costs. Appeal from the July 15, 2013 order, unanimously dismissed, without costs, as academic. In this action for personal injuries allegedly sustained by plaintiff Hilton O. Suarez when he slipped and fell on ice in the parking lot of JPMC's bank branch located on East Tremont Avenue in the Bronx, there are questions of fact precluding an award of summary judgment to defendant McGuire's, the snow removal contractor. Specifically, there is an issue of fact as to whether McGuire's entirely displaced JPMC's obligation to maintain the premises safely (see Espinal v Melville Snow Contrs., 98 NY2d 136, 140, 773 NE2d 485, 746 NYS2d 120 [2002]). Although the snow removal contract uses broad language suggesting that McGuire's "entirely absorb[ed]" JPMC's duty, there is evidence in the record that JPMC retained control over the snow removal services by directing McGuire to stop using sand on the icy parking lot and to remove piles of snow from the premises (Espinal, 98 NY2d at 140-141). We have considered the parties' remaining arguments and find them unavailing. Concur—Friedman, J.P., Saxe, Richter and Gische, JJ.

Slip and fall accident

Indelicato v Parkway N. Assoc., L.P. 98 A.D.3d 946 (2d Dept.)

Sep 12, 2012

OUTCOME: Resolved for Plainitff

Zalman Schnurman & Miner, P.C., New York, N.Y. (Marc H. Miner of counsel), for respondent. Opinion In an action to recover damages for personal injuries, the defendants appeal from an order of the ... Supreme Court, Queens County (Markey, J.), dated March 7, 2012, which denied their motion for summary judgment dismissing the complaint. Ordered that the order is affirmed, with costs. The plaintiff allegedly sustained personal injuries when she tripped and fell over a piece of metal protruding from the pavement outside of a building as she walked from the building to [*947] its parking lot. The plaintiff commenced this action against the defendants, Parkway North Associates, L.P., and We're Associates, Inc., which are the owner and managing agent of the building, respectively. The defendants moved for summary judgment dismissing the complaint, contending, inter alia, that they did not create the alleged hazardous condition or have actual or constructive notice of it. The Supreme Court denied the defendants' motion. The defendants appeal and we affirm. In moving for summary judgment dismissing the complaint, the defendants had the initial burden of establishing "that [they] neither created nor had actual or constructive notice of the allegedly defective condition that caused the accident" (Kielty v AJS Constr. of L.I., Inc., 83 AD3d 1004, 1005, 922 NYS2d 467 [2011]; see Sloane v Costco Wholesale Corp., 49 AD3d 522, 523, 855 NYS2d 155 [2008]; Scoppettone v ADJ Holding Corp., 41 AD3d 693, 694, 839 NYS2d 116 [2007]). The defendants failed to satisfy this burden, since they did not proffer any evidence demonstrating [**586] when the walkways and stairways leading from the building to the parking lot were last inspected prior to the plaintiff's accident, and thus failed to eliminate all triable issues of fact (see Tsekhanovskaya v Starrett City, Inc., 90 AD3d 909, 910, 935 NYS2d 128 [2011]; Bruinsma v Simon Prop. Group, Inc., 74 AD3d 859, 902 NYS2d 649 [2010]; Pryzywalny v New York City Tr. Auth., 69 AD3d 598, 599, 892 NYS2d 181[2010]). Since the defendants did not sustain their prima facie burden, it is not necessary to consider the sufficiency of the plaintiff's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853, 476 NE2d 642, 487 NYS2d 316 [1985]). The defendants' remaining contentions are either without merit or improperly raised for the first time on appeal. Accordingly, the Supreme Court properly denied the defendants' motion for summary judgment dismissing the complaint. Dillon, J.P., Leventhal, Austin and Roman, JJ., concur.

Car accident

Lavy v Zaman, 95 A.D.3d 585 (1st Dept.)

May 10, 2012

OUTCOME: Resolved for Plainitff

Counsel: Zalman Schnurman & Miner P.C., New York (Marc H. Miner of counsel), for respondent. Opinion Order, Supreme Court, Bronx County (Mary Ann Brigantti-Hughes, J.), entered on or about Octobe ... r 19, 2011, which, inter alia, denied Mohammadulla Zaman's (defendant) motion for summary judgment dismissing the complaint alleging a "fracture" under Insurance Law § 5102 (d), unanimously affirmed, without costs. Plaintiff allegedly sustained a nasal fracture when a cab in which she was a passenger rear-ended another vehicle, causing her face to hit the partition between the front and rear seats of the cab. Defendant failed to meet his prima facie burden of establishing that plaintiff did not sustain a nasal fracture as a result of the accident. In any event defendant's expert acknowledged that his review of the emergency room records shows that the hospital had clinically diagnosed plaintiff with a nasal fracture, thereby raising issues of fact (see Suazo v Brown, 88 AD3d 602, 931 NYS2d 67 [2011]; Elias v Mahlah, 58 AD3d 434, 870 NYS2d 318 [2009]). Concur—Friedman, J.P., Sweeny, DeGrasse, Abdus-Salaam and Román, JJ.

Personal injury

Lenda v Breeze Concrete Corp., 73 A.D.3d 987 (2d Dept.)

May 18, 2010

OUTCOME: Resolved for Plainitff

Counsel: Zalman & Schnurman, New York, N.Y. (Marc H. Miner of counsel), for respondent. Procedural Posture Defendant owner appealed an order by the Suffolk County Supreme Court (New York) that, int ... er alia, denied his cross-motion for summary judgment in plaintiff construction manager's personal injury action based on violations of Labor Law §§ 240(1) and 241(6). Overview The owner hired a general contractor to construct a single-family residence on each of his two properties and did not direct or control the work. The first residence was to be used by the owner's family as a vacation property. The second residence was to be used by a caretaker as part of his compensation for maintaining the owner's various properties. During the construction of the second residence, the manager was injured when he fell from a ladder at the construction site. The appellate court found, inter alia, that the owner failed to establish, prima facie, that his use of the second residence qualified for the protection afforded by the homeowners' exemption in §§ 240(1) and 241(6). The owner's use of the property was, thus, commercial. Accordingly, the trial court properly denied his cross-motion for summary judgment. Outcome The order was affirmed.

Car accident

Rivo-Liss v. City of New York, 723 N.Y.S.2d 513 (2d Dept.)

Apr 23, 2001

OUTCOME: Resolved for Plainitff

Counsel: Zalman & Schnurman, New York, N.Y. (Marc H. Miner of counsel), for appellants. Procedural Posture In an action to recover damages for personal injuries, plaintiffs appealed an order of the ... Supreme Court, Kings County (New York), which granted defendant corporation's motion for summary judgment dismissing the complaint against it and all cross claims, and granted the cross motion of defendants, city and department of transportation, for summary judgment dismissing the complaint against them and all cross claims. Overview A plaintiff allegedly was injured when her vehicle struck a concrete base that had been placed by defendant city in the middle of a roadway. The base normally housed a pedestrian traffic signal, but at the time of the accident, the pole and the signal were both missing and only the concrete base remained. The trial court erred in granting the cross motion of defendants, city and department of transportation, for summary judgment upon a finding that there was no actual or constructive notice that the signal and pole were missing. Evidence submitted by the plaintiffs in opposition to the cross motion established that the pole in question had been hit by vehicular traffic five times in the six-month period preceding the accident, thus raising a triable issue as to whether or not defendants, city and department of transportation, had notice of a recurring dangerous condition. Outcome Appeal from order that granted motion and cross motion for summary judgment dismissing all cross claims asserted against defendants was dismissed. Order was modified by deleting the provision thereof granting the cross motion to dismiss the complaint insofar as asserted against defendants, city department of transportation, and substituting therefor a provision denying that branch of the cross motion. As so modified the order was affirmed.

Slip and fall accident

Suntken v. 226 West 75th St., Inc., 258 A.D.2d 314 (1st Dept.)

Feb 11, 1999

OUTCOME: Resolved for Plainitff

Counsel: For Plaintiffs-Appellants: Marc H. Miner Procedural Posture Plaintiff sought review of a decision from the Supreme Court, New York County (New York), dismissing on summary judgment plaint ... iff's personal injury action based on plaintiff's slip-and-fall on defendants' snowy sidewalk. Overview Plaintiff challenged the trial court's grant of summary judgment to defendants, a commercial property owner and its commercial tenant, in plaintiff's personal injury suit. Plaintiff fell on a snowy sidewalk outside defendant tenant's store after the tenant had previously shoveled a path through the snow. On appeal, the court held that defendants' lease agreement placed responsibility for snow removal solely upon the tenant. Because defendant property owner had no control over the premises, summary judgment for the property owner was proper. However, although the tenant would not normally be responsible for falls caused by snow, once the tenant had shoveled a 3-foot path through the snow on its sidewalk, the tenant bore responsibility for any hazards the shoveling may have created. The court reversed the trial court's grant of summary judgment to the tenant and remanded for trial. Outcome The court affirmed the trial court's grant of summary judgment to defendant property owner because the owner had no control over a sidewalk outside a store leased to defendant tenant. However, the court reversed summary judgment as to the tenant, holding there were triable issues of fact as to whether the tenant's shoveling a path through snow caused plaintiff to fall on tenant's sidewalk.

Litigation

Soo Bok Lee v. Eighteen Venture Assocs., 249 A.D.2d 82 (1st Dept.)

Apr 14, 1998

OUTCOME: Resolved for Plainitff

Counsel: [***1] For Plaintiff-Respondent: Marc Miner. Opinion Judgment, Supreme Court, New York County (John Buckley, J.), entered March 19, 1997, upon a jury verdict, which, to the extent appea ... led from as limited by defendants-appellants' brief, awarded plaintiff-respondent the principal amount of $ 169,416.07, unanimously affirmed, with costs. Viewing the evidence, as is appropriate at this juncture, in the light most favorable to plaintiff-respondent who prevailed at the trial of this matter (see, O'Neil v Port Auth., 111 AD2d 375, 376), we find that a prima facie case was made out to impose liability upon defendant landlords for fire damage to commercial premises leased by plaintiff from them. Plaintiff's evidence was sufficient to support the inference that defendants in their capacity as landlords of the subject premises, although out of possession, retained a sufficient degree of control over the premises to render them responsible for failing to remedy hazardous and negligent conditions thereon of which they had knowledge. There was, additionally, proof before the jury to support its conclusion that landlord defendants had at least constructive knowledge of the hazardous condition found to have caused the fire that damaged plaintiff's commercial leasehold, and proof that although defendants had the opportunity to correct the condition, they did not do so (see, Negri v Stop & Shop, 65 NY2d 625, 626). Our review of the record discloses no ground upon which these inferences might be disturbed as inconsistent with the proper weight of the evidence (see, Cohen v Hallmark Cards, 45 NY2d 493, 498). Finally, the trial court's adaptation of PJI 2:72 was adequate to apprise the jury respecting the principles of intervening and superseding causation and their possible relevance to the facts of the instant case, and, accordingly, specific instructions, or the inclusion on the verdict sheet of a specific question regarding arson as a superseding cause, were not necessary. We note, moreover, that, contrary to defendants' contention, arson would not, under the facts of this case in which defendants were found to have been aware of the presence [***3] of flammable liquids in the basement of their building, necessarily have been a superseding cause of plaintiff's harm and, indeed, it would have been error for the trial court to charge the jury to that effect (see, Cohen v Hallmark Cards, supra, at 499). We have reviewed defendants' remaining contentions and find them to be without merit. Concur--Lerner, P. J., Sullivan, Milonas, Ellerin and Andrias, JJ.

Contracts and agreements

A to Z Applique Die Cutting v. 319 McKibbin St. Corp., 232 A.D.2d 512 (1st Dept.)

Oct 21, 1996

OUTCOME: Resolved for Plainitff

Counsel: Zalman & Schnurman, New York, N.Y. (Marc H. Miner of counsel), for appellant. Procedural Posture Appellant tenant challenged the decision of the Supreme Court, Kings County (New York), whi ... ch granted the respondent landlord's motion for summary judgment dismissing the complaint to recover damages for injury to property on the ground that the action was barred by provisions in the lease which required the tenant to maintain insurance. Overview Tenant leased certain premises from the landlord for the purpose of operating a silk-screen-processing and textile business. The sprinkler pipes in the premises froze and broke, causing water damage to the tenant's inventory and equipment. The court held that under N.Y. Gen. Oblig. Law § 5-321, the lease provision purporting to hold the landlord harmless for injury to the tenant's property was unenforceable. The court held that landlord could not circumvent § 5-321 merely by inserting into the lease a requirement that the tenant obtain insurance or by inserting into the lease a mutual waiver of subrogation clause, which would apply even if no insurance was obtained or required. Outcome The court reversed and reinstated the complaint.

Marc Howard Miner's Legal Cases (10)

Larosa v. Corner Locations, II, L.P. 169 A.D.3d 512 (1st Dept.)

Casciano v Town/Village of Harrison, 160 A.D.3d 801 (2d Dept)

Suarez v JPMorgan Chase Bank, 128 A.D.3d 500 (1st Dept).

Indelicato v Parkway N. Assoc., L.P. 98 A.D.3d 946 (2d Dept.)

Lavy v Zaman, 95 A.D.3d 585 (1st Dept.)

Lenda v Breeze Concrete Corp., 73 A.D.3d 987 (2d Dept.)

Rivo-Liss v. City of New York, 723 N.Y.S.2d 513 (2d Dept.)

Suntken v. 226 West 75th St., Inc., 258 A.D.2d 314 (1st Dept.)

Soo Bok Lee v. Eighteen Venture Assocs., 249 A.D.2d 82 (1st Dept.)

A to Z Applique Die Cutting v. 319 McKibbin St. Corp., 232 A.D.2d 512 (1st Dept.)