Significant Decisions 1. In the case of Hagen v. Gilman Management Corp., 4 A.D.3d 330, 770 N.Y.S.2d 890 (2nd Dept. 2004), we were granted summary judgment dismissing the complaint on behalf of a managing agent arguing successfully that it lacked the exclusive control necessary over the premises to etablish liability. The lower court's decision was affirmed unanimously by the Appellate Division, Second Department in February, 2004. 2. In the case of Scotto v. Town of Oyster Bay, the Town's motion for summary judgment was granted in a case where a woman fishing from a bulkhead at a Town beach was injured when, while stepping off the bulkhead, she stepped into a sinkhole which developed just as she was stepping onto a grass area adjacent to the bulkhead. The Court found that the Town made out a prima facie case that it had no notice of the alleged defect and / or that the Town did not create same. The Court also found that plaintiff's arguments in opposition to the motion were speculative, and therefore, did not warrant the denial of the Town's motion. 3. In Marino v. The Town of Oyster Bay, the Appellate Division Second Dept. held that plaintiff's notice of claim did not comply witht the General Municipal Law Sec. 50-e(2) because it failed to identify the location of the accident with sufficient particularity to enable the defendant to locate the alleged defect, conduct a meaningful investigation, and assess the merits of the injured plaintiff's claim. The Court found that given the transitory nature of the curb defect, the defendant was prejudiced by not being able to conduct a prompt and accurate investigation while the facts surrounding the incident were still fresh. Although the Town could have obtained the relevant information by conducting an examination pursuant to General Municipal Law Sec. 50-h, it was under no obligation to do so. The plaintiff's belated attempt to cure the deficiency in the notice, nearly three years after the alleged incident, by identifying the alleged defect in a photograph submitted by the defendant and specifying its distance to a fire hydrant, was insufficient to overcome the prejudice to the defendant resulting from the delay. 4. In Richard v. The Town of Oyster Bay, 300 A.D. 2d 561, 752 N.Y.S. 2d 537 (2d Dept. 2002), the Appellate Division found that the Supreme Court's decision allowing plaintiff to amend her notice of claim to change her theory of liability against the Town was erroneous. The Appellate Division noted that while a court may, in its discretion, grant an application for leave to amend a notice of claim where a mistake, omission, irregularity or defect in the original notice was made in good faith, plaintiffs cannot make amendments of a substantive nature (e.g., which changes their whole theory of liability or changes the accident location) as such substantive changes would be in bad faith and substantially prejudice municipalities. 5. In Esposito v. The Town of Oyster Bay, the Supreme Court Nassau County granted the Town's motion for Summary Judgment on case where infant Plaintiff was knocked down by another skater at the Town's ice skating rink. Although Plaintiffs alleged that the Town was negligent in its supervision of skating activities at the rink prior to the happening of the alleged accident, including in allowing rowdy activity to take place (such as fights, speed skating, skating against the flow and other horseplay), the Court found that Plaintiffs failed to demonstrate that such rowdy activity was the proximate cause of the accident. Rather, the Court found that the accident was the result of a simple collision by one skater with another for which no amount of supervision could have prevented. 6. In Jonke v. F.W. Woolworth Co., plaintiff James Jonke was injured in a bicycle accident in June 1996, while riding off road and downhill at the Greenbelt Trails in Staten Island. At the time, the suspension fork of his Mongoose IBOC bicycle cracked and collapsed, causing him to tumble with the bicycle downhill, and sustain severe and permanent facial injuries and nerve damage. The plaintiff commenced suit against among others, F.W. Woolworth Co., The Village Wheels Bike Shop and Venator Group Specialty, Inc. In addition, the plaintiff named as defendants AMP Research, the manufacturer of the suspension fork, and American Recreation Company, Inc., the manufacturer of the Mongoose IBOC bicycle. The plaintiff's causes of action included strict products liability, negligence and breach of warranty. At the close of discovery, a motion for summary judgment was made on behalf of Venator Group, F.W. Woolworth Co. and The Village Wheels Bike Shop in which it was argued that such entities could not be considered within the chain of distribution for the AMP suspension fork and Mongoose IBOC bicycle due to substantial modifications and alterations which had been performed upon both the bicycle and fork. Specifically, the plaintiff had installed the AMP fork upon his Mongoose IBOC bicycle. After using it for months, he noticed a crack and sent the AMP fork back to the manufacturer for repair. The plaintiff received the fork and reinstalled it upon his bicycle, at which time he later experienced additional problems. On two more occasions, the plaintiff sent the fork back to AMP for repair. In granting the motion, Judge Leland DeGrasse of the New York County Supreme Court ruled that: Venator correctly relied upon Robinson v. Reed-Prentice Division of Packaging Machinery Company, (49 N.Y.2d 471 1980) in which it was held that the manufacturer of a product may not be cast in damages either in strict product liability or negligence, where, after the product leaves the possession and control of the manufacturer there is a substantial modification which substantially alters the product and is the proximate cause of injury. This decision was later affirmed on appeal in the Appellate Division, Second Department. 7.In Bergin v. Town of Oyster Bay, the Town’s motion for summary judgment was granted in a case where an infant plaintiff was injured while going hand-overhand across a horizontal ladder or “monkey bars.” She slipped and fell to the ground, injuring her arm. The infant’s mother was about four feet away from her daughter, as was directly observing her, when the incident occurred. The Town was alleged to have improperly installed and/or maintained the “safety surface” under the playground equipment, which consisted of a tree bark material generally approved for such use by the safety and trade organizations, including the Consumer Protection Agency. The Town moved to dismiss on the grounds that the admissible evidence demonstrated that that Town reasonably maintained the surface but, by its nature, it could be displaced by the normal play activities of children and there was no evidence that the Town had notice of the alleged defect under the monkey bars. The Court found that the Town had made out a prima facie case that the plaintiff’s expert report, submitted in opposition, was conclusory and was not based on facts in the record. Interestingly, the Court stated that, at least in certain circumstances, the knowledge of the parent of the risks involved in the activity can be attributed to the child for purposes of determining if the child should be deemed to have assumed those risks. 8.In Avelar v. Ceclia, et al., we obtained summary judgment on behalf of the Town of Oyster Bay. The Plaintiff was struck by a vehicle while crossing a Town roadway after leaving his school, which was near the accident location. Plaintiff claimed that the Town failed to conduct a safety survey and/or failed to place speed bumps, stop signs, crosswalks, guards, or warning devices near the school. We established that there was no evidence that any particular feature of the road was the proximate cause of the accident. The Court found that the Town had no actual or constructive notice of any alleged dangerous or defective road condition.