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William C. Altreuter
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Friday, September 20, 2013

Fridays are Law Days (sometimes) at Outside Counsel. Here's Derouen v. Savoy Park Owner, LLC,, an interesting elevator case which teaches us something important about how summary judgment works. The plaintiff tripped and fell exiting an elevator, and sued the property owner. The property owner impeaded the elevator maintenance company. Then the owner and the maintenance company moved for summary judgment. The First Department elides over the fact that the maintenance company's motion was not timely made (they counted the 120 days from the filing of the date of the filing of the Note of Issue from the date the motion was filed instead of the date it was served-- remember that distinction for future reference), but then went on to deny summary judgment to both parties, on the merits. Why did the Court do that? Although unsaid, probably it was because the owner's motion was timely, and a motion for summary judgment "searches the record". Why did it deny the owner's motion? Because the basis for the owner's motion was a surveillance video which purportedly showed that the plaintiff's fall was caused by the wheels of her shopping cart rather than by the elevator shaking. 

 What is our take-away here? Well, several things. First, we are now living in a time when so much exists on video that it is, or soon will be, the rare trip-and-fall accident that isn't documented on video. Second, even if an accident is videoed that record is still subject to interpretation, and courts are going to be inclined to leave that to juries. In my mind's eye I can picture the lawyer for the owner on the day he got the video. He pops the disk into his computer and watches. It's grainy, and it has a counter on the bottom corner, counting the seconds, minutes and hours. He watches the door close, then open. Someone comes in and presses the call button, then scratches his butt. The lawyer fast-forwards through hours of this sort of thing: people with groceries coming in, people with dogs going out... then sees the old lady with the shopping cart. He slows to normal speed and watches as she pushes the cart out... and then goes down like a bag of laundry. He rewinds, plays it again. Did the elevator shake? He calls out to his secretary: "Hey, Yvonne- c'mere a minute." He plays it for her. "What does that look like to you?" Yvonne, well-familiar with the allegations of the complaint, trying to be helpful, says "I don't see it shaking." The lawyer nods, pops open the drawer on the computer, and takes it down the hall to his partner's office. "What d'ya think, Mark?" "Looks like summary judgment to me," his partner says. At the pretrial, naturally, plaintiff's counsel disagrees. Plaintiff's counsel, at least in the pretrial conference, has balls the size of coconuts. "You won't get to show that to the jury, " he says, "Because
I'm going to show it to them in my case in chief." He doesn't budge from his demand. Meanwhile, the elevator company says that its contract means that it's going to get summary judgment, and won't pony a nickel. Our hero makes his motion, shows the video to the trial judge during argument: "Just look at it. It's right there!" Not happening. Nisi prius has 85 motions on that morning, and the judge-- who has already seen the video, and asked his secretary, and his law secretary, and-- who knows? probably shown it to his wife too-- sits behind the bench impassively. He asks, "Anything further?" then moves on to the next case. Counsel for the owner is sweating. Can't they see it? He scans the Law Journal agate type decisions daily for a month, then sees the decision; that afternoon it arrives in the mail. He talks to his partner. What. The. Hell. He calls the carrier. This is messed up he says, except that he doesn't say "messed". The adjuster agrees. They decide to go up on it. Hey, it's right there on the video. The adjuster hates appeals, but he's reported up the line that this is a summary judgment case, so now he's committed too. They file the Notice, and make arrangements to bring in audio-visual equipment to the Appellate Division. Probably that means figuring out what the rules are for AV during oral argument. Maybe they have to make a motion. It's turning into an expensive appeal, particularly for a bullshit trip and fall where the plaintiff has up and died, not from this, although plaintiff's counsel is talking about amending his bill of particulars. Jeebus, that'll mean finding a doc who'll say that she just died from being old, and that's another $10k going into this rathole. It's not a $250k case, goddamnit. If the elevator company would come up with $30, probably he could get his guy to pay $60, and an old lady with a broken hip can't be worth more than $90k. Plaintiff's counsel won't hear of it. Time, which was working against him up until the old lady died, is now on his side. He has the owner and the maintenance company fighting with each other, and that's always a good thing. Why not hold out for $150-- or even $175? Hell, the jury might go nuts. It's not like a New York County jury is going to be in love with the landlord. They could pop for the $250, and then the defendants would have to decide if they want to go up-- again-- or just pay it. It won't be an expensive case to try. Meanwhile, our guy's adjuster is getting antsy. What the hell is going on with this piece of shit? Christ, look at the bills on this thing. Solomon-like, the First Department hands down its decision. There are triable issues of fact. Co back to 60 Center Street and work it out there. And thus, justice is served.

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