Wednesday, July 9, 2014

Struck by a bicycle, and the complaint is dismissed.

Practice point:  The Appellate Division reversed the trial court and dismissed the complaint in in this action where plaintiff was injured when a child, riding a bicycle, struck her from behind as she walked on an interior walkway of defendant's complex. Defendant submitted the testimony of a member of its private security force, who stated that defendant employed five to seven security guards during normal business hours. He stated that people traversed the property, and some "occasionally" rode bicycles, but this happened "rarely." Nevertheless, defendant had a rule against riding bicycles in the area of the incident, and there were a number of signs posting this rule. Defendant also had surveillance cameras on the interior and exterior of the property, and the security officer further stated that when someone was found riding a bicycle, either the bicycle would be confiscated, a summons would be issued, or a warning would be issued.

The Appellate Division found that the defendant had demonstrated that it provided the requisite minimal precautions to protect people from the foreseeable harm of bicycle riders, and there was nothing else that it reasonably could have done.

Student note:  Plaintiff failed to submit opposition to the motion, and the arguments she has set forth in her appellate brief are unpreserved. In any event, the Appellate Division determined that plaintiff's arguments do not present triable issues of fact that would warrant the denial of the defendant's motion.

Case:  DeJesus v. Parkchester S. Condominium Inc., NY Slip Op 05016 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue:  A motion for leave to serve and file an amended notice of claim is denied.