April 17, 2018 | Vol. 102

MUST READS
(6 summaries)
NOTEWORTHY IF YOU MUST READ

Products Liab   Espinal  

First

There is no products liability case where plaintiff did not allege that the chemical drain opener was defectively designed/manufactured or that there was a failure to warn. Retailer who sold the product could not be held to have launched instrumentality of harm under Espinal where it did not sign manufacturer’s agreement to restrict sales to professionals. Distributor signed agreement and could be found to have launched an instrumentality of harm by creating a dangerous condition, not just failing to correct an existing dangerous condition. Plaintiff’s expert failed to cite support for opinion that selling to nonprofessionals violated an industry standard, but retailer and distributor could be found to have violated manufacturer’s written standard prohibiting sales to nonprofessionals. Janiya W.-G. v Smith


MVA  

Second Deptartment

Plaintiff’s motion to vacate made two months after stipulation to submit case to binding summary jury trial with hi/lo agreement signed by her original attorney and so ordered denied. Her original attorney had apparent authority to enter into the stipulation which could not be set aside absent proof of fraud, duress, or overreaching, which plaintiff did not provide. Chae Shin Oh v Jeannot


Fireman Rule   GML §205-a   NYC  

First

The risks that caused plaintiff’s decedent’s death during a probationary firefighter training were part of the unique risks associated with firefighters and not covered under Labor Law §27-a or GML §205-a. Fact that death occurred during training and not fighting an actual fire did not take it out of the fireman rule since training is an important step to being able to effectively fight fires. Sears v City of New York


Late Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice  

Second Deptartment

Petitioner injured when she fell in bus denied leave to serve late Notice of Claim because actual knowledge of the essential facts to the Town’s police department was not actual knowledge of the Town. Petitioner failed to offer a reasonable excuse or meet her burden of showing “some evidence or plausible argument” of no substantial prejudice to the Town and the burden never shifted to the municipality. Matter of Cruz v Transdev Servs., Inc.


Stay Arb   Uninsured   Question of Fact   Collateral Estoppel  

Second Deptartment

Uninsured arbitration preliminarily stayed for a framed issue hearing to determine if carrier for owner of U-Haul truck that struck injured party properly disclaimed coverage for failure of insured to cooperate. Default judgment finding that U-Haul carrier not required to defend, or indemnity was not entitled to collateral estoppel because it was not litigated, failing to meet the requirements of identity of issues and a fair opportunity to litigate. Matter of Hereford Ins. Co. v McKoy


Med Mal   Renew   Motion to Dismiss   Vacate Jud  

First

Grant of Plaintiff’s motion to renew defendants’ motion to dismiss, and on renewal denied motion to dismiss, was not an improvident exercise of discretion. While renewal should be based on new facts not known at the time of the original motion, it can be granted in the interest of justice in accordance with the preference that actions be decided on the merits. Kaszar v Cho

NOTEWORTHY
(16 summaries)
MUST READS IF YOU MUST READ

Med Mal   1983 Action   Raised For First Time   Amend Complaint   NYC  

First

Municipal defendants’ motion for summary judgment on 1983 action alleging failure to maintain proper protocol for administering INH therapy for inmates at Rikers Island where plaintiff’s decedent died from liver failure from the Isoniazid shortly after being released denied because the unsigned, unsworn protocol attached to defendants’ reply was improperly raised for the first time in reply and was not in admissible form. A different unsigned, unsworn protocol was misidentified in the defendants’ original motion. Plaintiffs’ cross motion failed to meet their burden of showing that the protocol was inadequate or applied inadequately as a matter of law and to meet their burden for substituting the fictitious name of the doctor in the Complaint. Small v City of New York


MVA   Pedestrian   Comparative Fault   Causation  

Second Deptartment

Defendant granted summary judgment where infant plaintiff could not recall accident and defendant and eyewitness testified that she ran across the street 100’ from the intersection, crossed 2 lanes of traffic before entering the defendant’s lane without looking, and ran into the defendant’s car forward from the driver’s mirror, establishing that the defendant was not negligent. King v Perez


Labor Law §240   Scaffold   Safety Devices   Indemnity  

Second Deptartment

Worker granted summary judgment on Labor Law §240(1) where he fell from a scaffold without side safety rails or a device to prevent his fall during a demotion project. Defendant granted summary judgment against sub-contractor employer on contractual indemnity. Marulanda v Vance Assoc., LLC


Premises Liab   Slip/Trip   Dangerous Condition  

Second Deptartment

Defendants granted summary judgment where plaintiff tripped on a root in landscaped area he used to go from the parking lot to the building stairs because a landowner does not owe a duty to protect or warn against “a condition on the property that is inherent or incidental to the nature of the property, and that could be reasonably anticipated by those using it.” Miano v Rite Aid Hdqtrs. Corp.


Premises Liab   Slip/Trip   Stairs   Create Condition   Notice  

First

Superintendent’s testimony and manager’s affidavit showed that building did not create the condition or have notice of it and plaintiff’s testimony that she did not see defect when she climbed the stairs 20 minutes before eliminated any issue of constructive notice. Plaintiff failed to show specific rather than general recurring condition, and claim that there was inadequate lighting unavailing since she testified that she slipped from the defect and not inadequate lighting. Vasquez v Nealco Towers LLC


Premises Liab   Slip/Trip   Snow/Ice   Sidewalk   Unknown Cause   Storm in Progress   Expert Aff   Speculation  

Second Deptartment

While excerpts of plaintiff’s deposition submitted by defendant showed that plaintiff could not identify the cause of the accident, he raised an issue of fact by submitting his entire deposition testimony identifying the cause as transparent ice. Building owner granted summary judgment though where certified climatological data, plaintiff’s transcript, and meteorologist’s opinion established that accident occurred during a storm in progress. Plaintiff’s expert’s opinion as to when the transparent ice formed was speculative. Pankratov v 2935 OP, LLC


Premises Liab   § 7-210   Slip/Trip   Sidewalk   Snow/Ice   Create Condition   Note of Issue   Last Inspection  

Second Deptartment

Building owner failed to show the weather conditions for the hours and days before the plaintiff’s slip on ice on the adjoining sidewalk, the last time that the area was cleared of snow/ice or inspected, failing to meet its burden of showing that in neither created the condition nor had notice of it. Soloveychik v Sea Isle Owners, Inc.


Serious Injury   Expert Aff   Admissibility  

First

Defendants denied summary judgment on serious injury where plaintiff’s physician’s affirmation raised an issue of fact and was admissible even though it relied in part on an unsworn MRI report, medical records, and reports. Plaintiff’s doctor adequately addressed defendants’ expert’s opinion regarding degeneration by explaining that plaintiff was asymptomatic prior to the accident and the injuries were consistent with and caused by the underlying accident. Portillo v Island Master Locksmith, Inc.


Negligent Hiring   Respondeat Superior  

First

After plaintiff’s intentional tort claims were dismissed as barred by the 1-year statute of limitations, plaintiff brought suit against security guard’s employer alleging negligent hiring, supervision, and retention which was dismissed because the security guard was empowered to remove people from the premises and acting within the scope of his employment. Negligent hiring claim barred by respondeat superior. Kerzhner v G4S Govt. Solutions, Inc.


MVA   Default Judgment   Compel Acceptance   Reasonable Excuse   Meritorious Defense  

Second Deptartment

Plaintiff’s motion for default judgment granted. Plaintiff needed to only show service of Summons/Complaint, defendants’ failure to timely appear or answer, and that she stated a viable cause of action for the wrongful death of her husband. Defendants gave a reasonable excuse for the delay in serving an Answer but proposed Answer verified solely by the attorney without personal knowledge could not show a meritorious defense. Loughran v Giannoti


Premises Liab   Dangerous Condition   Building Code   Res Ipsa Loquitor   Comparative Fault   Expert Aff   Special Duty  

First

Building owner granted summary judgment on its expert’s opinion that the mechanism at the top of the door in tenant’s apartment was not intended to prevent the door from slamming shut, was not defective or dangerous, and did not violate any building codes or standard. Plaintiff’s expert’s opinion was speculative as it was not based on an examination of the door, nor did he set forth the violation of any code, standard, or rule. Res ipsa loquitor did not apply because the tenant’s door was not exclusively in the control of the defendant and it was just as likely that the accident was caused by the plaintiff’s own negligence in letting the door slam shut on her foot. Jones v Underhill Realty, LLC


Premises Liab   Stairs   De Minimus  

Second Deptartment

Church met its burden of showing that the difference of riser heights on exterior stairs where plaintiff fell were physically insignificant and the characteristics of the defect and surrounding circumstances did not increase the risk. Hopkins v St. Agnes R.C. Church at Rockville Ctr.


Premises Liab   Assumption of Risk  

Second Deptartment

Law firm granted summary judgment where plaintiff, employed by third-party to remove garbage, felt a pop in his back while moving a heavy bag with another worker. The injury was the result of a risk inherent in his work and the bag did not exceed the weight accepted or agreed in the contract. Moody v Kelly Drye & Warren, LLP


MVA   Rear End   Nonnegligent Explanation   Emergency Doctrine  

First

Rear ended plaintiff granted summary judgment and defendant’s claim that plaintiff stopped short did not provide a nonnegligent explanation. Defendants’ claim that accident happened because he could not complete his lane change due to another car was proof that he did not maintain sufficient distance and did not constitute a nonnegligent explanation or an emergency not of his own creation. Urena v GVC Ltd.


Default Judgment   Motion to Dismiss  

Second Deptartment

Added defendant’s unopposed motion to dismiss the Amended Complaint and all counterclaims for failure to state a cause of action providently denied where the Complaint and counterclaims stated proper causes of action. A party may rely solely on the allegations in the pleadings where the motion is not converted to a motion for summary judgment. Yu Chen v Kupoint (USA) Corp.


Legal Mal   Statute of Limitations   Late Notice of Claim   Continuous Representation  

First

Law firm representing client for workers compensation claim denied summary judgment on legal malpractice claim alleging that they failed to timely file a Notice of Claim and bring an action where there was an issue of fact regarding whether continuous representation, which does not apply to the general relationship between attorney and client but only to a specific issue, applied under the facts presented. Contradiction in plaintiff’s testimony at deposition went to credibility. Encalada v McCarthy, Chachanover & Rosado, LLP

IF YOU MUST READ
(1 summaries)
MUST READS NOTEWORTHY

Coverage  

Second Deptartment

Insured denied declaratory judgment and carrier granted summary judgment where insured failed to show the applicability of an exception to the exclusion proven by the carrier. Corbel Constr. Co. v Arch Specialty Ins. Co.

About Matt McMahon

Civil trials and appeals since 1984
Bookmark the permalink.

Comments are closed