April 24, 2018 | Vol. 103

MUST READS
(8 summaries)
NOTEWORTHY IF YOU MUST READ

Labor Law §240   Safety Devices   Recalcitrant Worker   Causation   Grave Injury   Strike Answer   Indemnity  

Second Deptartment

The striking of third-party defendant’s Answer for discovery abuse admitted “all traversable allegations in the complaint” but not damages. Grave injury was a traversable allegation entitling defendant/third-party plaintiff to summary judgment on contribution claim against plaintiff’s employer.

Plaintiff denied summary judgment on Labor Law §240(1) where cast iron section of boiler they were disassembling fell on his foot. Issues of fact raised by contradicting testimony of plaintiff, that they were repairing boiler to fix a leak, and school custodian, that boiler was disassembled every summer for routine cleaning and refurbishing and he was not aware of any problem with boiler that summer. There was insufficient evidence to say whether boiler sections were components requiring replacement for routine maintenance, or a repair. Plaintiff was satisfied with safety of using a pipe to secure boiler section instead of usual mechanical hoist and school submitted evidence that section did not need to be secured when detached, leaving a question as to whether the hoist was a necessary safety device. Plaintiff could not be found recalcitrant as there was no proof that he was instructed to use specific safety device and refused or disregarded the instructions. Garbett v Wappingers Cent. Sch. Dist.


Workers Comp Defense   Governmental Immunity   Fireman Rule   Presumption   Assumption of Risk  

Second Deptartment

Town Police officer allowed to participate in training with county for part time SWAT team suffered heat stroke during testing. The county entities failed to show as a matter of law that plaintiff was their special employee. There was a presumption that he continued to be employee of town which paid his salary, allowed him to participate in the training during normal work time, paid his workers comp benefits, and had the authority to fire or discipline him. County also failed to show a set procedure for administering the physical test and that they did not violate that procedure, which would have been necessary to apply governmental immunity. Fireman’s rule did not apply because officer was not proved to be their special employee. Defendants failed to show the primary assumption of risk applied. Dube v County of Rockland


Med Mal   Late Notice of Claim   Wrongful Death   Actual Knowledge   Reasonable Excuse   Prejudice  

Second Deptartment

Petitioner sought leave to serve late Notice of Claim more than 1 month past the 90-day wrongful death claim accrual, which runs from appointment of a representative, and more than 11 months past the 90-day period for all the other claims (which run from date of death). She failed to offer any proof that municipal defendants had actual knowledge of the essential facts of the claims and the argument that her and her attorney did not review the records and discover the claim against the municipal defendants in time was not a reasonable excuse. Plaintiff also failed to put forth a plausible argument or evidence that the defendants were not substantially prejudiced by the delay. Matter of Mangino v Town of Mamaroneck


MVA   Spoliation   Preclusion  

First

Since defendant was not on notice that the Electronic Data Recorder (EDR) would be needed for the case, no spoliation sanction was warranted. Elmaleh v Vroom


Premises Liab   Out of Possession   Create Condition   Notice  

First

Out of possession owner granted summary judgment on proof that it did not create or have actual knowledge of the chewed-up duct tape on the stair where plaintiff fell. Witness’ testimony that roof leaked drops onto the step when it rained was insufficient to show constructive notice without proof that it was “a significant structural or design defect that is contrary to a specific safety provision.” Mangum v 500 Brush LLC


Labor Law §240  

Second Deptartment

Worker for cleaning service who fell from stepladder while cleaning cabinets after a condominium renovation found not to be “cleaning” as defined by Labor Law §240(1) under the 4 criteria test; that it was routine maintenance; did not require specialized equipment expertise or unusual labor; involved insignificant elevation comparable to typical domestic cleaning; and it was unrelated to ongoing construction, renovation, painting, alteration, or a repair project. Holguin v Barton


Premises Liab   Wet Floor   Create Condition   Notice   Last Inspection   Sole Cause   Comparative Fault  

First

Hospital failed to show that it did not create puddle on floor in front of ER nursing station where plaintiff fell, or have notice of puddle. General cleaning procedures did not eliminate constructive notice where witness did not know if he was working on the day of the accident, if the procedures were followed that day, or when the area was last inspected.

Fact that plaintiff saw the puddle earlier did not make her the sole cause of the accident. Prior awareness of the condition goes to comparative fault. Socorro v New York Presbyt. Weill Cornell Med. Ctr.


BP   Amend BP   Prejudice   Reasonable Excuse   Raised For First Time  

Second Deptartment

Plaintiff’s second and third “supplemental” BPs which raised for the first time a stroke as causally related to the accident, despite denying the causal connection at deposition, were in fact amended BPs and plaintiff failed to show a reason for the delay in seeking leave to amend the BP or that defendant was not surprised and prejudiced by the new allegations. Issues raised by the plaintiff for the first time on appeal were ignored by the court. Kirk v Nahon

NOTEWORTHY
(12 summaries)
MUST READS IF YOU MUST READ

Negligent Supervision   Late Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice  

Second Deptartment

Teacher’s accident report stating that child “ran into the classroom, ‘slipped,’ and hit her head on a table” did not provide actual knowledge of the essential facts of the claims that the preschool negligently supervised the children and allowed debris to accumulate. Petitioner’s failure to discover that preschool was affiliated with NYC was not a reasonable excuse for the delay and petitioner failed to put forth a plausible argument or evidence that the defendants were not substantially prejudiced by the delay. Matter of Quinones v City of New York


MVA   Bus   Rear End   Emergency Doctrine  

First

Bus driver’s sudden, hard stop in reaction to the car in front of him did not evoke the emergency doctrine, not typically available to a rear-ending vehicle, because bus driver had a duty to maintain a safe distance (VTL §1129(a)). There was a question of fact if the stop was “unusual or violent.” VTL §1129(a) does not require contact for violation. Weston v Castro


Premises Liab   Causation   Create Condition   Question of Fact  

First

Questions of fact remain as to cause of the explosion when plaintiff opened the oven in her apartment including whether defendants’ employees placed and left a can of oven cleaner in the broiler section, whether the oven was moved during a renovation the day before the explosion, and how many were involved in the renovation. Shaw v Rush Mgt. Co., LLC.


Premises Liab   Prior Written Notice   Create Condition  

Second Deptartment

Town denied summary judgment on claim that it did not have prior written notice for failing to show that it did not create the dangerous condition by constructing the road in such a way that it caused water to pool on the road, resulting in ice. Town was required to show that it did not have prior notice and that it did not create the condition by an affirmative act of negligence. Casciano v Town/Village of Harrison

Comment: Contractor’s motion for summary judgment also denied where it failed to show that it did not create or contribute to the condition that caused plaintiff’s injuries. Casciano v Town/Village of Harrison.


Premises Liab   Notice   Expert Aff  

First

Defendants made out entitlement for summary judgment on proof that door that closed too fast cutting plaintiff’s foot with its jagged bottom edge was installed by an outside contractor and inspected by the commercial tenant’s manager at the time of installation who found that it closed properly and did not note a jagged edge, and that there were no complaints about the door prior to the accident. Plaintiffs’ expert did not offer an opinion regarding the jagged edge which was not present on inspection 3 years after the accident. Samuels v Lee


Premises Liab   Notice   Last Inspection   Raised For First Time  

First

Building owner denied summary judgment on proof that the bathroom floor where plaintiff fell was routinely cleaned on Friday nights between 9pm and midnight but did not show it was in a clean condition the next morning. Third-party complaint dismissed without opposition and defendants’ claims that they did oppose were raised for the first time on appeal. Charles v Brookfield Props. OLP Co. LLC


MVA   Rear End   Sole Cause   Nonnegligent Explanation   Comparative Fault  

Second Deptartment

Where bus driver rear ended a car that was then pushed into car plaintiff was a passenger in third-party defendants (first and second cars) entitled to summary judgment showing because bus driver was sole cause of the accident. Bus driver’s claim that the car it hit stopped short did not provide a nonnegligent explanation. Lower court properly searched record to grant summary judgment to plaintiff who was no longer required to show an absence of comparative fault. Edgerton v City of New York


Discovery   Spoliation   Strike Answer   Preclusion  

Second Deptartment

Plaintiff denied spoliation sanctions where he failed to show that documents he claimed were purposefully withheld or destroyed ever existed and that he could not prove case without them. Preclusion of the building’s documents that defendants claimed were given to buyer of the building after the preliminary conference order, which new owner claimed not to have, was warranted as it would be unfair to allow the building to surprise plaintiff with documents they claimed did not exist and they offered no excuse for their conduct in ignoring 2 orders to produce or supplement. Watson v 518 Pa. Hous. Dev. Fund Corp.


MVA   Question of Fact  

First

Testimony from the driver of the limousine that broke down, that he got information for defendant’s tow truck company, called them, and a tow truck bearing the name of the company he called showed up and removed his car, raised an issue of credibility creating an issue of fact as to whether the tow truck belonged to defendant. Doumbia v Moonlight Towing, Inc.


Serious Injury   Expert Aff   Degenerative   Preexisting   Conclusory  

First

Plaintiff’s orthopedic surgeon failed to address the IME/DME doctor’s opinion, the findings in plaintiff’s MRI reports showing degeneration and pre-existing conditions, and surgeon’s own operative report showing a large spur and fraying in the shoulder, rendering his opinion conclusory. Andrade v Lugo


Serious Injury   Degenerative   Preexisting   Causation   Expert Aff  

First

Defendants’ expert failed to clearly or unequivocally opine that shoulder injury was caused by chronic condition where he found limitations in 2 planes, failing to meet burden of proof on serious injury as to shoulder. Plaintiff’s doctor failed to raise a question of fact as to cervical injuries without addressing degenerative and pre-existing findings in plaintiff’s records and as to lumbar injuries by failing to show the injuries by objective evidence. Defendants eliminated questions on 90-180-day category based on plaintiff’s testimony that he was confined to bed/home for less than 90-days. Rosario v Cablevision Sys.


Premises Liab   Res Ipsa Loquitor   Motion to Dismiss   General Release  

First

Tenant’s claim against condominium and managing company that he sustained lung damage due to a failure to repair his plumbing and heating was not barred under res ipsa loquitor by settlement of prior case where lung damage was not raised, and language of settlement agreement raised an inference that it did not include claims not raised. While the release required to be executed was broader, whether the lung claim could have been raised was a question of fact. Dismissal under CPLR §3211(a)(4) not applicable since no other actions existed at the time. Ember v Denizard

IF YOU MUST READ
(1 summaries)
MUST READS NOTEWORTHY

Serious Injury  

Second Deptartment

Plaintiff raised an issue in opposition to the defendants’ motion for summary judgment on serious injury. The court does not give the details of the proofs. Fortuna v Daskawisz

About Matt McMahon

Civil trials and appeals since 1984
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