April 3, 2018 | Vol. 100

MUST READS
(7 summaries)
NOTEWORTHY IF YOU MUST READ

Premises Liab   Expert Aff   Speculation   Out of Possession  

First

Store met its burden for summary judgment in case where infant’s hand got caught in closing door on employee’s testimony that he had 20 years’ experience, contacted the manufacturer for correct settings for the closing of the door, and tested the door which complied with the manufacturer’s instructions. Plaintiff’s expert’s affidavit that the door closed in 2 seconds violating ADA standards and the manufacturer’s instructions raised a question of fact. Even though plaintiff’s expert examined the door 2 years after the incident, the opinion was not speculation because there was testimony that the closing mechanism did not need further adjustments once set absent a change to the settings or physical damage, neither of which took place. Codefendant failed to appeal denial of summary judgment on grounds that it was an out of possession owner but in any event failed to show that it was an out of possession owner without an obligation to make repairs. J.C. v Jerzey Wear, LLC


Med Mal   Accepted Practice   Causation  

First

Plaintiff’s expert failed to address specific opinions of the defendants’ experts’ that it was not a departure from accepted practice to delay radiological studies to confirm a spinal fracture before transferring the patient to Westchester Medical Center where the suspicion of the fracture and the need for further studies was contained in the discharge note, there was a risk to transporting the patient for the studies before transferring him, and that the damage to the spine occurred after the patient was transferred and the pelvic surgery was performed, before doing the spinal tests. Stinson v Lueders


Med Mal   Venue  

First

HHC’s motion to change venue from the Bronx to Manhattan denied where plaintiff originally sued for malpractice occurring at Jacobi Medical Center in the Bronx. Subsequent addition of rehabilitation center, also owned by HHC, in New York County did not require a change of venue and defendants did not make any allegations of discretionary grounds for change of venue. Brown v New York City Health & Hosps. Corp.


Labor Law §240   Labor Law §241   Safety Devices   Industrial Code  

First

Worker installing sheetrock in stairway who tripped on extension cord and fell down stairs entitled to summary judgment on Labor Law §240(1) because the stairs was a safety device. The fact that he tripped on an extension cord did not take it out of §240. Summary judgment denied plaintiff on Labor Law §241(6) under industrial code §23-1.7(e)(1) because of the “integral part of the work” defense and the staircase was a workspace and not a passageway as contemplated by that industrial code provision. Conlon v Carnegie Hall Socy., Inc.


Discovery   Attorney Fees   Lien  

First

Lower court’s sua sponte order compelling plaintiff to produce disclosure where defendants’ Answer had been stricken should have been vacated as defendants were not entitled to discovery after the Answer was stricken. Order requiring plaintiff to provide defendants with discovery provided to defendants’ prior attorney vacated as an improper work-a-round of a retaining lien. If there was no retaining lien, then defendants should seek to compel former attorney to turn over file. Andrade v Perez


MVA   Comparative Fault  

Second Deptartment

Passenger’s motion for summary judgment denied where driver made illegal U-turn because passenger and driver consumed alcohol at fraternity before getting into car, raising an issue of her comparative fault for getting in car knowing driver may be impaired. Motion for summary judgment by car following them denied based on conflicting testimony regarding how close the second vehicle was following the lead vehicle. Vuksanaj v Abbott


Med Mal   BP   Raised For First Time   Respondeat Superior   Note of Issue  

First

Plaintiffs did not attempt to assert new theories or causes of action in opposition to defendant’s motion for summary judgment by detailing acts and omissions of defendant’s employees first identified by name in the opposition as respondeat superior was pleaded, defense counsel was present at the deposition of one of the employees, and the lower court gave the defendant the opportunity to conduct a post Note of Issue deposition of the other employee and renew the motion after the deposition. Anthony v Smina

NOTEWORTHY
(16 summaries)
MUST READS IF YOU MUST READ

Set Aside Verdict   Mistrial   Materially Deviates  

First

Defendants’ motion to set aside verdict because of plaintiff’s counsel’s comments during trial denied where defendants failed to request a mistrial prior to the verdict. Past/future pain-and-suffering of $100,000/$200,000 reduced to $100,000/$100,000 and past/future lost earnings of $225,000/$1,300,000 reduced to $700,000/$0 as the verdict amounts materially deviated to this degree. The court does not give the details of the damages or plaintiff’s counsel’s comments during trial. Bermingham v Atlantic Concrete Cutting


Labor Law §240   Labor Law §241   Industrial Code  

Second Deptartment

Tree cutter struck by portion of tree he was removing from overhead wires on Metro-North line, which was propelled into the air and broke into 2 when the tension on the overhead line released, was a covered employee under Labor Law §§240(1) and 241(6) because the tree cutting was the first step in a repair to the overhead line which was a structure. Summary judgment granted to Metro-North on Labor Law §240(1) because the injury resulted from the release of tension on the wire and not the direct force of gravity. De Jesus v Metro-N. Commuter R.R.


Premises Liab   Dangerous Condition   Espinal  

First

Scaffold company denied summary judgment where plaintiff raised an issue of fact as to whether scaffold company launched an instrument of harm by placing a wood plank on the ground to support the sidewalk bridge it was constructing without a crossbar to prevent people from walking over it. Foreman’s testimony and affidavit conflicted as to whether he was there on the last day and whether he inspected it. Management company failed to meet its burden for summary judgment where they were authorized to make repairs, its employee visited the site several times a month, and they were required to inspect the bridge after it was completed. Luck v Rockledge Scaffold Corp.


Med Mal   Late Notice of Claim   Reasonable Excuse   Actual Knowledge   Prejudice  

First

Guardian ad litem for woman who was in a coma and awoke with severe brain damage granted leave to file a late Notice of Claim. Coma and brain damage provided a reasonable excuse for the delay. Doctor’s affirmation that the medical records contained the pertinent fact of the malpractice, giving HHC actual knowledge of the essential facts, was disputed by HHC’s expert but did show that HHC would not be prejudiced by the delay. Matter of Heredia v New York City Health & Hosps. Corp.


Premises Liab   Dangerous Condition  

Second Deptartment

Building granted summary judgment on proof that plaintiff, employee of a nonparty cleaning service, was engaged in cleaning the area at the bottom of a stairway where she slipped on cardboard. Landowner had no duty to protect the worker from hazards she was engaged to correct. Rojas v 1000 42nd St., LLC


Products Liab   Create Condition   Notice   Sole Cause  

Second Deptartment

Manufacturer failed to show, on the strict product liability claim, that it had no role in the design, manufacture, sale, or distribution of the forklift that plaintiff’s co-employee drove over his foot and that it did not create or have notice of breaking problems with the forklift. Defendant also failed to show that plaintiff was the sole proximate cause of his injury. Cordella v Raymond of N.J., LLC


Directed Verdict   Set Aside Verdict  

Second Deptartment

Plaintiff’s motion for directed verdict at the end of evidence denied, and defense verdict affirmed, as there was a rational path for the jury to reach its conclusion and it could be reached on a fair interpretation of the evidence. Fact that jury found the defendant negligent but not a proximate cause did not render verdict inconsistent as the issues of negligence and proximate cause were not so inextricably woven to require the jury to have found proximate cause. Stancati v Gunzburg


Emergency Doctrine   Expert Aff  

First

Defendants’ motion for summary judgment based on emergency doctrine denied on conflicting accounts of how the accident occurred and whether the individual defendant was faced with an emergency. Plaintiff’s motion to dismiss the emergency doctrine defense also denied based on conflicting accounts of the accident, even if the court properly considered plaintiff’s expert’s affidavit. Pugh v New York City Hous. Auth.


MVA   Emergency Doctrine  

First

Driver of car in left lane, slightly behind car in the right lane, entitled to summary judgment on proof that car in right lane made a U-turn in front of car in the left lane who had only a couple of seconds to react, proving emergency doctrine as a matter of law. Morales v Chuquillanqui


Premises Liab   Slip/Trip   Snow/Ice   Storm in Progress  

Second Deptartment

Landowner’s motion for summary judgment denied where there was conflicting testimony regarding the conditions around the time of the accident and the climatological data did not definitively show that the storm in progress defense applied. Zempoalteca v Ginsberg


MVA   Spoliation  

First

Defendant denied spoliation sanction where minivan he rear-ended was disposed before his insurance company inspected it. It was inspected at a body shop requested by “an insurance company” other than plaintiff’s, and at a body shop she took it to after a second accident 19 days later who inspected it for damage from both accidents. Defendant failed to dispute this testimony or show its own efforts at trying to inspect the minivan. Testimony and photographs were sufficient substitutes for another inspection. Gutierrez v Reiser


MVA   Turning Vehicle  

Second Deptartment

Defendant denied summary judgment on conflicting versions of accident where car plaintiff was in was turning from a driveway into a southbound lane of traffic when it was struck on the front passenger side by the defendant’s front driver’s side driving in the northbound lane, leaving questions of fact. Keene v Bourjolly


MVA   Pedestrian   Turning Vehicle   Comparative Fault  

Second Deptartment

Plaintiff’s affidavit stating that she looked both ways before crossing in the crosswalk when she was hit by the defendant’s vehicle that was making a turn made out prima facie entitlement to summary judgment but defendant’s affidavit stating that plaintiff was on the sidewalk when he started his turn and that she came into contact with the rear driver’s side of his vehicle while he had almost completed the turn raised a triable issue of comparative fault. Ustelimova v Madar


Vacate Default   Reasonable Excuse   Meritorious Defense   Conclusory   Raised For First Time  

First

Defendant’s motion to vacate default judgment after inquest denied where the only excuse offered was that it did not receive the Summons and Complaint and default motion which were served on defendant’s designated address at which it received the judgment after inquest. Conclusory statements by defendant’s treasurer that it was not responsible for maintaining sidewalk did not provide meritorious defense. Defendant’s claim that plaintiff failed to comply with subsequent mailing was raised for the first time on appeal but in any event would been denied on plaintiff’s proofs. Hyman v 400 W. 152nd St. Hous. Dev. Fund Corp.


False Arrest   Malicious Prosecution   1983 Action   Probable Cause   Respondeat Superior   Negligent Hiring  

First

Plaintiff’s claims for false arrest, false imprisonment, and malicious prosecution dismissed where police officer had probable cause to believe that plaintiff’s license plate was forged justifying the stop. Plaintiff’s 1983 action dismissed where plaintiff failed to allege that the violation was part of a municipal policy or custom. Because police officers were employees of the city, negligent hiring claims dismissed. Thompson v City of New York


Statute of Limitations   Motion to Dismiss   Notice of Claim   NYC  

First

Case dismissed where Summons and Complaint served beyond the 1 year and 90-day statute of limitations. 1983 Action dismissed as abandoned where plaintiff did not oppose motion to dismiss for failure to state a cause of action. Cassell v City of New York

IF YOU MUST READ
(1 summaries)
MUST READS NOTEWORTHY

MVA  

Second Deptartment

Motorcycle passenger’s case against driver of car that came in contact with motorcycle dismissed on proof that car driver was free from fault. The court does not give the details of the proofs. Thompson v Peacock

About Matt McMahon

Civil trials and appeals since 1984
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