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Where a fireman was injured responding to a fire caused by defendant leaving an apartment with a hot plate plugged into a timer in the on position, the First Department found that there was a practical or reasonable connection between the code violation and the firefighter’s injury based on plaintiff’s expert’s opinion that it delayed the discovery of the fire and allowed it to grow and spread even where the defendant’s negligence was not a proximate cause of the injuries. Negligence claim dismissed but summary judgment on GML §205-a denied. Walsh v Michelson
Owner and manager of building where plaintiff was injured by a closing elevator door failed to instruct the new owner to preserve the elevator for an inspection by the plaintiff and his expert which defendants had delayed scheduling, and elevator was ripped out by new owner days before the inspection, entitled plaintiff to an adverse inference charge for spoliation against the former owner and manager even though they did not own or manage the building at the time that the elevator was destroyed. Moscione v QPII-43-23 Ithaca St. LLC
Board and Department of Education denied summary judgment where student was challenged to fight in cafeteria and later assaulted in stairwell between lunch and class. Safety officer whose testimony defendants relied on did not know how many safety officers were on duty or where they were located. Neither safety officers nor teachers were in the stairwell where plaintiff was attacked. Safety officer saw 1 of the assailants in the dean’s office prior to the assault, and the plaintiff’s father spoke to a dean who said that 1 of the assailants had attacked another student before. Father knew that some of assailants were members of the Crips. Defendants failed to eliminate questions on constructive or actual notice and causation. It was not the speed of the punch but the circumstances leading up to it that determines whether it could have been prevented by adequate supervision. K.J. v City of New York
Lower court’s apportionment of settlement proceeds of 1/3 each to plaintiff, worker’s comp carrier, and plaintiff’s attorney reversed as court was only authorized to equitably apportion actual legal costs, including attorney fees, between plaintiff and worker’s comp carrier reflecting the actual benefit to the carrier. Fernandez v Toyota Lease Trust
Defendants and plaintiff both denied summary judgment on Labor Law §240(1) where a question of fact existed as to whether the bricks which struck plaintiff accidently fell from the building being worked on or were deliberately dropped by demolition workers. If deliberately dropped by demolition workers, they would not be considered falling objects for Labor Law §240(1).
Industrial code §23-3.3[g] (demotion protection) only applied within a building and was not applicable in this case.
Defendants denied summary judgment on Labor Law §200 and negligence where there was an issue of control. Torres v Love Lane Mews, LLC
Plaintiff granted summary judgment on Labor Law §240(1) where electrical wire reel weighing 500-1000 lbs fell on his foot while being rolled up wooden planks whether or not plaintiff was pushing the reel. The presence of a forklift on the site did not make plaintiff a recalcitrant worker as there was no evidence that he was instructed to use the forklift and it was undisputed that the workers were instructed to roll the reel on the boards. Nor was plaintiff the sole cause of the accident since he was not provided with an adequate safety device. Labor Law applied since it was a construction project even if plaintiff was not performing construction work at the time of the accident. Gutierrez v 451 Lexington Realty LLC
Defendant’s motion to change venue from Kings to Richmond County denied for failure to show that the plaintiff was not a resident of Kings County at the time the action was commenced. For purposes of venue, a person can have more than 1 residence which is defined as ‘where a party stays for some time with a bona fide intent to retain the place as a residence for some length of time and with some degree of permanency.’ Pomerantsev v Kodinsky
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Contractor responsible for asbestos and lead abatement and demotion at construction site denied summary judgement on Labor Law §200 where photographs showing visible clouds of dust during demolition and its experts’ failures to opine that it did not release toxins and that the toxins were not capable of causing plaintiff’s respiratory illness defeated any prima facie showing of entitlement to summary judgment. Flynn v Turner Constr. Co.
Building owner denied summary judgment where plaintiff claimed that the elevator suddenly dropped 9 floors relying on the doctrine of res ipsa loquitor and submitted evidence that an elevator does not normally suddenly drop 9 floors absent negligence, that the elevator was in the exclusive control of the defendant, and that no negligence on plaintiff’s part contributed to the event. Defendant’s argument that the presence of another passenger who activated the emergency stop button and jumped to try and stop the free fall disproved exclusive control was rejected. Colon v New York City Hous. Auth.
Village granted summary judgment where its abandoned manhole and cover, which was subsequently paved over by the state and exploded under plaintiff’s car, because it did not have prior written notice, as required by its local code and it did not create the condition through its affirmative act of negligence, the only exception to the prior written notice code pleaded by plaintiff. Dibble v Village of Sleepy Hollow
Driver and owner granted summary judgment where plaintiff was standing in the westbound lane of traffic, outside of crosswalk, and stepped back into the eastbound lane of traffic as defendants’ vehicle approached, the driver stepped on the brakes hard and steered slightly to the right but still hit the plaintiff proving that plaintiff was the sole cause of his accident. Herrmann v Giovanniello
Defendant driver going straight in left turn lane made out prima facie entitlement to summary judgment against plaintiff who made a left turn from opposing traffic side of two lane left turn lane failing to yield the right-of-way, but denied summary judgment for remaining question of fact as to whether defendant driver was properly in the left turn lane where there was conflicting testimony as to whether and where he was going to turn. Mercado v Horn
NYCHA granted summary judgment on plaintiff’s testimony and meteorological records showing that it was snowing at the time of the accident barring recovery under the storm in progress doctrine. Plaintiff’s testimony that he fell on “dirty snow” which may have fallen after defendant’s snow removal efforts, and conclusory claim that the snow removal efforts were inadequate failed to raise a question of fact. Filius v New York City Hous. Auth.
Middle driver in 3-car collision granted summary judgment on proof that he was slowing down at the time that he was struck in the rear by codefendant’s vehicle which propelled him into the rear of plaintiff’s vehicle providing a non-negligent explanation for the rear end collision. Pomerantsev v Vladimir Kodinsky
Movie production company granted summary judgment on Labor Law §200 because plaintiff was its special employee entitling it to the exclusivity of the workers comp defense. Rodriguez v Columbia Pictures Indus., Inc.
Defendant who moved for summary judgment 2 months after action was commenced and before discovery was exchanged denied summary judgment without prejudice to renew at the completion of discovery where plaintiff’s opposition showed that facts may exist to show that the moving defendant owned one of the cabs involved in the accident. A party should have the opportunity to conduct discovery before summary judgment. Salameh v Yarkovski
Defendant denied summary judgment for failing to show that it did not own the bench from which plaintiff fell and did not place it at the location before the accident. Any inconsistencies in plaintiff’s testimony are issues of credibility to be resolved by a jury. Patton v Taszo Coffee, LLC
Defendants’ motion to dismiss complaint for failure to substitute an administrator within a reasonable time denied for failure to show that there was a lack of diligence in seeking substitution or prejudice to the defendant, and the policy favoring resolution of actions on the merits. The court does not give the details of the proofs. White v Diallo
Third-party defendants, Verizon and its paving contractor, granted summary judgement of third-party complaint where evidence showed that motorcycle was cut off and did not hit any defect in the road causing the accident. Wiley v ESI N.Y. Inc.
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Third party claim for common law indemnity and contribution against plaintiff’s employer dismissed where medical records showed that plaintiff did not sustain a grave injury under Workers Comp Law §11. Claim for contractual indemnity for defendant’s negligence dismissed as unenforceable under GOL §5-322.1 which prohibits indemnification for a party’s own negligence. Clavin v CAP Equip. Leasing Corp.
Defendant met its initial burden for summary judgment by competent medical proof that plaintiff did not sustain a serious injury to his neck and back, but plaintiff raised triable issues of fact in opposition by competent medical proof. The court does not give the details of the proofs. Mardirossian v Pearl Express Cab