December 12, 2017 | Vol. 84

MUST READS
(7 summaries)
NOTEWORTHY IF YOU MUST READ

Premises Liab   GML §205-a   Fireman Rule   Causation  

First

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


Premises Liab   Elevator   Spoliation  

First

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


Negligent Supervision   Assault   Notice   Causation   NYC  

Second Deptartment

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


Lien  

First

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


Labor Law §240   Labor Law §241   Labor Law §200   Industrial Code   Falling Object   Control  

First

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


Inquest   Falling Object   Recalcitrant Worker   Sole Cause  

First

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


Venue  

Second Deptartment

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

NOTEWORTHY
(12 summaries)
MUST READS IF YOU MUST READ

Labor Law §200  

First

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.


Premises Liab   Elevator   Res Ipsa Loquitor  

First

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.


Premises Liab   Prior Written Notice   Create Condition  

Second Deptartment

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


MVA   Pedestrian   Sole Cause  

Second Deptartment

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


MVA   Turning Vehicle   Comparative Fault   There to be Seen  

Second Deptartment

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


Premises Liab   Slip/Trip   Snow/Ice   Storm in Progress   Conclusory  

First

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.


MVA   Pileup   Rear End   Nonnegligent Explanation  

Second Deptartment

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


Labor Law §200   Workers Comp Defense  

First

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.


Premature Motion  

Second Deptartment

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


Premises Liab  

First

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


Estate   Motion to Dismiss   Prejudice  

Second Deptartment

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


Premises Liab   MVA  

First

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.

IF YOU MUST READ
(2 summaries)
MUST READS NOTEWORTHY

Indemnity   Workers Comp Defense   Grave Injury  

First

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.


Serious Injury  

Second Deptartment

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

About Matt McMahon

Civil trials and appeals since 1984
Bookmark the permalink.

Comments are closed