December 5, 2017 | Vol. 83

MUST READS
(4 summaries)
NOTEWORTHY IF YOU MUST READ

MVA   Vicarious Liab  

First

Motorcycle owner rebutted presumption of permissive use with his affidavit and documentary proof, including records of calls to 911, 311 and his carrier, that he had reported the motorcycle stolen hours before the accident. Lopez v Achdary


Dental Mal   Accepted Practice   Judgment Rule  

First

Dentist who recommended conservative treatment when consulted by plaintiff who had been advised to have multiple implants granted summary judgment where plaintiff’s expert opined that surgical treatment was the best treatment available but conservative treatment was one of several acceptable treatments. Hartt v Kramer


Premises Liab   Vacate Default   Renew   Reasonable Excuse  

Second Deptartment

Lower court’s order granting defendant’s cross-motion to renew and on renewal reversing its prior default judgment reversed where defendant submitted only an attorney affirmation on the original motion and both an attorney affirmation and affidavit of the building superintendent on the renewal motion without putting forth any reasonable excuse for not including the superintendent’s affidavit on the original motion. The lower court does not have the discretion to grant renewal without proof of reasonable justification for failing to submit information that the party was aware of at the time of the original motion. Kio Seob Kim v Malwon, LLC


Labor Law §200   Labor Law §241   Dangerous Condition   Create Condition   Notice   Industrial Code   Speculation   Discovery   IME/DME   Prejudice  

First

Building owner granted summary judgment on Labor Law §200 where worker assigned to clean and maintain worksite was injured when he slipped on a sprinkler pipe lying on the floor on proof that it did not create the condition or have actual or constructive notice. Even If building owner was alter ego of it’s tenant (Google), claim that Google employees might have seen the condition on videos was speculative as none of its employees were on the site on the day.

Summary judgment denied on Labor Law §241(6) for questions of fact if area where plaintiff fell was a passageway under industrial code §§ 23-1.7(e)(1) (tripping/passageway) and 23-2.1(a)(1) (safe storage of materials) based on plaintiff’s testimony that it was an 8’ corridor and defendant’s superintendent agreed that it was a corridor. Argument that plaintiff can’t recover under Labor Law §241(6) because he was hired to clean the condition which caused his fall rejected because there was a question of fact as to whether he was cleaning the floor at the time.

Defendant’s motion for 3 additional post Note of Issue ime/dme’s regarding claim for need for shoulder replacement denied since it was pleaded in the original BP. Prevost v One City Block LLC

NOTEWORTHY
(16 summaries)
MUST READS IF YOU MUST READ

Legal Mal   Personal Juridiction   Service   Statute of Limitations   Amend Complaint  

Second Deptartment

The lower court properly granted leave to amend the complaint to add 2 additional defendants after statute of limitation upon proof of the applicability of the relation back doctrine. Plaintiff’s service of the amended complaint within the 20 days allotted by the lower court was defective as to the individual lawyers because the affidavits of service did not include proof of mailing along with serving a person of suitable age and discretion. It is irrelevant whether the summons and complaint was actually received by the individual attorneys. Law firm was served by service on the Secretary of State which presumes proper service. Josephs v AACT Fast Collections Servs., Inc.


Med Mal   Personal Juridiction   Service  

Second Deptartment

Referee’s report finding that plaintiff failed to prove that service on individual doctor was at his actual place of business confirmed and case dismissed on personal jurisdiction grounds against individual doctor. Chambliss v University Group Med. Assoc.


Med Mal   Accepted Practice   Causation   Expert Aff  

First

Plaintiff’s experts raised triable issues of fact in opposition to the defendant’s prima facie showing that doctor did not depart from accepted practice, by opining that the plaintiff’s decedent exhibited symptoms of episodic vision problems, dizziness, and imbalance, and abnormal findings on a videonystagmography test, consistent with the aneurysm which eventually burst causing plaintiff’s decedent’s death, and that the defendant should have referred plaintiff’s decedent for further neurological consult and testing which would have revealed the aneurysm in time to prevent the death. Bylander v Jahn


Premises Liab   Out of Possession   Duty   Dram Shop  

First

Out of position owner owed no duty to pedestrian who was shot in the foot outside of bar even if it retained the right to enter the premises for repairs, as it had no responsibility to control the bar under the lease or under a stipulation of settlement of a prior nuisance action with NYC which had terminated prior to the incident. There was no proof that the landlord served alcohol to the assailant or that the assailant was a minor were visibly intoxicated when served alcohol for a dram shop claim. Ballo v AIMCO 2252-2258 ACP, LLC


Premises Liab   Amend BP   Prejudice  

First

Building denied summary judgment where plaintiff’s decedent was overcome by smoke and died where
no smoke detector was found after the fire and no one heard an alarm, contradicting building superintendent’s testimony that he installed a smoke detector. The lower court providently allowed the plaintiff to amend the BP after the Note of Issue to add additional violations. Mere delay does not show prejudice or surprise. Schiff v ABI One LLC


Premises Liab   Bicycle  

First

Restaurant denied summary judgment by not including affidavits from all of its bicycle delivery personnel, including those who were not deposed, or someone with knowledge of whether the delivery person who struck the plaintiff worked for them. Kurcias v 1043 Rest. Corp.


Premises Liab   Slip/Trip   Snow/Ice   Last Inspection   Create Condition   Notice  

Second Deptartment

Building owner and operator denied summary judgment for failing to make a prima facie showing where meteorological reports it submitted showed that there was 6.7 inches of snow by 5 PM the night before the plaintiff fell and that no additional snow fell before the plaintiffs fall, plaintiff’s testimony that she slipped on ice on a shovel path on the sidewalk, that the path was slippery the night before when she came home, and that she saw no evidence of salt, and the superintendent’s testimony general cleaning principles, that he didn’t recall whether he shuffled that day. Contradictory statements in the superintendent’s affidavit that he personally inspected the area before the accident could not be resolved by summary judgment in defendant failed to eliminate all triable issues of fact. Michalska v Coney Is. Site 1824 Houses, Inc.


Assault   Negligent Hiring   Respondeat Superior   Vicious Propensity  

First

Restaurant granted summary judgment where it’s employee followed a customer outside of the restaurant and punched him in the face as he was acting outside of the scope of his employment and there was no evidence that the restaurant knew or should have known of the employee’s propensity for violence. Villongco v Tompkins Sq. Bagels


Premises Liab   Slip/Trip   Snow/Ice   Storm in Progress  

Second Deptartment

Building owner denied summary judgment where plaintiff’s testimony, submitted on motion by defendant, contradicted climatological reports regarding when precipitation was falling. Defendant failed to meet its initial burden by eliminating all triable issues regarding storm and progress. Pecoraro v Tribuzio


Premises Liab   Unknown Cause   De Minimus  

Second Deptartment

Building owner denied summary judgment for failing to show that plaintiff was unaware of what caused her to trip on sidewalk/curb defect, that defect was trivial or that the surrounding circumstances did not increase the risks it posed. Flanagan v Town of Huntington


Discovery   Privilege   HIPAA  

First

Lower court providently exercised its discretion in denying defendant’s request for 20 years of Social Security disability records, including records of diabetes and high blood pressure, in action where plaintiff claimed orthopedic injuries to her knees, back, neck, and shoulders. By starting the action plaintiff only put the orthopedic injuries in issue not her entire medical history. Spencer v Willard J. Price Assoc., LLC


Legal Mal   Motion to Dismiss  

Second Deptartment

Law firm’s motion to dismiss based on documentary evidence denied where the allegations in the complaint were sufficient to state a cause of action for legal malpractice and the proffered documentary evidence did not conclusively establish that the law firm took no part in the defense of the plaintiffs in their federal actions which resulted in a judgment against them. Hershco v Gordon & Gordon

Comment: In a related decision the law firm that represented the plaintiffs as defendants in the federal trial were granted summary judgment on statute of limitations which for legal malpractice is 3 years regardless of the cause of action in the underlying case and plaintiffs were unable to show continuous representation after the trial. Hershco v Gordon & Gordon.


Premises Liab   Dangerous Condition   Open/Obvious   Inherently Dangerous  

Second Deptartment

Building owner failed to meet its initial burden for summary judgment by showing that the height differential of the first step and its lighting were opening obvious and not inherently dangerous. Santopetro v Parish


MVA   Turning Vehicle   Sole Cause  

Second Deptartment

Tractor-trailer and driver granted summary judgment on plaintiff’s testimony that she thought she had room to turn from the left lane to the right lane in front of the tractor-trailer in order to enter a gas station because the tractor-trailer was moving slowly where she accelerated and switched lanes after which the tractor-trailer bumped her rear passenger side, she lost control of the car going into the gas station and hitting a gas pump and tractor-trailer driver’s testimony that he saw the car changing lanes 10′-15′ in front of him, applied his brakes hard but could not stop before entering the intersection, but did not hit the plaintiffs car. Defendant’s submissions showed that plaintiff violated VTL §1128 (a) (safely changing lanes) and was the sole cause of the accident. Pipinias v Ferreira


1983 Action   False Arrest   Malicious Prosecution   Battery   Probable Cause   Collateral Estoppel  

First

Claims for illegal search dismissed as plaintiff, who claimed that he had found a gun, allowed the search and subsequent suppression did not change the result since collateral estoppel did not apply. Malicious prosecution claim dismissed because plaintiff failed to show lack of probable cause or malice. Excessive force, assault, and battery claims that handcuffs were too tight dismissed where there was no proof of injury. Davidson v City of New York


Discovery   NYC  

First

Compliance conference order requiring NYC to turn over unredacted copies of DA’s files reversed as the DA’s office is not part of NYC and was not a party to the action. Carroll v City of New York

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MUST READS NOTEWORTHY

About Matt McMahon

Civil trials and appeals since 1984
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