January 16, 2018 | Vol. 89

MUST READS
(5 summaries)
NOTEWORTHY IF YOU MUST READ

Premises Liab   Slip/Trip   Sidewalk   Settlement   Lien   § 7-210   Create Condition  

Second Deptartment

NYC’s motion to enforce a $35,0000 stipulation of settlement signed by the attorneys, which plaintiff’s attorney opposed on the ground that he failed to tell the client that it would be reduced by a worker compensation lien, granted as there was no proof that the agreement was entered on fraud, collusion, mistake, or accident or that the plaintiff’s attorney did not have authority. Adjoining landowner granted summary judgment on proof that it was a 1 family house used for residential purposes not subject to administrative code §7-210. Plumbing company granted summary judgment on proof that it did not create the condition. DeBlasi v City of New York


Slip/Trip   Wet Floor   Circumstantial Evidence   Unknown Cause  

Second Deptartment

Nursing home’s motion for summary judgment on ground that plaintiff could not identify the cause of his fall denied where plaintiff testified that a nurse washed his roommate every morning, he previously saw water spill on the floor when the nurse did that, he complained about it at least 10 times, that he heard someone caring for his roommate and walking back and forth from the sink to his roommate that morning, and that the roommate’s shirt was wet after the accident from which a jury could reasonably infer that the nurse spilling water on the floor while washing the roommate proximately caused the plaintiff to fall. Simion v Franklin Ctr. for Rehabilitation & Nursing, Inc.

Comment: This fact pattern could be the pattern jury instruction on circumstantial evidence.


Premises Liab   Stairs   Control   Subsequent Repairs  

Second Deptartment

Building’s third-party complaint against cleaning contractor properly dismissed where building failed to comply with numerous discovery orders to identify who was responsible for maintenance of the stairway, including subsequent repairs, under CPLR 1010 to avoid undue delay of the resolution of the matter. Discovery regarding subsequent repair is proper when there is an issue of maintenance or control. Soto v CBS Corp.


Legal Mal   Notice of Claim   Causation  

First

Law firm that did not timely file Notice of Claim and was substituted before statute of limitations granted summary judgment because it could not be found to be the cause of plaintiff’s damages where statute of limitations had not run by the time it was substituted. Liporace v Neimark & Neimark, LLP


Med Mal   Attorney Fees  

Second Deptartment

Suspended attorney who was later disbarred was entitled to recover attorney fee and disbursements for work done in medical malpractice case prior to his suspension based on quantum meruit. Failure to file retainer statement did not preclude recovery on quantum meruit since attorney did not pursue breach of contract theory, nor did failure to have a fee sharing agreement. Matter of Grossbarth v Dankner, Milstein & Ruffo, P.C.

NOTEWORTHY
(18 summaries)
MUST READS IF YOU MUST READ

Labor Law §240   Expert Aff   Speculation  

First

Plaintiff who fell when a sidewalk shed he stood on while delivering sheetrock to a construction project entitled to summary judgment where no facts contradicted his version of how the accident occurred. Defendant’s expert’s opinion was speculative as it was not based on an inspection of the shed at the time of the accident. Serrano v TED Gen. Contr.


Negligent Supervision   Feigned Issue  

Second Deptartment

School granted summary judgment where 4-year-old tripped on chair while bringing her tray to a trash bin which the court found was an age appropriate activity that the children had done every day. School is only required to provide “adequate supervision,” not constant supervision. Mother’s affidavit that contradicted both her testimony and her daughter’s testimony did not raise an issue of fact. L.R. v City of New York


Labor Law §241   Labor Law §240   Industrial Code   Sole Cause  

First

Where plaintiff fell from a tractor trailer while attaching lifting lugs on a wind turbine, Labor Law §241(6) claims dismissed because industrial code provisions did not apply. The chain that caught his foot was not a slippery condition or foreign substance (§23-1.7(d)), a tractor trailer is not a passageway (§23-1.7(e)(1)), and metal bars welded to the trailer body for access was not a single ladder (§23-1.21(c)). Work was a covered activity under Labor Law §240(1) but lower court should not have granted plaintiff summary judgment sua sponte where there was question of whether plaintiff was sole proximate cause of his injury. Cross v Noble Ellenburg Windpark, LLC


Premises Liab   Slip/Trip   Sidewalk  

First

Parking garage denied summary judgment for trip and fall on defect on portion of sidewalk used for access to/from garage where questions existed whether garage made special use of the sidewalk and whether its special use created defect. The duty to maintain was not dependent on an inspection. Boneventura v 60 W. 57 Realty LLC


Premises Liab   Stairs   Create Condition   Notice   Last Inspection  

Second Deptartment

Mall denied summary judgment where worker repairing mechanical system fell when a stair he was descending cracked even though mall showed that it did not create the condition or have actual notice of it because it failed to show that it did not have constructive notice by showing the last time the area was inspected. Hanney v White Plains Galleria, LP


Premises Liab   Slip/Trip   Sidewalk   Create Condition   Notice   Last Inspection  

Second Deptartment

Adjoining landowner granted summary judgment where plaintiff slipped on wet cardboard during rain on proof of its garbage disposal practices, testimony regarding daily morning cleaning of the sidewalk, and testimony of several witnesses that the cardboard was not on sidewalk shortly before the accident. Mandarano v PND, LLC


MVA   Comparative Fault   Sole Cause   Admissibility   Hearsay   Feigned Issue  

First

Plaintiffs granted summary judgment on defendant’s statements in police report and plaintiff’s affidavit that defendant went through a red light and that plaintiff driver was going straight at 25 mph and could not see defendant’s van because of the height of his motor scooter, train trestle, and a chain link fence establishing that defendant failed to yield the right of way and was the sole cause of the accident. Defendant’s statements to the police were admissions and later conflicting statements presented only feigned issues. Colon v Vals Ocean Pac. Sea Food, Inc.


MVA   Emergency Doctrine  

First

Defendant driver who entered intersection with right of way granted summary judgment where she and plaintiff testified that other defendant driver entered intersection without stopping at stop sign. Evasive moves she took in the less than 3 seconds before impact were not negligence given the emergency situation. Gonzalez v Bishop


1983 Action   Motion to Dismiss  

Second Deptartment

1983 cause of action dismissed for failure to allege that actions of off duty police officer which led to his gun discharging and killing the plaintiff’s decedent where done under color of state law and otherwise failing to allege that actions resulted from a policy or custom of the police department sanctioning such reckless behavior. The officer had been convicted of second degree manslaughter. Everett v Eastchester Police Dept.


Premises Liab  

First

Empire City Subway denied summary judgment on claim that plaintiff’s description of defect in crosswalk that caused her to fall was at least 3’ from the curb where she also testified that she was not good with measurements and twice noted that the defect was about 3 quarters of the way across the intersection which would place it in the location of defendant’s repairs. Prunella v Empire City Subway Co.


Dangerous Condition   Create Condition   Notice   Causation  

First

Defendant granted summary judgment where truck driver was injured while manually unloading heavy boxes that broke free from shrink wrap, which he was not required to do, on driver’s testimony that he and defendant’s employees inspected load before it left the warehouse, driver inspected it again after first delivery and no boxes were on the floor. Defendant showed it did not create the condition or have notice of it. Lynch v C & S Wholesale Grocers, Inc.


Dangerous Condition   Question of Fact  

First

Plaintiff met his initial burden on proof that defendant’s repairman failed to ground the control box when replacing a lock receptacle just before plaintiff received a shock, but defendant raised a triable issue by the repairman’s testimony that he never did any work on the control box and its expert’s opinion that the defect was caused by the original misconfiguration of the control box. Megan v New York Stock Exch. Inc.


Premises Liab   Sidewalk   Prior Written Notice   Create Condition   Notice  

Second Deptartment

City of Long Beach and condominium adjoining sidewalk that city had repaired and left covered with temporary patch and cordoned off with barrels and yellow tape over a month before plaintiff fell while riding her bicycle on the sidewalk denied summary judgment where the barrels and yellow tape were not present. Condominium failed to show that it did not breach ordinance requiring adjoining landowner to maintain and repair sidewalk or that it did not have constructive notice of the condition. City proved that it did not have prior written notice as required by its Charter but failed to eliminate the question of whether its repair immediately created a dangerous condition, an exception to the prior written notice requirement. Trela v City of Long Beach


MVA   Pedestrian   Turning Vehicle   There to be Seen   Comparative Fault   Expert Aff   Speculation  

Second Deptartment

Pedestrian who testified that she waited “a bit” after light turned green, looked both ways 3-4 times before crossing and while crossing street, and did not see defendants’ vehicle before it hit her after she took 10 steps and submitted driver’s testimony that he did not see plaintiff or realize he hit her until he felt the contact, established that the driver failed to yield the right of way (he pleaded guilty to the summons for failing to yield the right of way) and that pedestrian was free from comparative fault. Defendants’ expert’s opinion that plaintiff did not wait for the light or look both ways was speculative. Yuemei Wu v Automotive Rentals, Inc.


MVA   Rear End   Nonnegligent Explanation  

First

Plaintiff denied summary judgment where defendant’s affidavit provided a nonnegligent explanation for the rear end collision stating that he saw plaintiff’s car stopped but then reverse striking defendant’s vehicle. Medina-Ortiz v Seda


Venue   Untimely  

First

Defendant’s motion to change venue from Bronx to New York County granted even though demand for venue change and motion were untimely because plaintiff improperly indicated that plaintiff resided in the Bronx on summons and defendant moved as soon as it became aware of the error. Gordillo v Champ Hill LLC


Duty  

First

One defendant granted summary judgment on proof that it did not owe plaintiff any duty in that it did not own the property where the attack took place and that another company was responsible for all building security. Guzman v Promesa Found., Inc.


Legal Mal   Collateral Estoppel  

First

Plaintiff’s claims for legal malpractice are barred by collateral estoppel where defendant’s co-counsel was granted summary judgment involving the same claims in New Mexico and plaintiff did not dispute that it vigorously opposed that motion. Guidance Endodontics, LLC v Olshan Grundman, Frome Rosensweig & Wolosky, LLP

IF YOU MUST READ
(2 summaries)
MUST READS NOTEWORTHY

Uninsured   Stay Arb  

Second Deptartment

Carrier denied stay of uninsured motorist arbitration where the only evidence it submitted at hearing was its attorney’s claims that insured failed to timely report accident to the police and that there was no contact between the vehicles. Carrier had initial burden of proof. Matter of Government Employees Ins. Co. v Tucci


Defamation  

First

Defendant was entitled to the absolute immunity for fair and true reporting of judicial proceeding (Civil Rights Law §74) for statement that investment advisor “just took our money.” Highland Capital Mgt., L.P. v Stern

About Matt McMahon

Civil trials and appeals since 1984
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