January 2, 2018 | Vol. 87

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MUST READS
(4 summaries)
NOTEWORTHY IF YOU MUST READ

Malicious Prosecution   Directed Verdict   Set Aside Verdict   Materially Deviates   Punitive Damages   Raised For First Time  

Second Deptartment

Directed verdict on malicious prosecution properly denied where jury could rationally find that employer and employee defendants initiated the criminal procedure by affirmatively inducing the plaintiff’s arrest and prosecution with false information that they knew to be false at the time.

While defendants failed to preserve prima facie tort claim dismissal by raising it on their motion for judgment as a matter of law, “questions of law which appear on the face of the record and which could not have been avoided if raised at the proper juncture may be raised for the first time on appeal.” Prima facie tort claims against both defendants were duplicative of malicious prosecution claim and should have been dismissed.

$1,500,000 and $100,000 awards for prima facie tort dismissed; $1,500,000 punitive damage award for malicious prosecution and $1,500,000,000 compensatory award for abuse of process against employer found to materially deviate and reduced to $1,000,000/$25,000 respectively. Compensatory awards of $285,000/$125,000 for malicious prosecution against employer/employee sustained. Coscia v Jamal


Premises Liab   Slip/Trip   Sidewalk   Prior Written Notice   Create Condition  

Second Deptartment

Town’s prior written notice law specifically required prior written notice of sidewalk obstructions for liability to attach precluding plaintiff’s claim where she tripped when her foot got caught in a dismantled barricade left on the sidewalk by the police after a parade. Town’s only responsibility was to drop off and pick up dismantled barricades. Failure to pick up barricade was nonfeasance which did not create the dangerous condition, an exception to prior written notice requirements. Pylarinos v Town of Huntington


MVA   Punitive Damages   Motion to Dismiss   Premature Motion   Reckless  

Second Deptartment

Defendant’s motion to strike punitive damage cause of action should have been granted as New York does not recognize a separate cause of action for punitive damages, but the punitive damage ad damnum was proper under the facts. Driving drunk will not, in and of itself, support a claim for punitive damages absent additional evidence of willful and wanton conduct such as excessive intoxication, habitual DWI, or utter disregard for the safety of others. On a motion to dismiss for failure to state a cause of action, it would be premature to dismiss the punitive damage claim and on summary judgment, defendant failed to eliminate questions of fact. Gershman v Ahmad


Serious Injury   Causation   Preexisting   Degenerative   ROM  

First

Plaintiff raised question of fact on serious injury for shoulder injury with orthopedist’s affirmed report of limited ROM 4 months and 4 years after accident, and opinion that tears in the shoulder were caused by the accident based on physical exams, MRI film and report, and asymptomatic history. Plaintiff’s explanation that he ceased physical therapy because he couldn’t afford it did not require proof.

Plaintiff’s medical records on spine injuries showed degeneration and he did not offer a doctor’s affirmation or report explaining degeneration or rebutting defendants’ radiologist’s opinion that the degeneration was preexisting. Summary judgment granted on spine injuries only. Bux v Pervez

NOTEWORTHY
(10 summaries)
MUST READS IF YOU MUST READ

Labor Law §241   Industrial Code  

First

Defendants’ motion for summary judgment on Labor Law §241(6) to the extent it was based on industrial code §23-1.7(e)(2)(tripping hazard) denied and plaintiff granted summary judgment on this claim where plaintiff slipped to his knee while working on a temporary roof littered with a fine grit which was debris under this industrial code. Lester v JD Carlisle Dev. Corp.


Assumption of Risk   Open/Obvious  

Second Deptartment

15-year-old assumed the risk of 2 silver metal benches secured by concrete in the grass on the field where he was playing a pick-up game of touch football at a summer camp. He had been playing for over an hour and testified that he was aware of the presence of the benches. They were therefore clearly open and obvious and known to plaintiff who assumed the risk by continuing to play. E.B. v Achim


Premises Liab   There to be Seen  

Second Deptartment

Housing Authority which operated apartment building for seniors and disabled persons denied summary judgment where its employee operating a garbage cart in a hallway struck the disabled plaintiff as he was backing out of an elevator with his motorized scooter. Defendant failed to eliminate any of the material facts including whether the employee was negligent in loading the cart too high to see clearly and whether he was looking where he was going. Employee did not see the plaintiff until after he felt the impact. Richardson v County of Nassau


Premises Liab   Create Condition   Notice  

Second Deptartment

Supermarket met its burden of showing that it did not create the condition, a red shopping basket on the floor near the checkout counter, or have notice of it, and plaintiff failed to raise a question of fact in opposition. Arevalo v Associated Supermarkets, Inc.


MVA   Emergency Doctrine  

Second Deptartment

Plaintiffs granted summary judgment where defendant crossed over double yellow line and struck plaintiffs’ vehicle. A driver is not required to anticipate that oncoming traffic will cross over a double yellow line. Defendant driver was aware of a sharp curve where she lost control of the vehicle and that it was raining, eliminating the emergency doctrine. Browne v Logan Bus Co., Inc.


Premises Liab   Create Condition   Notice  

Second Deptartment

Cemetery granted summary judgment where plaintiff stepped on grass near a headstone that appeared level and sank because cemetery did not create the condition or have notice of it. Plaintiff’s father had stepped in the same spot just before plaintiff without incident. Carriero v St. Charles/ Resurrection Cemetery


Premises Liab   Slip/Trip   Open/Obvious  

First

Furniture store granted summary judgment where plaintiff tripped on 8” step onto furniture platform that she and her family had safely climbed earlier that day and on one prior occasion. It was illuminated and open/obvious using normal senses. Faber v Place Furniture, Inc.


Premises Liab   § 7-210   Dangerous Condition   Unknown Cause   Feigned Issue  

Second Deptartment

Plaintiff was unable to identify a specific dangerous condition at his deposition that caused the cart he and a co-employee were pushing into the building to stop abruptly causing him to fall. His affidavit in opposition raised only feigned issues contradicting his deposition to try and defeat summary judgment. Meriweather v Green W. 57th St., LLC


MVA   Question of Fact  

First

Plaintiff denied summary judgment for MVA based on conflicting accounts and police report which raised questions of fact. Palma v Douglas


Uninsured   Stay Arb  

First

Uninsured motorist claim permanently stayed where there was proof that offending driver was covered under a policy and that carrier did not show that the policy was properly terminated or disclaimed. Matter of State Farm Fire & Cas. Co. v Clark

IF YOU MUST READ
(1 summaries)
MUST READS NOTEWORTHY

NYC   Indemnity   Statute of Limitations  

First

NYC employee’s claim for defense and indemnity dismissed as time barred because not brought within 4 months of plaintiff’s knowledge of NYC’s decision not to provide defense or indemnity. Plaintiff’s claim that the language in GML §50-k(7) not impairing rights under insurance did not apply. NYC’s obligation did not make it an insurer. Its obligation was an assurance. Strauss v EAN Holdings, LLC

About Matt McMahon

Civil trials and appeals since 1984. Retired partner McMahon | McCarthy.
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