January 30, 2018 | Vol. 91

MUST READS
(4 summaries)
NOTEWORTHY IF YOU MUST READ

Premises Liab   Slip/Trip   Snow/Ice   Out of Possession   § 7-210  

First

Abutting landowner granted summary judgment for slip/fall on “sidewalk” because it was an out-of-possession landlord and snow/ice is not a significant structural or design defect. Xiang Fu He v Troon Mgt., Inc.

Comment: The First Department appears to have accepted that the accident happened on the “sidewalk” and not on the defendant’s premises, an issue that was in dispute below. The First Department’s rule that an out-of-possession landlord does not owe a duty to maintain the abutting sidewalk under administrative code §7-210 differs from the Second Department’s rule that the duty of an out-of-possession landlord can arise from contract, statute, or ordinance including §7-210 which imposes a non-delegable duty. Stephen v Brooklyn Pub. Lib, 120 A.D.3d 1221 (2nd Dept. 2014); Bonifacio v El Paraiso Food Mkt., Inc., 109 A.D.3d 454 (2nd Dept. 2013). This issue does not appear to have been addressed by the Court of Appeals as of yet and leave was denied by the Court of Appeals in the Bing v 296 Third Ave. Group, L.P., 94 A.D.3d 413 (1st Dept 2012) cited by the First Department in this case.


Med Mal   Motion to Dismiss   Personal Juridiction  

First

New Jersey medical facilities’ motions to dismiss on personal jurisdiction denied where plaintiff made a sufficient showing to retain jurisdiction for purposes of discovery by showing that the facility identified itself as having a principal place of business in Manhattan in a state filing, it marketed its Somerset, NJ location to NY residents based on its proximity, it had an agreement with New York City hospitals for the referral of cancer patients at its NJ facility, it provided the consortium’s doctors with privileges at its NJ facility and paid plaintiff’s NY doctor directly through its referral fee agreement, and her NY doctor thereafter co-managed her care. Robins v Procure Treatment Ctrs., Inc.


Med Mal   General Release  

Second Deptartment

Defendant doctors who performed rhinoplasty on the plaintiff claimed that a general release given by the plaintiff to the medical center regarding claims that its anesthesiologist’s negligence caused her to lose two crowns encompassed plaintiff’s suit against them for disfigurement and sleep disturbances as a result of the surgery. The Court found the two claims to be distinct and that the doctors were not joint tortfeasors for purposes of the release since they were not employed by the medical center. The motion was denied. Hoffmann v Horn


Coverage   SUM  

Second Deptartment

Insurance broker and carrier denied summary judgment in action brought by injured party on claim that they failed to offer and procure adequate SUM coverage for failing to submit sufficient evidence to show that the coverage provided was what plaintiff requested. Giamundo v Cleveland Dunn 2nd

NOTEWORTHY
(15 summaries)
MUST READS IF YOU MUST READ

Prior Written Notice   Create Condition   Dangerous Condition   Expert Aff  

First

Officers injured when tire of their patrol car went into a caved in area raised an issue of fact in opposition to NYC’s showing of entitlement to summary judgment on the fact that they did not have prior written notice of the defect under pothole law by their expert’s opinion that it was a sinkhole and that any patch would “almost immediately” revert to a sinkhole, meeting the create an immediately dangerous condition exception to prior written notice. Bania v City of New York


Premises Liab   Slip/Trip   Snow/Ice   Storm in Progress  

Second Deptartment

Abutting landowner denied summary judgment where it failed to show that the ice plaintiff slipped on was the result of an ongoing storm rather than an accumulation of ice from prior snowfalls. Morales v Davidson Apts., LLC


MVA   Pedestrian   Comparative Fault   Admissibility  

First

Pedestrian granted partial summary judgment on liability on testimony that he was crossing in the crosswalk and had begun to cross with the light in his favor. Defendant did not see the plaintiff until he hit him which would not dispute that the plaintiff started to cross with the light in his favor and could continue to cross if the light changed. Defendant was not sure if the plaintiff was in the crosswalk and location of his body after impact would not be probative. Video was not admissible since it was not authenticated, and it was not clear that it was relevant to the accident. Torres v Werner Bus Lines, Inc.


Labor Law §240   Safety Devices   Sole Cause  

First

Plaintiff granted summary judgment on Labor Law §240(1) where heavy transformer suspended from the ceiling plaintiff was working on shifted downward striking him on the head and he was not given any safety devices adequate for the task. Foreman’s testimony that he instructed workers to prop up corner of transformer with wooden pallets did not raise a question on sole proximate cause because foreman also testified that he wasn’t sure plaintiff was close enough to hear instructions. Gericitano v Brookfield Props. OLP Co. LLC


Labor Law §241   Industrial Code   Comparative Fault   Hearsay  

First

Plaintiff’s testimony that he slipped on water on the stairwell established Labor Law §241(6) liability under industrial code §23-1.7(d)(“slipping hazards”) and defendant failed to raise an issue of fact on how the accident happened relying solely on speculative hearsay testimony. Plaintiff’s testimony that he was looking up and not at the stairs in front of him as he descended the stairs while carrying a ladder raised an issue of comparative fault and the case remanded for trial on comparative fault. Luciano v New York City Hous. Auth.


Labor Law §241   1-2 Family Exception  

Second Deptartment

Homeowner granted summary judgment on Labor Law §241(6) on proof that the work was being performed on a 1-2 family home and that the homeowner did not direct or control the method and manner of work. Hicks v Aibani


Med Mal   Accepted Practice   Causation   Expert Aff   Speculation   Conclusory  

First

Surgeon granted summary judgment on expert’s opinion that laparoscopic ventral hernia repair was performed within accepted practice and not causally related to plaintiff’s subsequent ileus, bowel perforation and infection. There was no evidence to support plaintiff’s expert’s opinion that there was inadequate visualization of the surgical field or a strangulated hernia at the time of surgery, and the records showed the ileus symptoms did not present until after plaintiff left the defendant’s care. Zamboli v Dilos-Rogu


Premises Liab   Slip/Trip   Stairs   Duty   Create Condition  

First

Defendants did not owe a duty to continuously light stairway where plaintiff slipped and fell during an ongoing blackout from hurricane Sandy because they did not create a dangerous condition by encouraging tenants to use the stairway and plaintiff did use the stairs in reliance on defendants’ efforts to alleviate the condition. Palionis v Jakobson Props., LLC


Premises Liab   Out of Possession   Notice  

Second Deptartment

Out-of-possession landlord denied summary judgment where lease provided that it was required to repair any defective plumbing or heating following notice by the tenant where it failed to eliminate questions of fact as to whether it had notice of the defective water heater that leaked water onto the bathroom floor at plaintiff’s job causing her to fall. Irizarry v Felice Realty Corp.


MVA   Causation   Speculation  

First

Defendants, tow truck owner and driver, granted summary judgment where negligence, if any, only provided the condition for the accident when the car it was hitching was hit in the rear by a drunk driver. Plaintiff’s claim that accident would not have happened if the tow truck driver put out more flares than the police, or repositioned the flares, was speculative. McLean v Ripoli


MVA   Rear End   Comparative Fault   Nonnegligent Explanation   Premature Motion  

Second Deptartment

Plaintiff bus driver granted summary judgment where bus was rear ended while it was stopped by defendants’ vehicle showing that defendants were at fault and plaintiff was not comparatively at fault. Motion was not premature even though discovery was not complete as defendants failed to show what evidence might result from discovery to oppose the motion. Figueroa v MTLR Corp.


MVA   Rear End   Comparative Fault   Nonnegligent Explanation  

Second Deptartment

Plaintiffs, driver and passenger in car stopped in traffic that was rear ended by defendants’ vehicle, granted summary judgment as rear end of a stopped vehicle shows both the defendants’ negligence and lack of comparative fault. Defendants failed to raise a nonnegligent explanation such as a sudden or unavoidable situation. Lewis v City of New York


Premises Liab   Notice  

First

Plaintiff’s testimony that the water damage to the table he was sitting on was neither visible nor apparent prior to it collapsing proved that the defendant did not have constructive notice of the condition. Grossman v City of New York


Personal Juridiction   CPLR §306-b   Motion to Dismiss   Prejudice  

Second Deptartment

Defendant’s motion to dismiss for lack of personal jurisdiction providently denied even though Summons/Complaint not served on his actual residence or place of business, and plaintiff’s cross motion to extend the 120 days to serve the Summons and Complaint granted where the defendant was aware of the lawsuit within the 120 days and there was no prejudice to the defendant from the delay. Chan v Zoubarev


Note of Issue   Vacate Default  

Second Deptartment

Plaintiff’s Note of Issue was vacated and restored to pre-Note of Issue status by the lower court but subsequently marked “disposed.” The appellate division reversed the lower court’s subsequent denial of plaintiff’s motion to vacate the “disposed” marking and restore the case to the active calendar as this was an unpermitted “purge” or “mark off” of a pre-Note of Issue case. Bilkho v Roosevelt Sq., LLC

Comment: The case was not marked disposed as abandoned under CPLR rule 3404, nor was there a 90-day notice. Clerks inadvertently mark cases as disposed on occasion and this can often be corrected by contacting the clerk’s office.

IF YOU MUST READ
(2 summaries)
MUST READS NOTEWORTHY

Premises Liab   Construction Liab.   Sidewalk   Notice   Create Condition  

Second Deptartment

Owner and management company of building where plaintiff stepped on a 2” nail protruding from a piece of plywood fencing lying on the abutting sidewalk, and contractor working on the area at the time, granted summary judgment on proof that they neither created the condition nor had notice of it and plaintiff failed to raise a question of fact in opposition. The court does not give the details of the proofs. Steinberg v Astoria Warehouse Realty, LLC


Coverage  

First

Bus company’s motion to declare carrier required to provide defense and indemnity and reimbursement for costs already expended granted where plaintiff tripped and fell on the curb while looking for her suitcase which had been unloaded by the driver, coming under the policy definition of injured from the “ownership, maintenance or use of a covered auto.” Peter Pan Bus Lines, Inc. v Hanover Ins. Co.

About Matt McMahon

Civil trials and appeals since 1984
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