January 9, 2018 | Vol. 88

MUST READS
(6 summaries)
NOTEWORTHY IF YOU MUST READ

Privilege  

First

While not a tort action, the First Department affirmed the lower court’s grant of an order compelling defendants to produce documents regarding their waiver of attorney/client privilege. By disclosing counsel’s advice in emails to a third-party, defendants waived the attorney/client privilege including privilege to other documents pertaining to that advice. Siras Partners LLC v Activity Kuafu Hudson Yards LLC


Late Notice of Claim   Statute of Limitations  

First

Lower court did not have authority to extend time to file Notice of Claim beyond the statute of limitations despite court’s prior grant of petition to allow plaintiff to file a late Notice of Claim within the statute of limitations which the plaintiff did not take advantage of. Zayed v New York City Dept. of Design & Constr.


Premises Liab   Elevator   Notice   3rd Party Contractor   Res Ipsa Loquitor  

First

Building denied summary judgment where elevator maintenance logs showed prior incidents of misleveling which were repaired, raising a question of fact on the owner’s actual knowledge of recurring problem. Elevator maintenance company’s cross motion for summary judgment denied because of questions of fact on whether it maintained the elevator in a reasonably safe condition where accident happened 1 week after elevator was serviced for misleveling. Regular inspection and repair did not obviate res ipsa loquitor where misleveling was caused by instrumentality within elevator company’s exclusive control. Dzidowska v Related Cos., LP


Amend Complaint   Statute of Limitations  

First

Plaintiff’s filing of a motion to amend the Complaint with the proposed Amended Complaint attached 13 days before the statute of limitations tolled the statute of limitations until the motion was decided and was timely when filed within 13 days of entry of the order granting the motion. Service of the order with Notice of Entry with the attached Amended Complaint was service of the Amended Complaint on the additional defendant who did not have to be served with the motion to amend the Complaint before it was decided. Abreu v Casey


Premises Liab   Duty   Building Security   3rd Party Contractor   Spoliation  

First

Shelter owner/operator, security company, and plaintiff denied summary judgment where infant-plaintiff was shot and paralyzed during altercation between his father who was dropping him off and assailant outside of shelter gate as security guards watched. Questions of fact existed whether guards had discretion to remove child from harm’s way while waiting for his mother to come to gate and whether father asked them to let the child in to avoid the altercation as part of their duty to provide minimal security. Duty applied even if child was on street outside of gate. Plaintiff denied spoliation sanction for defendant’s failure to produce surveillance video but granted adverse inference for failure to produce security log or maintain a security log as required in its contract. CB v Howard Sec.


Legal Mal   Statute of Limitations  

First

Time during which plaintiff could not bring a legal malpractice claim against firm for failing to Answer because it had no damages when lower court denied motion for default judgment did not count towards statute of limitations, making action timely commenced after denial of default was reversed. Stipulations to extend time to Answer or move (but not appear), signed by firm as attorneys for party established attorney/client relationship. Billiard Balls Mgt., LLC v Mintzer Sarowitz Zeris Ledva & Meyers, LLP

NOTEWORTHY
(12 summaries)
MUST READS IF YOU MUST READ

Labor Law §240   Falling Object   Expert Aff  

First

Cinderblocks above an opening being cut for HVAC access which fell on plaintiff’s knee were “falling objects” that were required to be secured under Labor Law §240(1). Defendant’s expert’s opinion that safety devices “were neither necessary or customary,” was insufficient to defeat summary judgment for plaintiff. Gonzalez v Paramount Group, Inc.


Design Defect   Bus   Discovery  

First

Plaintiff’s demand for 15 years of records was overly burdensome and reduced to 5 years for relevant parts of the bus. Defendants could be present during plaintiff’s inspection of bus as long as they did not interfere. Defendants were not required to create a document showing no changes to the bus, but plaintiff was entitled to discovery of any changes. Curran v New York City Tr. Auth.


Med Mal   Causation   Public Health §2801-d  

First

Detox program failed to meet its burden for summary judgment on negligence and wrongful death where plaintiff’s decedent left facility and was later found dead because defendant only pointed to gaps in plaintiff’s ability to prove what happened to her decedent after leaving the facility and what caused him to die and failed to affirmatively prove a lack of causation. Pub. Health Law §2801-d claim dismissed as facility was not a nursing home. Hairston v Liberty Behavioral Mgt. Corp.


Premises Liab   Slip/Trip   Snow/Ice   Notice   Last Inspection   Unknown Cause  

First

NYCHA made out prima facie entitlement for summary judgment by supervisor’s testimony that sidewalk was clear of snow/ice on the morning of the accident but plaintiff raised question of fact by his testimony that he saw ice on parts of the sidewalk before his fall and saw the dirty ice he fell on after he fell which, along with his expert’s data and opinion that the snow/ice from 2 days prior would have remained on untreated areas, from which a jury could find that it existed long enough for NYCHA to discover and correct the condition. Jones v New York City Hous. Auth.


Dental Mal   Motion to Dismiss   Statute of Limitations  

First

Treatment prior to 2 ½ years before action was commenced consisted of isolated and discrete dental procedures not related to the jaw cyst which was the subject of the action and therefore continuous treatment did not apply. Lewis v Treitel


Bus   Dangerous Condition  

First

Common carrier denied summary judgment where plaintiff stepped in hole after alighting from bus even though 15-20 passengers safely alighted before her on her testimony, confirmed by the bus driver, that the hole was less than 1 step from where she disembarked, and driver had said “they’re supposed to fix that hole.” Bruno v Port Auth. of N.Y. & N.J.


Serious Injury   Preexisting   Degenerative   Expert Aff   Conclusory  

First

Plaintiff raised question in fact in opposition to defendants’ motion on serious injury regarding her spinal injuries by relying on MRI reports showing herniated and bulging discs submitted by defendants and affirmed report of her treating orthopedist showing limitations shortly after accident and recently. Gap in treatment was explained by orthopedist’s opinion that further therapy would be palliative only. Plaintiff’s orthopedist failed to directly address defendants’ expert’s opinions that shoulder injury was preexisting and degenerative or explain why symptoms were related to the accident and not the preexisting condition, making the opinion conclusory. Wenegieme v Harriott


Med Mal   Motion to Dismiss   Personal Juridiction   Service  

First

Service on doctors and nurses employed by hospital was proper when served on risk management who accepted service for the hospital, even though it was not at the address where the doctors/nurses worked, and mailed to the defendants. Rahhal v Downing


MVA   Rear End   Question of Fact   Feigned Issue  

First

Plaintiff denied summary judgment where defendant’s affidavit averred that plaintiff was not the driver of the truck he struck in the rear based on a review of photographs of plaintiff. Defendant’s affidavit was not impermissibly self-serving in that it did not contradict any prior testimony. Santiago v Pioneer Transp. Corp.


MVA   Causation   There to be Seen  

First

Driver who struck pedestrian denied summary judgment where there were conflicting versions of how the accident occurred, pedestrian claiming to have stepped out from behind the bus, driver testifying that pedestrian stepped out from the front of the bus which was only 2.5 car lengths from a red light, raising questions of whether driver had time to stop and whether his 25-27 mph speed was excessive. Rawls v Simon


Default Judgment   Compel Acceptance   Service   Prejudice  

First

Plaintiff’s motion for default judgment denied and cross motion to compel acceptance of Answer granted where plaintiff did not support motion with a complaint or affidavit, service of summons and complaint was at the wrong address, and there was no showing of prejudice in the 1-month delay. Nedeltcheva v MTE Transp. Corp.


Defamation  

First

The alleged defamatory statements made by defendant lawyers in course of action were entitled to the absolute judicial privilege where the prior case was not a sham action brought solely to defame. Pezhman v Chanel

IF YOU MUST READ
(1 summaries)
MUST READS NOTEWORTHY

MVA  

First

Defendant’s testimony that plaintiff opened his car door just before defendant approached, making it impossible to avoid hitting plaintiff’s car door, entitled defendant to summary judgment under VTL §1214. Perez v Steckler

About Matt McMahon

Civil trials and appeals since 1984
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