July 10, 2018 | Vol. 114

MUST READS
(4 summaries)
NOTEWORTHY IF YOU MUST READ

Labor Law §240   Labor Law §241   Labor Law §200   Agent   Control  

Second Deptartment

Owner of property with single-family house who contracted with defendant subcontractor as president of real estate corporation to prepare properly for room addition slipped on oil that leaked from backhoe left on the property by the defendant subcontractor. Defendant’s motion for summary judgment on Labor Law §§240(1) & 241(6) claiming that plaintiff was not “employed” at the worksite and that defendant was not the general contractor, owner, or owner’s agent denied. The plaintiff acting as president of owner/general contractor inspecting the construction progress was employed for purposes of Labor Law §§240(1) & 241(6) especially where he did not have authority to control the work. A subcontractor can be liable under Labor Law where it has authority to control the work and was delegated the duty to enforce safety standards. Eliassian v G.F. Constr., Inc.


Med Mal   Accepted Practice   Causation   Expert Aff  

Second Deptartment

Internist granted summary judgment based on his expert’s opinion that he properly treated plaintiff’s decedent’s internal medical conditions and that his failure to diagnose or treat her MS was not a departure from accepted practice or a cause of her injuries. A doctor’s duty may be limited to the medical conditions the doctor undertakes and the patient relies on the doctor to treat. Likewise, physiatrist granted summary judgment based on expert’s opinion that his treatment did not depart from accepted practice and was in no way a cause of the decedent’s injuries. Plaintiff failed to raise an issue in opposition. Dixon v Chang


Med Mal   Vacate Default   Reasonable Excuse   Meritorious Defense   Personal Juridiction  

Second Deptartment

Motion to vacate default by nursing home that did not Answer denied where it failed to move to vacate for more than a year after service of Notice of Entry of the order. Claim that delay in answering was from mishandling of papers within the nursing home did not provide an adequate excuse and there was no need to address meritorious defense. The original court had ordered a hearing and determined that service was proper. Hairston v Marcus Garvey Residential Rehab Pavilion, Inc.


Vacate Default   Preclusion   CPLR § 3126   Appealable Order  

Second Deptartment

Plaintiff’s motion to vacate or modify order dismissing action pursuant to CPLR 3126 for failure to comply with conditional order of preclusion denied. The propriety of the order of preclusion was not before the appellate court since no appeal was taken from that order. Plaintiff’s claim that default should have been modified or vacated due to substantial compliance was belied by record which showed that he failed to provide a supplemental BP and several authorizations. Matuszewski v City of New York

NOTEWORTHY
(12 summaries)
MUST READS IF YOU MUST READ

Med Mal   Duty   Vicarious Liab   Discovery  

Second Deptartment

Senior ophthalmologist member of same LLC group as ophthalmologist who performed 2 surgeries on plaintiff granted summary judgment on proof that he never treated or assisted in the treatment of the plaintiff nor supervised the defendant who performed the surgeries. Absent a specific relationship, such as being a partner, there is no vicarious liability without being involved in the diagnosis or treatment. McAlwee v Westchester Health Assoc., PLLC

Comment: Plaintiff’s motion to compel production of employment agreement of doctor who performed surgeries denied where defendant showed that there was no treatment by other members of the group and doctor performing surgery was board-certified ophthalmologist not required to be supervised, and not being supervised by any other doctor within the group. McAlwee v Westchester Health Assoc., PLLC


Med Mal   Accepted Practice   Informed Consent   Directed Verdict  

First

Doctor who implanted artificial urinary sphincter that malfunctioned and implanted a replacement to stop urinary leakage after prostate surgery entitled to directed verdict where plaintiff’s expert did not testify to a departure from a specific standard of care and the complicated surgical procedure was not within the knowledge of a lay jury. Plaintiff admitted that he was told of the risks of the procedure requiring dismissal of the lack of informed consent claim. Tropeano v Sandhu


Premises Liab   Duty   Notice  

First

Tenant’s motion for summary judgment where subtenant’s employee was electrocuted while resetting the power strip to her computer denied where sublease required tenant to maintain the electrical system and keep the premises in a reasonably safe condition and it failed to rebut proof that circuit breakers had been blowing out frequently, plaintiff’s computer lost power often before the incident, and tenant’s employee instructed plaintiff to press the reset button on the power strip while they checked the circuit breaker. Tenant had notice of the constant electrical problems. DiPasquale v Boys & Girls Harbor Inc.


Premises Liab   Assumption of Risk   Notice  

Second Deptartment

Town failed to eliminate all questions of fact on assumption of risk for skater being knocked downice by unruly skater. Skater assumes ordinary risks of skating but does not assume reckless conduct and town failed to eliminate question of whether unruly skater presented an unreasonably increased risk, whether town knew or should have known of the risk, and whether town properly supervised skaters given the risk. Laurent v Town of Oyster Bay


Labor Law §240   Labor Law §241   Labor Law §200   Control  

First

Labor Law §§240(1), 241(6), 200 and negligence claims for worker who fell from ladder while renovating apartment in condo dismissed since architectural firm, condominium board, and management company had no control over the means and manner of the plaintiff’s work. Naupari v Murray


Labor Law §241   Labor Law §200   Create Condition   Notice   Control  

Second Deptartment

New York Law School’s motion for summary judgment on Labor Law §200 and negligence claims of a construction worker whose foot got caught under pipe fixed to HVAC system being used as a storage room denied because it failed to show it did not create the condition or have constructive notice. Labor Law §241(6) claims dismissed against New York Law School and subcontractor on proof that the industrial code provisions did not apply and the pipe was a permanent fixture and integral part of what was being constructed. Vita v New York Law Sch.


Dangerous Condition   Notice  

Second Deptartment

Town denied summary judgment on claim that it failed to inspect tree adjacent to road that fell on car plaintiff was a passenger in where it failed to demonstrate that it met its obligation to inspect and maintain the tree and that it did not have constructive notice. Schillaci v Town of Islip


MVA   Turning Vehicle   Emergency Doctrine   Sole Cause  

Second Deptartment

Through driving defendant entitled to summary judgment on proof that the left turning vehicle plaintiff was a passenger in failed to yield the right-of-way turning directly in front of the through driver who did not have time to react. Turning driver was the sole cause of the accident. Yu Mei Liu v Weihong Liu


Premises Liab   Slip/Trip   Snow/Ice   Out of Possession  

First

Building owner granted summary judgment where it was not required to remove snow/ice on the sidewalk under its lease, it was an out of possession landowner, and the snow/ice was not a significant structural defect. Fuentes-Gil v Zear LLC


Legal Mal   Causation   Speculation   Conclusory  

Second Deptartment

Law firm that made a motion to restore an abandoned action to the trial calendar granted summary judgment against legal malpractice claim that they delayed in making the motion on proof that the plaintiff would not have been successful in the underlying action and, therefore, any claim of malpractice could not be the cause of the damages. Plaintiff’s assertions in opposition were speculative and conclusory. Sang Seok NA v Schietroma


Premises Liab   Slip/Trip   Snow/Ice   § 7-210   Create Condition  

Second Deptartment

Owners of single-family home used exclusively for residential premises entitled to summary judgment on plaintiff’s claim that she slipped and fell on snow/ice on the sidewalk under the 1-3 family exception to §7-210. Evidence of defendants’ previous efforts to remove snow/ice did not establish liability since they could not be liable for failing to do so adequately and plaintiff failed to show that defendants’ efforts caused or aggravated the hazardous condition. Wise v Filincieri


MVA   Rear End   Premature Motion  

Second Deptartment

Plaintiff entitled to summary judgment on her affidavit that she was stopped at a light for 5 seconds before being hit in the rear by the defendant. Defendant failed to show that relevant information may have been obtained through discovery. Hewitt v Gordon-Fleetwood

IF YOU MUST READ
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MUST READS NOTEWORTHY

About Matt McMahon

Civil trials and appeals since 1984
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