July 3, 2018 | Vol. 113

MUST READS
(6 summaries)
NOTEWORTHY IF YOU MUST READ

Defamation   Qualified Immunity  

Court of Appeals

In a 4/2 decision, the Court of Appeals clarified several issues regarding absolute and qualified immunity for administrative proceedings finding that the absolute immunity for statements made during an administrative proceeding does not apply to investigation proceedings which may result in an administrative proceeding. The FDA conducted an investigation and issued a report containing information about the plaintiff doctor’s involvement in a clinical study. The doctor was not given an opportunity to participate in the investigation and no administrative hearing was held. Under those circumstances, the Court found that the statements would be entitled to qualified not absolute immunity. The court also clarified that defamatory statements made during the course of an administrative proceeding are not entitled to absolute privilege where the defamed party does not have an opportunity to challenge the accusations, stating that the privilege “is not a license to destroy a person’s character by means of false, defamatory statements.” Stega v New York Downtown Hosp.


MVA   GML §205-e   Amend BP   Emergency Doctrine  

Second Deptartment

Defendants’ who drove their truck suddenly into the left lane where it was struck by the plaintiff police officer granted leave to amend BP to add affirmative defenses of emergency doctrine and seatbelt which were not palpably improper and did not require evidentiary proof. Plaintiff’s claim that seatbelt defense was barred by GML 205-e, which does not allow comparative fault, and by VTL provision showing that police officer is not required to wear a seatbelt rejected because the seatbelt defense goes to reduction of damages and not comparative fault and the jury could find failure to use an available seatbelt unreasonable without the statutory requirement. Plaintiff made a prima facie showing for summary judgment on GML §205-E but defendants raised an issue of fact on whether their driver’s response was reasonable in light of the emergency. Freder v Costello Indus., Inc.


Negligent Supervision   Duty   NYC  

First

NYC crossing guard’s greeting children as they crossed the intersection and the children’s reliance on the crossing guard was insufficient to establish a special duty where there was no direct contact between NYC and the injured child. Ivan D. v Little Richie Bus Serv. Inc.


Vacate Default   Reasonable Excuse   Meritorious Action  

Second Deptartment

Plaintiff’s former attorney’s failure to appear at multiple compliance conferences, and late appearance at another, showed “a pattern of willful default and neglect” justifying dismissal for failure to prosecute. Former attorney’s claim that he got lost because of a GPS malfunction was not sufficient to show law office failure or excuse the default in appearing at the last conference. Attorney also failed to give any excuse for being late and failing to appear at prior conferences. The question of meritorious action did not need to be addressed since plaintiff failed to show a reasonable excuse for the repeated defaults. Lee v Latendorf


Negligent Supervision   Statute of Limitations   Speculation  

First

Defendants granted summary judgment dismissing sexual abuse claims brought by father on behalf of his severely disabled daughter. Older claims dismissed as barred by statute of limitations, including 10-year toll for insanity. There was no fiduciary duty to inform father of the alleged incidents as he was not involved with his daughter’s care at that time. Newer claim that she must have been sexually abused because she contracted the human papilloma (HPV) dismissed as speculative. Acevedo v Episcopal Social Servs. of N.Y., Inc.


Vacate Default   Service   CPLR §306-b   Reasonable Excuse   Meritorious Action  

Second Deptartment

Defendant’s motion to vacate default judgment of $1,250,000 granted and plaintiff’s motion to extend time to serve summons and complaint under CPLR §306-b denied where original nail/mail service was improper because it was not served on defendant’s actual business, dwelling place, or usual place of abode. Plaintiff failed to show “good cause” for failure to serve within 120-days or make out entitlement in interests of justice given her extreme lack of diligence in attempting service within 120-days and waiting 8 months after defendant’s motion, more than 4 years after statute of limitations, to move, and failure to show a meritorious action. Encarnacion v Ogunro

NOTEWORTHY
(16 summaries)
MUST READS IF YOU MUST READ

Amend Notice of Claim   Slip/Trip   Snow/Ice   Create Condition   Prior Written Notice  

Second Deptartment

Village granted summary judgment and plaintiffs’ cross motion to amend the Notice of Claim to include claim that village created the icy condition around the carousel that plaintiff fell on denied. Village proved it did not have prior written notice of the condition and the Notice of Claim did not state that the condition was created by their snow removal efforts which was alleged in the BP. The cross motion to amend the Notice of Claim was not to correct a “technical mistake, defect or omission” under § 50-(e)(6). Burton v Village of Greenport


Serious Injury   Expert Aff   ROM  

Second Deptartment

Defendant failed to meet its initial burden for summary judgment on serious injury where the affirmed report of her examining doctor showed a significant limited ROM in plaintiff’s cervical spine. Nuñez v Teel


Premises Liab   Building Code   Res Ipsa Loquitor   Expert Aff  

First

Plaintiff denied partial summary judgment on res ipsa loquitor where she failed to show that defendants had exclusive control of the Plexiglas that fell from the signage on a pedestrian bridge at a construction site. Violation of the building code is some evidence of negligence, not negligence per se, and defendants’ expert raised an issue of fact regarding whether negligence can be imputed to defendants. Jainsinghani v One Vanderbilt Owner, LLC


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

Second Deptartment

Defendant entitled to summary judgment on Labor Law §200 and negligence on proof that it did not create the condition nor have notice of it and did not have the authority to control the manner of the plaintiff’s delivery of materials. Labor Law §241(6) did not apply where the delivery area was not a “passageway” under industrial code §23-1.7(e)(1); there were no tripping hazards under §23-1.7(d) and (e); and §23-2.1(a)(1) was inapplicable. Gargan v Palatella Saros Bldrs. Group, Inc.


Premises Liab   Slip/Trip   Sidewalk   Open/Obvious   Inherently Dangerous  

Second Deptartment

The recessed area around a Verizon box in the sidewalk was open/obvious and not inherently dangerous as a matter of law and was known to the plaintiff’s decedent before she stepped backward into it and fell. Graffino v City of New York


Med Mal   Accepted Practice   Causation   Court of Claims  

Second Deptartment

Decision finding no departure from accepted medical practice and no causation affirmed where plaintiff failed to introduce an expert opinion that failing to diagnose a urinary tract infection based solely on urine tests showing the presence of bacteria was a departure from accepted practice and an expert opinion that any of the plaintiff’s symptoms were caused by failure to diagnose a UTI. Plaintiff’s claims of fraud for concealing malpractice dismissed as they did not allege claims different than the malpractice claims. Whitfield v State of New York


MVA   Rear End   Admissibility   Hearsay   Uncertified Records  

First

Defendant granted summary judgment where uncertified police report stating that defendant rear ended the plaintiff was inadmissible hearsay and plaintiff’s testimony that she believed the car that rear-ended her was blue, whereas defendant’s car was red, failed to raise an issue in opposition. Laguerre-Fuentes v Acevedo


Vacate Default   Reasonable Excuse   Meritorious Action  

Second Deptartment

Defendant’s motion to vacate default judgment denied where defendant failed to show reasonable excuse for not answering the complaint. Claim that defendant thought its carrier would provide an Answer was unreasonable given carrier’s reservation of rights letter and that defendant did not move to vacate until 5 months after carrier denied coverage, evincing a pattern of neglect. Since defendant did not show a reasonable excuse there was no need to address meritorious action. Zovko v Quittner Realty, LLC


Legal Mal   Motion to Dismiss   Causation  

First

Defendants’ motions to dismiss denied where original attorney’s failure to file a Notice of Claim as of right within the 90-day might be found to be a proximate cause of plaintiff’s damages and subsequent counsel’s failure to move for leave to serve the late Notice of Claim could be found to be a cause of the damages if the trier of fact finds that such a motion would have been successful. Liporace v Neimark & Neimark, LLP


MVA   Bicycle   Set Aside Verdict  

Second Deptartment

Motion to set aside $100,000 verdict in favor of bicyclist denied where there was a “valid line of reasoning and permissible inferences” that the jury could follow in reaching its verdict and the jury is afforded great deference in determining credibility of witnesses. Shellkopf v Bernfeld


MVA   Rear End  

Second Deptartment

Middle car defendant entitled to summary judgment on proof that he was stopped before being hit in the rear by codefendant and propelled into the plaintiff’s car. Arellano v Richards


MVA   Bicycle   Emergency Doctrine  

Second Deptartment

Motorist who struck bicyclist after bicyclist was initially struck by a taxi cab made out prima facie entitlement to summary judgment on emergency doctrine by showing that he had only seconds to react to a sudden unexpected condition not of his own making, but plaintiff raised an issue of fact in opposition as to whether defendant’s actions were reasonable in response to the emergency and whether defendant was following taxi to closely. Welch v Suffolk Coach, Inc.


Motion to Dismiss   Compel Acceptance   Personal Juridiction  

Second Deptartment

Process server’s affidavit of service of suitable age and discretion was prima facie proof but defendants’ affirmations (rather than affidavits for religious reasons) detailing that they were away and no one was at their apartment at the time of the service raised an issue regarding the affidavit of service and a hearing should have been ordered. Mizerek v Rosenfeld


Premises Liab   Motion to Dismiss   Premature Motion  

Second Deptartment

Deeds showing that defendant did not own the premises where plaintiff fell were adequate documentary evidence utterly refuting the claims and plaintiff failed to raise an issue in opposition. Plaintiff did not show that discovery would likely lead to information necessary to oppose the motion. Karpovich v City of New York


Motion to Dismiss   Personal Juridiction   Service   Statute of Limitations   Prejudice  

Second Deptartment

Defendants’ motion to dismiss on personal jurisdiction due to incorrect spelling of defendants’ names denied and plaintiff’s cross motion to amend the summons and proof of service with the proper spelling of the names granted where defendants could not have been misled as to who the service was for and was not prejudiced even after the statute of limitations ran. Chambers v Prug


Estate   Motion to Dismiss  

Second Deptartment

Allstate, a nonparty to the action brought against its insured who died before and Answer was served, denied dismissal of the complaint on grounds of failure to substitute an estate. CPLR §1021 grants any party leave to move for substitution not to dismiss and Allstate failed to show that it gave proper notice to persons interested in the decedent’s estate. Plaintiff’s cross motion to appoint the attorney assigned by Allstate as temporary representative denied for failure to show a reasonable excuse for the delay in substituting the estate, failing to show what steps were taken to secure a representative, or that a temporary administrator was necessary to avoid delay or prejudice. Laroche v Laroche

IF YOU MUST READ
(3 summaries)
MUST READS NOTEWORTHY

Serious Injury  

Second Deptartment

Defendant granted summary judgment on serious injury upon competent medical proof for cervical and lumbar injuries and proof that plaintiff missed only a few weeks from work. Plaintiff failed to raise an issue of fact in opposition. The court does not give the details of the proofs. Anderson v Foley


Serious Injury  

Second Deptartment

Defendants met their burden for summary judgment on serious injury by competent medical proof and plaintiff failed to raise an issue in opposition. The court does not give the details of the proofs. Haring v Toscano


Indemnity  

First

Subcontractor denied summary judgment on indemnity claim where there was no signed indemnity agreement and parties had conflicting versions of whether they agreed to the indemnity. Aguilar v City of New York

About Matt McMahon

Civil trials and appeals since 1984
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