June 12, 2018 | Vol. 110

MUST READS
(8 summaries)
NOTEWORTHY IF YOU MUST READ

Highway Design   Causation   Qualified Immunity   Comparative Fault  

Court of Appeals

Court of Claims found that State failed to complete a safety study or take remedial measures at an intersection where motorcycle was hit by car due to poor visibility injuring passenger and killing her husband/driver. Original decision dismissing case finding no proximate cause because of lack of proof that remedial measure could/would have been installed prior to accident was previously overturned and on remittitur Court of Claims found proximate cause. Court of Appeals made it clear that a plaintiff does not have to prove that remedial measures would have been timely installed and prevented the accident. Without completing the study, the State was not entitled to the qualified immunity normally afforded the State for highway design.

Having looked both ways before entering intersection, car driver did not have to be found negligent as a matter of law and conviction for VTL violation, even if admissible, does not automatically establish fault. Brown v State of New York


Premises Liab   Building Security   Governmental Immunity   Set Aside Verdict   Directed Verdict   Pain/Suffering   Materially Deviates  

Second Deptartment

Judgment of $1,983,438.34 on jury verdict for death of plaintiff’s decedent who was ambushed and stabbed while walking to her car in a garage operated by the City of White Plains uphel where there was proof, even without expert, that city provided virtually no security at the facility which had a history of patrons being ambushed as they walked to their cars. Operating the garage was a proprietary function and the city was not entitled to government community. The $500,000 pain/suffering award was supported by circumstantial evidence that plaintiff’s decedent had some awareness of pain/suffering before her death and jury ‘is not required to sort out various degrees of cognition.’ Apportionment of 100%/0% liability as to city/assailant against the weight of the evidence and new trial ordered unless plaintiff stipulated to reduce apportionment to 65%/35%. Granata v City of White Plains


Labor Law §240   Gravity Risk   Safety Devices   Sole Cause  

First

Engineer supervising construction of 2nd Avenue subway entitled to protection of Labor Law §240(1) and granted summary judgment on proof that nylon sling attaching 1-2-ton steel plate to excavator 2-3′ above ground snapped, knocking over a street sign pole onto plaintiff. Weight of steel plate and distance it fell were capable of generating sufficient force to injure plaintiff. Defendants’ claim that plaintiff was also at fault irrelevant without claim that plaintiff was the sole proximate cause. Defendants’ attempts to raise issue on type of safety device were immaterial since the safety device used did not provide adequate protection. Makkieh v Judlau Contr. Inc.


Preclusion   Good Faith Aff  

First

NYCTA denied enforcement of stipulation that plaintiff would be precluded from offering evidence at trial if she did not produce post Note of Issue discovery where NYCTA failed to provide a good faith affirmation showing as required by 22 NYCRR §202.7(a)(2) and §202.7(c). Kelly v New York City Tr. Auth.


Products Liab   Bus   Design Defect   Intervening Cause   Sole Cause  

Second Deptartment

Manufacturers of NYC bus and wheelchair lift granted summary judgment on strict products liability based on design defect where plaintiff bus driver repeatedly stepped over vertical railing of lift stuck 1.5’ above the ground to try to get it to move so that he could operate the bus. Defendant showed that the bus and lift were not unreasonably dangerous for their intended use or defectively designed and that plaintiff was the sole proximate cause of the accident by using the lift in and unintended manner severing the chain of causation. Conte v Orion Bus Indus., Inc.


Premises Liab   Slip/Trip   Snow/Ice   Sidewalk   Notice   NYC  

First

NYC granted summary judgment on proof that it did not have notice of snow/ice condition on overpass sidewalk and that the 6-hours between the end of the storm and plaintiff’s accident was insufficient time for NYC to clear the sidewalk. Entrada v City of New York


Serious Injury   Degenerative   Causation   Raised For First Time  

First

Plaintiff’s orthopedist raised issues of fact as to cervical, shoulder, and knee injuries in response to defendants’ doctors’ opinions of no objective proof of injury related to the accident or unresolved limitations by finding limited ROM of the cervical spine on examination the day after the accident and on recent examinations; and of the shoulders and knee within a month after the accident and on recent examinations, and his finding of objective evidence of injuries caused by the accident and not degeneration on his personal review of the MRI, acknowledging “mild degeneration” in the knee without prior symptoms, presenting “an equally plausible explanation.” The court noted that “injuries can become significantly more or less severe as time passes” citing Windham v New York City Tr. Auth., 115 AD3d 597, 598 (1st Dept 2014). Findings of tenderness and limitations in the thoracic and lumbar spine without objective proof of injury were insufficient for serious injury but recoverable if plaintiff meets threshold as to other body parts at trial. 90/180-day category dismissed where plaintiff was able to continue to work and study during 5 weeks she was confined to bed/home.

Defendant’s claim of gap in treatment was not raised in original motion papers and claim that MRI’s showed degeneration in shoulders and knee was raised for the first time on appeal and ignored. Hayes v Gaceur


Serious Injury   No-Fault   Expert Aff  

First

Plaintiff raised an issue of fact in opposition to defendant’s prima facie showing that injuries were pre-existing chronic degenerative conditions by plaintiff’s neurosurgeon’s affirmation addressing the pre-existing chronic degenerative conditions and opining that these conditions were aggravated by the accident, causing new symptoms including bilateral weakness, urinary dysfunction, and spinal instability requiring emergency surgery.

The no-fault threshold applied because the excavator temporarily parked at a construction site jutting into roadway did not fit under the “self-propelled caterpillar or crawler-type equipment” exception to no-fault. Fact that it was temporarily parked and not being driven did not take it out of no-fault. Lazzari v Qualcon Constr., LLC

NOTEWORTHY
(20 summaries)
MUST READS IF YOU MUST READ

Med Mal   Accepted Practice   Causation   Untimely   Expert Aff   Conclusory  

Second Deptartment

Hospital failed to meet its burden for summary judgment where it failed to establish that plaintiff’s decedent was not in renal failure when administered morphine and ativan, failed to eliminate questions of fact regarding the dosage of ativan and whether the dosages of morphine and ativan were within accepted practice, and failed to eliminate question of causation by expert’s affirmation that gave only a conclusory opinion that the morphine and ativan did not cause plaintiff’s decedent’s cardiac arrest. Lee v Nassau Health Care Corp.


Negligent Supervision   Vacate Default   Reasonable Excuse   Meritorious Defense   Notice   Vicious Propensity   NYC  

First

Lower court providently exercised discretion in vacating Department of Education’s default in appearing for oral argument on its motion for summary judgment where it was unaware that oral argument was required due to law office failure and fact that motion was reassigned, where plaintiff also failed to appear at oral argument, and showing that it had a meritorious defense. On vacatur, DOE granted summary judgment because infant-plaintiff’s injuries were caused by spontaneous act of a fellow student who had not previously shown any signs of violence. Genesis R. v City of New York


Negligent Supervision   Assault   Notice   Dangerous Propensities   Foreseeability  

Second Deptartment

School district and bus company on whose bus special needs infant-plaintiff was sexually and physically assaulted by 2 special needs third-grade girls granted summary judgment on proof that they had no notice of violent or sexual propensities of the 2 girls who committed the assault. Defendants’ duty was to prevent only reasonably foreseeable assaults. Champagne v Lonero Tr., Inc.


Labor Law §240   Labor Law §200   Gravity Risk   Control  

First

Worker injured when 500 lb steel beam being lowered into elevator through hatch fell 6” onto plaintiff’s shoulder granted summary judgment on Labor Law §240(1). Given weight of I-beam, 6” was a significant elevation and the injury was caused by the direct force of gravity. Defendants granted summary judgment on Labor Law §200 and negligence where there was insufficient evidence that they controlled the means and methods of injury producing work even if the contractor had the authority to do so. Villanueva v 114 Fifth Ave. Assoc. LLC


Med Mal   Accepted Practice   Causation   Expert Aff  

First

Doctors granted summary judgment on expert’s opinion that there was no clinical indication for radiological studies to rule out thoracic meningioma absent leg weakness and bladder symptoms. Plaintiffs’ expert’s opinion did not raise an issue of fact as it did not directly address defendants’ experts’ opinions and was based on symptoms not present at the times claimed by plaintiffs’ expert. Sternberg v Rugova


Med Mal   Accepted Practice   Expert Aff  

First

Hospital denied summary judgment where records showed that pressure sore was first observed 13 days before hospital’s expert indicated, that no treatment was given during that period, and that hospital record does not show pressure sore protocol being followed, including routine turning of patient. Carey v St. Barnabas Hosp.


Premises Liab   3rd Party Contractor   Duty   Inherently Dangerous   Vicarious Liab  

Court of Appeals

Property owner granted summary judgment where plaintiff was struck in the eye with a piece of wire allegedly thrown by a lawnmower operated by the property owner’s independent contractor while plaintiff drove by the property with an open window. Lawn mowing is not an inherently dangerous activity nor was there a statutory non-delegable duty that would constitute an exception to the general rule that a person who hires an independent contractor is not vicariously liable for the negligent acts of the contractor. Mery v Eginger

Comment: Court of Appeals upheld Second Department’s decision originally reported in Vol. 50


MVA   Bus  

Second Deptartment

Plaintiffs granted summary judgment against driver that entered intersection against red light causing bus that injured plaintiff was a passenger on to collide with the car. Proof that the car went through red light was sufficient for liability. The court declined NYCTA’s invitation to search the record and grant it summary judgment. Meredith v Engel


MVA   Turning Vehicle   Comparative Fault  

First

Bicyclist granted summary judgment on liability where defendant’s vehicle turned left in front of him establishing a violation of VTL §1141. Plaintiff did not need to show freedom from comparative fault for summary judgment. Bermeo v Time Warner Entertainment Co.


Lead Poisoning   Notice   Alter Ego  

First

Building owner where shelter that infant-plaintiff resided in and was exposed to lead denied summary judgment on its claimed lack of constructive notice where it failed to show that management company was a separate entity. Notice to manager was notice to building owner if they were the same company. Dismissal of claims for common law and contractual indemnity denied where there was evidence that negligence of owner and manager could be partially responsible for the lead poisoning. D.H. v New Latham Hotel Corp.


Serious Injury   Causation   Preexisting   Degenerative   ROM   Expert Aff   Conclusory  

First

Plaintiffs raised issues of fact by MRI findings of bulging discs and orthopedist’s findings of limited cervical and lumbar ROM. While defendants’ doctors found no evidence of traumatic injury, they did not show any pre-existing or degenerative conditions in the cervical or lumbar spine. Plaintiff’s orthopedist’s conclusory opinion failed to raise an issue in response to defendants’ doctors’ opinions that shoulder injury was pre-existing and degenerative based on, inter alia, surgical findings of a prominent spur, synovitis, and bursitis in the shoulder. Aquino v Alvarez


Serious Injury   Degenerative   ROM   Expert Aff   Raised For First Time  

First

Plaintiffs physiatrist raised questions of fact on serious injury for cervical and lumbar injuries on findings of continuing limited ROM and opinion connecting injuries to accident giving a “different, yet equally plausible, explanation.” Testimony and allegation in BP that plaintiff lost 4 weeks of work entitled defendant to summary judgment on 90/180-day category. Gap in treatment raised for the first time or on appeal was ignored. Holloman v American United Transp. Inc.


Serious Injury   Causation   Degenerative   Preexisting   Expert Aff  

First

Plaintiff’s orthopedist and radiologist both failed to address degeneration on plaintiff’s X-ray reports or explain why they could not be the cause his symptoms failing to raise an issue in opposition to defendant’s prima facie entitlement to summary judgment on serious injury. Plaintiff failed to explain 4-year gap in treatment. Auquilla v Singh


Premises Liab   Slip/Trip   Snow/Ice   Storm in Progress   Notice  

Second Deptartment

Building owner granted summary judgment where plaintiff’s testimony showed a storm in progress at the time she fell, plaintiff failed to show that the slippery condition existed prior to the storm, and that the defendant had notice of it. Amato v Brookhaven Professional Park Ltd. Partnership


Premises Liab   Slip/Trip   Snow/Ice   Sidewalk   Unknown Cause  

First

Building owner and manager denied summary judgment where plaintiff testified that she fell on a “slippery substance” and photographs taken minutes after accident raised issue of fact as to whether runoff from melting snow created the icy condition. Plaintiff’s testimony of a “slippery substance” sufficiently identified the cause of her accident. Penhaskashi v EQR-E. 27th St. Apts., LLC


Serious Injury   Preexisting   Degenerative   Expert Aff   Conclusory  

First

Defendants made out prima facie entitlement to summary judgment on serious injury by affirmed reports of neurologist, emergency medicine specialist, and radiologist showing no trauma related injuries and the existence of pre-existing degenerative conditions. Plaintiff’s unaffirmed MRI report identified the pre-existing degenerative conditions and plaintiff’s orthopedist’s affirmation gave only conclusory opinions of causation without addressing pre-existing conditions. Sosa-Sanchez v Reyes


Premises Liab   Slip/Trip   Snow/Ice   Sidewalk   Storm in Progress  

Second Deptartment

Store owner granted summary judgment on climatological data showing storm in progress at the time of plaintiff’s slip and fall and plaintiff failed to raise an issue of fact in opposition. Jeannot v Autozone, Inc.


Premises Liab   Slip/Trip   De Minimus  

Second Deptartment

Condominium granted summary judgment on testimony of plaintiff and board president, and photographs showing that defect in common driveway maintained by condominium was trivial and the circumstances did not increase the risk. Sullivan v Colonial Woods Condominiums


Defamation   Statute of Limitations   CPLR §306-b  

First

One-year statute of limitations expired before plaintiff filed the Summons and Complaint and, therefore, plaintiff was not entitled to extension of time to serve under CPLR §306-b. Schwartz v Chan


MVA   Vacate Default  

Second Deptartment

Nonparty corporation sought to intervene in MVA action and vacate $1,250,000 default by defendant with similar name claiming that nonparty company was the party the plaintiff intended to sue, denied by the plaintiff, and that it was a separate entity from the defendant sued. While plaintiff denied below that the defendant and nonparty corporations were separate entities, he conceded that they were separate entities on appeal. Since the nonparty corporation was not related to the defendant, it had no interest in the action and its motion to intervene and to vacate the default was properly denied. Walker v All Around Transp., Inc.

IF YOU MUST READ
(1 summaries)
MUST READS NOTEWORTHY

Premises Liab   Slip/Trip   Create Condition   Notice   Untimely  

Second Deptartment

Building owner denied summary judgment where plaintiff slipped on wet tile on path leading to front entrance where plaintiff raised an issue of fact as to whether owner created the condition or had notice of it. Plaintiff’s cross appeal from order granting defendant leave to make the motion for summary judgment beyond 120 days dismissed as academic. The court does not give the details of the proofs. Beck v Archibald Enters., Ltd.

About Matt McMahon

Civil trials and appeals since 1984
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