June 19, 2018 | Vol. 111

MUST READS
(8 summaries)
NOTEWORTHY IF YOU MUST READ

Collateral Source   NYC  

Court of Appeals

A 7/2 Court of Appeals held that uniform officers’ line of duty disability pensions (ADR) act as a collateral source against a portion of lost earnings and a portion of future lost pension. They set a clear formula for computing the CPLR 4545 deductions as reducing lost earnings by the ADR amounts from the date of disability payments to the date plaintiff would have been entitled to receive an ordinary pension and reducing lost pension by the ADR amounts from the date plaintiff would have been entitled to receive an ordinary pension to life expectancy. There were 2 dissenters. Andino v Mills


Med Mal   Personal Juridiction   Service   CPLR §306-b   Reasonable Excuse   Prejudice   Statute of Limitations   Meritorious Action  

Second Deptartment

CPLR §306-b extensions of time to serve Summons and Complaint can be granted for either “good cause” or “in the interests of justice.” Service later shown to be defective can never be the basis of “good cause” but can be the basis for extending “in the interests of justice” where defendant is not prejudiced by the delay. Plaintiff served Summons and Complaint on the doctor by serving the hospital within the statute of limitations but after doctor had retired. That doctor interposed an Answer, raised personal jurisdiction, and moved to dismiss. Plaintiff’s cross motion to extend service was made after one of the statutes of limitations had expired. Defendant was aware of the complaint within 120 days of filing and was not prejudiced by the delay. Lower court providently granted plaintiff’s cross motion to extend service and denied defendant’s motion to dismiss. Showing of meritorious action is only 1 factor and its absence is not necessarily dispositive. Estate of Fernandez v Wyckoff Hgts. Med. Ctr.


Wrongful Death   Duty   Police   Governmental Function   Governmental Immunity  

Second Deptartment

Plaintiff could not show that decedent justifiably relied on police arresting her husband for violation of an order of protection where police made no promise to arrest him or take any other action after contacting the husband’s mother to have her tell her son to stop contacting plaintiff’s decedent. Justifiable reliance is 1 of the 3 required elements to show a special duty to overcome governmental immunity where a municipality is acting in a governmental function such as providing police protection. The other requirements are assumption of an affirmative duty to act on behalf of the party and direct contact between the injured party and the municipality. Axt v Hyde Park Police Dept.


Labor Law §240   1-2 Family Exception   Ladder   Admissibility   Expert Aff  

Second Deptartment

Homeowner’s motion for summary judgment on 1-2 family exception to Labor Law §240(1) where plaintiff fell from ladder while installing a window denied because errata sheet to defendant’s deposition and defendant’s affidavit were both in English without a translator’s affidavit pursuant to CPLR 2101(b) and defendant testified at deposition in Spanish. Translator’s affidavit submitted in reply was unsworn and inadmissible. Gonzalez v Abreu


Premises Liab   Slip/Trip   Notice of Claim   50-H   Prejudice   NYC  

Second Deptartment

NYCHA granted summary judgment where Notice of Claim misidentified location as “1728,” NYCHA sent letter to plaintiff’s counsel stating they did not own the building at 1728, plaintiff did not respond but put the correct building number “728” in the Complaint. Plaintiff did not seek to amend Notice of Claim until more than 2 years after the accident in response to NYCHA’S motion for summary judgment. Since plaintiff’s claim was predicated on a transient condition and no one from NYC or NYCHA responded to the accident or had notice of it, and a 50-H hearing was not held, plaintiff failed to meet burden of showing that NYCHA was not prejudiced by delay. Jenkins v New York City Hous. Auth.


MVA   Bus   Slip/Trip   Snow/Ice   Duty  

Second Deptartment

Nonjury award of $1,662,567 for plaintiff’s slip on black ice after stepping down from rear exit of bus reversed and action dismissed on finding that a common carrier’s duty to provide an alighting passenger with a safe place to step must be judged by what the driver could observe from his/her vantage point and bus driver would be unable to see black ice by rear of the bus when plaintiff was unable to see it until after she fell and there was a clear path to the sidewalk at the front exit to the bus. Guzman v New York City Tr. Auth.


MVA   Serious Injury   Admissibility   Survelliance Video   Preclusion  

Second Deptartment

Jury verdict at damage trial finding plaintiff did not sustain a serious injury affirmed where her doctor failed to quantify limitations of range of motion and compare them to normal ranges of motion. Preclusion of surveillance video of accident where store’s tech person could not testify to its creation, modification, or that it accurately depicted all of what the camera showed upheld as was preclusion of plaintiff’s orthopedist’s proffered testimony that the impact imparted “tremendous energy” to plaintiff’s body because orthopedist was not a biomechanical engineer. Torres v Hickman


Negligent Supervision   Duty   Spoliation   Negative Inference  

Second Deptartment

School and district failed to make out prima facie entitlement to summary judgment on deposition transcripts of infant-plaintiff and lunch aid who both testified that infant was attempting dangerous moves on the top of monkey bars which lunch aid did not see and that he had a prior history of such activities. Lunch aid believed that he needed to be watched. Plaintiff’s motion for spoliation sanction for defendants’ destruction of all but 24 seconds of accident, including destroying video of first cartwheel and dismount he performed on monkey bars, granted where principal investigated accident including looking at video footage on day of the accident putting defendants on notice of potential litigation and the need to preserve all of the infant’s activities leading up to the accident. SM v Plainedge Union Free Sch. Dist.

NOTEWORTHY
(22 summaries)
MUST READS IF YOU MUST READ

Med Mal   Accepted Practice   Causation   Expert Aff   Conclusory  

Court of Appeals

In reversing the Appellate Division’s grant of summary judgment to neurologist on its finding that the plaintiff’s expert raised only conclusory opinions (reported in Vol. 78), the Court of Appeals found that plaintiff’s expert’s opinion that neurologist deviated from accepted practice by, inter alia, failing to engage in a differential diagnosis for micro-arteriovenous malformation (AVM) a rare congenital condition based on a detailed review of the plaintiffs history and increase in symptoms after the original diagnosis of postconcussion syndrome raised questions of fact. Brooks v April


Labor Law §240   Ladder   Comparative Fault  

First

Worker granted summary judgment under Labor Law §240(1) on his testimony that ladder moved causing him to fall as he tightened bolt and fact that reconfiguration of sprinkler system was an “alteration” covered by the statute. Claim that worker was at fault for not making sure coworker properly set A-frame ladder would at best be comparative fault not a defense. Fact that worker was only witness did not change result. Concepcion v 333 Seventh LLC


Labor Law §240   Ladder   Control   Agent   Indemnity  

First

Provision in general contractor’s contract making it responsible for the safety of “all employees” on the work site raised an issue of fact of whether its responsibility extended beyond its own work, even though it specifically had no control over the installation of the sign plaintiff was working on when he fell from the ladder. Sign company given sole responsibility for sign work was owner’s statutory agent and had a nondelegable duty when it subcontracted work to plaintiff’s employer. All motions for summary judgment on Labor Law §240(1) denied. General contractor’s motion for summary judgment on contractual indemnity against sign company denied as there was no contract between them. White v 31-01 Steinway, LLC


Personal Juridiction   Service   Motion to Dismiss  

Second Deptartment

Plaintiff failed to show due diligence before attempting nail/mail service where process servicer’s affidavit had inconsistencies and showed only dates of attempted service on weekdays, during business hours, when it was most likely that no one would be home and did not show any attempt to locate defendant’s employment address or attempts to serve at a work address. Faruk v Dawn


Med Mal   Motion to Dismiss   Personal Juridiction   Service   CPLR §306-b   Reasonable Excuse   Meritorious Action  

Second Deptartment

Doctor’s motion to dismiss for lack of personal jurisdiction granted, and plaintiff’s motion to extend time for service under CPLR §306-b denied, where plaintiff failed to show any attempt to serve the doctor for 8 months, doctor did not learn of suit for 8 months, and plaintiff failed to show a meritorious action. Zerbi v Botwinick


Med Mal   BP   Raised For First Time   Frye  

First

Defendants’ argument that plaintiff’s intercranial pressure theory was improperly raised for the first time in opposition to their motion for summary judgment was rejected as plaintiff’s BP gave sufficient detail to avoid surprise even though it did not specifically state that “the ischemic injury was caused by the shunting of blood away from the brain due to pressure caused by contractions and resulting from the above alleged deviations.” A BP does not require the depth of detail suggested by defendants. Defendants’ claim that the intercranial pressure theory was not recognized in the medical community was raised for the first time in reply. A separate motion for a Frye hearing is pending and not addressed on this appeal. DB v Montefiore Med. Ctr.


Premises Liab   Assumption of Risk   Open/Obvious  

First

Gym granted summary judgment on primary assumption of risk for plaintiff’s injury while using a treadmill. Plaintiff failed to raise an issue of fact in opposition by failing to show that defendants concealed or exacerbated any risk. Pierce v Lucille Roberts Womens Fitness


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

First

Defendant denied summary judgment on Labor Law §241(6) on question of fact as to whether trench in concrete floor that plaintiff fell in while moving scaffold violated industrial code §23-5.18(h)(manually-propelled scaffolds) requiring a level floor. Defendant also denied summary judgment on Labor Law §200 and negligence where questions of fact existed as to whether defendant was responsible for safety and had notice of the condition. Douglas v Sherwood 48 Assoc.


Labor Law §240   Ladder   Sole Cause  

First

Plaintiff’s testimony that makeshift ladder slid underneath him causing his fall made out prima facie entitlement to summary judgment on Labor Law §240(1). Coworker’s affidavit that he saw plaintiff fall “after he appeared to have missed the last step” did not raise issue on sole proximate cause because it did not refute plaintiff’s testimony that ladder slid out for under him. Nolan v Port Auth. of N.Y. & N.J.


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

Second Deptartment

Church entitled to summary judgment on affidavit of eyewitness and plaintiff’s testimony that there was no precipitation when each arrived at the premises but that there was freezing rain when each left, establishing a storm in progress and plaintiff failed to raise a question in opposition. Cammarata v Holy Name of Mary R.C. Church


MVA   Set Aside Verdict  

Second Deptartment

Jury verdict finding defendants’ bus was not in a collision with the plaintiffs’ vehicle was based on a fair interpretation of the evidence and would not be set aside. Agostino v L & M Bus Co.


Med Mal   Accepted Practice   Causation   Expert Aff   Speculation  

First

Ophthalmologist granted summary judgment on opinion of expert ophthalmologist and pathologists that plaintiff’s decedent did not have herpes in her eye during the time defendant treated her and that there was no departure from accepted practice. Plaintiff’s expert ophthalmologist’s opinion that herpes does not always show on slides and that indications in the medical record showed the presence of herpes was speculative where it was not based on the record and indications relied on by plaintiff’s expert where reviewed by defendant’s experts in making their opinions. Powell v Kim


Premises Liab   § 7-210   Sidewalk   Premature Motion  

Second Deptartment

Single-family home owners entitled to summary judgment on proof that they did not create the condition causing plaintiff’s fall and did not derive a benefit from special use of the sidewalk. Administrative code §7-210 does not apply to single-family homes and plaintiff and defendant NYC failed to show that relevant information was exclusively within the control of the homeowner necessary to show that the motion was premature. Brown v City of New York

Comment: The same result was reached as to a second abutting homeowner in Brown v City of New York.


Premises Liab   Slip/Trip   Sidewalk   Create Condition  

Second Deptartment

Con Edison granted summary judgment on proof that it did not create the condition because it did not perform any work in the area were plaintiff tripped on a height differential between the sidewalk and curb outside of her house. Only an owner, occupier, or entity making special use of the sidewalk can be responsible for maintenance. Bliss v City of New York


MVA   Bus   Emergency Doctrine  

First

NYCTA entitled to summary judgment on emergency doctrine where taxi unexpectedly cut in front of bus and bus driver’s actions of stepping on brake and swerving were reasonable considering the emergency. Bus driver’s knowledge that taxi’s often cut off buses did not change application of the doctrine. Jones v New York City Tr. Auth.


MVA   Rear End   Comparative Fault   Question of Fact  

Second Deptartment

Third car driver and owner made out prima facie entitlement to summary judgment on their testimony and plaintiff’s testimony that their driver, traveling on the shoulder 1 car length behind car number 2, did not contribute to the accident but plaintiff and 2nd car raised question of fact by the 2nd car driver’s testimony that he rear-ended the plaintiff while trying to avoid being struck by car 3 traveling next to him on the shoulder. Plaintiff denied summary judgment based on conflicting testimony but granted dismissal of affirmative defense of comparative fault on proof that he was rear ended while stopped. Poon v Nisanov


Serious Injury   Expert Aff   ROM  

Second Deptartment

Defendants failed to meet their initial burden for summary judgment on serious injury where 2 of their doctors found significant limited ROM and failed to substantiate their opinions that the limitations were self-imposed. Rivas v Hill


Labor Law §240   Expert Aff   Question of Fact  

First

Plaintiff made out prima facie entitlement to summary judgment on Labor Law §240(1) by his, coworker’s, foreman’s, and defendant’s safety personnel’s testimony that he fell down shaft when a rail improperly wedged against a wall gave way but defendants raised issue of fact by opinions of a neuroradiologist and a biomechanical engineer that injuries were not consistent with plaintiff’s version of the accident. Aspromonte v Judlau Contr., Inc.


Labor Law §200   Create Condition   Indemnity   Untimely  

First

Building owner denied summary judgment on Labor Law §200 where evidence raised issue of fact as to whether it created the dangerous condition (live wire) when it installed a drop ceiling and electrical system. Owner’s cross-motion for indemnity properly denied where motion was months late and owner did not offer a good excuse for the delay. Muqattash v Choice One Pharmacy Corp.


Vacate Arb   SUM  

Second Deptartment

Arbitration award finding injury not related to accident was based on proof and was not “arbitrary or capricious” (an additional ground to vacate where arbitration is mandatory) and claim that arbitrator failed to consider carrier’s inconsistent position in underlying case where it settled for the policy was at most an error of law which is not grounds to vacate. Matter of O’Neill v GEICO Ins. Co.


Premises Liab   Stairs   Spoliation   Negative Inference   Appealable Order  

Second Deptartment

Plaintiff’s appeals from order denying defendants’ motion for summary judgment based on spoliation for plaintiff’s destruction of high heels she was wearing at time of fall and grant of adverse inference charge as requested by plaintiff dismissed with costs as plaintiff is not aggrieved by the order. Hernstat v Anthony


Vacate Default   Appealable Order  

Second Deptartment

Plaintiff’s appeal from order vacating so ordered stipulation dismissed as no appeal lies from an order not resolving a motion on notice and plaintiff did not seek leave to appeal. Appeal from order vacating default judgment dismissed were plaintiff failed to submit a proper record on appeal. Reyes v Eleftheria Rest. Corp.

IF YOU MUST READ
(4 summaries)
MUST READS NOTEWORTHY

Serious Injury   Preexisting   Causation  

Second Deptartment

Plaintiff raised question of fact whether injuries were preexisting or caused by accident in opposition to defendant’s prima facie showing of entitlement to summary judgment on serious injury. The court does not give the details of the proofs. Burks v Godino


Serious Injury  

Second Deptartment

Plaintiff raised question of fact in opposition to defendant’s prima facie showing of entitlement to summary judgment on serious injury. The court does not give the details of the proofs. Narkolayeva v Curtin


Serious Injury  

Second Deptartment

Plaintiff raised question of fact in opposition to defendant’s prima facie showing of entitlement to summary judgment on serious injury. The court does not give the details of the proofs. Rivera v Alvarado


Serious Injury  

Second Deptartment

Plaintiff raised question of fact in opposition to defendant’s prima facie showing of entitlement to summary judgment on serious injury. The court does not give the details of the proofs. Burks v Godino

About Matt McMahon

Civil trials and appeals since 1984
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