June 26, 2018 | Vol. 112

MUST READS
(7 summaries)
NOTEWORTHY IF YOU MUST READ

Premises Liab   Slip/Trip   Wet Floor   Spoliation   Strike Answer   Prejudice  

First

Supermarket’s Answer stricken, and plaintiff granted summary judgment as sanction for spoliation, where supermarket destroyed all but 30” of video surveillance showing what led to accident, including what caused the liquid to be on the floor, despite immediately knowing that it had obligation to preserve video, and in failing to explain why the remainder was destroyed despite a court order. Destruction of the video leading up to the accident deprived plaintiff of the ability to prove liability and, therefore, striking Answer was appropriate. Davis v Pathmark


Motion to Dismiss   90 Day Notice   Note of Issue  

Second Deptartment

Lower court’s order dismissing action pursuant to CPLR 3216 where plaintiff failed to file Note of Issue by the date in compliance conference order which warned that failure to comply would result in dismissal reversed due to the absence of a precondition to dismissal added to CPLR 3216 in 2015 that the court’s demand to resume prosecution (the compliance conference order) “shall set forth the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation.” Goetz v Public Serv. Truck Renting, Inc.


Notice of Claim   50-H   Amend Complaint   Amend BP   Prejudice  

First

Lower court providently struck plaintiff’s errata sheet on her 50-H hearing because it contained numerous substantive changes without adequate explanation as required by CPLR 3116(a) and denied amendment of the Complaint because the delay would prejudice defendant. NYCHA granted summary judgment where Notice of Claim did not adequately describe the cause of the accident and Plaintiff’s inconsistent explanations after service of the Notice of Claim and ambiguous photographs did not help to identify the cause. Carrero v New York City Hous. Auth.


Discovery   Preclusion   Willful/Contumacious  

Second Deptartment

Defendant’s motion to preclude plaintiff from offering evidence on trial based on so ordered stipulation requiring plaintiff to provide discovery and appear for EBT “on or before” a specified date at “time and location to be agreed upon,” and for summary judgment based on plaintiff’s inability to make out a prima facie case where she was precluded from offering any evidence, denied. While a conditional order of preclusion is self-executing, defendants’ attorney’s affirmation did not show willful/contumacious failure to comply where it did not state whether documentary discovery was provided, defendants did not show an agreed upon date, the on and before date was not an agreed-upon date, and plaintiff’s attorney did not know what date, time, or location he was required to produce his client. Cannon v 111 Fulton St. Condominium, Inc.

Comment: This is a good case to show that an “on or before” date and “agreed upon time and location” is not the same as a specified date for an appearance at a deposition. The situation happens often where a party calls to confirm a deposition the day before an “on or before” date instead of having attempted to agree to a date between the entry of a stipulation or order and the “on or before date.”


Late Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice  

Second Deptartment

Plaintiff who served a motion (which should have been a petition) for leave to serve a late Notice of Claim 2 weeks after expiration of the 90-day period granted leave to serve late Notice of Claim. Fact that plaintiff’s attorney mistakenly believed that property was owned by NYC instead of NYCHA and served a Notice of Claim on NYC did not provide a reasonable excuse, but reasonable excuse is only 1 factor and does not require denial of the petition. Serving the motion within 2 weeks after the 90-day period provided actual knowledge of the essential facts “within a reasonable time after” the 90-days and plaintiff met her initial burden of showing that NYCHA was not prejudiced by the delay. NYCHA’s claims of prejudice were speculative. Matter of Ramos v New York City Hous. Auth.


Premises Liab   Dangerous Condition   Foreseeability   Intervening Cause  

Second Deptartment

Building owner that placed discarded radiator outside of plaintiff’s apartment denied summary judgment for injuries plaintiff sustained when he tried to move the radiator that remained for 5 months after he complained to the landlord that it was obstructing his use of the stairs to his apartment. Building owner failed to show that it was not foreseeable that plaintiff would attempt to move the radiator and that plaintiff’s actions were a superseding cause. Munoz v Kiryat Stockholm, LLC


Governmental Function   Governmental Immunity   Duty   Motion to Dismiss   Intervening Cause   Foreseeability  

Second Deptartment

Town’s motion to dismiss denied where town police first confiscated plaintiff’s decedent’s husband’s gun in response to a domestic violence incident, later returned it to him even though he was not licensed to carry a firearm in New York, and he subsequently shot and killed his wife with the gun. The husband was a former New Jersey police officer. While confiscating the gun was a governmental function, town failed to show that they had not assumed a special duty to the decedent on a motion to dismiss. Complaint alleged elements of a special duty including assumption of a duty “through promises or actions,” knowledge of potential injury from inaction, direct contact with party, and justifiable reliance. Husband’s criminal act may not be a superseding cause where it was the very risk that rendered the police negligent and was foreseeable. Defendants failed to establish that giving back the gun entitled them to governmental immunity as a “discretionary act” where they failed to show that they executed discretion by complying with their own procedures. They could not lawfully return the gun since the husband was unlicensed and they did not provide proof that he was entitled to possession under a federal law. Santaiti v Town of Ramapo

NOTEWORTHY
(17 summaries)
MUST READS IF YOU MUST READ

Intervening Cause   Comparative Fault   Hearsay   Admissibility  

First

Defendants granted summary judgment on finding that plaintiff’s decedent was the sole proximate and superseding cause of her death where she repeatedly left her house during super storm Sandy to take pictures despite warnings from her friend and fact that she had already been shocked when touching a metal gate before leaving again. Friend’s statement to police while he was still “very distraught,” and “excited and upset,” was admissible under the excited utterance exception to hearsay and it did not provide information over what the witness testified to. Abraham v Consolidated Edison Co. of N.Y., Inc.


Premises Liab   Unknown Cause   Circumstantial Evidence  

Second Deptartment

Plaintiff’s testimony that the last thing she remembered before the accident was standing on her deck and upon returning home from the hospital found the deck railing on the ground was sufficient circumstantial evidence from which a jury could find the condition of the railing to be a cause of her accident requiring denial of defendant’s motion for summary judgment. Plaintiff is not required to show causation by direct evidence or exclude every other possible cause of the accident. She was only required to show that it was more likely the cause of the accident. Cross v Roberts


Premises Liab   Slip/Trip   Bus   § 7-210   Set Aside Verdict  

First

Abutting landowner’s prior motion for summary judgment had been denied where a question of fact existed as to whether bus passenger alighted onto a portion of sidewalk that constituted part of bus stop, which would be an exception to administrative code §7-210. At trial, the jury found that the area where the passenger alighted was not part of the bus stop. NYCTA employee testified that the 158′ area of the bus stop was solely in the roadway and not on the sidewalk. The verdict was based on a fair interpretation of the evidence, requiring denial of the motion to set aside as against the weight of the evidence, and was not “utterly irrational,” requiring denial of the motion to set aside as insufficient. Bednark v City of New York


Labor Law §240   Recalcitrant Worker   Sole Cause   Safety Devices  

Second Deptartment

Carpenter installing sheet rock on ceiling by standing on inverted bucket denied summary judgment on Labor Law §240(1) based on his deposition testimony establishing that ladders and Baker scaffolds were available for his use and he did not put forth evidence as to the number of workers and number of ladders and scaffolds or that he made any effort to find an available ladder or scaffold despite his conclusory statement that none were available. Lorde v Margaret Tietz Nursing & Rehabilitation Ctr.

Comment: This is a good example of the growing trend to label the unjustified failure to use available safety devices as “sole proximate cause” instead of “recalcitrant worker.”


Labor Law §240   Labor Law §241   Gravity Risk   Indemnity  

Second Deptartment

Worker injured by weight of heavy beam he was carrying on his shoulder as he walked down stairs was not entitled to protection of Labor Law §§240(1) and 241(6) because the injuries were caused by weight of the bean and walking down stairs, not the direct application of gravity on an object or person by an elevated risk. Sullivan v New York Athletic Club of City of N.Y.

Comment: See companion case at Sullivan v New York Athletic Club of City of N.Y.


Premises Liab   Dangerous Condition   Create Condition   Notice  

Second Deptartment

Homeowners failed to show that hole in lawn covered by grass was a “naturally occurring topographic condition,” that they “could not reasonably be expected to remedy.” They made out prima facie entitlement to summary judgment on proof that they did not create condition or have notice of it, but plaintiff raised issues of fact in opposition. Mustafaj v Macri


Premises Liab   Slip/Trip   Stairs   Dangerous Condition   Expert Aff   Conclusory  

Second Deptartment

Homeowner granted summary judgment where plaintiff opened door thinking he was walking into a bathroom and fell down a flight of stairs when he could not find the light switch on proof that the stairs were in a reasonably safe condition considering all the circumstances. Plaintiff failed to raise an issue of fact in opposition and his expert’s affidavit was conclusory. Caputo v Spindler


Pothole Law   Slip/Trip   Prior Written Notice   Causation   NYC  

First

NYC entitled to summary judgment on proof that it did not receive prior written notice of pothole in street that plaintiff tripped on. Repair records indicating defects in the general area were not sufficient prior written notice of the defect plaintiff tripped on. Prior repair of pothole did not prove that repair created in immediately dangerous condition. Trentman v City of New York


Prior Written Notice   Strike Answer   Spoliation   Speculation  

Second Deptartment

Count granted town summary judgment on proof that it did not receive prior written notice of elevated drain that plaintiff struck with front wheel of his car and plaintiff failed to prove exceptions, either that town created the condition or made special use of area that conferred a special benefit upon it. Plaintiff’s cross motion to strike defendants Answer for spoliation denied as speculative. Cruzate v Town of Islip


Premises Liab   Create Condition   Notice   Strike Answer   Willful/Contumacious   NYC  

First

NYC granted summary judgment against plaintiff and parochial school on proof that it neither created nor had actual or constructive notice of the dangerous nature of the police barricades it lent to parochial school to block off street as a play area when the barricades struck the plaintiff by a gust of wind. Church’s cross motion to strike NYC’s Answer for failing to comply with a discovery order denied as moot and for lack of proof that the partial production was willful/contumacious. Ramirez v Our Lady of Refuge Catholic Church


Premises Liab   Slip/Trip   Create Condition   Notice   Unknown Cause   Speculation   Open/Obvious   Comparative Fault  

First

Port Authority denied summary judgment were plaintiff identified yellow chain on the ground under defendant’s control and left unattended as the cause of his fall and defendant’s claim that black ice may have caused the fall was speculative. Issue of whether yellow chain was open/obvious went solely to the issue of comparative fault and plaintiff was no longer required to show freedom from comparative fault for summary judgment. Derix v Port Auth. of N.Y. & N.J.


Negligent Supervision  

Second Deptartment

School district did not eliminate all triable issues of fact, even though plaintiff did not oppose motion for summary judgment, where plaintiff testified that heavy gym door slammed on his hand as he reached back to grab it in response to teacher’s direction not to let door slam shut, Murray v Ardsley Union Free Sch. Dist.


Discovery   Strike Answer   Preclusion   Willful/Contumacious  

Second Deptartment

One defendant’s failure to appear for deposition scheduled 4 times by court order and stipulations was found to be willful/contumacious, despite attorney’s efforts to locate the defendant, but lower court’s grant of order precluding that defendant from offering any evidence made sanction of striking defendant’s Answer an improvident exercise of discretion. Chowdhury v Hudson Val. Limousine Serv., LLC


False Imprisonment   Motion to Dismiss   Statute of Limitations  

Second Deptartment

Complaint dismissed as beyond 1-year intentional statute of limitations where action was brought 3 years after incident. Silver v Silver


Serious Injury   BP  

Second Deptartment

Defendant failed to meet its initial burden for summary judgment on serious injury where it did not address plaintiff’s claims under the 90/180-day category alleged in BP. Alperin v Herwerth


Venue   Untimely  

First

Defendants’ motion to change venue from New York to Suffolk County denied as they did not timely demand a change of venue under CPLR 511(a) nor demonstrate entitlement on discretionary grounds. Plaintiff properly placed venue in New York County based on codefendant’s Secretary of State filing of listing New York County as principal place of business and defendants failed to show that had been changed. Villalba v Brady


Serious Injury   BP  

Second Deptartment

Defendants made out entitlement to summary judgment on serious injury of infant-plaintiffs by medical proof on permanent consequential and significant limitation categories and plaintiffs’ testimony that they did not miss any school on the 90/180-day category. Romero v Austin

IF YOU MUST READ
(3 summaries)
MUST READS NOTEWORTHY

Serious Injury  

Second Deptartment

Defendants made out entitlement to summary judgment on serious injury by medical proof on permanent consequential, significant limitation, and 90/180-day categories and plaintiff failed to raise an issue of fact in opposition. The court does not give the details of the proofs. Wilson v Somelofski


Serious Injury  

Second Deptartment

Defendants met their initial burden for summary judgment on serious injuries by competent medical proof, but plaintiff raised issues of fact in opposition. The court does not give the details of the proofs. Apsel v Steamy, Inc.


Serious Injury  

Second Deptartment

Defendants met their initial burden for summary judgment on serious injuries by competent medical proof, but plaintiff raised issues of fact in opposition. The court does not give the details of the perks. Coston v Asitimbay

About Matt McMahon

Civil trials and appeals since 1984
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