June 5, 2018 | Vol. 109

MUST READS
(7 summaries)
NOTEWORTHY IF YOU MUST READ

Med Mal   Accepted Practice   Causation   Expert Aff  

First

Plaintiff’s expert’s opinion raised an issue of fact on departure from accepted practice applying the same standard of care as defendants’ expert but in doing so conceded defendants’ expert’s opinion that the decubitus ulcer prevention protocol had to be tailored to the patient, entitling defendants to summary judgment. Failure to document each step of the procedure did not mean that each step was not taken and could not be the cause of plaintiff’s decedent’s condition. Braunstein v Maimonides Med. Ctr.


Med Mal   Subpoena  

Second Deptartment

Defendant-doctor’s motion to quash trial subpoena served on his attorney on claim that he was outside the jurisdiction of the court because he moved to South Carolina before trial denied. Under CPLR §§2103(b) & 2303(a) service of a subpoena for a party’s attendance may be made on the party’s attorney and party would be considered “found in the state” under Judiciary Law §2-b(1). Chicoine v Koch


Labor Law §240   Labor Law §241   Labor Law §200   Safety Devices   Industrial Code   Notice   Create Condition  

First

In action where masonry helper carrying marble up basement stairs to scaffold platform fell while walking backwards, the First Department defines the test for finding that a company is acting as an agent for the owner under Labor Law §§240(1), 241(6) as whether it had authority over the plaintiff’s work, not whether it exercised that authority, in contrast to where it only had authority to make recommendations. Under that test, safety consultant denied summary judgment where it had authority to stop plaintiff’s work, raising a question of fact.

Plaintiff and construction manager both denied summary judgment on conflicting testimony regarding whether plaintiff fell only to the floor of the scaffold or off of the scaffold and whether the scaffold was defective. Defendants granted summary judgment on Labor Law §200 and negligence based on a dangerous condition where there was no proof that defendants created the condition or had notice of it, and to the extent based on means and methods of work, that it exercised any control of the choices made by the plaintiff’s employer. There was 1 dissent on the denial of summary judgment for plaintiff. Santos v Condo 124 LLC


Labor Law §240   Labor Law §241   Labor Law §200   Untimely   Safety Devices  

First

Defendants’ untimely cross-motion considered only as to Labor Law §240(1) which was part of plaintiff’s timely motion for summary judgment and not considered at to Labor Law §§241 & 200 which were not included in plaintiff’s timely motion. Plaintiff granted summary judgment where large stones fell on pipe scaffold breaking a bracket holding the planks he was standing on, causing him to fall 35 ‘, for failing to provide a scaffold sufficient to withstand the fall of the heavy stone and a safety harness and line to keep him from falling or hoisting equipment to safely raise the heavy stones. Jarama v 902 Liberty Ave. Hous. Dev. Fund Corp.


Vacate Default   Reasonable Excuse  

Second Deptartment

Motion to vacate default of musician who scheduled Mexico tour after trial date was set and did not communicate this fact to his attorney until the date for jury selection though they spoke several times before the trial date denied for failure to give a reasonable excuse after the jury was selected and the judge gave him an additional week to appear. Nor was plaintiff entitled to vacate in the interest of justice which is reserved for unique and unusual circumstance. Cox v Marshall


Default Judgment   Pain/Suffering   Materially Deviates  

First

Award of $25,000/$25,000 past/future pain/suffering at inquest for worker who sustained 2 jaw fractures and an impacted tooth requiring internal fixation and plastic surgery materially deviated from reasonable compensation and was modified to $250,000/$250,000. Nawrocki v Huron St. Dev. LLC


MVA   Recreational Use   Trespass   NYC  

First

NYC as owner and Kinney as lessee of Yankee stadium parking lot granted summary judgment where trespassers used lot for motorcycle and ATV racing, based on recreational use statute because the lot off season was suited to that activity (enumerated in GOL §9-103) and there was no willful or malicious conduct by the defendants. Kinney granted summary judgment even though it did not rely on recreational use as a defense since defense is available to lessees and appeared on the record. Rodriguez v City of New York

NOTEWORTHY
(21 summaries)
MUST READS IF YOU MUST READ

Set Aside Verdict  

First

By appealing solely from the denial of the motion to set aside the verdict, and not from the judgment, plaintiff waived all arguments other than that the verdict was against the weight of the evidence. Since plaintiff failed to attach transcripts or relevant portions of transcripts to the motion, it had to be denied as no meaningful review could take place. Frank v City of New York


Premises Liab   Slip/Trip   De Minimus  

Second Deptartment

Defendants did not make out prima facie entitlement to summary judgment on claim that defect in parking lot where plaintiff tripped was trivial under the circumstances. “Factors that may render a physically small defect actionable include ‘a jagged edge; a rough, irregular surface; the presence of other defects in the vicinity; poor lighting; or a location—such as a parking lot, premises entrance/exit, or heavily traveled walkway—where pedestrians are naturally distracted from looking down at their feet.'” Lomele v Chawla


Labor Law §240   Labor Law §241   Labor Law §200   Gravity Risk   Causation   Premature Motion  

First

Labor Law §240(1) claim dismissed where worker lost balance while carrying pipe on a ramp that was 6-10” above floor. Height differential was not physically significant, the ramp was serving as a passageway and not the “functional equivalent” of a safety device, and he fell from losing balance and not the direct force of gravity. Industrial code §23-1.5(c), subsections (1) and (2) were not sufficiently specific to serve as predicates for Labor Law §241(6) and subsection (3) did not apply because the ramp was not a safety device, safeguard, or equipment as defined in that industrial code. Defendants denied summary judgment on Labor Law §200 and negligence claims where record showed facts essential to oppose may exist and defendants had not yet been deposed. Jackson v Hunter Roberts Constr. Group, LLC


Labor Law §240   Safety Devices   Materially Deviates  

Second Deptartment

Worker who removed safety line that would not allow him to reach coworker who asked for help in discarding a metal beam that broke a wooden beam supporting the floor they were standing on causing worker to fall to floor below entitled to summary judgment on Labor Law §240(1) because worker was not provided with safety device capable of protecting him from a fall without additional devices or measures. Jury awarded damages of $629,000 for future pain/suffering did not materially deviate from reasonable compensation given plaintiff’s youth and similar awards and the award of $216,000 for future medical expenses was supported by evidence and did not materially deviate from reasonable compensation. The total jury award was $2,251,663.07, including $80,000 for past pain and suffering. Plaintiff moved to set aside past pain/ suffering award as inadequate, but the appellate court did not address that issue or give its reasons for not addressing it. Munzon v Victor at Fifth, LLC


Dram Shop  

Second Deptartment

Restaurant that served alcohol to 20-year-old who drank at other establishments before crashing into guardrail injuring plaintiff-passenger entitled to summary judgment on bartender’s testimony that it did not know or have reason to know that patron was a minor as required by GOL §11-100 (procuring alcohol for a minor) which was intended to parallel §11-101 (unlawfully selling alcohol). Ferber v Olde Erie Brew Pub & Grill, LLC


Workers Comp Defense   Grave Injury   Expert Aff  

First

Plaintiff’s employer granted summary judgment where evidence showed that plaintiff suffered serious injury to his hand, but no expert could show that it was a total loss or that plaintiff was restricted to “passive use” of the hand. Hernandez v Seadyck Realty Co., LLC


MVA   Emergency Doctrine  

First

Driver of car that struck NYCTA vehicle that plaintiff was a passenger in, immediately after NYCTA vehicle made a U-turn directly in front of him, evoked emergency doctrine and driver did not have sufficient time to react to emergency entitling him to summary judgment. Mack v Seabrook


MVA   Workers Comp Defense   Res Ipsa Loquitor  

Second Deptartment

Bus company whose carrier was found by the WCB to be plaintiff-bus matron’s employer entitled to summary judgment on Worker’s Compensation exclusivity. WCB is the trier of fact on issue of who is plaintiff’s employer and plaintiff can only dispute the finding by appealing board’s decision. Bus driver, employed by a different company, failed to show that he was a “special employee” of plaintiff’s employer such as by showing that plaintiff’s employer controlled the manner, details, and result of the work, or was responsible for paying bus driver or furnishing equipment. Owens v Jea Bus Co., Inc.


Estate  

First

Appeal from supreme court order dismissing case for delay in requesting substitution of plaintiff who died after discovery dismissed where plaintiff counsel could not show who hired him or his firm to represent the legatees or the potential estate. Snipes v Schmidt


Premises Liab   Out of Possession   Reargument   Prejudice  

First

Out of possession owner granted reargument based on lease extension mentioned in original motion, and provided to plaintiff before the motion, but inadvertently omitted and on reargument granted summary judgment as owner did not have a duty to make repairs even though it had the right to enter and repair and the rusty hinges of the basement door that swung back hitting plaintiff in the head was not a structural defect that violated a specific safety provision. Management company granted summary judgment on proof that it only managed residential portions of building. Cuthbert v Foreign Dev. Serv., Ltd.


Serious Injury   Reargument   Expert Aff   ROM   BP   Raised For First Time  

First

Lower court should have granted reargument where plaintiff inadvertently omitted doctor’s affirmed report discussed in motion and provided to defendants prior to motion. Plaintiff’s doctor raised issues of fact on cervical and lumbar injuries by finding of continuing limited ROM, positive objective tests, and opinion linking injuries to accident. Shoulder injury was not pleaded in BP and did not need to be addressed. Plaintiff’s testimony that she returned to work after 2-3 weeks was sufficient to dismiss 90/180-day category. Hernandez v Marcano


Premises Liab   Assumption of Risk   Open/Obvious  

Second Deptartment

School granted summary judgment where infant-plaintiff’s cleat got stuck in silver painted metal grate 4’ from soccer field while retrieving an out of bounds ball based on plaintiff’s testimony and photographs showing that grate was open and obvious and plaintiff had to walk over it to access the field. Plaintiff assumed the risks associated with playing soccer including field conditions that were open and obvious. O’Toole v Long Is. Jr. Soccer League, Inc.


Premises Liab   Slip/Trip   Notice of Claim   50-H  

First

Former owner of property granted summary judgment on proof that it sold premises 4 years before accident and did not maintain or control premises where plaintiff fell on slippery substance on escalator in train station since sale. NYCTA denied summary judgment on claimed insufficiency of Notice of Claim where Notice of Claim and 50-H hearing give sufficient information for NYCTA to investigate the accident and apprise it of plaintiff’s theory. Ingrao v New York City Tr. Auth.


Labor Law §240   Labor Law §200   Safety Devices  

First

Plaintiff’s cross motion for summary judgment on Labor Law §240(1) granted where plaintiff fell through particleboard covering elevator hatch that was clearly not sufficient to hold his weight. Argument that hatch was not intended as a safety device missed the point that hatch presented the elevated risk for which a safety device was required. Plaintiff denied summary judgment on Labor Law §200 for questions of fact as to whether he knew that particleboard was insufficient and whether it was placed by defendant’s employees. Giancola v Yale Club of N.Y. City


Premises Liab   Slip/Trip   Snow/Ice   Storm in Progress   Duty   Expert Aff   NYC  

First

NYC granted summary judgment on uncontroverted proof that accident happened during a storm in progress. Plaintiff’s expert did not explain how NYC created or exacerbated condition during the storm. Claim that NYC failed to adhere to its procedures rejected because it would impose a higher duty than reasonable care and there was no showing of detrimental reliance. Negligence claim for not pre-salting failed because it was not an affirmative act that created or exacerbated the condition. Mimikos v City of New York


Premises Liab   Slip/Trip   Snow/Ice   Stairs   Question of Fact  

Second Deptartment

Owner of 2-family house denied summary judgment based on conflicting versions of the snow and ice conditions on the date of the accident. Schumacher v Pucciarelli


Premises Liab   Dangerous Condition   Res Ipsa Loquitor  

First

Building granted summary judgment on proof that door to roof of parking garage was regularly inspected, there were no complaints or prior accidents, and no indication that the door was defective. Res ipsa loquitur did not apply because infant-plaintiff’s version left the possibility his voluntary actions caused the accident. Dillon K. v Northern Blvd. 4818, LLC


Spoliation   Strike Answer  

Second Deptartment

Plaintiff’s motion to strike defendant’s Answer for not preserving video footage that was routinely written over every 30 days where spoliation letter was sent after video was overwritten denied since it was destroyed in the normal course of business and defendant was not on notice of the need to preserve it before it was destroyed. Tanner v Bethpage Union Free Sch. Dist.


False Arrest   False Imprisonment   Malicious Prosecution   Probable Cause  

First

False arrest, false imprisonment, and malicious prosecution claims dismissed where there was probable cause for the search warrant based on a confidential informant’s drug buys on 3 occasions. Veloz v City of New York


Design Defect   Bus   Discovery  

First

Plaintiff’s demand for 15 years of records overly burdensome and reduced to 5 years for only relevant parts of bus. Defendants could be present during plaintiff’s inspection of bus as long as they did not interfere. Defendants were not required to create a document showing no changes to the bus, but plaintiff was entitled to discovery of any changes. Curran v New York City Tr. Auth.

Comment: This decision was made on a motion to reargue and replaced the original decision dated January 2, 2018, reported in Vol. 88, although the decisions seem identical.


Discovery   Feigned Issue  

First

Plaintiff’s motion to compel depositions of additional witnesses denied for failing to show that witnesses already deposed were not sufficient. Plaintiffs 1-page affidavit contradicted his testimony at deposition and was properly ignored. Broderick v Edgewater Park Owners Coop., Inc.

IF YOU MUST READ
(3 summaries)
MUST READS NOTEWORTHY

MVA   Motion to Dismiss   Statute of Limitations   Raised For First Time  

Second Deptartment

Defendant granted summary judgment on causes of action for pain/suffering and wrongful death as the argument was raised for the first time on appeal and is not a pure question of law appearing on the face of the record. Tsiboukis v Estate of Eleftherios Nicolopoulos


Premises Liab   Assumption of Risk  

First

Under Pennsylvania law homeowner could not be liable to guest injured when another guest jumping on a trampoline fell on the plaintiff because the plaintiff was aware of the risks. Ramos v Hamelburg


Premises Liab   NYC  

First

The Appellate Division reversed denial of summary judgment for NYCHA without giving any details of the case. Cortijo v New York City Hous. Auth.

About Matt McMahon

Civil trials and appeals since 1984
Bookmark the permalink.

Comments are closed