Labor Law §241 Indemnity
 Plaintiff’s thumb was injured while cutting plywood on an unguarded table saw in area on the 16th floor, where approved construction company was allowed to keep their tools and materials without rent, for a bathroom renovation on the 41st floor. Question of fact existed as to whether workspace on 16th floor was a “construction area” for Labor Law §241(6). Work was integral to the construction and not “fabrication and transportation of materials.” Landlord granted summary judgment on cross-claim for contractual indemnity where contract language was clear. Karwowski v 1407 Broadway Real Estate, LLC
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Labor Law §240 Ladder Admissibility Hearsay Notice
Summary judgment on Labor Law §240(1) for painter hired by deli owner to paint a decoration on a sign using an unsecured A-frame ladder provided and set up by the deli owner based on testimony that the unsecured ladder shifted, causing him to fall. Unsworn statements of deli owner and worker, who were not listed in responses to discovery demands which also stated that defendants were not in possession of statements, were hearsay and not admissible as they were the only evidence relied upon by the defendants. Building owner liable under Labor Law §240(1) even though tenant did not notify it of the work to be performed. Gonzalez v 1225 Ogden Deli Grocery Corp.
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Negligent Supervision Discovery Privilege
Plaintiff-mother’s motion for discovery of her child’s foster care records on claim that family services negligently certified foster parent granted to include identities of ACS caseworkers, mental health and other professionals with in camera review to redact information of other foster children. A former foster child has a right to his/her own records and “only a powerfully compelling showing would justify the court in potentially restricting” access to the records. K.B. v SCO Family of Serv.
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Indemnity Coverage
Glass subcontractor whose employee was injured by falling glass was not entitled to summary judgment in action by building owner, general contractor and their carrier’s indemnity to recover a $465,000 settlement reached at an appellate conference after a $1 million verdict where subcontractor was aware of action and settlement negotiations. To recover a settlement from an indemnitor the indemnitee must show that the indemnitor had notice of the action and that it was a “reasonable good faith settlement,” or if the indemnitor did not have notice of the action, that the indemnitee “would have been liable and that there was no good defense to the liability.” Zurich Am. Ins. Co. v Tower Natl. Ins. Co.
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Discovery Strike Answer Willful/Contumacious Good Faith Aff Reargument Renew Reasonable Excuse
Lower court providently struck defendant’s Answer for failing to provide discovery required by multiple court orders despite prior conditional order of preclusion. Good faith affidavit was not defective given plaintiff’s prior attempts to compel discovery. Motion to renew/reargue denied where claim of medical issues impairing defense attorney’s ability to comply did not provide a reasonable excuse because it was not supported by medical proof. Rodriguez v Nevei Bais, Inc.
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CPLR § 3126 Note of Issue 90 Day Notice Reasonable Excuse
Complaint dismissed where plaintiff failed to file Note of Issue until 3 days after time in 90-day Notice, failed to move to vacate the 90-day Notice or extend the time to file the Note of Issue “before” the expiration of the time, and failed to seek any remedy to compel discovery. Plaintiff failed to offer a reasonable excuse for the delay. Austin v Gould
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Premises Liab Slip/Trip Set Aside Verdict Admissibility Pain/Suffering Materially Deviates CPLR 3122-a
Past/future pain/suffering reduced from $350,000/$1.3 million to $150,000/$250,000 for ankle fracture without surgery and exacerbation of spinal stenosis. It was error to allow plaintiff’s expert to compare plaintiff’s pre/post accident spinal stenosis based on a post-accident MRI because the pre-accident MRI film and report were not in evidence and the expert had not reviewed plaintiff’s pre-accident medical records. The error, however, was harmless. Mosley v E.H.J. LLC
Comment: From the lower court decision, plaintiff’s expert was allowed to testify on the post-accident MRI and film which were admitted under CPLR 3122-a.
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Med Mal Accepted Practice Causation Expert Aff
Plaintiff’s expert raised issues of fact on departure and causation by opining, based on review of medical records, that defendants departed from accepted practice by failing to diagnose the ectopic pregnancy on plaintiff’s complaints of abdominal pain and her BhCG levels not rising sufficiently, despite negative ultrasound, and in failing to prescribe methotrexate to terminate the pregnancy. Mathews v Stuyvesant Sq. Chem. Dependency Servs.
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Med Mal Accepted Practice Causation
Plaintiff’s expert failed to raise an issue of fact in opposition to defendants’ showing that they did not depart from accepted practice in their efforts at resuscitation after plaintiff’s decedent suffered a seizure like episode. Plaintiff’s expert’s opinion that defendants failed to establish an airway before introducing oxygen was contradicted by the records which showed that the decedent never stopped breathing naturally and that decedent’s pulse, circulation, and oxygen saturation were normal when EMS arrived. Rodriguez v Washington Hgts. Dental Practice, P.C.
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Med Mal Accepted Practice Respondeat Superior Expert Aff Informed Consent
Patient’s experts raised issues of whether a smaller catheter should have been used during cardiac ablations due to preexisting Factor V Leiden, whether Doppler studies after surgery should have done to rule out DVT, and whether the second surgery should have been delayed to allow greater activity. Doctor’s employment status was also at issue on claim of respondeat superior. Plaintiff failed to raise question on informed consent. Cabral v Stern
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Premises Liab Duty Notice Create Condition
Landlord’s motion for summary judgment denied where tenant gave superintendent verbal notice (written required in lease) of defective cabinet 3 months before cabinet fell on her and super tried to fix it at that time, raising issue of actual notice. Landlord failed to establish what caused the cabinet to fall and that it properly installed the cabinet, necessary to eliminate whether it created the dangerous condition. Santana v Kardash Reality Corp.
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Premises Liab Slip/Trip Snow/Ice 3rd Party Contractor Espinal Notice
 Snow contractor failed to show the snow removal efforts they made prior to plaintiff’s fall on black ice in a condominium complex and couldn’t eliminate issue of launching a force of harm by making the snow/ice conditions worse. Condominium granted summary judgment on proof that it did not have notice of the condition. Yvars v Marble Hgts. of Westchester, Inc.
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Premises Liab Battery Duty 3rd Party Contractor Espinal Amend Complaint
Security company owed no duty to shopper who was attacked by a store employee as plaintiff was not a 3rd party beneficiary to the contract and no Espinal exception applied. Santiago v K Mart Corp.
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Premises Liab Building Security
Building granted summary judgment on proof that it contracted to provide 24-hour security, had locking doors, an intercom system, and video cameras at all entrances. Coles v Tracey Towers Assoc., LP.
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MVA Turning Vehicle Comparative Fault
Motorcyclist who struck turning truck establish that truck which could not complete turn before the collision failed to yield the right of way. Plaintiff’s testimony that he was driving at 25 mph before collision and broke as soon as truck started to turn established that plaintiff was not at fault. Truck driver raised issue of comparative fault in opposition by his testimony that plaintiff was driving at an excessive speed. Shashaty v Gavitt
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Labor Law §241 Dangerous Condition
Defendant raised issue of fact regarding adequacy of lighting on Labor Law §241(6) claim. Gonzalez v West 38th St. Dev. LLCex
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Serious Injury Expert Aff ROM Degenerative Feigned Issue Speculation
Plaintiff failed to adequately explain 4-year treatment gap. He contradicted his testimony that he stopped after 6 months because he didn’t like doctors in his affidavit which stated that he stopped after 3 months because no-fault was denied and he testified that he had private insurance. This rendered his expert’s opinions speculative as to permanency, significance, and causation. Defendants’ experts’ findings of full ROM, normal tests, and that MRIs were either normal or showed degenerative changes made out entitlement to summary judgment. Vila v Foxglove Taxi Corp.
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Serious Injury Expert Aff ROM Preexisting Conclusory
Plaintiff failed to raise issue of fact in opposition to defendants’ prima facia showing of normal ROM, plaintiff’s doctor’s records showing that “hip strain” had resolved, plaintiff stopped treatment after 5 months, and that plaintiff had pre-existing conditions including corrected spina bifida and osteoarthritis that could be cause of symptoms. Plaintiff’s doctor offered only a conclusory opinion without explaining how injuries could be caused by accident and not pre-existing conditions. Plaintiff’s claim that he stopped treatment because of no-fault denial was contradicted by his testimony that he had private insurance. Latus v Ishtarq
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Premises Liab Unknown Cause Building Code
Building granted summary judgment where plaintiff was unable to identify what caused her to fall. Her claim that the lack of a handrail on the side she fell was a building code violation was speculative. Morchyk v Acadia 3780-3858 Nostrand Ave., LLC
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Premises Liab De Minimus
Homeowner failed to show that defect which caused guest to trip on concrete floor in backyard was physically insignificant and that surrounding circumstances did not increase the risk, necessary to show that defect was trivial and nonactionable. Cortes v Taravella Family Trust
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Premises Liab Sidewalk Bicycle Dangerous Condition Admissibility Feigned Issue
Condominium granted summary judgment where proof failed to show any dangerous condition that caused plaintiff to fall backwards from his bicycle and plaintiff admitted that photos did not show a defect. Plaintiff’s affidavit was not in admissible form lacking a translator’s affidavit (CPLR 2101(b)) and raised only a feigned issue as it contradicted his 50-h testimony. Sylla v Condominium Bd. of the Kips Bay Towers Condominium, Inc.
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CPLR § 3126
One defendant’s motion to dismiss for failure to prosecute providently denied where delays resulted mostly from difficulty deposing incarcerated defendant. Delay in providing post-EBT authorizations did not show intent to abandon case. Rosario v Albany Express
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Malicious Prosecution Amend Complaint Police Statute of Limitations NYC
Plaintiff’s motion to amend Complaint to substitute the police officers’ names for John Does denied as police officers were not “united in interest” with NYC, the original defendant. Malicious prosecution claim barred by acceptance of ACD. Campbell v City of New York
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