May 1, 2018 | Vol. 104

MUST READS
(7 summaries)
NOTEWORTHY IF YOU MUST READ

Premises Liab   Res Ipsa Loquitor   Notice   Expert Aff  

First

Homeowner denied summary judgment because notice need not be proved for res ipsa loquitor. Fact that homeowner did not have exclusive possession of the wooden deck prior to their 2009 purchase did not eliminate application of res ipsa loquitor where only negligent maintenance was alleged. Plaintiff’s expert opined that negligent maintenance was more likely than a design or construction defect which was supported by engineer inspection report at the time of purchase and defendants’ testimony that they held large parties on the wooden deck over the years before plaintiff’s accident. Mejia v Delgado


Products Liab   Med Mal   Expert Aff   Conclusory  

First

Manufacturer of device for removal of blood clots and foreign bodies, 2 of which fractured during an attempt to treat plaintiff’s husband’s brain aneurysm, granted summary judgment on opinions of expert bioengineer, vascular neurologist, and engineer that device was state-of-the-art and complied with all industry standards at time of design and its utility outweighed the risk of the low fracture rate of less than .25%. The risk was disclosed in the “instructions for use” accompanying the device and doctor testified that he was aware of the risk, entitling the manufacturer to summary judgment on duty to warn claim. Tests plaintiff’s expert relied upon described methodology in general terms were properly ignored and expert’s opinions were otherwise conclusory. Plaintiff’s expert did not explain how the proposed design changes would have changed the outcome. Ford v Riina


Labor Law §240   Falling Object   Directed Verdict  

Second Deptartment

Verizon worker struck by tire that fell from a roof he was accessing to investigate loss of data to the commercial tenant not entitled to protection of Labor Law §240(1) because the tires were not in the process of being hoisted or secured, did not require securing for the task, and would not normally be expected to be secured for the task. Directed verdict for plaintiff at the end of evidence reversed and directed verdict for building owner granted. Commercial tenant previously dismissed from case. Ruiz v Ford


Premises Liab   Slip/Trip   Stairs   De Minimus   Expert Aff  

First

Building failed to meet its burden of showing that the defect on the stairs that caused plaintiff’s fall was trivial because photographs relied upon by its expert showed 6 steps with an area that had been repaired, expert did not affirm that stairs in the photograph had not changed since the accident or explain why the plaintiff’s photographs showed 5 steps with a hole around a crack in the bottom stair by the handrail. Ifill-Colon v 153 E. 149th Realty Corp.


Set Aside Verdict   Comparative Fault   Materially Deviates   Pain/Suffering  

Second Deptartment

Jury’s finding of 80% comparative fault where plaintiff stepped into pothole covered with black ice outside of crosswalk was against the weight of the evidence given the clear evidence of the condition. Verdict set aside and remanded for new trial on apportionment unless plaintiff stipulated to entry of judgment with 55% comparative fault.

$150,000/$0 dollars past/future pain/suffering did not deviate from fair compensation where for 2 fibula fractures and 1 tibia fracture, at least one of which was an open fracture. Robinson v Brooklyn Union Gas Co.


Untimely   Frye  

First

The parties had agreed to a procedural path allowing defendants’ summary judgment motions to be timely beyond CPLR’s 120-days. In remanding the motion for reconsideration, the Appellate Division recommended that the lower court examine the plaintiff’s experts’ opinions in various affidavits in light of a previous Frye hearing to see if the opinions on exposure and causation are supported in medical and scientific literature. Reeps v BMW of N. Am., LLC


Discovery   Sanctions  

First

Defendant’s demand of infant plaintiff’s social media records for 5 years prior to the accident overbroad and not reasonably tailored to obtain relevant information. Social media records for 2 months prior to accident to present, provided by plaintiff, reasonable under the Court of Appeals recent case of Forman v Henkin, 30 NY3d 656 (2018). Defendant failed to submit documents necessary to show that plaintiff did not comply with prior discovery order. Doe v Bronx Preparatory Charter Sch.

NOTEWORTHY
(20 summaries)
MUST READS IF YOU MUST READ

Labor Law §240   Labor Law §241   Labor Law §200   Ladder   Sole Cause   Industrial Code   Expert Aff   Speculation   Feigned Issue  

First

Plaintiff granted summary judgment on Labor Law §240(1) on his testimony that unsecured ladder suddenly slipped causing him to fall. Defendant denied summary judgment on §241(6) based on industrial code §23-1.21(b)(4)(ii)(slippery floors for ladders) where question of fact remained as to whether surface was slippery. Defendant failed to raise question on sole cause without evidence that other safety devices were readily available and plaintiff was instructed not to use the ladder or do the work. Coworker’s subsequent affidavit to the contrary raised only a feigned issue. Defendant’s expert’s opinions were speculative based on an examination of the area 2 years after the accident. Tuzzolino v Consolidated Edison Co. of N.Y.


Labor Law §240   Question of Fact  

First

Cable installation manager denied summary judgment on Labor Law §240(1) where supervisor’s affidavit showed that manager was not to climb utility pole and installer testified that manager was not present at the installation and there was no difficulty with the installation as claimed by the manager. Questions of fact existed as to whether plaintiff was acting within the scope of his duties, necessary for Labor Law §240(1), and how the accident occurred. McCue v Cablevision Sys. Corp.


Late Notice of Claim   Labor Law §240   Labor Law §241   Labor Law §200   Actual Knowledge   Reasonable Excuse   Prejudice   NYC  

Second Deptartment

Accident reports on a School Construction Authority form did not give NYC actual knowledge of the essential facts constituting the claim within 90-days because they made no reference to the claims in the proposed late Notice of Claim. Petitioner failed to offer reasonable excuse for failure to timely serve Notice of Claim or “evidence or plausible argument” that the delay did not substantially prejudice NYC. Matter of Wilson v City of New York


Premises Liab   Amend Notice of Claim   Reasonable Excuse   Prejudice  

First

Plaintiff failed to offer reasonable excuse for waiting for more than a year after receiving defendant’s discovery response indicating that the address in the Notice of Claim and amended Notice of Claim did not exist to seek leave to amend the Notice of Claim. NYCHA showed that the confusion created by the incorrect address deprived it of the opportunity to timely investigate. Fact that section, lot, and block of address were correct did not eliminate confusion caused by incorrect address. Rivera v New York City Hous. Auth.


Late Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice  

Second Deptartment

Petitioner’s claims of reports that would prove respondent had actual knowledge of essential facts within 90-days was insufficient to show actual knowledge without the content of the purported reports. Plaintiff failed to show reasonable excuse for not timely filing Notice of Claim and provide “some evidence or plausible argument” that respondent was not prejudiced. Matter of Degraffe v New York City Tr. Auth.


Med Mal   Motion to Dismiss   Personal Juridiction  

Second Deptartment

Lower court’s finding after hearing that plaintiff’s service of LIJ Health Systems on LIJ Medical Center was improper on proof that no one at LIJMC was authorized to accept service for LIJ Health Systems and that no one fitting description in affidavit of service worked at LIJMC. Once affidavit of service is rebutted, burden falls on the plaintiff to show proper service and Second Department gave great weight to lower court’s findings of credibility. Teitelbaum v North Shore- Long Is. Jewish Health Sys., Inc.


Premises Liab   Workers Comp Defense   Alter Ego  

Second Deptartment

Corporation that owned building entitled to summary judgment for Plaintiff’s fall on proof that it was the alter ego of the LLC that employed the plaintiff, showing that it was sole owner and manager of LLC, that LLC was formed to provide bus drivers for corporation’s school bus company, and that they shared the same Workers’ Comp. policy. Clarke v First Student, Inc.


Premises Liab   Motion to Dismiss   Storm in Progress  

Second Deptartment

Leases, assignments, and modification and extension agreement did not conclusively establish that defendant was not responsible for maintaining property and was therefore not “documentary evidence” on its motion to dismiss. Likewise, certified meteorological records did not conclusively establish a storm in progress because they were from Central Park, in a different County from accident. Sims v Prom Realty Co., LLC


Premises Liab   Slip/Trip   Notice   Last Inspection  

First

Cemetery denied summary judgment on director’s testimony that he had not received prior complaints of hole in the grounds where plaintiff fell but did not testify that he was working on day of the accident. Director’s testimony that he inspected grounds when time permitted did not eliminate possibility of constructive notice without proof of last time area was inspected. Savio v St. Raymond Cemetery


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

First

Certified climatological records, meteorologist’s opinion, and plaintiff’s testimony established that fall occurred during storm in progress, entitling defendant to summary judgment. Defendant not required to show last time it cleared snow, analogous to last inspection, which is only relevant to issue of constructive notice. Sow v Fedcap Rehabilitative Servs., Inc.


MVA   Causation  

First

Owner and driver of car that broke down and pulled into bus stop when plaintiff recognized him and pulled in front of him to help were not the cause of plaintiff’s injuries when their car was hit by another car pushing it into the plaintiff. Owner and driver of malfunctioning car had opened hood and put hazard lights on and there was no evidence that the car was in the travel lane or obstructed traffic as was evident from fact that the plaintiff was able to pass him and pull over before the accident. Pena v Anokye


MVA   Rear End   Nonnegligent Explanation  

First

Lawfully double parked taxi customer with exiting passenger, not negligent as a matter of law when it was rear ended by another car and pushed into car plaintiff was exiting. Fact that taxi was rear ended proved it was not negligent and plaintiff failed to offer nonnegligent explanation for the driver of the car that rear-ended the taxi. Falcone v Dorius


Premises Liab   Create Condition   Notice  

First

Condominium’s cross motion to dismiss Complaint and cross claims, unopposed by plaintiff, granted where condominium declaration showed it was responsible to maintain only “common areas” which did not include car lift elevator that injured plaintiff in the “parking area.” Condominium showed that it neither created the condition nor had notice of it. Barksdale v BP El. Co.


Premises Liab   Construction Liab.   Pedestrian   Res Ipsa Loquitor  

First

Building owner and operator denied summary judgment where piece of metal fell from building during construction striking plaintiff pedestrian. Questions of fact existed as to whether owner and operator breached nondelegable duty not to injure persons on the sidewalk. Construction defendants granted summary judgment where plaintiff failed to rebut proof that metal did not come from work they were performing, but from work on floor above them. Plaintiffs could not rely on res ipsa loquitur because they could not show that construction defendants were in exclusive control of the metal. Kosakowski v 1372 Broadway Assoc., LLC


Labor Law §240   Labor Law §241   Labor Law §200   Premature Motion  

Second Deptartment

Subcontractor entitled to summary judgment in Labor Law §§ 240(1), 241(6), 200 case on proof that it never hired plaintiff’s employer for work being done by plaintiff, never had control over plaintiff, and had finished its work and removed all its equipment months before accident. Plaintiff failed to meet burden of showing that further discovery might lead to relevant evidence or facts on its claim that the motion was premature. Cusumano v AM&G Waterproofing, LLC


Premises Liab   Venue   Motion to Dismiss  

First

Real estate corporation not on the deed denied motion to dismiss as affidavit of principal did not constitute documentary evidence and did not utterly refute the allegations in the complaint. Motion to change venue from Bronx to Westchester denied where real estate corporation was located in the Bronx where accident occurred. Celentano v Boo Realty, LLC


Premises Liab   Open/Obvious   Inherently Dangerous   Expert Aff  

Second Deptartment

Sloped cement between brick pathway and lawn was open and obvious and not inherently dangerous as a matter of law based on photographs identified by plaintiff. Plaintiff failed to raise issue of fact despite expert opinion. Espinosa v Fairfield Props. Group, LLC


Defamation   Forum non conveniens   Personal Juridiction   Motion to Dismiss  

First

Bahama defendant’s motion to dismiss for forum non conveniens denied where factors weighed more heavily in favor of New York plaintiff. No one factor is dispositive but plaintiff’s residence in New York, Bahama defendant’s strong presence in New York including owning an apartment here, defendant’s adequate means to litigate in New York, application of New York law, lack of pretrial discovery and jury in Bahamas and defendant’s 14-month delay in bringing motion all favored maintaining venue in New York. Twelve related actions in the Bahamas favored defendant but they did not include the same defendants or a claim for defamation. Bacon v Nygard


False Arrest   False Imprisonment   Malicious Prosecution   Probable Cause   NYC  

First

Police officer’s observation of plaintiff soliciting people for 3-card Monte, and identified victim accusing plaintiff of engaging in 3-card Monte, provided probable cause for arrest, imprisonment, and prosecution. Plaintiff failed to raise any impeachment of officer’s credibility. Davis v City of New York


Defamation   Emotional Harm   Outrageous Conduct   Motion to Dismiss   Amend Complaint  

Second Deptartment

Action by club member and her partner, who was not a club member, for defamation, intentional and negligent infliction of emotional harm, and prima facie tort dismissed for failure to state a cause of action where statements were expressions of opinions, complaints to board about partner’s actions which led to partner being precluded from club for 1 year, were not extreme and outrageous for intentional infliction of emotional harm, and lacked the “guarantee of genuineness” necessary for negligent infliction of harm. Because the proposed amended Complaint would not cure these defects it was palpably insufficient. Nachbar v Cornwall Yacht Club

IF YOU MUST READ
(1 summaries)
MUST READS NOTEWORTHY

Malicious Prosecution   Reargument  

First

Malicious prosecution action dismissed against attorney who provided the allegedly false information about “of counsel” relationship of plaintiff attorney to District Attorney resulting in plaintiff attorney being arrested. The lower court properly granted reargument and granted summary judgment to defendant based on its failure to appreciate the documentary evidence showing that the underlying criminal case was not finally terminated in plaintiff’s favor where (according to lower court decision) the plaintiff attorney accepted an ACD. Mohyi v Karen G. Brand P.C.

About Matt McMahon

Civil trials and appeals since 1984
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