May 15, 2018 | Vol. 106

MUST READS
(8 summaries)
NOTEWORTHY IF YOU MUST READ

Labor Law §241   Construction Liab.   Intervening Cause   Foreseeability   Industrial Code  

Second Deptartment

Defendant failed to show that mechanic’s movement in crawlspace was extraordinary, unforeseeable, and far removed from defendant’s conduct necessary to constitute a superseding cause. Defendant also failed to show that industrial code §23-1.7(e)(1)(tripping in passageways) was not specific enough for liability under Labor Law §241(6) or inapplicable where elevator mechanic tripped in crawlspace under elevator motor causing his arm to get caught in pulley system. Industrial codes §§23-1.12(e)(guarding machinery belts, pulleys, flywheels) and (g)(guarding machinery wire rope) are both sufficiently specific for liability under Labor Law §241(6) and plaintiff’s expert raised an issue that location inside crawlspace didn’t protect mechanic working in crawlspace. Although industrial code permitted removal of an enclosure, the enclosure wasn’t being removed. Plaintiff failed to make out prima facie case for summary judgment and defendant failed to make out prima facie case for summary judgment on common law negligence theory. Rodriguez v 250 Park Ave., LLC


MVA   Set Aside Verdict   Pain/Suffering   Materially Deviates   Jury Charge   Serious Injury   Raised For First Time  

First

Plaintiff’s motion to set aside verdict awarding nothing for past pain/ suffering denied on against the weight of the evidence and materially deviates standards where jury could have rejected plaintiff’s description of her past pain/ suffering and found that it conflicted with objective medical proof. Plaintiff’s argument that jury should have been charged that they must award for pain/ suffering where it was already determined that plaintiff sustained a serious injury was not preserved since plaintiff did not object to the jury charge or the verdict sheet that instructed jury that they could enter “NONE” under pain-and-suffering. Argument that verdict was inconsistent also not preserved where plaintiff did not raise argument before jury was disbanded. Stanford v Rideway Corp.


Med Mal   Personal Juridiction   Service   CPLR §306-b   Statute of Limitations  

Second Deptartment

Plaintiff’s motion to extend time to serve Summons and Complaint past 120 days, after statute of limitations ran, granted in interests of justice where plaintiff made diligent efforts to serve the moving defendant, notified the carrier of default, and promptly moved for the extension once it was determined that service was improper. Furze v Stapen


Late Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice  

Second Deptartment

Petition to deem 2-month late Notice of Claim timely served nunc pro tunc of plaintiff driver who crossed median trying to avoid a partially opened manhole granted where NYC had actual knowledge of essential facts from the timely Notice of Claim of the driver that struck her, which also raised a plausible argument that NYC was not prejudiced. Lack of reasonable excuse for the delay was not fatal. NYC’s conclusory statements of prejudice were insufficient to raise an issue of fact where it failed to show how an investigation of one claimant’s accident would differ from the other’s. Matter of Tejada v City of New York


Late Notice of Claim   Negligent Supervision   Actual Knowledge   Prejudice   Reasonable Excuse  

Second Deptartment

Parent of 6-year-old with broken arm further injured at school when he was allowed to run down hallway unsupervised with his backpack and coat contrary to doctor’s note granted leave to serve late Notice of Claim. Original Notice of Claim was served on the village but not on school district, but school district had investigated the incident including why he was unsupervised. Actual knowledge within 90 days eliminated prejudice and the fact that petitioner lacked reasonable excuse was not grounds to deny the petition. Matter of D.D. v Village of Great Neck


Premises Liab   Stairs   Set Aside Verdict   Directed Verdict   Dangerous Condition  

First

NYCTA’s motion to set aside plaintiff’s verdict and dismiss action for plaintiff’s failure to make out a prima facie case at trial granted where evidence established that 3.5” gap directly under handrail of subway stairs was not part of walking surface but for drainage. Plaintiff failed to show the existence of a dangerous condition. Bligen v New York City Tr. Auth.


Med Mal   Directed Verdict   Set Aside Verdict   Pain/Suffering   Materially Deviates  

Second Deptartment

Past/future pain/suffering verdict of $1 million/$4 million materially deviated from reasonable compensation where jury found that defendants did not cause necrotizing enterocolitis by feeding procedure for premature infant and expert testimony was that delay of surgical intervention only resulted in loss of a greater amount of bowel. Verdict set aside unless plaintiff stipulated to reduction to $75,000/$500,000. Defendants’ motions for judgment as a matter of law and to set aside the verdict as against the weight of the evidence denied where there was a rational path for jury to conclude that defendants failed to order a timely surgical consult upon diagnosis of necrotizing enterocolitis and that jury’s decision was based on a fair interpretation of the evidence where there were conflicting expert opinions. Hollingsworth v Mercy Med. Ctr.


MVA   Admissibility   Preclusion  

First

Defendants’ biomechanical expert, Dr. Kevin Tossi, precluded from testifying based on photographs where no foundation was laid for photographs. Expert’s opinions must be based on facts in record or personally known to the expert. Pascocello v Jibone

NOTEWORTHY
(22 summaries)
MUST READS IF YOU MUST READ

MVA   Bus   Emergency Doctrine   Notice of Claim  

First

NYCTA granted summary judgment on proof that sudden stop causing plaintiff’s fall resulted from pedestrian suddenly running in front of bus. Plaintiff’s claim that her injuries were caused by lack of hand rail was not considered as it was not sufficiently included in the Notice of Claim. Cangelosi v New York City Tr. Auth.


MVA   Rear End   Set Aside Verdict   Directed Verdict   NYC  

First

Motion to set aside verdict in favor of fire truck that struck double parked while trying to go around it in response to an emergency denied, and plaintiff and codefendant owner of car plaintiff was in, were not entitled to directed verdict as fire truck driver’s actions were properly evaluated under reasonableness standard and facts did not fit within a rear end collision case. Pugh v City of New York


Premises Liab   Slip/Trip   Snow/Ice   Prior Written Notice   Notice   Create Condition  

Second Deptartment

Municipal defendant denied summary judgment where it failed to meet burden of showing that it did not create the snow/ice condition by plowing snow into piles that blocked drains, melted, and re-froze as alleged in the complaint, even where it did not have prior written or constructive notice of the ice. Seegers v Village of Mineola


Products Liab   Notice   Res Ipsa Loquitor  

First

Building owner, project manager, and general contractor entitled to summary judgment where bifold doors in plaintiff’s apartment were not negligently designed or manufactured as a matter of law. Installing subcontractor granted summary judgment on owner’s affidavit that he had installed hundreds of similar doors without issue and tested each one by opening and closing it several times to make sure it was safe. Defendants did not have notice of a defective condition since plaintiff never complained about the door whose hinge gave way when she attempted to open it. Res ipsa loquitor did not apply since the door was not exclusively within defendant’s possession. Lewis v MBD Silva Taylor Hous. Dev. Fund Co., Inc.


Premises Liab   Elevator   Notice   Res Ipsa Loquitor  

First

NYCHA’s motion for summary judgment denied where plaintiff’s testimony that electronically controlled door suddenly closed on him was sufficient to raise issue under res ipsa loquitor, and plaintiff’s testimony and affidavit from tenant that they had complained about the elevator door malfunctioning for months was sufficient proof of constructive notice to rebut defendant’s showing that the elevator was regularly maintained. Lilly v City of New York


MVA   Rear End   Serious Injury  

Second Deptartment

Plaintiff raised issue of fact on cervical and thoracic injuries in response to defendants’ prima facie entitlement to summary judgment on cervical, thoracic, and shoulder injuries. Plaintiff’s unopposed motion for summary judgment on liability, deemed academic by lower court, granted by Second Department on undisputed testimony that defendant rear ended vehicle plaintiff was in while it was stopped. Mulhern v Gregory


Med Mal   Amend Complaint   Wrongful Death   Expert Aff   Raised For First Time  

First

Plaintiff’s motion to amend Complaint to include wrongful death cause of action granted where expert affirmation connected negligence to decedent’s death. Submission of expert affirmation in reply was not fatal where defendant was given the opportunity for a sur reply. Frangiadakis v 51 W. 81st St. Corp.

Comment: Where a party raises something new in a reply, it is good practice to request permission (as required by most part rules) to submit a sur reply so that you can later argue prejudice on appeal if necessary.


Serious Injury   Degenerative   Preexisting   Causation   Expert Aff  

First

Defendant’s radiologist’s opinion that MRI showed degenerative disc disease and no trauma related injuries, and plaintiff’s medical records showing pre-existing arthritis, made out prima facie case for summary judgment and plaintiff’s doctor, who examined him years after the accident, failed to address plaintiff’s pre-existing degenerative changes found in the plaintiff’s records. Hessing v Carroll


Serious Injury   Preexisting   Expert Aff  

First

Affidavit of plaintiff’s doctor who examined plaintiff 5 years after accident was too conclusory to raise issue of fact in opposition to defendant’s entitlement to summary judgment on serious injury based on MRI reports showing the same herniated disc after accident as after accident 9 years earlier. Plaintiff’s doctor failed to address pre-existing condition. Polanco v Holkmann


Serious Injury   Motion to Dismiss   Renew   BP  

Second Deptartment

Defendants’ motion to dismiss claiming that plaintiff failed to plead a serious injury under no-fault law denied where Complaint and BP alleged facts (permanent loss, 90/180) that would constitute a serious injury. Renewal of motion for summary judgment based on subsequent accident with similar injuries should have been denied because defendant failed to make out prima facie entitlement on 90/180-day category. Epstein v MTA Long Is. Bus


Premises Liab   Sidewalk   Slip/Trip   Snow/Ice   Create Condition   Last Inspection  

First

NYCHA denied summary judgment even though it had no obligation to remove snow/ice from location, where it failed to show that it did not create or exacerbate the condition by snow removal efforts and failed to show that it inspected the condition before the accident and found it to be properly treated with sand or salt. Maynard-Keeler v New York City Hous. Auth.


MVA   Venue  

First

Grant of defendants’ motion to change venue from New York County, which was a proper venue based on the corporate defendant’s home office, to Suffolk County was not an improvident abuse of discretion based on affidavits of 2 police officers that they had investigated the accident, including interviewing witnesses, and would be inconvenienced by traveling to New York County which would require them to take a day off from their police duties, even where affidavits did not specifically state that they intended to testify or contain their home addresses. Kochan v Target Corp.


Venue  

First

Foreign corporation defendant’s motion to change venue from New York to Suffolk County denied where business authorization certificate listed New York County as place where office “is to be located,” and controls venue regardless of whether office was opened. Janis v Janson Supermarkets LLC


MVA   Bus   Emergency Doctrine  

First

Plaintiff granted summary judgment on his affidavit that it was raining, road was wet and slippery with puddles, and defendants’ bus driver was driving too fast for the conditions, lost control, and skidded into his lane hitting his bus. Defendant driver’s affidavit did not deny that road was wet, slippery, with puddles, and stated that he drove over a puddle where he lost control. His statement that he was driving at a reasonable speed for the conditions was a feigned attempt to avoid summary judgment. Emergency doctrine did not apply. Martinez v WE Transp. Inc.


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

First

Defendant’s climatological records and meteorologists’ opinions showing a storm in progress at time of plaintiff’s fall entitled it to summary judgment. Plaintiff’s claim that she fell on “dirty” snow that could have fallen between snow removal effort and fall was conclusory and did not raise an issue of fact. Encarnacion v New York City Hous. Auth.


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

First

Defendant’s climatological records and meteorologist’s opinion showing a storm in progress at time of plaintiff’s fall entitled it to summary judgment. Plaintiff’s expert’s opinion was too speculative to raise an issue of fact as to whether defendants salt or melt materials created new ice that was covered by the snow. Moreno v Trustees of Columbia Univ. in the City of N.Y.


Premises Liab   Sidewalk   Expert Aff   Prior Written Notice   NYC  

First

NYC entitled to summary judgment on proof that it did not receive prior written notice of raised cobblestone on sidewalk near charging bull statute in lower Manhattan. Plaintiff’s expert failed to show when cobblestone was installed, if it was installed by NYC, and if it created an immediate risk of danger when installed. Tomashevskaya v City of New York


MVA   Respondeat Superior  

First

Restaurant granted summary judgment where driver and restaurant owner testified that driver was on his way home at the time of the accident without food in the car establishing that he was not acting within the scope of his employment. Cianfano v Angelina


Legal Mal   Motion to Dismiss  

Second Deptartment

Defendants’ motion to dismiss based on documentary evidence showing that they only represented plaintiff for workers compensation claim did not utterly refute plaintiff’s claim in affirmation in opposition that they gave him incorrect advice. Garcia v Polsky, Shouldice & Rosen, P.C.


Vacate Default   Reasonable Excuse   Meritorious Action  

First

Plaintiff’s motion to vacate default in opposing motions for summary judgment denied on plaintiff’s unspecified claims of law office failure, claim that it did not receive order granting summary judgment with notice of entry served by 2 defendants, and plaintiff’s history of prior dilatory conduct. Court would also have found that plaintiff failed to show meritorious action if plaintiff had shown a reasonable excuse for waiting over a year from the default to move to vacate. Fernandez v Santos


Med Mal   Expert Aff   Premature Motion  

Second Deptartment

In action to collect unpaid medical bills, defendant-patient’s counterclaim alleging podiatric malpractice dismissed where she admitted that she owed the bills in her Answer and failed to oppose podiatrist’s motion, which included an expert affirmation and plaintiff’s medical records demonstrating that she did not depart from accepted practice. Motion was not premature simply because discovery had not been conducted and in not opposing the motion, defendant failed to show that discovery would likely lead to relevant information. Mogul v Baptiste


False Arrest   Assault   Battery   Malicious Prosecution   Probable Cause  

First

Probable cause based on DNA found on crowbar at crime scene entitled defendants to summary judgment on false arrest, assault, and battery charges and grand jury indictment established probable cause for prosecution. Santos v City of New York

IF YOU MUST READ
(3 summaries)
MUST READS NOTEWORTHY

Attorney Fees   Rear End  

First

Referee’s finding that nonparty attorney was entitled to 5% of plaintiff’s personal injury fee was supported by the record and considered all relevant factors including time spent, quality of work, and contributions towards eventual outcome. Diakhite v City of New York


No-Fault   IME/DME   Coverage  

First

Carrier denied declaratory judgment that it was not required to provide no-fault coverage based on insured’s failure to show for 2 IMEs where second notice of IME was sent to wrong address even though a copy was sent to plaintiff’s attorney. Global Liberty Ins. Co. v New Century Acupuncture, P.C.


Costs/Disbursements   Sanctions  

First

Australian judgment in favor of widow and son of decedent against law firm awarding costs of motion to dismiss Australian action on forum non conveniens grounds entitled to enforcement where judgment was “final, conclusive and enforceable where rendered.” Marshall v Fleming

About Matt McMahon

Civil trials and appeals since 1984
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