May 29, 2018 | Vol. 108

MUST READS
(8 summaries)
NOTEWORTHY IF YOU MUST READ

Late Notice of Claim   Prejudice   Reasonable Excuse  

Second Deptartment

Infant’s motion to serve late Notice of Claim that was denied by the lower court remanded for reconsideration based on the Court of Appeals ruling in Matter of Newcomb v Middle Country Cent. Sch. Dist. that prejudice to a municipality cannot be assumed based on speculation. Generally, delay in timely filing may be presumed from infancy without being “factually demonstrated.” N.F. v City of New York


Labor Law §240   Labor Law §241   Labor Law §200   Industrial Code   Sole Cause  

First

Motions and cross-motions for summary judgment by defendants, third-party plaintiffs, and plaintiff denied where conflicting versions of who moved barricade in front of elevator shaft that plaintiff foreman fell down and whether lanyard provided with safety harness would have allowed plaintiff to do his work raised questions of fact on Labor Law §240(1) and conflicting stories of whether plaintiff tripped on rope on floor raised questions of fact on Labor Law §§241(6) and 200. Plaintiff’s status as a foreman did not take case out of Labor Law. Defendant was not required to show that plaintiff was instructed to use harness and lanyard “immediately” before accident for sole proximate cause defense. Radeljic v Certified of N.Y., Inc.


MVA   Nonnegligent Explanation   Comparative Fault  

First

On remitter from the Court of Appeals’ decision that eliminated the need to show freedom from comparative fault sanitation worker injured when coworker backed up truck on ice sliding into a parked car that hit the plaintiff granted summary judgment because, like in a rear end case, collision with a parked vehicle raises a presumption of negligence and defendant failed to put forth a nonnegligent explanation. Rodriguez v City of New York


Med Mal   Accepted Practice   Expert Aff   Respondeat Superior  

Second Deptartment

Contract emergency room doctor and his corporation granted summary judgment based on expert’s opinion that there was no departure from care in treating the septic wrist. Plaintiff’s expert did not need to be a specialist in emergency medicine but failed to show requisite degree of knowledge or experience in emergency room medicine to raise a question of fact. Hospital denied summary judgment on claim that it could not be responsible for attending physician where plaintiff raised an issue of fact on “emergency room exception” that she sought treatment from the hospital and not a specific doctor. Plaintiff’s expert raised an issue of fact as to orthopedic doctors and their corporation and lower court providently considered nonconforming expert affirmations after they were replaced by conforming affidavits. Galluccio v Grossman


Premises Liab   Slip/Trip   General Release  

Second Deptartment

The court declined to enforce an oral settlement agreement entered into by plaintiff’s former attorney that was not in open court, on the record, or in a writing signed or subscribed to by plaintiff or her then attorney. While an email may meet the requirements of CPLR 2104, the only email was by the attorney for the party seeking to enforce the agreement. None were sent by the plaintiff or her attorney. Kataldo v Atlantic Chevrolet Cadillac


Set Aside Verdict   Directed Verdict   Duty   NYC  

Second Deptartment

Motion for directed verdict at the conclusion of plaintiff’s case should have been granted as there was no rational path for a jury to find that the plaintiff-teacher had justifiably relied on promise to provide extra security after she was previously struck by a student and she complained 10-13 times of a lack of security during the 6 weeks after the promise. To show a special duty, Plaintiff was required to prove “(1) an assumption by the defendants, through promises or actions, of an affirmative duty to act on behalf of the injured plaintiff; (2) knowledge on the part of defendants’ agents that inaction could lead to harm; (3) some form of direct contact between the defendants’ agents and the injured plaintiff; and (4) the injured plaintiff’s justifiable reliance on the defendants’ affirmative undertaking.” Judgment in favor of plaintiff for $2,027,000 vacated and case dismissed. Morgan-Word v New York City Dept. of Educ.


Strike Answer   Sanctions   Discovery  

First

Plaintiff’s motion to strike the defendants’ Answer for failing to timely provide former cashier contact information granted to the extent of awarding motion and appeal costs for causing plaintiff extraordinary time and effort to compel compliance due to defendants’ delay. Vizcaino v Western Beef, Inc.


Strike Answer   Willful/Contumacious  

First

Plaintiff’s motion to strike defendants’ Answer for failing to produce witnesses for deposition as required by 2 orders denied without proof that defendants’ failure was willful/contumacious or in bad faith where business had closed, employees were no longer within defendants’ control and defendants gave contact information so that they could be subpoenaed as nonparty witnesses. Lee v 13th St. Entertainment LLC

NOTEWORTHY
(27 summaries)
MUST READS IF YOU MUST READ

Wrongful Death   Court of Claims   Notice of Claim  

Second Deptartment

Plaintiff’s failure to file the Claim, or a Notice of Intention to Claim, within 90-days of the accident, and within 90-days of the appointment of an administrator for the wrongful death claim, were jurisdictional defects requiring dismissal. Filing of the claim before the appointment of the administrator failed to strictly comply with Court of Claims act §10 (2) and (3) requiring dismissal. Kiesow v State of New York


Premises Liab   Slip/Trip   Stairs   Unknown Cause   Notice   Expert Aff  

First

Plaintiff’s description of what caused his fall was sufficient to defeat summary judgment and he did not need to identify it at the time of his fall. Plaintiff’s testimony was corroborated by expert who testified that excessive wear on stair created a slope, described by plaintiff as a concave surface, raising issues of a dangerous condition and constructive notice since it would’ve developed over a long period of time. Johnson v 675 Coster St. Hous. Dev. Fund


Labor Law §240   Labor Law §241   Labor Law §200   Gravity Risk   Control  

First

Roofing and decking subcontractors granted summary judgment on Labor Law §240(1) absent elevated risk where plaintiff tripped on a pile of sand on the same level he was walking on. Labor Law §§241(6), 200, and negligence didn’t apply because there was no proof that these defendants exercised control over the plaintiff, the work area, or the work causing the accident. Adagio v New York State Urban Dev. Corp.


CPLR §306-b   Motion to Dismiss   Statute of Limitations   Reasonable Excuse   Prejudice   Meritorious Action  

First

Plaintiff’s motion to extend time to serve Summons and Complaint under CPLR 306-b granted in the interest of justice and defendant’s motion to dismiss conditionally granted if service not made within 60 days. Carrier knew of action within months and plaintiff showed a meritorious action. Where some factors favor extension and some do not, lower court’s discretion should not be disturbed. Nunez-Ariza v Nell


MVA   Causation   Comparative Fault   There to be Seen   Sole Cause  

Second Deptartment

Summary judgment denied defendants who entered intersection not controlled by stop sign and were hit by vehicle plaintiff was in which had a stop sign, opposed only by codefendant, for failure to eliminate questions of whether they entered the intersection seeing what was there to be seen and codefendants with stop sign were sole proximate cause of the accident. Miron v Pappas


MVA   Causation   Sole Cause  

Second Deptartment

Plaintiff raised an issue of fact on whether defendant who entered intersection not controlled by stop sign was partially at fault in causing accident in opposition to that defendant’s showing that mini school bus plaintiff was a matron on entered intersection controlled by a stop sign without yielding the right of way. Piazza v Cline


MVA   Feigned Issue  

First

Defendant denied summary judgment where there were conflicting versions of the accident. Plaintiff’s statement in police report did not render his deposition testimony incredible as a matter of law. Jarrett v Claro


Serious Injury   Preexisting   Degenerative   ROM   Expert Aff  

First

Defendants granted summary judgment on serious injury on their radiologist’s opinion that injuries to cervical and lumbar spine and shoulder were pre-existing degenerative conditions, plaintiff’s orthopedist’s findings showing identical range of motion in the injured and uninjured shoulders, plaintiffs stopping treatment 4 months after accident, and findings in operative report of bursitis and hypertrophy that radiologist explained were degenerative. Plaintiff’s orthopedist failed to address the proof of pre-existing degeneration including the conditions found during his shoulder surgery. Campbell v Drammeh


Serious Injury   Set Aside Verdict   Jury Charge  

Second Deptartment

Motion to set aside verdict finding that none of the plaintiffs sustained a serious injury denied where verdict was supported by fair interpretation of the conflicting testimony of plaintiff’s neurologist and defendant’s orthopedic surgeon and radiologist. Plaintiff was not entitled to 90/180 day charge. Pucci v Trabulsy


Med Mal   Dental Mal   Discovery  

First

Doctor granted protective order limiting his further deposition to 1 day where he had already been deposed for 2 days and limiting what could be asked regarding a procedure by his codefendant that he did not assist in and was not trained in. Plaintiff was not deprived of “deposition testimony relevant and necessary for preparation for trial” by the limitations. Hutton v Aesthetic Surgery, P.C.


MVA   Late Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice  

Second Deptartment

Motorist, whose vehicle was struck by FDNY truck that left scene, denied petition to serve late Notice of Claim. Claim that FDNY employee involved in the accident was aware of the essential facts, without a report or other proof of what facts NYC was aware of within 90-days, was insufficient to show actual knowledge. Attorney’s letter to FDNY, returned with instructions to file a Notice of Claim within 90-days with the controller’s office, and a copy of the letter sent to the controller’s office but returned for insufficient address were not Notices of Claim filed within 90-days. Notice of Claim served 2 months late was insufficient and plaintiff failed to show that NYC had notice of the essential facts within 90 days, failed to show a reasonable excuse, law office failure not being a reasonable excuse, and failed to put forth evidence or a plausible argument that NYC was not prejudiced by delay. Matter of Naar v City of New York


Construction Liab.   Control  

First

Construction manager denied summary judgment where security guard was injured while backing up into a wooden plank sticking out from a saw. Issues of fact existed as to whether defendant had control of the worksite and notice of the condition based on defendant’s testimony that it had general supervisory authority, authority to stop work perceived dangerous, directed where subcontractors put away equipment, had safety rules and held weekly safety meetings, had exclusive oversight of subcontractors, and that defendant’s project manager did not know if their workers moved the subject saw table. Cintron v RC Dolner, LLC


Premises Liab   Slip/Trip   Stairs   Notice   Last Inspection  

First

Prior building inspection report stating that ramps, steps, and railings needed repair defeated NYCHA’s claim of lack of actual notice and proof of general cleaning procedures instead of last inspection left question of constructive notice requiring denial of summary judgment. Javier v New York City Hous. Auth.


Motion to Dismiss   Negligent Hiring   Building Security   Notice  

First

Documentary evidence submitted by defendant-resort in Anguilla, showing that it did not own beach where infant plaintiff was attacked on her way from resort to beach, failed to conclusively establish that no part of attack occurred on its property, to offer proof that attack was not foreseeable, or that employee did not have a criminal history. Jg v Goldfinger


Premises Liab   Slip/Trip   Stairs   Notice   Last Inspection  

First

NYCHA failed to meet its burden of proof for summary judgment on conflicting stories of whether liquid substance was on stairs 2 1/2 hours before plaintiff’s fall, raising issues of credibility on actual notice. Capers v New York City Hous. Auth.


Premises Liab   Slip/Trip   Snow/Ice   § 7-210   3rd Party Contractor  

Second Deptartment

Adjoining landowner responsible for condition of sidewalk despite contracting with third-party for snow removal and NYCTA both granted summary judgment on plaintiff’s testimony that he fell coming down from snow mound he climbed from the street to the sidewalk in the middle of the block and that he could have walked to the corner and safely entered the sidewalk. Polomski v Deluca


Premises Liab   Slip/Trip   Stairs   De Minimus   Expert Aff  

Second Deptartment

NYCHA granted summary judgment on expert’s opinion, based on plaintiff’s deposition, photographs, and inspection of stair showing that area where plaintiff tripped was 3” from stair wall directly under hand rail and, therefore, not part of walking surface and that nosing that plaintiff tripped on was no more than 0.5” above stair. Under the circumstances the defect was trivial and plaintiff failed to raise an issue of fact in opposition. Stanley v New York City Hous. Auth.


Preclusion   Willful/Contumacious   Vacate Default  

First

Order of preclusion for failure to provide documents denied without proof that failure to produce was willful/contumacious. Testimony of search efforts for documents, and lack of proof that search was deficient did not warrant preclusion. Defendant’s motion to vacate default in opposing codefendant’s motion for default judgment against third-party defendant denied where defendant failed to provide a reasonable excuse and proof of a meritorious claim. Marquez v 171 Tenants Corp.


Negligent Supervision   Assumption of Risk  

Second Deptartment

Hofstra granted summary judgment on primary assumption of risk where plaintiff was injured executing a slam dunk in a slam dunk competition that she voluntarily participated in as part of a basketball camp. Osmond v Hofstra Univ.


Premises Liab   Open/Obvious   Inherently Dangerous  

Second Deptartment

Kohl’s granted summary judgment on proof that clothing rack in aisle of the store was open and obvious and not inherently dangerous. The court does not give the details of the proofs. Nannariello v Kohl’s Dept. Stores, Inc.


Serious Injury   BP  

Second Deptartment

Defendant made out prima facie entitlement to summary judgment on serious injury of cervical, lumbar and shoulder injuries by competent medical proof and on the 90/180 day category alleged in the BP by plaintiff’s testimony that she missed only 6 weeks of work in the first 6 months. Plaintiff failed to raise the issue of fact in opposition. Heesook Choi v Mendez


Premises Liab   Slip/Trip   3rd Party Contractor  

Second Deptartment

Contractor hired to install water mains for NYC granted summary judgment on proof that it did not perform work at the area of the crosswalk were plaintiff tripped and fell on raised asphalt. McGee v City of New York


Default Judgment   Reasonable Excuse  

First

Plaintiff’s motion for default judgment conditionally granted if defendant police officer does not answer within 30-days even though officer did not oppose motion and NYC withdrew their opposition. NYC’s original opposition provided a reasonable excuse due to questions of whether corporation counsel could represent officer because of a pending internal affairs investigation regarding the incident. Alexandre v Martinez


Default Judgment   Compel Acceptance  

Second Deptartment

The lower court providently exercised discretion in denying plaintiff’s motion for default judgment and granting defendant’s motion to compel acceptance of the Answer served 3 months late. Defendant’s sending the original complaint to his personal attorney instead of the insurance company, the insurance company service of an Answer shortly after learning of the Summons and Complaint, defendant’s proof of a meritorious defense, lack of prejudice from the short delay, and the strong public policy in favor of actions being decided on the merits mitigated in favor of compelling plaintiff to accept the late Answer. Yuxi Li v Caruso


Premises Liab   Slip/Trip   Sidewalk   Default Judgment   Compel Acceptance  

Second Deptartment

Plaintiff met her burden for entry of default judgment by submitting her verified Amended Complaint alleging a dangerous condition on sidewalk that was the sole cause of plaintiff’s trip and fall, proof of service, and proof of default. Defendant’s request in opposition to compel acceptance of the Answer that was served 1 day after motion was made denied. Curra v Brunswick Hosp. Ctr., Inc.


Premises Liab   Slip/Trip   Stairs  

Second Deptartment

Building denied summary judgment on conflicting testimony regarding accident location. Plaintiff testified accident happened when she stepped on cracked end of stair between second and first floor, building superintendent testified that only defect was between second and third floor, leaving a question of fact for a jury. Tavarez v Pistilli Assoc. III, LLC


MVA   Rear End   Nonnegligent Explanation  

Second Deptartment

Driver and owner of vehicle that was rear ended by plaintiff on his motorcycle granted summary based on sworn statements and depositions of defendant and witness showing that defendants were not at fault. Plaintiff failed to rebut presumption raised by rear end collision or provide a nonnegligent explanation. Russell v J.L. Femia Landscape Servs., Inc.

IF YOU MUST READ
(4 summaries)
MUST READS NOTEWORTHY

MVIAC   Interest  

Second Deptartment

Plaintiff entitled to 9% interest upon entry of judgment against MVIAC. MVIAC’s claim that delay in payment was due to plaintiff’s failure to sign a general release rejected because payment was required by a judgment and not a matter of agreement and plaintiff was not required to give a release. Matter of Baker v Motor Veh. Acc. Indem. Corp.


Premises Liab   Slip/Trip   Sidewalk   De Minimus  

Second Deptartment

Defendants granted summary judgment finding that raised sidewalk slab plaintiff tripped on was trivial. The court does not give the details of the proofs. Beirne v Ames’ Strand View W. Corp.


Negligent Supervision   Causation  

Second Deptartment

School district failed to meet its burden of showing that it provided adequate supervision for five-year-old kindergartner who fell from monkey bars or that a lack of supervision did not cause the infant plaintiff’s injuries. The court does not give the details of the proofs. Geraldi v Merrick Union Free Sch. Dist.


Coverage   Raised For First Time  

First

Coverage dispute for underlying personal injury action remanded to supreme court for further fact finding after Court of Appeals decision holding during appeal for the first time that presence in New York could be determined on a “substantial business presence.” While there was some evidence of “substantial business presence” in the record, an appeal should not be decided where the parties were not given the opportunity to address the issues below. There were 2 dissenters. Vista Eng’g Corp. v Everest Indem. Ins. Co.

About Matt McMahon

Civil trials and appeals since 1984
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