May 8, 2018 | Vol. 105

MUST READS
(7 summaries)
NOTEWORTHY IF YOU MUST READ

Labor Law §240   Labor Law §241   Industrial Code   Amend Complaint  

First

Worker granted summary judgment on Labor Law §240(1) where a piece of scrap metal being welded by a coworker fell 30’ and struck him on the head as he was “fire watching” because injury was caused by failing to provide protection against the piece of metal falling from the height where the work was being done. Plaintiff’s Labor Law §241-a (elevator shaftways, hatchways and stairwells) claim added to BP 3 days before summary judgment motion and not alleged in Complaint dismissed with leave to move to amend Complaint. A question of fact remained on Labor Law §241(6) claim based on industrial code 23-2.5(a)(1) (protection from falling objects and shafts) as to whether the object fell at least 30’ or 2 stories. Greenwood v Whitney Museum of Am. Art


Premises Liab   Set Aside Verdict   Subsequent Repairs   Notice  

First

Verdict for plaintiff who fell when doorknob to her apartment came out as she pulled it affirmed. Plaintiff’s testimony that she had complained to the superintendent and porter at least 3, and that ported previously tightened the screws, raised an issue of fact on actual notice of a recurring condition which provides constructive notice of each occurrence. Testimony regarding subsequent repair of the doorknob which was not preserved was relevant to its condition at the time of the accident. Any error in allowing testimony of concomitant repair was harmless. Silverman v Brady L.L.C.


Labor Law §240   Labor Law §241   Labor Law §200   1-2 Family Exception   Default Judgment  

First

Detached garage on rectory grounds used as a residence and for church business was entitled to 1-2 family exception to Labor Law §§240(1) and 241(6) entitling defendant to summary judgment. Defendant also granted summary judgment on Labor Law §200 where it did not control the plaintiff’s work on the detached garage. Plaintiff was not prejudiced by defendant’s failure to plead the 1-2 family exception in Answer as there was no surprise and they fully opposed the motion. Defendant granted default judgment against third-party defendant upon proof of proper service and contractual indemnity agreement. Bautista v Archdiocese of N.Y.


MVA   Rear End   Nonnegligent Explanation   Raised For First Time   NYC  

First

NYC denied summary judgment where plaintiff rear ended double parked sanitation truck because a jury could find rear-end foreseeable from double parking and city failed to show any regulation allowing the sanitation truck to ignore rules against double parking. The First Department refused to consider a regulation allowing city sanitation trucks to double park if there is no parking space available 15’ in front or behind truck because it was raised for the first time on appeal and there was a factual dispute as to the availability of a parking space and whether parallel parking the truck under the traffic conditions presented a risk. Nadella v City of New York


Premises Liab   Out of Possession  

First

Out of possession owner only responsible if it is contractually obligated to repair or reserves the right to enter and make repairs and injury is caused by a significant structural or design defect contrary to a specific statutory safety provision. Provision in HUD agreement who guaranteed mortgage establishing an escrow fund for repairs accessible by the tenant did not create a contract or obligation to protect injured third-parties but was intended to protect the integrity of the building for HUD’s benefit. Henry v Hamilton Equities, Inc.


Late Notice of Claim   Court of Claims   Actual Knowledge   Reasonable Excuse   Prejudice   Meritorious Action  

Second Deptartment

Motorcyclist’s petition to serve late Notice of Claim 2 1/2 years after his accident denied where treatment and rehabilitation accounted for only 5 months delay and attorneys’ law office failure for taking so long to investigate is not a reasonable excuse, police report did not connect his skid off roadway into guardrail to any negligence by the state that would provide actual knowledge, there was no reasonable opportunity to investigate since there was no accident reconstruction, plaintiff failed to make a plausible argument or produce evidence showing that the state was not prejudiced by the 2 1/2 year delay, and failed to show a meritorious action. Casey v State of New York


Renew  

First

Plaintiff providently granted renewal of motion even though original motion was not attached to moving papers since they were e-filed and available to the court for consideration. Renewal was appropriate where the lower court was not aware of the stipulation to adjourn the motion. Leary v Bendow

NOTEWORTHY
(18 summaries)
MUST READS IF YOU MUST READ

Premises Liab   Fireman Rule   Create Condition   Notice   Causation   Question of Fact  

Second Deptartment

Firefighter denied summary judgment on Gen. Mun. Law §205-a, under Labor Law §27 requiring employer to provide hazard free work environment, because plaintiff failed to show that gaps in grates that were regularly inspected and adjusted resulted from negligence or willful disregard and caused his fall. Firefighter’s testimony that lights were dim but he could see grates left an issue of fact. Economic Development Corporation that managed homeport where accident occurred granted summary judgment by the Second Department upon searching the record because it could not be liable under Labor Law §27 since it was not the employer and it showed that it neither created the condition nor had actual or constructive notice. Shea v New York City Economic Dev. Corp.


LHWCA   Duty   Question of Fact  

Court of Appeals

The Court of Appeals affirmed the appellate division’s reversal of summary judgment for defendant finding a question of fact as to whether vessel owner breached a duty under the LHWCA owed to the plaintiff surveyor who was injured when he jumped 40″ from the dock to the deck because there was no gangplank. Schnapp v Miller

Comment: This decision should have been included in last week’s summaries. The First Department’s decision was reported in volume #47 of the New York Torts Weekly.


Labor Law §240   Labor Law §241   Ladder   Industrial Code   Causation  

Second Deptartment

Inconsistent versions of how the accident occurred, with plaintiff testifying that he didn’t know what caused the aluminum A-frame ladder to shift causing him to fall, resulted in denial of both plaintiff’s and defendant’s Labor Law §240(1) motions for summary judgment. Defendant granted summary judgment on Labor Law §241(6) on proof that any violation of industrial code 23-1.21(b)(4)(ii) (ladder footings and surface) was not a proximate cause of plaintiff’s fall. Yao Zong Wu v Zhen Jia Yang


Labor Law §240   Labor Law §241  

First

Subcontractor not tasked to remove debris from construction site granted summary judgment on Labor Law §§240(1), 241(6) where plaintiff slipped on debris because the work causing the accident was outside scope of work performed by the subcontractor. Santiago v 44 Lexington Assoc., LLC


Premises Liab   Elevator   Create Condition   Notice   Res Ipsa Loquitor  

First

Elevator maintenance company granted summary judgment on service logs and mechanic’s testimony showing that elevator was regularly maintained without prior complaints of the elevator doors malfunctioning. Plaintiff’s testimony that she was standing at elevator entrance talking with a friend for a minute before the doors closed showed that the accident may have been the result of her own negligence making res ipsa loquitor inapplicable. Pacheco v Serviam Gardens Assoc., L.P.


Venue  

First

Action moved from New York to Sullivan County where accident happened on unrebutted affidavits of 4 first responders and plaintiff’s coworker that they intended to testify, had material information, and would be inconvenienced by having to travel to New York County. Aside from 1 of plaintiff’s doctors maintaining an office and 1 defendant having a principle place of business in New York County, the county had no contacts with the action. Plaintiff’s claim that Labor Law §240 claim could be resolved prior to trial was not relevant to the issue of venue. Taylor v Montreign Operating Co., LLC


Venue  

Second Deptartment

Plaintiff’s decedent was killed in a motorcycle accident in Warren County and the administratrix brought the action in Richmond County where she resided. Defendants failed to meet burden of showing that “the convenience of material witnesses and the ends of justice will be promoted by the change” of venue to Warren County where they failed to include the addresses of all but 1 witness and only provided conclusory statements as to how witnesses would be inconvenienced. While inconveniencing government officials such as police officers is a priority consideration, defendants’ conclusory explanations of inconvenience were insufficient. Gorodetsky v Bridgewater Wholesalers, Inc.


Premises Liab   Slip/Trip   Stairs   Out of Possession   Building Code  

First

As an out of possession defendant church could only be liable for plaintiff’s fall down exterior stairs if it was caused by a significant structural defect that violated a specific statutory safety provision. Fact that church could use church for services under the lease did not change the result since it had stopped using the church 2 years before the accident and did not have access to the interior. Plaintiff’s claim that lack of center railing violated 1938 building code did not create a question of fact where defendant proved that it was built between 1916 and 1917. Marie D. v Roman Catholic Church of the Sacred Heart


Premises Liab   Slip/Trip   Assumption of Risk   NYC  

Second Deptartment

NYCHA granted summary judgment where 19-year-old tripped on defect in outdoor basketball court on plaintiff’s testimony that he grew up playing on the court and was aware that it had cracks under primary assumption of risk. By engaging in activity, plaintiff assumed all open and obvious risks including surface defects. Philius v City of New York


Premises Liab   Dangerous Condition   Foreseeability   Notice  

First

Church granted summary judgment where plaintiff’s decedent was knocked out of his wheelchair while several church members to greet him, and a group of 5 people entered the vestibule. The church did not owe a duty to guard against unforeseeable crowding without notice of a dangerous crowding condition, including prior incidents. Moore v Trinity Baptist Church


Premises Liab   Dangerous Condition   Notice   Expert Aff  

First

Macy’s granted summary judgment on proof that wooden escalator where plaintiff fell was regularly inspected in the years before the accident without any complaints, accidents, or reports of dangerous conditions. Plaintiff’s wife’s statement that the stairs were wet, and plaintiff’s testimony that the rubber handrail pulled him as he grabbed it to stop from falling, were not evidence that conditions existed long enough for Macy’s to have corrected them. Plaintiff’s expert’s opinion that wooden treads were more slippery than industry standards did not raise an issue of fact. Ahmed v Macy


Premises Liab   Slip/Trip   Stairs   Unknown Cause  

Second Deptartment

Property owner granted summary judgment on testimony and video establishing that plaintiff could not identify the cause of her fall on the exterior stairs. Stoller v Purchase Community, Inc.


MVA   Rear End   Nonnegligent Explanation   Sole Cause  

First

Contractor responsible for installation of traffic light during construction granted summary judgment on codefendant’s testimony that she saw the light before rear-ending plaintiff’s vehicle and the light was facing in the correct position. Claim that placement of light underneath overpass to the left of the intersection did not raise a question of fact because she also testified that she did not see the plaintiff’s vehicle until impact making her inattention the sole cause of the accident. Tsiomos v Szak


Construction Liab.   Slip/Trip   Duty   Control   Indemnity  

First

Third-party defendant granted summary judgment against indemnity/contribution claim where plaintiff tripped on third-party defendant’s electrical cord left at the building site months before at the defendant’s request and defendant had used and moved the third-party defendant’s equipment before the accident. Marco v Tower 111, LLC


Premises Liab   Slip/Trip   Sidewalk   Create Condition   Duty  

Second Deptartment

Abutting landowner granted summary judgment on proof that it did not create condition or make special use of sidewalk where plaintiff fell. Town ordinance requiring abutting landowner to maintain sidewalk in safe condition did not impose tort liability for violation and duty to maintain sidewalk ordinarily lies with municipality. Bousquet v Water View Realty Corp.


Serious Injury   ROM   Causation   Expert Aff  

First

Plaintiff’s orthopedic surgeon’s affirmation raised issue on serious lumbar injury where he found limited ROM shortly after the accident and recently, opined that prior lumbar injury had resolved, that limitations were from the current accident, and plaintiff’s radiologist found lumbar conditions on the MRI. To the extent that plaintiff’s orthopedic surgeon’s opinions and findings conflicted with other medical records submitted by the defendant, it created a question of fact. Since defendant’s physician did not address causation, plaintiff was not required to address the issue. Plaintiff abandoned his cervical claims by not opposing the motion. Henry v Carr


Premises Liab   Ad Damnum   Untimely   NYC  

Second Deptartment

Plaintiff’s motion to remove case from lower civil to supreme under CPLR §325(b) denied because it was not accompanied by a request to increase the ad damnum over the $25,000 limit. Since Notice of Entry of lower court’s order was never served, defendant’s appeal was timely. Hart v New York City Hous. Auth.


Defamation   Motion to Dismiss  

First

The lower court providently denied defendant’s motion to dismiss as to certain statements that could be interpreted as statements of fact but improvidently denied dismissal of several statements responsive to allegations in a separate lawsuit. The protection for statements responsive to allegations in a lawsuit did not apply to all of the statements as argued by defendant. Verdi v Dinowitz

IF YOU MUST READ
(2 summaries)
MUST READS NOTEWORTHY

No-Fault   Statute of Limitations  

Court of Appeals

In a 4/3 opinion, the Court of Appeals resolved the issue of whether the six-year contract statute of limitations or three-year duty created by statute limitation applies to a claim for no-fault benefits against a self-insured (NYCTA) finding that the three-year statute of limitations applies since there was no contract. Contact Chiropractic, P.C. v New York City Tr. Auth.


MVA   Rear End   Nonnegligent Explanation   Emergency Doctrine  

Second Deptartment

Defendant driver’s affidavit raised an issue regarding whether he was faced with an emergency not of his own creation causing him to rear-end the plaintiff’s parked vehicle. The court does not give the details of the emergency. Motta v Gomez

About Matt McMahon

Civil trials and appeals since 1984
Bookmark the permalink.

Comments are closed