October 31, 2017 | Vol. 78

MUST READS
(7 summaries)
NOTEWORTHY IF YOU MUST READ

Premises Liab   § 7-210   Create Condition   Renew   Reasonable Excuse   NYC  

Second Deptartment

Plaintiff’s motion to renew based on information received from her FOIL request after the lower court granted summary judgment to NYC granted as plaintiff explained why they were not available to be submitted on the original motion and that they would have changed the outcome. Although the area where the plaintiff slipped on a steep granite sidewalk was covered by §7-210, that did not preclude plaintiff’s proof that NYC approved the plan of the sidewalk as part of a large renovation project creating an immediately dangerous condition and that portion of NYC’s motion for summary judgment was denied. Trawinski v Jabir & Farag Props., LLC


Med Mal   Late Notice of Claim   Sole Cause   Continuous Treatement  

First

Toll of statute of limitations did not terminate upon appointment of an Art. 81 guardian. While toll did not apply to Notice of Claim, 90-day period was extended by the continuous treatment doctrine and the Notice of Claim was timely. Mederos v New York City Health & Hosps. Corp.


Products Liab   Comparative Fault   Amend Answer  

First

Manufacturer’s and retailer’s attempt to get around the prohibition against the imputation of a parent’s negligent supervision under GOL §3-111 and Holodook v. Spencer by seeking to amend their Answer to include claims of negligent entrustment of a dangerous instrumentality (a hand held electric blender) rejected and the proposed amendment found palpably insufficient. Y.A. v Conair Corp.


Med Mal   Accepted Practice   Causation   Expert Aff   Conclusory  

First

Doctors granted summary judgment on their experts’ opinions that they did not depart from accepted practice in conducting 6 months of non-invasive testing and that any failure did not cause plaintiff’s micro-AVM, a rare congenital condition, or make it worse. Plaintiff’s expert’s opinion was conclusory and seemed to state that either non-invasive or invasive testing was within accepted practice. A doctor cannot be found to have departed from accepted practice for failing to perform a test which was not indicated even if it might have inadvertently led to the discovery of the condition. Brooks v April


Late Notice of Claim   False Arrest   Malicious Prosecution   Actual Knowledge   Prejudice  

Second Deptartment

Claim for malicious prosecution was properly asserted in the Notice of Claim included in plaintiff’s petition to serve the late Notice of Claim for the false arrest claim. Petitioner purposely held off serving the Notice of Claim on the false arrest claim while charges were pending for an unsubstantiated fear of retaliation and plaintiff failed to put forth any evidence that city received actual knowledge within 90 days as he claimed. Petitioner met his burden of showing no substantial prejudice, and city failed to raise an issue on that ground, but prejudice is only 1 factor and was not sufficient to overcome the lack of actual knowledge. There were 2 dissents. Matter of Ruiz v City of New York


Set Aside Verdict   Admissibility  

First

Defendant was properly allowed to cross examine plaintiff’s rebuttal expert about his suspension from chiropractic school more than 30 years earlier for falsely reporting that he had seen patients since it went to his credibility and he opened the door by testifying that his expertise in biomechanics came in part from his chiropractic training. Defense counsel’s comments on summation were fair comment and did not create a climate of hostility depriving plaintiff of a fair trial. Montas v Abouel-Ela


Labor Law §240   Raised For First Time  

First

Licensee of music venue at beach was the owner for purpose of Labor Law §240(1) as the only entity authorized to maintain the premises and insist on safety precautions. Erecting second tier truss system was an alteration of a structure under §240 as it increased the height of the booth from 10’-16’, was not simply decorative, and was comprised of several interlocking parts. Merger agreement properly considered in reply since it was submitted in response to an argument in opposition. Perez v Beach Concerts, Inc.

NOTEWORTHY
(17 summaries)
MUST READS IF YOU MUST READ

Premises Liab   Dangerous Condition   Notice   Res Ipsa Loquitor  

Second Deptartment

Property owner granted summary judgment where testimony of both parties showed that neither had experienced any problems with the glass cellar door that broke injuring the plaintiff’s hand prior to the accident showing that owner did not create a hazardous condition or have notice of same. Plaintiff’s expert’s affidavit based on an examination of the door 2 years after the accident was insufficient to raise a question of fact and there was insufficient evidence of exclusivity for res ipsa loquitor to apply. McDonald v Fitzgerald


Med Mal   Directed Verdict   Accepted Practice   Conclusory   Speculation  

First

Defendants granted JNOV where plaintiff’s experts opined only that unspecified further testing would have revealed her gastric cancer which everyone agreed was aggressive, difficult to diagnose, and had failed to show up on prior GI testing. Plaintiff’s experts also failed to opine when the cancer would have been detectable yet still treatable rendering their opinions conclusory and speculative. Shekhtman v Savransky


Med Mal   Accepted Practice   Causation   Expert Aff   Conclusory  

Second Deptartment

Doctors granted summary judgment on their experts’ affirmations that they did not depart from accepted medical practice by not observing plaintiff’s perforated esophagus on a CT scan or recommending bowel obstruction surgery where plaintiff was undergoing a myocardial infarction and that the perforated esophagus was caused by plaintiffs underlying condition and not the 1 defendant’s insertion of an NG tube. Plaintiff’s experts’ affirmations were conclusory and speculative and did not present an opposing opinion because they did not differentiate between the acts and omissions of the defendants or establish the reliability of their opinions outside of their expertise. Plaintiff failed to submit admissible evidence showing that relying on a radiologist’s interpretation of the CT scan was a departure from accepted practice. Tsitrin v New York Community Hosp.


Lead Poisoning   Expert Aff  

First

Landlord denied summary judgment in lead case where building was built before 1960, landlord knew a child under 6 resided in the apartment, and was aware of a positive unabated lead test in 2006. Plaintiff’s expert’s opinions that the test was too remote or unreliable did not create issues of fact. Jocelyn C. v Soundview Apts. Realty, LLC


MVA   Comparative Fault   Irregularity   Prejudice  

Second Deptartment

Plaintiff met his initial burden for summary judgment, but defendant’s affidavit raised a question of fact that plaintiff was comparatively at fault in the happening of the accident. The lower court properly considered the defendant’s affidavit sworn to out-of-state and not provided with an accompanying affidavit of conformity as that is a mere irregularity that does not prejudice the substantial right of a party. Voskoboinyk v Trebisovsky


Premises Liab   Wrongful Death   Notice  

First

Building owner granted summary judgment in wrongful death action from apartment fire on proof that there was a working smoke alarm 3 months before the fire and no complaints about the smoke alarm. Plaintiff failed to raise a question of fact in opposition. Keene v New York City Hous. Auth.


Emergency Doctrine  

First

NYCTA granted summary judgment where passenger who refused to pay fare assaulted bus driver causing other passengers to run to the back of the bus where plaintiff suffered a panic attack requiring implantation of a defibulation device. Bus driver acted reasonably within an emergency situation where he had little time to react such as by opening the rear door as plaintiff alleged should have been done. Savinon v New York City Tr. Auth.


Premises Liab   Dangerous Condition  

First

The Yankees granted summary judgment where plaintiff was struck in the eye by a foul ball while in his assigned seat along a portion of the first base line which did not have protective netting since there was netting behind home plate and no evidence that seating in that area was unavailable. Warnings on the back of the tickets and seats, and regularly announced, to request a seat change if necessary obviated plaintiff’s argument that weather conditions enhanced the risks. Zlotnick v New York Yankees Partnership


MVA   Turning Vehicle   Comparative Fault  

Second Deptartment

Plaintiff granted summary judgment where defendant’s car made a left-hand turn into her path after she had entered the intersection and without enough time for the defendant to complete the turn before being hit. The fact that the turn could not be completed before the impact was strong evidence that there was insufficient time for the plaintiff to avoid the accident eliminating the question of comparative fault. Giwa v Bloom


Premises Liab   Sidewalk   Snow/Ice   Dangerous Condition   Notice   Last Inspection  

First

Building owner’s proof that a path had been cleared of snow/ice in the crosswalk, path, and sidewalk in front of the building, and that it was inspected and clear 80 minutes before the accident made out entitlement to summary judgment. Plaintiff’s claim that she walked over mound to get on sidewalk did not raise a question of fact on notice as plaintiff elected to cross mid-block ignoring clear path. Lausell v City of New York


Premises Liab   Slip/Trip   Unknown Cause   Speculation  

Second Deptartment

Plaintiff’s testimony that what she slipped on could have been grease from the kitchen established that she did not know what caused her to fall without resorting to speculation. Cross v Friendship Rest. Group, LLC


MVA   Workers Comp Defense  

First

Registered owner and driver of school bus matron was injured on at work denied summary judgment for failing to show that matron was a “special employee” for which the workers comp defense would apply. Their own witness testified that the matrons were supervised by another company. Mohammed v Kieszowski


MVA   Bicycle   There to be Seen   Comparative Fault   Serious Injury  

Second Deptartment

Although defendant showed that bike driver driving the wrong way on a one-way street with a passenger standing on his wheel pegs when the parties collided at an intersection was negligent, he failed to show that he was free from comparative fault, specifically that he saw what was there to be seen in order to avoid the accident. Defendant met his burden on serious injury for both plaintiffs, but plaintiffs raised a question of fact in opposition. Rojas v Solis


Assault  

Second Deptartment

Defendant’s motion for summary judgment dismissing negligence cause of action after plaintiff withdrew the intentional assault action, on defendant’s claim that his intentional conduct of putting the plaintiff into a bear hug causing them both to fall established an assault and not negligence, denied based on deposition testimony of both parties raising issues of fact as to whether the intentional conduct was intended to be offensive. Stampfl v Salvoni


MVA   Rear End   Nonnegligent Explanation   Premature Motion  

First

Plaintiff who was stopped in traffic when she was hit in the rear entitled to summary judgment and defendant failed to raise an issue of fact by providing a non-negligent explanation. Since defendant knew the facts as well as the plaintiff, the motion was not premature. Rodriguez v Garcia


MVA   Rear End   Nonnegligent Explanation   Comparative Fault  

Second Deptartment

Plaintiff granted summary judgment in rear end collision case where defendant failed to put in affidavit of person with knowledge regarding a nonnegligent explanation or plaintiff’s comparative fault. Niyazov v Hunter EMS, Inc.


1983 Action   Malicious Prosecution   False Arrest   Battery   Police   Probable Cause   Qualified Immunity   NYC  

First

Defendants’ motion for summary judgment denied where differing versions of facts, including claims that police engaged in a pattern of harassment of plaintiff for years and planted a gun on him to manufacture probable clause, precluded finding of probable cause as a matter of law which would have been necessary to provide qualified immunity. Murray v City of New York

IF YOU MUST READ
(2 summaries)
MUST READS NOTEWORTHY

Serious Injury   Expert Aff  

Second Deptartment

Defendants failed to meet their initial burden of showing no serious injury regardless of plaintiff’s opposition. The lower court correctly refused to strike portions of the plaintiff’s orthopedist’s affirmation as it used general accepted principles in establishing causation. Rivera v Gabrielli Truck Leasing, LLC


Serious Injury  

Second Deptartment

Defendants met their burden on serious injury, but plaintiff raised a question of fact in opposition. The court does not give the details of the proofs. Smith v Kenben Indus., Ltd.

About Matt McMahon

Civil trials and appeals since 1984
Bookmark the permalink.

Comments are closed