Notice of Claim Late Notice of Claim Leave of Court
 Health and Hospitals Corp litigated this case for over 10 years before moving to dismiss based on failure to serve a notice of claim. A notice of claim was served shortly before the complaint, but plaintiff never sought leave to serve the late notice. The lower court granted the defendant’s motion and the Appellate Division affirmed. There was no evidence of “affirmative wrongdoing” for equitable estoppel. Yessenia D. v New York City Health & Hosps. Corp.
Comment: This case is a chilling reminder that a late notice of claim served without leave of the court is a nullity. A municipal defendant can simply deny the allegation that a notice of claim was timely and properly served in the complaint and then wait years to move to dismiss on that ground. |
General Release Motion to Dismiss Fraud
 Defendant moved to dismiss the Labor Law §240 case based on a general release signed by the plaintiff and plaintiff crossed moved to preclude the defendants from asserting the affirmative defense. Both motions were denied and affirmed. Plaintiff showed a potential that the general release was obtained by fraud or duress precluding dismissal in favor of the defendant. Plaintiff’s proof met his initial burden of entitlement to summary judgment on the affirmative defense but defendant raised an issue of fact. A general release will normally bar any claim if it is unambiguous but, as with any written contract, may be set aside based on fraud or duress.
Pacheco v 32-42 55th St. Realty, LLC
Comment: The lower court’s decision quotes the plaintiff’s affidavit alleging that the defendant came to him shortly after the accident, while he was recuperating, and offered to pay him money for as long as he was injured. He allegedly also made a veiled threat regarding plaintiff’s immigration status and asked the plaintiff to sign papers for his “record-keeping” with plaintiff being unaware that he was signing a release. |
Med Mal Discovery Training Videos Reargument BP
Lower court granted initial conditional order of preclusion requiring hospital to provide training videos for 2009, 2010 & 2013. Hospital moved to reargue on ground that allegations of malpractice in the complaint were only for 2009, although there was an allegation in the BP of malpractice in 2010. Lower court granted reargument and modified order to only require production of 2009 training tapes. The Appellate Division modified to include training tapes for 2010. Fact that allegation of malpractice in 2010 was only in bill of particulars would not preclude the plaintiff from prosecuting that claim. Reargument was proper as defendant showed the court overlooked the fact that the training manuals sought were after the alleged malpractice. Hackshaw v Mercy Med. Ctr.
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Highway Design Prior Written Notice Expert Aff Qualified Immunity
Unlicensed 18-year-old driver overcorrected after the wheel of her car went into a 7 inch rut along the edge of a roadway, causing her to hit another vehicle. She was injured and a passenger in her car was killed. Plaintiff was unable to show prior written notice of the alleged defect.
The only exceptions to the prior written notice requirement are that the defect was caused by an affirmative act of the municipality, or by special use that conferred a special benefit on the municipality. To show that the defect was caused by an affirmative act of negligence, plaintiff would have to show that the condition was dangerous immediately when created. Defendant showed that the condition was created by erosion and environmental factors over a long period of time.
The affidavits of plaintiff’s accident reconstructionist and engineer were deemed conclusory and speculative because they did not show how the condition would have given immediate notice of the dangers when it was last paved nine years before the accident. Municipality is entitled to qualified immunity in highway design decisions and plaintiff’s experts failed to identify any binding industry standard, code, rule or regulation violated in the construction or maintenance of the roadway. Hanley v City of New York
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Stay Arb Uninsured Collateral Estoppel Raised For First Time
Lower court granted permanent stay of injured’s uninsured arbitration finding that it had been determined in a prior property damage arbitration that the car which left the scene was owned by the proposed additional respondents and was insured. The Appellate Division reversed and granted a temporary stay of the arbitration until further proceedings, including a possible discovery and a framed issue hearing, could determine the issue. The insurance company had not raised collateral estoppel in its petition nor did the proposed additional respondents raise it in their opposition. The injured respondent raised it in his opposition, but that was served after the proposed additional respondents time to file their opposition and, therefore, they had no opportunity to address the issue.
The court noted that the collateral estoppel effect between the insurance company and the proposed additional respondents might be fully determined by the terms of the arbitration agreement between them, but since the agreement was not attached as an exhibit it could not be determined on the motion. Liberty Mut. Ins. Co. v Robles
Comment: The injured party does not appear to have been part of the arbitration between the petitioner and the proposed additional respondents. That leaves open the question of whether the injured party had an opportunity to fully litigate the issue before the arbitrator which is necessary for collateral estoppel. |
Sole Cause Wanton Disregard
Defendants showed as a matter of law that plaintiff’s decedent’s wanton recklessness was the sole proximate cause of his injury when he bypassed lowered pedestrian safety gates, ringing bells, flashing lights, and an announcement warning of the second train coming. He had an alcohol level of .12% at the time of his death. While questions of intervening cause or superseding cause are typically for a jury, it may be decided as a matter of law were only one conclusion can be drawn from the facts. Tisdell v Metropolitan Transp. Auth.
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Executive Law § 296 Age Discrimination Sex Discrimination Disability Discrimination Hostile Work Environment Motion to Dismiss
Claims which were properly pled and occured within the three-year statute of limitations for Executive Law § 296 were revived. For hostile work environment, all actions will fall within the statute of limitations if at least one action takes place within the three years. For the discrimination claims, only those adverse actions which took place within the three years survived. While the court must accept the facts as pled, the acts of discrimination must be specifically pled. Conclusory allegations are not enough. In this case, plaintiff pled sufficient facts for disability discrimination and hostile work environment but not for age or sex discrimination. Cahill v State of N.Y. Stony Brook Univ. Hosp.
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Defect Speculation
Allegation that plaintiff was struck on head by a piece of ice from defendant’s building was deemed speculative after she testified at EBT that she did not know the nature of the object that struck her or where it came from. Summary judgment for defendant. Ormsby v 750 Seventh Ave. LLC
Comment: A good example of why it’s important to always review with the client the exact details of the accident, including a thorough description of any defect or object involved and how it is tied to a potential defendant, before signing up the client, starting the case, and during preparation for deposition. |
Notice of Claim Late Notice of Claim Leave of Court Big Apple Pothole Prior Suits
Plaintiff did not serve a notice of claim prior to suit and did not move for leave until the City moved to dismiss. Plaintiff gave no excuse for the delay. Big Apple Pothole Map and prior notices of claim or lawsuits do not give the facts sufficient to give notice of the essential elements of the plaintiff’s claim. Lower court reversed. Luna v City of New York
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Notice of Claim Late Notice of Claim Leave of Court Line of Duty Report
Petitioner offered no excuse for the 8 month delay in seeking leave to file a late notice of claim or rebut the City’s assertion that the delay substantially prejudiced its ability to defend. The line of duty report did not give the essential facts of the claim. It merely described the accident without making any connection to the City’s alleged negligence. The same was true of an undated aided report worksheet and a witness statement dated 6 months after the accident. Matter of Clark v City of New York
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Libel Defamation Punitive Damages Directed Verdict Set Aside Verdict
Defendant bus company’s supervisor published a defamatory email about the plaintiff bus driver that resulted in him being disqualified to drive a school bus and being fired by the defendant. At the close of the plaintiff’s evidence the lower court granted defendant’s motion for a directed verdict on the issue of punitive damages. The jury found the email defamatory and that the supervisor abused his qualified privilege and awarded $472,000.00. The Appellate court found there was a rational basis for the jury’s verdict and upheld the denial of the motion to set aside and that there would be no rational basis for a finding of punitive damages. Diorio v Ossining Union Free School Dist.
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Res Ipsa Loquitor Premises Liab
Plaintiff was granted summary judgment based on res ipsa loquitur when grate he was walking on collapsed. The defendant’s porter and plaintiff’s coworkers testified that the edges of the grate were rusted.
Sterbinsky v 780 Riverside Dr., LLC
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Med Mal Res Ipsa Loquitor Expert Aff Accepted Practice
Plaintiff underwent a discectomy using allograft and developed an infection diagnosed as bacterial salmonella hadar. Defendant’s experts opined that there was no departure from good and accepted practice and that even if there was a departure, it could not be a cause of the injury and that there was no evidence of salmonella present in the hospital. Plaintiff’s expert relied primarily on res ipsa loquitur by trying to eliminate other possible causes of the salmonella infection. Plaintiff’s expert noted that allograft is supposed to come from the manufacturer either aseptic or sterile and opined that it was the defendant’s duty to monitor the allograft manufacturer. Since the manufacturer could be another source of the salmonella, the plaintiff failed to meet his burden of showing that the instrumentality was within the exclusive control of the defendants for res ipsa loquitor and failed to raise a triable issue of fact on departure. McCarthy v Northern Westchester Hosp.
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Legal Mal Motion to Dismiss Motion Exhibit
Defendant law firm made a pre-answer motion to dismiss legal malpractice action claiming that they failed to file a notice of claim on the ground that they had been retained only to prosecute the workers’ compensation claim and not a third-party action. They attached the workers’ compensation retainer and an affidavit from a member of the firm as documentary evidence of entitlement to dismissal. The court upheld the denial of the motion. A pre-answer motion to dismiss speaks to the sufficiency of the pleading and not a determination on proof. When based on documentary evidence, the evidence must utterly refute plaintiff’s factual allegations, be unambiguous and of undisputed authenticity. Letters and affidavits are not documentary evidence within the meaning of CPLR 3211(a)(1). Anderson v Armentano
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Abutting Landowner § 7-210 Curb
Denial of summary judgment for defendant upheld where a portion of the cable attached to a curb was on the sidewalk abutting the defendant’s mixed use building. Abutting landowner has no duty to maintain the curb but since the portion of the cable which caused the injury was on the sidewalk, administrative code § 7-210 applied. Metzker v City of New York
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Arons Authorization Medic
Plaintiff was required to give an Arons authorization to speak with the job site medic who first evaluated plaintiff’s decedent. Arons which provides for “speaking authorizations,” applies to healthcare workers including physicians and their counterparts. A medic who evaluated the plaintiff’s decedent shortly after the incident, attempted to obtain vitals and made a determination to call an ambulance to have him sent to an emergency room could be classified as a “treating physician.” Caminiti v Extel W. 57th St. LLC
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Late Notice of Claim
In its discretion the Appellate Division reversed the lower court and granted the petition to serve a late notice of claim. The proposed notice of claim gave respondents notice of the incident giving rise to the claim and identified witnesses as well as the location. Matter of Sykes v City of New York
Comment: The decision does not give details sufficient to distinguish this case from the majority of cases where permission to serve a late notice of claim is denied. It does not identify what factors were important in exercising the court’s discretion. |
Expert Aff Question of Fact
Defendant’s expert opined that the accident could not have occurred as the plaintiff claimed. The expert’s affidavit was found to be conclusory, speculative and lacking in foundation because it was based on an inspection 14 months after the incident and did not establish that the bleachers operated in the same way at the time of the incident. Defendant failed to make out its prima facie entitlement to judgment. Whether a defective condition exists is generally an issue of fact. Burch v Village of Hempstead
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Venue Residence
Defendant’s motion to renew their motion to change venue from Bronx to Westchester was denied and affirmed. While defendants presented new evidence, including that the plaintiff had a Westchester driver’s license on the date of the accident, and had registered other cars in Westchester, the plaintiff provided substantial documentary evidence that he lived in a home he owned with his wife in the Bronx at the time the action was commenced. Madia v CBS Corp.
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Products Liab Federal Preemption FDA
Claim against manufacturer of “Sculptra,” a product used to reduce wrinkles, dismissed as it seeks to impose requirements different from or in addition to the FDA. Pitkow v Lautin
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Question of Fact Unsigned Transcript
Defendant made out its prima facie entitlement to summary judgment through transcripts of defendant and nonparties showing that the plaintiff went through a red light and was the sole cause of the accident. The plaintiff’s unsigned deposition offered in opposition raised a triable issue of fact on whether he went through the red light. The appellate court reversed the grant of summary judgment finding that the lower court should have considered the unsigned deposition testimony as it was certified by the court reporter. Lee v Mason
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Unsigned Transcript Burden of Proof
Defendant ferry’s motion for summary judgment was properly denied where defendant’s ferry captain had no recollection of the incident. Defendant cannot make out its initial burden of proof for summary judgment by poking holes in plaintiff’s case. Lower court should have considered the transcript of the ferry captain because it was certified and never challenged by the plaintiff. Setter v Fire Is. Ferries, Inc.
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Amend Complaint Prejudice Loss of Services
The denial of plaintiff’s motion to amend his complaint to add his wife as a party for loss of services was reversed. The burden of showing prejudice lies with the defendant and exposure to greater liability is not a ground for prejudice. While plaintiff offered no excuse for the two-year delay in seeking to add his wife, the motion was made before a note of issue was filed, while discovery was still ongoing, and liability for the loss of service claim is the same as for the main action. Garafola v Wing Inc. Specialty Trades
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Default Judgment Compel Acceptance Law Office Failure
Court properly exercised its discretion in denying motion for default and granting cross motion to compel plaintiff to accept answer. Excuse of law office failure was not particularly compelling but did show good course for the delay. Affidavit of defendant property manager showed a potentially meritorious defense of lack of notice. Without prejudice to the plaintiff, policy of resolving disputes on the merits controls. Yea Soon Chung v Mid Queens LP
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Serious Injury Question of Fact Prior Condition Causation
Claims of permanent consequential and significant limitation of cervical and lumbar spine, and right hand reinstated based on affidavits of plaintiff’s chiropractor and pain management physician who found objective indications of injury raising triable issues of fact. Their opinions that the spinal injuries were causally related to the accident sufficiently addressed plaintiff’s previous treatment for scoliosis in light of her claim that she was asymptomatic before the accident. DaCosta v Gibbs
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Waive Arb Clause
In an action brought under labor Law § 740 (whistleblower), the court reversed the grant of summary judgment as the motion was premature where little discovery had taken place. The court also found that the defendant waived an arbitration clause by actively participating in the litigation and not raising the issue of arbitration until the motion for summary judgment was made. Pugliese v Actin Biomed LLC
Comment: While the whistleblower statute is not technically a “tort,” the finding that an arbitration clause was waived by actively participating in litigation will be important in tort cases as more and more arbitration clauses are popping up. |
Med Mal Question of Fact Accepted Practice Expert Aff
Defendant made out its prima facie entitlement to summary judgment that the care rendered to plaintiff’s decedent was within accepted medical and nursing home practices. Plaintiff’s expert’s opinion was based on facts unsupported in the record and speculative medical conclusions and, therefore, failed to raise a question of fact.
Feliciano v St. Vincent De Paul Residence
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Late Notice of Claim Raised For First Time
Petitioner failed to show a reasonable excuse for not timely serving the notice of claim or seeking leave, failed to establish that the City had actual knowledge of the facts within 90 days or a reasonable time thereafter, and showing that the City was not substantially prejudiced by the delay. New evidence presented for the first time on appeal was not considered. Matter of Mohamed v New York City
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Social Services Law § 413 Report Abuse Subsequent SJ Motion Discovery Law of the Case
Defendants brought a subsequent motion for summary judgment after the completion of discovery. Since the motion was based on new evidence obtained during discovery, the prior appellate decision was not law of the case. There were still factual issues as to whether defendant’s failure to report the allegations of abuse was a violation of Social Services Law and whether such failure was the proximate cause of plaintiff ‘s harm.
Djeddah v Williams
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Appellate Record Nonjury Trial
The court upheld a judgment of $10,000.00 awarded to the pro se plaintiff after a nonjury trial in a personal injury action. In reviewing a determination after a nonjury trial, the appellate court may render its own judgment based on the facts, giving due diligence to the lower court’s observation of the witnesses in close cases. The defendant’s objection to the sufficiency of the proof was not reviewable since defendant failed to assemble a proper record on appeal. It is the appellant’s obligation to provide a proper record. May v Freeman
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Premises Liab Dangerous Condition
Outside caterers at a wedding granted summary judgment for trip over a black metal box located between two tables upon showing that they did not create the dangerous condition through their catering efforts. Plaintiff failed to raise the question of fact in opposition. Micek v Greek Orthodox Church of Our Savior
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Serious Injury
Second Dept
Serious injury claim revived where defendants failed to adequately address plaintiff’s claim in the bill of particulars that he sustained a serious injury under the 90/180 day category. Since defendant failed to meet their initial burden, there was no need to examine the plaintiff’s opposition. Dong v Tobar
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Unconstitutional Ct of Claims Act
Law firm’s claim for negligence and fraud against the state and others was dismissed pursuant to CPLR 3211(a)(7), including a sua sponte dismissal of nonmoving defendants, and was affirmed by the appellate court. While complaints must be liberally interpreted, there must be allegations of fact to fit within “any cognizable legal theory.” The court found that the plaintiff failed to state a cause of action and found their claim that the Court of Claims act was unconstitutional lacked merit. Law Offs. of Thomas F. Liotti, LLC v State of New York
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Legal Mal Motion to Dismiss
Counterclaim for legal malpractice in action by attorney to recover unpaid legal fees for representation in a divorce, reinstated. No written stipulation was ever prepared or signed by the court as contemplated by the parties. The stipulation of settlement read into the record by a partner of the plaintiff law firm was not sufficient documentary evidence for dismissal because it did not conclusively establish a defense as a matter of law. Lieberman v Green
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Legal Mal Actual Damage
Plaintiff sued attorneys for failure to advise them that their “directors and officers” policy may cover them for their alleged fraud and conversion. Defendants moved for summary judgment claiming that a policy exclusion for criminal, fraudulent or dishonest acts would have barred coverage and there could be no actual damage sustained. Denial was upheld because the exclusion specifically stated that it applied “if any final adjudication establishes that such criminal, fraudulent or just at dishonest act occurred.” Since no such adjudication had taken place, defendant failed to meet its burden of showing that there could be no actual and ascertainable damage. Soni v Pryor
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