Labor Law §240 Labor Law §241 Labor Law §200 Falling Object Industrial Code Control
Owner, property manager, and plumbing contractor denied summary judgment where they failed to provide any evidence contradicting plaintiff’s testimony he was struck by object dropped by plumber from above who apologized on Labor Law §240(1) falling object claim and plaintiff was not required to prove the exact circumstances. Defendants denied summary judgment on Labor Law §241(6) based on industrial code §23-1.7(a)(1) without proof area was not normally exposed to falling objects. Owner and property manager failed to show they did not exercise supervision or control over either plaintiff‘s or plumbers’ work under Labor Law §200.
GC granted summary judgment on proof it performed work only in certain interior apartments and did no work in basement where plaintiff was injured. Salcedo v Sustainable Energy Options, LLC
Construction Liab. Slip/Trip Sidewalk Espinal Raised For First Time
Contractor granted summary judgment on proof it returned sidewalk and protruding anchor bolts for lightpost to same condition it was in before contractor damaged foundation, showing as a matter of law it did not launch an instrumentality of harm under Espinal. Plaintiff’s claim that absent proof of when pole was removed inferences can be drawn that it was removed when foundation was damaged was not considered where raised for the first time in a reply brief. Price v Turner Constr. Co.
Premises Liab Question of Fact Hearsay Uncertified Records Expert Aff
NYCHA denied summary judgment where its biomedical expert relied on uncertified medical records for infant-plaintiff’s weight and used average weight of an 11-year old in forming opinion that it was physically impossible for her to have fallen through top of window as she described. It was undisputed window guard was improperly installed on the day of the accident and NYCHA’s employees’ testimony did not establish they did not create the unsafe condition. D.A. v New York City Hous. Auth.
Labor Law §200 Labor Law §240 Gravity Risk Control
GC denied summary judgment of Labor Law §200 and common law negligence claims where pipe rolled over plaintiff’s foot while he and coworkers were pushing/pulling plantar they were instructed to insert pipes under to move and foreman pushed it with a bobcat as question of fact remained that GC maintained some control of the means and methods of plaintiff’s work based on onsite superintendent’s testimony that GC directed the planter be moved, controlled use of the machinery, and could stop work for safety concerns or unlicensed bobcat operators, and had a practice of performing a safety task assessment. Defendants granted summary judgment of Labor Law §240(1) as no gravity risk was involved. Lemache v MIP One Wall St. Acquisition, LLC
Premises Liab Dangerous Condition Notice Last Inspection Spoliation Survelliance Video
Defendants denied summary judgment where their head of security testified photographs of loading dock taken immediately after plaintiff was injured while making a delivery showed an unacceptable condition that should have been remedied, raising issues of fact and defendants failed to show lack of constructive notice without proof of last time area was inspected. Plaintiff granted spoliation sanctions where she notified head of security of accident placing defendants on notice surveillance video capturing accident might be needed for litigation and they did not preserve the video. Ellis v JPMorgan Chase Bank
Med Mal Accepted Practice Causation Expert Aff Speculation
Defendants granted summary judgment on expert opinion that head/neck surgeon comported with accepted practice and was not cause of dental injury that was known risk of procedure. Plaintiff failed to raise issue in opposition without an expert opinion and claim medical records were altered was speculation. Evans v New York & Presbyt. Hosp.
Serious Injury Preexisting Degenerative Causation Expert Aff
MRI report and defendants’ orthopedist’s opinion that lumbar injuries were preexisting chronic conditions not caused by accident made out prima facie entitlement to summary judgment on serious injury. Plaintiff did not raise issue in opposition where his doctors did not address preexisting conditions noted in his records or explain how they could not be cause of his complaints. Xiu F. Wang v Levy
Premises Liab Slip/Trip Snow/Ice Expert Aff
Abutting landowner’s failure to submit an expert opinion where meteorological records, plaintiff’s expert’s opinion, and plaintiff’s testimony of conditions raised issues of how and when conditions occurred required denial of defendants’ motion for summary judgment. Batista v Hancock
Vacate Default Reasonable Excuse Traverse Hearing Meritorious Action
Plaintiff’s motion to vacate default denied without proof of reasonable excuse for process server’s failure to appear at Traverse hearing, including any details to support claim process server had unexpected medical appointment on date of hearing, or proof of a meritorious action. Cruz-Guzman v 2380-2386 Grand Ave., LLC
Vacate Default Reargument Untimely Prejudice Reasonable Excuse Meritorious Action Renew
Appellate Court deemed motion to reargue defendant’s motion for summary judgment that had been granted on default as motion to vacate where plaintiff’s affidavit showed reasonable excuse for default and meritorious action and lower court’s sua sponte denial of defendant’s motion for summary judgment as untimely was not prejudicial to defendants who raised timeliness on their motion for leave to renew as they failed to show motion was timely or that good cause existed for the late submission. Ingram v Association for Metroarea Auticstic Children, Inc.
MVA Bus Vicarious Liab
After the appellate division’s dismissal of the case against NYCTA, finding no liability, the lower court had no authority to entertain plaintiff’s motion to require NYCTA to pay for the unsatisfied judgment and accrued interest against its employee-bus-driver under Pub. Auth. L. §1212, whose Answer was stricken for failure to comply with discovery, as the employee never asserted cross-claims against NYCTA and the action was terminated by the entry of judgment years before the motion. Cropper v Stewart