| MUST READS (4 summaries) | |||
| NOTEWORTHY | IF YOU MUST READ | ||
 In a case of first impression, the Second Department found it unnecessary to serve a Notice of Claim on charter schools under Ed. L.§3813 which extends GML §50-e requirements to certain not-for-profit schools, such as schools for the blind, deaf, and severely disabled that are completely dependent upon a school district for support covered by Ed. L. §4201, as charter schools are allowed to operate independently of the school districts that fund them.School failed to meet burden for summary judgment dismissing student’s claim for injuries when she was pushed by another student in a hallway where the student and her mother had previously complained about similar incidents, the school had a policy of placing monitors in the hallway because of such danger, and school failed to show any monitor was in the hallway at the time of the incident. A. P. v John W. Lavelle Preparatory Charter Sch. ✉ |
| Plaintiff granted new trial where trial court improvidently struck plaintiff’s accident reconstructionist’s testimony because the plaintiff did not offer him as an expert in a particular field as the expert’s testimony about his qualifications and experience qualified him as an expert in the field of accident reconstruction. A trial court is “not required to formally declare or certify” an expert as an expert in order for the expert to provide expert opinions. Deliz v Julia Rose Transp. ✉ |
| Motion to dismiss Child Victims Act case for lack of personal jurisdiction by fellow student at residential high school alleged to have sexually assaulted plaintiff granted to the extent of remanding the case for a hearing to determine if service was properly made on that defendant where the affidavit of service stated service was made on a person of suitable age and discretion but did not state a follow mailing was made as required by CPLR §308(2). Amended affidavit of service stating the mailing was done could not cure the defect as defects “related to ‘a defendant’s substantial right to notice of the proceeding against him or her, . . . may not be corrected by an amendment,’” including an erroneous address, mailing date, and omission of required follow up mailing. John Doe v Mesivtha, Inc. ✉ |
| Plaintiff raised issues of fact on whether city had prior written notice of 3″ bar protruding from cracked sidewalk by notice of violation to the adjoining property owner after an inspection finding ‘deteriorated and hazardous conditions’ issued by the Commissioner statutorily designated to receive notice of sidewalk defects. Question of whether the violation encompassed the defect plaintiff tripped on was a question of fact for the jury. Douglas v City of Mount Vernon, N.Y. ✉ |
| NOTEWORTHY (16 summaries) | |||
| MUST READS | IF YOU MUST READ | ||
| Defendants’ motion to dismiss plaintiff’s claim for injuries from stretcher they manufactured granted where original case had been discontinued with a stipulation to toll the statute of limitations but the action was recommenced more than 3-years after the accident even adding amount of time the action was tolled. The stipulation did not reset the date of accrual of the cause of action. Buss v Stryker Corp. ✉ |
| Defendant met burden for dismissal on statute of limitations by proof action was started more than 3-years after the accident but plaintiff met burden of showing action was timely where 10-months remained on the statute of limitations when the Covid tolls were put in place and the action was started 6-months after they ended. Cruz v Guaba ✉ |
 Plaintiff’s motion to amend her BP and Complaint as to NYCHHC and its doctor denied where the claims were not included in the Notice of Claim served a decade earlier even though argument was raised for the first time on appeal, as it was an issue of law that appears on the record and could not be avoided if addressed below. As to the other defendants, plaintiff’s excuse she did not learn of the new claims until the EBTs was not reasonable given that she should have been aware of them from the medical records and defendants were prejudiced by the delay, even though a Note of Issue had not yet been filed, where they spent large sums on the defense based on the original allegations, discovery on the original claims was closed, a Note of Issue date was scheduled, and the original claims were made a decade earlier.Proposed amendment to include claim for informed consent barred by statute of limitations rejected as it did not relate back to the original malpractice claims. Perez v New York City Health & Hosps. Corp. ✉ |
| Lower court improvidently denied defendant carpet installer inspection of site where plaintiff’s foot fell in a vent hole with a displaced cover on plaintiff’s claim the inspection would not yield relevant information since the cover had been replaced, even if replacement of the cover made it less likely relevant information would be discovered, as it is up to the person seeking the discovery to determine if the effort is likely to reveal relevant information and plaintiff’s claim it would not reveal relevant information was speculative, A court has the power to limit “unreasonable” discovery but there was no proof defendant’s request was unreasonable. Balsamello v Structure Tone, Inc. ✉ |
| Worker who fell through subfloor while demolishing floor by pulling up nailed floorboards from the subfloor with a crowbar granted summary judgment on Labor Law §240(1) even if the subfloor could be considered a permanent structure as the accident was foreseeable given the condition of the building as depicted in photographs soon after the accident. Defendants’ expert’s opinions based on photographs from an unspecified time did not raise an issue where they did not show the condition of the building at the time of the accident. Plaintiff’s lack of an engineering report was irrelevant where defendant was cited for failure to file an engineering report prior to demolition. Mata v 371 1st St., LLC ✉ |
| Plaintiff failed to meet burden for summary judgment on Labor Law §241(6) claim based on industrial code §23-1.8(a) for eye injury when debris from wire securing nails in nail gun hit him in the eye where issues remained of whether plaintiff was doing work that ‘may endanger the eyes,’ requiring eye protection. The Court does not give the details of the proofs. Chuqui v Cong. Ahavas Tzookah V ✉ |
| School district granted summary judgment dismissing baseball player’s claim for injuries during a practice exercise where 21-balls were launched into the air and he was hit in the eye by a ball he was trying to catch when a fellow team member bumped him as he was an experienced varsity baseball player who had participated in the exercise previously and was well aware of and assumed the risks of the exercise. Expert’s claim the exercise was a ‘punishment drill’ was speculative and conclusory and not supported by the industry standards and guidelines he cited. Comunale v Sachem Cent. Sch. Dist. ✉ |
| Mason who fell 2-stories when he jumped on plywood covering air duct hole to test its strength and it broke granted summary judgment on Labor Law §240(1) as the plywood was an inadequate safety device because it was not secured and any negligence in jumping on the plywood was comparative fault, not a defense to §240. Recalcitrant worker defense rejected without proof a second piece of plywood would have made it an adequate safety device as opposed to it being reinforced and secured. Guaraca v West 25th St. Hous. Dev. Fund Corp. ✉ |
| Property owner failed to meet burden for summary judgment dismissing plaintiff’s claim for slip and fall on ice on exterior stairs where he submitted plaintiff’s testimony that it was not snowing at the time she fell and defendant’s meteorological expert’s report was unsworn. Defendant also failed to show his snow removal efforts for 5-hours before the accident did not create or exacerbate the dangerous condition. Braxton v Brown ✉ |
| Pipe manufacturer denied summary judgement without unequivocal proof its asbestos containing pipes could not have contributed to decedent’s injuries where decedent testified he had contact with their asbestos containing pipes at an unspecified midtown west side sewer plant which defendant claimed could only be one specific plant that didn’t exist until after they stopped making pipes containing asbestos but defendant failed to show decedent worked at that specific plant or that their asbestos containing pipes could not be there as there were extended construction delays and materials had been ordered prior to when the manufacture stopped making those pipes. Horvath v Ameron Intl. Corp. ✉ |
| Plaintiff granted summary judgment on proof defendants’ vehicle crossed over the double yellow line in violation of VTL §1126(a) and struck plaintiff’s vehicle. Defendants’ emergency doctrine defense dismissed on defendant-driver’s testimony he knew there was a double parked car in front of the van that pulled in front of him and stopped short, causing him to cross over into the oncoming lane, establishing he partially created the emergency. Burgess v Little Wolf Cabinet Shop, Inc. ✉ |
| Defendants granted summary judgment dismissing claim of pedestrian struck while attempting to cross highway at night in area not permitted for pedestrians as plaintiff was the sole cause of the accident and defendants were not liable for failing to avoid the accident under the emergency doctrine where the driver had only seconds to react. Plaintiff’s claim defendant-driver may have been looking behind him instead of at the road was pure speculation where she testified she could not recall how the accident occurred. Notaroberta v Golub ✉ |
| Supermarket granted summary judgment dismissing plaintiff’s claim for slip and fall on puddle in dairy section on video and employee’s testimony and affidavit the area was clean when she inspected it 9-minutes before plaintiff’s fall, establishing they did not create or have notice of the condition in time to correct it. Plaintiff failed to raise an issue by speculation that the employee did not adequately inspect the area. Motion to vacate judgment did not bring up denial of motion to reargue as no appeal lies from denial of a motion to reargue. Rogers v Stop & Shop Supermarket Co., LLC ✉ |
| Building owner and tenant failed to meet burden for summary judgment dismissing plaintiff’s claim for slip and fall on wet floor inside the building where testimony of defendant employee responsible for maintaining the floor did not show the last time the area was inspected. Hussain v Neurology Continuum, P.C. ✉ |
| Owner and driver of vehicle granted summary judgment on proof plaintiff ran into the street from behind a parked car striking defendants’ vehicle and defendant-driver was unable to avoid the contact. Hernandez v Flores ✉ |
| Outgoing attorney’s motion to vacate prior order giving incoming attorney option of paying disputed disbursements directly to the outgoing attorney or into court as security, denied by the lower court as a motion to reargue, dismissed as there is no appeal from denial of a motion to reargue. Grech v HRC Corp. ✉ |
| IF YOU MUST READ (2 summaries) | |||
| MUST READS | NOTEWORTHY | ||
| Carrier granted permanent stay of arbitration of injured-party’s SUM claim on proof he was not the insured or a relative of the insured and was not “occupying” the vehicle he had been driving when it lost a wheel and he was outside of the car waiting for someone to pick him up when the car was struck by another car and propelled into him. By getting out of the car with the intention of going in someone else’s car instead of returning to the vehicle he severed his connection to the car for purposes of SUM coverage. Objection to use the unsigned transcript of an EUO statement waived where respondent did not raise a timely objection and relied on the transcript. Matter of American Family Mut. Ins. Co. v Johnson ✉ |
| Company failed to meet burden for summary judgment dismissing plaintiff’s claim that company was vicariously liable for driver of vehicle involved in collision by respondeat superior without proof driver was an independent contractor and not an employee. The Court does not give the details of the proofs. Brielmeier v Leal ✉ |