Premises Liab Motion to Dismiss Notice
 Cooperative apartment seller proved by documentary evidence it did not own or control premises sold 37 days before ceiling fell on tenant from illegal washing machine in apartment above and that successor owner had notice of the condition based on documents from a holdover proceeding and stipulation, eliminating the prior owner exception, where a prior owner may be liable for conditions that successor owner did not have time to discover and remedy. Successor failed to show it had insufficient time to remedy condition and provided no evidence it attempted to investigate or cure condition. Smith v 562 Morris Realty LLC
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Highway Design MVA Qualified Immunity Causation NYC
 NYC failed to meet initial burden where traffic studies conducted 3 & 5 years before infant-plaintiff darted out between school buses at informal school bus stop and was struck by vehicle because studies were performed in summertime and did not show that they addressed the same risk plaintiff alleged, i.e. children crossing to get to school buses, or that its negligence was not a proximate cause of the injuries. Qualified immunity only attaches if municipality considered and passed on same risk that would be presented to the jury. Vehicle driver granted summary judgment as ability to see and avoid child was limited due to the parked buses. Tyberg v City of New York
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Serious Injury IME/DME ROM Degenerative Expert Aff
IME/DME orthopedist’s initial report stating injuries causally related to accident was sufficient to raise issue of fact on causation where it conflicted with her subsequent, and radiologist’s, opinions that injuries were not related to the accident. Treating orthopedist’s documentation of limited ROM, direct observation during surgery, and opinion addressing degeneration raised issue on serious injury and causation of shoulder injury. Physiatrist’s report showing limited ROM, addressing preexisting cervical degeneration, and finding preexisting condition was exacerbated raised issue on cervical spine but plaintiff failed to raise issue on lumbar spine or 90/180-day category. Pouchie v Pichardo
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Premises Liab Slip/Trip Sidewalk Notice Open/Obvious De Minimus
Defendant failed to meet burden for summary judgment where plaintiff tripped on hole or depression in sidewalk at night in poorly lit area raising issues of whether 3”x12″ defect was open/obvious or trivial as a matter of law. Darkness obscured plaintiff’s view of defect. 10-year-old case involving what appeared to be same defect on subject property was probative. Keech v 30 E. 85th St. Co.
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Legal Mal Judiciary Law §487 Fraud Attorney Fees Amend Complaint Expert Aff
Sole remedy for alleged fraud, violation of Jud. Law §487, and conversion in obtaining attorney fees from settled medical malpractice case was to seek to vacate the judgment entered on the settlement and causes of action for breach of fiduciary duty and breach of contract were duplicative of legal malpractice claim . Conflicting opinions of experts on whether defendants exercised reasonable skill and competence as members of legal community precluded summary judgment for plaintiff. Plaintiff’s motion to amend Complaint denied as patently devoid of merit. Urias v Daniel P. Buttafuoco & Assoc., PLLC
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Legal Mal Vacate Default Reasonable Excuse Meritorious Action
Pro se plaintiff’s motion to vacate order of dismissal, granted on default, based on OSC request for extension of time to oppose filed on return date, which was stricken from the signed OSC, denied where plaintiff failed to show reasonable excuse for not timely opposing the motion after defendant refused a request to adjourn and plaintiff’s failure to show a meritorious opposition. Plaintiff did not show that defendants’ attorneys’ representation in the 2nd Circuit caused him to lose the appeal. Karimian v Karlin
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Asbestos Pain/Suffering Materially Deviates Set Aside Verdict
$5 million award for past pain/suffering for 17-months did not materially deviate from reasonable compensation for plaintiff’s mesothelioma but $2 million for 1-month of future pain/suffering deviated to the extent it exceeded $500,000. Plaintiff’s expert established decedent was exposed to sufficient asbestos to cause mesothelioma. Jury’s finding of 25% fault against defendant was not against weight of the evidence. Ford v A.O. Smith Water Prods.
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Med Mal Renew Expert Aff
Lower court providently exercised discretion in granting motion to renew based on amended expert affirmation containing details of records reviewed by expert which was why original decision granting summary judgment to defendants was granted. The court’s discretion is broad and is to be flexibly applied in the interests of justice. McGraw v Capuano
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Med Mal Accepted Practice Duty Expert Aff
In diagnosing and treating decedent’s prostate cancer the defendants did not have duty to perform or order a colonoscopy to prophylactically screen for other cancers. Plaintiff’s expert’s opinion that they should have ordered colonoscopy upon decedent’s complaints of constipation did not raise issue of fact where the expert did not indicate constipation is a symptom of colon cancer. Matthis v Hall
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Malicious Prosecution Question of Fact Probable Cause Collateral Estoppel
Detective denied summary judgment on sharply conflicting stories of whether plaintiff sold marijuana or smoked marijuana before arrest. Mapp determination finding probable cause did not have collateral estoppel effect because plaintiff was acquitted at trial and could not appeal Mapp decision. Thomas v City of New York
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Dental Mal Accepted Practice Causation Question of Fact
Dentist failed to make out entitlement to summary judgment on submission of parties’ depositions, certified medical records, and expert affirmation where dentist testified that “a shocking feeling” during nerve block injection could indicate nerve proximity and contact with the nerve could cause damage, and plaintiff testified that she felt extreme pain during injection, instructed dentist to stop, but he continued. Plaintiff sustained permanent lingual nerve damage. Foley v Jarit
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Motion to Dismiss Statute of Limitations Res Judicata
Defendants’ motion to dismiss second case involving same issues as first case that was dismissed for statute of limitations granted as dismissal for statute of limitations is decision on merits and subsequent action barred by res judicata. Cohen v Glass
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Labor Law §240
Lighting director at 2014 US Tennis Open who fell while removing c-clamp used to secure lighting scrim on exterior of broadcast booth was not engaged in altering a building or structure as it involved no significant change to a structure and was not protected under Labor Law §240(1). McCarthy v City of New York
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Premises Liab Negligent Supervision Unknown Cause Speculation Expert Aff Speculation
Homeowner granted summary judgment where 13-year-old fell off backyard swing on infant’s testimony that she did not know what caused her to fall, making her expert’s opinion speculative. Negligent supervision claim did not raise issue of fact where incident happened so suddenly that no degree of supervision could have prevented the fall. C.M. v Gasiorowski
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Premises Liab Slip/Trip Sidewalk § 7-210 Independant Contractor Duty Create Condition Notice
Building owner denied summary judgment where plaintiff tripped and fell on metal protrusion or signpost stump on sidewalk that owner had hired a contractor to correct shortly before plaintiff’s accident in response to a violation. Issues of fact existed on whether nondelegable duty under administrative code §7-210 was breached by causing or aggravating hazardous condition through resurfacing, not whether resurfacing work was defective. Vullo v Hillman Hous. Corp.
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Premises Liab Slip/Trip § 7-210 Duty Create Condition
Abutting landowner granted summary judgment where plaintiff tripped and fell in tree well on proof it did not create or aggravate condition, did not repair tree well, or make special use of it. A tree well remains NYC’s responsibility under administrative code §7-210. Farrell v 225 Parkside, LLC
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Premises Liab GML §205-e Open/Obvious Inherently Dangerous
Homeowner granted summary judgment where police officer was injured when he stepped in dirt portion of front yard while executing arrest warrant on a third party on Gen. Obl. Law §11-106 claim as condition was open/obvious and not inherently dangerous and inherent or incidental in the nature of the property that could reasonably be anticipated by those using it, and on GML §205-e claim where plaintiff did not show violation of a statute or ordinance. Cerrato v Jacobs
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Premises Liab Slip/Trip Snow/Ice Storm in Progress Notice Create Condition Last Inspection Duty Open/Obvious Inherently Dangerous
Building owner denied summary judgment where plaintiff slipped/fell on ice near loading dock during storm in progress where warehouse worker testified ice accumulated 1-week before and owner failed to show last time area was cleaned or inspected and questions of fact on whether condition was open/obvious or trivial. Warehouse granted summary judgment on proof its employees did not create condition and it had no obligation to maintain area. Perez v Raymours Furniture Co., Inc.
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Premises Liab Slip/Trip Snow/Ice Create Condition Notice Last Inspection
Village and tenant who rented parking lot granted summary judgment on proof they had no actual or constructive notice by showing no ice existed in area were plaintiff fell when last inspected at 9 PM, shortly before parking lot was closed, and plaintiff’s accident occurred at 5:30 AM, before parking lot opened. Velasquez v Pro Park, Inc.
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Premises Liab Slip/Trip Sidewalk Snow/Ice Storm in Progress Conclusory
NYCHA granted summary judgment on proof of storm in progress and plaintiff’s conclusory statements that she slipped on pre-existing ice and that defendant made inadequate efforts to clear ice were conclusory and did not raise issue of fact. Rosario v New York City Hous. Auth.
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Serious Injury ROM Preexisting Uncertified Records Causation
Defendants granted summary judgment on neurologist’s report showing normal ROM and resolved injuries and plaintiff’s testimony that she had prior lumbar injury requiring surgery and received SS disability payments. Plaintiff’s submission of uncertified medical records established rather than refuted that injuries and symptoms were from prior accident and without contemporaneous treatment she could not prove injuries were caused by the accident. Gblah v New York City Tr. Auth.
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Late Notice of Claim Court of Claims Appealable Order
Claimant’s appeal from dismissal of action on subject matter jurisdiction for failure to serve a Notice of Claim within 90-days, entered on default, dismissed as no appeal lies from an order entered on default. Thomas v State of New York
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Serious Injury Degenerative Expert Aff
Defendants granted summary judgment on radiologist’s opinions that MRIs showed cervical, lumbar, and shoulder injuries were all preexisting degenerative conditions not caused by the accident. Affirmed report of plaintiff’s orthopedist who first saw plaintiff 3-years after accident, failed to raise issue of fact in opposition where opinion that the accident caused the injuries was conclusory without any detail or explanation of the opinion. Santiago v Riccelli Enters., Inc.
Comment: Defendants’ appeal from denial of motion for summary judgment against third-party defendant dismissed as academic.Santiago v Riccelli Enters., Inc.. |
Premises Liab Slip/Trip Question of Fact Notice
Defendant’s submission of manager’s testimony giving conflicting description of mat plaintiff tripped on in produce section of defendant’s store contained in plaintiff’s deposition, also submitted by defendant, failed to eliminate all issues of fact on constructive notice of defect. Flaccavento v John
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Question of Fact Causation
Plaintiff’s testimony that defendant’s security guard closed restroom door on her hand conflicted with security guard’s testimony that plaintiff’s friend closed door, making summary judgment inappropriate based on conflicting stories. Moore v Elite Plus Sec.
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Premises Liab Elevator Slip/Trip Notice Res Ipsa Loquitor
NYCHA granted summary judgment of EMS worker’s claim for injuries sustained while entering elevator that was 3″-6″ above floor on proof that NYCHA did not have actual or constructive notice of mis-leveling condition. Plaintiff could not rely on res ipsa loquitor without proof that accident would not ordinarily occur absent negligence. The court does not give the details of the proofs. Palladino v New York City Hous. Auth.
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Premises Liab Slip/Trip Sidewalk De Minimus
Abutting landowner denied summary judgment where she submitted plaintiff’s deposition which raised questions of fact on whether defect plaintiff tripped on was physically insignificant and surrounding circumstances did not increase risks it posed. The court does not get the details of the proofs. Cabezas v Ramos
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Discovery
Lower court improvidently exercised discretion in granting NYCHA’s motion for protective order for all discovery demands, and denied plaintiff’s motion to compel compliance where NYCHA objected to all demands, where one item was relevant but providently granted protective order for the numerous other demands that were “overly broad, lacked specificity, or sought irrelevant documents.” The court does not give the details of the demands. Ceballos v New York City Hous. Auth.
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Serious Injury
Defendants made out prima facie entitlement to summary judgment on serious injury based on competent medical proof but plaintiff raised an issue in opposition. The court does not get the details of proofs. Magnano v DiMisa
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