| MUST READS (4 summaries) | |||
| NOTEWORTHY | IF YOU MUST READ | ||
 Addressing whether a retrocessional (reinsurer of a reinsurer) insurer has standing to sue a defense attorney assigned by the primary carrier for malpractice for discontinuing without permission a third-party action against the demolition company that failed to procure the amount of coverage required by its contract, the Court found that the retrocessional insurer lacked direct or near direct privity with the attorney for a direct malpractice action but that once a retrocessional or reinsurer pays a loss, it can assert a malpractice claim against the attorney as equitable subrogee independent of any contractual provision. Motion to dismiss retrocessional insurer’s malpractice claim denied. Century Prop. & Cas. Ins. Corp. v McManus & Richter ✉ |
| Lower court erred in declining discontinuance against a defendant plaintiff signed a stipulation of discontinuance with on ground that defendant-hospital was not included on the stipulation as signatures on behalf of all parties is not required under CPLR §3217(b). Hospital was not prejudiced where it was protected from paying more than its share of liability by GOL §15-108 (a). Upon discontinuance of the party whose admission agreement had a forum selection clause, venue which had by changed from Bronx to Westchester County was returned to Bronx County. Shepherd v Workmen ✉ |
| Nursing home’s motion to dismiss claim for decedent’s contracting Covid granted as barred by executive order and EDTPA legislation granting healthcare workers immunity for Covid care. Repeal of EDTPA was not retroactive as claimed by plaintiff and defendant showed gross negligence exception did not apply where its pandemic-policies had steps to prevent infection and DOH policy required it to admit and readmit Covid positive patients. Hasan v Terrace Acquisitions II, LLC ✉ |
 Plaintiff met burden for default judgment by proof of proper service on Secretary of State (SOS) with a follow-up mailing to address registered with SOS and defendant’s failure to timely Answer. While failure to update address with SOS is generally not a reasonable excuse, ‘there is no per se rule,’ and it may be a reasonable where not updated for short period of time but defendant’s failure to update its address for 10-years was not a reasonable excuse. Defendant failed to show it did not receive notice of the claim in time to defend under CPLR §317 where its principal, also a defendant, was timely served.Failure to reject defendant’s untimely Answer after plaintiff moved for a default judgment did not waive the default. Bachvarov v Khaimov ✉ |
| NOTEWORTHY (12 summaries) | |||
| MUST READS | IF YOU MUST READ | ||
| Claimant’s motion for leave to file a late Claim denied and State’s motion to dismiss for failure to satisfy the “time when” pleading requirement of Court of Claims Act §11(b) for sexual abuse when she was in the State’s custody granted where claimant did not adequately allege when the acts took place. Issue of prejudice to the State was irrelevant as the defect deprived the court of subject matter jurisdiction and a jurisdictionally defective claim may not be cured by amendment. Williams v State of New York ✉ |
| Petition for CPLR §3102(c) pre-action discovery, including videos, identity of correction employees, and documents regarding attack on Rikers Island inmate, providently granted where inmate was unable to communicate due to brain injury from attack and information was material to frame Complaint for negligence and violation of inmate’s constitutional rights. Matter of Sokolova v City of New York ✉ |
| Plaintiff’s motion to compel defendants to disclose names/addresses of company and individuals that conducted surveillance video of plaintiff, all outtakes, and amount of video and audio tape used providently granted as material and relevant under CPLR §3101(i) and defendants’ cross motion for protective order providently denied. Mendez v Joseph ✉ |
| Plaintiff failed to raise issues on whether statute of limitations was tolled by her incapacity where her submissions did not show she was unable to function in society when the action accrued, she held a part-time job for 1-year after the accident, lived independently with a housemate, and her neuropsychologist noted her verbal and language skills, spatial-perceptual reasoning, and memory to be above average or very good. Noe v Lynch ✉ |
 Appeal from portion of order denying cross-motion to amend BP dismissed as not from order finally determining the action. Order granting defendants’ summary judgment affirmed where record showed plaintiff was sole cause of her accident. Regan v W Assoc., LLC ✉Comment: The First Department decision was reported in Vol. 345. |
| In Child Victims Act case, school district failed to meet burden for summary judgment dismissing negligence claim for student’s abuse by its medical doctor during a physical exam where its own witnesses testified it was negligent to allow a physician to conduct medical examinations of students alone behind a closed door. Since a jury could find the negligence violated school policy intended to protect students from sexual abuse, the intentional act of the abuser was not an intervening cause. J. B. v Monroe-Woodbury Cent. Sch. Dist. ✉ |
| Electrical worker who slipped on icy condition as he crossed from one barge to another as part of the Tappan Zee replacement project granted summary judgment on Labor Law §240(1), even though the barge decks were at the same level, as he was attempting to avoid falling in the gap between the barges to the water 8′-10′ below and a gangway between the barges was supposed to be in place. Defendant failed to show plaintiff was a recalcitrant worker without proof a safety device was available that he refused to use. Labor Law §200 and negligence claims based on a dangerous condition rather than means and methods of work not dismissed as it was relevant to Tappan Zee indemnity claim against plaintiff’s employer but motion for summary judgment on indemnity premature where issues remained on notice of icy conditions, lack of lighting, and sufficient time to remedy the condition. York v Tappan Zee Constructors, LLC ✉ |
| Questions of whether emergency room physician owed plaintiff a duty and scope of the duty when treating her compound fracture was a question for the court, not defendants’ expert, but defendants met burden for summary judgment on their expert’s opinion of no departure and no causation. Opinions of plaintiff’s experts failed to raise issues in opposition without a foundation for knowledge or expertise in emergency medicine and were otherwise conclusory and speculative. The Court does not give the details of the proofs. Corujo v Caputo ✉ |
| Where crane operator who acted as signalman fell into basement after being struck by concrete plank being hoisted had previously been granted summary judgment on Law Law §240(1), §200 and negligence claims based on means and methods of work dismissed as against owners/manager on proof they did not supervise or control the work, denied as against GC where questions remained of whether it controlled and supervised the fall protections, and denied as to concrete contractor on conflicting evidence of whether it or its subcontractor employed the concrete workers. On contractual indemnity claims, Owners and GC granted conditional summary judgment on contractual indemnity against concrete contractor, concrete contractor granted summary judgment against its subcontractor and crane contractor, plaintiff’s employer, under broad terms of indemnity agreements. Owners and GC were not third-party beneficiaries of subcontractor indemnity agreements that did not mention them. Owners/manager denied summary judgment on their common law indemnity and contribution claims against concrete subcontractor and crane company where questions of fact remained on who employed and supervised the workers. Owners and GCs granted summary judgment against concrete subcontractor and crane company on contractual claim for failure to procure required insurance. Weidtman v Tremont Renaissance Hous. Dev. Fund Co., Inc. ✉ |
| Defendants denied summary judgment without showing as a matter of law that the spinach in the salad eaten by plaintiff who developed an enteropathogenic E. coli infection was not contaminated where its evidence was all circumstantial and there were conflicting experts’ opinions on causation. Opinions of plaintiff’s treating doctor and medical experts were not speculative where based on testimony, medical records, and lab results. Goldman v Chopt Creative Salad Co., LLC ✉ |
| Building owners’ motion for summary judgment dismissing postal worker’s claim for fall of mailbox receptacle on her arm as she was delivering mail denied without prejudice to renew at the completion of discovery where plaintiff showed USPS records, EBT of her former coworker, and discovery regarding hearsay statements that the condition had been reported to the defendants might lead to relevant information on the issue of notice. Knowles v 21-43 27th St., LLC ✉ |
| Defendant granted summary judgment dismissing MVA case on proof it did not own the vehicle involved in the accident, or any vehicle, and could not be vicariously liable under VTL §388(1). Lower court improvidently granted plaintiff an extension to oppose the motion where plaintiff did not ask for an extension or show a reasonable excuse for the late filing. Simpson v Pasha Enters. Corp. ✉ |
| IF YOU MUST READ (2 summaries) | |||
| MUST READS | NOTEWORTHY | ||
| Urgent care center granted summary judgment dismissing plaintiff’s claim that the rolling chair she tried to sit in rolled out from her, causing her to fall, on proof there was no dangerous or defective condition that caused plaintiff’s fall and plaintiff offered no proof the condition was dangerous or defective. The Court does not give the details of the proofs. McKevitt v True N. Urgent Care, LLC ✉ |
| Defendant’s and plaintiff’s motions for summary judgment on Labor Law §240(1) denied where questions of fact remained of whether plaintiff’s work was covered by §240. The Court does not give the details of the proofs. Melendez v Truffles II, LLC ✉ |