April 11, 2017 | Vol. 49

MUST READS
(8 summaries)
NOTEWORTHY IF YOU MUST READ

Premises Liab   Common Carrier   Sidewalk   Slip/Trip   Snow/Ice  

Second Deptartment

L.I.R.R. granted summary judgment on proof that the sidewalk between 2 staircases used by its patrons was also used by bus and taxi passengers. Areas served by a single carrier customarily used for ingress and egress must be maintained by the carrier, even if owned and maintained by someone else, if the area is constantly and notoriously used by its passengers but the rule does not apply to common areas used by multiple carriers. Mashall v Long Is. R.R.


Premises Liab   Wrongful Death   Building Security   Foreseeability   Intervening Cause  

First

Building owner where psychiatrist tenant was murdered by former patient granted summary judgment as building met its duty to provide “minimal precautions” through “24/7 doorman coverage, surveillance cameras, controlled building access, and functioning locks on the doors of the office suite and decedent’s personal office.” Given lack of history of violence in the building, or by the assailant, the assault was unforeseeable. Claims that greater security may have prevented the murder were speculative and claim that the doorman was negligent in not recognizing the assailant’s suspicious behavior does not overcome lack of foreseeability. Faughey v New 56-79 IG Assoc., L.P.


MVA   Turning Vehicle   Survelliance Video   Sole Cause  

Second Deptartment

The lower court improvidently refused to consider a surveillance video of the accident on the grounds of foundation where defendant testified that the video fairly and accurately depicted the accident. Upon review of the video, the sole cause of the accident was the plaintiff’s own negligence. Nesbitt v Gallant


Lead Poisoning   Default Judgment   Vacate Jud   Meritorious Defense  

Second Deptartment

The lower court erred in granting the defendant’s motion to vacate a default judgment and inquest in the amount of $4,578,190 where defendant failed to show a meritorious defense. The defendant’s principal’s affidavit stated that “it was unlikely” that they would have had notice of the existence of a child in the apartment, which was not an affirmative statement that they did not have knowledge that a child was living in the apartment. The Answer, verified by the attorney and based in part on upon information and belief, does not provide proof of a meritorious defense. The judgment was sent back to the lower court for proper entry to include prejudgment interest from the date of the inquest and not from the date of the plaintiff’s birth and to correct errors in the form. The court did not address defendant’s claims of reasonable excuse which were academic since they failed to show a meritorious defense. John v Rikud Realty, Inc.


MVA   Pain/Suffering   Materially Deviates   Set Aside Verdict  

Second Deptartment

Jury verdict of $447,858.58 for past lost earnings, $325,893 for future lost earnings, $600,000 for past pain and suffering, $1,000,000 for future pain and suffering, $200,000 for future medical expenses, and $25,000 for future dental expenses upheld as not materially deviating from reasonable compensation where plaintiff had multiple dental procedures, cervical surgery, daily pain management, and treating doctor testified that he was unable to return to work. Plaintiff proved lost earnings through his own testimony and economist, even though he had lost his job prior to the accident, and medical expenses are supported by the evidence. Nayberg v Nassau County


Serious Injury   Expert Aff   Causation   Preexisting  

First

Defendant granted summary judgment on serious injury based on IME/DME doctors’ opinions that there were no limitations on examination and plaintiff’s medical records which showed degeneration and complaints of spinal injury a month before the accident. Defendant’s experts were not required to review the plaintiff’s medical records and could base their opinions solely on their examination. Plaintiff’s expert failed to raise an issue of fact by not confirming TMJ his first examination of the plaintiff was 6 years after the accident, too remote to establish causation, and he did not explain how the injuries could be caused by the accident and not the pre-existing degeneration noted in the plaintiff’s own medical records. Khan v Goldmag Hacking Corp.


Negative Inference   Fraud   Privilege  

Second Deptartment

Upholding a verdict in favor of numerous carriers which found that the plaintiff radiologist’s PC was de facto owned and operated by non-physicians and thus not entitled to reimbursement for first party benefits under no-fault law, the court defined when a medical corporation may be considered a “fraudulent incorporation,” and specifically found that it is not necessary to prove the scienter element of common law fraud. A negative inference can be applied when a party invokes the Fifth Amendment privilege but not, as here, where it is invoked by a nonparty. The court found the error harmless as the defendants proved their defense by clear and convincing evidence. Carothers v Progressive Ins. Co.


Train   Set Aside Verdict   Directed Verdict  

Court of Appeals

Verdict in favor of plaintiff against NYCTA finding plaintiff 60% and NYCTA 50% at fault awarding $2 million in damages where plaintiff fell on train track and was struck by train was set aside and complaint dismissed by trial court and affirmed by the First Department. Court of Appeals reversed finding that their was sufficient evidence to support the verdict. There was one dissent. Robert Obey v. City of New York

NOTEWORTHY
(18 summaries)
MUST READS IF YOU MUST READ

Design Defect   Causation   Directed Verdict  

Second Deptartment

Crane company properly granted directed verdict at the close of plaintiff’s case where there was no reasonable path upon which a jury could find that design or positioning of the crane, even if true, was a substantial factor in causing the plaintiff’s injury. Caccese v Liebherr Container Cranes, Ltd.


Med Mal   Frye   Causation   Expert Aff  

First

Defendants’ motions to preclude plaintiff’s expert, after Frye hearing, denied as articles provided by plaintiff’s expert showed general acceptance that perinatal hypoxia can be the cause of brain injury in the absence of evidence of neurological injury in the neonatal period. Literature does not have to involve situations identical to the plaintiff’s. Victor Q. v Bronx Lebanon Hosp. Ctr.


MVA   Pedestrian   Wrongful Death   Comparative Fault  

Second Deptartment

Plaintiff granted summary judgment where plaintiff’s decedent was crossing the road in the crosswalk with the walk sign in her favor and was struck by a vehicle owned by Con Edison and operated by its employee. There was nothing in the papers for either side raising an issue of comparative fault. Huang v Franco


MVA   Bus   Negligent Supervision   Special Duty   NYC  

Second Deptartment

NYC and Board of Education granted summary judgment where bus matron was injured when a student grabbed the steering wheel and the driver stepped on the brakes causing the matron to fall. While a school owes a duty to supervise students, that duty runs to the students and not to the teachers and staff absent a voluntary assumption of a duty which requires direct contact, an affirmative promise to the injured party, knowledge that harm could ensue, and justifiable reliance, none of which were present in this case. Destefano v City of New York


Note of Issue   Discovery  

First

It is within the trial court’s discretion to grant discovery post Note of Issue, without striking the Note of Issue, where neither side would be prejudiced. Lower court did not abuse its discretion in granting post Note of Issue discovery. Cuprill v Citywide Towing & Auto Repair Servs.


Med Mal   Accepted Practice   Causation   Expert Aff   Conclusory  

Second Deptartment

Medical resident granted summary judgment on showing that she was always under the supervision of the attending physician, that the attending physician’s directives did not so materially deviate from accepted practice as to give rise to a duty to intervene, and that she did not exercise independent judgment. Plaintiff failed to raise a question of fact in opposition. A medical resident following the directives of an attending cannot be held liable unless exercising independent judgment or the attending’s directions so greatly deviate from normal practice that there is a duty to intervene. Anesthesiologist also granted summary judgment on his experts’ affidavits that he did not depart from accepted practice and that departures, if any, were not the proximate cause of plaintiff’s injuries. Plaintiff’s expert’s affirmation contained only conclusory statements unsupported by evidence and did not raise a question of fact Nasima v Dolen


Labor Law §240   Premature Motion   Sole Cause  

Second Deptartment

Plaintiff’s motion for summary judgment on Labor Law §240(1) was denied as premature by the lower court. Second Department found that plaintiff met burden of showing violation of Labor Law §240(1) but that third-party defendant employer raised a question of fact regarding whether the plaintiff was the sole cause of the accident upon statement that he was not instructed and did not have permission to be on the garage roof where he was working on the date of the accident. Benavidez-Portillo v G.B. Constr. & Dev., Inc.


Amend Complaint   CPLR Art. 16  

First

Plaintiff’s motion to amend his Complaint to include causes of action for reckless disregard and acting in concert with his assailant while an inmate at Rikers Island was providently denied for lack of proof of anything more than negligence. Amendment was sought in response to the NYC’s Art. 16 defense in its Answer. Velarde v City of New York


MVA   Bus   Slip/Trip   Storm in Progress  

First

Bus company granted summary judgment where plaintiff slipped on a wet stair as she was entering the bus while it was raining. Defendant was not required to constantly dry the stairs during ongoing storm. Collins v Nate Tours Bus Co.


Premises Liab   Snow/Ice   Slip/Trip   Last Inspection  

Second Deptartment

Adjoining landowner denied summary judgment for failing to meet its prima facie burden of showing that it did not have constructive notice of the condition by showing the last time that the sidewalk was cleaned or inspected. Proof of general cleaning practices is insufficient. Rong Wen Wu v Arniotes


Sidewalk   Prior Written Notice   Create Condition   Dangerous Condition  

Second Deptartment

Scarsdale Village entitled to summary judgment where plaintiff tripped on a slab of protruding bluestone on a walkway upon village clerk’s affidavit that no prior written notice had been received and deposition testimony from village officials that the bluestone was selected based on professional advice and was level when installed, affirmatively showing that it was not immediately dangerous when installed (an exception to the prior written notice rule). Loghry v Village of Scarsdale


Sidewalk   Prior Written Notice   Create Condition   Dangerous Condition  

Second Deptartment

Scarsdale Village entitled to summary judgment where plaintiff tripped on uneven bluestone sidewalk upon village clerk’s affidavit that no prior written notice had been received and proof that village did not create the condition (an exception to the prior written notice rule). Plaintiff failed to show that the sidewalk was immediately dangerous when it was constructed. Statements from village officials that they were aware of an environmental problem which may have caused the defect did not satisfy the prior written notice ordinance. Beiner v Village of Scarsdale


Res Judicata   NYC  

First

Plaintiff’s action against individual municipal employees was barred by res judicata from separate action involving same transaction in Queens County because the individual employees could have been included in the Queens action. Brown v New York City Dept. of Correction Officers Captain S. Tia


1983 Action   Emotional Harm   Set Aside Verdict   Directed Verdict   Police   NYC  

Second Deptartment

Verdict in the amount of $847,087.48 in favor of 72-year-old woman who was handcuffed for a few minutes while police officers executed a valid search warrant was set aside and a directed verdict granted in favor of the defendants as the police officers, and supervisor, acted reasonably in handcuffing the woman for a short time while they searched for a suspected drug dealer. Plaintiff, who went to hospital after the incident with increased blood pressure and was admitted for 3 days, failed to prove a physical injury from the alleged excessive force. Although the physical injury does not have to be severe, emotional harm is not sufficient by itself. Boyd v City of New York


Serious Injury   Expert Aff  

First

Plaintiff failed to raise a question of fact by the affidavits of 3 medical experts in opposition to the defendant’s prima facia showing of entitlement to summary judgment on serious injury for injuries to her cervical spine as none of the plaintiff’s experts quantified range of motion or gave a qualitative assessment of limitation of use. Physical therapist’s opinions regarding diagnosis, prognosis, and permanency are inadmissible as a physical therapist cannot make a diagnosis or prognosis. Callahan v Shekhman


Capacity to Sue   Motion to Dismiss  

Second Deptartment

Defendants’ motion to dismiss for lack of capacity under CPLR 3211(a)(3) where plaintiff had previously been diagnosed as “severely mentally retarded,” receives ongoing medical and psychiatric treatment at a residential facility, was entirely dependent on others for his care” denied where the plaintiff had not been judicially declared incompetent. Piggott v Lifespire, Inc.


Legal Mal   Statute of Limitations   Continuous Representation  

Second Deptartment

Plaintiff raised an issue of fact in response to defendant’s showing of entitlement to summary judgment on statute of limitation upon proof that he met with the defendant law firm to obtain their advice on how to correct an issue caused by their malpractice within 3 years of commencement of the suit. The attorney’s attempts to rectify an alleged act of malpractice can often be proof of continuous representation. Stein Indus., Inc. v Certilman Balin Adler & Hyman, LLP


Attorney Fees   Settlement  

Second Deptartment

Attorney’s motion to enforce a purported settlement and an attorney’s lien denied without proof that a settlement was reached on the record in open court or in writing. Plaintiff refused the settlement amount and plaintiff’s attorney moved to withdraw, subsequently making the motion to enforce the settlement and lien. Baker v Restaurant Depot

IF YOU MUST READ
(3 summaries)
MUST READS NOTEWORTHY

Coverage   Notice  

Second Deptartment

Insurer’s motion for summary judgment denied on grounds of untimely notice where insured alleged a reasonable belief that there was no liability. Burden of proof is on insured but it is a question of fact that cannot be decided on summary judgment. Min Ling Tang v Public Serv. Mut. Ins. Co.


Serious Injury  

Second Deptartment

Defendants met their initial burden for summary judgment upon competent medical proof that plaintiff did not sustain a serious injury to his knee and ankle and plaintiff failed to raise a question of fact in opposition. This court does not detail the proofs. Brun v Farningham


Serious Injury  

Second Deptartment

Defendants met their initial burden for summary judgment with competent medical proof that plaintiff did not sustain a serious injury to her lumbar spine and on causation and plaintiff failed to raise a question of fact in opposition. The court does not detail the proofs. Golden v Harlem Riv. of Manhattan

About Matt McMahon

Civil trials and appeals since 1984
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