April 11, 2023 | Vol. 360

(5 summaries)

Premises Liab   Motion in Limine   Waiver   Out of Possession   Create Condition   Notice   NYC  

Second Department
By requesting in limine the trial court to address whether the defendant development company was the proper party, plaintiff waived any objection to the court considering defendant’s application for summary judgment as the parties may “chart their own procedural course.” Defendant granted summary judgment on proof it was an out of possession landlord where the lower 25-floors were leased to NYC whose employees placed and maintained the runner in the lobby where plaintiff slipped on the exposed marble floor. The right to reenter for inspection did not create a duty to maintain and there was no evidence defendant knew or should have known of the condition when it leased the property or that it created the condition.

Plaintiff failed to show the development company, whose directors were affiliated with NYC agencies, were NYC’s alter ego or that NYC controlled the development company. Washington v Jay St. Dev. Corp.    

Child Victims Act   Motion to Dismiss   Duty   Negligent Supervision   Negligent Hiring  

Second Department
School district’s motion to dismiss Child Victim Act case of plaintiff who alleged he was sexually abused when he was 13-years-old at the boarding school denied where he adequately pleaded defendant owed him a duty and breached that duty by negligent hiring, retention, and supervision as it knew or should have known of employees’ propensity for sexual assault as well as violation of Social Services Law §413 for not reporting abuse where he plead the assailant was “legally responsible” for his care. Davila v Orange County    

Child Victims Act   Motion to Dismiss   Untimely   Reasonable Excuse   Meritorious Action  

Second Department
Lower court improvidently granted school district’s CPLR §3012(b) motion to dismiss Child Victims Act case for failure to serve a Complaint within 20-days of district’s initial demand where plaintiff served the Complaint using initials instead of plaintiff’s full name the same date defendant served a new demand for the Complaint after the court granted plaintiff’s OSC to proceed using a pseudonym as the court’s striking of plaintiff’s request to allow using the pseudonym until the OSC was decided provided a reasonable excuse for the 15-day delay in serving the Complaint and plaintiff showed a meritorious action. C. N. v West Islip Union Free Sch. Dist.    

Assault   Building Security   Malicious Prosecution   Consolidation   Law of the Case   Severance  

First Department
Motion to consolidate Bronx action for assault in homeless shelter with subsequently filed malpractice action in New York County, and transfer that case to the Bronx, denied where the legal issues were so dissimilar as to create jury confusion, no witnesses would have to testify twice, and half of the injuries were only attributable to the assault.

Subsequent motion to sever third-party action by assault defendants against malpractice defendants granted on same grounds as denial of motion to consolidate which was law of the case. Brown v Neighborhood Assn. for Inter-Cultural Affairs, Inc.    

Prior Written Notice   Sidewalk  

Second Department
Village granted summary judgment dismissing claim for trip and fall on sidewalk on proof village clerk did not receive required prior written notice of the defect. A letter from the village engineer to the co-defendant abutting landowners, requiring them to repair broken concrete found on an inspection as required by a village code was not prior written notice as only written notice to a ‘statutory designee’ satisfies the prior written notice requirement and there was no proof the documents found their way to the village board of trustees. There was 1-dissent. Kolenda v Incorporated Vil. of Garden City    

(13 summaries)

Malpractice   Wrongful Death   Motion to Dismiss   Statute of Limitations   Pain/Suffering   Capacity to Sue  

Second Department
Psychiatrists and their employer failed to meet burden of showing action was untimely based on wrongful death statute of limitations where claim was to recover pain/suffering prior to decedent’s suicide which sounds in malpractice, not wrongful death. Case remanded for decision on plaintiff’s capacity to sue at time action was commenced by Summons with Notice. Haddad v Muir    

Vacate Default   Reasonable Excuse   Meritorious Action   Prejudice  

Second Department
Lower court providently granted plaintiff’s motion to vacate order that defendants summary judgment on serious injury on default where plaintiff’s counsel’s explanation that the email with the return date was deleted before being calendared provided a reasonable excuse of law office failure, plaintiff expeditiously moved to vacate the default and showed a meritorious action, and defendants were not prejudiced by the delay. Melendez v John P. Picone, Inc.    

Malpractice   Set Aside Verdict   Directed Verdict   Accepted Practice   Causation   Experts  

First Department
Motion by radiologist, who found no abnormalities during sonograms ordered to rule out gynecological causes of plaintiff’s intense abdominal pain early in her pregnancy, to set aside verdict and for judgment as a matter of law granted where referring gynecologist testified she ordered the sonograms solely to rule out gynecological causes of plaintiff’s pain, did not rely on the radiologist’s report which she did not recall reading, and had already considered appendicitis in her differential diagnosis before the referral. Even if the radiologist departed from accepted practice by not reporting he could not visualize the appendix, there was no rational path for the jury to find the departure a proximate cause of plaintiff’s injuries when the appendix burst and she lost the pregnancy. Plaintiffs’ expert failed to address referring gynecologist’s testimony. Ameziani v Subramanyam    

Malpractice   Accepted Practice   Experts   Conclusory  

Second Department
Plaintiffs’ expert failed to raise an issue in opposition to defendants’ proof they did not depart from accepted medical practice while performing a shoulder reduction on decedent by an opinion that defendants used excessive force resulting in fractures of the radius and ulnar, not a known risk of the procedure, where plaintiff’s expert did not quantify the degree of force that should have been used and how it could be measured. Decedent’s osteoporosis irrelevant where defendant who performed the procedure testified it would not require a different procedure because the dislocation was an “acute situation.” Byrne v Sidhu    

Negligent Supervision   Causation   Question of Fact  

Second Department
School district failed to meet burden for summary judgment where it submitted infant-plaintiff’s testimony that students took 4-minute turns hanging from monkey bar rings while other students pushed them during the entire 20-minute recess, a teacher’s testimony the students were not allowed to push other students handing from the rings because it was unsafe, and another teacher’s testimony the students were allowed to push other students if they didn’t push too hard. Infant-plaintiff was the last to take a turn, was pushed hard, and fell breaking both of her wrists. L. S. v Massapequa Union Free Sch. Dist.    

1983 Action   Probable Cause   Indemnity   Vicarious Liab   Raised For First Time  

First Department
Riverbay, Co-Op City Department of Public Safety, and dental office denied summary judgment of 1983 claim that injured-plaintiff was illegally detained without probable cause and forcibly searched by peace officers where Riverbay failed to establish their peace officers were not acting under color of state law and questions remained of whether they had probable cause and unjustifiably detained plaintiff.

Mutual cross-claims for common-law indemnification dismissed as neither party was vicariously liable. Paragraph purporting to grant Riverbay’s motion to dismiss contractual claims, including contractual indemnity, was misstated where decision clearly found Riverbay failed to submit evidence of a contract. Shivers v City Smiles Dental    

Premises Liab   Wet Floor   Create Condition   Notice   Last Inspection   Survelliance Video   Out of Possession   Indemnity  

Second Department
Restaurant within department store in mall failed to meet burden for summary judgment where surveillance video did not conclusively show absence of dangerous condition, it submitted a witness account that floor plaintiff slipped on was dry 5-minutes earlier, but plaintiff’s testimony submitted by defendant had the accident happening 1-hour later and restaurant did not show when area was last inspected. Mall and department store defendants failed to show they were out of possession owners without submitting any lease and the food services agreement they submitted did not establish they had no duty to maintain the area within the restaurant.

Mall and department store denied summary judgment against restaurant on contractual indemnity under food services agreement which covered the nonparty and its affiliates without proof of their relationship to the nonparty. Carey v Walt Whitman Mall, LLC    

Premises Liab   Building Code   Causation   Experts  

First Department
Defendants granted summary judgment on proof the door to defendants’ grocery store was not shorter than the platform/step where plaintiff fell and was not in violation of the applicable building code. Although other portions of the platform/step where plaintiff did not fall from may have violated the building code, they were not a proximate cause of plaintiff’s accident. Plaintiff’s expert’s claim the platform violated code where plaintiff fell failed to raise an issue without photographs showing the measurements and a photograph marked by plaintiff clearly showed the platform was longer than the door. Reid v 645 LLC    

Premises Liab   Unknown Cause   Raised For First Time  

Second Department
Landlord denied summary judgment as plaintiff’s testimony that interior stair in multiple dwelling she slipped on was “wet” sufficiently described the cause of her accident even where she could not precisely describe the nature of the wet substance. Landlord’s claim it did not create or have constructive notice of the condition not considered where raised for the first time in its reply below. Diaz v SCG 502, LLC    

Premises Liab   Construction Liab.   Snow/Ice   Sidewalk   Last Inspection   Indemnity  

First Department
Owner and GC failed to meet burden for summary judgment without proof of last time area where plaintiff tripped on a snow-covered wooden plank on the abutting sidewalk as GC’s superintendent’s testimony he would inspect the area at the end of each workday failed to show lack of constructive notice without any indication he followed the procedure that day. Motions for summary judgment on contractual and common-law indemnification denied where neither defendant proved they were free from negligence. Attia v Slazer Enters., LLC    

Construction Liab.   Sidewalk   Question of Fact  

Second Department
Construction company met burden for summary judgment where plaintiff was injured when sidewalk under his foot collapsed on proof it did no work in the area but plaintiff raised an issue in opposition by documentary evidence that defendant did work in close proximity to where he fell and that defendant created the defective condition. Rosa v City of New York    

Premises Liab   Construction Liab.   Falling Object   Duty   Question of Fact   Indemnity  

First Department
Building owner and sidewalk shed owner failed to meet burden for summary judgment dismissing claim of plaintiff who was struck by a piece of wood that fell off the sidewalk shed as she crossed the street as each owed a duty to the plaintiff by ownership of the building and ownership of the shed, questions remained of which entity was responsible for inspecting the shed, and neither could show they lacked constructive notice of the condition. Shed owner’s motion to dismiss contractual indemnity cross-claim denied as neither defendant showed absence of fault. Ocean v Strivers Gardens Condominium Assn.    

Serious Injury   Causation   Degenerative   Experts   Speculation  

Second Department
Defendants met burden for summary judgment on serious injury by experts’ opinions that spinal and shoulder injuries were degenerative and not caused by the MVA and plaintiff’s experts failed to raise an issue without addressing defendants’ radiologist’s opinion that the injuries were degenerative, making their opinions speculative. Barnes v Paukar    

(2 summaries)

Serious Injury   Causation  

Second Department
Defendant met burden of showing plaintiff did not sustain a serious injury but plaintiff raised an issue in opposition. Defendant failed to show that plaintiff’s injuries were caused by his subsequent accident. The Court does not give the details of the proofs.

Lower court improperly granted defendant’s motion for summary judgment dismissing plaintiff, car owner’s property damage claim without proof there was no damage to the car. Panich v Materia    

Serious Injury   BP   Preexisting  

Second Department
Defendant failed to meet burden for summary judgment where his expert did not address the 90/180-day category or exacerbation of pre-existing injury allegations in the BP. The Court does not give the details of the proofs. Liburd v Mondal    

About Matt McMahon

Civil trials and appeals since 1984. Retired partner McMahon | McCarthy.
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