April 13, 2021 | Vol. 257


MUST READS
(6 summaries)
NOTEWORTHYIF YOU MUST READ

Labor Law §240   Labor Law §241   Ladder   Falling Object   Premature Motion   NYC  

Second Department
Plaintiff denied summary judgment of Labor Law §240(1) claim involving ladder he was standing on when his knee was struck by a metal pipe that fell from the sidewalk bridge they were dismantling based on his 50H testimony that the ladder was secured and not defective. On §240 falling object claim, his testimony they had just dismantled the sidewalk bridge except for poles and crosses, including the one that fell and struck him, left questions of how the accident happened and whether it was necessary or expected that the pipe be secured.

Plaintiff failed to meet burden on Labor Law §241(6) claim based on industrial code §§23-3.3(b)(3)(demolition of walls/partitions) and 23-3.3(c)(inspections during hand demotion) that apply to structural instability from demolition progress, not hazards caused by actual demolition.

Defendants’ DKI of status as owner/operator, and/or contractor was “improper as the truth or falsity of the information alleged within those paragraphs of the complaint is wholly within the possession of the defendants” and plaintiff would not be required to provide proof of their status to obtain summary judgment had plaintiff otherwise met burden. Majerski v City of New York    



Premises Liab   Wet Floor   Stairs   Last Inspection   Storm in Progress   Feigned Issue   NYC  

First Department
Tenant, NYC, not required to show last time area was cleaned/inspected “as plaintiff’s accident occurred during a rainstorm in progress.” Owner and tenant granted summary judgment as ‘[m]ere wetness on a walking surface due to rain does not constitute a dangerous condition.’ Defendants also showed no prior complaints or accidents. Plaintiff’s expert’s opinion steps were worn making them slippery when wet failed to raise issue where not supported by “empirical data obtained by scientific analysis.” Plaintiff’s affidavit stating he reached for something but there was no handrail raised only feigned issue where it contradicted his testimony that he fell because of rainwater pouring on the stairs. Friberg v City of New York    


Malpractice   Assault   Collateral Estoppel   Accepted Practice   Experts  

Second Department
Malpractice action based on psychiatrist’s sexual assault of patient did not require expert opinion of departure from accepted practice as “the very nature of the act complained of bespeaks improper treatment.” Plaintiff’s submission of criminal trial testimony identifying her as victim, where psychiatrist was found guilty of sexual conduct with a person incapable of giving consent for reasons other than minority that included sexual conduct by a physician during a therapy session, established entitlement to summary judgment of malpractice claim. Collateral estoppel barred pro se defendant from arguing a different result without a claim he did not have a fair opportunity to litigate the criminal action. Kennedy v Hubsher    


Premises Liab   Appealable Order  

Second Department
Restaurant improperly granted summary judgment sua sponte after searching record on unopposed motion by contractor who renovated restaurant bathroom as basis of summary judgment for contractor, who owed no duty to restaurant’s patron, was different than basis of liability against restaurant, which owed patrons a duty, depriving plaintiffs of due process. Gibbons v Alicart Rest. Group    


Premises Liab   Sidewalk   § 7-210   Notice   Last Inspection  

First Department
Building owner and tenant denied summary judgment where metal floor panel on sidewalk that was propped against side of building implicated administrative code §7-210 and pleadings alleging panel was negligently propped against building and fell on plaintiff while she was lawfully on sidewalk gave sufficient notice of §7-210 claim to not be a new theory when later raised. Owner’s duty under §7-210 could not be delegated to tenant, and tenant failed to show lack of notice without proof of last inspection before accident. Cordero v 1278 Mini Mkt. Inc.    


Attorney Fees  

Second Department
Former firm’s motion to confirm referee’s report recommending it receive $993,543.13 (60% of fee on $5 million settlement) granted where it was substituted after 3.5-years, on eve of trial, and new attorneys negotiated settlement over 8-months. Fee-split was justified by “‘the amount of time spent by the attorneys on the case, the nature of the work performed, and the relative contributions of counsel’ toward achieving the outcome.” Berkowitz v Helms Bros., Inc.    

NOTEWORTHY
(12 summaries)
MUST READSIF YOU MUST READ

Premises Liab   Sidewalk   Snow/Ice   Directed Verdict   Notice   Set Aside Verdict   Pain/Suffering   Materially Deviates   Experts   Missing Witness Charge  

Second Department
Defendants’ motion to set aside verdict awarding $2 mil/$2 mil past/future pain/suffering and $350,000 future medical expenses for 58-year-old who slipped on icy sidewalk, that lower court granted to extent of reducing past pain/suffering to $600,000, granted unless plaintiff stipulates to reduce future pain/suffering to $1.4 mil as awards materially deviated from reasonable compensation. The Court does not give the details of the injuries.

Defendants’ motion for directed verdict denied where rational path existed for jury to find constructive notice on testimony plaintiff slipped on ice from snow several days before that melted and refroze. Plaintiff’s expert’s testimony was non-speculative where based on facts in record. Trial court properly gave missing witness charge for defendants’ missing superintendent who was responsible for snow removal. Morales v Davidson Apts., LLC    



Premises Liab   Snow/Ice   Prior Written Notice   Notice of Claim   Create Condition  

Second Department
City of Glen Cove granted summary judgment on proof it did not have prior written notice of defective drainage pipe plaintiffs alleged caused ice injured-plaintiff slipped on in municipal parking lot and plaintiff failed to allege any exception to prior written notice requirement. Plaintiffs’ cross-motion to amend Notice of Claim to include affirmative creation of dangerous condition denied as a Notice of Claim can only be amended under GML §50-e(6) to correct “a technical mistake, defect, or omission,” and not to add a new liability theory. Congero v City of Glen Cove    


MVA   Question of Fact   Admission   Admissibility   Uncertified Records   Raised For First Time  

First Department
Plaintiff denied summary judgment where individual-defendant’s affidavit stated truck was stopped when rear ended by plaintiff’s, contradicting plaintiff’s affidavit that truck unsafely backed into him. Police report with possible admissions by defendants not considered where uncertified and submitted for first time in reply depriving defendants of opportunity to address statements. Butler v Cruz    


Products Liab   Set Aside Verdict   Experts  

Second Department
Plaintiff’s motion to set aside defense verdict as against weight of evidence for injury while using defendants brush chipper denied as verdict was based on fair interpretation of evidence and jury could credit defendant’s expert and reject plaintiff’s expert’s opinions. The Court does not give the details of the proofs. Nielsen v Vermeer Mfg. Co.    


HIPAA   Preexisting  

First Department
Proof plaintiff previously had complaints similar to injuries claimed as a result of the malpractice, had been diagnosed with various mental health conditions linked to some of the alleged injuries, and his doctors were unable to find a non-psychological explanation for the complaints was sufficient to require plaintiff to provide HIPAA authorizations for mental health records. Akel v Gerardi    


Labor Law §241   Labor Law §200   Industrial Code   Control   Indemnity  

First Department
Defendants granted summary judgment of Labor Law §241(6) claim based on Industrial Code §23-1.7(e)(2) as loop of electrical wire plaintiff tripped on was integral and permanent part of work. GC denied summary judgment of Labor Law §200 and negligence claims where questions remained of whether it controlled means and methods of plaintiff’s work as it coordinated work areas and checked rooms every morning to make sure they were ready for the work. GC’s testimony that plaintiff’s employer was not supposed to work in room where accident occurred until electricians finished and testimony it directed plaintiff’s foreman to have them work in that room left questions of fact.

GC’s potential negligence precluded summary judgment on its common law and contractual indemnity claims and fact electrical contractors’ carrier was defending and indemnifying GC barred indemnification claims under antisubrogation rule. Hammer v ACC Constr. Corp.    



MVA   Vacate Default   Reasonable Excuse   Conclusory   Meritorious Action   NYC  

Second Department
Plaintiffs’ motion to vacate summary judgment, granted on unopposed motion, denied as plaintiffs’ undetailed explanation of delay in receiving expert affidavit necessary to oppose motion was not a reasonable excuse for default. Without reasonable excuse, it was unnecessary to look at question of meritorious opposition. Laurent v Belony    


Motion to Dismiss   CPLR § 3126   Discovery   Willful/Contumacious   Reasonable Excuse  

First Department
Defendants failed to show any abuse of discretion in lower court’s denial of motion to dismiss for failure to provide court-ordered discovery. Striking pleading is only appropriate where failure to provide discovery is willful/contumacious and even a less than compelling excuse can justify denying motion in favor of policy of deciding cases on merits. The Court does not give the details of the proofs. Youwanes v Steinbrech    


Premises Liab   Sidewalk   Snow/Ice   Prior Written Notice   Create Condition   Notice of Claim  

Second Department
Village established it did not have prior written notice of snow/ice/slush injured-plaintiff slipped on, but failed to show it did not affirmatively create condition, an exception to the prior written notice requirement that was alleged in the Notice of Claim and was not a new theory first alleged in the BP. Levy v Incorporated Vil. of E. Hampton    


Premises Liab   Elevator   Create Condition   Notice   Survelliance Video   Raised For First Time   Feigned Issue  

First Department
Building owners and managers granted summary judgment on proof they did not create condition or have actual or constructive notice based on porter’s testimony he mopped elevator floor that morning and inspected it immediately after accident, finding the floor was not wet and there was no mis-levelling, and super’s affidavit that staff cleans/inspects elevator daily and there was no history of wetness or mis-leveling. From surveillance video, elevator service company established no mis-leveling and plaintiff admitted she did not see any dangerous height differential from mis-leveling before or after her fall. Plaintiff’s husband’s affidavit stating for the first time that he saw a 1″-1.5″ height differential directly contradicted his wife’s unequivocal testimony raising only a feigned issue, and video showed that husband placed his foot flatly between elevator and lobby floor without looking down and could not have observed a height differential. Santapau v Brownstone Too Condo    


Serious Injury   ROM   Preexisting   Degenerative   Causation   Experts   Conclusory  

First Department
Defendants met burden for summary judgment on serious injury with radiologist’s finding of preexisting degenerative not caused by recent trauma in injured shoulder and no rotator cuff tear, and orthopedist’s finding of identical ROM in injured and uninjured shoulders, normal functioning of injured shoulder, that plaintiff’s medical records showed no limited ROM 4-monts post-accident, and that her surgeon’s diagnosis included arthritis. Opinion of plaintiff’s doctor who only examined her recently failed to reconcile recent limited ROM with previous full ROM in plaintiff’s records, was conclusory on causation without addressing history of preexisting arthritis in plaintiff’s medical records, assumed no preexisting condition, and gave no evidence to rebut showing of no rotator cuff tear. Without causation, 90/180-day category also dismissed. Blumenberg v Lora    


Premises Liab   Sidewalk   Prior Written Notice   Governmental Function  

Second Department
Town granted summary judgment where plaintiff tripped on height differential between sidewalk flag and driveway owned by town on affidavits of village clerk and highway superintendent that they found no prior written notice of the defect after a search. Plaintiff’s claim that the prior written notice statute was inapplicable because town was acting in proprietary not governmental function rejected. Belluck v Town of N. Hempstead    

IF YOU MUST READ
(2 summaries)
MUST READSNOTEWORTHY

Malpractice   Severance   Bifurcation  

First Department
Doctor’s motion for severance providently denied where he failed to show bifurcation would be so convenient or prevent prejudice as to outweigh the disfavor for severance where the issues arose from common facts. The court does not give the details of the proofs. Ayangbesan v Finkelstein    


Uninsured   Arbitration  

Second Department
Carrier’s proof that its insureds failed to appear for 2-scheduled examinations under oath, and that it timely disclaimed coverage, made out entitlement to permanent stay of arbitration of uninsured claim. Matter of State Farm Fire & Cas. Co. v Llera-Negron    

About Matt McMahon

Civil trials and appeals since 1984
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