Directed Verdict Strike Answer Spoliation Law of the Case Appealable Order
 Grant of plaintiff’s oral application to strike defendant’s Answer for spoliation and judgment as a matter of law reversed as directed verdict granted before close of party’s case will generally be reversed as premature even where they are unlikely to succeed. Lower court violated law of the case by relitigating previously decided issue of spoliation where there was no new proof or change of law. Fishon v Richmond Univ. Med. Ctr.
Comment: Appellate court granted permission for the appeal since the orders were granted on an oral application and only an order resulting from a motion on notice is appealable as of right. It also granted stay of trial pending its determination. |
Notice of Claim Court of Claims Vacate Default Reasonable Excuse Meritorious Action
Appeal from order granting defendant’s unopposed motions for summary judgment dismissed as no appeal lies from order granted on default. Plaintiff’s motion to vacate default denied where even if plaintiff provided a reasonable excuse, she failed to show a meritorious action based of missing date of accident in Notice of Intention to Claim, fatal under Court of Claims pleading requirements. Veralli v State of New York
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Attorney Fees
Attorney representing plaintiff during mediation where plaintiff rejected $1.100,000 entitled to 17.5% of fee on $2,994,000 eventual settlement by subsequent attorney, without a hearing, based on ‘time and labor spent by each [firm], the actual work performed, the difficulty of the questions involved, the skill required to handle the matter, the attorney[s’] skills and experience, [and] the effectiveness of counsel in bringing the matter to resolution.’ Rodriguez v Ryder Truck Rental, Inc.
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Stay Arb Estoppel
SUM carrier granted permanent stay of arbitration on proof insured did not file police report within 24 hours of accident or as soon as reasonably practical thereafter as required by policy. Insured’s claim that Geico representative told him it did not have to be reported to police when he called from accident not entitled to estoppel where contract language provided that terms could not be changed except by express written amendment. Matter of Geico Ins. Co. v Silverio
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Building Security
 NYCHA’s motion to stay trial until after resolution of suspect’s criminal assault case denied as not relevant to issue of NYCHA’s failure to maintain lock in working order allowing assailant to enter building and assault plaintiff. Miller v New York City Hous. Auth.
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Vacate Default CPLR § 3126 Preclusion Notice Willful/Contumacious Untimely
Defendants’ motion to vacate order precluding them from testifying regarding actual or constructive notice for refusal of principal of all defendant to appear for deposition denied where repeated failures to comply showed willful/contumatious intent. Claim that principal was uncooperative and not involved in day to day business not a reasonable excuse. Motion to vacate JHO referee’s discovery order timely under CPLR 3104(b) where made 5-days after order. Morson v 5899 Realty, LLC
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Assault Discovery CPLR § 3126 Sanctions Willful/Contumacious
Plaintiff’s repeated failure to comply with discovery orders without reasonable excuse showed willful/contumacious intent and lower court providently exercised discretion striking Complaint. Broccoli v Kohl
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MVA Vacate Default Appealable Order
Plaintiff’s appeal from grant of summary judgment for defendants on unopposed motion dismissed as no appeal lies from order entered on default. Appeal from denial of motion to vacate order granting summary judgment dismissed as abandoned where plaintiff did not seek reversal or modification of the order denying the motion to vacate in brief. Sanchez v Rivera
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Premises Liab Discovery Survelliance Video Preclusion CPLR § 3126 Spoliation Negative Inference
Plaintiff not entitled to preclude defendant from using 2-minute video footage of accident at trial, or to a negative inference, for not preserving more than 2-minutes of video where notice sent to defendant by plaintiff’s employer only requested video of the accident confirm plaintiff’s excuse for not showing up for work and unsigned letter purportedly sent by plaintiff’s attorney, submitted for the first time in a reply, was rebutted in defendant’s sur-reply stating that it was never received. Plaintiff failed to show that he could not prove his case absent additional portions of the surveillance video. Sanders v 210 N. 12th St., LLC
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Premises Liab Create Condition Notice
Defendant’s facility manager’s acknowledgement that parking gate arm sometimes gets stuck and proof of service call for similar condition 2-days before accident without proof it was fixed raised issue in opposition to defendant’s proof it did not create condition or have notice. Hightower v EXG 332 W44 LLC
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Premises Liab Stairs Unknown Cause Noseworthy
Grocery store where plaintiff’s intoxicated ward fell down stairs sustaining severe head trauma rendering him unable to remember accident granted summary judgment on ground that plaintiff could not identify cause of the fall without speculation. Plaintiff’s expert’s opinion finding stair defects did not causally connect them to fall which was just as likely caused by misstep or intoxication. Noseworthy doctrine did not apply where defendant had no greater knowledge than plaintiff about cause of accident and would not relieve plaintiff of showing some evidence of causation. Grande v Won Hee Lee
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Products Liab Design Defect Warnings Open/Obvious Sole Cause
Manufacturer and distributor of meat grinder with cheese grater attached that plaintiff knowingly placed his hand into near spinning blades without turning it off granted summary judgment of strict liability and failure to warn claims because condition was open/obvious, did not require warnings, and plaintiff’s actions was sole cause of accident. Hernandez v Asoli
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Construction Liab. Create Condition Duty
Construction company’s claim that as an independent contractor it owed no duty to plaintiff who was injured when wooden materials it stacked in service elevator fell on him rejected because it created an unreasonable risk of harm. Rivera v 11 W. 42 Realty Invs., L.L.C.
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Labor Law §240 Labor Law §241 1-2 Family Exception Amend Answer
Defendant’s cross motion to serve amended Answer asserting 1-2 family exception to Labor Law §§240(1) & 241(6) denied where defendant did not seek to set aside, and lower court did not set aside stipulation waving that affirmative defense. Motions to amend pleadings on the eve of trial should be granted cautiously. Plaintiff’s cross motion for summary judgment denied on his testimony that ladder was placed on a “bad” floor with lots of loose pebbles with leave to renew. Morales v 1415, LLC
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Premises Liab Create Condition Notice Expert Aff Res Ipsa Loquitor
Summary judgment for Con Ed on proof that class 2 or 3 pole that fell after being hit by falling tree during superstorm Sandy met all applicable standards, that the forces created by the fallen tree exceeded those required to be protected against by the standards, and that there were no defects found during an inspection 4-months before accident or in photographs taken of the fallen tree. Plaintiff’s expert’s opinion that pole was 2″ thinner than standard class 2 pole did not raise issue of fact where there was no evidence a class 2 pole was required or that maintaining a thinner pole did not comply with the “applicable standard of care.” Res ipsa loquitor not applicable because pole on a public highway not within Con Ed’s exclusive control and accident could have happened absent negligence. Berliner v Consolidated Edison, Inc.
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MVA Bus Set Aside Verdict Causation
Plaintiffs’ motion to set aside verdict finding bus driver negligent but not cause of plaintiffs’ accident as inconsistent and against weight of evidence denied where jury could find bus driver negligent in stepping off brake without checking trafficbut that it was not a cause of the accident based on bus driver’s testimony that plaintiffs’ vehicle cut in front of bus when light turned green. Negligence and causation were not inextricably interwoven. Cordice v New York City Tr. Auth.
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Pothole Law Slip/Trip Prior Written Notice NYC
NYC granted summary judgment on record searchers’ testimony of no prior written notification of defect at handicapped sidewalk pedestrian ramp and service report from verbal 311 call insufficient to raise issue of prior written notice. Preliminary report and violation issued to adjacent property involving a different defect not prior written notice of defect plaintiff tripped on where plaintiff testified there were no missing tiles when she walked there before date of accident. Harvey v Henry 85 LLC
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MVA Rear End Hearsay
Plaintiff’s motion for summary judgment against 3rd car she alleged rear-ended 2nd car pushing it into rear of her car denied where she had no personal knowledge of alleged facts and police report that did not attribute statements to specific individuals was inadmissible hearsay. Jimenez v Ramirez
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Motion to Dismiss Bicycle Duty
Motion to dismiss by bike rental company denied where rental agreement did not show clear and unequivocal intent to limit rental company’s liability for its own negligence. Oliver v Central Park Sightseeing, LLC
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MVA Sole Cause Foreseeability
Bus company whose driver waived on codefendant between narrow space of extended wheelchair lift from bus and parked cars failed to meet burden for summary judgment claiming that car driver was sole cause of the accident because there can be multiple causes of an accident and driver waving on car into the narrow passageway failed to eliminate the foreseeability of his actions resulting in the injuries. Jaber v Todd
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Labor Law §200 Ladder Sole Cause
Worker entitled to summary judgment on Labor Law §240(1) on his testimony that extension ladder shook before it kicked out from underneath him causing him to drop 20′. Defendant failed to show plaintiff was sole proximate cause. DeSerio v City of New York
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Wrongful Death Amend Complaint Statute of Limitations
Plaintiff’s motion to amend Complaint to add cause of action for negligent infliction of emotional harm where daughter was killed in the motor vehicle accident denied as palpably devoid of merit brought more than 3-years after accident and plaintiff did not seek to apply relation back doctrine. Schwartz v Walter
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MVA Motion to Dismiss Personal Juridiction Service CPLR §306-b
Defendant’s unopposed motion to dismiss on personal jurisdiction granted even if defendant’s affidavit regarding service was equivocal because plaintiff did not file affidavit of service to complete service, normally just a procedural defect, and did not file affidavit of service in opposition to the motion. It was plaintiff’s burden to show proper service within 120-days under CPLR 306-B. Deb v Hayut
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Default Judgment Vacate Default Emotional Harm
Default judgment of $1,083,622.22 after inquest upheld for defendant’s filing false murder charges against his brother “just to see his brother suffer.” Defendant could not challenge liability entered on default and his motion to vacate denied where neither side appeared on return date. Attorney who appeared was not allowed to participate in inquest because he was not the attorney of record. Spallone v Spallone
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MVA Bus
Plaintiff’s deposition and bus video of the accident, submitted by NYCTA on its motion, raised question of fact as to whether stop causing plaintiff to fall was unusual and violent. Giordano v New York City Tr. Auth.
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MVA Rear End Nonnegligent Explanation
Owner and driver of car rear-ended by plaintiff driver showed entitlement to summary judgment on driver’s testimony that he was stopped at red light when struck by plaintiff. Plaintiff-driver’s testimony differed somewhat but established that she did not maintain sufficient distance from defendants’ car. Kelly v Shin
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MVA Question of Fact
Defendant made out prima facie case for summary judgment on testimony that her car was parked in front of her house all day 4-blocks from where plaintiff was stricken as a pedestrian and that neither she nor her car were involved in the accident but plaintiff’s testimony that he clearly observed the car and driver when he was struck and recorded the license plate on his cell phone at the time raised issues of fact in opposition. Fobbs v Shore
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Premises Liab Slip/Trip Snow/Ice Duty NYC
NYCHA’s papers on motion for summary judgment raised issues of fact of whether it assumed a duty to clear shortcut through playground where plaintiff fell and whether it was negligent. Jones v New York City Hous. Auth.
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Premises Liab Create Condition Premature Motion
National Grid granted summary judgment on proof it didn’t work at area where plaintiff’s decedent fell in sinkhole and plaintiff failed to show what discovery would be necessary to oppose motion. Rivera v City of New York
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MVIAC
Plaintiff timely filed a Notice of Intention to Claim under MVIAC by motion to compel MVIAC to defend defendant 95-days after she received defendant’s NJ carrier’s denial because insured did not elect bodily injury coverage. Plaintiff was aware of policy and not required to inquire further regarding coverage until she received denial. Henry v Phelps
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