| MUST READS (3 summaries) | |||
| NOTEWORTHY | IF YOU MUST READ | ||
 In coordinated action involving overturned bus with 15-fatalities and multiple injuries, owner and driver of tractor-trailer granted summary judgment on driver’s testimony he drove behind the bus and never cut it off and their expert’s opinion that EDR data from both vehicles showed relative speeds made it physically impossible for the tractor-trailer to have passed and cut off the bus and the shallow angle with which the bus departed from the road contracted the bus driver’s claim he was cut off. Bus driver’s testimony was incredible as a matter of law.Tour operator that hired the bus granted summary judgment as it was not responsible for the acts of an independent contractor and its on board tour guide did not control the operation of the bus. Ren Yao v World Wide Travel of Greater N.Y., Ltd. ✉ |
| Defendants’ motion for a Frye hearing and to preclude plaintiff’s expert from testifying on causation granted where plaintiff’s expert failed to show her theory that mold can cause the type of plaintiff’s injuries was generally accepted by the scientific community as general causation cannot be established with studies showing only a ‘risk’ or ‘association’ between exposure and the medical conditions and defendants’ expert relied on a position paper that controverted plaintiff’s expert’s theory. Plaintiff’s expert failed to satisfy Frye requirement for specific causation which cannot be shown by proof that exposure is ‘excessive’ or ‘far more’ than others,” or which links a toxin to a disease, or works backwards from symptoms to show an otherwise unknown concentration of the toxin. Sufficient exposure to cause the claimed medical condition must be shown so that a fact finder can conclude plaintiff was exposed to levels known to cause the condition. Plaintiff’s expert failed to quantify the plaintiff’s exposure to mold by relying on a differential diagnosis. Buist v Bromley Co., LLC ✉ |
 Trial court’s prior judgment for plaintiff on false arrest and malicious prosecution after jury trial, reversed on appeal, was not law of the case barring trial court from granting defendant directed verdict after subsequent jury trial where witness who identified plaintiff to police was improvidently precluded in the first trial and allowed to testify in the second trial.Defendants properly granted directed verdict where police had probable cause for the arrest from witness’ description of plaintiff by “race, sex, clothing, and precise location” and officer’s testimony no one else in the area matched the description and for plaintiff’s detention and prosecution from the witness’ identification of the plaintiff from a photo. Onilude v City of New York ✉ Comment: The appellate decision from the first trial was reported in Vol. 189. |
| NOTEWORTHY (13 summaries) | |||
| MUST READS | IF YOU MUST READ | ||
| Appeal from order denying plaintiff’s motion for additional EBTs of defendant-doctors dismissed as no ruling regarding EBTs is appealable as a matter of right, whether or not made on motion on notice, and the Court declined to consider the notice of appeal as an application for leave to appeal. Ward v City of New York ✉ |
| Petitioner’s motion to serve late Notice of Claim on NYC denied as devoid of merit where it was undisputed NYCHA, not NYC, owned the property where he was injured. Motion to serve late Notice of Claim on NYCHA denied for failure to show NYCHA acquired actual knowledge of the essential elements of the claim within 90-days as there was no proof it received petitioner’s WC claims forms which, in any event, did not mention any allegations against NYCHA. Photographs of a dismantled scaffold was insufficient to show lack of prejudice as a scaffold is not a transitory condition like debris and claim scaffold was dismantled within the 90-day period was unsupported. Petitioner’s ignorance of need to file a Notice of Claim within 90-days insufficient to show reasonable excuse for the delay. Matter of Philbin v City of New York ✉ |
| Homeowner granted summary judgment dismissing claim for injuries when owner’s son’s dog bit the plaintiff-visitor on proof owner had no notice of dog’s vicious propensities. Son’s testimony the dog protected the house and barked if someone knocked on the door described only normal dog behavior. Neither the dog pulling away from being petted near his ears nor the nature or severity of the attack demonstrated the owner should have been aware the dog was vicious. Agro v Olivieri ✉ |
| MTA, TBTA, and bridge contractor granted summary judgment dismissing Labor Law §200 claims of bridge contractor’s workers, passengers in their employer’s vehicle involved in an accident while being dropped off on the Throgs Neck Bridge, on proof they did not control the means and methods of the drop-off procedures on the bridge and presence of a TBTA security officer was insufficient to show control and supervision. Labor Law §241(6) claims based on industrial code §23-1.29 dismissed where the drop-off point was not plaintiffs’ work area. Defendants denied summary judgment dismissing 1-plaintiff’s 90/180-day serious injury claim where his doctor opined his injuries were caused by the accident and resulted in disability during the relevant period. That plaintiff’s motion for summary judgment denied where defendants’ experts raised issues regarding his disability. Plaintiff denied summary judgment against driver and owner of other vehicle on res judicata as guilty plea to traffic violation is evidence of negligence but not conclusive proof in a civil action. Valenti v Metropolitan Transp. Auth. ✉ |
| Jiu Jitsu school granted summary judgment dismissing plaintiff’s claim for injuries during a sparring game on assumption of risk where plaintiff volunteered to participate in the game and had significant experience with martial arts classes, participated in other sparring activities, and had ‘grappling’ training when becoming a police officer. Santana v Torres BJJ, LLC ✉ |
| Defendant’s motion for summary judgment dismissing plaintiff’s claim for trip and fall when her leg got caught on branches sticking out from discarded Christmas trees covering sidewalk denied where plaintiff’s testimony that the trees left only a 12″ pathway and photographs and video evidence raised issues on whether jutting branches were not clearly visible and might be overlooked by a pedestrian under the circumstances, including people coming from the opposite direction and that the branches were similar in color to the sidewalk. Plaintiff’s affidavit stating her foot snagged on one of the protruding branches in the photograph was not a feigned issue as it did not contradict her testimony that she tripped on a branch that was sticking out. Hutson v Regis High Sch. ✉ |
| Defendant granted summary judgment dismissing Labor Law §240(1) claim of lighting technician who fell from A-frame ladder on proof it owned the property adjacent to where plaintiff fell and did not own the property where he fell and could be deemed an owner for §240. Plaintiff’s motion to amend the Complaint to add the correct owner under the relation back doctrine denied where the two companies were separate LLCs with different defenses. Ragusa v Drazie ✉ |
| Contractor that installed courthouse entrance door with automated operator and handicap access button met burden for summary judgment on proof it did not owe a duty to plaintiff, whose hand got caught between the wall and automated door, under its contract and none of the Espinal exceptions applied. County denied summary judgment where its maintenance worker testified he went to courthouse on an as-needed basis, did not maintain logs of inspections, did not know the last time the door was inspected before the accident, there were complaints of the door speed, and he noticed a scratch on the door handle after the accident, leaving questions of whether the county had constructive notice in time to discover and cure the defect. Verderosa v County of Suffolk ✉ |
| Plaintiffs’ expert, certified in pediatrics and neurology, raised issues on departure from accepted practice and causation for injuries from the infant-plaintiff’s viral encephalitis on opinions that conflicted with defendants’ experts’ opinions of no departures or causation. The Court does not give the details of the proofs. Feng Xie v New York City Health & Hosps. Corp. ✉ |
| NYC, NYCDOT, and NYCDEP granted summary judgment dismissing motorcyclist’s claim for injuries when he lost control of his motorcycle after hitting a pothole on proof it did not receive prior written notice or acknowledge the defective condition in writing under administrative code §7-201(c)(2). Elsaid v City of New York ✉ |
| U-Haul, which rented the vehicle that struck the taxi plaintiff was in, granted summary judgment on Graves Amendment before discovery was completed where plaintiff opposed the motion without submitting any affidavits in opposition. Plaintiff failed to show additional discovery would lead to relevant information or information solely within the movant’s knowledge. White v U-Haul Co. of Ariz. ✉ |
| Owner-passenger and driver of vehicle that entered intersection from road without a traffic device and struck plaintiff’s vehicle that entered the intersection from a road with a stop sign granted summary judgment on proof plaintiff failed to yield the right of way when entering the intersection, even if he stopped at the stop sign. Plaintiff’s claim that defendant could have easily avoided the accident was pure speculation. Israel v Nichols ✉ |
| NYC granted summary judgment dismissing claims for slip/fall on staircase on proof it did not own, operate, or control the building which was owned by NYCHA and, therefore, did not owe plaintiff a duty of care. Acevedo v Hope Gardens I, LLC ✉ |
| IF YOU MUST READ (1 summaries) | |||
| MUST READS | NOTEWORTHY | ||
| Defendants’ motion to dismiss claims of abuse of process, false arrest, and malicious prosecution denied where amended Complaint adequately plead the elements of each of those causes of action when viewed in the light most favorable to the plaintiff. The Court does not give the details of the proofs. Hughes v Vento ✉ |