April 18, 2017 | Vol. 50

(7 summaries)

Wrongful Death   Products Liab   Design Defect   Warnings   Pain/Suffering   Materially Deviates  

Second Deptartment

Manufacturer and seller of Bobcat to rental company which rented it to plaintiff’s decedent who was killed when a tree entered the cab of the Bobcat because it did not have an optional “special applications kit,” including a front door, were not entitled to the Scarangella v Thomas Built Buses (93 NY2d 655) exception to strict liability where a knowledgeable purchaser, in a position to balance the benefits and risks of the optional safety device chooses not to have it installed and under normal circumstances it would not be a reasonably dangerous without the optional feature. The Bobcat defendants were aware that it was being sold to a rental company which would not have control over the circumstances under which it was used or the incentive to choose additional options. There was a reasonable path for the jury to come to its finding that the rental company failed to provide proper warnings and training. Motion for directed verdict and to set aside verdict finding manufacturer and seller each 25% at fault and rental company 50% at fault denied. $1 million for 5 minutes of excruciating pain and awareness of impending death did not materially deviate from reasonable compensation. Fasolas v Bobcat of N.Y., Inc.

Workers Comp Defense   Motion to Dismiss   Law of the Case   Judicial Admissions  

Second Deptartment

The court set aside a judgment in favor of the defendant, granted on a motion to dismiss at the close of plaintiff’s case, based on defendant’s claim that the plaintiff’s sole remedy was Workers Compensation and remitted the matter for a new trial before a new judge on liability only. Damages of $183,802.47 upon a jury verdict in a prior trial had been upheld and the matter previously remitted for a new trial on liability only. Plaintiff’s argument that the lower court ignored the doctrine of law of the case when the appellate court had sent the case back for retrial was misplaced but the Worker’s Compensation defense was not available to the defendant which not provide Workers Compensation insurance for its employee who elected to proceed by suit under Workers’ Compensation Law §§ 11 and 50. A statement by defense counsel admitting that the defendant did not provide Workers Compensation insurance was a judicial admission. Rosario v Montalvo & Son Auto Repair Ctr., Ltd.

MVA   Negligent Hiring   Punitive Damages   Respondeat Superior   BP   Motion to Dismiss  


Defendants’ motion to dismiss denied where complaint and BP read together stated a cause of action for negligent hiring, retention, and supervision involving defendants’ employee’s involvement in an accident with plaintiff’s motorcycle during the course of her employment, which was conceded in a reply. Allegation that defendants “recklessly” hired, retained, and supervised their employee brought the case within the exception to the rule that a claim for negligent hiring cannot stand where liability is premised on respondeat superior. Rivera v Bhuiyan

Premises Liab   Slip/Trip   Vicarious Liab   Premature Motion  


Hotel franchisor made out prima facie entitlement to summary judgment by its license agreement which specifically stated that franchisee which owned and operated the individual hotel was an independent contractor, but plaintiff raised an issue of fact by proof that the individual hotel was listed as a member of the franchisor’s chain on the chain’s website without any indication that it was independently owned and operated. Fact that license agreement required franchise to indicate that it is an independent corporation on its premises did not overcome question of fact since franchisor failed to show that the franchisee complied with this provision. Summary judgment was denied as premature. Stern v Starwood Hotels & Resorts Worldwide, Inc.

Labor Law §241   Industrial Code   Indemnity   Conflict of Law  


Worker overseeing renovation of building for his employer, a Canadian manufacturer, granted summary judgment on Labor Law §241(6) claim for violation of industrial code 12 NYCRR 23-1.13(b)(4)(electric hazards), against building owner and contractor where he was shocked by temporary wiring laid on floor over his objection.

Canadian Worker Compensation carrier assigned right to pursue third-party suits to employee and were governed by NY law since all parties associated themselves with NY. Labor Law §241(6) third-party claims dismissed against employer but, absent showing of owner’s negligence, owner granted summary judgment on contractual indemnity claim. O'Leary v S&A Elec. Contr. Corp.

Notice of Claim   Late Notice of Claim   NYC  


Petition to serve a late Notice of Claim against NYCHA should have been denied for failure to meet any of the criteria for serving a late Notice of Claim. The Notice of Claim timely served on NYC did not give actual knowledge to NYCHA which is a separate authority and needs to be served separately. Petitioner failed to show that NYCHA would not be prejudiced by the 10-month delay. Matter of Feysher C. v New York City Hous. Auth.

SUM   Stay Arb   Notice  

Second Deptartment

Injured party’s attorney’s letter to SUM carrier stating that he did not know the policy limits of the offending driver’s vehicle and may claim an underinsured or uninsured claim did not give sufficient notice to the SUM carrier of the claim and subsequent notice sent 2 years after the attorney learned the policy limits of the offending vehicle was untimely as a matter of law. Matter of GuideOne Specialty Mut. Ins. Co. v Cruz

(17 summaries)

MVA   Duty   Negligent Supervision   Control   Dangerous Condition  

Second Deptartment

School district granted summary judgment where 7th grader was struck by a car while walking to meet his mother after he was refused entry onto a bus because he didn’t have his bus pass. The school’s duty ends when custody of the child passes from the school with the parent’s permission and the child is not released into a foreseeable danger partly of the school’s creation. Donofrio v Rockville Ctr. Union Free Sch. Dist.

Serious Injury   Treatment Gap   Preexisting   Expert Aff  


Plaintiff raised a question of fact on serious injury by the affirmation of his original treating doctor who opined that he had significant restrictions in ROM to his shoulder, knee, and cervical and lumbar spine 10 days after the accident which, together with a history of no prior problems, the doctor opined were caused by the motor vehicle accident and his subsequent treating physician’s affirmation, who first saw him 4 years after the accident, giving him permanent partial disability and causation by the accident. Defendant’s argument that plaintiff’s doctors failed to directly rebut defendant’s radiologist’s findings of degenerative changes did not account for the original treating doctor’s opinion on causation based on prior history and examination. Defendant failed to shift the burden of proof to plaintiff on the “gap in treatment” argument by failing to put forth proof that plaintiff’s doctor believed that plaintiff would benefit from continued treatment. MTA was granted summary judgment as co-defendant MTA Bus Co. was the proper party. Lindo v Brett

Late Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice   Police   NYC  

Second Deptartment

Plaintiff’s petition to serve late Notice of Claim or deem Notice of Claim, served 22 days after the 90-day period, timely served should have been granted where NYC’s employees were involved in the accident and the police report gave sufficient details for NYC to have actual notice and infer that there was a potentially actionable wrong and that petitioner was injured. Petitioner met initial burden of showing no prejudice through actual notice and NYC failed to submit anything other than attorney’s affirmation which is not sufficient. Petitioner’s failure to show a reasonable excuse for the 22-day delay does not require denial of the petition where the most important elements of actual knowledge and lack of prejudice were met. Matter of Cruz v City of New York

Note of Issue   Discovery  


Plaintiff’s Statement of Readiness filed with her Note of Issue stating that there was discovery still outstanding, contained no incorrect material misrepresentation upon which the Note of Issue should be stricken. Co-defendant’s motion for discovery against co-defendant and third-party defendants was granted, and its affirmation of good faith deemed proper, where it had made numerous attempts to obtain the discovery prior to filing of the Note of Issue. Suarez v Shapiro Family Realty Assoc., LLC

Med Mal   Accepted Practice   Informed Consent   Expert Aff  

Second Deptartment

Podiatrist defendants denied summary judgment where their expert’s affirmation failed to address the plaintiff’s allegation in her BP that the doctor failed to test whether the infant plaintiff had sufficient circulation necessary for healing from the surgery and failed to state that the boilerplate consent form, which did not contain the risks and alternatives specific to the surgery, followed accepted practice, and plaintiff’s testimony established that they were not apprised of the risks and alternatives specific to the procedure. Parrilla v Saphire

Hippa   Discovery  


Plaintiff required to provide HIPPA authorizations for all of his medical records, including psychiatric and psychological records, for 5 years prior to his accident where he alleged physical and psychological injuries, including depression, bearing on his ability to work absent the accident. Defendant failed to show that school and tax records were relevant. Reyes v Lexington 79th Corp

Serious Injury   Photographs  

Second Deptartment

Defendants failed to meet their prima facie burden where photographs of scars on plaintiff’s shoulder and head failed to eliminate the issue of serious injury on significant disfigurement. Garcia v County of Suffolk

Building Code   Security Guard   Vicarious Liab   Notice  


Bar could not be held vicariously liable for security guard’s assault of the plaintiff on the sidewalk in front of the bar because it had at most general supervisory control, including the right to determine how many security guards it needed, where they would be placed, and gave them general instructions, but did not have the right to hire/fire or directly discipline the security guards resulting from customer complaints. Bar did not breach a non-delegable duty because it provided the “minimal security” required and there was no evidence that they had or should have had notice of the potential for the altercation. McLaughlan v BR Guest, Inc.

Labor Law §240   Labor Law §241   Labor Law §200   Agent   Control  

Second Deptartment

Engineering company failed to meet its prima facie entitlement to summary judgment by failing to show that it did not have the authority to supervise the work. It is the right to supervise the work which gives rise to liability, not whether the right was exercised. Johnsen v City of New York

MVA   Rear End   Nonnegligent Explanation   Premature Motion  


Plaintiff granted summary judgment where defendant’s vehicle struck her vehicle in the rear. Defendant offered no nonnegligent explanation but merely argued by her attorney’s affirmation that the motion was premature. Brown v Nocella

Premises Liab   3rd Party Contractor   Duty   Inherently Dangerous   Vicarious Liab  

Second Deptartment

Property owner granted summary judgment where plaintiff was struck in the eye with a piece of wire allegedly thrown by a lawnmower operated by the property owner’s independent contractor while plaintiff drove by the property with an open window. Lawn mowing is not an inherently dangerous activity nor was there a statutory non-delegable duty that would constitute an exception to the general rule that a person who hires an independent contractor is not vicariously liable for the negligent acts of the contractor. Mery v Eginger

Med Mal   Notice of Claim   Late Notice of Claim  

Second Deptartment

Defendants granted summary judgment where plaintiff failed to serve a Notice of Claim prior to commencing medical malpractice action. Plaintiff’s cross-motion to serve a late Notice of Claim denied for failure to include a proposed Notice of Claim as required by Gen. Mun. L. 50-e(7). Bethune v Nassau Univ. Med. Ctr. (NUMC)

MVA   Turning Vehicle  


Defendant who entered and passed-through intersection with green light in her favor entitled to summary judgment where plaintiff testified that she first saw the defendant’s car 6-7 car length away but did not realize how fast defendant was traveling until she turned into the intersection in front of the defendant’s vehicle. Cardona v Fiorentina

Legal Mal   Motion to Dismiss  


Cause of action for breach of fiduciary duty was dismissed where law firm did not disclose their legal malpractice to the client. The claim was duplicative of the legal malpractice claim. Genesis Merchant Partners, LP v Gilbride, Tusa, Last & Spellane LLC

Legal Mal   Statute of Limitations   Motion to Dismiss  

Second Deptartment

Action was commenced more than 3 years after the closing for the purchase of the business took place and was time-barred. Plaintiff failed to show continuous representation, fraud, or misrepresentations designed to keep the plaintiff from commencing the action. 3rd & 6th, LLC v Berg

Serious Injury   Preexisting   Untimely   Prejudice   Expert Aff  


Defendants should have been granted summary judgment on serious injury based on defendants’ doctor’s affirmations showing that plaintiff’s medical records demonstrated complaints of lower back pain prior to the accident and defendant radiologist’s review of MRI opining that there was no evidence of traumatically induced injury or exacerbation of pre-existing conditions. Plaintiff failed to raise a question of fact by his orthopedist’s affirmation who examined him 5 years after the accident by failing to explain in a non-conclusory matter how the accident exacerbated plaintiff’s pre-existing conditions, which included a prior recommendation for a discectomy. Defendants’ proof that there were no causally related injuries also warranted dismissal of the 90/180-day claim. The lower court did not err in considering the plaintiff’s opposition which was untimely since absent proof that it prejudiced the defendant. Sanchez v Steele

Indemnity   Raised For First Time  

Second Deptartment

Defendants failed to meet their initial burden of showing that they were not negligent and did not have authority to control the work necessary for summary judgment on the common-law indemnity and contribution claims and that they were not negligent, necessary for summary judgment on the contractual indemnity claim. The remaining issues were not raised below and were not considered. State of New York v Defoe Corp.

(1 summaries)

Serious Injury  

Second Deptartment

Defendant made out prima facie entitlement to summary judgment on serious injury to elbow and spine of one plaintiff by competent medical proof and plaintiff failed to raise a question of fact in opposition. The court does not give the details of the proofs. Dandridge v Gonzalez

About Matt McMahon

Civil trials and appeals since 1984

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