April 18, 2023 | Vol. 361

(3 summaries)

Emotional Harm   Motion to Dismiss  

Second Department
Auto dealership’s motion to dismiss denied where Complaint, amplified by plaintiff’s affidavit, sufficiently stated cause of action for negligent infliction of emotional harm on allegations she and infant-daughter were directly emotionally harmed and put in fear of their physical safety by the offensive and threatening conduct of another customer and the dealership had prior similar encounters with the other customer. Cabrera v Rallye Motors, LLC    

Comment: From the lower court decision, the other customer was viewing pornography on computers available to customers in full sight of plaintiffs and being hostile.

Pothole Law   Prior Written Notice   Create Condition   Premature Motion   NYC  

First Department
NYC granted summary judgment on proof it did not have prior written notice of pothole in crosswalk where plaintiff tripped, and plaintiff failed to show NYC’s repair of a defect at the location several months before created an immediate dangerous condition without speculation. Plaintiff’s claim NYC failed to maintain 12″ area around manhole cover (§34 RCNY 2-07(b)) inapplicable as it is not an exception to a prior written notice requirement and she claimed the fall was caused by a pothole not a manhole cover.

Motion not premature even though DOT and DEP were not deposed as NYC provided affidavits detailing their searches and plaintiff failed to show additional discovery would lead to relevant information. Civic v City of New York    

Malpractice   Motion to Dismiss   Estate   Capacity to Sue  

First Department
Defendants motion to dismiss for non-attorney, pro se plaintiff’s lack of capacity to sue granted as an administrator can appear pro se only where she is the sole beneficiary and the estate has no creditors. Renunciation signed by remaining 3-beneficiaries were ineffective where filed more than 9-months after issuance of letters and 1-affidavit was not notarized. Martins v Memorial Sloan Kettering Cancer Ctr.    

(10 summaries)

Malpractice   Untimely   Prejudice  

First Department
Plaintiff’s motion to vacate order that transferred malpractice case from Supreme to Civil Court under CPLR §325(d) and 22 NYCRR 202.13(a) providently denied where plaintiff waited nearly 4-years to vacate and failed to show prejudice as the case retains the monetary jurisdiction of Supreme Court. Leighton v Lowenberg    

Vacate Jud   Default Judgment   Service   Meritorious Defense   Reasonable Excuse   Prejudice   Compel Acceptance  

Second Department
Defendant’s motion to vacate $200,000 default judgment after inquest, and for leave to serve a late Answer, granted under CPLR §317 where it was not personally served with the Summons and Complaint in time to defend and it showed a potentially meritorious defense. Motion also granted under CPLR §5051(a)(1) on additional proof of a reasonable excuse, default was not willful or a pattern of neglect, and the policy favoring actions be decided on the merits. Weinberger v Wild Orchid Flowers Corp.    

Construction Liab.  

Second Department
Highway contractor for NYSDOT granted summary judgment on proof it adhered to the plans and specifications in its contract in the placement of orange construction barrels during the temporary closure of lanes and DOT inspected the work and approved the reopening of the lanes. Contractors can rely on plans and specifications provided unless they are so patently defective as to give notice of a potential danger. Plaintiff fell when his motorcycle struck a flattened orange barrel while changing lanes after the closed lanes were reopened. Corniel v CCA Civil-Halmar Intl., LLC    

Serious Injury   Causation   Experts  

Second Department
Plaintiff’s cross-motion for summary judgment under fracture category for serious injury denied where his treating orthopedic surgeon’s opinion that a fracture was created when a portion of the acromion was removed during an acromioplasty of plaintiff’s shoulder did not eliminate all questions of whether it was caused by the MVA. Degachi v Faridi    

Premises Liab   Stairs   Building Code   Dangerous Condition   Building Code  

Second Department
Homeowner’s expert’s claim he did not see any code violations or maintenance deficiencies on the stairs failed to meet homeowner’s burden of showing absence of a dangerous condition where he did not address plaintiff’s allegations that handrail at top of stairs ended inches before the landing and handrail at bottom of stairs where plaintiff fell was too low when plaintiff reached for it. Lack of building code violations is not dispositive of common-law negligence claims. Karel v Pizzorusso    

Premises Liab   Stairs   Dangerous Condition   Causation   Notice   Experts   Building Code  

Second Department
Landlord failed to establish that difference in riser height of bottom step of interior staircase where tenant fell was not a dangerous condition as landlord’s expert’s found the riser height of the last step nearly 1.5” inches shorter than the other steps and his interpretation of what caused plaintiff to fall did not eliminate all questions of fact on causation and constructive notice looking at the evidence in the light most favorable to the non-moving party.

The Court did not determine if there was a building code violation which is not necessary for common-law negligence. Cabanas v Qiu Yu Zou    

MVA   Motion to Dismiss   Graves Amendment  

Second Department
Bank failed to meet burden for dismissal on Graves amendment where its employee’s affidavit stating on review of records that the vehicle was leased by a dealership and assigned to the bank was not proof, the attached lease was illegible, and the bank did not submit a copy of the lease assignment. Tello v Upadhyaya    

Premises Liab   Building Code   Unknown Cause   Speculation  

First Department
Defendants granted summary judgment for decedent’s fall at top of exterior stairs where plaintiff only saw decedent as she was falling and her claim decedent was waving her arms in a way that suggested she was trying to grab onto something was speculative as to the cause of decedent’s fall. Plaintiff failed to show any condition identified by her expert, including violations of NYC building code and the MDL, were a proximate cause of the decedent’s fall. Lee v Widlanski    

Premises Liab   Emotional Harm   Create Condition   Notice   Last Inspection   Recurring Condition  

Second Department
Amusement park met burden for summary judgment dismissing infant-plaintiff’s claim for emotional harm when rollercoaster unexpectedly stopped 5’-7’ from ground, trapping her for 15-minutes, on proof they inspected the roller coaster that day and found no defects and received no complaints before the incident. General awareness that the roller coaster stopped at times in previous years was insufficient to establish notice of a recurring condition of what caused it to stop on that day. J. G. v L.I. Adventureland    

MVA   Rear End   Pileup  

Second Department
Lead and middle vehicle drivers and owners granted summary judgment dismissing action on proof plaintiff rear ended middle vehicle, which was stopped in traffic, pushing it into lead vehicle. Sougstad v Capuano    

(2 summaries)

Labor Law §240   Ladder   Causation   Question of Fact  

Second Department
Plaintiff failed to meet burden for summary judgment on Labor Law §240(1) for his fall from a ladder where his submissions raised questions of fact on §240 violation and causation. The Court does not give the details of the proofs. Andrade v Bergen Beach 26, LLC    

Vacate Jud   SUM   Arbitration  

Second Department
Insured’s petition to vacate arbitration award that denied her SUM claim denied where the determination met the higher standard for involuntary arbitration as it had “evidentiary support and was not arbitrary and capricious.” O’Shea v Allstate Ins. Co.    

About Matt McMahon

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