April 19, 2022 | Vol. 309

(5 summaries)

Set Aside Verdict   Materially Deviates   Pain/Suffering   Untimely   Reasonable Excuse   Appealable Order  

Second Department
Lower court’s grant of defendants’ motion to set aside damage verdict awarding plaintiff $120,000/380,000 past/future pain/suffering and $700,000 future medical expenses reducing award to $120,000/$100,000 past/future pain/suffering and $0 future medical expenses reversed and verdict reinstated as defendants’ motion was untimely under CPLR 4404(a) where made 21-days instead of within 15-days of verdict without showing good cause for the delay.

Defendant’s cross-appeal did not bring up for review prior order granting summary judgment on liability which was not appealed as CPLR §5501(a)(1) applies only to appeals from final judgments. Galarza v Heaney    

Malpractice   Wrongful Death   Informed Consent   Renew   Experts   Accepted Practice   Causation  

Second Department
Lower court providently granted renewal of plaintiff’s opposition to defendants’ motions for summary judgment of malpractice, wrongful death, and informed consent claims on plaintiff’s in camera submission of unredacted expert affirmation omitted on original motion and on renewal denied summary judgment on malpractice and wrongful death claims based on conflicting opinions of departure and causation. Stewart v North Shore Univ. Hosp. at Syosset    

Discovery   IME/DME   Note of Issue   Prejudice  

Second Department
Defendants required to schedule additional IME/DME by same doctor as performed initial examination where plaintiff would be prejudiced by an examination and testimony of a second doctor for the same condition to the same body part which was disclosed, including the need for spinal fusion, prior to the initial examination and filing of the Note of Issue. The additional examination was necessitated where the spinal fusion was performed after Note of Issue. Abdelfattah v Trevicano    

Governmental Function   Governmental Immunity   Special Duty   Negligent Hiring   Respondeat Superior   Amend Complaint   NYC  

Second Department
EMS acted in discretionary governmental function in deciding to transport intoxicated plaintiff to hospital and was protected by governmental immunity even if their actions were negligent and violated a special duty. Negligent hiring, supervision, retention, and training claims dismissed as EMS workers were acting within scope of their employment. Plaintiff’s cross motion to amend Complaint denied as amendment would have no effect. Kralkin v City of New York    

Premises Liab  

First Department
Defendant’s motion for summary judgment providently denied as a successive motion for summary judgment, even though not duplicative of earlier motion, where based on matter that could have been raised in earlier motion. Polygenis v Stone Lounge Press, Inc.    

Comment: Successive motions for summary judgment are discouraged, not absolutely prohibited, but usually require a showing of new evidence or new claim after original motion.
(17 summaries)

Serious Injury   Discovery   Preclusion   BP   HIPAA  

First Department
Defendants granted summary judgment as plaintiff could not prove a serious injury where self-executing conditional order of preclusion to provide BP and HIPPA authorizations became absolute on non-compliance. Ubozoh v Mueller    

Malpractice   Informed Consent   BP  

Second Department
Lower court erred in denying plaintiffs’ motion to supplement BP to specify that the risks of Depakote include “a known risk of affecting liver enzymes and weight gain and/or acute pancreatitis” under CPLR §3043(b) but it should have been denied as unnecessary where the allegations of failure to advise of the risks and alternatives to Depakote in the Complaint and BP were sufficient to allow trial testimony on the liver risk allegation. Wozny v Timson    

Premises Liab   Vacate Default   Untimely   Reasonable Excuse   Meritorious Action  

Second Department
Plaintiff’s motion to vacate default in opposing defendants’ motion for summary judgment denied as untimely where not brought within 1-year of Notice of Entry of Order granting summary judgment as required by CPLR §5015(a)(1). Plaintiff also failed to show reasonable excuse with conclusory and unsubstantiated claims of law office failure. Court did not need to consider issue of meritorious action. Redding v JQ III Assoc., LLC    

Discovery   Strike Note of Issue   Serious Injury   Untimely   Renew  

Second Department
Lower court improvidently denied renewal of portion of defendant’s motion to strike Note of Issue and extend time for summary judgment motion on serious injury where plaintiff failed to attend IME/DME as ordered, due to illness and COVID restrictions, and time for summary judgment motions set in original order expired by time lower court denied motion based on ultimate completion of IME/DME. Matter remitted for new date for summary judgment motions. Newfeld v Midwood Ambulance & Oxygen Serv., Inc.    

Comment: See decision granting summary judgment on liability below.

Premises Liab   Motion to Dismiss   Vicarious Liab   Duty   Raised For First Time  

Second Department
County’s motion to dismiss for failure to state a cause of action denied where inmate was injured by exposure to contaminated water in county jail as Complaint alleged county’s breach of duty to maintain jail in a reasonably safe condition in addition to unsustainable claim that county was vicariously liable for acts and omissions of sheriff’s employees. Breach of county’s duty was not raised for the first time on appeal. Aviles v County of Orange    

Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice  

First Department
Petition for leave to serve late Notice of Claim denied where petitioners failed to show NYCHA had actual knowledge of facts constituting claim within 90-days, provide a reasonable excuse for the delay, or show NYCHA was not prejudiced by delay where hole in uneven grass and mud not visible during a rainstorm was transitory. Matter of O’Rourke v New York City Hous. Auth.    

Labor Law §240   Labor Law §241   Industrial Code   1-2 Family Exception  

Second Department
County granted summary judgment of Labor Law §§ 240(1) and (241(6) claims of worker who fell from ladder that shifted from strong gust of wind while boarding up condemned home county acquired by tax deed under 1-2 family exception on proof it was a 1-family residence and county did not direct or control work.

Town’s motion for summary judgment denied where boarding up house was “altering” under Labor Law and plaintiff raised issues of whether town was a “contractor” under Labor Law on proof it could choose the contractor, entered into contract with plaintiff’s employer, and its representatives were present during the work. “A party which has the authority to enforce safety standards and choose responsible subcontractors is considered a contractor under Labor Law §§ 240(1) and 241(6)” whether or not they exercise that authority.

Plaintiff’s cross motion for summary judgment denied where untimely and issues remained of whether the town was a contractor. Nucci v County of Suffolk    

Labor Law §240   Labor Law §241   Scaffold   Industrial Code   Safety Devices   Sole Cause   Experts   Court of Claims  

Second Department
Worker who fell from beam during construction of Tappan Zee Bridge granted summary judgment on Labor Law §240(1) on his testimony he lost his footing just before transferring 1-safety line to new anchorage and he did not know how second safety line detached or why it did not prevent his fall, establishing it was an insufficient safety device, and the beam was used as the functional equivalent of a scaffold. Affidavit of NYSTA’s employee stating he inspected the safety lines and found them adequate and not defective on the day of the accident failed to raise an issue where he did not detail how they were inspected and their expert’s affidavit did not raise an issue where it did not address the safety lines or indicate the lines and site were inspected on the day of the accident.

Labor Law §241(6) claim based on industrial codes §23-1.7(b) dismissed as inapplicable and there was no violation of §23-1.7(b)(2). Lazo v New York State Thruway Auth.    

MVA   Sole Cause  

Second Department
Defendants granted summary judgment on depositions of plaintiff and defendant drivers that plaintiff speed up and cut in front of tractor-trailer when entering Thruway, showing as matter of law that plaintiff failed to yield right of way and was sole cause of the accident. Choo v Virginia Transp. Corp.    

Premises Liab   Notice   Hearsay  

First Department
Resident in hotel being operated as a homeless shelter granted summary judgment on testimony and photos showing ceiling that collapsed on him had leak for 6-months without repair and plaintiff complained of it to multiple hotel employees. Hotel’s claim that it fixed leak plaintiff complained of and collapse was caused by a different leak did not raise an issue as it was based on a hearsay statement from the super to plaintiff’s case worker and they did not produce testimony or affidavits from employees plaintiff made complaints to or produce any of its repair records. Dunn v 6-8 St. Nicholas Realty Corp.    

MVA   Premises Liab   Duty   Premature Motion  

Second Department
Moving defendants granted summary judgment dismissing plaintiffs’ claim of injuries from driving into manhole with missing cover as one defendant was merely a parent holding company and other defendant provided only legal and accounting services without any interest in the ownership, maintenance, or control of the manhole or underlying gas lines. Plaintiffs failed to show motion was premature without showing information solely the defendant’ possession was necessary to oppose the motion. Mauro v City of New York    

Labor Law §241   Labor Law §200   Industrial Code   Inherently Dangerous  

First Department
Worker’s testimony and photograph showing broken concrete, brick, and lighter-colored dried concrete pieces on sidewalk where he tripped, which was a “working area,” met burden for summary judgment on Labor Law §241(6) based on industrial code §23-1.7(e)(2)(tripping hazard in working area) but defendants raised an issue of whether the lighter colored dried concrete pieces were an integral part of the work. Questions of whether the condition was inherently dangerous precluded summary judgment for plaintiff on Labor Law §200 and negligence. Ingrati v Avalonbay Communities, Inc.    

Labor Law §240   Labor Law §241   Labor Law §200   Ladder   Safety Devices   Sole Cause   Industrial Code   Indemnity   Appealable Order  

Second Department
Building owners and plaintiffs each failed to meet burden for summary judgment on Labor Law §240(1) where plaintiff fell from A-frame ladder while making alterations to sprinkler system in ceiling of tenant’s store as questions remained of how accident occurred, if adequate safety devices were available or their absence a proximate cause of the accident, and whether plaintiff was the sole cause of his injuries. Owners failed to show industrial code §23-1.21(e)(3)(stepladder footings) was not violated or a cause of worker’s injuries on Labor Law §241(6). The Court does not give the details of the proofs.

Tenant showed accident did not occur as a result of its tenancy as required to trigger indemnity language where owners hired plaintiff’s employer but owners raised issues on whether tenant’s employee contributed to accident triggering clause. Indemnity clause did not violate GOL §5-321 where owners proved they were not negligent. McNamara v Gusmar Enters., LLC    

Comment: Owners’ appeal from order granting renewal of tenants’ motion for summary judgment of Labor Law §200 claim, and granting tenant summary judgment, dismissed as that motion was made solely against plaintiff. McNamara v Gusmar Enters., LLC.

MVA   Rear End   Conclusory  

Second Department
Plaintiff’s motion for summary judgment solely on her affidavit stating she was rear-ended by a vehicle she later learned was driven and owned by defendants denied as her affidavit was conclusory where it did not identify the source of her information that defendants owned/operated vehicle that struck her. Beauvoir v Samuel    

MVA   Rear End   Comparative Fault   Nonnegligent Explanation  

Second Department
Plaintiffs, driver and passenger in stopped car rear ended by defendants’ vehicle, granted summary judgment on liability and comparative fault defense dismissed where defendants’ split-screen cab-cam showed defendant-driver looking down at his cell phone when his ambulance struck plaintiffs’ stopped vehicle. Failure to attach Answer to original motion corrected by attaching it to amended motion. Newfeld v Midwood Ambulance & Oxygen Serv., Inc.    

Comment: See decision on striking subsequent Note of Issue above.

Battery   Emotional Harm   Motion to Dismiss   Conclusory   Speculation   Premature Motion  

Second Department
Viewing the Complaint in the light most favorable to plaintiff, its conclusory allegations failed to allege facts sufficient to make out cognizable theories without speculation and plaintiff failed to show that facts to oppose the motion may exist but could not be stated without discovery. O’Neill v Wilder    

Labor Law §240   Labor Law §200   Question of Fact   Indemnity  

First Department
Plaintiff denied summary judgment on Labor Law §§ 240(1) and 200 where project manager’s testimony that plaintiff admitted metal beam slipped out of his hand contradicted plaintiff’s testimony that it fell when a coworker moved the unsecured barella cart it was on.

Conditional summary judgment on contractual indemnity against subcontractor denied where negligence issues remained. Lewis v 96 Wythe Acquisition LLC    

(4 summaries)

No-Fault   Untimely  

Second Department
In the context of a no-fault arbitration, the Court noted a request for an examination under oath sent more than 30 days after receipt of a claim is a nullity and cannot be the basis to deny coverage. Matter of Advanced Orthopaedics, PLLC v Country-Wide Ins. Co.    

Discovery   Preclusion   Reasonable Excuse   Meritorious Action  

Second Department
Plaintiff’s counsel’s detailed explanation of law office failure causing default in responding to conditional order of preclusion and plaintiff’s affidavit showing meritorious action were sufficient to deny defendants’ motions to enforce the conditional order of preclusion, which became absolute or non-compliance, and for summary judgment. The Court does not give the details of the proofs. Fortino v Wheels, Inc.    

Premises Liab   Notice  

Second Department
Supermarket failed to meet burden of showing it did not have constructive notice of oil on floor in aisle where it submitted conflicting evidence. The Court does not give the details of the proofs. Clark v Stop & Shop Supermarket Co., LLC    

Serious Injury  

Second Department
Defendant met burden for summary judgment on competent medical evidence showing plaintiff did not sustain a serious injury and plaintiff failed to raise an issue in opposition. The Court does not give the details of the proofs. Tran v Mueller    

About Matt McMahon

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