| MUST READS (3 summaries) | |||
| NOTEWORTHY | IF YOU MUST READ | ||
 NYC failed to meet burden for summary judgment dismissing claim against DOT driver who struck plaintiff’s vehicle on grounds plaintiff failed to serve a Notice of Claim on NYC as a Notice of Claim must only be served on a municipality that is not included in the suit when it has a duty to defend/indemnify the employee and NYC failed to show the employee complied with the GML §50-k(4) requirement that he deliver any “summons, complaint, process, notice, demand or pleading” to corporation counsel within 10-days of service in order to trigger its duty to defend and indemnity. Plaintiff denied summary judgment against DOT driver where questions remained on whether DOT driver complied with GML §50-k(4) that would have required her to file a Notice of Claim on NYC.Defendant that leased the vehicle to NYC granted summary judgment on Graves Amendment where there were no questions of facts that negligent maintenance did not cause the accident. Pinzon v United Rentals N. Am., Inc. ✉ |
| Manufacturer of forklift that lacked a backup alarm and backup mirrors when it struck plaintiff while traveling in reverse in a warehouse at JFK granted summary judgment dismissing plaintiff’s claim of design defect for not installing the mandatory backup alarm or the optional backup mirrors on proof the backup alarm was installed when it left the manufacturer and when inspected by Port Authority before being put in service as manufacturers are not responsible for modifications made by the end-user. Manufacturer showed plaintiff’s employer was fully familiar with forklifts as they owned and operated more than 100, the forklift was not unreasonably dangerous without the optional backup mirrors, and plaintiff’s employer was in the best position to balance the risks/benefits of not adding the optional backup mirrors. Port Authority granted summary judgment as inspection and issuance a Port Authority license plate was an exercise of its police powers, a governmental function for public safety entitled to governmental immunity that did not create a special duty to plaintiff as it protected the public not an individual. Strassburger v Unicarriers Ams. Corps. ✉ |
| School and school district failed to meet burden for summary judgment dismissing Child Victims Act claim for negligent hiring, retention, and supervision on ground it lacked constructive notice of the teacher’s propensity to sexually assault children as the abuse took place over 3-years in the same classroom on school property in the middle of the school day where the student received one-on-one special education lessons in a closed classroom, plaintiff testified the principal never came into the class to check on him, there was only 1-observation report, and the teacher was on probationary status during the time of the alleged abuse. MCVAWCD-DOE v Columbus Ave. Elementary Sch. ✉ |
| NOTEWORTHY (17 summaries) | |||
| MUST READS | IF YOU MUST READ | ||
| Town granted summary judgment for trip and fall on proof it did not own, occupy, or control the premises. Plaintiff not entitled to equitable estoppel where town accepted Notice of Claim and served an Answer without denying it owned the premises as its participation in litigation was not intended to deceive the plaintiff and plaintiff could not have relied upon the failure to deny ownership in the Answer where the Answer was received after the statute of limitations. Plaintiff’s motion to amend the Complaint to include the county denied where the county and town were not united in interest for the relation back doctrine as they were separate entities and not vicariously liable for each other. Moceri v Town of Islip ✉ |
| Lower court improvidently denied motion for summary judgment by building owner and management company on ground it was filed 64-days after Note of Issue where it showed good cause for delay by plaintiff filling the Note of Issue 5-days earlier than required under the pre-note order, placing the date for the deposition of defendant maintenance company in the pre-note order outside the 60-day deadline for summary judgment motions. Owner and management company granted summary judgment on proof it was an out of possession owner with not duty to maintain the parking lot where plaintiff slipped and fell on black ice by statute, contract, or course of conduct and granted summary judgment on contractual indemnity claim against maintenance company based on their contract. Souffrant v M&K Real Estate Assoc., LLC ✉ |
 McDonald’s restaurant denied summary judgment dismissing plaintiff’s claim of assault by its worker on collateral estoppel for plaintiff’s guilty plea to 3rd° burglary where it waived the defense by not raising it in its Answer or moving to dismiss prior to answer and, in any event, there was no “identity of issues” as plaintiff’s conduct in jumping over the counter was not an element of 3rd° burglary. Questions remained on whether the restaurant should have known of its employee’s violent propensities on negligent hiring claim where employee’s application indicated he had worked at a prison, earned a stipend instead of wages, was supervised by a correction officer, no background check was performed, and restaurant owner did not know whether anyone called employee’s past employer which would have revealed his criminal record.Plaintiff’s motion for summary judgment denied where employee’s criminal record did not prove his violent propensities given he did not instigate the fight and questions of fact remained on whether the employee was acting within the scope of his employment as he only got involved in a dispute between the plaintiff and a manager after plaintiff questioned the preparation and service of her food. Plaintiff’s summary judgment motion to dismiss comparative fault and mitigation of damages defenses based on conditional order of preclusion denied where order only precluded employee’s testimony and plaintiff’s guilty plea was some evidence of comparative fault. Plaintiff’s theory of common litigation strategy between employee and employer rejected as speculative. Darbeau v 136 W. 3rd St., LLC ✉ |
| School district granted summary judgment dismissing negligent supervision claim where sixth-grader was injured when another student collided with her during a gym game on proof there was adequate supervision, the teacher gave instructions there was to be no pushing or tackling, and it was ‘an age-appropriate activity that did not constitute dangerous play.’ Defendant was not required to provide an expert opinion for its prima facie burden for summary judgment. S.T. v Island Park Union Free Sch. Dist. ✉ |
| Plasterer who fell from unsecured A-frame ladder that suddenly moved while he reached to plaster a ceiling granted summary judgment on Labor Law §240(1) and he was not required to show that the ladder was defective. Defendant failed to show plaintiff was sole cause of the accident for not repositioning the ladder based on inadmissible hearsay which, in any event, would only be comparative fault, not a defense to §240. Statement in medical records that plaintiff lost his balance and fell off ladder not considered where raised for the first time on appeal, it was not germane to medical treatment, did not identify the declarant, and did not contradict plaintiff’s testimony he fell when the ladder suddenly moved. There was no record evidence to support claim plaintiff was sole cause of accident for failing to use a harness. Rodas-Garcia v NYC United LLC ✉ |
| Worker struck on his knee by a 150-pound formwork panel dropped 4′ by his coworkers as they lifted it to an overhead suspension scaffold granted summary judgment on Labor Law §240(1) where the formwork panel was an object required to be secured by a safety device. GC granted summary judgment dismissing Labor Law §200 and common-law negligence claims as the injury resulted from the means and methods of the work which was solely controlled by plaintiff’s employer. Carranza v Memorial Hosp. for Cancer & Allied Diseases ✉ |
| Defendants met burden for summary judgment on administrative code §7-210 1-3 family owner occupied exception for abutting landowners on their affidavits that one of them lived in the 1-family house with her husband and children and would move back in after renovations to make it a 2-family house were completed but plaintiff submitted documentary evidence that the defendants owned another 2-family house they may have lived at the time he fell on a rock and pebbles on the sidewalk, raising an issue on whether the property was owner occupied at the time of the accident. Defendants also failed to show the condition did not exist long enough for them to discover and correct it in order to show lack of constructive notice. Spinelli v Huang ✉ |
| Rehab center, internist, and podiatrist met burden for summary judgment on expert opinions they did not depart from accepted practice in treating patient’s heel ulcer that eventually required amputation and any alleged departures were not a cause of his injuries. Plaintiff failed to raise an issue by a new theory raised for the first time in opposition and his experts failed to rebut defendants’ experts’ opinions the injuries were unavoidable on the issue of causation. Campbell v Ditmas Park Rehabilitation & Care Ctr., LLC ✉ |
| Property owner granted summary judgment dismissing drill blaster’s Labor Law §241(6) claim for injuries suffered when he was struck by excavating equipment based on industrial code §23-4.2(k) as that code has previously been found not to be sufficiently specific to support a §241 claim. Mann v Mezuyon, LLC ✉ |
| Mall defendants granted summary judgment dismissing plaintiff’s claim that she slipped and fell on a piece of paper in parking lot as she stepped out of the passenger side of the car where the driver testified he saw someone in the car next to him throw a piece of paper out of the window, establishing defendants did not have sufficient time to discover and correct the condition for constructive notice. M.A.M. v Palisades Ctr. Mall ✉ |
| Building owner failed to show it was an out of possession owner based on an oral lease between the principal of the building owner who was also the principal of the tenant, plaintiff’s employer, at the time of the lease, leaving questions of whether it had a right to reenter and make repairs where the principal provided no details of the terms of the lease and owner’s mortgage required it to keep the premises in good repair. Owner denied summary judgment where conflicting testimony and expert opinions failed to eliminate all questions on constructive notice of a recurring condition of water leaking through a roof vent onto the interior stairs where plaintiff slipped and fell. Rowley v Jerome JSD Holdings, LLC ✉ |
| Plaintiff raised issues of fact on whether she tripped and fell in front of moving-defendant’s property or adjoining property where she landed on her testimony and photograph identifying the border between the 2-properties as location where she tripped on something, stumbled forward, and fell which was not utterly incredible. Plaintiff’s concession that her testimony was somewhat inconsistent as to where she tripped did not require summary judgment as questions of credibility are for the jury. Jerez v 2400 Amsterdam Ave. Realty Corp. ✉ |
| Defendant granted summary judgment on plaintiff’s testimony that she did not know what caused her to fall as she was heading to turnstile in defendant’s station and she did not see garbage or liquid on the floor before or after her fall. Affidavits of 2-witnesses that plaintiff may have fallen due to the shiny and slippery nature of the floor did not raise an issue in opposition as ‘the mere fact that a smooth floor may be shiny or slippery’ does not give rise to an inference of negligence. Alvarez v Staten Is. R.T. Operating Auth. ✉ |
| Defendant-driver met burden for summary judgment on her affidavit that she had slowed her vehicle to 10-mph in traffic when she was rear-ended by plaintiff’s vehicle but denied summary judgment without prejudice where discovery was not complete and plaintiff raised an issue by his affidavit that conflicted with moving defendant’s version of the accident. Choudhary v DiSilvio ✉ |
| Defendants met burden for summary judgment on serious injury by their orthopedic surgeon’s report showing normal exam, no limitations, disability, or permanency to plaintiff’s knee and cervical spine. Plaintiff failed to raise issues with his osteopath and orthopedic records, submitted by defendants, where they detailed a prior accident with surgery to his knee, osteopath found full ROM in plaintiff’s cervical spine 6-months after the accident after which plaintiff stopped treatment, refuting his claims of serious injury and causation. Plaintiff’s physicians’ opinions were speculative where they did not address or explain how his injuries were not the result of his prior accident, reconcile their findings of limited ROM with the osteopath’s finding of normal ROM, and 3-year gap in treatment rendered their finding of limited ROM speculative. Perez-Torres v Cocoa Point Car Serv. ✉ |
| Defendant met burden for summary judgment on competent medical evidence that plaintiff’s injuries did not meet serious injury threshold and were degenerative, not caused by the accident. Plaintiff’s treating physician failed to raise an issue in opposition where she did not identify the objective tests she used to measure ROM or identify normal ROM and did not address defendant’s expert’s findings that the spinal injuries were degenerative. Unsworn medical reports did not raise issues in opposition as they were hearsay. Alford v Morency ✉ |
| Plaintiff granted summary judgment on her affidavit that she was stopped for 10-12 seconds before defendants’ vehicle rear-ended her vehicle and pushed it into the car in front of her. Defendants failed to raise an issue in opposition without an affidavit from their driver, they failed to show motion was premature without an evidentiary basis that discovery might lead to relevant or information necessary to oppose the motion was solely within plaintiff’s possession, and comparative fault is not at grounds to deny summary judgment. O’Hara v Bancker Constr. Corp. ✉ |
| IF YOU MUST READ (0 summaries) | |||
| MUST READS | NOTEWORTHY | ||