April 21, 2020 | Vol. 207

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Labor Law §241   Labor Law §200   Unknown Cause   Speculation   Industrial Code   Agent   Control   Notice   Last Inspection   Indemnity  

First Department
Plaintiff adequately identified cause of fall down stairs by his testimony that he saw dust on stairs and dust and paint on his jacket after he fell and there was evidence that walls of staircase had been sanded and painted. Industrial codes §§ 23-1.7(e)(2)(slip/trip on dirt/debris) and 23-1.7(d)(slipping hazard) sufficiently specific as predicate for Labor Law §241(6) and applicable where staircase although not a passageway or work surface under 23-1.7(d) was a work area but plaintiff denied summary judgment on questions of fact.

General contractor is statutory agent where it had authority for injury-producing work, retained subcontractors to perform the work, and was responsible for clean-up. Owner and general contractor denied summary judgment on Labor Law §200 and negligence without proof of last inspection. Architect granted summary judgment on §§241, 200, negligence, and indemnity as it was design professional only.

Owner and general contractor denied summary on negligence on questions of fact on their negligence but owner granted conditional summary judgment on contractual indemnity claims against general contractor and subcontractor and general contract against subcontractor to extent of their respective negligence. Ohadi v Magnetic Constr. Group Corp.

Assault   Workers Comp Defense  

First Department
Addressing the age-old dangerous prank of pulling a chair out from a coemployee, the court found that claim was not barred by exclusivity provision of Workers Compensation which does not apply to intentional torts such as assault. Donnelly v Christian

Med Mal   Accepted Practice   Causation   Expert Aff  

First Department
Plaintiff’s expert raised issue on departure by opinion that defendant failed to discuss results of balloon occlusion test and possibility of occluding carotid artery to address aneurysm where replacement stent failed before plaintiff was sent back to prison. Argument that plaintiff’s expert’s opinion was irrelevant where doctor instructed patient to return in 2-weeks rejected where defendant’s expert did not address opinion and factual issues remained. Ayers v Mohan

MVA   Venue  

First Department
Lease signed by plaintiff for residence in Dutchess County did not establish that he was not Bronx resident at time action commenced. Change of address after action commenced is irrelevant. Green v Steinitz

Med Mal   Accepted Practice   Causation   Expert Aff   Speculation  

First Department
Ambulance company granted summary judgment on expert’s opinion that medical technician’s emergency care of mother did not depart from accepted practice and was not a cause of infant’s injuries. Plaintiff’s expert’s opinion failed to raise issue on causation where it was speculative and conclusory. Craig v TC Ambulance Corp.

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About Matt McMahon

Civil trials and appeals since 1984
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