MVA VTL §1104 Emotional Harm Intentional Outrageous Conduct NYC
 NYC granted summary judgment where perpetrator being pursued struck plaintiff’s car multiple times pushing it into medium and police subsequently shot and killed perpetrator because vehicle pursuit ended before road plaintiff was on and police officers’ actions were not reckless under VTL §1104. Claims of intentional infliction of emotional harm are barred against municipalities on public policy and shooting perpetrator to protect themselves and public was not, as a matter of law, extreme and outrageous conduct. Melendez v City of New York
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Pothole Law Prior Written Notice NYC
 NYC’s failure to maintain area around manhole cover, required by 34 RCNY § 2-07(b), still subject to prior written notice requirement of administrative code §7-201(c)(2) and absent prior written notice or proof of recognized exception, that NYC created the condition or it was from NYC’s special use, city granted summary judgment. Gori v City of New York
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Med Mal Untimely Reasonable Excuse
Defendants’ motion for summary judgment filed 43 days after Judge Wilma Guzman’s 60-day deadline for summary judgment motions and 47 days after defendants acknowledge they became aware of Judge Guzman’s assignment after Judge Green retired and her 60-day rule denied as untimely. Defendant failed to offer reasonable excuse for delay in bringing motion or seeking an extension and filing within 120-days under CPLR §3212 is not a reasonable excuse. Appleyard v Tigges
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Premises Liab Assumption of Risk
Ski area granted summary judgment where infant-plaintiff intentionally skied over artificial “snow whale” to “get air” falling into 5.5′ crevice. Under Gen. Obl. §§18-101 & 18-106 the infant plaintiff assumed all risks inherent in the activity including ruts, bumps, and natural variations in terrain. Defendant’s expert established snow whales and crevices caused by melting snow, water runoff, and temperature changes are an inherent part of snowboarding in the Northeast and the infant-plaintiff was an experienced snowboarder who used the slope for 2-days before the accident and made 2-runs on the day of the accident. Festa v Apex Capital, LLC
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MVA 90 Day Notice Notice Reasonable Excuse Meritorious Action
Lower court certification order stating “[i]f plaintiff does not file a note of issue within 90 days this action is deemed dismissed without further order of the Court (CPLR 3216),” gave insufficient notice of the specific neglect demonstrating a pattern of delay required by CPLR §3216 and lower court was required to give plaintiff notice and an opportunity to show a reasonable excuse for not complying and a meritorious action. Sua sponte dismissal reversed. Sadowski v W. David Harmon
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Default Judgment Vacate Default Appealable Order
While a sua sponte order is not appealable as of right, the court deemed it a motion for leave to appeal and granted the motion reversing order vacating prior order granting a default judgment where there was no proof that defendant timely answered. Without a motion for relief, the lower court was limited to correcting mistakes and irregularities. Betts v Tsitiridis
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CPLR § 3126 Discovery Motion to Dismiss Willful/Contumacious Reasonable Excuse
Plaintiff’s repeated failure to comply with 5 discovery orders over 2-years deemed willful/contumacious and Complaint dismissed. Plaintiff’s response to only 3-items claiming he did not remember or have documents to refresh his memory regarding the other 13 items requested, including HIPAA authorizations for medical providers after accident and for prior conditions, claiming ‘he was not required to be the investigative agency for the defense,’ was an intentional refusal to comply with the orders. McNelis v Thomas
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SUM Stay Arb
SUM coverage is triggered when insured’s bodily injury coverage, not SUM coverage, is greater than tortfeasor’s bodily injury coverage. Fact that 3 accident victims received total settlement of $100,000, exhausting tortfeasor’s policy, meant they could not recover under insured’s $100,000 SUM coverage and arbitration permanently stayed. Matter of Farm Family Cas. Ins. Co. v Gonzalez
Comment: The same result for another occupant of the vehicle. Matter of Farm Family Cas. Ins. Co. v Portillo. |
Premises Liab Slip/Trip Stairs Causation Notice
NYCHA denied summary judgment where plaintiff ascended stairs against warning by NYCHA employee who was sweeping stairs, and later descended stairs when she heard and felt water flowing downstairs under her feet, looked up and saw NYCHA employee holding dripping mop from above, continued to walk downstairs and fell on wet stairs raising questions of fact on causation. Lewis v New York City Hous. Auth.
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MVA Assault Causation Vicarious Liab
Defendant employer failed to eliminate all questions of fact of its vicarious liability for driver’s negligence during road rage incident where plaintiff testified that driver cut him off forcing him into oncoming traffic resulting in shoulder pain which defendant employer claimed was caused by subsequent assault it was not responsible for. Conflicting stories on negligence claim raised questions of fact. Gray v Air Excel Serv. Corp.
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Premises Liab Slip/Trip Wet Floor Create Condition Notice Last Inspection
7-11 and franchisee granted summary judgment on proof that employees were instructed to dry mop area inside store entrance when it rained, they put mat inside store entrance, and employee testified that he dry mopped area whenever he saw it was wet and had last mopped it 15-25 minutes before plaintiff’s slip and fall. Property owner only required to show reasonable efforts, not constant remedy for water tracked in during rain. Radosta v Schechter
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Building Security Assault Last Inspection
NYCHA granted summary judgment where plaintiff assaulted in elevator on proof that entrance was in working order when inspected on day of assault. Valentin v City of New York
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Premises Liab Slip/Trip Stairs Admissibility Unknown Cause Create Condition Notice Last Inspection
Building owner and manager denied summary judgment where superintendent testified to general cleaning provisions and not last time stairs were inspected, failing to establish that they did not create or have notice of slippery substance on stairs. Plaintiff’s testimony of wet condition smelling like ajax on stairs when he found decedent showed he could identify cause. Conflicting testimony of plaintiff and decedent’s niece, submitted on defendants’ motion, regarding condition of stairs raised issue of fact. Denial of motion because depositions were not signed improper because they can be used as if signed if not returned within 60-days. Baptiste v Ditmas Park, LLC
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MVA Motion to Dismiss CPLR § 3126 90 Day Notice Reasonable Excuse Meritorious Action Appealable Order
Plaintiff’s action against driver of vehicle he was in when it was in a multivehicle accident dismissed for failure to comply with that defendant’s 90-day notice or offer reasonable excuse for failing to do so and showing a meritorious action. Dismissal under CPLR §3126 was improper absent proof of willful/contumacious failure to comply with discovery orders. Lower court’s sua sponte dismissal against nonmoving defendants improper. Appellate court deemed appeal from sua sponte dismissal as motion for leave to appeal, which was granted, and set aside the sua sponte dismissals. Ramirez v Reyes
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Premises Liab Slip/Trip Snow/Ice § 7-210 Last Inspection
Commercial tenant of McDonalds where plaintiff’s decedent fell on ice on sidewalk owed no duty under administrative code §7-210 but failed to show it did not create condition by its snow removal efforts making the condition worse and owner and manager of building failed to show they did not have constructive notice of condition absent testimony of last time area was inspected prior to the accident. Branciforte v 2248 Thirty First St., LLC
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Med Mal Late Notice of Claim Statute of Limitations NYC
Motion to serve Notice of Claim and amend Summons and Complaint to include HHC and NYC denied where statute of limitations expired. Defendant doctor granted summary judgment as plaintiff failed to show continuous treatment where records did not show she told doctor of ocular problems. Preston v Janssen Pharms., Inc.
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Labor Law §241 Industrial Code
Defendant’s Labor Law §241(6) motion for summary judgment based on industrial code §23-1.8(a)(eye protection) denied where code required adequate protection and whether demolition of sidewalk bridge where plaintiff was removing nail that went into his eye is a covered activity is a question of fact. Roque v 475 Bldg. Co., LLC
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Premises Liab Slip/Trip Snow/Ice 3rd Party Contractor Espinal Indemnity Sole Cause
Snow removal contractor granted summary judgment on proof plaintiff was not a party to its contract with condominium establishing it did not owe plaintiff a duty. Plaintiff failed to show contractor launched an instrumentality of harm under Espinal. Cross-claims for indemnity dismissed because contractor did not owe plaintiff a duty independent of its contract and contractor proved that plaintiff’s injury was not solely caused by contractor’s negligence. Turner v Birchwood on the Green Owners Corp.
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Med Mal Accepted Practice Causation Expert Aff
Orthopedic surgeon failed to meet burden for summary judgment where expert’s affirmation failed to eliminate all questions on whether he timely referred plaintiff who had called and texted pictures of his ankle wound showing blackening and pus, later diagnosed as cellulitis and compartment syndrome, and whether the departure was a cause of plaintiff’s injuries. Smarkucki v Kleinman
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Med Mal Accepted Practice Causation Expert Aff Speculation Conclusory
Hospital and doctor granted summary judgment of claim of failing to diagnose ear infection in emergency room resulting in hearing loss based on medical records, depositions, and detailed expert affirmations establishing no departure from accepted practice, that referrals for further testing or for otolaryngologist consult were not indicated, and that in any event treatment was not a cause of plaintiff’s injuries. Plaintiff’s expert’s affirmation was speculative and conclusory and failed to raise issues of fact. Prunty v Pastula
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Premises Liab Slip/Trip Snow/Ice Sidewalk Notice
Defendant failed to meet burden of showing large area of black ice plaintiff fell on was not visible or reasonably detectable and that its ice removal efforts were adequate. In any event, plaintiff raised issue by his and witness’ affidavit and meteorological data showing condition existed for several days. D’Ariano v SL Green Realty Corp.
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Premises Liab Notice Expert Aff
Contractor and painting sub-contractor granted summary judgment on proof they did not have knowledge that paint in seal coat applied to walkway where plaintiff fell 7-days later could render walkway slippery and plaintiff’s argument that they should have mixed grit into paint, in plaintiff’s attorney’s affirmation and unsupported by an expert opinion, failed to raise issue in opposition. Faiella v Oradell Constr. Co., Inc.
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Question of Fact CPLR § 3126 Emotional Harm Punitive Damages
Laboratory failed to meet burden of showing it performed cannabis test on plaintiff, required by supervised probation, to “relevant professional standards.” Motion for summary judgment and under CPLR §3126 denied on causes of action for loss of liberty, emotional and psychological harm, and punitive damages. Landon v Kroll Lab. Specialists, Inc.
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Discovery CPLR § 3126 Sanctions Reasonable Excuse
Defendant’s motion to vacate order granting sanctions for failure to provide specific documents as per prior orders denied where defendant failed to offer a reasonable excuse for failure to comply and sanctions are within discretion of lower court. Husovic v Structure Tone, Inc.
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