April 25, 2023 | Vol. 362

(8 summaries)

VTL §1104   GML §205-a-e   Duty   Vicarious Liab  

Court of Appeals
The Court of Appeals reviewed the interplay between the VTL §1104 privileges of emergency responders to disobey specified traffic regulations under specific conditions enacted 20-years after GML §205-b vicariously placed liability for the ordinary negligence of volunteer firefighters solely on fire districts, finding 4/2 that where conduct is privileged under VTL §1104 there is no duty that can form the basis of a negligence claim under GML §205-b. It was undisputed that the volunteer firefighter’s actions of stopping “the fire truck before entering the intersection, and proceeded slowly through the red light” in response to a fire emergency call with lights and sirens on was privileged and not reckless. The Court reasoned that §1104 modified the underlying duties of emergency responders, whereas §205-b merely shifted liability from volunteer firefighters to fire districts without modifying the underlying duties. Anderson v Commack Fire Dist.    

Comment: The Second Department decision was reported in Vol. 267.

Premises Liab   Set Aside Verdict   Motion in Limine   Admissibility   Survelliance Video   Subsequent Repairs   Prejudice  

First Department
Defense verdict set aside and new trial ordered where lower court erred in precluding plaintiff from cross-examining defendants’ witnesses with their employees’ testimony who were stipulated to be unavailable as a prior motion in limine is not required for use of the depositions at trial (CPLR §3117(a)(3)) and any objections to the testimony could be addressed during the cross-examination. Lower court also erred in precluding surveillance video taken shortly after the accident during tcross-examination of the building manager who opened the door to that portion of the video which did not include subsequent remedial measures. The errors were not harmless where they went to the credibility of defendants’ only witnesses on a key fact.

Not adopting the exact language requested by plaintiff in modifying PJI 2:90 to include the facts of the case and the parties’ contentions was not error. Paus v 565 Equities, Inc.    

Child Victims Act   Negligent Supervision   Negligent Hiring   Emotional Harm   Motion to Dismiss   Personal Juridiction  

First Department
Plaintiff’s allegations that the Connecticut boys/girls club he belonged to as a youth negligently supervised a club outing to Rye Playland in NY where he was sexually assaulted by another club member were sufficient to satisfy the “commits a tortious act within the state” criteria for long arm jurisdiction (specific jurisdiction under CPLR §302(a(2)) which, in and of itself, is sufficient to meet the US constitutional requirement of “minimum contacts” with the state and the defendant failed to show defending the case in NY offended ‘ traditional notions of fair play and substantial justice.’ Motion to dismiss claims of incident in NY denied. WCVAWCK-Doe v Boys & Girls Club of Greenwich, Inc.    

Malpractice   Motion to Dismiss   Statute of Limitations   Continuous Representation  

Second Department
Defendants granted dismissal of legal malpractice claims as statute of limitations began to run when plaintiff demanded and received her files from defendants, evincing “her lack of trust and confidence” in their relationship which terminated any application of the continuous representation doctrine, and not when defendants’ motions to withdraw were granted. Fraumeni v Law Firm of Jonathan D    

Workers Comp Defense   Collateral Estoppel   Indemnity   Premature Motion  

Second Department
The Second Department clarified there can be no indemnity or contribution claim against a party found by the WCB to be the employer of an injured party on collateral estoppel grounds unless there is a grave injury or prior contractual indemnity agreement even if the parties seeking indemnity/contribution did not participate in the WCB proceeding. Plaintiff’s conflicting testimony of who he worked for could not be challenged outside the WCB where there was no allegation of a grave injury or prior contractual indemnity agreement. Motion to amend 1-defendant’s Answer to include a claim for failure to procure insurance pursuant to an oral contract providently granted as it was not a claim for indemnity or contribution and did not need to be in writing.

Subcontractor’s motion for summary judgment on claim it did not store materials on roof that collapsed denied as premature on proof discovery could produce relevant information. Velazquez-Guadalupe v Ideal Bldrs. & Constr. Servs., Inc.    

Attorney Fees   Vacate Jud   Set Aside Verdict  

Second Department
Law firm’s motion to set aside judgment that dismissed its action to disgorge former attorney-employees’ of their attorney fees under the “faithless servant doctrine” and set former employees’ quantum meruit compensation at $676,583.13 based on their relative work denied where the evidence supported the finding that the former employees did not use the firms time/resources, lessen their work for the firm, or misappropriate the firm’s business secrets or special knowledge while preparing to form their own firm. Law firms do not “own” clients and “attorneys departing their law firm-employer may inform clients with whom they have a prior professional relationship about their impending withdrawal and new practice, and remind clients of their freedom to retain counsel of their choice, i.e., the new firm, the current firm, or any other firm.”

Motion to set aside $20,000 award to former paralegal for sexual discrimination denied as not against the weight of the evidence where paralegal testified to numerous inappropriate instances of physical and sexual conduct and emails by the firm’s partner. Parker Waichman, LLP v Mauro    

Child Victims Act   Negligent Supervision   Negligent Hiring   Motion to Dismiss   Notice   Court of Claims  

Second Department
Court of Claim improvidently granted state’s motion to dismiss for failure to meet the “nature of the claim” pleading requirement of Court of Claims Act §11(b) on the ground the Claim did not allege specific facts of how the State knew or should have known of its employee’s propensity to sexually assault children in its charge as a claimant is not required to plead “evidentiary facts” but only enough information to allow the State to investigate the claim and claimant alleged the State knew or should have known of the employee’s propensities. Martinez v State of New York    

Premises Liab   Duty   Create Condition  

First Department
Former property owners who respectively sold the premises 9 and 5 years before plaintiff-tenant was injured by a defective loft ladder failed to meet burden for summary judgment without eliminating all questions of whether they were “responsible for the design, construction and installation of the defective loft ladder” as affirmatively creating a dangerous condition is an exception to the rule that prior owners are not generally responsible for the condition of the property. They failed to show as a matter of law that independent contractors were responsible for the design, construction, and installation of the ladder or that the ladder conformed to applicable standards. Davis v Angioletti    

(16 summaries)

Lead Poisoning   Circumstantial Evidence  

First Department
Landlord denied summary judgment of 6-year-old’s lead poisoning claim despite having obtained an exemption from the rebuttable presumption of lead (administrative code §27-2056.5(a)) as a result of an inspection 10-years earlier as there was ample circumstantial evidence, including plaintiff-mother’s testimony the apartment and their possessions were covered in dust after a renovation of the apartment floor 3-months before the infant first tested positive for lead poisoning, and there were no other likely sources of lead poisoning. In any event, plaintiffs raised an issue in opposition on their expert’s opinion that the 10-year-old testing did not reflect lead levels at the time the child tested positive, proof of the dust after the renovation but before the infant tested positive, proof defendant had actual and constructive notice of peeling paint by its right to enter the premises for inspection and repair, knowledge the building was constructed before 1960, and that the infant was living in the apartment. I.Z. v West End Residences Hous. Dev. Fund Co. Inc.    

Malpractice   Vacate Default   Untimely   Meritorious Action   Reasonable Excuse   Prejudice  

First Department
Administrator’s motion to restore action to the active calendar, previously dismissed without prejudice, providently granted as to 1-defendant, even though brought beyond 1-year time set by the court where plaintiff submitted physician’s affidavit of merit that defendant departed from accepted practice during transfer of decedent from defendant-hospital to residential facility, a reasonable excuse for the delay by COVID and having to hire a second expert after being unable to reach the first retained expert, and lack of prejudice or evidence of an intent to abandon the claim. Dyer v SUS Found., Inc.    

Malpractice   Motion to Dismiss   Causation   Respondeat Superior  

Second Department
Defendant-attorney failed to conclusively show by the documentary evidence of a retainer agreement that no attorney/client relationship existed or that an alleged material fact was not a fact on her motion to dismiss the legal malpractice action where plaintiff alleged she spoke with the attorney to discuss bringing an action against a rehab facility and medical providers involved in her decedent’s death but the legal malpractice action was dismissed because the Complaint failed to allege facts sufficient to show that but for defendant’s failure to timely serve the state action and timely commence a federal action plaintiff would have achieved a more favorable outcome. Buchanan v Law Offs. of Sheldon E. Green, P.C.    

Comment: Same result on motion to dismiss by law office on proximate cause grounds and law office not vicariously liable where attorney could not be liable. Buchanan v Law Offs. of Sheldon E. Green, P.C.

Asbestos   Estate   Capacity to Sue   Amend Complaint   Statute of Limitations  

First Department
Motion by ancillary administrators’ appointed in Ohio to amend the Complaint to substitute the decedent’s widow, appointed in North Carolina, as the plaintiff granted after the expiration of the federal statute of limitations, even if defendants were correct that the ancillary administrators lacked the capacity to sue, as they were given state authority to act and both the Jones Act and FELA are remedial measures to be liberally construed to provide protection for injured seaman and plaintiffs moved to substitute the widow shortly after she was appointed. Cross-motion to substitute purported successor by merger to defendants denied without proof of their relationships and case dismissed against 1-defendant on proof plaintiff who contracted lung cancer from asbestos exposure on ships was never on any of that defendant’s ships. Bartel v Maersk Line, Ltd.    

Comment: Related case decided on same reasoning. Bartel v Farrell Lines.

False Arrest   Malicious Prosecution   1983 Action   Governmental Immunity   Probable Cause  

Second Department
County and police officers met burden for summary judgment dismissing false arrest, malicious prosecution, and 1983 claims for warrantless arrest by showing probable cause based on photo identification of plaintiff as person who assaulted witness’s husband, but plaintiff’s submission of testimony of a person involved in the altercation that he recanted his written statement to the police that plaintiff was present, information which had been provided to him by the arresting officer during an interrogation, and that he told the officer plaintiff was not there or involved raised issues on whether the officer had “materially impeaching circumstances or grounds for questioning the [identifying witness’s] credibility” and should have investigated further. Acts of county and officers were not entitled to absolute governmental immunity.

Request to search record and grant her summary judgment by witness who identified plaintiff to police denied where not based on issues before the court on the motion. Williams v County of Suffolk    

False Arrest   False Imprisonment   Malicious Prosecution   1983 Action   Motion to Dismiss   Probable Cause   Amend Complaint   Prejudice   NYC  

Second Department
Defendants’ motion to dismiss for failure to state causes of action for state and federal false arrest/imprisonment and malicious prosecution denied where cab driver adequately pleaded the elements of the causes of action and that there was no probable cause for the arrest as he stopped when hailed by a female undercover police officer but immediately drove off without discussion when she proposed sex. Plaintiff’s motion to add additional causes of action granted based on the same facts as they were not palpably improper, and defendants failed to show prejudice. Metwally v City of New York    

Labor Law §240   Scaffold   Safety Devices   Unknown Cause   Speculation  

First Department
Defendants granted summary judgment dismissing Labor Law §240(1) claim of worker who fell from scaffold on proof it had adequate safety rails, was undamaged after the accident, and plaintiff had no recollection of how he fell. Plaintiff could not establish how a lack of a safety device caused him to fall without speculation. Mejia v Super P57 LLC    

Labor Law §240   Ladder   Safety Devices   Sole Cause  

First Department
Building owner denied summary judgment dismissing Labor Law §240(1) claim of worker injured while installing 30′ of pipes and electrical lines from tenant’s space to outside compressors where plaintiff was not provided with any safety devices other than 2-unsecured A-frame ladders which failed to provide proper protection for plaintiff’s work at an elevated height and owner’s lack of knowledge of the work was irrelevant. Owner not entitled to sole proximate cause defense where proper safety devices were not provided. Sanchez v Walton Ave. Realty Assoc. LLC    

Serious Injury   Preexisting   Degenerative   Experts   Hearsay  

First Department
Defendants met burden for summary judgment dismissing serious injury claim for spinal injuries on its radiologist’s report that the MRI showed only minor degenerative, chronic conditions not related to the accident and its biomechanical expert’s opinion the impact was too minor to cause plaintiff’s spinal injuries but plaintiff raised an issue in opposition by a certified report of an MRI taken shortly after the accident finding bulging discs impinging on the thecal sac and her treating doctor’s opinion that based on a 17-year-old’s disc pathology, what was shown on the MRI and seen during subsequent cervical discectomy and fusion was caused by the accident. Plaintiff adequately explained her brief gap in treatment and the lower court properly considered certain medical records not properly authenticated as they were not the sole basis of plaintiff’s opposition.

Defendants granted summary judgment dismissing knee injury claim where plaintiff’s expert failed to explain why the accident and not a documented pre-existing knee condition was the cause or aggravation of the condition. Osorio v Punjab Enter. Inc.    

Battery   Negligent Supervision   Negligent Hiring   Emotional Harm   Respondeat Superior   Motion to Dismiss  

First Department
Day care center’s motion to dismiss claims of battery, negligent supervision/hiring, respondeat superior for assault of infant by employee, emotional harm of sibling in zone of harm, and loss of services and medical costs on behalf of mother denied where Complaint adequately pleaded the causes of action. Motion to dismiss parents’ claims for emotional harm and father’s loss of income granted as neither parent was within the zone of harm and they did not witness the assault. T.I.D. v Ortiz    

Labor Law §240   Labor Law §241   Industrial Code   Gravity Risk   Comparative Fault   Waiver  

First Department
Defendants granted summary judgment dismissing Labor Law §240(1) claim of worker who fell 10″-24″ from plywood platform between hoist and mechanical room as the height differential was insufficient to trigger §240 protections. Plaintiff denied summary judgment on Labor Law §241(6) based on industrial code §23-1.22(b)(2) as the platform was not used as a ramp for persons only and on industrial code §23-5.1 as it was used to transport materials and was not the functional equivalent of a scaffold.

Plaintiff granted dismissal of comparative fault defense where defendants did not oppose and failed to cite to any evidence of comparative fault. Plaintiff’s attorney’s affirmation and plaintiff’s EBT testimony were sufficient to support the motion. Fischer v VNO 225 W. 58th St. LLC    

Premises Liab   Wet Floor   Experts  

First Department
NYCHA failed to meet burden for summary judgment without addressing plaintiff’s expert’s opinion, exchanged during discovery, that water plaintiff slipped on from the kitchen drainpipe leak was a long-standing issue that should have been discovered and corrected and, in any event, plaintiff’s expert’s report raised an issue in opposition. Lugo v New York City Hous. Auth.    

MVA   Rear End   There to be Seen   Nonnegligent Explanation   Comparative Fault  

First Department
Plaintiff not entitled to summary judgment on claim defendants’ truck rear ended plaintiff’s vehicle where truck struck the rear side of plaintiff’s vehicle while changing lanes, not the rear of plaintiff’s vehicle because it failed to maintain a proper distance but granted summary judgment for defendants’ unsafe lane change (VTL §1128(a)) based on testimony of both drivers and the police report. Defendant failed to provide a nonnegligent explanation. Plaintiff was not required to see what was behind him in a different lane. Pichardo v Irizarry    

Discovery   Note of Issue   HIPAA  

Second Department
Defendants’ motion to vacate the Note of Issue and compel plaintiff to provide HIPPA authorizations previously demanded and appear for an EBT granted where discovery remained outstanding when Note of Issue was filed. Gigauri v One Hudson Yards Owner, LLC    

False Arrest   False Imprisonment   Malicious Prosecution   Notice of Claim   Statute of Limitations   Actual Knowledge   Reasonable Excuse   Prejudice  

Second Department
Petitioner’s false arrest claim was barred by the statute of limitations which ran when he was first released from custody but his false imprisonment and malicious prosecutions claims were timely as they ran from when he was released from prison years later. Motion to file late Notice of Claim denied without proof county had actual knowledge of the essential facts within 90-days or a reasonable time thereafter, ignorance of the law is not a reasonable excuse, and petitioner failed to provide some evidence or a plausible argument that the county was not prejudiced by delay. Matter of Pil-Yong Yoo v County of Suffolk    

Premises Liab   Question of Fact  

First Department
Conflicting evidence of whether panel on ice machine that fell on plaintiff as she inspected it was unsecured or fell as plaintiff unscrewed it precluded grant of summary judgment for defendants. Majstorovic v Best Mkt.    

(2 summaries)

Uninsured   Arbitration   Serious Injury   Discovery   IME/DME   Untimely  

Second Department
UM carrier not entitled to temporary stay of arbitration to complete EUO and IME/DME where it did not seek these during the 8-months before it denied the claim on serious injury grounds and until the insured filed for arbitration 11-months after the carrier was initially notified of the claim. Matter of Government Empls. Ins. Co. v Eser    

Malpractice   Vacate Jud   Renew   Motion to Dismiss   Personal Juridiction   Reasonable Excuse  

Second Department
Plaintiff’s motion to renew opposition to defendant’s motion to dismiss for lack of personal jurisdiction, granted on default, treated by the lower court as a motion to vacate the judgment providently denied where the court found plaintiff’s law office failure argument was not a reasonable excuse. The Court does not give the details of the proofs. Gellert v Shannon    

About Matt McMahon

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