April 27, 2021 | Vol. 259

(6 summaries)

Products Liab   Warnings   Sole Cause   GML §205-a-e   Notice   Experts   Conclusory   Raised For First Time   NYC  

Second Department
Animal tranquilizer gun distributor failed to show gun that injured plaintiff-detective as he changed carbon dioxide cartridge was reasonably safe for intended use when designed by evidence of absence of other NYPD officer complaints and distributor’s expert’s conclusory opinion it was “appropriately designed” without discussion of design, industry standards, costs, or complaints of any of distributor’s tranquilizer guns. Distributor also failed to show it provided adequate warnings, no warnings were necessary, or failure to give adequate warnings was not a proximate cause where it relied on NYPD instruction sheet plaintiff testified he never received. Questions remained on sole proximate cause, including whether plaintiff was given a specific instruction by NYPD that he refused to follow, or whether he used a tool to remove the end cap that became a projectile. Plaintiff’s argument on dismissal of other failure to warn claims not considered where raised for the first time on appeal.

NYC failed to show Labor Law §27-a(3)(a)(1)(workplace “free from recognized hazards”) was inapplicable predicate for GML §205-e where plaintiff alleged gun purchased in 1976 was defective from lack of maintenance and the circumstances must only indicate the violation resulted from “neglect, omission, or willful or culpable negligence.” NYC met burden of showing 29 CFR §§ 1910.132(a) and 1910.133(a)(1) were inapplicable. Morales v City of New York    

Premises Liab   Stairs   Notice   Errata Sheet   Feigned Issue   Subsequent Repairs   Admissibility   NYC  

First Department
NYC granted summary judgment on plaintiff’s 50H testimony that his shoe caught on step as it did not indicate any defect or notice of a defect and plaintiff’s attempt to change theory to having slipped on a worn tread in errata sheet raised only feigned issue where there was no explanation for change as required by CPLR §3116(a). Subsequent repair of steps, admissible to show knowledge of accident location, was not admissible to show presence or notice of a defect. Lopez v City of New York    

MVA   Set Aside Verdict   VTL §1104   Amend Complaint   Prejudice   GML §205-a-e   Pain/Suffering   Waiver   Note of Issue  

Second Department
Defendant waived jury trial by not serving jury demand after plaintiff filed Note of Issue without jury demand.

Motion to amend Complaint on eve of trial to include GML §205-e claim providently granted where there was no surprise or prejudice as factual claims under 205-e were included in pleadings and depositions. On bench trial, court properly found plaintiff, police-officer, was responding to emergency call and entitled to VTL §1104 reckless standard while traveling in left lane with lights, sirens, and rumbler on when defendant refused to pull over to the right, in violation of VTL §1144, forcing plaintiff to cross into oncoming lane where he was struck at intersection when defendant made a left-hand turn in violation of VTL §1160. Plaintiff’s conduct was not reckless under VTL §1104(e).

Award of $600,000/$400,000 past/future pain/suffering in separate damage trial did not materially deviate from reasonable compensation and award of $1.5 mil future lost earnings and benefits was supported by expert testimony. Santiago v Boyer    

Malpractice   Amend BP   Note of Issue   Accepted Practice   Causation   Experts   Conclusory  

Second Department
Plaintiff’s cross-motion to amend BP to include departures from earlier treatment denied without showing of special and extraordinary circumstances where brought in response to motion for summary judgment 15-months after action started and 2-months after Note of Issue filed, plaintiff failed to give reasonable excuse for not adding new theory before Note of Issue, and defendants had no prior notice of new theory.

Gastroenterologist and medical group met burden for summary judgment with expert’s opinion of no departures in treating decedent’s hepatitis B during period alleged and no causation. Plaintiff’s expert failed to raise issue in opposition where opinions for alleged time period did not address defendants’ expert’s specific opinions and was conclusory and speculative. Scopelliti v Westmed Med. Group    

Malpractice   Settlement   General Release  

Second Department
Motion to amend original infant compromise order to remove boilerplate language purporting to release all employees, agents, servants of settling defendants that included St. Vincent’s Hospital, providently granted where language of settlement papers, general releases, and infant compromise order clearly stipulated only employees insured by St. Vincent’s would be released and cases against remaining defendants, insured by other carriers, would continue. Jonathan S. v Benjamin    


First Department
Attorney’s conclusory statement that witnesses would be inconvenienced was insufficient to justify change of venue from Bronx to Dutchess County. Accident situs is factor, but does not do away with burden of showing inconvenience of witnesses. There is no presumption that witnesses will be inconvenienced by having to travel to a different county. Tawiah v McNiff    

(22 summaries)

Malpractice   Vacate Default   CPLR § 3126   Reasonable Excuse   Meritorious Action   Experts   Raised For First Time  

First Department
Plaintiffs’ motion to vacate order granted on default dismissing action for failure to comply with court orders or appear at conferences denied where plaintiff’ counsel did not offer reasonable excuse for default in opposing motion, complying with court orders, or appearing at conferences and they failed to submit medical proof noncompliance was due to plaintiffs’ counsel’s alleged mental condition. IME report submitted instead of detailed expert report was insufficient to make out meritorious action and expert affidavits submitted for first time in reply were not considered. Liparulo v New York City Health & Hosps. Corp.    

Asbestos   Products Liab   Admissibility   Hearsay  

First Department
Defendant granted summary judgment where decedent’s coworkers’ recollections that they used defendant’s joint compound at some point between 1972-1974, without identifying source of knowledge, failed to establish present sense impression exception to hearsay as opposed to coworkers’ understanding of the fact, without which there was no proof linking defendant’s product to decedent’s exposure to asbestos. Matter of New York City Asbestos Litig.    

Malpractice   Statute of Limitations   Continuous Treatement  

First Department
NYCHHC granted summary judgment where treatment within 1.5 years of defendant’s alleged failure to diagnose breast cancer did not toll statute under continuous treatment as there was no treatment of symptoms ultimately traceable to plaintiff’s cancer. Failure to treat the cancer is not treatment for purposes of continuous treatment toll. Case dismissed on statute of limitations. Creque v New York City Health & Hosps. Corp.    

Comment: The Court notes the statute of limitations as 1 1/2 years which is likely a typo that will be corrected in the final version of the decision.

Assault   Negligent Supervision   Notice   Violent Propensity   Foreseeability   Causation  

First Department
Charter school denied summary judgment of negligent supervision claim where 15-year-old student was raped by 19-year-old student in unlocked classroom where director testified classroom should be locked for student safety when no teacher is present, students were often alone in classrooms before his tenure, a staff member notified him after the rape that plaintiff and assailant had prior sexual encounter in an unlocked classroom, student records were poorly maintained before his tenure, and plaintiff testified rape was culmination of numerous sexual assaults in unlocked classrooms by assailant over several months and that assailant had a reputation for violence and fighting. School failed to show sexual assault was unforeseeable or that unlocked classroom was not a proximate cause of the rape. Doe v Bronx Preparatory Charter Sch.    

Assault   Spoliation   Survelliance Video   Negative Inference   Sanctions   NYC  

Second Department
Defendants’ motion to vacate JHO’s grant of negative inference at trial and preclusion of evidence disputing security guard’s affidavit describing content of missing surveillance video showing assault of homeless shelter resident by DHS employees granted only to extent of leaving sanctions to trial court where DHS failed to preserve the video as negligence can show a “culpable state of mind.” Oppenheimer v City of New York    

Labor Law §240   Scaffold   Sole Cause   Indemnity  

First Department
Conflicting evidence of whether Spanish-speaking plaintiff was instructed in English to stop work on scaffold without railings and to retrieve railings before continuing precluded summary judgment for plaintiff on Labor Law §240(1) as issues remained of whether he fully understood English instructions, knew railings were available, he was expected to use them, and had no good reason not to do so. Conflicting accounts of whether plaintiff locked scaffold wheels did not raise issue where scaffold was not tested after accident to determine if wheels were locked or brakes functioning. Defendants granted summary judgment on indemnity claim against contractor on proof defendants were not negligent since accident involved means and methods of work they did not control. Batlle v NY Devs. & Mgt., Inc.    

Malpractice   Duty   Causation   Respondeat Superior  

First Department
Internist/nephrologist granted summary judgment as duty passed to infectious disease specialist who assumed diagnosis and treatment of paraspinal infection during hospital stay. Hospital could not be vicariously liable for internist/neurologist where lower court previously found he was not hospital employee and plaintiff never appealed that order. Hospital not vicariously liable for infectious disease specialist as plaintiff did not allege he was someone hospital could be vicariously liable for in Complaint or BP. Gambacorta v Giordano    

Malpractice   Motion to Dismiss   Statute of Limitations   CPLR §205   Personal Juridiction   Hearing  

First Department
There is no automatic dismissal for failure to file a certificate of merit under CPLR §3012-a. Action was commenced within statute of limitations where prior dismissal for failure to enter default judgment within 1-year was not on merits and there were no specific findings of a general pattern of delay necessary to establish neglect to prosecute under CPLR §205(a). Affidavit of service made prima facie showing of personal jurisdiction, but defendants’ affidavits raised issues that could only be determined at traverse hearing. Estrella v East Tremont Med. Ctr.    

Premises Liab   Create Condition   Notice   Duty   Raised For First Time  

Second Department
Landlords granted summary judgment on proof they did not create defective condition that caused stove to spontaneously ignite or have actual or constructive notice of any defect. Absent something to arouse suspension of a defect, landlord had no duty to inspect. Plaintiff’s other contentions not considered where raised for first time in reply brief. Vantroba v Zodiaco    

Motion to Dismiss   Statute of Limitations   CPLR §205  

First Department
Defendant’s motion to dismiss on statute of limitations granted as prior action was dismissed for neglect to prosecute within meaning of CPLR §205(a) with that court detailed the neglect. Chen v Lockett    

Motion to Dismiss   Reasonable Excuse   Meritorious Action   NYC  

First Department
Motion to dismiss for 18-month delay in providing Complaint under CPLR §3012 granted and plaintiff’s cross motion to serve Complaint nunc pro tunc denied where plaintiff’s counsel failed to provide reasonable excuse for delay in providing Complaint after several demands. Claim delay was caused by failure of paralegal who left firm to calendar deadline rejected as deadline was months before paralegal left. Plaintiff’s relocation to Florida and failure to maintain communication with her attorneys was an unacceptable excuse given available technology, and plaintiff’s claim delay caused by ongoing illness rejected where unsupported by any medical evidence or affidavit. Meritorious action need not be addressed given lack of reasonable excuse. Elkaim v Lotte N.Y. Palace Hotel    

3rd Party Contractor   Elevator   Espinal   Create Condition   Notice   Appealable Order  

Second Department
Elevator company with maintenance agreement may be liable for not correcting dangerous conditions it has knowledge of but granted summary judgment on proof it did not create or have actual or constructive notice of any defect that led to plaintiff’s fall where elevator was not flush with landing. Appeal by other defendants dismissed as they were not aggrieved by order granting elevator company summary judgment. Kim v Park Hill Owners, Inc.    

Reargument   Appealable Order  

First Department
Appeal from grant of defendant’s motion to reargue motion to dismiss, granted on default, dismissed as no appeal lies from an order granted on default as defaulting party is not aggrieved by default order. Liddle & Robinson, L.L.P. v Willman    

Premises Liab   Snow/Ice   Sidewalk   Set Aside Verdict   Create Condition  

Second Department
Plaintiff’s motion to set aside defense verdict denied where jury could credit photograph taken shortly after accident and testimony of building site manager that grassy area next to sidewalk was not an area where maintenance staff placed snow when shoveling, finding defendants did not create ice condition plaintiff slipped on by snow removal efforts. Restagno v Baybridge at Bayside Condominium III    

Serious Injury   ROM   Preexisting   Degenerative   Experts  

First Department
Defendants granted summary judgment on serious injury where their neurologist found normal ROM and negative tests in cervical and lumbar spine and their radiologist found desiccation and other preexisting degenerative conditions not caused by trauma on cervical MRI taken shortly after accident. Affirmed report of doctor who first examined plaintiff 6-years after accident showing limited ROM failed to raise issue without proof condition and treatment were contemporaneous with accident, radiological reports referred to were not included in records, there were no records of lumbar treatment, and no records of treatment were attached to support plaintiff’s testimony he went to ER and started PT after accident. Plaintiff’s testimony he was never confined to bed/home eliminated 90/180-day category. Chawdhury v 3511 Sys. Inc.    

MVA   Rear End   Nonnegligent Explanation   VTL §1104   Reckless   Raised For First Time   Premature Motion   NYC  

First Department
Undisputed fact that NYC employee backed up truck into stopped vehicle plaintiff was sitting in entitled plaintiff to summary judgment under VTL §1211(a). Truck driver’s testimony he looked in rear view mirror but did not see vehicle before backing up did not provide a nonnegligent explanation. NYC could not raise reckless standard of VTL §1103(b) for first time on appeal as it is not purely legal question and necessary facts were not in the record. Plaintiff’s motion not premature as both drivers submitted affidavits with the material facts undisputed. Salodkaya v City of New York    

MVA   Bus  

Second Department
NYCTA failed to meet burden for summary judgment where they submitted plaintiff’s testimony, that bus suddenly accelerated as she entered causing her shoulder, neck, lower back, and arm to strike a pole and making her fall over another passenger and hit seat, which failed to establish bus movement was not unusual and violent. Sang Goo Park v New York City Tr. Auth.    

Premises Liab   Wet Floor   Create Condition   Notice   Last Inspection  

First Department
Hospital failed to meet burden of showing it did not create or have notice of puddle in front of nursing station where employees testified to only general cleaning principles without stating they were followed that day and there was no proof of last time area was clean/inspected. Young-Borra v New York & Presbyt. Hosp.    

Pothole Law   Prior Written Notice   Create Condition   NYC  

First Department
NYC granted summary judgment where plaintiff’s rollerblade hit grid-shaped cut marks etched in roadway outside playground on proof NYC did not have prior written notice of defect and permits submitted by plaintiff to show NYC created the condition during catch basin repair were for area 64′ away from accident site. Vega v City of New York    

Premises Liab   Create Condition   Notice  

Second Department
Defendant granted summary judgment on proof it did not create or have notice of pile of wood chips on pathway and pathway was reasonably safe even though it did not have a handrail. Monczyk v Noam    

MVA   Bus   Rear End   Nonnegligent Explanation   Emergency Doctrine  

First Department
Bus driver’s affidavit that plaintiff’s vehicle abruptly changed lanes and stopped in front of bus raised issue of nonnegligent explanation for rear end collision, requiring denial of summary judgment for plaintiff. Jimenez v Greyhound Lines, Inc.    

Malpractice   Default Judgment   Inquest   Statute of Limitations   Appealable Order  

Second Department
Appeal from order awarding $9000/$1000 to plaintiffs, previously granted summary judgment against attorney on default for not commencing suit within statute of limitations, dismissed as no appeal lies from an order that does not decide a motion on notice, the Court declined to grant leave to appeal, and defendants failed to provide sufficient transcripts for an adequate review. Rene v Abrams    

(0 summaries)

About Matt McMahon

Civil trials and appeals since 1984
Bookmark the permalink.

Comments are closed