April 28, 2020 | Vol. 208

(2 summaries)

Legal Mal   Motion to Dismiss   Judgment Rule   Causation  

First Department
Firm’s motion to dismiss, properly based on undisputed documentary evidence of policy and disclaimer letter citing 2-grounds for disclaiming, granted where carrier never alleged with specificity or argued that either ground was incorrect. There can be no malpractice for prediction of how court would interpret policy without proof that issues were elementary or well settled under attorney-judgment rule. Carrier also failed to show how any error prejudiced their defense. Lloyd’s Syndicate 2987 v Furman Kornfeld & Brennan, LLP

Emotional Harm   Outrageous Conduct   Admission   Causation  

First Department
Defendant denied summary judgment where his plea allocution to charge of aggravated animal cruelty established that he “intensely assaulted and caused the death of a companions animal, that is, a cat, belonging to [plaintiff]” and leaving it for her to find. Defendant failed to establish this was not conduct “extreme, outrageous or intended to cause, or disregarded a substantial probability of causing, severe emotional distress” and was not a cause of her injuries. Barrish v Chiesa

Comment: The defendant, a college friend of the plaintiff, spent 4-months in jail for the incident.
(4 summaries)

Premises Liab   Building Security   Governmental Function   Special Duty   Notice   Foreseeability   NYC  

First Department
In providing funding for a chronic homeless and mentally ill shelter NYC was fulfilling a governmental function requiring a showing of special duty to prevent plaintiff’s assault at facility where she worked, which was not shown. Owner/operator of facility granted summary judgment where assault not foreseeable given 9-year resident’s lack of history of violence towards other residents and criminal history alleged was 15-years old. Surveillance cameras and locks controlling access to facility and offices met “minimal precautions” standard. Musano v City of New York

Premises Liab   Slip/Trip   Sidewalk   § 7-210   Prior Written Notice   Question of Fact  

First Department
EBT testimony of DOT supervisor from subsequent case involving replacement, repair, and maintenance of same defect plaintiff tripped on, concrete mound with sign remnant, contradicted his affidavit and testimony in this case that NYC did not install, repair, replace, or maintain street sign for 20-years, raising question on whether it created condition an exception to prior written notice requirement. Adjoining landowner claiming NYC caused the defect failed to meet its burden without affidavit that its employees did not create the condition and that they maintained the sidewalk in a safe condition under §7-210. O’Connor v Tishman Constr. Corp.

Premises Liab   Slip/Trip   Discovery   Causation  

First Department
MTA and NYCTA granted summary judgment on engineer’s testimony they did not own, manage, control, or make special use of catch basin by subway entrance which was responsibility of NYC. Evidence of sidewalk alterations near catch basin not made by NYC did not raise issue of fact where there was no claim that any part of sidewalk caused the accident which also rendered discovery on that issue irrelevant. Nolasco v City of New York

Labor Law §241   Labor Law §200   Discovery   Premature Motion  

First Department
Plaintiff met burden of showing that information exclusively in the knowledge or control of defendants was necessary to oppose motion for summary judgment on Labor Law §§241(6), 200, and negligence claims where there had been no depositions or exchange of records of installation, maintenance, or repair of mesh walkway where plaintiff fell. Lyons v New York City Economic Dev. Corp.

(1 summaries)

Premises Liab   Slip/Trip   Sidewalk   De Minimus  

First Department
Adjoining landowner granted summary judgment on proof sidewalk defect was trivial as a matter of law and plaintiff failed to raise issue in opposition. The court does not give the details of the proofs. Powell v Centers FC Realty, LLC

About Matt McMahon

Civil trials and appeals since 1984
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