Set Aside Verdict Dangerous Condition Admissibility Prejudice Expert Aff Preclusion Comparative Fault
 In analyzing when non-mandatory industry standards can be used to establish a standard of care, the First Department agreed that an expert’s testimony that an industry association’s standard is generally accepted in the community at the time was sufficient to show a standard beyond NYCTA’s internal standard of 6″ gaps between train doors and platforms, even if the standard was voluntary and not for all train systems.
Evidence of gap accidents at other stations with the same conditions admissible as their probative value outweighed any prejudice. NYCTA providently precluding from calling 2-witnesses disclosed on eve of trial without reasonable excuse for delay. Verdict of no comparative fault not against weight on testimony that train was crowded. Daniels v New York City Tr. Auth.
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Labor Law §240 Labor Law §241 Labor Law §200 1-2 Family Exception Control
 Owners of brownstone classified as multiple or 3-family dwelling by NYC building department entitled to 1-2 family exception of Labor Law §§ 240(1) & 241(6) on proof it was used solely as their residence. Proof they did not have authority to control means and methods of work entitled them to summary judgment on Labor Law §200 and negligence claims. Rashid v Hartke
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CPLR § 3126 Vacate Default Preclusion
Plaintiff’s failure to show reasonable excuse for failing to comply with self-executing conditional order to provide discovery within 45 days and failure to show meritorious action precluded relief from order precluding plaintiff from introducing evidence of liability and damages at trial. Castro v Parkview Commons Condo
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Premises Liab Slip/Trip Sidewalk § 7-210 Homeowner Exception 3rd Party Contractor Control Duty
Adjacent single-family homeowner owed no duty to maintain sidewalk under administrative code §7-210 and was not responsible for third-party contractor’s actions of repairing sidewalk where homeowner did not request the repair or have control over the independent contractor. ‘Factors relevant to assessing control include whether a worker (1) worked at [her or] his own convenience, (2) was free to engage in other employment, (3) received fringe benefits, (4) was on the employer’s payroll, and (5) was on a fixed schedule’. Shusterich v Kleinman
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Battery Discovery Privilege
Infant-defendant compelled to attend deposition and answer questions regarding assault even though she was adjudicated a youthful offender in related criminal proceeding over claim that youthful offender status afforded her confidentiality privilege. Privilege applied only to official court records, not underlying facts of altercation. Arma v East Islip Union Free Sch. Dist.
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Labor Law §240 Safety Devices Sole Cause Court of Claims
Ironworker failed to make out prima facie entitlement to summary judgment on Labor Law §240(1) on claim he properly secured iron posts to be lifted by crane, tested their connection, and that crane operator must have moved the load quickly causing the posts to fall, and crane operator’s testimony that he lifted them slowly and vertically before they fell. Plaintiff failed to eliminate issues on whether he was provided with adequate safety device and whether he was the sole proximate cause of his injuries. Houston v State of New York
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Labor Law §240 Ladder Duty
Summary judgment on Labor Law §240(1) where A-frame ladder suddenly shifted causing plaintiff to fall reversed against member of LLC who could not be individually liable without piercing the corporate veil by ‘showing that: (1) the owners exercised complete domination of the corporation in respect to the transaction attacked; and (2) that such domination was used to commit a fraud or wrong against the plaintiff which resulted in plaintiff’s injury.’ Plaintiff relied only on allegations not proof of piercing the corporate veil. Singh v Nadlan, LLC
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Premises Liab Slip/Trip Res Ipsa Loquitor Comparative Fault Renew
Lower court’s grant of plaintiff’s motion to renew denial of original motion for summary judgment based on res ipsa loquitor adhering to its original decision finding questions of fact as to defendants’ liability under res ipsa loquitor affirmed based on evidence that area was not open to customers leaving issues of whether the accident was due to plaintiff’s voluntary action. Plaintiff not required to show freedom from comparative fault but had to eliminate all issues on defendants’ negligence under res ipsa loquitor. Romero v Xcellent Car Wash & Express Lube
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Uninsured Stay Arb Prejudice
Carrier granted permanent stay of UM arbitration where injured party and spouse settled case against another tortfeasor for full policy without getting permission of UM carrier as required under policy. Plaintiff failed to show carrier was not prejudiced. Matter of State Farm Fire & Cas. Co. v McLaurin
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Set Aside Verdict Pain/Suffering Materially Deviates
Motion to set aside verdict finding defendants 30% at fault denied as not “utterly irrational.” $1,500,000/$3,000,000 past/future pain/suffering for hip, forearm, shoulder and rib fractures with ulna ORIF and hip surgery, 5-week hospitalization, wheelchair for 6-months and walker for 2-months followed by crutches for walking more than 5-blocks for 4 years did not materially deviate from reasonable compensation but $600,000 for future medical expenses set aside unless plaintiff agreed to reduction to $200,000. Cabrera v New York City Tr. Auth.
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Labor Law §240 Labor Law §241
Defendant granted summary judgment on Labor Law §§240(1) & 241 (6) on testimony of plaintiff and coworker who repaired HVAC system a week after plaintiff fell that missing belt needed to be replaced every year and that repair consisted of replacing belt and restarting pilot light establishing it was “routine maintenance” and not a repair under Labor Law. Whether unit is not functioning, in this case for several weeks, is not sole determining factor of repair versus routine maintenance. Dahlia v S&K Distrib., LLC
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Dram Shop Wrongful Death Hearsay Expert Aff Speculation
Testimony of restaurant-defendant’s bartenders that they served plaintiff 2 12oz beers with a stake at lunch and refused to serve him when he returned hours later appearing visibly intoxicated made out prima facie entitlement to summary judgment on dramshop action. Forensic pathologist’s affirmation speculative as a pathologist is normally not called upon to make judgments of intoxication manifestations in live persons and he did not establish basis of knowledge for opinions. Decedent’s friend’s statement that decedent called him and said he was at the restaurant at times contrary to bartenders’ testimony inadmissible hearsay. Flynn v Bulldogs Run Corp.
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Med Mal Accepted Practice Causation Expert Aff Speculation
Nephrologist at dialysis center granted summary judgment where he properly diagnosed plaintiff’s decedent’s blood clot in his catheter and gave him several options to have clot removed and have timely dialysis. Dialysis center made out prima facie entitlement to summary judgment on same proof, but plaintiff raised issue of fact on testimony that technician at dialysis center told plaintiff’s decedent he could wait until the next day for dialysis without consulting any doctor. Dialysis center’s expert’s opinion that such advice would not be a cause of the decedent’s respiratory arrest the following day, and subsequent death, because plaintiff was a physician and would have known the risks was speculative. Gray v Patel
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Med Mal Accepted Practice Expert Aff
Plaintiff’s expert’s opinion that defendants departed from accepted practice by their delay of 3-4 hours in performing and reading STAT brain CT/MRI after plaintiff found lethargic and unresponsive raised question of fact opposition to the defendants’ prima facie showing that the tests and consultations they ordered were within accepted practice. Sheppard v Brookhaven Mem. Hosp. Med. Ctr.
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Negligent Supervision Notice Question of Fact
BOE denied summary judgment where children routinely played in bleachers before school despite rule that they were not allowed to do so, and plaintiff was playing in the bleachers for 10-20 minutes before she was accidentally pushed by another student. A.R. v City of New York
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Premises Liab Products Liab Out of Possession Dangerous Condition Notice Assumption of Risk Warnings Sole Cause
Out of possession homeowners who were aware wall in deep end of pool slanted towards center of pool and that depth was not marked failed to show that condition was not dangerous and that they did not have actual or constructive notice where they did not submit expert opinion to show that condition was not dangerous. They also failed to show that plaintiff, a guest of tenant, who dove into pool without knowing wall was slanted was sole cause of injuries or assumed the risk. Pool company denied summary judgment of negligence and products liability claims for designs defect on questions of fact. McDermott v Santos
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Premises Liab Assumption of Risk
Experienced baseball player assumed risk of rigid versus breakaway bases during baseball tournament on his testimony that he was aware of rigid bases prior to accident. Plaintiff failed to raise issues of fact in opposition including whether change in bases unreasonably increased risks beyond those inherent in playing baseball. Gonch v Baseball Heaven, Inc.
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Motion to Dismiss Untimely Meritorious Action Informed Consent
Defendants’ motion to dismiss where plaintiff served untimely Complaint after demand providently denied where plaintiff showed it needed extensive medical records to draft Complaint and medical records submitted on the motion by plaintiff contained sufficient proof of a meritorious action including fact that plaintiff gave permission for removal of her fallopian tubes if a malignancy was found and fallopian tubes were removed without a malignancy being found. McKenzie v Jack D. Weiler Hosp.
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Motion to Dismiss Governmental Function Special Duty NYC
Firefighters’ attempt to rescue plaintiff from elevator when it dropped causing injury to plaintiff’s knee was a governmental function. Plaintiff’s claim that special duty was not necessary was an admission that there was no special duty, warranting dismissal. Ortiz v City of New York
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Labor Law §240 Labor Law §241 Ladder Industrial Code
Plaintiff granted summary judgment on Labor Law §240(1) which does not require that worker have a complete fall from the safety device. Defendant granted summary judgment on Labor Law §241(6) on industrial code §23-5.3(e) because ladder was not elevated more than 7′. Monfredo v Arnell Constr. Corp.
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Premises Liab Duty Notice Latent Defect
Property owner owed no duty to maintain grassy median in parking lot not intended for people to walk on and hole under snow plaintiff stepped in was latent defect that could not be readily discovered with reasonable inspection evidenced by fact that plaintiff walked over area on numerous occasions before the accident without noticing hole and, therefore, constructive notice could not be imputed. Reed v 64 JWB, LLC
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Lead Poisoning Question of Fact
NYCHA’s submission of DOH report finding unsafe lead levels and violations rescinded after NYCHA submitted their own expert inspection failed to eliminate question of excessive lead levels based on conflicting inspection reports. LM v New York City Hous. Auth.
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Premises Liab Dangerous Condition Notice Expert Aff
Business granted summary judgment where plaintiff entered front door without incident 4-times before door closed too quickly on his finger establishing lack of dangerous condition or notice of a dangerous condition. Affidavit of plaintiff’s expert who did not inspect door failed to raise an issue of fact. Eskridge v TJBM Enters., Inc.
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MVA Question of Fact Noseworthy
Both sides denied summary judgment on conflicting stories of whether defendant driver had light and was driving at reasonable speed when infant-plaintiff darted from behind an SUV and plaintiff’s brother and another eyewitness’ testimony that infant-plaintiff was in crosswalk and had nearly crossed entire Grand Concourse when light changed and defendant sped up and hit him. Infant-plaintiff entitled to Noseworthy charge where he is unable to speak as a result of the accident. G.G.N. v Ramos
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Set Aside Verdict Jury Charge Appealable Order
Judgment on defense verdict upheld where plaintiffs’ challenge to jury charge on premises liability not made during trial and objections to defendant’s cross-examination not preserved for appeal and would not warrant reversal. Parchment v TJX Cos., Inc.
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Med Mal Causation Expert Aff
Defendant granted summary judgment where plaintiff’s decedent expressed no suicidal ideations and experts for both sides agreed the suicide was an “impulsive act.” Christophel v New York-Presbyterian/Weil Med. Coll. of Cornell Univ. Anesthesiology Residency Training Program
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Labor Law §240 Ladder Question of Fact
Plaintiff denied summary judgment where defendant raised issues of fact on whether ladder plaintiff claimed was unstable causing him to fall was the ladder used by plaintiff. Vasquez-Tineo v 1764-1766 Westchester Ave., LLC
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Premises Liab Slip/Trip Sidewalk Create Condition Causation NYC
NYC granted summary judgment on proof that NYCHA not NYC owned walkway where plaintiff’s decedent stepped into hole, that it did not crea the condition because it did no work on the walkway, and NYCHA failed to show that NYC’s sewer easement 10′-20′ below walkway created the hole. McAllister v City of New York
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Assault Battery Expert Aff NYC
NYC and police officers granted summary judgment where infant-plaintiff admitted he refused to obey police officers’ commands, plead guilty to disorderly conduct, and would not allow police officers to handcuff him until they punched him in the face twice. Plaintiff failed to submit expert proof that police officers used excessive force. N.M. v City of New York
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MVA There to be Seen Premature Motion
Plaintiff established entitlement to summary judgment on proof his vehicle was stopped on roadway for 10-15 minutes when defendants’ vehicle that had just pushed aircraft away from gate backed into plaintiff’s vehicle causing his injuries, establishing that defendants failed to observe what was there to be seen. Defendants failed to show what discovery would be necessary to oppose motion. Francois v Tang
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Battery Negligent Supervision Foreseeability
Fact that inmate-plaintiff had friendly relationship with inmate who hit him over the head with pool cue, that attacking inmate had no history of prior violence, and that correctional facility had no prior history of anyone being attacked with a pool cue established attack was unforeseeable on both negligent supervision and negligent entrustment claims. Dickson v Putnam
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False Arrest Malicious Prosecution 1983 Action Probable Cause NYC
NYC granted summary judgment on false arrest, false imprisonment and malicious prosecution causes of action where there was probable cause for arrest, and it did not dissipate by time of prosecution. 1983 action dismissed where plaintiff failed to plead an official custom or policy of NYC that violated his constitutional rights. Flavin v City of New York
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Amend BP
Plaintiff’s cross motion to amend BP denied where proposed amended BP was not attached to the motion papers. Cedano v New York Racing Assn., Inc.
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