April 4, 2017 | Vol. 48

MUST READS
(8 summaries)

Notice of Claim   Respondeat Superior   Motion to Dismiss   False Arrest   Malicious Prosecution   1983 Action   Probable Cause   Premature Motion  

Second Deptartment

In a case alleging false arrest, malicious prosecution and §1983 violations, the Second Department declares Its unity with the Third and Fourth Departments in holding that individual tortfeasors do not need to be named in a Notice of Claim, rejecting the First Department’s rule to the contrary, based on a reading of G. Mun. L. §50-e that requires notice to the “municipality.”

Claims against the District Attorneys were dismissed as protected by absolute immunity since they were acting within their official capacity. A Notice of Claim is not a condition precedent for 1983 actions. The complainant’s identification of the plaintiffs in a photo lineup and a grand jury indictment provided probable cause which the plaintiff did not overcome.

A municipality cannot be held liable under respondeat superior without a showing that it had a policy or custom that led to a violation of plaintiff’s constitutional rights but plaintiff properly pled the existence of such a policy or custom. Dismissal of the false arrest and malicious prosecution claims was denied as plaintiff identified discovery within the defendant’s knowledge relevant to responding to the motion. Blake v City of New York


Labor Law §240   Labor Law §241   Question of Fact   Expert Aff  

Court of Appeals

The Court found questions of fact based on competing expert affidavits regarding whether the external metal staircase, deemed a safety device, that construction worker at World Trade Towers was descending when he fell due to rain provided adequate protection under Labor Law §240(1). The dissent would have affirmed summary judgment for plaintiff. Plaintiff did not cross-appeal the Appellate Division’s dismissal of his Labor Law §241(6) claim and it was not preserved for appeal. Thomas J. O


Service   Untimely  

First

While not a tort case, the Appellate Division First Department upheld denial of a motion to change venue as untimely because it was not e-filed until 2 days after the 15 day deadline even though it was served by mail on the 15th day. When parties have agreed to e-filing, service is determined on the date of e-filing, not on filing by mail. Woodward v Millbrook Ventures LLC


Wrongful Death  

First

Estate of son who killed himself after his mother was murdered by the defendant, his brother, states a cause of action against the brother for both the mother and the deceased brother’s deaths despite the fact that the defendant was found “not responsible by virtue of mental defect” in the criminal action. Question of whether the defendant brother, who remains in a psychiatric institution, can recover for his mother’s death is properly determined by the Surrogate Court. Rosen v Schwartz


Med Mal   Discovery   Renew  

Second Deptartment

In a medical malpractice action involving intraocular lenses, Plaintiff’s motion to renew his opposition to defendant’s prior motion for a protective order preventing disclosure of what defendant argued were “user reports” that the provider reasonably believed that the device caused serious injury or death, sent to the Secretary of Health and Human Services, which are protected under 21 USC § 360i(b), should have granted based on new evidence obtained at the defendant’s EBT that the reports did not show a reasonable belief that they caused serious injury or death and that the doctor did not think they were sent to the Secretary. Plaintiff showed that the new facts obtained at deposition were not reasonably available to him at the time of the original motion and based on this information, the defendant did not meet its burden of showing the need for a protective order. Borgia v Rothberg


Premises Liab   Spoliation   Negative Inference  

First

Defendant’s testimony that the building superintendent knew the surveillance videos were overwritten every 2 weeks and that he was present at the plaintiff’s accident was sufficient to establish that the tape was at least negligently destroyed, entitling the plaintiff to a negative inference charge. Macias v ASAL Realty, LLC


MVA   Spoliation   Comparative Fault  

Second Deptartment

Lower court improvidently denied plaintiff’s motion for spoliation sanction where defendant testified that he viewed a surveillance video reportedly showing the plaintiff sitting down as the car backed up and ran over her feet, that defendant had notice of the accident within two days, and that defendant destroyed the video purportedly in the ordinary course of business. The fact that there was no specific request to preserve the video did not eliminate the defendant’s obligation to preserve it, knowing that it was relevant and that there was potential litigation. Since plaintiff was still able to prove her case, striking the Answer was too harsh of a sanction. Defendant was precluded from putting forth any evidence regarding the video. Plaintiff’s conclusory affidavit regarding the accident failed to eliminate all questions of fact on her comparative fault and her motion for summary judgment was properly denied. Rokach v Taback


Assault   Battery   Security Guard   Motion to Dismiss   Res Judicata  

Second Deptartment

Plaintiff’s prior action for assault and battery from arrest by a security guard at a condominium meeting was dismissed for failure to commence within 1 year. Plaintiff’s subsequent action alleging negligence was barred by the “transactional analysis” approach to res judicata which bars any claim from the same incident which was, or could have been, raised in the original action. Moreover, New York does not recognize a cause of action for negligent assault. Johnson v City of New York

NOTEWORTHY
(18 summaries)

Premises Liab   Pothole Law   Prior Written Notice   NYC  

Second Deptartment

NYC’s motion for summary judgment for lack of prior written notice granted where plaintiff claimed prior written notice was received by the City from a Notice of Claim filed 19 years before the accident. For writing to give sufficient prior notice of a specific condition it must not be too remote in time and 19 years was too remote to give sufficient prior written notice. Gellman v Cooke


Med Mal   Accepted Practice   Causation   Expert Aff  

Second Deptartment

Defendants granted summary judgment where plaintiff’s expert failed to address pediatric defendant’s experts’ opinions that any departure from accepted practice could not be a cause of the plaintiff’s rheumatic fever because the infection causing the child’s rheumatic fever existed prior to the pediatrician’s examination of the child, failing to raise an issue of fact in response to defendant’s prima facie entitlement on causation. While an expert does not have to be a specialist in the defendant’s field, plaintiff failed to lay a foundation that her expert pediatrician was familiar with the standards of care for pediatric rheumatology, eliminating any probative value from the expert’s affirmation on the issue of departure from accepted practice. DiLorenzo v Zaso


Construction Liab.  

First

Plaintiff’s claim against pipe supplier who had dropped off pipes in designated area of construction site days before the accident was dismissed where plaintiff failed to testify that he was unable to use available lifting equipment because of the manner in which it was placed by the equipment company. Plaintiff’s claim that his slip on mud in the area where the pipes had been left was too attenuated. DiMaggio v Skanska USA Bldg., Inc.


Med Mal   Informed Consent   Directed Verdict  

Second Deptartment

Defendants properly granted directed verdict at the end of plaintiff’s case where plaintiff failed to adduce expert testimony establishing the standard of care, a departure from the standard of care, causation, and lack of informed consent involving cardiac catheterization procedures and testing. Pieter v Polin


Respondeat Superior   Espinal  

Second Deptartment

Housekeeping contractor granted summary judgment where housekeeping supervisor was employed by HHC which did not relinquish complete control of its employee to the contractor because it retained the right to hire/fire or discipline its employees assigned to the contractor and paid the employees’ salaries directly. Contractual obligation does not automatically give rise to a duty to third parties unless one of the Espinal exceptions, launching an instrument of harm, detrimental reliance, or displacement of the employer’s duty to manage the hospital, is met. Perkins v Crothall Healthcare, Inc.


Workers Comp Defense  

First

Although maintenance worker’s nonparty employer relinquished some control over the plaintiff to the defendant, there was no evidence that the defendant had “complete control” in order to be deemed a special employee. Nonparty employer paid the plaintiff directly, had the right to hire/fire and to assign tasks outside of his normal workday. Defendant’s motion for summary judgment denied and plaintiff’s motion for summary judgment granted. Bayona v Hertz Corp.


Premises Liab   Snow/Ice   Slip/Trip   Storm in Progress   Exacerbation  

Second Deptartment

Plaintiff overcame defendant’s showing of entitlement to summary judgment by her affidavit and a meteorologist’s affidavit showing that the ice condition on the sidewalk may have been created or exacerbated by the defendant’s snow removal efforts during the storm in progress. Dylan v CEJ Props., LLC


Labor Law §200   Labor Law §241   Industrial Code   Premature Motion  

First

Plaintiff identified specific issues of control over the work area which required further discovery to be able to respond to defendant’s motion for summary judgment on the Labor Law §200 and common-law negligence claims. Labor Law §241 (6) claims based on industrial code 23-1.7(e)(1)(passageway) were dismissed as photographs showed that the accident occurred in an area that was not a passageway and code did not apply. Solano v Skanska USA Civ. Northeast Inc.


Discovery   CPLR § 3126   Preclusion   Reasonable Excuse   Meritorious Action   Conditional Order   Hippa  

Second Deptartment

Defendants’ motion to preclude plaintiff from offering any evidence of mental health injuries granted after plaintiff did not provide a proper HIPPA authorization with mental health records checked as required by conditional order of preclusion. Upon failing to comply with conditional order, the order became absolute and could only be vacated if plaintiff showed a reasonable excuse and meritorious and action, which plaintiff failed to do. Patino v Carlyle Three, LLC


Med Mal   Accepted Practice   Causation   Expert Aff  

First

Plaintiff’s expert failed to raise an issue of fact by failing to directly address the defendants’ experts’ opinions that the plaintiff’s visual impairment was caused by her worsening condition and not by her cardiac catheterization. Plaintiff’s expert in cardiac surgery did not “profess the requisite personal knowledge” to make a determination of the cause of plaintiff’s neurological and ophthalmological injuries. Steinberg v Lenox Hill Hosp.


Premises Liab   Slip/Trip   Open/Obvious   Inherently Dangerous  

Second Deptartment

Defendant granted summary judgment where plaintiff tripped on the foot of a decorative fence as she squeezed between the fence and a planter acting as a barrier, instead of using the designated lane, to go to the supermarket’s Café counter because the condition was open and obvious and not inherently dangerous. The leg of the decorative fence was readily observable by the reasonable use of the senses and was not inherently dangerous. Plaintiff failed to show that the foot of the fence constituted a trap, was obscured, or dangerously encroached into the walkway. Gerner v Shop-Rite of Uniondale, Inc.


1983 Action   False Arrest   Malicious Prosecution   Statute of Limitations  

First

Plaintiff’s 1983 action based on false arrest dismissed for failure to bring it within 3 years of false imprisonment ended (arraignment). Claim for malicious prosecution dismissed for failure to state non-conclusory allegations of malice and lack of probable cause for the arrest or to allege that the individual defendants were following a municipal policy or custom. Cruz v City of New York


Vacate Default   Reasonable Excuse   Meritorious Defense  

Second Deptartment

Defendants motion to vacate judgment for failure to Answer granted on proof that neither the defendant nor its agent received the summons served on the Secretary of State with sufficient time to Answer, that there was no attempt to avoid service, and that it had a meritorious defense. Booso v Tausik Bros., LLC


Med Mal   Accepted Practice   Causation   Raised For First Time  

Second Deptartment

Defendant granted summary judgment in medical malpractice case on proof that they did not depart from accepted practice and, if they did, their departures were not a proximate cause of the plaintiff’s decedent’s death from their treatment for an assault. Plaintiff failed to raise an issue of fact and plaintiff’s claim that the records and depositions relied upon by defendant were not in admissible was not preserved as it was raised for the first time on appeal. Weingarten v St. Vincent’s Hosp. & Med. Ctr.


MVA   Comparative Fault  

First

Passenger’s motion for summary judgment should have been granted only to the extent of finding her free from comparative fault and otherwise denied since there were issues of fact as to which or both defendants were at fault for the intersection collision. Buffa v Carr


Premises Liab   Notice   Court of Claims  

Second Deptartment

Decision in favor of State upheld where plaintiff crashed into a downed wooden light pole on the highway. State has an obligation to maintain its roads in a reasonably safe manner but can only be found responsible where it had actual or constructive notice of a dangerous condition observable by a reasonable inspection. The rot of the wooden pole was 6-7 feet below ground and not visible on reasonable inspection. Plaintiff’s proof that someone observed rot on poles along the highway was not sufficient as general awareness of a recurring condition is not sufficient to establish constructive notice of the specific condition. Jeffries v State of New York


MVA   Bus   Serious Injury   BP  

Second Deptartment

Defendant failed to meet its initial burden for summary judgment on serious injury grounds by failing to put forth competent medical proof regarding plaintiff’s 90/180 day claims in the BP. Defendants failed to show that plaintiff was able to perform all or substantially all of her usual and customary activities. Lara v Nelson


Default Judgment   Compel Acceptance   Prejudice  

Second Deptartment

Plaintiff’s motion for default judgment denied and defendants’ cross motion to compel acceptance of their Answer granted where the delay was minimal, there was no prejudice to the plaintiff or willfulness by the defendants, and is consistent with the public policy of resolving cases on the merits. Koren v Albert Warehouse & Son, Inc.

IF YOU MUST READ
(1 summaries)

Premises Liab   Notice  

Second Deptartment

Defendant denied summary judgment where it failed to exclude triable issues of actual and constructive notice, failing to meet its prima facie burden of proof. The court does not give the details of the proofs. Barretta v Glen Cove Prop., LLC

About Matt McMahon

Civil trials and appeals since 1984

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