April 4, 2023 | Vol. 359

(4 summaries)

Malpractice   Law of the Case   Untimely   Accepted Practice   Causation   Reargument   Experts  

Second Department
Lower court providently granted motion to reargue defendants’ motion for summary judgment and adhered to its original decision denying them summary judgment finding that previous judge’s order denying plaintiff’s motion to adjourn return date and accept her opposition filed 1-week late did not bar deciding judge from considering her opposition as it was not law of the case. Order denying extension was akin to a “case management” decision and not a determination on the merits necessary for law of the case.

Plaintiff’s experts’ affirmations raised issues of whether defendants departed from accepted practice by not ordering additional diagnostic testing or an infectious disease consultation in opposition to defendants’ prima facie showing of entitlement to summary judgment. Defendants failed to meet burden of showing alleged malpractice was not a cause of plaintiff’s injuries. Sunshine v Berger    

Default Judgment   Admission   Hearing   Pain/Suffering  

Second Department
Lower court erred in dismissing case after inquest finding plaintiff failed to show an accident occurred or that she suffered an injury caused by defendants as defendants on default admitted “all traversable allegations in the complaint, including the basic allegation of liability” and the only outstanding issue was damages. Case remanded for new inquest on damages. Youngja Lee v Hong Kong Supermarket    

MVA   Attorney Fees   Workers Comp   Settlement   Lien   Premature Motion  

First Department
Attorney for plaintiff in MVA case not entitled to charging lien of proposed settlement that would have given attorney 1/3 of policy tender and WC carrier the remainder for its WC lien which was rejected by the client as attorney fees, plaintiff’s, and WC carrier’s portions “shall be equitably apportioned by the court” (WCL §29(1)). The attorney submitted no proof of what work he performed or how it resulted in the amount to be recovered.

WC carrier not precluded from asserting its lien where the proposed settlement was rejected and it intervened to protect its lien by pursuing the claim directly against the defendant. Galicia v Asrar    

Products Liab   Motion to Dismiss   Collateral Estoppel   Personal Juridiction  

First Department
Motion to dismiss by UK companies that manufactured the coupler on excavator that injured plaintiff granted where First Department previously dismissed a third-party indemnity claim against them in a separate action, finding no general jurisdiction (incorporated and principal place of business in NY) or minimal contacts, necessary for specific jurisdiction. The issue was barred by collateral estoppel. Cruz v Miller UK Ltd.    

(15 summaries)

Governmental Function   Special Duty  

Second Department
County granted summary judgment dismissing claim of injured-plaintiff who was handcuffed by police officer to help EMS bring him to the hospital while he was having a seizure as both the police officer and EMS were engaged in the governmental function of providing health services and plaintiffs failed to allege facts and circumstances from which a special duty could be inferred. Canberg v County of Nassau    

MVA   Pedestrian   Sole Cause   There to be Seen  

Second Department
Defendant met burden for summary judgment on proof plaintiff was sole cause of the accident by walking into traffic outside of a crosswalk (VTL §1152(a)) but plaintiff raised an issue in opposition on claim defendant failed to avoid the accident by seeing what was there to be seen (VTL §1146(a)). Davis v Khalil    

Malpractice   Wrongful Death   Amend Complaint   Statute of Limitations   Raised For First Time  

Second Department
Plaintiff’s motion to add doctor who discharged decedent from the hospital in place of “John Doe,” brought 5-years and 7-months after wrongful death statute of limitations and 5-years and 2-months after malpractice statute of limitations, denied where plaintiff did not make diligent efforts under the relation-back doctrine to identify the “Jane Doe” before the expiration of the statutes of limitations.

Request to extend time for service on CPLR §306-b denied where raised for the first time on appeal. Estate of Eric Stengel v Good Samaritan Hosp.    

Labor Law §240   Ladder   Sole Cause   Comparative Fault   Safety Devices  

First Department
Plaintiff granted summary judgment on Labor Law §240(1) on his testimony unsecured ladder he was descending from slid and collapsed under him. Building owner and GC failed to raise issue on sole proximate cause where plaintiff did not set up the ladder and any failure to check its locking mechanism would at most be comparative fault. Not asking coworkers to hold the ladder could not be sole cause as workers are not §240 safety devices. Fact plaintiff unhooked his harness before descending was irrelevant without proof of available anchorage points. Melendez v 1595 Broadway LLC    

MVA   Motion to Dismiss   Res Judicata  

Second Department
Van owner’s motion to dismiss claim van hit plaintiff while he was riding his electric skateboard on ground action was barred by res judication from grant of declaratory judgment on default in separate action against the plaintiff and van owner finding the accident “did not arise from the use or operation” of the van” denied as that decision was not “between” the van owner and plaintiff who were both defendants in the declaratory judgment action and the van owner did not claim privity with the carrier. Rosa v Doe    

Premises Liab   Labor Law §200   Labor Law §240   Control   Create Condition   Notice  

First Department
Construction company denied summary judgment dismissing Labor Law §200 and negligence claims of cleaner who tripped on mis-leveled Masonite boards because claims were based on a premises defect created by their employees not the means and methods of plaintiff’s work regardless of who was supervising plaintiff at the time and §200 is not limited to construction workers. Labor Law §241(6) claims dismissed as plaintiff was not a protected worker under §241.

Owner denied summary judgment dismissing Labor Law §200 and negligence claims where its manager’s daily inspections of the area left questions of whether it had constructive notice of the mis-leveled boards. Balbuena v 395 Hudson N.Y., LLC    

Labor Law §200   Labor Law §241   Control   Industrial Code  

Second Department
GC granted summary judgment dismissing Labor Law §200 and negligence claims of construction worker struck by falling piece of wood during a house construction on proof it did not control the means and methods of plaintiff’s work but only exercised general supervision of the worksite. Defendants granted summary judgment dismissing Labor Law §241(6) claims based on industrial code §§ 23-1.7(a)(1)(overhead hazards), 23-3.3(b)(3)(wall precautions), and 23-3.3(c)(demolition inspections) on proof the worksite was not a place “normally exposed to falling material or objects” and plaintiff’s alleged injury was caused by the demolition work, not any structural instability. GC denied summary judgment dismissing §241 claim based on industrial code §23-1.8(c)(1)(head protection) without proof it was not a ‘hard hat’ job and plaintiff’s injury was not caused by failing to wear a hard hat. Reyes v Sligo Constr. Corp.    

MVA   Causation  

Second Department
Owner of parked car struck by plaintiff’s vehicle after it collided with a co-defendant’s vehicle granted summary judgment on proof she was not in the car at the time of the collision, plaintiff admitted the collision with the other vehicle caused his vehicle to collide with moving-defendant’s vehicle, and even if moving-defendant’s vehicle violated a VTL provision, there was no proof the violation was a cause of the accident. Reeves v Wilson    

Premises Liab   Law of the Case   Causation   Note of Issue   Create Condition   Notice   Building Code   Amend Complaint   Prejudice  

First Department
Landlord’s second motion for summary judgment to dismiss claim that it failed to repair heating system and allowed tenants to make fires for heat denied as duplicative where court “raised and squarely addressed” issue of what caused the fire on the initial motion, its finding of “no evidence to establish what caused the fire” in denying plaintiffs’ initial cross-motion for summary judgment was not law of the case, defendant could not meet its burden by pointing to gaps in plaintiffs’ proof, and testimony of a tenant taken after the initial motion raised issues of the landlord’s negligence.

In any event, landlord failed to show it maintained the building in a reasonably safe condition, complied with applicable building codes, did not create or have notice of a dangerous condition, or that plaintiff’s apartment had a working smoke detector when first rented.

Plaintiffs’ motion to amend BP to plead additional statutory violations providently granted before Note of Issue as there was no prejudice or surprise to defendants and the amendments were not devoid of merit. Miah v Pipe Dreams Realty V Corp.    

Premises Liab   Dram Shop   Notice   Survelliance Video   Spoliation  

Second Department
Wedding venue denied summary judgment dismissing negligence claim where it had notice that a wedding attendee spilled a drink on the dance floor and failed to show it either remedied the condition or did not have sufficient time to remedy the condition before plaintiff’s fall. Defendant granted summary judgment dismissing dramshop claim on proof it did not serve any visibly intoxicated attendees.

Plaintiff met burden of showing venue had duty to preserve event video where defendant immediately documented and investigated the incident and plaintiff’s counsel requested the venue’s insurance information within a few days. Proof venue negligently failed to preserve the video entitled plaintiff to an adverse inference at trial. Franco v Half Moon Riv. Club, LLC    

Negligent Supervision   Causation   Notice   Foreseeability  

Second Department
School district, teacher, and aide granted summary judgment dismissing claim of first grader who swallowed a bracelet on a dare from another student where all parties agreed the child had no history of swallowing non-food items and the incident happened within seconds, establishing that no degree of supervision could have prevented the incident. Wilder v City of Long Beach    

Premises Liab   Causation   Control  

First Department
Building defendants granted summary judgment where stack of plywood sheets in container in their parking lot fell on plaintiff as he was unloading them to be used on a movie set in another building as claims that the plywood was negligently stacked and there were insufficient workers to unload it went solely to the means and methods of the work which the building defendants did not control, not any premises defect. Fundus v Stop & Shop Supermarket Co. LLC    

Premises Liab   Snow/Ice   Storm in Progress   § 7-210   Indemnity  

First Department
Tenant granted summary judgment on proof plaintiff slipped on sidewalk outside its restaurant during a storm in progress and its repeatedly clearing snow during the storm even though it had no duty to do so did not raise an issue where building owner which opposed the motion failed to show the tenant negligently exacerbated the icy sidewalk condition. Opinion of owner’s expert that tenant’s failure to salt the sidewalk exacerbated the condition was speculative and contradicted by tenant’s manager’s testimony that their employees salted the sidewalk every time they shoveled. Tenant had no responsibility for the slope of the sidewalk under the lease which was solely the owner’s responsibility under administrative code §7-210 and the lease.

Owner denied summary judgment against tenant for contractual indemnity where lease provision violated the GOL §5-321 prohibition on indemnifying a party for their own negligence. Since owner had its own insurance, it was only entitled to out-of-pocket expenses for tenant’s failure to procure insurance. Carson v JAD Realty LLC    

Serious Injury   Causation   ROM   Preexisting   Degenerative   BP   Experts  

Second Department
Defendants failed to meet burden for summary judgment on serious injury where their experts found significant ROM limitations to plaintiff’s lumbar spine and did not address plaintiff’s BP allegations of exacerbation of preexisting injuries on issue of causation. Lower court improperly dismissed claim of serious injury to heart where question of fact remained on serious injury for lumbar injury. Detoma v Dobson    

MVA   Turning Vehicle   Question of Fact  

Second Department
Plaintiff failed to meet burden for summary judgment where testimony of driver making a left hand turn and driver of vehicle going through intersection from opposite direction provided conflicting versions of how accident occurred. After defendants’ vehicles collided, one hit plaintiff’s vehicle which was stopped at a red light. Detoma v Dobson    

(1 summaries)

First Department
Carrier granted permanent stay of UM arbitration after framed issue hearing where court credited taxi driver’s testimony his taxi over heated and an unidentified vehicle pushed him to the side of the road establishing there was no rearend collision. Driver’s explanation was not physically impossible or contrary to common experience to render it incredible. Plaintiff failed to raise an issue in opposition without submitting any documentary evidence such as a police report or medical records. Matter of American Tr. Ins. Co. v Lear    

About Matt McMahon

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