April 7, 2020 | Vol. 205

(3 summaries)

Building Security   Assault   3rd Party Contractor   Espinal   Foreseeability   Intervening Cause   Survelliance Video   Admissibility   Raised For First Time  

First Department
Security company whose contract when read with health facility’s request for proposal and defendant’s proposal, permissible where contract ambiguous, left questions of whether security company wholly displaced facility’s responsibility to make workplace safe under Espinal exception and could be found to owe plaintiff a duty as third-party beneficiary of contract and questions remained on whether plaintiff relied upon specific representations by defendant’s employees that they would immediately respond to her calls for assistance and call 911, whether assault was foreseeable where contract and proposals clearly intended to provide security from mentally disabled patients. Surveillance video defendants submitted to show they arrived 1-minute after call was inadmissible where submitted for first time in reply, plaintiff did not have opportunity to respond, and it was not properly authenticated. Kuti v Sera Sec. Servs.

Premises Liab   Train   Dangerous Condition  

First Department
Relying solely on plaintiff’s allegations and EBT testimony NYCTA failed to establish that crowd on platform where plaintiff fell onto tracks after being bumped while in only spot she could maneuver was not ‘so large and unmanaged that a user of the platform was restricted in [her] free movements or was unable to find a safe standing place.’ Bailey v New York City Tr. Auth.

Governmental Function   Special Duty   Notice of Claim   Raised For First Time   NYC  

First Department
NYC granted summary judgment on claim of failing to timely provide ambulance where plaintiff did not allege special duty or facts sufficient to establish a special duty in the Notice of Claim or Complaint. Record also showed there was no contact between defendant and decedent or immediate family member and no better alternative to waiting for ambulance to arrive. Perez v City of New York

(6 summaries)

Labor Law §240   Labor Law §241   Labor Law §200   Industrial Code   Create Condition   Notice   Control   Agent   Sole Cause  

First Department
Labor Law §240(1) does not apply where worker steps on pile of unsecured pipes on construction site floor. Defendant denied summary judgment on Labor Law §200 claim as injury was caused by defective condition on premises, not means and manner of work, and owner failed to show it did not have notice of condition, contractor failed to show it did not create condition by directing placement of pipes and failing to coordinate work, and subcontractors failed to show which one was using the pipes. Subcontractors not liable under Labor Law §241(6) as they were not statutory agents without proof they controlled work. Plaintiff raised issues of fact on industrial code §§ 23-1.7(e)(1) (tripping hazard), 23-1.7(e)(2) (scattered tools/materials), and 23-2.1(a)(1)(safe storage), but 23-2.1(b) insufficiently specific for §241. Conflicting evidence regarding plaintiff’s disregard of limitations of walking in restricted area precluded summary judgment on sole proximate cause. Armental v 401 Park Ave. S. Assoc., LLC

Note of Issue   Discovery   Untimely  

First Department
Plaintiff’s Certificate of Readiness statement that all discovery complete not a misstatement where all demands were responded to and objections are a proper response. Motion to vacate Note of Issue for further discovery denied as defendants took no action to enforce request for tax authorizations until after Note of Issue filed, waited until just before Note of Issue to request Facebook Data even though they knew of need for it after plaintiff’s EBT much earlier, failed to show why they were entitled to information sought and that tax information was not available from another source such as employment records. Claim that they were entitled to further EBT of 3rd party defendant whose witness did not have knowledge rejected for delay and found superfluous where defendants had moved for summary judgment against it on indemnity. Aikanat v Spruce Assoc., L.P.

Construction Liab.   3rd Party Contractor   Espinal   Create Condition  

First Department
Sidewalk shed contractor denied summary judgment where shed collapsed on plaintiff’s-decedent 5-years after it was constructed as unsigned agreement with NYC was insufficient to establish scope of its obligations including whether shed was intended to be temporary or permanent, and it failed to eliminate questions of whether it negligently constructed shed which could bring it under the launching a dangerous condition exception of Espinal. Melendez v City of New York

Labor Law §241   Labor Law §200   Industrial Code   Control   Create Condition  

First Department
Structure Tone granted summary judgment on Labor Law §241(6) based on industrial code §23-1.22(b)(3) where there was no proof any violation was a cause of plaintiff’s accident but denied summary judgment on Labor Law §200 on its claim that it did not control means and methods of work on evidence that it may have lent plaintiff the A-frame cart that caused his accident and defendant failed to show it did not create the condition or have notice of it and cannot make up for this deficiency by pointing to gaps in plaintiff’s proof. Nassar v Macy

MVA   Rear End   Nonnegligent Explanation   Preclusion  

First Department
Defendants, driver and owner of vehicle that struck rear of construction vehicle plaintiff was a passenger in, raised nonnegligent explanation by proof that brakes failed despite reasonable maintenance precluding summary judgment for plaintiff. Company that maintained defendants’ vehicle denied summary judgment on its fleet manager’s testimony which raised questions of proper maintenance. Plaintiff’s argument that driver/owner defendants were precluded from offering evidence rejected where subsequent court order denied maintenance company’s motion for discovery sanctions against them. Meaders v Diaz

MVA   Personal Juridiction   Service  

First Department
Plaintiff’s motion to permit substituted service on insurance company under CPLR §308(5) granted on proof that service under §§308(1), (2), or (4) was impractical and plaintiff was not required to show due diligence. Substituted service on carrier appropriate even if neither carrier nor its counsel new whereabouts of defendant. Fontanez v PV Holding Corp.

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About Matt McMahon

Civil trials and appeals since 1984
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