Medical Indemnity Fund
 Department of Finance’s (DFS) finding of infant’s ineligibility for medical indemnity fund based on allocation of malpractice during prenatal care and birth in Connecticut was a question of law for which DFS’s findings are not entitled to deference. Statute requires “injury” not necessarily malpractice takes place during the course of labor, delivery, or resuscitation and infant’s injury occurred during birthing process entitling him to enrollment in fund. Fact that he was born in Connecticut does not make him ineligible because malpractice and settlement took place in New York with New York defendants whose insurance costs are alleviated by fund. The matter did not have to be referred back to DFS. Matter of B.L. v Lawsky
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Vacate Default Reasonable Excuse
 Plaintiff’s attorney failed to offer reasonable excuse for refusing to go forward with trial after numerous adjournments and accommodations offered by the court, including disbanding selected jury, where affirmation stating that expert psychologist was unavailable and accompanying affidavit by psychologist did not state that she was unable to testify on date suggested by court, on other dates, or even that she was asked if she was available on those dates. Case dismissed under 22 NYCRR §202.27(b). Melendez v Stack
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Discovery Subpoena Strike Answer
Deceased defendant’s family granted protective order quashing subpoena to provide decedent’s Alzheimer’s records because deceased-defendant did not affirmatively put medical condition in issue by letter from social worker stating he could not appear for deposition because of Alzheimer’s where he did not attempt to excuse fault or assert counterclaim based on condition. Plaintiff delayed in seeking discovery until years after putting case on the trial calendar several times, waving decedent-defendant’s deposition, and waiting until after defendant died without moving for decedent’s deposition or discovery requested by trial subpoena. Plaintiffs failed to show willful/contumacious action by defendants and their motion to strike defendant’s answer was denied. Peterson v Estate of John Rozansky
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Labor Law §240 Labor Law §241 Labor Law §200 Industrial Code Control
Crane contractor and architecture firm denied summary judgment on Labor Law §200 and negligence where they had ability to control work and stop work for safety concerns. Architecture firm’s broad responsibility for hiring contractors, supervising work. and ability to stop work for safety concerns made it contractor and crane contractor was owner agent as the “eyes, ears, and voice” of DASNY under Labor Law §§240(1) & 241(6).
Plaintiff granted summary judgment where he was lifted by crane along with 2500 lb. bag of soil being hoisted, presenting gravity risk covered by §240(1), and under §241(6) based on industrial code §23-8.1(f)(5)(mobile crane operation while person is on load or hook). Valdez v Turner Constr. Co.
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Building Security Notice Duty Causation Intervening Cause
NYCHA granted summary judgment on ground it had no notice of broken lock that assailant who shot plaintiff gained access from on testimony of superintendent and caretakers that lock was working that morning and for at least a week before shooting. Assailant’s testimony that he frequently visited building and had family and friends living there established he was not an intruder versus a guest and fact that it was a targeted assault broke chain of causation with NYCHA’s negligence. Roldan v New York City Hous. Auth.
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Ins. L. § 3420(a)(2) Notice Untimely
Carrier’s motion to dismiss plaintiff’s Ins. Law §3420 claim to recover unsatisfied judgment entered on default granted and plaintiff’s cross motion for summary judgment denied where carrier timely disclaimed after receiving first notice of accident and lawsuit from plaintiff’s attorney 4-years after action commenced. Prior notices by plaintiff’s attorney were sent to the wrong address. Lipnitsky v American Tr. Ins. Co.
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Venue
Venue changed from Bronx to Nassau County based on choice of venue in nursing home admission agreement that did not violate public policy, DOH regulations, or CPLR §501 and there was no fraud or overreaching in executing agreement. Martin v Workmen
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MVA Hearsay Admissibility
Affidavit of general counsel for nonparty freight distributor failed to establish it, not named defendant freight distributor, responsible for loading truck plaintiff claimed was overloaded causing it to break apart and strike concrete divider. Counsel did not work for named defendant and had no personal knowledge of its activities, evident by statement that knowledge came from being “advised” by unnamed person. Distribution agreement submitted on motion was not authenticated. Case remanded for determination on serious injury. Clarke v American Truck & Trailer, Inc.
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Elevator 3rd Party Contractor Notice Workers Comp Estoppel
Defendant granted partial summary judgment on claim that Chiari malformation was aggravated by accident where finding of no causation by Worker’s Compensation Board entitled to collateral estoppel as plaintiff had full and fair opportunity to litigate issue.
Elevator maintenance company which may be liable for failure to correct conditions it knew of or should have discovered denied summary judgment on proof of multiple prior malfunctions, including the day before accident, failing to show elevator was not defective and it didn’t know or should have discovered defect. Roserie v Alexander
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Labor Law §240 Sole Cause Recalcitrant Worker
Summary judgment for plaintiff on proof scaffold planks moved when he stepped on them causing him to fall. If failure of safety device is a cause of fall, plaintiff’s own negligence cannot be sole proximate cause or recalcitrant worker. Mora v Wythe & Kent Realty LLC
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Premises Liab Slip/Trip De Minimus Subsequent Repairs Building Code NYC Notice Expert Aff Prejudice
School and janitorial service made out entitlement to summary judgment on proof that measurement taken when missing tile replaced the next day showed a 1/8″ difference within 1968 Building Code of the City of New York Reference Standard RS 4-6 § 4.5.2 allowance of 1/4″. Coworker’s affidavit that it was 1/4″ was still within allowable limits and claims of rough surface contradicted plaintiff’s testimony where she only claimed height differential caused fall. Expert’s affidavit without CPLR 2309(c) certificate of authenticity is mere irregularity and plaintiff did not show prejudice. Charnov v New York City Bd. of Educ.
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False Arrest False Imprisonment Motion to Dismiss Res Judicata Estoppel
NYC Marshall supervising towing of car for Scofflaw violations denied dismissal on res judicata and collateral estoppel where federal court refused to accept jurisdiction over state claims and only dismissed 1983 action making res judicata inapplicable and establishing lack of identity of issues for collateral estoppel. Allegations that Marshall conspired with police and tow truck drivers to assault plaintiff and falsely arrest him were sufficient to state a cause of action and defendant failed to show alleged fact was not a fact at all or that there was no significant dispute. Neuman v Echevarria
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Labor Law §240 Safety Devices Sole Cause Premature Motion Note of Issue
Plaintiff performing pointing work who requested harnesses and tie off points on day of and day before accident granted summary judgment on Labor Law §240(1). Where violation of the statute is a cause of the accident, plaintiff cannot be sole cause. Motion not premature where defendant failed to take nonparty depositions before Note of Issue or move to strike Note of Issue. Espinoza v Fowler-Daley Owners, Inc.
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Labor Law §240
Worker who unloaded 2-ton steel plate at Con Ed construction site to cover electrical excavation was covered under Labor Law §240(1) and granted summary judgment. Argument plates being unloaded for “storage” rejected as work in preparation for construction and other Labor Law §240 activities at time of accident were covered under that section. Saquicaray v Consolidated Edison Co. of N.Y., Inc.
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Notice of Claim Amend Notice of Claim Sanctions CPLR § 3126 Willful/Contumacious
Bus driver and NYCTA granted summary judgment where amended Notice of Claim did not contain theory that bus driver negligently allowed plaintiff to alight from bus into dangerous area and lower court providently denied motion to amend Notice of Claim where amendment substantially changed or added new theory. Rojas v Hazzard
Comment: Plaintiff’s motion for sanctions for frivolous action pursuant to 22 NYCRR 130.-1.1 denied where plaintiff failed to show NYC engaged in frivolous conduct and for sanctions pursuant to CPLR §3126 denied where plaintiff failed to show NYC willfully or contumaciously disobeyed any orders or acted in bad faith. Rojas v Hazzard. |
Premises Liab MVA Motion to Dismiss Duty Foreseeability
Plaintiff failed to state cause of action against property owner where car jumped curb and struck plaintiff-pedestrian. Property defendants owed no duty to protect against unforeseeable risk that a car would jump curb. Britton v Riley-Fann
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Premises Liab Slip/Trip Snow/Ice Sidewalk Storm in Progress Notice
Plaintiff raised question of fact by her EBT and 50-H testimony and witness affidavit on whether ice condition she slipped on existed prior to storm in progress and whether NYCHA had notice of it. Isabel v New York City Hous. Auth.
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Labor Law §240 Ladder Scaffold Safety Devices Indemnity
Plaintiff’s lack of memory of unwitnessed fall that could have been from ladder or scaffold made out prima facie case on Labor Law §240(1) where his last memory was standing near top of ladder reaching for duct he could barely reach and scaffold had no side rails, proving that safety devices were inadequate to protect him from falling. Precise manner in which he fell was irrelevant.
Tenant and building owner entitled to contractual indemnity against contractor even though tenant not contractor hired subcontractor, where contractor supervised subcontractor’s work. Building owner established contractor intended to be bound by tenant’s contractual indemnity agreement even though it was not signed and was entitled to reasonable defense costs. Ajche v Park Ave. Plaza Owner, LLC
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Premises Liab Slip/Trip Snow/Ice Create Condition Notice Last Inspection
Defendant failed to meet burden of eliminating questions of fact on constructive notice where superintendent’s testimony showed only general practice of traversing breezeway where plaintiff fell and testimony that log from day before meant it snowed, they started snow removal, and made 2-passes of salt but superintendent was unable to recall if they removed snow or applied salt on breezeway on day of the accident. Ahmetaj v Mountainview Condominium
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Premises Liab Slip/Trip Sidewalk § 7-210 Control
Adjoining landowner owed no duty to pedestrian who tripped in tree well absent proof it controlled construction site or made special use of sidewalk as tree well is not part of the “sidewalk.” Schwartz v City of New York
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Slip/Trip Pothole Law Vacate Default Reasonable Excuse Meritorious Action NYC
Plaintiff showed reasonable excuse for failing to timely oppose NYC’s motion for summary judgment by fact that opposition was submitted only 6-days late and 8-days before return date and that late submission was not willful. Plaintiff, however, did not show meritorious action where she did not submit proof that NYC had prior written notice of the defect in the street. Narvaez v City of New York
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Labor Law §200 Labor Law §241 Industrial Code Control
Defendants granted summary judgment on Labor Law §200 and negligence on plaintiff’s testimony that he was directed by third-party defendant, never received instructions from defendants, or even saw them on the worksite. They, therefore, did not control the means and methods of work necessary for liability. Defendants also granted summary judgment on Labor Law §241(6) based on industrial code §23-1.7(d) & (e) (slipping & tripping hazards) on proof they did not apply where plaintiff testified, he did not lose his footing. Weaver v Gotham Constr. Co. LLC
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Vacate Default CPLR § 3126 Preclusion Reasonable Excuse Meritorious Action
Target granted summary judgment on plaintiff’s failure to timely and fully comply with conditional order of preclusion which became absolute upon plaintiff’s failure and plaintiff failed to offer any excuse for failure, relying on the partial discovery provided, or to show a meritorious action. Torres v Dayton Hudson Corp.
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Venue Untimely
Defendants’ motion to move venue from Kings to Nassau County made after Answer untimely because demand to change venue was not served before or with Answer and discretionary change of venue denied where defendant failed to show when it first became aware of possibility that plaintiff did not live in Kings County when action commenced. Defendant also failed to show material witnesses would be inconvenienced if venue not changed. Saint-Louis v Esposito
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Premises Liab Open/Obvious Inherently Dangerous
Empire Casino granted summary judgment where plaintiff fell when she attempted to sit at slot machine without seat which was open/obvious and not inherently dangerous evidenced by fact that plaintiff testified she saw slot machines missing seats and had sat next to this one for 20-25 minutes before her fall. Claims that there was another similar accident and that slot machines are distracting did not make it open/obvious or inherently dangerous. Vasquez v Yonkers Racing Corp.
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Premises Liab Slip/Trip Stairs Unknown Cause
Landlord granted summary judgment on plaintiff’s testimony that she did not see water falling from ceiling and could not identify source of water on stair that caused her to fall and tenant’s testimony that ceiling leak was not in area of fall. Landlord entitled to contractual indemnity against tenant. Bilska v Truszkowski
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Premises Liab Slip/Trip Unknown Cause Last Inspection 3rd Party Contractor Raised For First Time
Condominium management company denied summary judgment where plaintiff’s decedent adequately identified cause of fall at deposition and defendant failed to eliminate issues of constructive notice by submitting evidence of only general inspection policies and not last time area was inspected. Snow removal contractor’s claim it owed no duty to plaintiff’s decedent as a third-party contractor raised for the first time in reply was not considered. Butts v SJF, LLC
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Default Judgment Compel Acceptance Reasonable Excuse Meritorious Defense
As with vacating a default judgment, a motion to compel acceptance of an Answer requires reasonable excuse and meritorious defense. Defendants’ claim that 6-month delay in serving Answer was caused by insurance company’s conduct was not a reasonable excuse where defendant failed to explain 4-month delay in moving to compel acceptance after late Answer was rejected. Claim of office fire raised only in attorney affirmation in opposition was unsupported by competent evidence. Sargsyan v Kaieteur Constr., Inc.
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Premises Liab Create Condition Notice Recurring Condition
DOE granted summary judgment where teacher slipped on squash dropped by student on proof that it neither created the condition nor had notice of. Plaintiff failed to show that DOE routinely failed to clean food dropped by students necessary for recurring condition. Bautista v New York City Dept. of Educ.
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Premises Liab Prior Written Notice Renew
County entitled to summary judgment on proof it did not have prior written notice of defect plaintiff tripped on outside courthouse and prior written notice law applied over County’s duty to maintain premises in the safe condition. Renewal proper where County attorney did not receive opposition papers sent to prior County attorney. Gebhardt v County of Suffolk
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Labor Law §200 Control Causation
Defendants granted summary judgment where plaintiff could not identify the person, or who he worked for, who he claimed told him he had to take off his boots causing him to slip on steps solely because he was wearing socks not boots. Defendants establish they did not direct or control his work and plaintiff’s testimony that he called his employer to complain about being asked to remove boots and was told if he didn’t remove them he would be fired proved that he was directed by his employer not defendants. Antonio v West 70th Owners Corp.
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MVA Uninsured Stay Arb
UM carrier granted temporary stay of arbitration to conduct framed issue hearing on whether accident was “staged” by passenger in insured’s taxi and persons in other uninsured car and not covered under policy based on driver’s affidavit. Injured passenger’s opposition raised issues of fact to be determined at hearing. Matter of Global Liberty Ins. Co. v Eveillard
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Serious Injury Causation Expert Aff Speculation
Defendants entitled to summary judgment on serious injury on affirmed medical reports showing normal CT scans, full ROM and no evidence of traumatic injury. Radiology reports showing herniated and bulging discs submitted in opposition did not establish extent and duration of injury and neurologist’s opinion that minor limitation of ROM in 1-plane was result of accident was insufficient to show significant or permanent limitation and was speculative since neurologist did not address subsequent accident. Plaintiff offered no medical proof of 90/180-day claim. Mendoza v L. Two Go, Inc.
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Discovery Errata Sheet
Critical, substantive corrections on plaintiff’s errata sheet that altered her testimony without adequate explanation stricken but those non-critical changes with adequate explanations allowed to stand. Jackson v Adfia Realty, LLC
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MVA Rear End Nonnegligent Explanation Causation
Defendants’ truck entering parkway 1-exit before allowed by permit merely furnished condition for accident and not proximate cause where plaintiffs claimed their decedent did not see truck before hitting it in the rear because of sun glare, which would not be a nonnegligent explanation. Summary judgment for defendants. Battocchio v Paolino
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Assault Untimely
Defendants, members of LLC that owned nightclub where plaintiff was assaulted, granted summary judgment years after time for summary judgment as agreed by the parties were to be made where court had granted multiple stays and denied defendant-members’ prior motions for summary judgment with leave to renew. Defendant members were not personally involved in the incident and could not be personally liable for acting in their capacities as members of LLC. Turane v MGN, LLC
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Vacate Default Note of Issue Reasonable Excuse Renew
Plaintiff’s renewal of motion to restore case to trial calendar after being marked off for failure to appear, originally denied for failure to submit proof of substitution of attorney, granted as proof of substitution of attorney was a new fact and plaintiff showed reasonable excuse for not appearing due to medical circumstances and defendant was not prejudiced by delay. The mere passage of time is not prejudice. Antwine v Shervin Mgt., LLC
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Dogbite Vicious Propensity Notice
Dog owner granted summary judgment on proof that her dog did not have vicious propensities and that she didn’t have notice of vicious propensities where dog bit UPS delivery person. Deloach v Nicholson
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Legal Mal Service CPLR §306-b
Plaintiff’s cross-motion to extend time to serve denied where 2-defective attempts at service did not allow extension for “good cause,” and plaintiff failed to show entitlement to extension in interest of justice. Defendants’ motion to dismiss granted. Gengo v Storms
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Assault False Arrest Malicious Prosecution Probable Cause
False arrest claims dismissed where there is probable cause for arrest based on finding drug paraphernalia within plaintiff’s “lungable” reach during valid search warrant search and malicious prosecution case dismissed where there was no evidence probable cause dissipated by arraignment or that there was actual malice. Assault and battery claims dismissed where handcuffing was reasonable as a matter of law. Rogers v City of New York
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Serious Injury Degenerative Expert Aff
Plaintiff’s radiologist’s opinion did not address defendant’s radiologist’s opinion that MRI showed spinal injuries were degenerative failing to raise an issue of fact in opposition to defendant’s prima facie entitlement to summary judgment on serious injury. Campanile v Miller
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