| MUST READS (5 summaries) | |||
| NOTEWORTHY | IF YOU MUST READ | ||
 NYC School Construction Authority granted summary judgment dismissing plaintiffs’ claim for fall while climbing down scaffold on school property on proof plaintiffs never served a Notice of Claim even though they had been granted leave to serve a late Notice of Claim on their original order to show cause which did not include a request to deem the attached Notice of Claim timely served nunc pro tunc. Plaintiffs’ cross motion to deem the Notice of Claim timely filed nunc pro tunc 4-years after the accident denied as leave to serve a Notice of Claim or deem it timely served cannot be granted after the 1-year and 90-day statute of limitations has expired. Sosnicki v New York City Sch. Constr. Auth. ✉ |
 Motion to reargue defendant’s motion for summary judgment dismissing Labor Law §§ 240(1), 241(6), 200 claims of plaintiffs, injured during demolition at 2-family house being converted to a 1-family house, under 1-2 family house exception, denied where new fact that managing member of LLC that owned property moved into the 1-family house after it was completed would not have changed the original decision denying summary judgment because a mortgage provision requiring defendant to occupy the premises within 60-days as its principal residence was deleted. The ‘availability of the homeowner’s exemption hinges upon the site and the purpose of the work, a test which must be employed on the basis of the homeowners’ intentions at the time of the injury.’ Solis v 340 W. 12 Realty LLC ✉ |
| Plaintiff’s motion for directed verdict during trial and appeal to set aside judgment entered on jury verdict in favor of hospital denied as Mental Hygiene Law §9.27(a) requirements for involuntary admission and treatment does not, in and of itself, establish a standard of care and psychiatrist’s technical failure to strictly comply with that section did not establish liability as a matter of law. Jury verdict in favor of hospital was based on a fair interpretation of the evidence. Hudler v Reddy ✉ |
| Petitioner’s CPLR §3102(c) motion for pre-answer discovery providently granted requiring MTA and NYCTA to provide documents, video, and EDR data regarding bus striking plaintiff as plaintiff alleged facts sufficient to state a prima facie cause of action and the request was necessary to identify prospective defendants and “determine the form or forms that the action should take.” Where “‘the facts alleged state a cause of action, the protection of a party’s affairs is no longer the primary consideration and an examination to determine the identities of the parties and what form or forms the action should take is appropriate.'” Matter of Westbrook v Metropolitan Transp. Auth. ✉ |
| Correction officer assaulted by inmate while responding to a fire inmate started in his cell denied summary judgment where penal law section for arson relied upon by plaintiff requires intentional conduct, not negligent conduct as required by his GML §205-e claim. Inmate’s cross-motion to dismiss granted where action was commenced beyond 1-year statute of limitations, plaintiff’s claims were all of intentional assault and battery, and NY does not recognize negligent assault. Brown v Turner ✉ |
| NOTEWORTHY (20 summaries) | |||
| MUST READS | IF YOU MUST READ | ||
| Plaintiff’s second Amended Complaint adding a direct claim against moving-defendant, filed 3-years and 150-days after the accident, was timely as Covid executive orders tolled all actions for 228 days between 3/20/20-11/3/20, not just those where the statute of limitations ended during that period. Baker v 40 Wall St. Holdings Corp. ✉ |
| Plaintiff’s motion for a protective order striking defendant’s Notice to Admit that screenshots of photographs on plaintiff’s social media were fair and accurate representations, without asking whether the photos were taken after plaintiff’s accident, served 6-months after Note of Issue granted as it was being used as an improper disclosure device for issues that should have been resolved during discovery and defendant failed to show unusual or unanticipated circumstances justifying post-Note of Issue discovery. Sanquintin v Cogliture ✉ |
| Motion to dismiss on statute of limitations by radiologist who only provided service to plaintiff on 1-day more than 2.5-years before the action was filed granted where plaintiff failed to show the CPLR §214-a(b) discovery rule applied with uncertified medical records. As the action was not timely commenced, the court lacked authority to grant plaintiff’s CPLR §306-b motion for an extension of time to serve the radiologist. Ciancarelli v Timmins ✉ |
| Town that had installed curve and reduced speed limit signs ahead of the curve where plaintiff lost control of his vehicle granted summary judgment, even if the curve sign was inadequate, as plaintiff could not recall how the accident occurred and his affidavit detailing his custom and practice of always paying attention and heeding road signs did not constitute “custom and practice” evidence which requires unvarying uniformity in strict compliance with a specified procedure. Plaintiff’s expert’s opinion that failure to install a sharp curve sign was a cause of the accident was speculative. Huertas v Town of Smithtown ✉ |
| Plaintiff granted summary judgment on Labor Law §200 on expert’s opinion that stand holding fire extinguisher which fell on plaintiff’s foot did not comply with applicable “codes, standards, and accepted construction site practices,” and defendant could not raise an issue in opposition because their failure to preserve the fire extinguisher entitled plaintiff to spoliation sanctions and the sanctions of preclusion and adverse inference were reasonable. Moscinski v Quadrum 38 LLC ✉ |
| Plaintiff’s internal medicine and hematology-oncology experts raised issues in opposition to internist’s prima facie showing of entitlement to summary judgment on whether internist departed from accepted practice by failing to investigate plaintiff’s drops in hemoglobin and such departures led to a delayed diagnosis and treatment of plaintiff’s multiple myeloma. Santiago v Abramovici ✉ |
| Purported building owner denied summary judgment for plaintiff’s trip and fall on stub-up pipe sticking up from stairs where it submitted only conclusory testimony of a person who was not an employee or officer of the defendant to claim it did not own, occupy, or control the property and did not show as a matter of law that the pipe was open/obvious and not inherently dangerous. Management company granted summary judgment on proof its management agreement was not so comprehensive as to displace the owner’s obligation to maintain the premises as “[a] managing agent is not in complete and exclusive control of the premises where the owner has reserved to itself a certain amount of control in the written agreement.” Owner failed to meet burden for summary judgment on its contractual and common-law against contractor. Quezada v CBRE, Inc. ✉ Comment: Other purported building owners failed to meet burden for summary judgment on conclusory testimony and affidavits of their employees claiming another LLC of which they were only a member owned the building without documents or other evidence to support that position, or establish as a matter of law that the stub-up pipe was open and obvious, even if plaintiff was aware of it, where questions remained of whether it was marked in a way to alert persons and whether it’s orange cap was in place. GC granted summary judgment on proof it did not own the property and did not supervise the work of the subcontractor that installed the stub-up pipe. Quezada v Structure Tone, Inc.. |
| A tenant is generally not responsible for conditions on the abutting sidewalk or for the acts of its independent contractors but restaurant-tenant failed to meet burden for summary judgment dismissing claim of plaintiff who tripped and fell over dark-colored hose on dark night that ran across sidewalk from contractor it hired to remove oil and clean its grease trap without proof it did not fit within the inherently dangerous exception to a tenant’s nonliability or that plaintiff’s injuries were not caused by its special use of the sidewalk. Building denied summary judgment dismissing administrative code §7-10 claim where superintendent testified he was aware the oil removal contractor would come and lay a hose across the sidewalk and did not show the last time it inspected the oil contractor’s work to show it had insufficient time to discover and correct the condition. Wendy-Geslin v Oil Doctors ✉ |
| Defendant’s motion to strike plaintiff’s errata sheet corrections attributing his fall to ‘uneven stairs’ granted where it was a material and critical change to his testimony which appeared tailored to avoid his prior testimony that he did not know what caused him to fall and his justification that he was confused about whether he was being asked about what happened at the top or bottom of the stairs was insufficient where he testified he began losing his balance at the top of the stairs and he testified through an interpreter but made no objection to the translation during the deposition. Figueroa v Relgold, LLC ✉ |
| Defendants granted summary judgment on proof police officer was responding to an emergency call about a man with a gun as he approached an intersection, crossed over the double yellow lines to avoid a stopped vehicle, and struck plaintiff’s vehicle in the intersection as the officer was entitled to the reckless standard of VTL §1104 and did not drive recklessly where he slowed down and looked both ways approaching the intersection, braked hard, and swerved to try and avoid the collision. Plaintiff’s additional affirmation submitted after defendants’ reply, disputing that the officer was responding to an emergency because defendants did not offer documentary proof of the radio call, should not have been considered where she conceded officer was responding to an emergency in her original affirmation and counter statement of facts and gave no explanation for the change of position. Whether lights and sirens were on irrelevant as not required by VTL §1004 for a police vehicle. Seo v City of New York ✉ |
| Ambulance straddling double yellow line while transporting patient with lights and sirens on was entitled to VTL §1104 reckless standard and was not reckless under either of the conflicting stories that the ambulance struck the rear of plaintiff’s vehicle that pulled over to the right and stopped or that plaintiff’s vehicle traveled alongside the ambulance after it passed and was struck by the side mirror of the ambulance. Alonso v Crest Transp. Serv., Inc. ✉ |
| Worker who fell from unsecured ladder when it suddenly moved as he was caulking and painting stairwell granted summary judgment on Labor Law §240(1) on his testimony that no safety devices were provided, which owner conceded. Plaintiff could not be sole proximate cause or recalcitrant worker where no safety devices were provided. Nunez v SY Prospect LLC ✉ |
| Plaintiff’s motion for summary judgment on Labor Law §241(6) for slip and fall on debris in passageway denied where questions remained of whether plaintiff was allowed to use the passageway or restricted to using the specific route designated for subcontractors. Defendants’ argument the area was not a passageway as defined by industrial code §23-1.7(e)(1) not considered where they did not appeal denial of their motion for summary judgment. Ragoo v Port Auth. of N.Y. & N.J. ✉ |
| Contractor that installed gutters and downspouts on house owed a duty to plaintiff to install them with ‘reasonable skill and care’ but granted summary judgment dismissing plaintiff’s claim they were negligently installed and allowed water to accumulate and freeze on the sidewalk causing his slip and fall on proof they were installed with reasonable care, plaintiff approved the work, and installer had no continuing duty to monitor the premises. Plaintiff’s expert’s opinion the gutters and downspouts were negligently installed was speculative and did not raise an issue in opposition. Borghese v Redard ✉ |
| Building owner denied summary judgment dismissing plaintiff’s claim that elevator skipped floors, crashed intp the basement, and ascended to the lobby where conflicting expert opinions left issues of fact of whether the accident happened as claimed by plaintiff. Questions also remained on the applicability of res ipsa loquitor as a jury could find an elevator does not skip floors and crash absent negligence and that the owner was in exclusive control of the elevator. Elevator maintenance company granted summary judgment dismissing Complaint on proof none of the Espinal exceptions applied as it did not launch an instrumentality of harm by its maintenance which did not place plaintiff in a worse position, plaintiff did not rely on maintenance company’s performance, its contract specifically stated the owner retained exclusive control over repairs, and it made no repairs. Owner denied summary judgment on its common law indemnity claim against maintenance company where questions remained of owner’s own negligence for failure to upgrade the elevator despite tenant complaints, maintenance company’s proposals, and building code violations. Ford v Campus Realty LLC ✉ |
| Outstanding discovery did not require denial of plaintiff’s motion for summary judgment on Labor Law §§ 241(6), 200 but plaintiff denied summary judgment where questions remained of whether area where he fell was a passageway as defined by industrial code §23-1.7(e)(1) and whether defendants had notice of the condition that caused him to fall for §200 and common law negligence claims. Merlo v LCOR 55 Bank St. LLC ✉ |
| Abutting landowner granted summary judgment dismissing plaintiffs’ claim for trip and fall on sidewalk on proof his property fit within the 1-2 family exception to administrative code §7-210 and he did not create the uneven sidewalk condition or cause it through special use. Codefendants’ claims plaintiff rented space within the building to others was speculative and NYC’s claim issues remained on the number of units in the property was improperly raised for the first time on appeal. Giuntini v City of New York ✉ |
| Passenger in the vehicle rear-ended by defendant-driver granted summary judgment against that vehicle owner/driver on liability on proof passenger’s vehicle was stopped for 20-30 seconds and affirmative defense of comparative fault dismissed as she was an innocent passenger. Driver of vehicle with passenger denied summary judgment on liability and dismissal of counterclaims against her where questions remained of whether she pulled over and stopped at a permissible location to discharge passengers. Driver that rear-ended plaintiffs’ vehicle denied summary judgment on liability where his affidavit that large van in front of him suddenly crossed over double yellow lines to go around vehicle he rear-ended, giving him insufficient time to stop, failed to show he was faced with an emergency situation not of his own making. Burton v Virk ✉ |
| Plaintiff granted summary judgment on her affidavit that she was stopped at red light when struck in the rear by defendants’ vehicle but denied summary judgment dismissing comparative fault defense where defendant-driver’s affidavit that he was ‘not fully responsible’ because light turned green, plaintiff started to move forward, and suddenly stopped raised an issue on comparative fault. Martin v Copado-Esquivel ✉ |
| Town’s motion to dismiss plaintiffs’ claims for trip and fall on sidewalk, properly converted to a motion for summary judgment, granted on proof it searched its records and found no prior notice of the defect as required by its ordinance. Discepolo v County of Nassau ✉ |
| IF YOU MUST READ (1 summaries) | |||
| MUST READS | NOTEWORTHY | ||
| Coop’s motion to reargue motion for summary judgment providently granted dismissing action for negligence and nuisance where plaintiff failed to provide evidence that her medical conditions and property damage were caused by any condition in her apartment. The Court does not give the details of the proofs. Schwartz v 170 W. End Owners Corp. ✉ |