August 10, 2021 | Vol. 274

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Negligent Supervision   Assault   Motion to Dismiss   Independant Contractor   Respondeat Superior   Control   Premature Motion  

Second Department
School district’s pre-Answer motion to dismiss 14-year-old special needs student’s claim where his arm was twisted by home behavioral therapist, causing him to fall, based on written agreement stating therapy company and its subcontractors were independent contractors solely responsible for services provided denied as such provision is a factor to be considered but not itself dispositive. Complaint stated a cause of action for respondeat superior, and agreement had terms requiring therapists to coordinate with school district raising issue of control over means/methods of therapy and showing facts necessary to oppose the motion may be solely in defendants’ possession. D. S. v Positive Behavior Support Consulting & Psychological Resources, P.C.    

Premises Liab   Sidewalk   Duty   Waiver   NYC  

Second Department
NYCTA granted summary judgment where plaintiff tripped on uneven sidewalk near subway ventilation grate on proof subway ventilation system is owned by NYC and leased to NYCTA and, therefore, NYCTA did not have duty to maintain 12″ area around grate under 34 RCNY 2-07(b) which only applies to owners. Fajardo v City of New York    

Comment: NYC had been granted summary judgment in same lower court order that was appealed by NYCTA. Plaintiff filed a notice of appeal of the order granting NYC summary judgment but later withdrew the notice of appeal.
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Malpractice   Accepted Practice   Causation   Experts   Conclusory   Speculation  

Second Department
Defendants’ expert’s opinions of no departures from accepted practice in plaintiff’s wound care and, given plaintiff’s comorbidities, that defendants were not a cause of plaintiff’s injuries made out prima facie entitlement to summary judgment as they were not conclusory or speculative where based on the medical records. The expert plastic surgeon’s experience in wound care laid a proper foundation for knowledge of accepted standards of care at time of treatment.

Plaintiff raised issue in opposition by thoracic surgeon’s opinions that failure to turn plaintiff for 90-hours and use other means to avoid decubitus ulcers was a departure from accepted practice that caused plaintiff’s injuries. Plaintiff’s expert’s statement of his 30-years of experience in wound care did not contradict his CV that only noted wound care experience starting in 2013 and, in any event, he supported his conclusions with medical literature that relied on studies conducted prior to plaintiff’s treatment. Summary judgment denied based on conflicting expert opinions. Cerrone v North Shore-Long Is. Jewish Health Sys., Inc.    

Labor Law §241   Labor Law §200   Industrial Code   Control  

Second Department
Where carpenter tripped on bucket of compound in middle of floor, defendants granted summary judgment of Labor Law §241(6) claim based on industrial code §23-1.7(e)(2) which requires floors to be free from “scattered tools, materials…insofar as may be consistent with the work being performed,” as compound bucket was positioned consistent with work being performed and was not scattered. Testimony of plaintiff and coworker that plaintiff and his non-party employer were solely responsible for placement of tools and materials established defendants lacked control of means/methods of work for liability under Labor Law §200 and common law negligence. Kefaloukis v Mayer    

Labor Law §241   Labor Law §200   Homeowner Exception   Control  

Second Department
Owner of single family home granted summary judgment of Labor Law §241(6) claim of laborer, injured when he lost his footing and his hand was pinned by steel column he was moving, on homeowner exception which applies to §241 as well as §240 on proof she did not direct work and on Labor Law §200 and negligence claims on proof she lacked authority to control means/methods of work. Mechanical and Electrical contractors granted summary judgment of §241(6) claims on proof they did not do work and were not on site at time of plaintiff’s accident and of §200 and negligence claims on proof they lacked authority to control means/methods of work. Navarra v Hannon    

Premises Liab   Create Condition   Notice   Survelliance Video   Spoliation   Willful/Contumacious   Premature Motion  

Second Department
Testimony of plaintiff and building superintendent and video footage established defendants did not create condition outside laundry room that caused plaintiff-resident to fall and that they did not have actual or constructive notice of a dangerous condition. Plaintiff’s motion for spoliation sanction denied without proof video from before and after date of accident were destroyed in bad faith, willfully or contumaciously. Plaintiff failed to show defendants’ motion was premature without proof additional video would support his claim. Olivares v Pollack 111 Bruce, LLC    

Premises Liab   Sidewalk   Create Condition   Notice   Experts  

Second Department
Plaintiff denied summary judgment as her expert who never visited site where plaintiff tripped on hole in sidewalk relied on poor quality Google images that did not make out pconstructive notice of the defect as a matter of law and there was no proof defendants created the condition. Robinson v Hess Retail Stores, LLC    

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About Matt McMahon

Civil trials and appeals since 1984
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