August 11, 2020 | Vol. 223

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MUST READS
(5 summaries)
NOTEWORTHY IF YOU MUST READ

Late Notice of Claim   Actual Knowledge   Prejudice   NYC  

Second Department

NYC and FDNY did not have actual knowledge of the essential facts within 90-days or a reasonable time thereafter where initial 911 call that plaintiff’s daughter was drowning in a swimming pool, answered by NYPD then referred to FDNY for medical assistance, was deleted in the normal course of business. Recording of FDNY call did not show who made address error resulting in response delay and showed FDNY ALS restored breathing in the ambulance without showing decedent’s extensive injuries. Defendants made a particularized evidentiary showing of prejudice by more than 1-year delay in seeking leave by fact that NYPD portion of call that would likely have identified who made address error was destroyed. Matter of Adbelghany v City of New York

Comment: Petition for leave to serve late Notice of Claim denied. Matter of Adbelghany v City of New York.

Asbestos   Directed Verdict   Set Aside Verdict   Pain/Suffering   Loss of Services   Materially Deviates   Burden of Proof   Expert Aff  

First Department

Judgment on verdict of $12 million/$4 million past/future pain/suffering $1 million/$250,000 past/future loss of consortium set aside unless plaintiffs agree to reduction of past pain/suffering to $5.5 million and past loss of consortium to $650,000. Plaintiffs’ expert’s opinion that amount of asbestos in dust wife and husband exposed to while scraping and grinding gaskets in family garage contained 50-85% asbestos with 80% being standard necessarily contained several thousand times safe levels sufficient to cause wife’s mesothelioma, conceded by defendants’ experts, established specific causation that wife was exposed to sufficient levels of asbestos to cause her illness. The verdict was not against the weight of the evidence. There was 1-dissent. Matter of New York City Asbestos Litig. v Air & Liquid Sys. Corp.

Premises Liab   Slip/Trip   Stairs   Unknown Cause   Causation   Speculation   Feigned Issue  

Second Department

NYCHA granted summary judgment where infant plaintiff testified wind pushed water from playground sprinkler onto monkey bars but that 2-kids who had been playing in sprinkler climbed the steps just before he slipped and fell on the wet stairs. It could not be found without speculation that plaintiff fell from water sprayed on the steps from the sprinkler. Plaintiff’s affidavit stating ladder was wet before the 2-kids climbed the steps contradicted his testimony that he did not see the ladder was wet before he climbed them and was a feigned issue. Wilson v New York City Hous. Auth.

False Imprisonment   Med Mal   Expert Aff   Privilege  

Second Department

Hospital granted summary judgment on expert psychiatrist’s opinion that neither plaintiff’s involuntary commitment nor treatment departed from accepted medical practice. Involuntary commitment is a privileged action absent medical malpractice and plaintiff failed to submit expert opinion to rebut defendant’s prima facie showing of entitlement to summary judgment. Wray-Davis v New York Methodist Hosp.

Labor Law §241   Industrial Code   Question of Fact   Workers Comp   Grave Injury  

Second Department

Owner and contractor denied summary judgment of Labor Law §241(6) claim under industrial code §23-9.2(a) where plaintiff was injured while chipping concrete from pump truck where pump motor was off but engine supplying power to pump was on and, therefore, not at rest as required by the industrial code. S-tube plaintiff standing on moved while chipping the concrete causing him to slip and his foot to be crushed losing several toes. Owner granted conditional contractual indemnity against contractor/employer on proof owner was free of negligence and loss of multiple toes met standard of grave injury. Golec v Dock St. Constr., LLC

NOTEWORTHY
(7 summaries)
MUST READS IF YOU MUST READ

Med Mal   Late Notice of Claim   Actual Knowledge   Prejudice   NYC  

Second Department

Petitioner failed to show HHC or NYC had actual knowledge of essential facts within 90-days or a reasonable time thereafter based on medical records of emergency room treatment day before she was treated at a different hospital for removal of a blood clot in her brain that caused a hemorrhagic stroke and failed to show that HHC or NYC would not be prejudiced by delay in seeking leave. Matter of Sacha v City of New York Health & Hosps. Corp.

Pothole Law   Slip/Trip   Prior Written Notice   NYC  

Second Department

NYC failed to meet burden of showing lack of prior written notice where DOT and DEP records it submitted showed a cave-in at the location where plaintiff’s foot got stuck in hole as she stepped off curb that was repaired but required a hot patch to prevent further deterioration, there was no record that the hot patch was done, and a subsequent cave-in was reported with no indication it was repaired. Pisiak v City of New York

Labor Law §240   Labor Law §241   Industrial Code   Gravity Risk   Appealable Order  

Second Department

Plaintiff injured when he tried to stop a hoisted steel beam from swinging back after he and coworker pushed it forward to join 2-beams was not the result of an elevated risk protected by Labor Law §240(1). Defendant denied summary judgment of Labor Law §241(6) on industrial code §23-2.3(c) for question of fact of whether hoisted beam had taglines to control uncontrolled movement of steel panels or structures. Cross-appeal from decision denying indemnity abandoned where third-party defendants did not seek reversal of that order in their brief. Tomala-Campoverde v Trumbull Equities, LLC

MVA   Vacate Default   Motion to Dismiss   Personal Juridiction   Service   Traverse Hearing   Reasonable Excuse   Meritorious Action  

Second Department

At traverse hearing held in response to plaintiff’s motion to vacate default in opposing defendants’ motions to dismiss for personal jurisdiction plaintiff showed defendant vehicle-owner was properly served by substituted service on father at defendant’s actual residence with follow-up mailing but driver was not properly served. Defendant abandoned lack of reasonable excuse argument where not raised in brief in chief and plaintiff showed meritorious opposition where service was proper on one defendant. Lupo v Miranda

MVA   Police   VTL §1104   Reckless   Intervening Cause   NYC  

Second Department

Defendants entitled to summary judgment on proof police officers were pursuing vehicle that turned onto one-way street in wrong direction striking plaintiff’s vehicle as they were entitled to reckless standard under VTL §1104 for speeding and direction of travel and their actions were not reckless. The cause of the accident was the independent recklessness of the driver being pursued. Fuchs v City of New York

Labor Law §200   Notice   Amend Complaint   Amend BP   Prejudice  

Second Department

Defendants’ failed to meet burden of showing lack of constructive notice of hole plaintiff fell in on their property. Plaintiff’s motion to amend Complaint and BP to include Labor Law §200 claim granted as it was not patently devoid of merit and defendants could not show prejudice. Gomez v Principe

Premises Liab   Slip/Trip   Sidewalk   Duty   Create Condition  

Second Department

Defendant granted summary judgment on proof it did not own property abutting sidewalk plaintiff tripped on, did not create condition, and did not make special use of the sidewalk. Pollard-Leitch v R & D Utica Realty, Inc.

IF YOU MUST READ
(2 summaries)
MUST READS NOTEWORTHY

Serious Injury  

Second Department

Defendants met burden for summary judgment on serious injury by competent medical proof and plaintiff failed to raise an issue in opposition. The court does not give the details of the proofs. Narvaez-Reyes v Palomino

Serious Injury  

Second Department

Defendant met burden for summary judgment on serious injury by competent medical evidence, but plaintiff raised an issue of fact in opposition. The court does not give the details of the proofs. Zaid v Payano

About Matt McMahon

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