| MUST READS (2 summaries) | |||
| NOTEWORTHY | IF YOU MUST READ | ||
 Plaintiff’s motion to renew her summary judgment motion, originally made pre-discovery during the Covid discovery suspension based on a video and statements provided in a FOIL response showing the bus driver did not inspect the bus to make sure the wheelchair restraint plaintiff tripped on was retracted, denied as the original order denying the motion found questions of fact and did not give leave to renew or state it was without prejudice and the newly discovered evidence obtained through discovery confirmed the information plaintiff relied on in her original motion except for rules and regulation which are inadmissible if they impose a duty higher than common law negligence. Plaintiff’s original motion was premature, she failed to show the subsequent discovery was unavailable without showing diligent efforts to obtain the discovery, and allowing renewal would be an impermissible successive motion for summary judgment. There was 1-dissent. Perretta v New York City Tr. Auth. ✉ |
 Motion court erred in denying petition to serve late Notice of Claim for failure to refile the original petition and attachments with the RJI filed a day after petitioner was notified his filing was defective without the RJI as failure to file a RJI is not a jurisdictional defect and petitioner quickly supplemented his filing with the RJI.Petition denied for failure to show the MTA-LIRR respondents acquired actual knowledge of the essential facts as the WC information form and incident report regarding the petitioner being struck by a crane during construction was not prepared by the MTA-LIRR and petitioner did not provide a reasonable excuse for the 9-month delay. Motion to renew based on a MTA Capital Construction injury report denied without reasonable justification for not including it in the original petition, even though it was received after the petition was filed, where petitioner waited 2-months after the petition to make the FOIL request. Appeal from motion to resettle dismissed as no appeal lies from ‘an order denying a motion for resettlement of the substantive or decretal provisions of a prior order’ and appeal from denial of motion to reargue dismissed as no appeal lies from denial of a motion to reargue. Matter of Polak v MTA Long Is. R.R. ✉ |
| NOTEWORTHY (12 summaries) | |||
| MUST READS | IF YOU MUST READ | ||
| Petitioner showed a reasonable excuse for not timely filing a Notice of Claim on proof she was transferred several times between hospital and rehab center after surgery for injuries when she tripped on a protruding nail at a Coney Island boardwalk but failed to show a reasonable excuse for the 70-day delay between when she retained counsel and filed the petition. Petitioner served a late Notice of Claim without leave of court 22-days after retaining counsel, which was rejected the next day, and filed the petition 47-days later. Petitioner also failed to show NYC had actual knowledge of the essential facts or that it was not prejudiced by the delay. Matter of Mandelbaum v City of New York ✉ |
| Motion for leave to serve late Notice of Claim or deem late Notice of Claim timely served nunc pro tunc denied where petitioner failed to show respondent had actual notice of the essential facts within 90-days, provide a reasonable excuse, or evidence or a plausible argument that the respondent was not prejudiced by the delay. Petitioner did not provide medical records or other proof that he was unable to timely serve the Notice of Claim because of his injuries. Matter of Crowder v New York City Sch. Constr. Auth. ✉ |
| Claimant-worker who fell when descending from an upper walkway to a wooden pallet without a ladder and landed on the lower walkway of the GMC bridge granted summary judgment on Labor Law §240(1) as failure to provide a ladder to descend the vertical distance was a §240 violation. The Thruway Authority failed to raise an issue on sole cause without proof a proper ladder was readily available to the worker and he was instructed to use it instead of the wooden pallet. Worker granted summary judgment on Labor Law §241(6) predicated on industrial code §23-1.7(f)(ladder for vertical passage) and §23-1.15(a)(handrail on safety rail) where the handrail moved 1’ causing the worker to lose his balance. Industrial codes §§ 23-1.21 and 23-2.7 inapplicable as worker was not using a ladder or stairway. Chiarella v New York State Thruway Auth. ✉ |
| Plaintiff’s expert failed to raise issues in oppositions to defendants’ showing of no departure or causation with opinions based on facts not supported by the record, failure to refer to a foundational scientific basis for the opinions, and failure to address the defense experts’ opinions that tPA and surgical clot removal were contraindicated and that any delay in diagnosis and treatment was not a proximate cause of the decedent’s stroke. Belotti v Northern Westchester Hosp. ✉ |
| Motions for summary judgment dismissing postal worker’s Complaint for slip and fall as he descended stairs after delivering mail, by church, GC, and subcontractor, denied where questions remained of whether the church created the dangerous condition and whether the GC and subcontractor assumed a duty under Espinal. Subcontractor failed to show plaintiff could not identify the cause of his fall without speculation where he testified he did not see the dust or debris before his fall but felt sand, iron shavings, dust under his foot as he fell and saw the subcontractor’s employees grinding and sanding paint on a nearby railing. Mazura v Rector, Church, Wardens & Vestrymen of Trinity Church in the City of N.Y. ✉ |
| College granted summary judgment dismissing plaintiff’s claim for trip and fall in hole on lawn as he was setting up an inflatable movie screen based on maintenance records and groundskeeper’s affidavit showing he inspected the lawn 2-days earlier and there were no holes and plaintiff’s testimony that he inspected the lawn before setting up the screen and saw no holes, establishing the college did not create or have notice of the condition. Kern v Iona Coll. ✉ Comment: Appeal from grant of summary judgment dismissing third-party Complaint dismissed as academic. Kern v Iona Coll.. |
| Owner of building where worker slipped on ice in trucking bay granted summary judgment on proof it was an out of possession landlord without a duty to maintain the premises under its lease to the plaintiff’s employer, did not have sufficient control over the premises for liability, and did not create or have notice of the condition. Snow removal contractor granted summary judgment as it owned no duty to the plaintiff who was not privy to its contract and it did not have to address Espinal exceptions where plaintiff did not allege facts to establish any Espinal exception. Walsh v Steel O-III, LLC ✉ |
| State granted summary judgment on claimant’s testimony she previously saw broken surfacing in area where she walked to class without any problem before she stubbed her toe on the edge of a brick paver, it was sunny and clear on the day of her accident, and nothing obstructed her view and photographs showing the height differential was insignificant and the danger was not increased by the surrounding circumstances, establishing that the defect was trivial and open/obvious and not inherently dangerous. Mammina v State of New York ✉ |
| Plaintiff granted summary judgment on her affidavit that her vehicle was parked on the side of the highway service road with its hazard lights on when struck in the rear by defendants’ tractor-trailer and defendants failed to raise an issue in opposition with admissible evidence. Plaintiff met burden for dismissal of comparative fault defense but defendants raised an issue on whether she stopped on the entrance ramp to the highway. Ramirez v Greiner ✉ |
| Plaintiff bus-passenger met burden for summary judgment against NYCTA but bus driver’s testimony that he had to apply his brakes hard to avoid a more serious accident when the other vehicle made a right turn from the left lane raised an issue of fact on nonnegligent explanation for the sudden braking. Van Manen v New York City Tr. Auth. ✉ |
| Owner and driver that entered intersection not controlled by traffic device in its direction granted summary judgment dismissing claim of passenger in vehicle that entered intersection from perpendicular street controlled by a stop sign on testimony of driver of plaintiff’s vehicle that she did not stop, slow down, or look both ways before entering the intersection and moving-defendants’ driver’s testimony she saw the other vehicle only 1-second before impact, establishing plaintiff’s driver was the sole cause of the accident. Shestokovich v Goodall ✉ |
| Passenger in vehicle in collision with a NYC sanitation truck denied summary judgement where her submissions included the defendant-driver’s statement the vehicle plaintiff was in struck the sanitation truck while it was stopped, leaving questions of fact, but comparative fault defense dismissed as she was an innocent passenger. Husbands v City of New York ✉ |
| IF YOU MUST READ (1 summaries) | |||
| MUST READS | NOTEWORTHY | ||
| Motion to dismiss by owner of vehicle plaintiff was a passenger in, on claim the Complaint failed to allege facts sufficient to establish the company owed plaintiff a duty, denied where the Complaint alleged a cognizable cause of action for negligence. The Court does not give the details of the proofs. Watkins v New York City Tr. Auth. ✉ |