August 13, 2019 | Vo. 171

MUST READS
(5 summaries)
NOTEWORTHY IF YOU MUST READ

GML §205-a   Set Aside Verdict   Causation   Speculation   NYC  

Second Department

A sharply divided Second Department set aside a jury verdict which found that NYC violated Administrative Code §§27-127 & 27-128 but that the violations were not a cause of the firefighter’s injuries when he tripped on a torn carpet, as contrary to the weight of the evidence noting that under GML §205-a, plaintiff only need prove “a practical or reasonable connection” between the violation and the injury and “is not required to show the same degree of proximate cause as is required in a common-law negligence action.” The jury’s finding of no cause could only be based on speculation of some unidentified. cause. There were 2 dissenters. Annunziata v City of New York

Comment: The majority decision gives a detailed analysis of the difference between judgment as a matter of law and against the weight of the evidence standards and how both trial and appellate court should exercise discretion in interpreting whether a verdict could be reached on a fair interpretation of the evidence.


Premises Liab   Slip/Trip   Snow/Ice   Create Condition  

Second Department

While plowing snow into a pile that can melt and form ice is an affirmative act which can be the basis of liability where municipality did not owe a duty to plaintiff to remove snow/ice, City of Rye granted summary judgment on plaintiff’s claim she slipped and fell on ice on sidewalk outside church on proof that city did not create or exacerbate dangerous condition. Court noted that City of Rye code §167-50(b) provided a private cause of action for abutting landowner’s failure to repair or keep sidewalk clear of snow/ice. Gilbert v City of Rye

Comment: For sidewalk cases outside of NYC it is important to check local ordinances to determine if there is a private cause of action against an abutting landowner. The Rye code provides a private cause of action against an abutting landowner for failure to keep the sidewalk in good repair and failure to clear sidewalk of all snow or ice within 24 hours after precipitation ends.


Med Mal   Amend Complaint   Statute of Limitations  

Second Department

Plaintiff’s motion to amend Complaint to bring direct case against attending physician who performed colonoscopy after plaintiff’s decedent was admitted to hospital through emergency room granted even though statute of limitations expired under relation back theory as hospital’s vicarious liability for emergency room and attending physicians under apparent agency, where person is submitted through an emergency room rather than by their private doctor, allows for a finding of unity in interest, and it would not have been reasonable for attending to assume plaintiffs did not intend to sue him given his treatment of plaintiff’s decedent. Rivera v Wyckoff Hgts. Med. Ctr.


Med Mal   Wrongful Death   Estate   Amend Complaint   Prejudice  

Second Department

Plaintiffs’ motion to substitute father as administrator of estate of deceased infant plaintiff under CPLR §1021 granted even though delay in substituting estate was “protracted” on proof that HHC was not prejudiced by delay since it was on Notice of Claims from Notice of Claim and it had all relevant medical records and plaintiff showed a meritorious action. The mere passage of time was insufficient for defendants to show prejudice. Plaintiffs’ motion to amend the Complaint to include a wrongful death cause of action granted under relation back doctrine. Petion v New York City Health & Hosps. Corp.


Discovery   CPLR §3124   IME/DME   Good Faith Aff  

Second Department

Lack of good faith affirmation required by 22 NYCRR 202.7(c) was not grounds to deny motion to compel IME/DME where defendants’ efforts to obtain plaintiff’s cooperation prior to motion was detailed in defendants’ supporting affirmation.

Plaintiff ordered to appear for IME/DME for vocational rehabilitation specialist after plaintiff failed to appear or schedule examination noticed pursuant to prior court order that denied defendant’s motion to strike Note of Issue and ordered the examination. Encalada v Riverside Retail, LLC

Comment: This is an important precedent where a party fails to include a good faith affirmation with their moving papers. Many courts will deny the motion without reviewing the merits because of the lack of a good faith affirmation.

NOTEWORTHY
(10 summaries)
MUST READS IF YOU MUST READ

Premises Liab   Slip/Trip   Stairs   Unknown Cause   Create Condition   Notice   Last Inspection  

Second Department

By submitting plaintiff’s testimony on motion for summary judgment where she states she fell on a “wet substance” on the stairs defendant failed to meet its burden of proof on claim that plaintiff was unable to identify cause of her fall even though she was unable to identify “the precise nature of the wet substance.” Plaintiff’s and superintendent’s testimony raised issues on whether defendant created the condition and defendants failed to give specific details of the last time the area was inspected or cleaned leaving questions of notice. Burrus v Douglaston Realty Mgt. Corp.


Negligent Supervision   Duty   Raised For First Time   Premature Motion   NYC  

Second Department

School granted summary judgment where infant plaintiff injured during dance practice held off school premises, on public holiday, without school’s knowledge or consent. School’s duty to supervise concomitant with custody of student. Plaintiffs’ argument of apparent authority not considered where raised for first time on appeal and motion not premature where plaintiff failed to show what discovery would have been necessary to oppose the motion. R. L. v New York City Dept. of Educ.


MVA   Bus   Emergency Doctrine  

Second Department

Fire truck entering intersection against light from bus driver’s left, causing driver to slow, showed emergency situation and that driver acted reasonably but plaintiff raised issue of fact by her testimony that bus driver was driving very fast before entering intersection, did not slow down when bus driver acknowledged she heard the siren, and did not change speed before slamming on the brakes. Liang-Ying Ren v Doe


Premises Liab   Slip/Trip   Unknown Cause  

Second Department

Cleaning contractor for Whole Foods store granted summary judgment on plaintiff’s testimony establishing that she could not identify what caused her to fall. Fortune v Raritan Bldg. Servs. Corp.


Building Security   Assault   Battery   Foreseeability   Admission  

Second Department

Restaurant had duty to protect patrons from attacks only when it had the opportunity and reasonable awareness of need to do so. Proof that attack by 4-persons was unforeseeable and unexpected entitled restaurant to summary judgment. Plaintiff’s claim that assistant manager orchestrated attack did not raise issue of fact without proof that he was acting in the interests of the business and that his conduct was reasonably foreseeable. Daniels v Dairy Queen Grill & Chill


MVA   Rear End   Pileup   Nonnegligent Explanation  

Second Department

Third car in 4-car pile-up granted summary judgment on proof she was stopped behind second vehicle when struck in rear by fourth vehicle and propelled into second vehicle, establishing nonnegligent explanation for the rear end collision. Mihalatos v Barnett


Premises Liab   Slip/Trip   Sidewalk   Create Condition  

Second Department

Contractor granted summary judgment on proof it did not create or exacerbate raised sidewalk flag plaintiff tripped on because it did no work in area. Mere opening of permit insufficient to create question of fact. Sindoni v City of New York


Serious Injury   BP  

Second Department

Defendants denied summary judgment where they failed to address 90/180 day category alleged in plaintiffs’ BP. Vega v Moradof


Dogbite   Vicious Propensity  

Second Department

Proof that defendants’ dog freely engaged with defendants’ 2-children and their other 2-dogs and that dog which mauled plaintiffs’ dog never bit any person or animal before made out entitlement to summary judgment. Drakes v Bakshi


Motion to Dismiss   Emotional Harm   Statute of Limitations  

Second Department

Action for intentional infliction of emotional harm dismissed on proof that 1-year statute of limitations for intentional tort expired more than 3-years before commencement of action. Plaintiff failed to show that SOL was tolled. Edem v Wondemagegehu

IF YOU MUST READ
(1 summaries)
MUST READS NOTEWORTHY

Serious Injury   BP  

Second Department

Defendant’s motion for summary judgment on serious injury denied as to one plaintiff where defendants failed to address 90/180 day category alleged in BP but granted as to other plaintiff as defendant established by competent medical proof that second plaintiff did not sustain a serious injury under all alleged categories including 90/180 days. The court does not give the details of the proofs. Ji Hae Kim v Quintanilla

About Matt McMahon

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