August 14, 2018 | Vol. 119

(4 summaries)

Premises Liab   Dangerous Condition   Negligent Supervision   Expert Aff  

Second Deptartment

Plaintiff’s expert’s opinion that playground groundcover was dangerous where it did not meet Consumer Product Safety Commission did not raise an issue of fact because guidelines were not mandatory, entitling school district to summary judgment. Boland v North Bellmore Union Free Sch. Dist.

Comment: The Second Department’s rule that non-mandatory guidelines do not raise issues of fact, first enunciated in McCarthy v. State, 167 A.D.2d 516 (2nd Dept. 1990), eliminates non-mandatory guidelines or standards as evidence of negligence or a dangerous condition and is part of a trend in the appellate divisions. It appears, however, to conflict with rulings by the Court of Appeals which have denied summary judgment based on CPSC guidelines, including guidelines for playground ground cover. Butler v. City of Gloversville, 12 N.Y.3d 902 (2009)(ground cover); Kriz v. Schum, 75 N.Y.2d 25 (1989).

MVA   Set Aside Verdict  

Second Deptartment

Motion to set aside verdict by defendant found 85% at fault denied where jury could have believed that moving defendant drove onto grass in order to pass defendant found 15% at fault as part of a non-verbal communication. This version “was not manifestly untrue, physically impossible, or contrary to common experience” and, therefore, based on a fair interpretation of the evidence. Fruendt v Waters

Premises Liab   Stairs   Dangerous Condition   Recurring Condition   Notice   Last Inspection  


NYCHA granted summary judgment on affidavit of caretaker that he received no complaints of urine on the stairs, and that he inspected staircase twice a day when he would mop up any urine or other substance found making a checklist after the morning inspection which he submitted for the morning before the accident. Plaintiff failed to show a recurring dangerous condition routinely unaddressed. Canteen v New York City Hous. Auth.

SUM   Stay Arb   General Release  

Second Deptartment

Injured passenger in car who settled with other vehicle, signing general release that included carrier for car she was in, whose owner and driver were included in suit, barred from making SUM claim based on release. Matter of Travelers Home & Mar. Ins. Co. v Fiumara

(5 summaries)

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


Worker who fell off flatbed truck when steel beams hoisted above him without tag lines swung towards him granted summary judgment on Labor Law §240(1), and §241(6) based on industrial code 12 NYCRR 23-8.2(c)(3)(tag lines), because risk of hoisted load presented gravity related risk. Flores v Metropolitan Transp. Auth.

MVA   Turning Vehicle   Premature Motion  

Second Deptartment

Man walking next to niece in crosswalk, with light, entitled to summary judgment on his affidavit that defendant failed to yield right-of-way when he turned right, struck niece knocking her into plaintiff. Defendant did not submit affidavit with opposing facts or explain what information exclusively within plaintiff’s knowledge could be revealed by discovery. Lazarre v Gragston

MVA   Rear End   Premature Motion  

Second Deptartment

Plaintiff’s motion for summary judgment for rear-end collision before discovery denied as premature where defendants showed that discovery might lead to relevant information regarding how the accident occurred, including whether defendants’ vehicle was struck in the rear and pushed into plaintiff’s car. Hawana v Carbuccia

Premises Liab   Slip/Trip   Ladder   Dangerous Condition   Expert Aff  

Second Deptartment

Property owner granted summary judgment where both plaintiff and defendant testified that there was nothing wrong with step ladder plaintiff fell from, and that white substance plaintiff noticed on step ladder was not slippery and she did not testify that the substance was slippery or sticky on her inspection months later. Expert’s opinion as to what substance might have been based on inspection 4 years later did not raise issue of fact. Fuentes v Theodore

MVA   Question of Fact  

Second Deptartment

Plaintiff met burden for summary judgment before discovery by her affidavit showing that defendant failed to yield the right-of-way at 4 stop intersection but denied summary judgment based on defendant’s affidavit giving a different version of how accident occurred. Tiberg v Strebel-Eichner

(0 summaries)

About Matt McMahon

Civil trials and appeals since 1984
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