August 15, 2023 | Vol. 378

(3 summaries)

Malpractice   Wrongful Death   Venue   Admissibility  

First Department
In a 3/2 decision, the First Department reviewed the presumptions and admissibility of signed documents, including the Electronic Signatures and Records Act in NY State Technology Law art. 3, finding the defendant rehab center failed to authenticate the 89-year-old decedent’s purported electronic Docusign signature on an admission agreement with a venue selection clause as it did not submit an affidavit of someone familiar with the protocols and reliability indicia for Docusign. Its affiant searched its records and averred that the agreement was maintained in the regular course of business but not that it was created in the regular course of business, necessary for the business records hearsay exception. It did not provide an affidavit from the employee present when the document was signed, a certificate of acknowledgment (CPLR §4538), or exemplar signatures for comparison (CPLR §4536).

While written and electronic signatures have a presumption of authenticity, plaintiff adequately raised issues on the Docusign signature authenticity by his familiarity with his mother’s signature, comparison to an exemplar signature, and differences between the Docusign document’s different signatures and initials. Change of venue from New York to Nassau County denied. There were 2-dissenters. Knight v New York & Presbyt. Hosp.    

Motion to Dismiss   Personal Juridiction   Amend Complaint  

Second Department
Town’s motion to reargue village’s motion to dismiss on personal jurisdiction slip and fall action commenced after village dissolved granted but prior order denying motion and substituting town as the defendant providently adhered to as the town was the proper party where it assumed the village’s liabilities. Young v Town of Brookhaven    

Malpractice   Judiciary Law §487   Motion to Dismiss   Statute of Limitations  

Second Department
Motion to dismiss legal malpractice claim brought more than 3-years after accrual granted as governed by 3-year statute of limitations whether couched as tort or contract which also applied to Jud. L. §487 deceit claim which was based on the same facts and did not allege different damages. Catsiapis v Pardalis & Nohavicka, LLP    

(14 summaries)

MVA   Motion to Dismiss   90 Day Notice   Note of Issue  

Second Department
Defendants’ CPLR §3216 motion to dismiss for plaintiff’s failure to file Note of Issue within 90-days as required by certification order providently denied as “CPLR 3216 is an ‘extremely forgiving’ statute which ‘never requires, but merely authorizes, the Supreme Court to dismiss a plaintiff’s action based on the plaintiff’s unreasonable neglect to proceed,'” plaintiff filed the Note of Issue within a week after the court extended the Note of Issue date, and there was no persistent pattern of neglect/delay or intent to abandon the case. Zavala-Vanegas v Ross    

False Arrest   False Imprisonment   Motion to Dismiss   Vacate Default   Reasonable Excuse   Meritorious Action  

Second Department
Plaintiffs’ motion to renew their motion to vacate default in timely providing a Complaint after a demand, and to compel acceptance of their Complaint, granted where they showed a reasonable excuse for the delay by new evidence of law office failure that would change the result, a potentially meritorious action, lack of prejudice to defendants, and that there was no intent to abandon the action. Fox v Gross    

Comment: From the lower court records, law office failure claim was that the prior attorney had a conflict of interest and refused to file the Complaint.

Malpractice   Motion to Dismiss   Discovery   CPLR § 3126   Vacate Default   Reasonable Excuse   Meritorious Action   Raised For First Time  

Second Department
Administrator’s motion to vacate default in opposing defendants’ motions to dismiss, which had been granted after administrator failed to respond to any discovery demands after JHO gave him 2-months to do so or to submit opposition to defendants’ motions, properly denied where plaintiff did not provide a reasonable excuse for not opposing the motions. Absent a reasonable excuse the court did not need to look at meritorious action issue.

Plaintiff’s Jud. L. §21 argument not considered where raised for the first time on appeal. Codispoti v Beth Israel Med. Ctr.    

Vacate Default   Discovery   Reasonable Excuse   Meritorious Action  

Second Department
Plaintiff’s motion to vacate order dismissing action for failure to provide discovery, entered on default in appearing on return date, providently denied where explanation that plaintiff’s counsel was engaged on another matter on the return date did not provide a reasonable excuse and, in any event, plaintiff failed to show a meritorious action. Supreme Court’s inherent discretion to vacate a default is not “plenary” and plaintiff failed to show default was caused by “fraud, mistake, inadvertence, surprise, or excusable neglect.” Wade v Cojab    

Malpractice   Causation   Experts  

Second Department
Neurologist who treated decedent for insomnia with Zolpidem granted summary judgment dismissing claim that decedent’s suicide was result his failure to monitor her for side effects and provide suicide protections where toxicology report showed multiple medications including Phenmetrazine which can cause hallucinations and Fluoxetine which can increase the side effects of Phenmetrazine and his experts’ opinions that these, not the Zolpidem, were the most likely cause of the decedent’s suicide. Decedent was treated by several other providers after the defendant’s treatment and found to be a low risk for suicide and the level of Zolpidem in her system after her suicide was normal. Plaintiffs’ expert failed to raise an issue in opposition. Rosenblatt v Jungman Suh    

Labor Law §240   Labor Law §241   Labor Law §200   Sole Cause   Industrial Code   Create Condition   Notice  

Second Department
Worker who fell through 18th floor on construction site when plywood covering the hole he stepped on collapsed granted summary judgment on Labor Law §240(1) as the plywood provided inadequate protection from the elevated risk and defendants’ failed to show plaintiff was the sole cause of his accident for not attaching his harness to an anchor without evidence he was required to do so while working inside. Worker granted summary judgment for violation of industrial code §23-1.7(b)(1)(i)(hazardous openings) which requires substantial covers and is sufficiently specific for a Labor Law §241(6) claim.

Worker denied summary judgment on Labor Law §200 and negligence claims without evidence defendants created or had actual or constructive notice of the condition. Mushkudiani v Racanelli Constr. Group, Inc.    

Premises Liab   Dangerous Condition   Causation   Duty   Warnings   Open/Obvious   Inherently Dangerous  

Second Department
Homeowners failed to show retaining wall between 2-sections of blacktop at different heights that plaintiff fell from was open/obvious and not inherently dangerous where photographs were not taken at night under dim light, as alleged by plaintiff, but granted summary judgment on proof there was an interior light switch their tenant could flip to provide adequate lighting to the area. The tenant was, therefore, responsible for the dim lighting and the landlords had no duty to warn their tenant or the tenant’s guests of the open/obvious danger of leaving in the dark without turning on the light. Saravo-Schectman v Pinchback    

MVA   Pedestrian   There to be Seen   Comparative Fault   Survelliance Video   Motion to Dismiss   Court of Claims  

Second Department
Correction officer’s motion to dismiss for lack of subject matter jurisdiction on argument he struck pedestrian while engaged in official duties of checking on parolees and any action was required to be brought in the Court of Claims under Correction Law §24 denied where he breached his individual duty owed directly to the pedestrian not a duty owed as a representative of the state.

Pedestrian granted summary judgment on liability and dismissal of comparative fault defenses on testimony and surveillance video stills of the incident that showed defendant was negligent for failing to keep a proper lookout when striking plaintiff as plaintiff crossed the street and as a matter of law refuted defendant’s claim that plaintiff stepped into his vehicle at the last moment. Crist v Rosenberger    

Governmental Function   Special Duty   NYC  

Second Department
NYC, police, and EMS defendants met burden for summary judgment by establishing they were acting in a governmental function when responding to decedent’s emergency call and did not owe him a special duty. Ramos v City of New York    

Premises Liab   Out of Possession   Building Code   Premature Motion  

Second Department
Church granted summary judgment dismissing plaintiff’s claim for trip on dislodged tread stair cover on proof it was an out of possession landlord where it did not maintain control of the stairs under the submitted lease, plaintiff did not allege a statutory violation, and its representative’s affidavit showed it did not assume a duty to maintain the area by course of conduct. Plaintiff failed to raise an issue in opposition or show that discovery might lead to material evidence or evidence solely within defendant’s knowledge. Hope v Our Holy Redeemer R.C. Church    

MVA   Turning Vehicle   Feigned Issue  

Second Department
Defendant granted summary judgment where plaintiff entered intersection and made a left hand turn after stopping at a stop sign and struck defendant’s vehicle which had the right of way as it traveled on the perpendicular road without a traffic device. Plaintiff’s affidavit stating defendant’s headlights were not on raised only a feigned issue where it conflicted with her EBT testimony that she never saw defendant’s vehicle before impact. Lylan Pham v Lee    

MVA   Rear End   Question of Fact  

Second Department
Taxi driver met burden for summary judgment dismissing passenger’s claim on driver’s affidavit that his taxi was rear-ended while stopped at a red light, but rear-ending defendants raised an issue of fact on proof the taxi accelerated to go through a yellow light and suddenly stopped in the intersection. McAvoy v Eighamri    

MVA   Sole Cause   Speculation  

Second Department
Defendants, whose vehicle was struck by another vehicle and propelled into plaintiff’s parked vehicle with plaintiff inside, granted summary judgment on proof moving defendant-driver had the right of way as he entered the intersection with the green light and codefendant-driver’s failure to yield the right of was the sole proximate cause of the accident. Plaintiff’s claims that moving defendants were negligent and could have avoided the accident did not raise an issue in opposition as they were speculative and not supported by the evidence. Angelillo v Guerin    

False Arrest   False Imprisonment   Motion to Dismiss   Probable Cause   Appealable Order   Police   NYC  

Second Department
NYC’s and police officers’ motion to dismiss false arrest and false imprisonment causes of action granted where domestic incident report and estranged wife’s supporting deposition that plaintiff violated an existing TOP by contacting her by mail gave them probable cause for the arrest which ‘does not require proof sufficient to warrant a conviction beyond a reasonable doubt but merely information sufficient to support a reasonable belief that an offense has been or is being committed.’

Defendants’ motion to dismiss the Complaint in its entirety not considered as it was not addressed in the appealed order. Gottlieb v City of New York    

(1 summaries)

MVA   Bus   Rear End   Admissibility   Hearsay  

Second Department
Plaintiff’s motion for summary judgment against owner and driver of bus that rear ended codefendants’ vehicle while plaintiff was a passenger in the bus, denied as her affidavit and certified police report failed to establish the bus defendants were at fault. The Court does not give the details of the proofs. Certified police report was admissible hearsay. Delgado v Lachman    

About Matt McMahon

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