Premises Liab Snow/Ice Out of Possession Amend BP Note of Issue Reasonable Excuse Prejudice
 Building owner which rented restaurant to plaintiff’s employer granted summary judgment on proof employer had sole responsibility for snow/ice removal under lease and no statutory duty to maintain the parking lot where plaintiff fell. Plaintiff’s cross-motion to amend the BP to allege new theory of inadequate lighting providently denied where brought 7-months after Note of Issue in response to defendant’s motion for summary judgment, plaintiff did not offer a reasonable excuse for the delay, and defendant would be prejudiced by the amendment. Plaintiff failed to show special and extraordinary circumstances to amend the BP after Note of Issue. Achee v Merrick Village, Inc. ✉
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Premises Liab Note of Issue Amend BP
Defendants’ motion to strike plaintiff’s second Supplemental BP served after Note of Issue without leave of court denied where it alleged the “continuing consequences of the same injuries which were previously alleged,” not a new injury, and was served more than 30-days before trial. Ali v JS 39, LLC ✉
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Labor Law §240 Labor Law §241 Labor Law §200 Control Industrial Code
Moving defendant failed to show it did not act as GC for demolition of wooden pergola where its owner hired plaintiff’s employer, provided some oversight and direction, and was present when plaintiff fell after cutting a piece of the pergola he was standing on. GC denied summary judgment on Labor Law §240(1) but granted summary judgment on §§ 240(1), 200, and negligence on proof industrial code §23-3.3(c)(hand demolition) was inapplicable because the hazard arose from the demolition work itself, and it did not have control over the means and methods of plaintiff’s work. Flores v Crescent Beach Club, LLC ✉
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Notice of Claim Actual Knowledge Reasonable Excuse Prejudice
Petition for leave to serve late Notice of Claim on village after LIRR and MTA implead village providently denied where petitioners conceded village did not have actual knowledge of essential facts of claim from accident at train station village owned, petitioners’ failure to identify responsible parties was not a reasonable excuse for not serving a timely Notice of Claim or 3-month delay in filing the petition after the village was implead, and photographs did not show village would not be substantially prejudiced by the delay. Matter of Poster v Incorporated Vil. of New Hyde Park ✉
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Notice of Claim Actual Knowledge Reasonable Excuse Prejudice NYC
Inmate who fell while descending bus stairs at Rikers island after asking for assistance failed to show NYC had timely actual knowledge of essential facts of claim as fact NYC employees were involved was insufficient to give actual knowledge without a report or other evidence and speculation that a report must have been prepared is not evidence of a report. Ignorance Notice of Claim requirement and counsel’s claim he miscalculated time to file it were not reasonable excuses for 2-month delay and petitioner failed to provide some evidence or a plausible argument that NYC was not prejudiced by the delay. Matter of Robinson v City of New York ✉
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MVA Notice of Claim Actual Knowledge Reasonable Excuse Prejudice NYC
Petitioners injured in MVA with NYC vehicle failed to show NYC had timely actual knowledge of essential facts of claim as fact NYC’s employees were involved was insufficient by itself to give actual knowledge and speculation that a report must have been prepared is not evidence of a report. Late Notice of Claim served without leave of court is a nullity. Petitioner failed to show a reasonable excuse for not timely serving a Notice of Claim and for the 2-month delay in bringing the petition, and failed to provide some evidence or a plausible argument that NYC was not prejudiced by the delay. Matter of Vincent v City of New York ✉
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Serious Injury Experts ROM
Defendants met burden for summary judgment on serious injury by competent medical evidence that plaintiff’s injuries did not meet threshold under permanent consequential, significant limitation, and 90/180-day categories. Plaintiff’s chiropractor failed to raise issue in opposition where he failed to identify method used to measure ROM. Dinc v Shalesi ✉
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Serious Injury ROM Causation Experts
Defendants failed to meet burden for summary judgement on serious injury against 1-plaintiff where their doctor found significant limitations in ROM and use and failed to substantiate opinion the limitations were self-imposed with competent medical evidence. Defendants’ expert also failed to meet burden of showing injuries were not caused by the accident. Almady v Martinez ✉
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MVA Preclusion Amend BP Note of Issue Reasonable Excuse Prejudice Experts Conclusory
Defendants’ motion to preclude plaintiff from introducing any evidence of an injury to his right knee granted, and plaintiff’s motion to amend the BP to include the right knee injury denied where plaintiff first mentioned the injury at a second deposition 1.5-years after Note of Issue that was held in response to a second Supplemental BP alleging surgery on his left knee, and plaintiff did not move to Amend the BP until 2-years after Note of Issue and only in response to Defendants’ motion to preclude. Plaintiff failed to show the ‘special and extraordinary circumstances’ necessary to amend after Note of Issue where he did not offer a reasonable excuse for the delay in moving to amend and his subjective complaint of the injury and his doctor’s speculative and conclusory unsworn note that the injuries were all related to the accident failed to show the amendment had merit, and defendants would be prejudiced by the amendment so long after Note of Issue. Lorincz v Castellano ✉
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CPLR § 3126 Preclusion
Plaintiff failed to show defendants did not comply with conditional order where 3-days after moving for an extension of time to respond to the order the defendants timely and substantially complied with the order. Plaintiff’s motion to preclude defendants from offering evidence at trial should have been denied. Siradze v AVB 1865 Broadway, LLC ✉
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MVA Rear End Comparative Fault Nonnegligent Explanation
Plaintiff met burden for summary judgment on liability against second vehicle and for dismissal of affirmative defense of comparative fault on his affidavit that he came to a gradual stop to avoid hitting an orange construction cone when he was twice hit in the rear by the second vehicle. Driver of second vehicle raised issue of a nonnegligent explanation on his affidavit that traffic was moving well when plaintiff jammed on the brakes in front of him, he stopped but was hit twice by the third vehicle, and after looking around, including under plaintiff’s vehicle, he saw no traffic cone. Second driver’s affidavit was not incredible as a matter of law “as it was not ‘impossible of belief because it [was] manifestly untrue, physically impossible, contrary to experience, or self-contradictory.’” Any conflict with the description in the police report which was not attributed to an identified source raised only a factual dispute and documentary evidence and photographs did not conclusively refute second driver’s account. Joseph-Felix v Hersh ✉
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Sidewalk Snow/Ice Create Condition Notice IME/DME Prejudice NYC
Plaintiff’s motion for summary judgement on claim he slipped on ice on sidewalk NYC created denied where evidence showed it snowed 3-days earlier and temperature rose above freezing in the interim but plaintiff failed to show ice he slipped on was a longstanding product of residual snow from negligent snow removal. McBride v City of New York ✉
Comment: NYC’s motion to compel plaintiff to appear for an IME/DME after it waived the IME/DME by not identifying the examining doctor within the time set in a so ordered stipulation providently granted given the lack of prejudice to the plaintiff. McBride v City of New York. |
Premises Liab Sidewalk § 7-210 Unknown Cause
Plaintiff’s testimony identifying raised sidewalk flag in photograph raised question of fact in opposition to abutting landowner’s motion for summary judgment on claim plaintiff could not identify cause of fall without speculation. Defendant failed to show he had no duty to maintain sidewalk under administrative code §7-210 or that accident happened in a tree-well. Santiago v Williams ✉
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Premises Liab Wet Floor Create Condition
Defendant which owned and managed Resorts World Casino in Queens failed to meet burden for summary judgment dismissing plaintiff’s claim she fell on a slippery substance in a rest room where its employee testified she recently cleaned the floor with a diluted cleaning solution leaving a question of whether defendant created the dangerous condition. Bianchini v Genting New York, LLC ✉
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Premises Liab Dangerous Condition Survelliance Video Renew
Store granted summary judgment on renewal where surveillance video conclusively showed plaintiff tripped over her own feet and did not step back and slip on a security tag on the floor as she claimed at deposition. Schneider v Gap, Inc. ✉
Comment: Appeal from original decision denying motion for summary judgement dismissed as academic. Schneider v Gap, Inc.. |
