Wrongful Death Motion to Dismiss Statute of Limitations
Defendant’s motion to dismiss wrongful death action granted on proof action was started more than 2-years after death. No criminal action was commenced as required for an extension of 2-year statute of limitations under EPTL §5-4.1(2). Castro v Rochdale Vil., Inc.
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MVA Late Notice of Claim Actual Knowledge Reasonable Excuse Prejudice
Plaintiff’s subsequent attorney’s unsubstantiated claim initial attorney was unaware of 90-day Notice of Claim requirement insufficient to establish reasonable excuse for failure to serve within 90-days and Notices of Claim served 5-months after accident did not provide actual knowledge within a reasonable time after the 90-days. Plaintiff did not provide reasonable excuse for additional 6-month delay in seeking leave to serve late Notice of Claim. Police report showing police had knowledge of the accident was insufficient by itself to establish actual knowledge of the essential facts on the municipal defendants and there was no proof the accident was reported to the municipal defendants within 90-days. Plaintiff failed to show lack of prejudice by evidence or plausible argument. Durand v MV Transp., Inc.
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Labor Law §240 Labor Law §241 Labor Law §200 Agent Control
General contractor granted summary judgment on proof construction manager hired HVAC subcontractor who in turn hired sheet metal contractor which employed plaintiff who was injured while transporting ductwork up a makeshift ramp as general contractor was not an agent of the owner under Labor Law §§240(1) and 241(6) for the work being performed by plaintiff since it did not have the right to control the plaintiff’s work. Without ability to control plaintiff’s work, general contractor could not be liable under Labor Law §200 or negligence and it showed that it had completed its work and was not on the site on the day of the accident. Fiore v Westerman Constr. Co., Inc.
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MVA Bicycle Rear End There to be Seen Nonnegligent Explanation
Truck driver granted summary judgment on proof he was stopped or stopping to park when plaintiff struck the rear of the truck with his bicycle. Plaintiff failed to maintain a safe distance as required by VTL which subjects bicyclists to same rules as motorists under VTL §1231, and failed to see what was there to be seen. Plaintiff’s claim that truck made a sudden stop before trying to park insufficient to raise a nonnegligent explanation. Greene v Raskin
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Premises Liab Burden of Proof
Plaintiff failed to show that wedding hall or its employee who bumped into her while backing up were negligent as opposed to it being just an incidental part of life. Kleiner v Crystal Ball Group, Inc.
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Premises Liab Dangerous Condition Foreseeability Vicarious Liab
Hospital granted summary judgment where plaintiff-patient struck by pantry door as nurse opened it on proof door was not defective, complied with all safety standards, and nurse did not negligently open door. Hospital could not be vicariously liable for nurse since accident was unforeseeable. The Court does not give the details of the proofs. Dresher v White Plains Hosp. Med. Ctr.
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Premises Liab Slip/Trip Snow/Ice Create Condition Indemnity
Condominium failed to meet burden of showing its prior snow removal efforts did not create black-ice condition plaintiff slipped on in condominium parking lot requiring denial of summary judgment. Snow contractor’s motion for summary judgment on indemnity claim denied where it failed to show condominium was negligent and it was free from negligence. Cohen v Woodlands Condominium Assn.
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Motion to Dismiss Personal Juridiction Service Traverse Hearing
Process server’s testimony at traverse hearing before court attorney referee that he remembered serving father, person of suitable discretion, and doing follow up mailing, supported by photograph with date, time, and GPS coordinates of service and defendant’s concession that father was co-tenant established proper service. Defendant’s unsubstantiated testimony that father was out of country at time of service, with questionable knowledge of fact, insufficient to deem service improper. Sturrup v Scaria
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MVA There to be Seen Sole Cause
Driver of car plaintiff was passenger in entering intersection without stop sign failed to make out entitlement to summary judgment on proof that other vehicle entering intersection from street controlled by stop sign failed to yield right of way. Testimony raised issue of whether driver with right of way reasonably looked for other vehicles entering intersection. Tornabene v Seickel
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MVA Rear End Pileup Question of Fact
Second car in 3-car pileup denied summary judgment, made prior to discovery, where conflicting affidavits of plaintiff and 2nd-car driver left questions of fact. Rahman v Montesdeoca
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MVA Rear End Nonnegligent Explanation Premature Motion
Plaintiff entitled to summary judgment on proof defendant rear-ended car where she was a passenger and defendant failed to raise an issue in opposition or on claim that motion was premature. Lopez v Suggs
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