August 18, 2020 | Vol. 224

(4 summaries)

Med Mal   Vacate Jud   Admissibility   Preclusion   CPLR § 3101(d)   Untimely  

Second Department

Trial court providently refused to allow plaintiffs to call radiologist in rebuttal where they put ultrasound image in evidence, published blowup to jury, and their expert testified extensively regarding ultrasound as rebuttal would only bolster direct testimony. Trial court also providently denied mid-trial application to preclude defendants’ expert’s testimony on causation based on CPLR §3101(d) deficiencies where deficiencies were readily apparent and “could have been raised, and potentially cured, prior to trial.” Goldsmith v Kipnis

Labor Law §240   Falling Object   Causation   Safety Devices   Hearsay   Raised For First Time  

Second Department

Plaintiff unable to establish plank that hit his head fell due to lack or inadequacy of safety device under Labor Law §240(1) where he did not see it fall and relied solely on statements of others. Statement in daily log, submitted as a business record, was not admissible for truth, and only established that an object fell injuring worker. Evidence submitted for first time in reply should not be considered. Henriquez v Clarence P. Grant Hous. Dev. Fund Co., Inc.

Vacate Default   CPLR § 3126   Renew   Reargument   Reasonable Excuse   Willful/Contumacious  

Second Department

Plaintiffs’ motion to renew/reargue denial of motion to vacate conditional order of preclusion denied and cross motion for final order of preclusion granted where plaintiffs failed to appear for EBT over 13-months despite 3-court orders or to provide reasonable excuse for not appearing supporting inference conduct was willful/contumacious. No appeal lies from denial of a motion to reargue and renewal denied where plaintiffs did not give a reasonable explanation for not initially providing the doctor’s note to substantiate 1-plaintiff’s claim that a medical condition caused default. Bellevue v Gustav

MVA   Late Notice of Claim   Reasonable Excuse   Meritorious Action   Serious Injury   Reckless   Court of Claims  

Second Department

Motion to serve late Notice of Claim 3-years after claimants were involved in accident with snowplow denied for failure to provide a reasonable excuse for 3-year delay and claimants failed to show a serious injury or that snowplow was driven recklessly as required by VTL §1103(b). Cox v New York State Thruway Auth.

(11 summaries)

Wrongful Death   Motion to Dismiss   Statute of Limitations  

Second Department

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.

MVA   Late Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice  

Second Department

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.

Labor Law §240   Labor Law §241   Labor Law §200   Agent   Control  

Second Department

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.

MVA   Bicycle   Rear End   There to be Seen   Nonnegligent Explanation  

Second Department

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

Premises Liab   Burden of Proof  

Second Department

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.

Premises Liab   Dangerous Condition   Foreseeability   Vicarious Liab  

Second Department

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.

Premises Liab   Slip/Trip   Snow/Ice   Create Condition   Indemnity  

Second Department

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.

Motion to Dismiss   Personal Juridiction   Service   Traverse Hearing  

Second Department

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

MVA   There to be Seen   Sole Cause  

Second Department

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

MVA   Rear End   Pileup   Question of Fact  

Second Department

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

MVA   Rear End   Nonnegligent Explanation   Premature Motion  

Second Department

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

(2 summaries)

Uninsured   Stay Arb  

Second Department

Conditional notice that policy would be cancelled unless insured submitted business use questionnaire sent by carrier for vehicle that rear-ended claimant was mere expression of intent to cancel and not effective cancellation and since policy was in force for more than 60-days it could only be cancelled for fraud or material misrepresentation. Permanent stay granted as tortfeasor’s policy was not effectively cancelled. Matter of Unitrin Direct Ins. Co. v Barrow

Serious Injury   Degenerative   Expert Aff  

Second Department

Defendants met burden for summary judgment on serious injury by competent medical evidence and plaintiff failed to raise an issue in opposition. Affirmed report of plaintiff’s expert failed to address defendants’ expert’s opinion that injuries were degenerative. The Court does not give the details of the proofs. McMahon v Negron

Comment: The Court does not mention whether evidence of degeneration was contained in plaintiff’s medical records as would be required to switch the burden to plaintiff in the First Department.

About Matt McMahon

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