MVA Set Aside Verdict Admissibility Prejudice
 Trial court improvidently granted defendants’ motion to set aside verdict where defendant mentioned she may have contacted her insurance carrier, asked codefendant for insurance information, and sent videos to her carrier since two of the references were elicited by defense counsel of his own client and defendants made no objection to defendant’s mention of insurance on plaintiff’s cross-examination of defendant. A passing reference to insurance is not prejudicial and there was no intention by plaintiff to illicit defendant’s response. Matter remitted for determination of defendants’ grounds to set aside verdict not addressed by trial court. Gbadehan v Williams ✉
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Labor Law §240 Labor Law §200 Safety Devices Sole Cause Comparative Fault Create Condition Control Indemnity NYC
 Worker injured when aluminum planks across shaft opening gave way as he stepped on them granted summary judgment on Labor Law §240(1) against owner, building manager, and GC as the planks were not adequate safety devices. Argument that plaintiff’s failure to heed foreman’s instruction not to enter shaft was sole cause of the accident rejected as such instructions do not take the place of a “‘safety device,'” and are at best comparative fault, not a defense under §240. Concrete subcontractor’s motion for summary judgment dismissing Labor Law §200 claim denied where it failed to eliminate questions of whether it created a dangerous condition by placing the aluminum planks above the shaft regardless of whether it could control plaintiff’s work.
GC granted conditional summary judgment on contractual indemnity claim against plaintiff’s employer to the extent not caused by GC’s own negligence, and concrete subcontractor’s motion for summary judgment dismissing GC’s contractual and common law indemnity claims denied as the agreements provided for the broadest indemnity allowed by law, to the extent not caused by the GC’s own negligence, and questions remained of whether concrete contractor created the dangerous condition. Zong Wang Yang v City of New York ✉
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Malpractice Accepted Practice Causation Experts Conclusory Speculation
NYCHHC granted summary judgment on board certified psychiatrist’s expert opinion that discharging doctor made a reasonable decision to discharge decedent and refer him to an outpatient clinic finding he was no longer an immediate risk to himself and plaintiff’s expert failed to raise an issue on opinions that were conclusory, speculative, and not supported by the record. Deviation from accepted practice requires a showing that a decision to release a psychiatric “patient was something less than a professional medical determination founded upon a careful examination of the patient.” Gaston v New York City Health & Hosps. Corp. ✉
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MVA Bus Pedestrian Set Aside Verdict Pain/Suffering Materially Deviates Speculation
Verdict awarding $3mil/$2.5mil past/future pain/suffering to pedestrian struck by bus which it ran over his foot did not materially deviate from reasonable compensation where he sustained degloving injury to the foot and open fractures and dislocations of his toes requiring life-saving surgery including amputation of his big toe, hospitalization for 29-days, confinement to a wheelchair for 6-7 months, use of a walker for another 2-months, and future surgeries and plaintiff was unable to return to work, permanently unable to stand for more than 2-minutes without cane or crutches, and developed arthritis with significant neurogenic pain. Award of $600,000 for future medical expenses set aside unless plaintiff stipulated to reduce it to $450,000, the amount his treating doctor testified to, as the additional $150,000 was speculative. Wynter v Transdev Servs., Inc. ✉
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Dogbite Vacate Default Reasonable Excuse Meritorious Defense
Lower court improvidently granted defendant’s motion to vacate default in opposing plaintiff’s motion for default judgment compelling plaintiff to accept defendant’s Answer where defendant failed to offer a reasonable excuse for not answering, including proof of claim that plaintiff agreed to extend time to answer, or for the 3-month delay in moving to vacate the default. The Court did not need to address the issue of a meritorious defense. Osmanovic v Barbato ✉
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Motion to Dismiss CPLR § 3126 Discovery Reasonable Excuse Willful/Contumacious
Defendant’s motion to strike the Complaint for plaintiff’s failure to appear for EBT in violation of court orders granted as such repeated failures to comply with court-ordered discovery can be considered willful and contumacious where plaintiff fails to offer a reasonable excuse for not complying. Sheikh v Poplardo ✉
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Assault Battery Building Security Duty Control Sole Cause Intervening Cause
Homeowner granted summary judgment dismissing claim by woman who was assaulted by homeowner’s estranged husband at house as homeowner did not have the opportunity to control her estranged husband’s conduct while he was a guest at her house and would not have reasonably known of the need to control his conduct. Estranged husband’s assault was sole cause of plaintiff’s injuries and any acts/omissions of the homeowner provided no more than the conditions for the occurrence. Maruca v DiGesu ✉
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Labor Law §240 Labor Law §241 Ladder Wet Floor Industrial Code
Worker injured while trying to avoid a fall from a ladder granted summary judgment under Labor Law §240(1) on his deposition testimony and defendant failed to raise an issue in opposition. Worker also granted summary judgment on Labor Law §241(6) predicated on industrial codes §§ 23-1.7(d) and 23-1.21(b)(4)(ii) as wet concrete on floor where A-frame ladder was placed was a slippery footing and condition under these codes. Ennis v Noble Constr. Group, LLC ✉
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Malpractice MVA Workers Comp Causation
Law firm granted summary judgment dismissing legal malpractice claim that they failed to advise plaintiff she was entitled to workers comp where her comp claim was denied as untimely, on proof that she would not have prevailed on her comp claim because she was exposed to a “risk shared by the general public” not a special hazard from her employment when she was struck by a car while going to her car in a parking lot used by the public after her shift. Provenzano v Cellino & Barnes, P.C. ✉
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MVA Pedestrian Turning Vehicle Comparative Fault Premature Motion
Pedestrian granted summary judgment on liability and dismissal of comparative fault defense on proof she was in crosswalk and halfway across street when struck by defendant’s vehicle while it made a right turn, and she had confirmed light was in her favor and checked both ways before crossing. Defendant failed to provide an evidentiary basis that further discovery would lead to information necessary to oppose the motion, or that such information was solely withing the possession of the plaintiff. Xiuying Cui v Hussain ✉
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