August 2, 2022 | Vol. 324

(3 summaries)

MVA   Set Aside Verdict   Admissibility   Prejudice  

First Department
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    

Labor Law §240   Labor Law §200   Safety Devices   Sole Cause   Comparative Fault   Create Condition   Control   Indemnity   NYC  

Second Department
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    

Malpractice   Accepted Practice   Causation   Experts   Conclusory   Speculation  

Second Department
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.    

(7 summaries)

MVA   Bus   Pedestrian   Set Aside Verdict   Pain/Suffering   Materially Deviates   Speculation  

Second Department
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.    

Dogbite   Vacate Default   Reasonable Excuse   Meritorious Defense  

Second Department
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    

Motion to Dismiss   CPLR § 3126   Discovery   Reasonable Excuse   Willful/Contumacious  

Second Department
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    

Assault   Battery   Building Security   Duty   Control   Sole Cause   Intervening Cause  

Second Department
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    

Labor Law §240   Labor Law §241   Ladder   Wet Floor   Industrial Code  

Second Department
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    

Malpractice   MVA   Workers Comp   Causation  

Second Department
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.    

MVA   Pedestrian   Turning Vehicle   Comparative Fault   Premature Motion  

Second Department
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    

(3 summaries)

Arbitration   SUM  

Second Department
Carrier met burden for permanent stay of SUM arbitration on showing pedestrian was not a resident in father’s house covered by SUM policy where police report had a different address for pedestrian and pedestrian failed to raise an issue in opposition. Matter of Government Employees Ins. Co. v McCracken    

Serious Injury  

Second Department
Defendant met burden for summary judgment by competent medical evidence showing plaintiff did not sustain a serious injury under significant disfigurement, permanent consequential limitation, significant limitation, and 90/180-day categories and plaintiff failed to raise an issue in opposition. The Court does not give the details of the proofs. Brown v Williams    

Serious Injury   Renew   Reasonable Excuse  

Second Department
Defendants met burden for summary judgment on serious injury on competent medical evidence and plaintiff failed to raise an issue in opposition. The Court does not give the details of the proofs. Motion to renew denied without a reasonable explanation for not including additional evidence on original motion. Morales v Carlisi    

About Matt McMahon

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