| MUST READS (3 summaries) | |||
| NOTEWORTHY | IF YOU MUST READ | ||
 Motion by co-owner of premises where plaintiff tripped and fell on abutting sidewalk to vacate default judgment as a nullity under CPLR §1015(a) because the other co-owner died before the action was started denied as to the surviving owner as they were presumed joint tenants, jointly and severally liable. Defendant failed to show a reasonable excuse for 4-year delay in moving to vacate and his conclusory statements of improper service were insufficient to rebut the presumption of proper service from the process server’s affidavit. Without a reasonable excuse, the court did not need to consider whether there was a meritorious defense. Cerullo v City of New York ✉ |
| Defendant met burden for summary judgment on serious injury but plaintiff raised issues of fact on permanent consequential and significant limitation categories. Plaintiff was not required to submit evidence of contemporaneous quantitative measurements in order to raise an issue and defendant failed to show the injuries were not caused by the accident. Case remanded for consideration of defendant’s motion for summary judgment on liability which the lower court deemed academic. De Castillo v Reado ✉ |
| Defendants failed to meet burden for summary judgment dismissing claim of CBS employee who slipped and fell on ice in defendants’ parking lot on claim it was an out of possession owner as it had presumptive control of the parking lot where the agreement to allow CBS employees to park in the lot for one day was a license, not a leasehold interest, and they failed to show they did not have actual or constructive notice of the condition. Russo v Old Westbury Hebrew Congregation ✉ |
| NOTEWORTHY (7 summaries) | |||
| MUST READS | IF YOU MUST READ | ||
| Motion of owner of building where plaintiff slipped and fell in restaurant he worked at to preclude plaintiff from using photographs of the scene at trial or on dispositive motions granted where plaintiff denied having any photos in response to defendant’s demand, testified he gave copies of photographs taken 2-months after the accident to his attorney but claimed he lost the cell phone he used to take the photos, turned over photographs taken at an unspecified time 2-years after defendant’s original demand, and claimed he could not provide the metadata for the photographs requested in a subsequent demand and court order because his cell phone was lost without showing it was impossible to obtain the metadata or give details of the loss of his cell phone or the format of the photographs given to his attorney that were eventually disclosed. His willful/contumacious refusal to comply with discovery demands and court orders was shown by his repeated failure to provide them without a reasonable excuse. Order adhering to the original decision on plaintiff’s motion to renew or reargue was appealable as a motion to reargue since the plaintiff presented no new facts or reasonable excuse for not including them in the original motion and the lower court considered the merits. Huseinovic v Lee Wilson Mgt., LLC ✉ Comment: Restaurant’s motion to dismiss on general release entered into by plaintiff as part of his employment separation agreement granted where the release covered all causes of action of any kind. Huseinovic v Lee Wilson Mgt., LLC. |
| Lower court improvidently denied motion to vacate $401,217.88 default judgment for assault, entered after inquest, finding no reasonable excuse for the failure to answer where affirmation of defendant’s former attorney provided a “detailed and credible explanation of the default” by law office failure. Defendant raised a potentially meritorious defense of comparative fault on evidence that plaintiff asked defendant to throw the liquor bottle to her which struck her face. Zirrith v Rego ✉ |
| GC failed to meet burden for summary judgment dismissing HVAC worker’s Labor Law §200 and negligence claims for slip and fall on construction dust/debris on stairs where it was at least partially responsible for cleaning the stairs and it failed to show it did not create the condition and lacked actual or constructive notice without proof of the last time it cleaned/inspected the stairs. GC granted summary judgment on Labor Law §241(6) claim as industrial code §23-1.7(e)(1)(tripping hazard – passageways) did not apply where plaintiff claimed he slipped rather than tripped, §23-1.7(e)(2)(tripping hazard – working areas) was inapplicable because the stairs were a passageway not a working area, the GC showed there was no violation of §23-1.7(f)(vertical passageways), and plaintiff’s claim of violation of §23-1.7(d) was improperly raised for the first time in his reply brief. Plaintiff’s employer and the carpentry subcontractor granted summary judgment dismissing GC’s claims for contractual indemnity where their agreements violated the GOL §5-322.1 prohibition against indemnification for a party’s own negligence. Subcontractor failed to meet burden for dismissal of GC’s claim for failure to provide a safe workplace without proof it was not on the worksite on the day of the accident and for dismissal of common-law indemnification without proof it was not the sole cause of the accident. Titov v V&M Chelsea Prop., LLC ✉ |
| City granted summary judgment dismissing plaintiff’s claim for negligent retention of police officer who put a gun to plaintiff’s head and pulled the trigger, without the gun firing, while working off-duty as a security guard at a party on proof it did not have knowledge of the officer’s propensity for violence. Incident 3-years earlier where the officer discharged his gun into the air while intoxicated that resulted in him being demoted, losing the right to carry a gun for 1-year, and required him to attend alcohol treatment was insufficient to give the city knowledge of violent propensity since it did not involve aggression or violence. Nickey v City of Mt. Vernon ✉ |
| Lower court improvidently denied plaintiff’s cross-motion to amend her Complaint where the amendment was not devoid of merit and in granting defendants’ motion to dismiss claims for sexual assault by hotel employee where amended Complaint adequately plead causes of action for negligent hiring, retention, and supervision with allegations they knew or should have known of the employee’s propensity to commit the act. Allegations of negligent hiring, retention, and supervision ‘are not statutorily required to be pleaded with specificity.’ Spina v Browning Hotel Props., LLC ✉ |
| Residential building owner failed to meet burden of showing lack of actual or constructive notice for summary judgment dismissing plaintiff’s claim for slip and fall on wet floor where its property manager described only general inspection/cleaning practice without proof of specific cleaning/inspection of the area prior to the accident. Ames v Kimso Apts., Inc. ✉ |
| Landlord granted summary judgment dismissing delivery person’s claim for injuries when tenant’s pit bull jumped on him, causing him to fall, and bit him on proof she did not and could not know of the dog’s vicious propensities, which can include jumping on people. The fact the dog was a pit bull does not meet burden of showing knowledge of vicious propensities. Common law negligence claim against tenant dismissed as NY only recognizes strict liability for dangerous domestic animals. Castillo v Berne ✉ |
| IF YOU MUST READ (1 summaries) | |||
| MUST READS | NOTEWORTHY | ||
| Defendant granted summary judgment on plaintiff’s testimony establishing she could not identify the cause of her fall on stairs within the defendants’ property without speculation. The Court does not give the details of the proofs. Osmolska v Giuseppa Morreale Family Trust ✉ |