August 21, 2018 | Vol. 120

MUST READS
(8 summaries)
NOTEWORTHY IF YOU MUST READ

Set Aside Verdict   Pain/Suffering   Materially Deviates  

Second Deptartment

1.2/3.0-million-dollar past/future pain/suffering verdict set aside as materially deviating from reasonable compensation unless plaintiff agreed to reduction of 750k/1.25-million-dollars for 46-year-old with surgical inguinal hernia; multiple herniated discs with unsuccessful surgery resulting in incontinence, RSD, and permanent work disability. Plaintiff fell 2’ from ladder and was granted summary judgment on liability. Garcia v CPS 1 Realty, LP


Late Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice  

Second Deptartment

School district had actual knowledge of pattern of verbal and physical bullying, not just the discrete incidents, from infant-petitioner’s complaints to guidance counselors over a period of years. Diagnoses of depression and anxiety after she left district could be considered related to her infancy. District’s general claim of prejudice because 2 of 3 guidance counselors no longer worked for school was not a particularized showing of prejudice. Lack of reasonable excuse did not require denial of petition. Matter of C.B. v Carmel Cent. Sch. Dist.


Asbestos   Statute of Limitations   Fraud  

Second Deptartment

Action for asbestos exposure at Nassau Coliseum brought against county and NY Islanders more than 3-years after worker became aware of exposure and injury barred by statute of limitations. CPLR § 214-c. “Two-injury rule,” that would start SOL from separate injury inapplicable where timely injuries were not “separate and distinct and qualitatively different from those sustained earlier.” Fraudulent concealment of asbestos danger barred against county by 1-year-90-day SOL. O’Brien v County of Nassau


Motion to Dismiss   Reasonable Excuse   Meritorious Action  

Second Deptartment

Plaintiff must show reasonable excuse and meritorious action to avoid dismissal for failure to timely serve Complaint upon demand under CPLR 3012(b). Law office failure may be a reasonable excuse but not where attorney claimed non-receipt of mailed demand that was also e-filed, generating an automatic e-mail of the demand to the attorney. Mazzola v Village Hous. Assoc., LLC

Comment: E-filing is taking away the ambiguity that regular mail used to create. It is best to time all responses from the time of e-filing and receipt of the automatic e-mail.


Med Mal   Late Notice of Claim   Court of Claims   Actual Knowledge   Meritorious Action   Reasonable Excuse  

Second Deptartment

Motion to serve late Notice of Claim in Court of Claims 20 months past 90-days where counsel was hired 74 days after accrual should have been denied where excuse that lawyers delayed in getting medical record and expert opinion was law office failure, not a reasonable excuse. Medical records which did not show malpractice or negligent hiring on their face did not provide actual knowledge. Claimant failed to show that defendant had an opportunity to investigate while memories were fresh, and that the defendant was not prejudiced by delay. Without an affidavit of merit from a physician, claimant failed to show a meritorious action. Claimants also had another remedy in Supreme Court suit against rehab center. Decker v State of New York


Workers Comp Defense   Control   Feigned Issue  

Second Deptartment

Property owner that controlled and directed plaintiff’s work was a special employer entitled to the exclusivity provision of Workers Compensation based on testimony of plaintiff, production manager, and plant supervisor. Plaintiff’s affidavit stating that he was not supervised by defendant contradicted his prior testimony and did not raise an issue of fact. James v Crystal Springs Water


Estate  

Second Deptartment

Mother as guardian of infant’s $5.9 million property from lawsuit over father’s death allowed to withdraw $50,000 over a 1-year period for support and education of infant given that amount represented less than 1% of estate and costs were reasonable. Matter of John J. S. (Maria S.)


Vacate Default   Late Notice of Claim  

Second Deptartment

Plaintiff’s Order to Show Cause to restore case to active calendar and deem late Notice of Claim timely served, brought 12 years after action marked disposed, denied based on service of defective copy of the OSC caused by court clerk error, remitted for decision where defect was merely technical. Young v City of New York

NOTEWORTHY
(10 summaries)
MUST READS IF YOU MUST READ

Dangerous Condition   Notice   Res Ipsa Loquitor  

Second Deptartment

Producer of San Gennaro Feast, and vendor, granted summary judgment where they did not have notice of defect in aluminum awing of kiosk that fell on plaintiff. Plaintiff failed to raise issue of fact on notice or adequately dispute that res ipsa loquitor did not apply. The court did not detail why res ipsa loquitor did not apply. Cavounis v Figli Di San Gennaro, Inc.


Premises Liab   Slip/Trip   De Minimus   CPLR § 3101(d)  

Second Deptartment

Defendants’ met burden of showing that depressed tile was trivial in that it was physically insignificant and did not increase the risks given the surrounding circumstances based on their expert’s affidavit, photographs identified by plaintiff, and plaintiff’s testimony. Court providently considered expert’s opinion not noticed before Note of Issue was filed. Cobham v 330 W. 34th SPE, LLC


Late Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice  

Second Deptartment

Petition to serve late Notice of Claim or deem untimely Notice of Claim timely served nunc pro tunc denied where essential facts underlying claims of false arrest, false imprisonment, and malicious prosecution could not be inferred from arrest and disposition documents. Assigned counsel not advising petitioner of need for Notice of Claim was not reasonable excuse and petitioner failed to show excuse for further 2-month delay between serving untimely Notice of Claim and petition, and that NYC was not prejudiced by delay. Matter of Islam v City of New York


Legal Mal   Med Mal   Amend Complaint   Motion to Dismiss  

Second Deptartment

Estate administrator providently granted leave to amend complaint to substitute herself as administratrix as plaintiff where Complaint recited history of her appointment so that there was no surprise. Defendants’ motion to dismiss denied. D’Angelo v Kujawski


Premises Liab   Notice   Res Ipsa Loquitor   Hearsay  

Second Deptartment

School district entitled to summary judgment as plaintiff failed to show that it had notice of defect in chair in custodian break room that broke when he sat on it. Unsubstantiated hearsay insufficient to raise issue of fact in opposition and res ipsa loquitor didn’t apply since chair, accessible to third-party contractors, was not within district’s exclusive control. Brennan v Wappingers Cent. Sch. Dist.


Legal Mal   Premises Liab   Storm in Progress   Causation  

Second Deptartment

Defendants granted summary judgment on legal malpractice claim where testimony and meteorological data established a storm in progress and that building owner did not create or exacerbate condition. Defendants showed that plaintiff would not have been successful in underlying case, a necessary element of legal malpractice. Blair v Loduca


Premises Liab   Slip/Trip   Snow/Ice   Notice   Create Condition   Unknown Cause   Notice of Claim  

Second Deptartment

Plaintiff sufficiently identified the ice patch in her deposition and defendant failed to show that there was no ice with just a general description of ice removal efforts, resulting in denial of school district’s motion for summary judgment. Inadequate lighting claim dismissed as it was not in the Notice of Claim. Pickles v Hyde Park Cent. Sch. Dist.


Premises Liab   Building Security   Foreseeability   Intervening Cause  

Second Deptartment

Movie theater entitled to summary judgment on proof that altercation between patrons over parking spot was not reasonably predictable but a sudden unforeseeable event. Muzafarov v Casallas-Gonzalez


Negligent Supervision   Notice   Intervening Cause  

Second Deptartment

School district entitled to summary judgment where infant was pushed by another student running in the hallway because it did not have notice of prior misconduct by offending student and act was impulsive and unforeseeable. Ramirez v Brentwood Union Free Sch. Dist.


Negligent Supervision   Foreseeability  

Second Deptartment

County granted summary judgment on proof that attack on plaintiff-inmate was not foreseeable. Gilhooly v County of Suffolk

IF YOU MUST READ
(1 summaries)
MUST READS NOTEWORTHY

Emotional Harm  

Second Deptartment

Plaintiff failed to raise issue of fact in opposition to cemetery’s prima facie entitlement to summary judgment on intentional infliction of emotional harm claim where father’s grave collapsed while digging mother’s adjoining grave and mother was buried in a different section. The court does not give the details of the claim. Bekkerman v Mount Carmel Cemetery Assn.

About Matt McMahon

Civil trials and appeals since 1984
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