August 22, 2017 | Vol. 68

MUST READS
(7 summaries)
NOTEWORTHY IF YOU MUST READ

Med Mal   Discovery   Privilege  

Second Deptartment

Plaintiff’s motion to compel nursing home to disclose incident reports relating to plaintiff’s decedent’s prior falls granted and nursing home’s motion for protective order denied where the affidavit of the nursing home administrator, privilege log, and in camera inspection of 3 reports showed that the documents were copied by and not generated by or at the behest of the nursing home’s quality assurance committee. Robertson v Brookdale Hosp. Med. Ctr.


Labor Law §241   Industrial Code  

Second Deptartment

Defendant granted summary judgment on Labor Law §241(6) claim based on industrial code provisions requiring repair of safety defects which were insufficiently specific and which were overridden by a separate industrial code provision specifically excluding backup alarms on crawler-mounted excavators like the one that struck the plaintiff. Summary judgment denied on separate industrial code provision §23-4.2(k) (proximity to excavation equipment and material) where defendant failed to show that it did not apply. Zaino v Rogers


Notice of Claim   50-H   Assault   Negligent Hiring   Wrongful Death   Emotional Harm  

Second Deptartment

Claims of assault, battery, and negligent hiring not pled in the Notice of Claim dismissed. 50-H testimony can be used to interpret the Notice of Claim but it cannot be used to add theories not in the Notice of Claim. Summary judgment granted on negligent infliction of emotional harm claims, which were in the Notice of Claim, alleging failure to provide timely medical treatment after the plaintiff’s decedent’s arrest where he later succumbed to a heart attack as defendants sought medical treatment for plaintiff’s decedent immediately after he complained of chest pain. Davis v City of New York


Labor Law §240   Labor Law §241   Labor Law §200   Sole Cause   Control  

Second Deptartment

Building owner and GC granted summary judgment on Labor Law §240(1) on ground that plaintiff, who chose to walk on an unsecured wooden plank that he had just laid rather than on secured planks which he had used minutes before, was the sole proximate cause of his injury. Labor Law §241(6) claims dismissed as defendants showed that the alleged violations of the industrial code were not a proximate cause of the plaintiff’s injuries or they did not apply to the facts of the case. GC granted summary judgment on Labor Law §200 and negligence claims because it did not have the ability to control the manner in which the work was performed. Melendez v 778 Park Ave. Bldg. Corp.


Labor Law §240   Labor Law §241   Ladder   Scaffold   Industrial Code   Sole Cause  

Second Deptartment

Worker who stacked 2 Baker scaffolds and an unopened A-frame ladder to perform sheet rock which caused scaffolds to fall met his initial burden for summary judgment on Labor Law §240(1) but defendant raised an issue of fact on sole proximate cause by showing that pipe scaffolds were available, provided adequate protection, and that plaintiff “based on his training, prior practice, and common sense, knew or should have known to use pipe scaffolds,” and that the work could have been performed without the unopened A-frame ladder. Plaintiff failed to meet his prima facie burden on Labor Law §241(6) predicated on industrial code §23-1.21(b)(4)(ii) (ladder footings). Nalvarte v Long Is. Univ.

Comment: This decision goes beyond the more typical situation where there is a direct instruction to use a specific safety device on the day of the accident to allow proof, at least in a summary judgment setting, based on knowledge, custom and practice, and common sense.


False Arrest   Malicious Prosecution   1983 Action   Amend Complaint   Motion to Dismiss   Statute of Limitations  

Second Deptartment

Defendant granted summary judgment on 1983 claim where plaintiff failed to allege sufficient facts to show that officer, an employee below the policymaking level, acted under a municipal custom or policy and plaintiff’s allegation was insufficient without factual allegations of the nature of the conduct, policy or custom. Plaintiff’s motion to expand its cause of action in the Complaint for 1983 claim denied where the amendment did not contain sufficient facts to make out the cause of action and, therefore, was palpably insufficient. The lower court providently exercised its discretion in denying plaintiff’s motion to amend the Complaint to add a cause of action for malicious prosecution, as the statute of limitations had passed and the original Complaint did not give notice of any claims for the commencement or continuation of the criminal proceeding so that the relation back doctrine did not apply. Denial of plaintiff’s motion to add the detective as a defendant after the expiration of the statute of limitation denied as the relation back doctrine did not apply where the detective did not know and should not have known that but for a mistake he would’ve been included in the action. Martin v City of New York


Set Aside Verdict  

Second Deptartment

Plaintiff’s motion to set aside defense verdict because the court stenographer fell asleep during portions of the defendants’ summation, was unable to provide read backs, court reporter died after the trial, and the parties were unable to reconstruct and settle the transcript. Since the inability to create an accurate copy of the trial transcript impairs the right of appeal, the verdict must be set aside in civil cases . Monaco v New York City Tr. Auth.

NOTEWORTHY
(21 summaries)
MUST READS IF YOU MUST READ

Med Mal   Bankruptcy  

Second Deptartment

Defendant and third-party defendant granted summary judgment where plaintiff’s decedent did not list malpractice claim on her schedule of assets in bankruptcy case and knew or should have known of the claim at that time. She lacked standing to bring the action. Keegan v Moriarty-Morris


Med Mal   Untimely   Reasonable Excuse   Meritorious Action  

Second Deptartment

Medical malpractice action dismissed where plaintiff failed to timely serve a Complaint in response to a demand pursuant to CPLR §3012(b), failed to give a reasonable excuse for the delay, or show a meritorious cause of action. Riley v Health & Hosp. Corp.


Labor Law §240   Labor Law §200   Create Condition   Notice   Falling Object   Dangerous Condition  

Second Deptartment

Residence owner whose company built a plywood fence around the construction site which fell and struck employee of subcontractor while he retrieved his tools granted summary judgment on Labor Law §240(1) because fence was not in the process of being hoisted or secured and did not need to be secured for the purposes of the undertaking as required in falling object cases, but denied summary judgment on Labor Law §200 and negligence claims for failing to show that they did not create the condition or have actual or constructive notice of it as required for summary judgment in cases premised on a dangerous condition. Berman-Rey v Gomez


Ins. L. § 3420(a)(2)   Coverage   Hearsay   Admissibility  

Second Deptartment

Carrier which disclaimed in underlying personal injury suit resulting in a judgment after inquest, failed to meet its initial burden for summary judgment in action by underlying plaintiff to collect judgment under Ins. L. §3420 where it submitted letters and memos from defense counsel and an investigator it hired in the underlying case attributing certain statements to the insured which were hearsay and carrier failed to show that they met any exception to the hearsay rule. DeLuca v RLI Ins. Co.


Labor Law §240   Labor Law §241   Labor Law §200   Workers Comp Defense   Alter Ego   Agent  

Second Deptartment

Lessee denied summary judgment on its claim that plaintiff’s employer was its alter ego where it failed to establish that the 2 entities operated as a single integrated company or that either controlled the day-to-day operations of the other. Lessee’s motion for summary judgment on claim that it was not an owner or agent within the meaning of Labor Law denied for failure to meet its prima facie burden of proof. Guminiak v VGFC Realty II, LLC


Negligent Supervision   Foreseeability   Causation  

Second Deptartment

School district failed to meet its initial burden by submitting evidence establishing triable issues of fact as to whether it knew of the student’s dangerous propensities from prior altercations in the recent past and that the incident, where the studernt grabbed the infant-plaintiff’s hair and slammed his head into a table, occurred so quickly and spontaneously that it could not be prevented by any degree of supervision. Rt v Three Vil. Cent. Sch. Dist.


Premises Liab   Snow/Ice   Slip/Trip   Question of Fact  

Second Deptartment

School district denied summary judgment based on its custodian’s testimony that he inspected the area 1.5 hours before the accident, that he saw no ice, and that it was sanded and salted where testimony of plaintiff and 2 eyewitnesses, included in the defendant’s motion papers, was that the area was icy and slippery and had no salt or sand, raising questions of fact. Ross v Half Hollow Hills Cent. Sch. Dist.


MVA   Personal Juridiction   Premature Motion  

Second Deptartment

Action against truck driver who resided in New Jersey and truck company in Pennsylvania for accident occurring in Virginia dismissed for lack of personal jurisdiction where plaintiff failed to raise a triable issue regarding whether defendants conducted meaningful business in New York substantially related to the subject matter of the action. Plaintiff failed to show that further discovery would uncover evidence not available to respond to the motion. Santiago v Highway Frgt. Carriers, Inc.


Professional Malpractice   Set Aside Verdict   Admissibility  

Second Deptartment

Acupuncturist who conceded liability denied motion to set aside $200,000 verdict based on objections to plaintiff’s counsel leading the 87-year-old plaintiff and permitting testimony from a non-treating expert physician regarding medical history given by the injured plaintiff. Trial court has wide latitude in controlling the conduct of the trial and any error shall be disregarded if it does not prejudice a substantial right of the party. Rosenberg v Jing Jiang


Dental Mal   Accepted Practice   BP   Expert Aff   Informed Consent  

Second Deptartment

Defendants denied summary judgment where they did not address each of the allegations of malpractice contained in plaintiff’s BP. While they submitted a signed consent form, they also submitted the plaintiff’s deposition which raised factual disputes as to whether she was properly advised before signing each of the forms regarding the extraction of a wisdom tooth and a subsequent surgery to remove the root of the wisdom tooth. Mathias v Capuano


Labor Law §240   Labor Law §241   Control   Agent  

Second Deptartment

Construction manager granted summary judgment where its contract detailed responsibility for coordinating work relating to the #7 subway extension project but did not confer authority to supervise and control the work being performed by the plaintiff. It was not an owner or an agent. Lamar v Hill Intl., Inc.


MVA   Premises Liab   Sidewalk   Causation   Set Aside Verdict   NYC  

Second Deptartment

Motion to set aside verdict in favor of NYC, finding NYC negligent but not a proximate cause of the plaintiff’s injury, denied where plaintiff struck a raised sidewalk flag while riding a motorized bicycle on a sidewalk at a fast rate in a darkened area which he acknowledged he should not have been doing, as a reasonable view of the evidence supported the jury’s finding of no causation. Graziano v City of New York


MVA   Comparative Fault  

Second Deptartment

Plaintiff granted summary judgment on proof that defendant entered the intersection without stopping at a red light in violation of VTL §§1110(a) and 1111(d)(1), establishing both defendant’s fault and absence of comparative fault. Lanicci v Hansen


Premises Liab   Unknown Cause   Speculation  

Second Deptartment

Landscaping company granted summary judgment where plaintiff testified that she tripped when her foot went underneath a floor mat that she assumed had been lifted immediately prior to her fall by a leaf blower operated by the landscaper. The plaintiff’s assumption was speculation. Razza v LP Petroleum Corp.


Premises Liab   Sidewalk   § 7-210   De Minimus  

Second Deptartment

Adjoining landowner granted summary judgment where plaintiff tripped on sidewalk due to missing caulk between 2 sidewalk flags leaving a gap of approximately 1” since the defect was physically insignificant and the surrounding circumstances did not pose an increased risk. Melia v 50 Ct. St. Assoc.


Sepulcher  

Second Deptartment

Legal Guardian appointed after the decedent sustained a traumatic brain injury in a motor vehicle accident requiring round-the-clock institutional care, and the facility where he died 27 years later, granted summary judgment on proof that the rehabilitation center made diligent efforts to locate the decedent’s family, who had only sporadic contact for the last 20 years of his life, to notify them of the death, including calling 411, leaving voicemail messages on 2 possible phone numbers, contacting USPS and local police to find information about a PO box address on a birthday card sent to the decedent, after which the guardian held a funeral on the belief that the family was not “reasonably available” or expected to become reasonably available under Public health Law §4201 which specifically provided that someone disposing of remains on the reasonable belief that it is consistent with the statute is not subject to civil liability. Defendants showed that under the circumstances the plaintiffs were not reasonably available to control the remains of decedent and plaintiffs failed to raise a triable issue in response. Martin v Ability Beyond Disability


MVA   Premature Motion  

Second Deptartment

Pedestrian’s motion for summary judgment denied as premature where no discovery was conducted and affidavits submitted by plaintiff and defendant alleged different facts. Han v Gladyshev


Defamation   Privilege   Qualified Immunity  

Second Deptartment

Statements made by bank and its principals to recruiting firm that placed terminated employee entitled to qualified common interest privilege which could be overcome by proof of either common law or actual malice. The complaint alleged sufficient facts to support allegations of malice and must be taken as true for purposes of the motion to dismiss. Ferrara v Bank


Discovery   Premature Motion  

Second Deptartment

Plaintiff’s motion for summary judgment brought 2 months after defendant answered and prior to discovery denied as premature. Chander v Eagle Sanitation, Inc.


Serious Injury   Expert Aff   ROM  

Second Deptartment

Defendants denied summary judgment on serious injury where their expert found significant limitations in ROM of the spine and he failed to adequately explain and substantiate his belief that they were self-imposed. Castro v Anthony


Appealable Order  

Second Deptartment

Appeal from order denying third-party defendant’s motion for summary judgment as moot upon the mistaken belief that it had not answered dismissed as plaintiff and individual defendant were not aggrieved by the order which did not amount to a determination dismissing the amended Complaint against the third-party defendant. Marion v City of New York

IF YOU MUST READ
(1 summaries)
MUST READS NOTEWORTHY

Professional Malpractice   Set Aside Verdict   Directed Verdict  

Second Deptartment

$3,400,000 verdict for plaintiff against architect set aside and architect granted directed verdict where only expert called by plaintiff did not give an opinion regarding malpractice. Since action was based on professional malpractice, plaintiff could only prove the case with an expert witness as the knowledge was beyond the ken of a lay jury. Michael v He Gin Lee Architect Planner, PLLC

About Matt McMahon

Civil trials and appeals since 1984
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