August 22, 2023 | Vol. 379

(3 summaries)

MVA   Wrongful Death   Foreseeability   Notice  

Second Department
Owner of Lamborghini who allowed 18-year-old licensed decent to drive failed to eliminate all questions of fact on negligence and negligent entrustment where owner testified he did not know if decedent had experience driving high performance cars, which his expert opined was necessary, and raised his hand but never told the decedent to slow down as he approached 180 mph then lost control of the car. Negligent entrustment can be based on knowledge of a defect or a person’s lack of competency to use the object. Shepard v Power    

Comment: In a prior appeal the Court dismissed the VTL §388 claim as an owner is not vicariously liable to the driver of his/her vehicle, reported in Vol. 236.

MVA   Premises Liab   Duty   Experts  

Second Department
Corner property owners denied summary judgment dismissing claim that their foliage obstructed plaintiff-decedent’s view of intersection where he was struck by defendant-driver’s vehicle as photographs showing the foliage growing above the stop sign left questions of whether they violated the town law requiring that foliage not create visual obstructions of the roadway and not to be higher than 2.5’. Property owners have no common-law duty to prevent visual roadway obstructions, but can be negligent for failing to comply with local laws to prevent obstructions.

Driver and owner of vehicle that struck decedent’s vehicle met burden for summary judgment on proof their vehicle was driving within speed, there was no traffic device on their road, driver stepped on brake when he saw decedent’s vehicle, and plaintiff’s expert’s opinion that decedent did not stop at the stop sign before entering the intersection from the perpendicular street, establishing decedent failed to yield the right of way under VTL § 1142(a) as a matter of law. Yasso v Town of Brookhaven    

Premises Liab   Assumption of Risk  

Second Department
University failed to meet burden for summary judgment dismissing claim of 8-year-old bystander struck by a lacrosse ball during warmup before a game without evidence of where spectators are at “greatest risk” on a lacrosse field, necessary to show their netting protected against the greatest risk. While primary assumption of risk applies as well to spectators, defendant failed to meet its burden of proof without evidence that plaintiff’s background and experience would make him appreciate the dangers of standing where he did during the warmup. Spillane v Hofstra Univ.    

(11 summaries)

MVA   Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice   NYC  

Second Department
Petition to serve late Notice of Claim denied as claimants’ affidavits that an unidentified NYPD “internal affairs” person told them a NYPD vehicle was actively pursuing the vehicle struck them was and police report did not state NYPD officers were in a high speed chase or that they were involved in any accident was insufficient to establish NYC had timely actual knowledge. Petitioners also failed to show a reasonable excuse for not serving a timely Notice of Claim or waiting 6-months after the accident to seek leave or present evidence or a plausible argument that NYPD was not prejudiced by the delay. Lobos v City of New York    

Construction Liab.   Preclusion   Sanctions   Willful/Contumacious  

Second Department
CPLR §3101(i) motion by third-party defendant, plaintiff’s employer, to preclude any use of 2 audio recordings first disclosed by plaintiff after his employer was deposed denied as proof that plaintiff’s injuries affected his memory and fact his employer was not impleaded until a year after the recordings were made showed the delay in disclosure was not willful/contumacious. Zavala v Rennew Holding Corp.    

Labor Law §240   Labor Law §241   Labor Law §200   Indemnity   Note of Issue   Discovery   Severance   Prejudice  

Second Department
Lower court improvidently granted third-party defendant, plaintiff’s employer’s, motion to sever indemnity claim against it after Note of Issue was filed while discovery was still outstanding in the main action as the claims involved similar issues of law and fact, judicial economy would not be served by severing the indemnity claim, and there would be no prejudice of a substantial right of any party by a joint trial. Nieto v 1054 Bushwick Ave, LLC    

Labor Law §240   Labor Law §241   Labor Law §200   Falling Object   Agent   Control   Circumstantial Evidence   Causation  

Second Department
Contractor’s motion for summary judgment dismissing worker’s Labor Law §§ 240(1), 241(6) claims for 10’ pipe that fell on his head granted on contractor’s affidavit and testimony that it was not an agent of the owner as it was not the GC, did not control the worksite, and did not have authority to supervise the work. Contractor’s affidavit and testimony were “not so ’incredible and unbelievable’ or ‘impossible of belief’ that they are ‘without evidentiary value’ and being listed as the GC on permit applications was insufficient to raise an issue of fact.

Plaintiff failed to meet burden for summary judgment on §240(1) where he testified he did not see the pipe before it hit him and did not know whether it was necessary for the work being performed as there was insufficient circumstantial evidence to show it was being hoisted or needed to be secured to show causation. Maisuradze v Nows The Time, Inc.    

Malpractice   Accepted Practice   Causation   Experts  

Second Department
Radiologist who advised patient her palpable breast lump was most likely “benign” after performing a mammogram and ultrasound but told her she could make a biopsy appoint if she was unhappy with his diagnosis, which she did and which revealed the mass was cancerous, granted summary judgment on his expert’s opinion that the 6-week delay is diagnosis was not a proximate cause of the patient’s injuries as her chemotherapy and right total mastectomy treatment would have been the same. Plaintiff did not oppose the motion. Kelly v Gonzalez-Torres    

Premises Liab   Negligent Hiring   Negligent Supervision   Security Guard   Motion to Dismiss   Violent Propensity  

Second Department
Motion to dismiss negligent hiring, retention, and supervision causes of action by owners/managers of building where plaintiff was injured by contractor security guards denied where Amended Complaint amplified by affidavits alleging hundreds of tenants previously complained of the guards being physically abusive and putting hands of people adequately pleaded that defendants knew or should have known of the contractor’s propensity for the conduct that caused plaintiff’s injuries. Hutchinson-Headley v HP Arverne Preserv. Hous. Co., Inc.    

Labor Law §200   Labor Law §240   Notice   Appealable Order   Waiver  

Second Department
Defendant failed to meet burden for summary judgment dismissing Labor Law §200 and negligence claims of HVAC technician injured while changing a sensor when a hot water pipe burst causing her to fall from a ladder where its building director testified they had no system for checking the pipes, couplings, and surrounding insulation. Defendant could not show the condition was latent and not discoverable on a reasonable inspection or that it made a reasonable inspection.

Plaintiff’s cross appeal from denial of her motion for summary judgment on Labor Law §240(1) dismissed where she did not seek reversal of that order in her brief. Agosto v Museum of Modern Art    

MVA   Rear End   Nonnegligent Explanation  

Second Department
Plaintiffs met burden for summary judgment on injured-plaintiff’s affidavit and certified police report showing her vehicle was struck in the rear by defendants’ vehicle while she was slowing in traffic but defendants raised an issue on nonnegligent explanation by their driver’s affidavit that he was driving at a reduced speed for traffic when a car suddenly cut in front of plaintiff’s vehicle and caused plaintiff to stop short. Quinones v Grace Indus., LLC    

MVA   Turning Vehicle   Nonnegligent Explanation   Comparative Fault  

Second Department
Plaintiffs granted summary judgment on proof defendants’ truck failed to yield the right of way in violation of VTL §1142(a) when, after stopping at a stop sign, it made a left hand turn in front of plaintiff’s vehicle. Defendants’ claim plaintiffs’ motorcycle fail to yield to their truck did not provide a nonnegligent explanation where the truck driver testified he saw plaintiffs’ motorcycle approaching the intersection but chose to go anyway which, in any event, would only go to comparative fault. Sanchez v Ageless Chimney, Inc.    

MVA   Foreseeability   Intervening Cause  

Second Department
Defendant who loaned his vehicle to decedent allegedly knowing the gas gauge malfunctioned granted summary judgment where decedent was hit by a hit-and-run pickup truck while standing on the shoulder of a 50 mph highway with a gas can as being hit by a hit-and-run driver was unforeseeable and an intervening cause of the accident. Biamonte v Biamonte    

Premises Liab   Stairs   Unknown Cause   Create Condition   Notice  

Second Department
Landlord granted summary judgment dismissing tenant’s claim for fall on interior stair defect without showing it did not create or have notice of the condition on plaintiff’s testimony identifying a defect on a different step and admitting she had no idea what caused her to fall as plaintiff could not identify the cause of her fall. De Rose v Anna & Rose Realty Co., LLC    

(0 summaries)

About Matt McMahon

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