August 25, 2020 | Vol. 225 - New York Weekly Appellate Tort Decisions

MUST READS (3 summaries)
	NOTEWORTHY	IF YOU MUST READ

MVA Set Aside Verdict Causation Admissibility Preclusion CPLR § 3101(d) Notice

Second Department

$2 million judgment entered on directed liability verdict and jury award set aside in the interest of justice and remanded for new trial on damages only where trial court improperly precluded defendant from calling a treating doctor to testify that symptoms in 1-extremity were caused by prior stroke because no CPLR 3101(d) was exchanged. A 3101(d) exchange is not necessary for treating doctors who can testify on causation (for either side) even where the report does not ascribe causation. Duman v Scharf

MVA Directed Verdict Set Aside Verdict Admissibility Preclusion Discovery Comparative Fault

Second Department

Based on plaintiff’s failure to supplement discovery responses to notify defendants he resumed treatment with neurologist, as required by CPLR 3101(h), trial court providently precluded neurologist records and testimony of treatment after plaintiff resumed treatment. Plaintiff failed to lay foundation for W2 and 1099 forms and unsubstantiated testimony of income insufficient to establish lost earnings. Jury awarded total of $20,000.

There was a rational path for jury to find 60%/40% plaintiff/defendant fault on a fair interpretation of evidence where defendant, volunteer firefighter, testified he stopped at red light with emergency lights on, flashed his headlights, and honked horn before attempting to cross intersection against light. Schleger v Jurcsak

Motion to Dismiss 90 Day Notice Note of Issue Reasonable Excuse Meritorious Action Raised For First Time

Second Department

Action dismissed where plaintiffs failed to file Note of Issue or move to cancel or extend 90-day notice. Excuse that defendant had not appeared for EBT, first raised in opposition to motion to dismiss, was not reasonable excuse for not moving within 90-days. Plaintiff failed to show a meritorious action. Rodriguez v Diallo

NOTEWORTHY (5 summaries)
	MUST READS	IF YOU MUST READ

Labor Law §240 Labor Law §241 Labor Law §200 Falling Object Industrial Code

Second Department

Defendants raised issue on whether plywood required securing for Labor Law §240(1) in opposition to plaintiff’s showing that plywood stripped from ceiling struck him as he worked 10’-12’ below. Plaintiff failed to meet burden for Labor Law §241(6) on industrial code §23-1.7(a)(1)(workers who pass under areas “normally exposed to falling material”) as he failed to show area met that definition, on §23-3.3(g)(demotion by hand in “other areas”) as area did not meet that definition, or that safety devices would not be contrary to purpose of work. He also failed to eliminate all question of whether defendants had ability to control work necessary for Labor Law §200 and negligence. Crichigno v Pacific Park 550 Vanderbilt, LLC

Premises Liab Slip/Trip Sidewalk Duty Create Condition Prior Written Notice De Minimus

Second Department

LIRR and MTA granted summary judgment for slip/fall on sidewalk adjacent to its station on proof it did not own/control/maintain the sidewalk, did not create the defect or make special use of the sidewalk, and the sidewalk was not used primarily for ingress/egress to a station served by a single carrier.

Plaintiff raised issue of applicability of Highway Law §140(18) requiring towns to maintain sidewalks next to certain state and county roads in opposition to town’s motion. Town failed to show it searched Town Clerk records as required by prior written notice ordinance or that defect was trivial. Hanus v Long Is. Rail Rd.

Labor Law §240 Safety Devices Sole Cause Court of Claims

Second Department

Worker who fell from crossbeam made out entitlement to summary judgment on Labor Law §240(1) but State raised issue of fact of whether worker’s negligence was sole cause of accident. Palamar v State of New York

Serious Injury Admissibility Unaffirmed Report

Second Department

Plaintiff failed to argue on appeal that defendant did not meet burden of showing entitlement to summary judgment on serious injury and did not raise an issue in opposition as unaffirmed reports were inadmissible. Fraleigh v Casson

MVA Bus

Second Department

Defendants granted summary judgment where plaintiff fell on bus on proof that movement was not ‘unusual or violent’ or other than normal jolts of city travel. The Court does not give the details of the proofs. Flores v Westchester County Bee Line

IF YOU MUST READ (3 summaries)
	MUST READS	NOTEWORTHY

Uninsured Stay Arb Vacate Default Reasonable Excuse Meritorious Action

Second Department

Motion to vacate default of injured party not appearing at hearing to stay arbitration and his attorney’s inability to go forward with the hearing denied. Even if attorney’s claim he misunderstood order regarding whether client had to appear was a reasonable excuse, client’s self-serving unsubstantiated denial that car was being used for hire was insufficient to show a meritorious action. Matter of Amica Mut. Ins. Co. v Alexis

Uninsured Stay Arb

Second Department

Uninsured arbitration permanently stayed after hearing where court found pictures of the vehicle that left the scene taken by the passenger in car insured by moving carrier, her description of the vehicle, the vehicle owner’s and spouse’s admission that the van in the pictures matched the color of the van they owned at the time, and their failure to state where they were at the time of the accident credibly proved it was involved in the accident. Matter of Government Employees Ins. Co. v Johnson-McNeil

False Arrest Motion to Dismiss Indemnity NYC

Second Department

NYC’s motion to dismiss common law indemnification cross-claim of defendant deli owners who accused plaintiff of assault and robbery that led to his arrest granted as any liability against deli owners would be based on their own wrongdoing and not vicarious liability. Hamed v City of New York

August 25, 2020 | Vol. 225

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