| MUST READS (2 summaries) | |||
| NOTEWORTHY | IF YOU MUST READ | ||
 The Second Department in a case of first impression found that NYCTA was entitled to a CPLR §4545 collateral source hearing to determine if any portion of the $40 mil award for future medical care, which was supported by competent evidence of plaintiff’s life-care plan and economic experts, would with reasonable certainty be covered by the Affordable Care Act that he did not have but was entitled to apply for and he was legally required to procure minimal health coverage and to mitigate his damages. The Court did not decide whether NYCTA was entitled to the offset of $3.75mil.$9mil/$60mil past/future pain/suffering award, reduced by lower court to $4mil/$12mil, for 23-year-old whose back was hit by a railroad tie dropped from an elevated subway line as he rode his bicycle into an unbarricaded drop zone did not materially deviate from reasonable compensation for his multiple thoracic vertebrae fractures, severed spinal cord requiring emergency, and resultant permanent paralysis below T7. Plaintiff’s testimony that an unidentified worker told him to go ahead was not hearsay as it went to his state of mind, not the truth of the statement. Liciaga v New York City Tr. Auth. ✉ |
| Lower court erred in not considering hospital’s vicarious liability for malpractice of LPN and practice where she worked in drawing blood that caused neuropathy on ground it was not plead were the BPs alleged it “occurred on the premises of ‘corporate divisions, wholly owned subsidiary corporations, wholly owned subsidiary business entities and/or alter ego business entities,’” there is no special pleading requirement for piercing a corporate veil, the practice failed to adhere to corporate formalities, was owned and controlled by a hospital employee, the hospital had total control over who could be shareholders, and the practice was undercapitalized with its only asset an interest free loan from the hospital, raising issues of whether the corporate veil should be pierced. PA and attending at practice granted summary judgment on experts’ opinions they had no part in hiring or training the LPN, the attending had some supervisory role but was not present on the day the blood was drawn and treated the plaintiff after it was drawn, and the misdiagnosis of venous thrombosis in plaintiff’s arm and prescription of anticoagulants was not a proximate cause of her injuries. Midson v Meeting House Lane Med. Practice, P.C. ✉ |
| NOTEWORTHY (14 summaries) | |||
| MUST READS | IF YOU MUST READ | ||
| Plaintiff’s motion to preclude defendant from offering evidence at trial or on dispositive motions for failure to appear at a second EBT pursuant to a conditional order of preclusion denied as the order was not self-executing where it specifically required a CPLR 3126 motion on default which would require a good faith affirmation detailing the consultations with counsel to resolve the discovery issue which plaintiff did not provide. Plaintiff denied summary judgement where defendant submitted his EBT, raising a question of which of them entered the intersection with the green light. Degachi v Faridi ✉ |
Order granting defendant-decedent’s former attorney motion to dismiss for plaintiff’s failure to substitute decedent’s estate 13-years after an executor was appointed vacated as only the estate had the capacity to bring the motion, not the former attorney on behalf of the decedent. Plaintiff’s cross-motion to substitute the estate and amend the caption denied where it was served on the decedent’s former attorney and not the executor. Hayden v Brown ✉ |
| City granted summary judgment for plaintiff’s failure to serve a Notice of Claim within 90-days where the late Notice of Claim which was received by the City 39-days after the 90-day period was a nullity without leave of court. As plaintiff did not make an application to deem the late Notice of Claim timely nunc pro tunc, he was not entitled to that relief. City’s participation in pre-trial discovery did not preclude it from raising Note of Issue defense. McErlean v City of Long Beach ✉ |
| Petitioner’s motion for leave to serve late Notice of Claim denied as post-accident repair photos might show knowledge of a defect but not actual knowledge of the accident, petitioner’s injuries, or facts underlying her theory of liability. Claim that a NYCTA dispatcher took a formal report of the accident insufficient to show actual knowledge without the content of the report as was petitioner’s conclusory claim she went to the hospital without evidence of what injuries were observed or whether respondents were aware she went to the hospital. Petitioner failed to show reasonable excuse for delay by severity of her injuries without medical proof and lack of prejudice was not by itself sufficient to grant her motion. There was 1-dissent. Matter of Ippolito v City of New York ✉ |
| Town’s motion for summary judgment dismissing claim for child injured at recreational facility on ground the action was started more than 1-year and 90-days after he turned 18 denied as it was timely when the 228-day Covid toll was added. Fuhrmann v Town of Riverhead ✉ |
| Defendant’s appeal from denial of its motion to renew and reargue its opposition to the grant of plaintiff’s motion to strike its Answer for failure to provide an EBT witness and other discovery demands dismissed as it made no argument in its brief regarding the motion to renew and denial of reargument is not appealable and, in any event, the lower court providently struck defendant’s Answer where its repeated refusal to produce a witness showed it was willful/contumacious. Reyes v U.S. Sec. Assoc. Aviation Servs., Inc. ✉ |
| Plaintiff’s motion to strike supermarket’s Answer for spoliation denied where it preserved 30-minutes of surveillance video, including 8-minutes before plaintiff slipped on sour cream, instead of 3-hours before accident as demanded by plaintiff more than 1-year after the accident as plaintiff failed to show absence of the additional footage deprived her of the ability to prove her claim. Schaum v Glass Gardens, Inc. ✉ |
| Driver who struck Con Ed worker’s truck door as worker opened his driver’s side door failed show injured-plaintiff was the sole cause of the accident and summary judgment denied where plaintiff’s testimony left questions of whether the plaintiff reasonably relied on his observations of a flagman directing traffic into the single two-way lane and whether the defendant-driver disregarded the flagman’s signal to stop. Angelastro v Dyer ✉ |
| Single family homeowners and their architect granted summary judgment dismissing GC-employee’s claim for fall from 16’ ladder on top of scaffold based on Labor Law §§ 240(1) and 241(6) on plaintiff’s testimony that his employer provided all tools, materials, and supervision, establishing the homeowners were entitled to the 1-2 family residence exception to those sections, and the architect established it did not act as a GC and was not an owner’s agent. Labor Law § 200 and negligence claims dismissed as plaintiff was exclusively supervised by his employer. Punina v Canaday ✉ |
| Abutting landowner granted summary judgment on proof her snow removal during a storm in progress did not create or exacerbate the sidewalk condition and ordinance requiring homeowners to maintain their sidewalks did not create a private cause of action. Plaintiff’s meteorological expert did not have the expertise to opine the ice formed as a result from a snow melt product and was otherwise speculative and conclusory. Town granted summary judgment on proof it did not receive required prior written notice. Sanfilippo v Kull ✉ |
| DOE granted summary judgment on proof it did not create or have notice of the icy condition the infant-plaintiff slipped on where it had a shoveling and salting protocol, maintained a log that showed no ice when area was last inspected, and neither DOE nor the school received any complaints about the icy condition. Gayle v City of New York ✉ |
| Defendants’ granted summary judgment dismissing plaintiff’s claim for her finger getting caught on a protruding wire from a fence she was climbing on proof they maintained the fence in a reasonably safe condition “in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk.” Hornung v City of New York ✉ |
| Passenger in vehicle rear ended by defendants’ vehicle as plaintiff’s vehicle stopped in the intersection for an ambulance with it lights on granted summary judgment. Defendant-driver’s claim he did not see the ambulance until after the accident was not a nonnegligent explanation for the rear end hit. Comparative fault defense dismissed as plaintiff was an innocent passenger and summary judgment was not restricted by comparative fault issues between the drivers. Grecco v Altice USA, Inc. ✉ |
| Supermarket granted summary judgment on plaintiff’s testimony she had been to the parking lot more than 100-times, was aware lampposts like the one she collided with when exiting the parking lot were there, and no vehicles were parked next to her before the accident, establishing the condition was open/obvious and not inherently dangerous. Marino v Shop-Rite Supermarkets, Inc. ✉ |
| IF YOU MUST READ (1 summaries) | |||
| MUST READS | NOTEWORTHY | ||
| Plaintiff raised an issue in opposition on serious injury motion for summary judgment and defendants failed to show that injuries were not caused by the accident. The Court does not give the details of the proofs. Baptiste v New York City Tr. Auth. ✉ |