August 28, 2018 | Vol. 121

MUST READS
(7 summaries)
NOTEWORTHY IF YOU MUST READ

Labor Law §240   Feigned Issue  

First

Plaintiff granted summary judgment on Labor Law §240(1) where corner or wheel of 200-500 lb. roof cutting machine he and co-workers were instructed to lift over parapet and drop to ground 10’ below crushed his thumb. Translation submitted by defendant of Spanish affidavit by co-worker suggesting that accident happened while machine was on floor of the roof did not raise issue of fact as subsequent affidavit by witness clarifying that machine was in process of being lifted over parapet at time was consistent with his prior affidavits and unsworn statement and was not feigned. It was also consistent with all other witness’ accounts and defendant’s site manager did not contradict plaintiff’s statement that these machines were always hoisted and that a hoist was not available that day. Cuevas v Baruti Constr. Corp.


Labor Law §240   Labor Law §241   Ladder   1-2 Family Exception   Control  

Second Deptartment

Labor Law §§240(1) and 241(6) claims against daughter who contracted to have her mother’s house painted while mother was in nursing home dismissed as person who contracts for but does not control work on a 1-2 family home is exempt from liability. Daughter, as executrix of mother’s estate, established that she did not direct or control work this must be strictly construed. Claims against decedent’s son not dismissed as he was not owner and it was claimed that he instructed worker to use the ladder to open the window to access the home. Diaz v Trevisani


Premises Liab   Products Liab   Design Defect   Dangerous Condition   Warnings   Espinal   Open/Obvious   Inherently Dangerous   Assumption of Risk  

Second Deptartment

Summary judgment motions by Pool manufacturer and installer, relining contractor, and homeowners denied where plaintiff struck his chin on shallow area extending from edge of a submerged bench extending from the shallow to deep end when he dove from the side of pool into the deep end. Manufacturer and contractors failed to show that they did not launch an instrumentality of harm (Espinal exception) or that condition was not dangerous despite their expert’s explanation that area was outside of the “diving envelope.” Homeowners did not dispute notice of the condition and failed to show that it was not inherently dangerous or open/obvious. Defendants failed to show primary assumption of risk. Grosse v Olsen


SUM   Motion to Dismiss   Collateral Estoppel  

Second Deptartment

Geico’s motion to dismiss for failing to state a cause of action granted where plaintiff did not allege that tortfeasor’s policy was exhausted. Geico not bound by jury’s verdict against tortfeasor finding serious injury and awarding $200,000/$$400,000 past/future pain and suffering because GEICO was not a party to that action. Collateral estoppel did not apply. Colella v GEICO Gen. Ins. Co.

Comment: After the original action against GEICO was dismissed (this appeal), the tortfeasor’s carrier, State Farm, paid plaintiff $150,000, $50,000 above its policy, exhausting the full underlying policy limits. A subsequent suit was started, and is currently pending, which does allege exhaustion of the underlying policy.


MVA   Snow/Ice   Rear End   Reckless  

Second Deptartment

Snowplow operator clearing highway is exempt from rules of the road and can only be liable for reckless disregard defined as “conscious disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow.” Plaintiff’s and defendant’s depositions submitted by defendants failed to eliminate questions of fact as to how accident occurred or whether snowplow operator’s actions were reckless. Joya v Baratta


Bicycle   Prior Written Notice   Duty   Appealable Order   NYC  

Second Deptartment

Bicycle lanes do not provide City with a special benefit and plaintiff failed to show that NYC had prior written notice or created defect in the bicycle lane that caused plaintiff’s fall. The court will not normally consider issues that could have been raised in a prior abandoned appeal but exercised its discretion in considering the merits and upholding the lower court’s order granting summary judgment to defendants. Budoff v City of New York


Discovery   CPLR § 3126   Willful/Contumacious  

Second Deptartment

Lower court improvidently dismissed case for failure to provide years of appointment records of salon co-owned by plaintiff that were automatically deleted after 1 year even after plaintiff withdrew claim for loss of profits. Automatic destruction of records provided a reasonable excuse for not complying with orders and plaintiff showed a meritorious action. Defendant failed to show willful/contumacious conduct. Tanriverdi v United Skates of Am., Inc.

NOTEWORTHY
(15 summaries)
MUST READS IF YOU MUST READ

MVA   Set Aside Verdict   Causation   Sole Cause  

Second Deptartment

Verdict finding defendant driver negligent but not a proximate cause where plaintiff passenger exited rear passenger door closing door on her coat in a manner that was not visible to driver, and signaled driver that she was clear, was based on a fair interpretation of the evidence. Plaintiff’s actions were the sole proximate cause and the issues of negligence and cause were not inextricably interwoven. Levens v Dill


Med Mal   Set Aside Verdict   Directed Verdict   Accepted Practice   Causation   Speculation  

Second Deptartment

Verdict finding ophthalmologist did not depart from accepted practice in how he performed cataract surgery and subsequent surgery to address complications, but that he did depart from accepted practice by performing the second surgery rather than referring plaintiff to a retinal-vitreous surgeon, set aside as against the weight of the evidence and directed verdict granted in favor of ophthalmologist. Plaintiff’s expert failed to address defendant’s 30-years’ experience performing this type of surgery even if defendant did not complete a retinal-vitreous fellowship and the expert’s opinion that lack of experience increases complication risk of a procedure was too general and speculative. Previtera v Nath


Premises Liab   Motion to Dismiss   Premature Motion  

Second Deptartment

Homeowners’ motion to dismiss prior to Answer providently denied as premature where they failed to submit proof that a pleaded fact, which must be accepted as true by the court, is not a fact or there is no factual dispute. Homeowners’ affidavits are insufficient on a pre-Answer motion to dismiss and do not impose a burden for plaintiff or codefendants to lay bare their proofs. Summary judgment is not available pre-Answer and the lower court did not elect to treat it as a summary judgment motion. Ferrera v City of New York


Motion to Dismiss   Create Condition  

Second Deptartment

Lower court improvidently treated motion to dismiss as a motion for summary judgment without giving notice to the parties as required by CPLR §3211(c) and none of the exceptions to the notice requirement applied. On a motion to dismiss the facts must be accepted as true. Affidavits submitted by the defendant failed to address plaintiff’s allegation in the Complaint that the defendant County created the dangerous condition. Galardi v Town of Hempstead


Premises Liab   Slip/Trip   Notice of Claim   Statute of Limitations   Court of Claims   Actual Knowledge   Reasonable Excuse   Meritorious Action  

Second Deptartment

Claimant timely served “notice of intention to claim” but served the Claim (equivalent of a Complaint in Supreme Court) late. Under Court of Claims act §10(8) a court may grant permission to serve a late Claim or deem a late Claim timely served but claimant’s notice of intention to claim did not adequately describe the location of the accident depriving defendants of actual knowledge of the essential elements of the claim, claimant did not provide a reasonable excuse or show a meritorious action. Sharief v State of New York


Premises Liab   Slip/Trip   Directed Verdict   De Minimus  

Second Deptartment

LIRR’s motion for directed verdict at end of plaintiff’s case on plaintiff’s testimony that crack on platform that caught her heal was 1/2″ wide, 9-12″ long, and 1/4″ deep granted as it was a trivial defect and there was no rational process for a jury to find for plaintiff. Speredowich v Long Is. Rail Rd. Co.


Premises Liab   Slip/Trip   Sidewalk   Motion to Dismiss  

Second Deptartment

Motion by Defendants who allegedly owned, operated, managed, and controlled sidewalk around Citi Field denied as proffered documentary evidence did not “utterly refute” allegations in Complaint, which must be taken as true, and plaintiff properly pleaded negligence claim. Henn v City of New York


Med Mal   Vacate Default   Appealable Order   Expert Aff   Reasonable Excuse   Meritorious Action  

Second Deptartment

Plaintiff’s motion to vacate order dismissing action for failure to appear at conference denied where malpractice plaintiff failed to submit an expert affidavit necessary to show a meritorious action. Prior appeal from order dismissing action was dismissed as no appeal lies from an order on a motion not on notice. Brown v State of New York


Pothole Law   Prior Written Notice   Create Condition   Big Apple Pothole   NYC  

Second Deptartment

NYC granted summary judgment where infant-plaintiff’s bike went into pothole on proof that it did not have prior written notice of the specific defect. Big Apple Pothole and Sidewalk Protection Corporation map showed raised sidewalk not pothole and plaintiff neither pleaded nor raised an issue to show that NYC created the dangerous condition. Allen v City of New York


MVA   Rear End   Nonnegligent Explanation  

Second Deptartment

Defendant’s argument that plaintiff’s vehicle came to a sudden stop after being cut off by a third vehicle did not provide a nonnegligent explanation in response to plaintiff’s prima facie entitlement to summary judgment on his affidavit that he was coming to a stop in heavy traffic when he was rear ended by defendant. Lopez v Dobbins


MVA   Set Aside Verdict   Jury Charge   Causation  

Second Deptartment

Trial court providently refused to give speed-limit jury charge where defendant struck open door of parked vehicle and there would be no reasonable view of the evidence to support a finding of proximate cause. Appeal was considered in Court’s discretion where a prior appeal on the issue was dismissed for failure to perfect. Solomon v Green Bay Sanitation Corp.


Med Mal   Amend Complaint   Statute of Limitations  

Second Deptartment

Plaintiff allowed to amend Complaint to add a PA employed by defendant medical practice after statute of limitation under relation back doctrine where alleged malpractice arose out of same transaction, PA was untied in interest with original defendants as an employee, PA was not directly prejudiced by delay, and she knew or should of known that but for mistake she should have been included in original suit. Myung Hwa Jang v Mang


Labor Law §240   Amend Complaint  

Second Deptartment

Plaintiff’s motion to amend Complaint to add Labor Law §240(1) claim denied as patently devoid of merit where he originally claimed that he slipped on a liquid and now claimed that he fell from a ladder and then slipped. Vorobeichik v Greenpoint Goldman SM, LLC


Serious Injury   BP  

Second Deptartment

Defendants failed to meet initial burden for summary judgment on serious injury regardless of plaintiff’s opposition where they failed to address left shoulder injury alleged in BP. O’Shaughnessy v Sanchez


False Arrest   Malicious Prosecution   1983 Action   Emotional Harm   NYC  

Second Deptartment

NYC and police officer who arrested plaintiff for sexual assault based on complaint by partner that sexual act was nonconsensual granted summary judgment as there was probable cause for the arrest even though charges were eventually dropped after investigation. There is no cause of action for negligent arrest and investigation. Public policy bars actions for intentional infliction of emotional harm against municipalities and there was no extreme or outrageous conduct. Plaintiff failed to that that the arrest involved a policy, regulation, or custom for the 1983 action. Ball v Miller

IF YOU MUST READ
(1 summaries)
MUST READS NOTEWORTHY

Premises Liab   Slip/Trip   Open/Obvious   Inherently Dangerous  

Second Deptartment

Defendants granted summary judgment were plaintiff slipped on leaves and flowers on a ramp where she was pushing a dolly on proof that the condition was open and obvious and not inherently dangerous. The court does not give the details of the proofs. Humphrey v Starrett City, Inc.

About Matt McMahon

Civil trials and appeals since 1984
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