August 29, 2017 | Vol. 69

(4 summaries)

Products Liab  

Second Deptartment

Corporation that purchased assets of company, which manufactured ladder plaintiff was using when he fell, from the SBA which had acquired assets through a security lien granted summary judgment. Successor corporations are generally not liable for their predecessors’ torts, including product liability, unless they fit within 1 of 4 exceptions 1) they expressly or impliedly assumed the predecessor’s tort liability; 2) it was a consolidation or merger of the seller and purchaser; 3) the successor corporation was a mere continuation of the selling corporation; or 4) it was a fraudulent transaction to escape liability. Since the defendant corporation purchased the assets from the SBA and not the predecessor corporation and none of the owners or officers of the defendant corporation were owners or officers of the predecessor corporation, defendant established that it was not a mere continuation of the predecessor. Defendant also showed that it did not expressly or impliedly assume the liabilities of the predecessor corporation Wass v County of Nassau

Med Mal   Accepted Practice   Causation   Loss of Chance   Informed Consent   Set Aside Verdict   Directed Verdict   Materially Deviates  

Second Deptartment

Doctor’s motion for a directed verdict and to set aside verdict that found he failed to properly inform the plaintiff of the signs and symptoms of colon perforation following a colonoscopy, and departed from accepted medical practice by not contacting the plaintiff after a CT scan showed perforation, and awarding $600,000/$400,000 past/future pain/suffering denied. Evidence that the doctor failed to provide the plaintiff with written post-colonoscopy instructions with the signs and symptoms to look for and that he did not contact the plaintiff after reviewing a CT scan showing a perforation provided a rational process for the jury’s verdict which could be reached on a fair interpretation of the evidence. Where plaintiff’s expert is unable to quantify the chance of a better outcome or increase of injury, it is sufficient that there is evidence from which the jury may infer that the defendant’s conduct diminished the plaintiff’s chance of a better outcome or increased the injury. The award for pain and suffering did not materially deviate. Gaspard v Aronoff

Defamation   Police   Qualified Immunity   Privilege  


Defendants’ motion to dismiss defamation action for failure to plead with particularity denied where plaintiff pled that she had a purely professional relationship with the chiropractor who had hired her as a yoga and massage therapist and the defendant wife, who was CEO of the chiropractic corporation, fired her and made false claims to the police that the plaintiff had made threatening phone calls to her, because the amended complaint alleged facts from which a jury could find malice to overcome the qualified privilege afforded statements to the police. Edwards v Nicolai

Comment: Motion to dismiss gender discrimination claims also denied as allegation that relationship between plaintiff and defendant chiropractor was purely professional distinguished it from “spousal jealousy” cases where employment termination was based on the conduct of the employee and not the employer’s attraction to the employee.

Vacate Default   Reasonable Excuse  

Second Deptartment

Plaintiff’s motion to vacate default in opposing defendants’ summary judgment motion on serious injury, after plaintiff’s request at oral argument for time to put in opposition papers was denied, was denied as plaintiff failed to demonstrate a reasonable excuse. Plaintiff’s claim of law office failure did not relate to plaintiff’s failure to submit opposition and it was unnecessary to determine whether plaintiff showed a meritorious opposition to the motion. Kisiletskiy v Pena

(12 summaries)

False Arrest   Battery   Set Aside Verdict   NYC  

Second Deptartment

Defendants’ motion to set aside second verdict in favor of plaintiff finding that police officers battered plaintiff during a false arrest, denied as verdict was supported by a fair interpretation of the evidence and the trial court’s evidentiary rulings, including limiting cross examination of the plaintiff on his prior identification of a police officer, limiting the introduction of evidence regarding plaintiff’s prior criminal convictions, and sustaining objections to comments made by defense counsel during summation which were based on matters not in evidence, were within the trial court’s discretion. The verdict sheet was consistent with the defense theory that police did not batter the plaintiff. Acosta v City of New York

Premises Liab   Duty   Negligent Supervision   Warnings   Assumption of Risk  

Second Deptartment

NYS had a duty to act as a reasonable person in maintaining Jones Beach including a duty to exercise adequate general supervision. State’s cross motion for summary judgment granted on proof that it provided a sufficient number of experienced and competent lifeguards who reacted to the situation when the plaintiff struck his head while diving into waves in accordance with proper procedures. There was no duty to warn swimmers of the threat from natural transitory conditions of the ocean floor as plaintiff assumed those risks. Courtney v State of New York

Building Security   Notice   Last Inspection   False Arrest   Probable Cause  

Second Deptartment

NYCHA granted summary judgment of tenant’s claim that he was shot in the hallway of his building by an unidentified assailant who gained access through a broken lock in the rear entrance of the building upon proof that the building superintendent had inspected the lock that day, and proof of recent inspections, all showing lock in working order. A building owner has duty to “take minimal precautions” against foreseeable criminal conduct which requires a showing that the failure to take minimal precautions was a proximate cause of the injury. For premises security cases it must be shown that the assailant gained access through a negligently maintained entrance since no amount of security could prevent another tenant or someone allowed into the building by another tenant from committing an assault.

Claims of false arrest, imprisonment false imprisonment, and malicious prosecution against NYC and police officer dismissed where plaintiff was detained on valid prior outstanding warrant, even though the substance seized from his apartment turned out not to be narcotics, plaintiff spent five days in jail, and officer signed complaint regarding drug charges which were dropped after the lab results came back. Valid arrest warrant presumes probable cause. Martinez v City of New York

Strike Note of Issue   Discovery  

Second Deptartment

Plaintiffs’ motion to strike Note of Issue which lower court ordered them to file within 48 hours under threat of dismissal, made 6 days after the certification order, should have been granted where the Certificate of Readiness stated that there was outstanding discovery and that case was not ready for trial, rendering it a nullity for failure to comply with 22 NYCRR §202.21. Rizzo v Balish & Friedman

Premises Liab   Slip/Trip   Snow/Ice   Storm in Progress   Warnings  

Second Deptartment

Homeowners granted summary judgment on proof that they did not have a reasonable opportunity to remedy snow/ice which accumulated on the front steps after precipitation ended. Nor did the defendants have a duty to warn the plaintiff of the open and obvious conditions on the front steps. Reasonable opportunity can be made as a matter of law. De Chica v Saldana

Comment: The lower court’s decision notes that the storm had ended at most 2 hours before the plaintiff fell, based on the plaintiff’s testimony, and was continuing based on meteorological data submitted.

Med Mal   Amend Complaint   Motion to Dismiss   Statute of Limitations   Continuous Treatement  

Second Deptartment

Plaintiff’s motion to amend Complaint to add hospital denied, and hospital’s cross motion to dismiss as time-barred granted, where amendment was not sought until more than 2 years after the decedent’s death and hospital showed that both wrongful death and malpractice actions were time-barred. Plaintiff failed to raise a triable issue of fact on continuous treatment. Grant v Brooklyn Ctr. for Rehabilitation & Residential Health Care, LLC

Dental Mal   Accepted Practice   Informed Consent   Expert Aff  

Second Deptartment

Summary judgment for dentist reversed where lower court’s finding that plaintiff’s expert was unqualified was not raised by the defendant below and the plaintiff’s expert was licensed to practice dentistry in NY and board-certified in orthodontics. Defendant met its initial burden on accepted practice but plaintiff’s expert raised a question of fact. Summary judgment on informed consent should have been denied as defendant failed to eliminate questions of fact that he informed the plaintiff of the reasonably foreseeable risks of the orthodontic treatment to realign an impacted tooth over 8 years and that a reasonably prudent person in the same position would have undergone the treatment if fully informed. Dyckes v Stabile

Premises Liab   Control  

Second Deptartment

Managing agent granted summary judgment on proof that it had relinquished control of the empty storefront to the tenant and had no contractual or statutory duty to maintain or repair the store when someone opened the front door striking the plaintiff. One individual tenant denied summary judgment for failing to show that he was not the one who opened the door and plaintiff raised a question of fact in opposition to the other tenant’s claim that he was not the one who opened the door. Corporations denied summary judgment for failure to show what their affiliations were with the tenants and that the person who opened the door was not their employee. Gashi v Abramson Bros. Inc.

False Arrest   Assault   Battery   Malicious Prosecution   1983 Action   Probable Cause  

Second Deptartment

Plaintiff’s cross motion for summary judgment, where he was arrested without a warrant and held overnight based on a pickpocketing victim’s identification of him through a mug shot, denied where plaintiff failed to eliminate triable issues as to whether there was probable cause for the arrest even though all charges were dropped the next day, and whether the police officer should have questioned the victim’s credibility prior to having the plaintiff arrested. Sinclair v City of New York

Premises Liab   Open/Obvious   Inherently Dangerous  

Second Deptartment

Homeowners denied summary judgment where they failed to show that the insufficient weight bearing capacity of the sheet rock ceiling in the attic where the plaintiff housekeeper was cleaning was open and obvious and not inherently dangerous. Gallardo v Gilbert

MVA   Question of Fact  

Second Deptartment

Livery cab denied summary judgment where deposition testimony submitted by him raised triable issues of fact. Plaintiff’s testimony that she was reaching into the car to retrieve change when the driver took off, dragging her for 5 car lengths, and plaintiff and her daughter’s testimony that they noted the license plate of the cab as it drove away raised issue of fact in opposition to the defendant’s claim that his car was not involved. Olopade v Khan

Strike Answer   CPLR § 3126   Discovery   Willful/Contumacious  

Second Deptartment

Plaintiff’s motion to strike the defendants’ Answer where defendants did not provide certain discovery denied where explanations for the delays showed that their conduct was not willful and contumacious. Sinclair v City of New York

(1 summaries)

Serious Injury   Expert Aff  

Second Deptartment

Defendant met its initial burden for summary judgment on serious injury for both plaintiffs. One plaintiff raised a triable issue of fact but other failed to raise an issue of fact as to the knee injury. The court does not give the details of the proofs. Cho v Michelangeli

About Matt McMahon

Civil trials and appeals since 1984
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