August 29, 2023 | Vol. 380

(3 summaries)

Child Victims Act   Motion to Dismiss  

First Department
Motion to dismiss Child Victims Act case against youth group on argument that abuse occurred on a field trip in Yellowstone Park and CPLR §214-g does not apply to conduct occurring outside the state denied as §214-g applies to “‘every’ covered claim,” does not expressly limit its application to NY conduct, and defendants admitted claim would have been properly brought in NY before §214-g if timely commenced since both plaintiff and defendants were NY residents.

Child Victims Act cases do not require a violation of Penal Law §130, only conduct that would constitute a sexual offense as defined by that section. Wolloch v United Synagogue of Conservative Judaism    

Labor Law §240   Gravity Risk   Falling Object   Safety Devices  

First Department
Defendants denied summary judgment of Labor Law §240(1) claim where makeshift plywood sheet with wooden cross-braces shoring side wall of 6’ excavated trench collapsed, causing earthen wall to fall on plaintiff while he was kneeling to repair leaking pipes at the narrow end of the trench, as the plywood was an inadequate safety device to protect from a significant elevated risk and the earthen wall needed to be secured for the work. The top of the wall was at least 1.5’ above plaintiff’s head as he knelt to do his work and could produce tremendous force from gravity within that height differential as a result of failing to provide an adequate safety device.

The risk of the trench collapsing was not “an ordinary construction site danger” where there was inadequate “bracing,” an enumerated §240(1) safety device. Rivas v Seward Park Hous. Corp.    

Malpractice   Informed Consent  

Second Department
Law firm granted summary judgment dismissing plaintiffs’ claims for not advising them they had a claim for plaintiff’s worksite injuries, starting a lawsuit, or advising them to seek counsel to start a lawsuit where the engagement letter signed by plaintiffs specifically limited the firm’s representation to a WC claim which was successfully pursued. “An attorney may not be held liable for failing to act outside the scope of the retainer” where the limitations are reasonable and the client gives informed consent. Kohler v Polsky    

(13 summaries)

Vacate Default   Reasonable Excuse   Meritorious Action   Willful/Contumacious  

Second Department
Plaintiff’s failure to appear at 2-compliance conferences scheduled 2-days apart, and a third conference, showed “a pattern of willful default and neglect” that negated his claimed reasonable excuse. Without a reasonable excuse, the court did not need to look at the issue of meritorious action. Gutierrez v Plonski    

Pothole Law   Prior Written Notice   Big Apple Pothole   Reargument   NYC  

Second Department
Lower court improvidently granted motion to reargue, vacating summary judgment for NYC, where plaintiff only repeated the arguments in her original opposition. NYC properly granted summary judgment on search showing no prior written notice of defect at water catch basin where plaintiff fell and none of the defects on the Big Apple Pothole map were at the location of her fall. Hallett v City of New York    

Premises Liab   Create Condition   Notice   Last Inspection   Open/Obvious   Comparative Fault  

Second Department
Mall failed to meet burden for summary judgment dismissing plaintiff’s claim for slip on oil in exterior parking lot where its manager testified to general cleaning/inspection procedures without any evidence of when the area was last clean/inspected, necessary to show lack of constructive notice. Claim that presence of oil on a parking lot is incidental to the nature of parking lots does not relieve the landowner of liability. Claim oil was open/obvious where plaintiff testified she saw the oil when she pulled into the lot an hour before she fell only goes to comparative fault. Armenta v AAC Cross County Mall, LLC    

Labor Law §240   Labor Law §241   Labor Law §200   Premises Liab   Ladder   Create Condition   Notice   Question of Fact   Raised For First Time  

Second Department
Owners of dealership service center denied summary judgment dismissing Labor Law §§ 240(1), 241(6) claims of plaintiff who was injured when ladder he was on slipped where plaintiff’s testimony that he was removing a bearing plate to replace a broken spring on the garage door and had to widen one of the holes to accept a replacement bolt for a stripped bolt left questions of whether work was a repair vs routine maintenance for §240 and §241 covers maintenance.

Defendants failed to meet burden for summary judgment on Labor Law §200 and negligence claims where plaintiffs alleged a dangerous condition and defendants failed to show they did not create or have notice of the condition. Argument that grease/oil on floor was incidental to garage not considered where raised for the first time in reply. Nusio v Legend Autorama, Ltd.    

Labor Law §240   Ladder   Sole Cause   Causation  

Second Department
Defendants failed to show plaintiff was sole proximate cause of fall from 24’ ladder for setting ladder on small landscaping rocks instead of a paved driveway where plaintiff testified it would be dangerous to put the ladder on the driveway where trucks drive in. Defendants also failed to produce any evidence that securing the top of the ladder to the pole plaintiff was installing a security camera to with ties would have prevented the fall where the ties were only available at his employer’s depot, not on the job site. Iannaccone v United Natural Foods, Inc.    

Negligent Supervision  

Second Department
School district failed to meet burden of showing adequate supervision of student who was hit in the mouth by another student who swung back a hard plastic golf club during a gym class where the gym teacher could not testify to the specifics of his lesson plan, safety instructions, or if the students were properly positioned on the field. Duty to properly supervise ‘includes the duty to instruct students in physical education classes as to the safe use of equipment.’ A. R. v Bay Shore Union Free Sch. Dist.    

Premises Liab   Unknown Cause   Open/Obvious   Inherently Dangerous  

Second Department
Hospital granted summary judgment dismissing nurse’s aide’s claim for fall when her foot got caught on a cord attached to the patient’s mattress or boot as the condition was open/obvious and not inherently dangerous. Plaintiff’s inability to identify if the cord was attached to the mattress or the boot was not an unknown cause. Comeau v Mount Sinai Hosp. of Queens    

Labor Law §240   Ladder   Agent   Control   Assumption of Risk   Emergency Doctrine  

Second Department
Plaintiff granted summary judgment against owners on Labor Law §240(1), before discovery, where ladder he was on collapsed during a renovation project. Plaintiff denied summary judgment against management company for failure to show it was the building managing agent or the owner’s agent where there was no evidence it supervised or controlled any of the renovation work. Assumption of risk is not a viable defense outside athletic/recreational activities and defendants were not presented with any sudden and unexpected circumstances for an emergency doctrine defense. Depass v Mercer Sq., LLC    

Labor Law §240   Labor Law §241   Labor Law §200  

Second Department
Contractor granted summary judgment dismissing village inspector’s Labor Law claims for fall in excavation pit he was inspecting after it was fully excavated as plaintiff’s testimony that neither he, his employer, nor the village was retained to do any work on the property showed he was not a protected worker under Labor Law §§ 240(1), 241(6), 200. Lauria v Lippolis Constr., Inc.    

Premises Liab   Snow/Ice   Prior Written Notice  

Second Department
City granted summary judgment of plaintiffs’ claim for slip and fall on ice in parking lot on proof record search failed to show any prior written notice of the condition as required by its local law. Banschick v City of Long Beach    

Premises Liab   Stairs   Unknown Cause   Building Code   Speculation  

Second Department
Defendants granted summary judgment dismissing plaintiff’s claim for fall while walking down restaurant stairs carrying a box where plaintiff could not identify what caused him to fall. Plaintiff’s claim fall was caused by building code violations for defective treads and handrail insufficient to raise issues of fact where it was just as likely he mis-stepped or lost his balance. Villanueva v DJ’s Intl. Buffet, Inc.    

Premises Liab   Wet Floor   Speculation  

Second Department
Plaintiffs failed to show supermarket created wet floor condition that caused injured-plaintiff to fall as claim nearby frozen food boxes melted and created the condition was mere speculation. Cashwell v Stop & Shop Supermarket Co., LLC    

MVA   Indemnity  

Second Department
Owner/drivers of 2-vehicles stopped at a red light, with plaintiff as a passenger in one of the vehicles, granted summary judgment dismissing claims and cross claims of vehicle which collided with a police vehicle and then collided with the vehicles stopped at the light. Indemnity claims against defendants whose vehicle plaintiff was in also dismissed as they were not negligent. Henry v City of New York    

(4 summaries)

MVIAC   Hearing  

Second Department
Petitioner’s efforts to identify the owner/operator of the cab she was in when hit in the rear in a hit-and-run accident, including numerous calls and a letter to the dispatching company which only confirmed it did not own any vehicles, DMV search for police reports of accidents with TLC, TC, or livery plate for the date the accident which did not uncover any reports for her accident, FOIL requests for vehicles owned by the dispatching company, the police accident report, sprint 911 files, and ambulance call report which only confirmed the livery cab was struck in the rear and the petitioner was a restrained passenger who was taken to the hospital, raised issues of fact on whether these efforts were reasonable for her MVIAC claim. Lower court improvidently denied the petition without a hearing. Matter of Benalcazar v Motor Veh. Acc. Indem. Corp.    

MVIAC   Bicycle  

Second Department
Bicyclist met burden of showing owner and operator of vehicle that struck him was “unknown or not readily ascertainable through reasonable efforts” for MVIAC claim where information of Virgina plate number and owner on police report turned out to be wrong, address listed didn’t exist, and Virginia had no records for the plate number. Matter of Bullock v Motor Veh. Acc. Indem. Corp.    

MVA   Serious Injury  

Second Department
Plaintiff granted summary judgment on proof defendant failed to yield the right of way (VTL §1142[a]) when entering the intersection controlled by a stop sign and plaintiff did not have a stop sign. Defendants met burden for summary judgment on serious injury on competent medical evidence, but plaintiff raised an issues in opposition on medical evidence. The Court does not give the details of the proofs. Skeldon v Faessler    

Serious Injury   Causation  

Second Department
Defendants’ denied summary judgment on serious injury where they failed to provide competent medical evidence that plaintiff’s injuries did not meet the serious injury threshold or that they were not caused by the accident. The Court does not give the details of the proofs. Christian v My Car Auto Transp., Inc.    

About Matt McMahon

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