August 30, 2016 | Vol. 17

(4 summaries)

Med Mal   Estate   Reasonable Excuse   Meritorious Action   Prejudice   Passage of Time  


Lower court providently exercised its discretion in denying doctor’s motion to dismiss for failure to substitute representative “within a reasonable time” after the plaintiff’s death pursuant to CPLR §1021. For two years there was a dispute between two of the children over control of the estate and, when the court appointed the public administrator, the public administrator went out on maternity leave for five months without realizing that the retainer for representation of the estate had not been completed. Defendant failed to show any prejudice since the case was based mostly on medical records and not witness testimony and passage of time alone is not sufficient to show prejudice. The court found that the verified pleadings and deposition testimony were sufficient, without an expert’s affidavit, to show a meritorious action. There was one dissent which would have denied the motion. Public Adm

Premises Liab   Independant Contractor   Nondelegable Duty  

Second Deptartment

Defendants, owner of parking lot and security company hired as an independent contractor to keep the premises safe, were both denied summary judgment in case where the plaintiff was struck by a remote control car operated by the individual defendant who was standing next to the guard company’s employees. A nondelegable duty to keep premises safe is an exception to the rule that there is no vicarious liability for the acts of an independent contractor. Denial of summary judgment upheld. Pesante v Vertical Indus. Dev. Corp.

Late Notice of Claim   Reasonable Excuse  

Second Deptartment

Lower court providently exercised its discretion in granting petition deeming a late notice of claim to be properly served based on plaintiff’s reasonable excuse of her physical incapacity and her attorney’s investigation of the claim. Plaintiff adequately demonstrated that municipality would not be substantially prejudiced by the delay. Matter of Pazienza v Westchester County Health Care Corp.

Video   Slip/Trip   Discovery   Willful/Contumacious  


In a trip and fall case, plaintiff found a video of the event, showing a cable on the floor where she fell, on the third day of trial. Her attorney did not disclose the video until later that day, during plaintiff’s cross examination, but plaintiff agreed to a preclusion order and/or curative charge. The trial court dismissed the complaint for failure to disclose and the Appellate Division reversed finding the dismissal to be an improvident use of discretion because there was no evidence that the failure to disclose was willful and contumacious,. The Appellate Division found that the defendant would be fully protected by granting an additional 60 days of discovery prior to the retrial and that the parties 400k/800k hi-Lo agreement would still apply on the retrial. Fox v Grand Slam Banquet Hall

(6 summaries)

CPLR §306-b   Extend Time to Serve   Statute of Limitations  

Second Deptartment

Lower court providently exercised its discretion in granting plaintiff’s cross-motion to extend the time to serve the summons and complaint after the statute of limitations had run. Defendant had actual notice of the action within 120 days of its commencement, plaintiff reserved the defendant within a reasonable time after learning that service was challenged by defendant, and cross moved within a reasonable time for an extension of time serve the defendant. There was no identifiable prejudice to the defendant attributable to the delay. Rivera v Rodriguez

Legal Mal   Causation  

Second Deptartment

Defendants entitled to summary judgment in legal malpractice action where they established by admissible evidence that the plaintiff cannot establish that ”but for the conduct of the defendants, plaintiff would not have incurred damages in the underlying action.” Plaintiff failed to raise a triable issue in opposition. Plaintiff’s cross-motion to amend the answer was properly denied as palpably insufficient and patently devoid of merit. Silverman v Potruch & Daab, LLC

Premises Liab   Notice   Create Condition   Raised For First Time  


Defendant met its burden of proof for summary judgment with photographs showing that the elevated platform from which the plaintiff fell was not dangerous in that the steps had thick black stripes contrasting with the light color floorboards, and plaintiff’s testimony that she turned and stepped without looking, causing her fall. Plaintiff’s expert’s affidavit failed to raise a triable issue of fact alleging violations of New Jersey handicap accessibility code and optical confusion were raised for the first time in opposition to the defendant’s motion and were not contained in the complaint or bill of particulars. Pinkham v West Elm

Premises Liab   CPLR § 3126   Spoliation  

Second Deptartment

Lower court’s denial of motion to strike the defendant’s answer for spoilation, without prejudice to renew, upheld. Sanctions for spoilation are within the discretion of the trial court which was providently exercised in this case. Hoffman v Medical Depot, Inc.

MVA   Turning Vehicle   Comparative Fault   There to be Seen  

Second Deptartment

Defendant who was driving straight and struck plaintiff’s vehicle which was making a left-hand turn in front of him was denied summary judgment because the EBT transcript of both parties he submitted raised a triable issue of fact as to whether the defendant was also at fault in not adequately checking the intersection to make sure it was clear before entering. Hurst v Belomme

Appealable Order  

Second Deptartment

Plaintiff/appellant argued that defendant was not aggrieved by order granting plaintiff summary judgment claiming that the order was granted on default. The appellate court noted that it was granted after review of arguments by both parties and, therefore, was not on default. Grant of summary judgment to plaintiff was upheld with the court finding that defendant did not raise a triable issue of fact after plaintiff made met its initial burden of proof. Abushihadeh v Bravo

(1 summaries)

Serious Injury  

Second Deptartment

Denial of motion for summary judgment on serious injury for cervical and lumbar spine upheld. Defendant made prima facie entitlement to summary judgment but plaintiff raised triable issue in opposition. The court does not detail the proofs submitted. Molina v Leeway Transp., Inc.

About Matt McMahon

Civil trials and appeals since 1984
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