August 30, 2022 | Vol. 328

(5 summaries)

Negligent Supervision   Assault   Notice   Violent Propensity   Vicious Propensity   Admissibility   Hearsay  

Second Department
Parents of 13-year-old autistic student with a 41 IQ who assaulted school psychologist at a BOCES program failed to meet burden for summary judgment dismissing parental negligent supervision claim without proof they did not have prior knowledge son engaged in vicious or violent behavior endangering others. ‘While, as a general rule, parents are not liable for the torts of their child, a parent may be held liable, inter alia, where the parent[s] negligence consists entirely of his [or her] failure reasonably to restrain the child from vicious conduct imperilling others, when the parent has knowledge of the child’s propensity toward such conduct.’

Defendants also failed to show autistic son was non sui juris where they submitted only inadmissible hearsay evidence of disability. Levine v George    

Child Victims Act   Negligent Supervision   Negligent Hiring   Motion to Dismiss  

Second Department
School district’s motion to dismiss for failure to state a cause of action denied where plaintiff plead district had notice of guidance counselor’s propensity to abuse children and continued to allow him to meet with children, stating causes of action for negligence, gross negligence, and negligent hiring, retention, supervision, and direction which do not have to be plead with particularity. Boyle v North Salem Cent. Sch. Dist.    

Negligent Supervision   Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice   NYC  

Second Department
Petition to deem late Notice of Claim timely served on behalf of high school student elbowed in his face during gym football game denied where NYC did not gain actual knowledge of essential facts of the claim by nurse’s notification form that mentioned a head injury without any details of the occurrence, petitioner failed to provide a reasonable excuse for not serving the late Notice of Claim until 162-days after the incident or show a nexus between the delay and infancy, mother’s ignorance of 90-day requirement was not a reasonable excuse, and petitioner did not provide evidence or a plausible argument NYC was not prejudiced by the delay. Matter of C. N. v City of New York    

Malpractice   Motion to Dismiss   Personal Juridiction   CPLR §306-b   Meritorious Action   Prejudice  

Second Department
Plaintiff’s motion to extend time to serve Summons with Notice under CPLR §306-b granted where he made timely service on hospital and relied on hospital clerk’s representation she could accept service for attending and served attending and cross moved for extension of time to serve 2-months after attending moved to dismiss on jurisdiction as the action was timely commenced, plaintiff used due diligence in serving attending and seeking extension of time on learning the initial service was defective, showed a meritorious action, and attending was not prejudiced by the delay. Edwards v Brooklyn Hosp. Ctr.    

Labor Law §240   Gravity Risk   Sole Cause   Reargument   Appealable Order  

Second Department
Defendant-owner and plaintiff denied summary judgment on Labor Law §240(1). Worker met burden for summary judgment on his testimony ground next to 14’-16’ excavation pit gave way causing him to fall into the pit which was the type of elevation risk protected by §240 but owner raised issue of sole proximate cause on foreman’s testimony he instructed plaintiff not to go within 5’ of the pit.

Plaintiff’s initial appeal was dismissed as abandoned but the Court exercised its discretion in hearing the appeal based on the subsequent order granting reargument that adhered to the original decision. Thorpe v One Page Park, LLC    

(16 summaries)

MVA   Causation  

Second Department
Double-parked truck failed to meet burden for summary judgment where motorcyclist swerved towards the truck after hitting a road defect but did not fall until he had to use his front brake to avoid hitting the truck which caused him to flip over his motorcycle, leaving question of fact on whether the double-parked truck was a cause of or only provided the occasion for the accident. Colletti v City of New York    

Labor Law §241   Industrial Code   Admissibility   Hearsay   Uncertified Records  

Second Department
Worker granted summary judgment on Labor Law §241(6) predicated on industrial code §23-1.7(d)(slipping hazard) by his testimony he slipped on ice on floor of the construction site. Owner and GC failed to raise issue with untranslated, unsigned, handwritten note in Chinese and uncertified acupuncturist record that stated plaintiff’s was injured from lifting a heavy object where they offered no foundation for the uncertified documents or any excuse for not laying a foundation and the note translation was uncertified. Plaintiff’s lack of some details during his EBT did not raise an issue of fact. Guoxing Song v CA Plaza, LLC    

Stairs   Create Condition   Notice   Causation  

Second Department
Airline failed to meet burden for summary judgment where plaintiff who worked cleaning airplane interiors noticed exterior tow staircase she needed to get inside plane was shaking as she entered and the violent shaking as she left the airplane 30-minutes later caused her to fall as airline’s proof failed to eliminate questions of whether it caused the condition by not setting up the staircase correctly, had actual or constructive notice of the condition, and whether the condition caused plaintiff’s fall. Latorres v Delta Air Lines, Inc.    

MVA   Pileup   Nonnegligent Explanation   Feigned Issue   Admissibility   Waiver   Unaffirmed Report   Premature Motion  

Second Department
Second and third vehicles in 4-vehicle collision met burden for summary judgment on their affidavits they were stopped at a red light when hit from behind and propelled into the car in front of them. Plaintiff raised only feigned issue where his affidavit conflicted with his statement in police report and he waived any hearsay objection to its admissibility since he submitted and relied on the report. Plaintiff failed to show the motion was premature. Nicola v Nicolas    

MVA   Bus   Emergency Doctrine   Survelliance Video  

Second Department
Plaintiff and bus driver gave conflicting versions of accident but defendants granted summary judgment where bus video conclusively showed plaintiff cut in front of the bus creating an emergency situation and the bus driver had little time to react. Anderson v Metropolitan Transp. Auth.    

MVA   Bus   Rear End   Nonnegligent Explanation   Comparative Fault  

Second Department
Plaintiff-passenger granted summary judgment on his affidavit vehicle he was in was stopped at a red light when hit in the rear by defendants’ bus. Defendants’ claim driver of vehicle plaintiff made a right-hand turn in front of bus, went forward, then suddenly stopped was not, in and of itself, enough to raise a nonnegligent explanation and rebut the presumption of negligence from a rear end hit.

Motion by driver of lead vehicle to dismiss cross-claims denied where question remained of whether he was partially at fault by stopping short. Thompson v New York City Tr. Auth.    

Comment: Driver of lead vehicle granted partial summary judgment on liability for rear-end hit but issue of comparative fault was for jury. McRae v City of New York.

Premises Liab   Notice   Open/Obvious   Inherently Dangerous  

Second Department
Bar failed to eliminate question of whether it had notice that large decorative throne plaintiff tripped on was a tripping hazard where plaintiff testified he previously complained of the danger, but bar granted summary judgment on proof it was open/obvious and not inherently dangerous, including fact plaintiff was aware of its presence. Rider v Manhattan Monster, Inc.    

MVA   Bus  

Second Department
Defendants failed to meet burden for summary judgment where proof did not eliminate questions of whether bus driver negligently closed bus front doors on plaintiff’s hand and negligently failed to open doors after her hand was caught. John v Dobson    

MVA   Turning Vehicle   Comparative Fault  

Second Department
Plaintiff granted summary judgment on liability and dismissal of comparative fault defense on proof defendant-driver coming from the opposite direction turned left directly in front of plaintiff, establishing negligence per se for violation of VTL §§ 1163(a)(turning only when safe) and 1141(failure to yield right of way). Seizeme v Levy    

MVA   Bicycle   Turning Vehicle   Sole Cause  

Second Department
Vehicle going through intersection granted summary judgment on driver’s testimony plaintiff-bicyclist made a sudden left turn in front of him and he had only 1-second to respond, establishing plaintiff was sole cause of the accident. Plaintiff failed to raise issue on claim defendant went through red light where defendant-driver and plaintiff testified they had green lights as they went into the intersection from opposite directions. Dominguez v Algieri    

MVA   There to be Seen  

Second Department
Defendants met burden for summary judgment on their driver’s affidavit that plaintiff made a sudden turn in front of his vehicle from bus-lane in order to make a U-turn and he didn’t have enough time to stop despite slamming on the brakes but plaintiff raised an issue in opposition admitting he was making a U-turn but he was still entirely within the bus-lane when defendants’ vehicle entered his lane and struck his vehicle. Morocho v Brown    

MVA   Rear End   Nonnegligent Explanation  

Second Department
Plaintiff failed to meet burden for summary judgment where defendant-driver’s testimony, attached to plaintiff’s motion, disputed plaintiff’s testimony he was stopped at a red light when hit in the rear by stating they both had a green light and plaintiff stopped short in the crosswalk for no apparent reason, leaving a question of a nonnegligent explanation for the rear end hit. Harding v Royal Waste Servs., Inc.    

Premises Liab   Duty  

Second Department
Abutting landowner granted summary judgment on proof it did not own or make special use of asphalt area where plaintiff fell. Smith v 4 Empire Mgt. Group, Inc.    

Comment: From lower court order, area where plaintiff fell was in town’s right of way and town had responsibility for installing the asphalt.

Premises Liab   Causation   Sole Cause  

Second Department
Supermarket failed to meet burden for summary judgment where proof plaintiff extended his leg while reaching for something on lower rack by checkout counter did not establish sole proximate cause as it did not eliminate questions of whether employee was negligent in manner of wheeling cart to the register and a cause of the accident where plaintiff’s leg was injured by contact with the cashier’s cart. Fiorentino v Uncle Giuseppe    

MVA   Causation   Premature Motion  

Second Department
Defendant driver granted summary judgment on his affidavit that plaintiff swerved from bike lane into defendant’s lane and struck his driver side door in response to a truck going through a stop sign, establishing defendant was not a cause of the accident. Plaintiff failed to show information solely within the knowledge of the defendant was necessary to oppose the motion. Dalrymple v Morocho    

MVA   Turning Vehicle  

Second Department
Plaintiff granted summary judgment on his affidavit that defendants’ vehicle made a left-hand turn from the middle lane striking his vehicle in the left lane and defendants failed to raise an issue in opposition. Jaipaulsingh v Umana    

(1 summaries)

Emotional Harm   Notice of Claim   Reasonable Excuse   Meritorious Action   Court of Claims  

Second Department
Claimant’s motion to file late Claim providently denied where he failed to show a reasonable excuse for the delay or establish a meritorious claim and he had another available remedy. The Court does not give the details of the proofs. Buyes v State of New York    

About Matt McMahon

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