August 31, 2021 | Vol. 277

(2 summaries)

Construction Liab.   Admissibility   Hearsay  

Second Department
Construction company that did work in area where plaintiff tripped on roadway depression denied summary judgment on documentary proof which was not authenticated even if it met the public document exception to hearsay. Rosenfeld v City of New York    

Comment: Public document hearsay exception establishes admissibility of a record or report prepared by a public official who is required or authorized to keep records or make a report without the testimony of the official as such an official has no motive to “distort the truth.”

Labor Law §240   Labor Law §241   Labor Law §200   Waiver   Raised For First Time  

Second Department
Building owner granted summary judgment of cable installer’s claims under Labor Law §§240(1), 241(6), and 200 as there was no nexus between the defendant and plaintiff’s work. Defendants’ argument for dismissal of the negligence claim not properly before Court as defendant did not cross-appeal order denying summary judgment of the negligence claim. Estick v Myrtil    

(6 summaries)

Malpractice   Duty   Accepted Practice   Causation   Experts  

Second Department
Primary care physician made prima facie showing of entitlement to summary judgment on proof he appropriately deferred gastrointestinal issue to gastroenterologist, but plaintiffs’ board certified internist/gastroenterologist raised issues of whether primary car doctor assumed a duty to assist in the gastrointestinal treatment and whether departures delayed the ulcerative colitis diagnosis and decreased plaintiff’s chances of a better outcome. Wiater v Lewis    

Premises Liab   Wet Floor   Create Condition   Causation   Notice   Last Inspection  

Second Department
School denied summary judgment of claim plaintiff slipped on water on floor during school function where it did not address whether it created the condition in its original motion, arguing only lack of notice, and failed to eliminate all questions of constructive notice where its witness stated he inspected the floor before and during the event, but that plaintiff fell towards the end of event and defendant’s witness did not state what time the floor was last inspected. Rivera v Roman Catholic Archdiocese of N.Y.    

Premises Liab   Assumption of Risk   Experts   Conclusory  

Second Department
Plaintiff’s awareness that Har-Tru tennis court surface had to be watered and there were sprinklers around court established she assumed risk of tripping on a sprinkler head between courts even if not aware of that particular sprinkler head. Eye witness’ conclusory statement that sprinklers were supposed to be flush didn’t raise issue as witness had no expertise on issue.

Lower court providently searched record and granted summary judgment to maintenance defendants who did not move on assumption of risk as defense was applicable to all defendants. Schwartz v Ramapo    

Labor Law §200   Premises Liab   Control   Create Condition   Products Liab   Appealable Order  

Second Department
Sub-contractor who hired foam-contractor granted summary judgment of Labor Law §200 and negligence claims of NYCHA elevator inspector injured when shocked by static electricity on metal handrail from sprayed foam who then fell from catwalk connecting 2-roofs missing portion of stairs on foam-contractor’s testimony that moving defendant had no authority to supervise or control work or place warnings and moving defendant showed it did not create condition. Summary judgment of all cross claims against moving defendant not properly before Court as it had not yet been decided by lower court.

Foam manufacturer granted summary judgment of third-party Complaint on proof product was not defective. Uhl v D’Onofrio Gen. Contrs., Corp.    

Premises Liab   Dangerous Condition   Notice   Last Inspection   Raised For First Time  

Second Department
Homeowner denied summary judgment of police officer’s claim he injured his knee while trying to restrain homeowner’s son when wall-to-wall carpet shifted as evidence failed to conclusively show carpet was not in a dangerous condition and homeowner failed to show lack of constructive notice without proof of last time area was inspected.

Arguments raised for the first time in reply brief and a court order from another court raised during oral argument not considered as not properly before the Court. Buckshaw v Oliver    

Premises Liab   Sidewalk   § 7-210   1-2 Family Exception  

Second Department
Abutting landowners denied summary judgment where plaintiff tripped on height differential between 2-sidewalk flags without showing the abutting property was used solely for residential purposes under 1-2 family homeowner exception of administrative code §7-210 or that no portion of the sidewalk flag plaintiff tripped on abutted their property. Blaise v Guleria    

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About Matt McMahon

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