August 4, 2020 | Vol. 222

(3 summaries)

Med Mal   Motion to Dismiss   Statute of Limitations   Pain/Suffering   Estate  

Second Department
Defendants’ motion to dismiss claims of malpractice more than 2.5 years before action was filed denied as administrator was entitled to benefit of 1-year tolling provision from date of death under CPLR §210(a) . Perez v Baez

Comment: A reminder that the 2-year statute of limitation for wrongful death actions in EPTL §5-4.1 does not apply to claims for conscious pain and suffering. Those must be commenced within the regular statute of limitations or up to one year from death where less than one year remains on the statute of limitations at the time of death under CPLR §210(a).

Med Mal   Motion to Dismiss   Vacate Default   Note of Issue   90 Day Notice   CPLR § 3126   Prejudice   Reasonable Excuse   Sanctions  

Second Department
Lower court was without power to grant defendants’ motions to dismiss for failure to prosecute where they did not serve a 90-day notice and court order requiring plaintiff to file Note of Issue within 90-days did not have warning that dismissal would result as required by CPLR §3216. Dismissal under CPLR §3126 also improper as failing to file Note of Issue is not “disobedience of an ‘order for disclosure’,” and defendants were not prejudiced by delay.

Plaintiff’s lack of reasonable excuse for not timely filing Note of Issue warranted $1,000 sanction to each of the 8-moving defendant groups as a condition for extending plaintiff’s time to file Note of Issue. Tolkoff v Goldstein

MVA   Directed Verdict   Set Aside Verdict   Comparative Fault  

Second Department
Plaintiff’s motion for directed verdict on liability at close of evidence denied where there was evidence from which a jury could find plaintiff comparatively negligent, but motion to set aside defense verdict granted as against weight of evidence where jury could not ignore fact that defendant entering intersection controlled by stop sign violated VTL §§ 1142(a) and 1172(a). Ramirez v Cruse

(11 summaries)

Premises Liab   Negligent Supervision   Duty  

Second Department
County’s motion for summary judgment denied where infant stepped on hot coals dumped on park grounds as municipality, while not an insurer of safety for park visitors, has ‘a duty to maintain its parks in a reasonably safe condition,’ which includes exercising ordinary care in providing an adequate degree of general supervision.’ County failed to show it adequately supervised disposal of hot coals at park. S.A.P. v County of Westchester

Legal Mal   Strike Answer   Vacate Default   Reasonable Excuse   Meritorious Defense  

Second Department
Defendant’s motion to vacate default in opposing motion to strike Answer for repeated failures to appear for deposition in violation of multiple discovery orders denied where defendant failed to provide reasonable excuse for the default. Absent a reasonable excuse the Court did not need to consider meritorious defense. Onyenwe v Hamernick

Labor Law §240   Safety Devices  

Second Department
Contractors granted summary judgment of Labor Law §240(1) claim where truck driver was injured while delivering fill to home when ground under one of truck’s wheels gave way causing truck to tip on its side. There were no safety devices enumerated in §240(1) that could have protected against the risk. Kickler v Dove-Tree Greenery, Inc.

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

Second Department
Abutting landowner showed storm in progress at time plaintiff fell on sidewalk but failed to show that fall was not caused by snow/ice from 2-days earlier where it provided only general snow removal practices and no details of actual snow removal from 2-days prior to time of plaintiff’s fall. Kearse v 40 Wall St. Holdings Corp.

Premises Liab   Slip/Trip   Create Condition   Notice   Recurring Condition  

Second Department
Building granted summary judgment on proof it did not create or have actual notice of grapes on lobby floor. Plaintiff testified there were no grapes when she walked through lobby moments before she slipped. Her testimony that “somebody” complained of kids playing in the lobby and leaving toys on the floor established “at most a general awareness that a dangerous condition may be present,” not sufficient to establish notice of a recurring condition. Darbinyan v 1806 Ocean Realty, LLC

Premises Liab   Workers Comp Defense   Collateral Estoppel   Out of Possession  

Second Department
Plaintiff’s employer granted summary judgment on proof plaintiff was its employee and receiving workers comp benefits. Plaintiff failed to show that issue of employment was litigated and decided by WCB for application of collateral estoppel. Building owner granted summary judgment on proof it was an out of possession owner with no duty to maintain by contract or course of conduct and the pleadings did not allege violation of a specific statute. Reynoso v Ahava 750, LLC

MVA   Pedestrian   Turning Vehicle   Comparative Fault  

Second Department
Pedestrian entitled to summary judgment on liability and dismissal of comparative fault defense based on her affidavit that she was in crosswalk, with light, and looked for traffic in all directions before entering crosswalk. Plaintiffs do not need to prove freedom from comparative fault, but issue can be decided on summary judgment where plaintiff moves to dismiss defense. Hai Ying Xiao v Martinez

MVA   Pedestrian   Turning Vehicle   Comparative Fault   Premature Motion  

Second Department
Pedestrian entitled to summary judgment on liability and dismissal of comparative fault defenses based on his affidavit that he was in crosswalk, with light, and looked for traffic in all directions before entering crosswalk. Plaintiffs do not need to prove freedom from comparative fault, but issue can be decided on summary judgment where plaintiff moves to dismiss defense. Defendant failed to show that evidence solely within plaintiff’s control was necessary to oppose motion. Maliakel v Morio

Premises Liab   Espinal   Warnings   Indemnity  

First Department
General and mechanical contractor denied summary judgment where question of fact remained on whether they created the dangerous condition of unsecured plywood in an unlocked mechanical room without warnings, launching an instrumentality of harm under Espinal.

Contractor’s common-law and contractual indemnity claims dismissed based on its own negligence. Mechanical contractor’s carrier granted declaratory judgment it was not required to defend contractor, named as additional insured, as coverage was excess where contract did not require it to provide primary insurance. Carrier potentially liable to indemnify contractor as excess insurer. Mazo v DCBE Contr., Inc.

MVA   Rear End   Pileup   Nonnegligent Explanation   Comparative Fault   Admissibility   Admission  

Second Department
Plaintiff, driver of lead vehicle in 4-vehicle pileup, entitled to summary judgment against 4th-vehicle on plaintiff’s affidavit that he was slowing due to traffic when struck in the rear and 4th-vehicle driver’s admission in certified police report that he rear-ended 3rd-vehicle. Admission in police report was admissible. Plaintiff not required to show freedom from comparative fault. 4th-vehicle raised issue of whether 3rd-vechicle first rear-ended 2nd-vehicle and 2nd-vehicle’s failure to submit affidavit establishing it was not at fault requiring denial of motions for summary judgment of cross-claims. Sooklall v Morisseav-Lafague

Slip/Trip   Snow/Ice   Sidewalk   Prior Written Notice   Create Condition   Expert Aff   Conclusory   Speculation   Premature Motion  

Second Department
Village granted summary judgment on proof it did not have prior written notice of defect and that its repaving 1.5 years before plaintiff’s fall did not create an immediately dangerous condition through an affirmative act of negligence. Plaintiff’s expert’s opinion was speculative and conclusory without proof that the condition when repaved was the same as when plaintiff fell. Plaintiff failed to provide an evidentiary basis that relevant information solely within village’s possession existed on claim of premature motion. Race v Village of Brewster

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About Matt McMahon

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