| MUST READS (2 summaries) | |||
| NOTEWORTHY | IF YOU MUST READ | ||
 Worker who removed lanyard in order to carry a pipe in one hand and clamp in the other to bring them 20’ to a coworker met burden for summary judgment on Labor Law §240(1) by proof a wooden plank on the scaffold deck broke 5’ from the coworker, causing him to fall. Since the failure of the wooden plank was a §240 violation, plaintiff’s removal of his lanyard could only be comparative negligence, not a §240 defense, and could not be the sole proximate cause of his fall. Amaro v New York City Sch. Constr. Auth. ✉Comment: The facts in this case provide a clear example of the maxim that a §240 violation cannot coexist with a claim that a plaintiff is a sole proximate cause. |
| Defendants’ motion to dismiss for plaintiff’s failure to file Note of Issue withing time required by 90-day notice providently granted only to the extent of ordering plaintiff to file the Note of Issue within 6-days of the order to avoid dismissal as CPLR §3216 is “an extremely forgiving statute, which never requires, but merely authorizes” dismissal, discovery was complete, and there was no prejudice to the defendants. Disla v El Potrero Sport Bar, Inc. ✉ |
| NOTEWORTHY (9 summaries) | |||
| MUST READS | IF YOU MUST READ | ||
| On appeal from so much of order and judgment dismissing negligent supervision and retention claims, where malpractice claims were barred by the statute of limitations, dismissal of negligent supervision and retention claims affirmed as plaintiff did not adequately “allege that the defendant knew, or should have known, of a propensity on the part of any employee or employees to commit an alleged wrongful act.” Abbas v Richmond Univ. Med. Ctr. ✉ |
| Defendants’, Access-A-Ride, New York City Transit Authority, Metropolitan Transit Authority, MTA Bus Company, and Curb Mobility, LLC, motion to dismiss causes of action for vicarious liability based on respondeat superior and agency denied where plaintiff pled the driver and owner of the vehicle he requested through the Access-A-Ride dispatcher were “agents, servants, and/or employees” of moving defendants and his 50h testimony he submitted in opposition stated a claim for vicarious liability on those theories. A motion court may freely consider affidavits submitted by plaintiffs to remedy any defects in the Complaint. Waluyn v Access-A-Ride ✉ |
| Village’s motion to dismiss plaintiff’s claim for police use of excessive force from ‘actions and omissions evincing negligence or gross negligence,’ resulting in decedent’s death, granted as plaintiff failed to state a viable cause of action as there is no cause of action for negligent assault or battery. McMullin v Village of Spring Val. ✉ |
| While the administrative code §7-210 duty to maintain an abutting sidewalk in a safe condition does not extend to a leasee, leasee denied summary judgment where it failed to show it did not create the condition as alleged by plaintiff. It cannot meet its burden by pointing to gaps in plaintiff’s proofs. Plaintiff’s motion for summary judgment against abutting landlord denied without proof the landlord created or had notice of the condition as plaintiff must still prove negligence under §7-210. Cooper v First In Queens, Inc. ✉ |
 Motion for summary judgment by hospital where decedent was brought by ambulance unresponsive denied where plaintiff’s experts opinions that hospital departed from accepted practice for a 1-hour delay in performing a CT scan to rule out an intercranial bleed, which should have been performed within 10-minutes, not interpreting the CT scan that showed an intracerebral hemorrhage from an aneurysmal bleed for 2-hours after he was brought to the ER, not seeing the patient for 3.5 hours after he arrived at the ER, and not transferring him to a hospital better able to treat him for another 3-hours which conflicted with the hospital’s experts.Internist who treated decedent for 7-years for hypertension, diabetes, hyperlipidemia, and coronary arteriosclerosis and saw him for a routine visit about 7-hours before his ER admission granted summary judgment where plaintiff’s expert failed to address the internist’s experts opinions of accepted practice in treating decedent’s hypertension and that at the time the internist saw him his mild headache did not show signs of an aneurysmal bleed. Cabrera v Golden ✉ |
| Property owner granted summary judgment dismissing plaintiff’s claim for trip and fall on broken bicycle chained to a bike rack on the abutting sidewalk on proof lighting conditions were good, plaintiff saw the bicycle in her peripheral vision before her fall, and there was space to walk around the bike, establishing that the condition was open/obvious and not inherently dangerous. Torres v La Borinquena HDFC, Inc. ✉ |
| Defendants granted summary judgment on affidavit and testimony of their security director and security logs showing the interior stairway where plaintiff slipped on a wet substance was last inspected less than 3-hours before he fell and there was no wet substance, establishing the condition did not exist long enough for defendants to discover and remedy it. Carmenati v Sea Park E., L.P. ✉ |
| Plaintiff’s expert raised an issue in opposition by his expert’s opinion that slope of the top landing step plaintiff slipped on was 6-8 times greater than allowed by NYS Building Code, contradicting defendant’s expert’s opinion that it was trivial and within code, and property owner failed to establish it did not create or have notice of the alleged dangerous condition. Tamburo v Long Is. Univ. ✉ |
| Plaintiff granted summary judgment on liability and dismissal of comparative fault and emergency doctrine defenses on proof he did not have any traffic control devices as he entered the intersection and defendant’s vehicle entered the intersection from a perpendicular street without stopping at a stop sign. Defendant failed to show motion was premature without ‘evidentiary basis to suggest that discovery may lead to relevant evidence, or that facts essential to opposing the motion [are] exclusively within the knowledge and control of the [moving party].’ Yongyong Zhu v Shrestha ✉ |
| IF YOU MUST READ (2 summaries) | |||
| MUST READS | NOTEWORTHY | ||
| Defendants denied summary judgment dismissing 6-year-old’s claim for injuries while using a slip-and-slid at a city summer camp where they failed to show they provided adequate supervision, that lack of adequate supervision was not a cause of the infant-plaintiff’s injuries, and that they did not create the dangerous condition. The Court does not give the details of the proofs. H. J. v City of Glen Cove ✉ |
| Defendants met their burden for summary judgment on competent medical proof that plaintiff did not sustain a serious injury under the permanent consequential or significant limitation categories and that he did not meet the 90/180-category. The Court does not give the details of the proofs. Brown v Calisi ✉ |