August 8, 2023 | Vol. 377

(5 summaries)

Child Victims Act   Motion to Dismiss   Court of Claims  

Second Department
State’s motion to dismiss Child Victims Act action for failure to satisfy the “when” pleading requirement of Court of Claims Act §11(b) for sexual assault at a residential psychiatric facility denied where claimant alleged he was sexually assaulted twice after being admitted to the facility at 16, identified his abuser and the location of the abuse, and that he reported the second assault to his named treating psychiatrist. The Court noted that their interpretation of the §11(b) time when requirement in CVA cases does not apply to other situations.

There was 1-concurring opinion “on constraint” of the Second Department’s previous precedents on the issue, taking issue with the Court’s use of the legislative history of the CVA to relax the §11(b) standards without any change in those standards expressed in the CVA. Rodriguez v State of New York    

Comment: The relaxed “time when” standards for CVA cases has been adopted by the Second and Fourth Departments. The issue with this standard raised by the concurring opinion suggests that this need to be addressed by the Court of Appeals.

Motion to Dismiss   Misrepresentation   Respondeat Superior   Default Judgment   Compel Acceptance   Reasonable Excuse   Meritorious Defense   Prejudice  

Second Department
Motion to dismiss fraud cause of action granted where Complaint alleged Lyft’s marketing represented its service was safe because it screened and did background searches on its drivers and that the infant-plaintiff, whose driver allegedly masturbated in front of her, was aware of the representation but failed to specify which statements were false, when they were made, or set out facts showing how the representations caused her damage during the ride. Claim that she would not have used the service absent the safety representations was insufficient to show causation.

Respondeat superior claim dismissed as sexual assault is not within the scope of employment since it does not serve an employer’s interests. Browne v Lyft, Inc.    

Comment: Plaintiffs’ motion for default judgment against Lyft driver denied and driver’s motion to compel acceptance of his Answer granted where delay in answering Amended Complaint was short and his medical records from days before the incident of treatment for a medical condition that caused intense itching around his groin showed a potentially meritorious defense. Browne v Lyft, Inc..

MVA   SUM   Arbitration   Settlement  

Second Department
SUM carrier’s petition to enforce purported $450,000 settlement agreement for decedent’s death denied and estate’s motion to confirm $950,000 arbitration award granted where emails between counsel, after arbitration hearing but before award, did not contain all of the material terms of the settlement as the estate’s counsel’s email contained the additional term that the $50,000 received from the other tortfeasor would not be an offset of the settlement amount and that the parties understood there was no arbitration award and the estate’s counsel would inform the arbitrator that the award was unnecessary, which was not done. Harleysville Ins. Company/Nationwide Gen. Ins. Co. v Estate of Otmar Boser    

Dram Shop   Motion to Dismiss   Respondeat Superior   Negligent Supervision   Notice  

Second Department
Motions to dismiss by individual owners of LLC and corporations that owned or operated bar where patron was served alcohol while visibly intoxicated and then drove on a sidewalk injuring 3 and killing 1 granted where Complaint failed to allege facts to show they exercised “complete dominion” over the companies or how they used complete dominion to commit a fraud or wrong against the plaintiff, necessary to pierce a corporate veil. Allegations that defendants undercapitalized and underinsured the companies were conclusory and speculative and could not form the basis of wrongdoing against the plaintiff to establish they were alter egos which does not require a showing of fraud.

Respondeat superior claims dismissed as inapplicable to supervisors and they did not create the dangerous condition. Negligent supervision, hiring, retention claims against company that managed bar dismissed where Complaint did not allege facts to show it had notice of employees’ propensity to create the danger or that it directed or participated in the wrong. Tabchouri v Hard Eight Rest. Co., LLC    

Comment: The Court decided the 3-related cases on the basis of this decision. Balchunas v Hard Eight Rest. Co., LLC, Esquivel v Hard Eight Rest. Co., LLC.

Malicious Prosecution   Probable Cause   NYC  

First Department
NYC granted summary judgment dismissing federal and state malicious prosecution claims for resisting arrest and obstructing government administration charges as guilty verdict raised presumption of probable cause even where Court of Appeals overturned verdict on speedy trial grounds and plaintiff failed to overcome presumption without proof defendants’ version of the incidents were “fraudulent or perjurious.”

NYC conceded it did not have probable cause for harassment or assault charges and lack of probable cause for other charges did not eliminate need to show probable cause for harassment and assault charges. Probable cause must be shown for each charge. Sibblies v City of New York    

(14 summaries)

MVA   Pedestrian   Set Aside Verdict   There to be Seen  

Second Department
Verdict finding bus driver not negligent for striking plaintiff pedestrian in Thruway entrance ramp while making a left hand turn with green left hand turn signal set aside as against weight of the evidence where eyewitness’ testimony that plaintiff was in the middle of the entrance ramp when struck by the defendants’ bus so preponderated in favor of the plaintiff that the jury could not reach its verdict on a fair interpretation of the evidence even though it was unclear whether plaintiff was crossing in or near the crosswalk. Wargold v Hudson Tr. Lines, Inc.    

Wrongful Death   Venue  

Second Department
Residential healthcare facility’s motion to change venue from Kings to Nassau County based on forum selection clause in admission agreement denied were facility failed to show decedent’s granddaughter was the “designated representative” for the resident when signing the agreement by a court, the resident’s designation, or by the family’s designation of her as the one most personally involved in the resident’s care. Quarterman v River Manor Corp.    

Malpractice   Wrongful Death   Venue  

Second Department
Care center’s motion to change venue from Bronx to Westchester County granted where plaintiff did not dispute she signed her mother’s admission agreement with a forum selection clause designating Westchester County and plaintiff failed to show that enforcement of the cause would be “unreasonable, unjust, or would contravene public policy, or that the forum selection clause was the result of fraud or overreaching.” Reynolds v JOPAL Bronx, LLC    

Premises Liab   Duty   Control   Create Condition   Renew   Reasonable Excuse   Notice   Last Inspection  

Second Department
Sponsor of parade where marcher tripped and fell in open utility hole granted summary judgment on proof it did not own, occupy, or control the parade route and did not create the dangerous condition. Lower court providently declined to consider water authority’s successive motion for summary judgment as successive summary judgment motions are discouraged absent newly discovered evidence and denied renewal where water authority failed to show a reasonable excuse for not including its maintenance records on the original motion or that they would show lack of constructive notice without evidence of the last time the road was cleaned/inspected prior to plaintiff’s accident. Bockstruck v Town of Islip    

Labor Law §240   Labor Law §241   Labor Law §200   Homeowner Exception   Hearsay   Control   Premature Motion  

Second Department
Homeowners granted summary judgment dismissing Labor Law §§ 240(1) and 241 6) claims of worker injured when scaffold collapsed during renovation on proof they were entitled to the homeowners exception to §§240, 241 as it was a single-family home not used exclusively for commercial purposes. Homeowner exception applies to second homes and defendants showed they were living there on weekends during and full-time after the renovation. Plaintiff failed to raise an issue on his employer’s hearsay statement that the plaintiffs were renovating the home to sell it. Labor Law §200 and negligence claims dismissed where defendants had no authority to control the means and methods of plaintiff’s work.

Plaintiff failed to show discovery might lead to relevant information or information solely within defendants’ possession in order to oppose the motion. Valencia v Glinski    

Premises Liab   Dogbite   Control   Spoliation   Strike Answer   Willful/Contumacious   Survelliance Video  

Second Department
Shopping mall granted summary judgment dismissing infant-plaintiff’s claim for dogbite outside the mall on proof it did not harbor or permit the dog to be on its premises or exercise control over the dog. ‘[T]he occasional presence of a dog in a premises does not rise to the level of harboring.’ Plaintiff met burden of showing defendant had duty to preserve surveillance video but motion to strike Answer denied without proof of willful/contumacious conduct. M. M. v Macerich Prop. Mgt. Co., LLC    

Premises Liab   3rd Party Contractor   Espinal   Create Condition   Trivial  

Second Department
Landscaper denied summary judgment dismissing plaintiff’s claim for trip on raised portion of pavement adjacent to crosswalk on private road where proof that the new asphalt they placed over the existing pavement when resurfacing the road created an elevation differential between the existing pavement and the new asphalt raised an issue of whether they launched and instrumentality of harm under Espinal which was pleaded in the BP. Photographs were inconclusive as to whether the defect was trivial. Camelio v Shady Glen Owners    

Premises Liab   3rd Party Contractor   Espinal   BP   Create Condition   Indemnity  

Second Department
Wholesale vendor granted summary judgment dismissing plaintiff’s claim for trip over box on sidewalk outside grocery store it serviced on proof plaintiff was not a party to its contract with the grocery store and it did not launch an instrumentality of harm under Espinal on plaintiff’s testimony that a grocery store employee was filling/packing the box just before she fell. As vendor was not negligent, cross claims for common-law contribution and indemnity dismissed. Calle v 16th Ave. Grocery, Inc.    

Notice of Claim   Reasonable Excuse   Actual Knowledge   Prejudice  

Second Department
Petition for leave to serve late Notice of Claim or deem late Notice of Claim timely served nunc pro tunc denied where petitioner’s claims of ignorance of the law and law office failure did not provide a reasonable excuse for 3-month delay, claim village’s knowledge of its employees’ responsibilities to perform inspections gave it actual knowledge of the essential elements rejected, and petitioner failed to produce some evidence or a plausible argument that village would not be prejudiced by the delay. Matter of Sumi v Village of Stewart Manor    

Malpractice   Accepted Practice   Causation   Experts  

Second Department
Defendants met burden for summary judgment by opinions of a board-certified orthopedist and a board-certified radiologist that defendant-orthopedist’s diagnosis and treatment of the patient’s ankle injury was correct, within accepted practice, and did not cause the patient’s injuries. Plaintiffs failed to raise an issue in opposition without submitting and expert affirmation. Roy v Lent    

Premises Liab   Snow/Ice   Stairs   Notice  

Second Department
Condominium failed to meet burden for summary judgment for slip and fall on ice where plaintiff testified it was not snowing at the time she fell on icy stairs which left questions of storm in progress, preexisting conditions, and constructive notice. Cassino-Sharp v Whispering Hills Home Owners Assn., Inc.    

Assault   Negligent Supervision   Negligent Hiring   Motion to Dismiss   Notice   Premature Motion  

Second Department
Motion to dismiss, converted to motion for summary judgment, by defendant medical practice where defendant surgical oncologist was a partner, granted dismissing the negligent supervision, hiring, training, and retention claims on proof they had no notice of any propensities of the defendant-doctor to sexually assault or inappropriately touch patients and Executive Law §296 claims against it dismissed as the patient was not deprived of any public accommodation.

Plaintiff failed to show additional discovery might lead to relevant information to oppose the motion or information solely within defendants single possessive knowledge. Guarino v ProHEALTH Care Assoc., LLP    

MVA   Bus   Survelliance Video   Experts  

Second Department
NYCTA granted summary judgment on bus video and its driver’s testimony and affidavit establishing that bus entered the intersection with the green light and plaintiff unexpectedly entered the intersection against a red light and struck the bus. Plaintiff’s expert’s opinions that the bus was traveling over the speed limit and could have avoided the accident failed to raise an issue in opposition. Pouncey v New York City Tr. Auth.    

MVA   Rear End   Nonnegligent Explanation   Comparative Fault   Premature Motion  

Second Department
Plaintiff granted summary judgment on liability on his affidavit that his vehicle was rear ended by defendants’ vehicle and defendants failed to offer a nonnegligent explanation. Plaintiff denied summary judgment dismissing comparative fault affirmative defenses where he failed to eliminate all questions of whether he was free from comparative fault. Motion not premature where defendant-drive had personal knowledge of the relevant facts. Bruce v Takahata    

(0 summaries)

About Matt McMahon

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