August 9, 2022 | Vol. 325

(3 summaries)

False Imprisonment   Battery   Malicious Prosecution   Set Aside Verdict   Pain/Suffering   Materially Deviates   Spoliation   Law of the Case   Punitive Damages   NYC  

Second Department
False imprisonment and battery verdict set aside unless plaintiff, a court-attorney, stipulated to reduce the $1.8mil past pain/suffering award to $500,000 as materially deviating from reasonable compensation for his overnight incarceration, embarrassment and loss of reputation at being brought into the courthouse where he worked in undershirt and jogging shorts and having to disclose and explain the charge based on an alleged assault of a woman which derailed his attempt to become a judge.

A man and woman being ejected from the store blocked plaintiff as he entered. After they exchanged words with plaintiff referring to the woman as “bitch,” the pair physically attached plaintiff and he in turn punched the man twice. The defendant Home Depot employee chased down and physically restrained plaintiff for 30-60 seconds and falsely told the responding police that plaintiff struck the woman with a shopping cart, “importuning the police to arrest him.” The EDNY dismissed all claims against NYC as the Home Depot employee’s statement gave the police probable cause for the arrest. That decision was not “law of the case” in the state case as the employee’s false information could not give Home Depot or the employee probable cause for detaining plaintiff, battering him in the process, and having him arrested.

Trial court properly gave negative inference charge for unpreserved video of incidence and instructed jury they must find the video was relevant, but there is no separate cause of action for spoliation. Malicious prosecution claim dismissed as only district attorney had authority to prosecute and it had probable cause based on defendants’ false information. Plaintiff failed to prove entitlement to lost earnings and punitive damages. Wieder v Home Depot U.S.A., Inc.    

Comment: The original case was brought in NYS Supreme Court and removed to the EDNY. After the EDNY dismissed the federal charges, it declined to retain jurisdiction of the state charges and dismissed the case which was subsequently brought again in NYS Supreme Court.

Premises Liab   Snow/Ice   Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice   Speculation  

Second Department
Lower court improvidently granted petition to deem Notice of Claim served 3-days beyond 90-day period from accident, which the municipalities rejected by letter 13-days later, timely nunc pro tunc where petitioner did not offer a reasonable excuse for waiting 9-months to bring the petition even if the 3-day delay in serving the Notice of Claim could be excused. The Court also found the municipalities did not receive actual knowledge of the essential elements within the 90-days or a reasonable time thereafter because the police report mentioned only a slip and fall without details from which an actionable wrong could be “readily inferred.”

Municipalities’ attorney’s reply affirmation claiming prejudice because one of the officers retired and might not be available to testify was speculative and did not provide particularized evidence of prejudice, but petition denied on lack of actual knowledge and reasonable excuse. Matter of Ortiz v Westchester County    

Motion to Dismiss   CPLR § 3126   90 Day Notice   Notice   Discovery   Note of Issue   Willful/Contumacious  

Second Department
Lower court improperly relied on CPLR §3216(a) to dismiss action for plaintiff’s failure to prosecute where the motion was made on CPLR §3126 for delay in providing discovery, not failure to prosecute, as the court was without power to dismiss for failure to prosecute, on general delay or failure to file a Note of Issue grounds, as no 90-day notice had been served. Lower court also improperly dismissed action for plaintiff’s failure to be relieved of time to appear for deposition and file a Note of Issue in a final pre-note order as it was not a conditional order, plaintiff provided all required discovery required except appearing for EBT, and defendant failed to show it provided any of the Optical Coherence Tomography images it was required to provide under the pre-note order before making the motion to dismiss. Defendant failed to show plaintiff’s failure to fully comply with the pre-note order was willful/contumacious. Cooper v Mt. Sinai Hosp.    

(15 summaries)

Assault   Respondeat Superior   Negligent Hiring   Notice   Violent Propensity   Foreseeability  

Second Department
Domino’s pizza granted summary judgment dismissing assault claim of police officer who stopped delivery driver and issued him ticket for defective headlight on proof driver was not acting within scope of his employment as he was not authorized to use force so respondeat superior could not apply. Negligent hiring claim dismissed on proof Domino’s pizza had no notice of employee’s violent propensity which was unforeseeable. Maldonado v Allum    

Notice of Claim   Actual Knowledge   Prejudice   NYC  

Second Department
Lower court improvidently denied petition to serve late Notice of Claim where police accident report, line-of-duty injury report, and witness statements taken on day of accident gave NYC actual knowledge that a potentially actional wrong was committed by its employees. NYC could not be prejudiced by minimal delay where it had timely actual knowledge. Matter of Dautaj v City of New York    

Sidewalk   Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice   Admissibility   NYC  

Second Department
Petition to serve late Notice of Claim denied where petitioner offered no excuse for not serving a timely Notice of Claim, failed to show NYC had actual knowledge of essential facts of the claim within 90-days or a reasonable time thereafter, and failed to provide ‘some evidence or plausible argument’ NYC would not be prejudiced by delay. Unauthenticated photographs could not establish actual knowledge. Matter of Nunez v City of New York    

Labor Law §200   Labor Law §241   Control   Industrial Code   Indemnity  

Second Department
Building owner, management company, and GC granted summary judgment dismissing Labor Law §200 and negligence claims where worker tripped and fell on “stub-up” electrical outlet protruding above floor without safety markings on proof they had only general supervisory authority of the project but data cable subcontractor who installed cables through the stub-ups denied summary judgment as it failed to show the marking were not removed by its employees or that it lacked authority to replace any markings it removed.

Plaintiff’s initial testimony he fell while walking through an open area and later explanation that he fell while walking through area of office partitions being constructed raised issues of whether either industrial code §23-1.7(e)(1)(passageways) or §23-1.7(e)(2)(floors/platforms) or neither of them applied on Labor Law §241(6) claim. Fact that stud-up was integral part of the construction did not make code provisions inapplicable where there was no proof they needed to be unmarked or the safety markings would have interfered with the work. Defendants failed to eliminate all questions of fact on industrial codes §§ 23-1.7(e)(1), 23-1.7(e)(1), and 23-1.30 (lighting) but summary judgment dismissing §241 claim granted to data cable contractor granted on proof its employees did none of the work and lacked supervisory authority of those who did, and to data cable subcontractor to extent predicated on lighting as lighting was excluded from its contract. GC denied summary judgment on §241 without proof it lacked authority to ensure industrial codes compliance.

Data cable contractor entitled to conditional summary judgment on contractual indemnity against data cable subcontractor to extent of subcontractor’s negligence and dismissal of electrical contractor’s contractual and common-law indemnity claims against data cable contractor as if had no role in the work. GC’s motion for summary judgment on contractual indemnity claim against electrical contractor denied where GC failed to submit an indemnity agreement. Murphy v 80 Pine, LLC    

Malpractice   Duty   Accepted Practice   Causation   Experts  

Second Department
Hospital and outpatient occupational therapy clinic granted summary judgment dismissing plaintiff’s claim that occupational therapist failed to properly monitor heat pack therapist placed on plaintiff’s hand causing a blister and skin necrosis from a second degree burn based on defendants’ expert’s opinion treatment did not deviate from accepted practice and could not have burned just the top of plaintiff’s finger. Plaintiff did not raise issue in opposition where he did not submit an expert opinion to rebut defendants’ expert’s opinions and argument that it was negligence not malpractice rejected as therapist’s need to monitor was related to plaintiff’s care and treatment. Jean-Paul v Jamaica Hosp. Med. Ctr.    

Labor Law §240   Labor Law §200   Gravity Risk   Sole Cause   Create Condition   Control  

Second Department
Building owner and GC granted summary judgment dismissing Labor Law §240(1) claim of worker who fell from inverted bucket he used to reach power cable for stacked washer/dryer he was installing in a closet during construction of apartment building as plaintiff was not exposed to a necessary gravity risk that needed a ladder where he testified he installed 20 of the stacked washer/dryers without a ladder before he fell, they were on wheels, and could be removed in order to reach the cable without a ladder. Plaintiff’s decision to use the inverted bucket was the sole proximate cause of his injuries.

Defendants granted summary judgment dismissing Labor Law §200 and negligence claims on proof they did create a dangerous condition and did not have authority to control plaintiff’s work. Morales v 50 N. First Partners, LLC    

Premises Liab   Open/Obvious   Inherently Dangerous  

Second Department
School district failed to meet burden for summary judgment on its claim moveable elevated conductor’s platform at edge of stage that decedent tripped on and fell was open/obvious and not inherently dangerous where questions remained of whether decedent’s view of the platform was obstructed or narrowed while he walked on walkway adjacent to and level with the stage. Pirreca v Smithtown Cent. Sch. Dist.    

MVA   Construction Liab.   Pedestrian   Turning Vehicle   Causation   Espinal  

Second Department
Construction company refurbishing bridge under contract with DOT did not assume contractual duty to decedent as he crossed the street and was struck by a turning vehicle but plaintiff raised issue of whether construction company launched an instrumentality of harm under Espinal by blocking the turning vehicle driver’s view of the decedent by their placement of construction barrels and signs and whether these were a cause of the accident. Correa v Town of Brookhaven    

Malpractice   Accepted Practice   Causation   Experts   Conclusory   Speculation  

Second Department
Hospital granted summary judgment dismissing claim it failed to provide adequate pain medication and mis-programmed plaintiff’s controlled analgesia pump after back surgery on expert’s opinions of no departure or causation and plaintiff’s expert failed to raise an issue with opinions that were conclusory and speculative and did not address defendant’s expert’s specific opinions. Piazza v NYU Hosps. Ctr.    

Premises Liab   Sidewalk   Duty   Create Condition  

Second Department
Abutting landowner granted summary judgment where city’s law imposing duty on abutting landowners to maintain and repair sidewalk did not extend to tree-wells and landowner showed it did not create the dangerous condition, make a negligent repair to the tree-well, or make special use of the area. Tigue v City of Newburgh    

Premises Liab   Sidewalk   Duty   Create Condition  

Second Department
Abutting landowner failed to meet burden for summary judgment even though plaintiff fell on sidewalk it didn’t own and town ordinance did not create tort liability for abutting landowners as it failed to eliminate questions of whether it created the raised sidewalk flag condition. Kearns v Cedar Cove Dev. Corp.    

Premises Liab   Notice   Last Inspection  

Second Department
Without proof of last time area was cleaned/inspected, City of Newburgh failed to show it lacked constructive notice of broken glass bottles near bleachers of soccer field where father was injured when he stepped onto broken glass while he and other parents tried to remove glass before kids’ soccer game. General cleaning practices are insufficient to establish lack of constructive notice. Hegeman v City of Newburgh    

MVA   Turning Vehicle   Premature Motion  

Second Department
Plaintiffs granted summary judgment where defendants’ vehicle made a left hand turn into plaintiffs’ vehicle that was passing through intersection, establishing negligence per se for violation of VTL §1141 failure to yield right of way when turn could not be made safely. Defendants failed to make evidentiary showing that discovery would lead to relevant information or facts necessary to oppose the motion were exclusively with plaintiffs’ knowledge. Whitehead v David Rosen Bakery Supplies, Inc.    

Malpractice   Accepted Practice   Experts   Conclusory   Speculation  

Second Department
Defendants granted summary judgment on expert opinions that their unsuccessful attempts at closed and open reduction of plaintiff’s little finger, deformed from an 8-month old untreated injury, did not depart from accepted practice. Plaintiff’s expert failed to raise an issue in opposition with opinions that were conclusory and speculative and did not rebut specific opinions of defendants’ experts. Frazier v Shteynberg    

Serious Injury   Causation   Experts  

Second Department
Defendants met burden for summary judgment on serious injury by competent medical evidence but plaintiff raised issues in opposition. Burden of proof never shifted to plaintiff where defendants’ expert conceded lumbar injury was caused by the accident. Lella v Aronoff    

(4 summaries)

Premises Liab   Open/Obvious   Inherently Dangerous   Premature Motion   NYC  

Second Department
NYC, owner of the First Department courthouse, granted summary judgment of claim plaintiff tripped while trying to step over velvet rope across staircase in court lobby on proof condition was open/obvious and not inherently dangerous. Plaintiff failed to raise an issue in opposition and argument that motion was premature denied. The Court does not give the details of the proofs. Hallahan v City of New York    

Comment: The appeal was transferred from the First Department.

Premises Liab   Create Condition   Notice  

Second Department
Department store granted summary judgment on proof it did not create or have notice of condition for sufficient time to correct it before plaintiff slipped on tomato on floor. The Court does not give the details of the proofs. Kmitis v Macy    

Serious Injury  

Second Department
Defendant met burden for summary judgment on serious injury by competent medical evidence but motion granted only to extent of dismissing 90/180-day category where plaintiff raised issues of fact on permanent consequential and significant limitation categories. The Court does not give the details of the proofs. Isidor v Banks    

Premises Liab   Stairs   Comparative Fault  

Second Department
Plaintiff’s cross-motion to dismiss comparative fault affirmative defense granted on proof she was not negligent when she slipped while descending exterior stairs and defendants failed to raise an issue in opposition. The Court does not give the details of the proofs. Ellerin-Diefenbach v Autumn Sky Dev. Co., Inc.    

About Matt McMahon

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