About Matt McMahon

Civil trials and appeals since 1984

October 16, 2018 | Vol. 128

MUST READS
(9 summaries)
NOTEWORTHY IF YOU MUST READ

Premises Liab   Dangerous Condition   Duty   Control  

First

Charter school’s motion for summary judgment denied where it failed to show that fence surrounding playground, a common area shared by several schools, was not a dangerous condition and failed to submit lease showing that it did not have an obligation to maintain fence. Although not the owner, it had a common law duty to maintain premises in a reasonably safe condition because “employees were in possession of, occupied, and controlled access to the playground.” Defendant’s expert opined that the fence met all New York City School Construction Authority (NYCSCA) standards but plaintiff’s expert opined that it violated NYCSCA standards where the top portions of the fence became sharp causing the injury resulting in amputation the infant-plaintiff’s ring finger and infant-plaintiff confirmed that the fence was sharp in her affidavit. Adriana G. v Kipp Wash. Hgts. Middle Sch.


Premises Liab   Fireman Rule   GML §205-e   Create Condition   Notice   NYC  

First

Firemen’s rule, GML 205-e for police, did not apply where officer was exiting van to go to intersection to direct traffic because risk was not increased by his official duty. NYC established that it neither created nor had actual notice of the depressed sewer grate but failed to submit evidence of prior inspections necessary to show lack of constructive notice. Authenticated photographs from 3-weeks after accident showed condition was not latent and would not have developed overnight, permitting an inference of constructive notice. Genova v City of New York


Negligent Supervision   Special Duty   Notice   Intervening Cause  

Second Deptartment

School district failed to meet burden of showing that it did not have “sufficiently specific knowledge or notice of the dangerous conduct which caused injury” for summary judgment on negligent supervision claims where assaulting student had recent prior assault incidents, or that the assault was so unexpected and unforeseeable that no degree of supervision could have prevented it. School district entitled to summary judgment on inadequate security claim as it assumed no special duty to the individual plaintiff. Gaston v East Ramapo Cent. Sch. Dist.


Products Liab   Motion to Dismiss   Duty   Warnings   Punitive Damages  

First

Defendants moved to dismiss all claims by a patient, except manufacturing defect, for its product Enbrel. Plaintiff’s claims of injury during time that she participated in a clinical trial dismissed as a clinical trial sponsor owes no duty directly to the patient. Failure to provide proper warnings claim not dismissed where claim was that manufacturer failed to warn doctors under “learned intermediary doctrine,” not patient, and defendants failed to show as a matter of law that the warnings were adequate. Warranty claims properly pleaded. Defendants correctly asserted that there is no separate cause of action for punitive damages but that did not mean that plaintiff could not seek punitive damages. Wholey v Amgen, Inc.


Labor Law §241   Industrial Code   Fireman Rule   GML §205-a   Indemnity  

Second Deptartment

Sprinkler company’s motion for summary judgment denied where fire marshal’s injuries from fall on construction debris while conducting inspections was during and integral to construction process bringing it within protection of Labor Law §241(6) and sprinkler company failed to show that industrial code provisions were inapplicable. Sprinkler company granted summary judgment against third-party claims for indemnity because owner and GC failed to show that they were free from negligence and that sprinkler company controlled the work area containing the debris. Summary judgment denied sprinkler company on contribution claims where it could be found partially at fault for the presence of the debris. Fedrich v Granite Bldg. 2, LLC

Comment:
In a companion decision, the owner’s and management company’s motion for summary judgment on plaintiff’s GML §205-a cause of action alleging statutory violation granted and plaintiffs cross-motion for summary judgment denied because plaintiff was not an “officer, member, or employee of a fire department.” Fedrich v Granite Bldg. 2, LLC.


Vacate Default   Reasonable Excuse   Meritorious Action  

Second Deptartment

82-year-old homeowner’s motion to vacate default in appearing at 2 conferences, and to strike Note of Issue and Notice of Inquest, should have been granted he was unrepresented during time of conferences, hospitalized for 6-weeks, did not reside at the property and did not receive notice of the conferences or inquest. Since he did not receive notices, the default and subsequent inquest were nullities under CPLR §5015(a)(1) and had to be vacated. Motion to vacate Note of Issue made more than 20 days after it was filed required showing of good cause which was met based on the above circumstances. Sposito v Cutting


Labor Law §240   Labor Law §241   Scaffold   Late Notice of Claim   Motion to Dismiss   Actual Knowledge   Reasonable Excuse   Prejudice   NYC  

Second Deptartment

Petition to serve late Notice of Claim denied where NYC had no knowledge of accident or claims under Labor Law §§240 (1) & 241(6) prior to motion for leave, plaintiff offered no reasonable excuse for the delay or proof or plausible argument lack of prejudice. Four months after expiration of the 90-days was not “a reasonable time thereafter” and transitory nature of the condition weighed against granting leave. Moroz v City of New York

Comment: Action commenced 7-months after accident while petition to serve late Notice of Claim was pending dismissed where petition for leave to serve late Notice of Claim denied. Moroz v City of New York.


Premises Liab   Late Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice  

Second Deptartment

Notice of Claim served after 90-days and rejected by NYC as untimely did not provide actual notice within 90 days or reasonable time thereafter where petitioner did not petition to serve late Notice of Claim for more than 9-months after Notice of Claim was rejected. Medical records submitted by petitioner showed that she had fully recovered from her injuries and was no longer on pain medications long before the expiration of the 90-days and, therefore, did not provide a reasonable excuse for the delay. Petitioner failed to produce evidence or a plausible argument that NYC was not prejudiced by the delay and condition was transitory. Matter of Ashkenazie v City of New York


Premises Liab   Slip/Trip   Snow/Ice   Vacate Default   Reasonable Excuse   Meritorious Action  

Second Deptartment

Defendant’s motion to vacate default in answering and compel plaintiff to accept Answer granted where it had submitted the summons and complaint to its carrier that provided workers compensation for plaintiff’s injuries, had not received a disclaimer, and first realized that carrier was not defending action upon receipt of the Notice of Inquest providing a reasonable excuse for the delay in answering and showing that delay was not willful. Defendant manager’s affidavit stating that they had no notice of an icy condition, had leased the premises and were not required to maintain it under the lease provided a meritorious defense. Motions to vacate default are discretionary and will not be overturned unless clearly improvident. Rekhtman v Clarendon Holding Co., Inc.

NOTEWORTHY
(20 summaries)
MUST READS IF YOU MUST READ

Assumption of Risk   Causation  

First

Ski resort denied summary judgment where it could not be determined on the record whether the unpadded snowmaking pole was located in a permitted skiing area when the infant plaintiff was injured when she collided with the pole. A skier assumes the risks associated with skiing including man-made objects such as snowmaking equipment, GOL §18-101, but does not assume unreasonably increased risks GOL §18-106. Since padding of a snowmaking pole was not included in the statute, it is governed by common-law. GOL §18-107. Defendant’s argument that the unpadded pole did not cause the collision did not entitle them to summary judgment because it may have caused or exacerbated the injuries. Madsen v Catamount Ski Resort


Premises Liab   Slip/Trip   Snow/Ice   Storm in Progress   Dangerous Condition  

First

Although meteorological records and expert report showed a storm had ended just before the accident, building owner denied summary judgment where it failed to show condition of the property before the storm began. Meteorological records showed a significant snowstorm several days before the accident that had melted and re-froze. Thomas v New York City Hous. Auth.


Med Mal   Motion to Dismiss   CPLR § 3126   90 Day Notice   Willful/Contumacious  

Second Deptartment

Plaintiff’s failure to provide supplemental BP, HIPAA authorizations, and appear for deposition in contravention of several orders and after plaintiff’s time to file a Note of Issue was extended by plaintiff’s motion in response to defendant’s 90-day notice to prosecute demonstrated willful/contumacious conduct justifying dismissal of the action. Rosenblatt v Franklin Hosp. Med. Ctr.


Labor Law §240   Ladder   Control   Agent   Sole Cause   Recalcitrant Worker   Safety Devices  

First

Sign installer granted summary judgment against store owner and operator for fall from ladder as he tried to release jammed drill which dropped, causing ladder to move from wall, and plaintiff to lose balance and fall. GC denied summary judgment of Labor Law §240(1) claim on argument that carve out provision for signage work contracted separately by operator to sign company where language of GC contract stated that GC was responsible for “taking all reasonable safety precautions to prevent injury or death to persons or damage to property” extending to ”all employees on the Project and all other persons who may be affected by the Work in any way” raised question of fact if GC was responsible for signage worker safety under Labor Law §240(1). Manner that ladder was set was not evidence of sole cause where there was no dispute that plaintiff fell from unsecured ladder and no other safety devices were provided. Recalcitrant worker defense did not apply absent proof that he was instructed to use a different safety device and refused.

Sign contractor denied summary judgment because it had been delegated control over the work area or injury causing work and it could not pass on its liability to plaintiff’s employer whom it subcontracted the work to. White v 31-01 Steinway, LLC


Highway Design   Qualified Immunity   Wrongful Death   Court of Claims   Appealable Order  

Second Deptartment

Where claimant’s expert conceded that safety study of merge on roadway found no safety concerns 11 years prior to accident and expert found no defects in the study, state was entitled to qualified immunity for highway planning decisions and Court of Claims’ finding that state was 33.3% at fault for death of a speeding motorcyclist with cocaine in his system who struck a car crossing 3-lanes of traffic to merge onto the roadway reversed and claim dismissed. Iovine v State of New York

Comment: Appeal from interlocutory judgment dismissed as superseded by corrected judgment. Iovine v State of New York


MVA   Graves Amendment  

Second Deptartment

Commercial leasing company denied summary judgment under Graves Amendment where plaintiff claimed negligent maintenance of vehicle and defendant did not submit proof that vehicle was properly maintained. Casine v Wesner


Premises Liab   Stairs   Dangerous Condition   Create Condition   Notice  

First

While building met its burden of showing that it neither created nor had actual or constructive notice of wet substance on stairs that caused plaintiff’s fall, but failed to meet burden on claim that plaintiff’ reached for handrail and fell because it was loose where superintendent testified that he previously repaired loose handrail with clamp and that 1 of 4 screws holding it was broken. DeSuero v 1386 Assoc., LLC


Products Liab   Dangerous Condition   Causation   Amend Complaint   Statute of Limitations  

Second Deptartment

Manufacturer of waste-oil heater installed in garage granted summary judgment on proof that heater which contained warnings not to weld or allow an open flame within 35’ of waste-oil tank was not dangerous and that it was not the cause of the explosion that injured the garage employee when a coworker created sparks on top of the uncapped oil tank by using a chop saw to cut metal. Kammerzell v Clean Burn, Inc.

Comment:
In companion decision plaintiff’s motion to amend Complaint to include distributor of waste-oil heater denied where motion brought after statute of limitations, 1.5 years after the defendant impleaded distributor, and the 2 entities were separate and distinct eliminating the relation back doctrine. Kammerzell v Clean Burn, Inc..


Labor Law §240   Labor Law §241   Industrial Code   Scaffold  

Second Deptartment

Apartment renovation construction worker granted summary judgment on Labor Law §240(1) on his testimony that he fell from a scaffold without safety rails and he was not provided with a safety device to prevent his fall and on Labor Law §241(6) based on industrial code §23-5.18(b) (safety railings on mobile scaffolds) on proof that it was a mobile scaffold without safety rails. Morocho v Boulevard Gardens Owners Corp.


Premises Liab   Elevator   Notice   Spoliation   Expert Aff   Speculation  

Second Deptartment

Elevator maintenance company granted summary judgment against claim that elevator floor mis-leveled on proof that it did not have actual or constructive notice of mis-leveling condition and did not fail to correct a dangerous condition of which it should have known. Plaintiffs‘ expert’s affidavit lacked foundation and was speculative. Plaintiffs failed to prove that condition would not occur absent negligence eliminating res ipsa loquitor. Plaintiff’s request for spoliation sanctions denied where plaintiffs failed to show that defendants “intentionally or negligently” disposed of evidence critical to proving their case. Daconta v Otis El. Co.


Premises Liab   Prior Written Notice  

Second Deptartment

Town granted summary judgment on proof that rusty drainage pipe infant plaintiff cut his foot on was a “culvert” according to defendant’s expert, requiring prior written notice. Plaintiff failed to rebut opinion that it was a culvert or put forth proof of prior written notice. Coventry v Town of Huntington


Premises Liab   Slip/Trip   Snow/Ice   3rd Party Contractor   Espinal  

Second Deptartment

Snow removal contractor granted summary judgment on proof that it was an independent contractor and that plaintiff who slipped and fell on ice in her employer’s parking lot was not a party to the contract. Since plaintiff did not plead any Espinal exceptions, contractor was not required to show that the exceptions did not apply in order to obtain summary judgment. Plaintiff’s claim of “passive” negligence in snow removal efforts was insufficient to overcome fact that the contractor owed no duty to the plaintiff. Reisert v Mayne Constr. of Long Is., Inc.


Premises Liab   Slip/Trip   Snow/Ice   Sidewalk   Create Condition   Notice  

First

Abutting landowner granted summary judgment on employee’s testimony that she shoveled and salted the night before plaintiff’s fall on an icy patch, that she prophylactically re-salted and there was no snow/ice on sidewalk when she arrived for work 15 minutes before plaintiff’s fall. Plaintiff failed to show how long the ice existed or how the snow removal efforts created the condition. Gallo v A.W. Arciere, Inc.


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

First

Building granted summary judgment where it was undisputed that it was snowing at time of the accident and plaintiff did not claim that anything other than snow caused her fall. Non-skid strips on stairs showed that defendant reasonably maintained the premises. Yu Yan Zheng v Fu Jian Hong Guan Am. Unity Assn., Inc.


MVA   Sole Cause   Speculation  

First

Owner and driver of vehicle plaintiff was a passenger in when it was hit by a taxi that admittedly went through stop sign granted summary judgment where testimony of both drivers established taxi was sole proximate cause of the accident. Driver of vehicle plaintiff was in had right-of-way and no duty to watch for and avoid a driver going through stop sign where he stopped twice and looked both ways. Plaintiff and taxi driver’s claims that codefendant driver failed to keep a good lookout was speculative, and driver was entitled to the emergency doctrine, where he had only seconds to react. Harrigan v Sow


MVA   Independant Contractor   Respondeat Superior   Control  

Second Deptartment

Supermarket and delivery management company granted summary judgment on delivery driver’s testimony that he did not have contact with or receive supervision from anyone at supermarket or delivery management company. Delivery company denied summary judgment on driver’s testimony that he worked for delivery company 9 hours a day, 6 days a week, wore delivery company’s T-shirt, was required to call delivery company supervisor if he could not work on a day, and delivery company provided him with a 2-way radio, which he paid for. Nachman v Koureichi


MVA   Emergency Doctrine   NYC  

First

NYCTA granted summary judgment on proof that a car suddenly and unexpectedly pulled in front of bus as it started forward from a red light, causing the sudden stop under the emergency doctrine. Redrovan v New York City Tr. Auth.


MVA   Question of Fact  

First

Plaintiff’s motion for summary judgment denied where there were conflicting accounts of whether she was standing on the sidewalk near her car, or sitting in her car, when it was hit by defendants’ bus. Brito v Gomez


MVA   Rear End   Nonnegligent Explanation   Feigned Issue  

Second Deptartment

Driver/owner of vehicle rear ended by defendants’ vehicle granted summary judgment on plaintiff’s testimony that he was slowing down to make right-hand turn when he was rear ended by defendants’ vehicle and police report with defendant driver’s statement that plaintiff was slowing down and that he could not stop in time. Defendant driver’s affidavit contradicting his statement in the police report raised a feigned issue insufficient to defeat summary judgment. Odetalla v Rodriguez


Premises Liab   Open/Obvious   Inherently Dangerous  

Second Deptartment

Store granted summary judgment on proof that wheeled wire bin plaintiff grabbed onto and fell after it moved was open/obvious and not inherently dangerous. Plaintiff failed to raise a question of fact in opposition. Frankl v Costco Wholesale Corp.

IF YOU MUST READ
(1 summaries)
MUST READS NOTEWORTHY

False Imprisonment   Privilege   Court of Claims  

Second Deptartment

State granted summary judgment on false imprisonment claim by parolee convicted after pleading guilty at parole violation hearing held beyond mandatory 15-day period. Parolee was eventually released but court found the imprisonment privileged under a facially valid parole warrant. Gonzalez v State of New York