About Matt McMahon

Civil trials and appeals since 1984

May 22, 2018 | Vol. 107

MUST READS
(9 summaries)
NOTEWORTHY IF YOU MUST READ

Labor Law §240   Labor Law §241   Industrial Code   Gravity Risk   Sole Cause   NYC  

Second Deptartment

Motions by NYC and plaintiff for summary judgment on Labor Law §§ 2401(1) and 241(6) denied where flange held in place 16’ above ground by 2 temporary track welds fell and struck steamfitter. Questions remained whether flange fell because of absence or inadequacy of safety device (welds were not a safety device) which could have been held in place by a sling, although steamfitter testified that 2 track welds should have been sufficient raising question of whether other devices would have been necessary or expected. Flange was not permanent part of building as it was only temporarily fixed. Issue remained on sole proximate cause and Labor Law §241(6) where hard hat could not be worn with welding shield. Carlton v City of New York


Ins. L. § 3420(a)(2)   Coverage   Causation  

Second Deptartment

Student who obtained judgment against building owner for injuries on exterior stairs of building denied enforcement of unsatisfied judgment under a policy issued to a tenant in the building with building owner named as an additional insured because there was no “causal relationship between the injury and the risk for which coverage is provided.” Lissauer v GuideOne Specialty Mut. Ins.


Med Mal   Vacate Default   Motion to Dismiss   Personal Juridiction   Service   CPLR §306-b  

Second Deptartment

Doctor’s motion to vacate default and dismiss based on lack of personal jurisdiction granted where she did not work at office at time of service and was therefore not served at her “actual place of business.” Claim that office personnel represented it as her place of business was insufficient without proof that defendant doctor engaged in conduct to conceal her business address.

While lower court had discretion to entertain application to extend time to serve under CPLR §306-b without formal cross-motion, plaintiff failed to show diligent efforts to check defendant’s address and proof of a meritorious action. Silvering v Sunrise Family Med., P.C.


Labor Law §240   Labor Law §241   Labor Law §200   Gravity Risk   Sole Cause   Industrial Code   Amend BP   Building Code   Expert Aff  

First

Defendants and plaintiff both denied summary judgment on Labor Law §240(1) on remaining question of sole proximate cause as to whether plaintiff and co-workers were instructed by foreperson to push movable scaffold away from building where it was stuck in a recessed area between concrete blocks using their backs. Labor Law §240(1) applied since the scaffold got stuck from the force of gravity but §241(6) did not apply based on § 23-5.8(c)(2)(suspended scaffolds) because it was a horizontal force to push the scaffold away from the building that injured plaintiff’s back and not a fall or falling object. Scaffold supplier granted summary judgment on Labor Law §200 and negligence where it did not control work or have notice of defect. Plaintiff granted leave to amend BP to include 2008 building code provision that was consistent with original pleaded theory. Galvez v Columbus 95th St. LLC


MVA   Rear End   Serious Injury   Missing Witness Charge   Pain/Suffering  

Second Deptartment

Past pain/suffering verdict sustained where there was a valid line of reasoning and permissible inferences for jury to find that plaintiff sustained a serious injury based on testimony of orthopedic surgeon who examined plaintiff 6 months after accident and found limited ROM. Defendant’s request for missing witness charge at end of defendant’s case, for plaintiff not calling treating physician, properly denied. Hiotidis v Ramuni


CPLR §306-b   Motion to Dismiss   Service   Statute of Limitations   Reasonable Excuse  

Second Deptartment

Defendant’s motion to dismiss based on service and statute of limitations granted, and plaintiff’s motion to extend 120-days to serve Summons and Complaint under CPLR §306-b denied, where plaintiff filed Summons and Complaint 2 days before statute of limitations, relied on nail and mail service after only 2 attempts at personal service around the same time on weekdays, and failed to explain what efforts if any plaintiff made to check 3-year-old address before attempting service. While diligent efforts at service are not necessary to extend time “in the interests of justice,” diligence or a lack thereof can be used in determining the motion. Holbeck v Sosa-Berrios


Appealable Order   Default Judgment   Negligent Hiring   Vicious Propensity   1983 Action  

Second Deptartment

Karaoke bar owners/operators served with Summons with Notice and, upon demand, a Complaint alleging only negligent hiring and USC §1983 where plaintiff was involved in fight with bar employee and arrested, granted summary judgment on proof that they were not aware of any tendencies to violence by their employee and lack of proof that employee acted “under color of law” for the 1983 claim.

Sua sponte grant of summary judgment as to non-moving defendants was not appealable since it was not an order deciding a motion on notice and plaintiff did not request permission to appeal. Kwang Bok Yi v Open Karaoke Corp.

Comment: In companion case, motion for default judgment against 3 defendants who did not initially answer providently denied for failure to submit proof of facts sufficient to establish viable causes of action. Kwang Bok Yi v Open Karaoke Corp..


MVA   Turning Vehicle   Comparative Fault   Feigned Issue  

Second Deptartment

Scooter driver that struck defendant taxi that made left-hand turn in front of scooter granted summary judgment on plaintiff’s testimony, photographs, police report, affidavits of eye witnesses, and taxi driver’s MV-104. Taxi driver’s deposition testimony that he had not started his turn or crossed the double yellow line and was facing straight at the time of impact did not raise an issue of fact as it was an attempt to avoid admission in his signed MV-104 stating that he was in the process of making the left-hand turn. Lebron v Mensah


Serious Injury   ROM   Degenerative   Preexisting   Expert Aff  

First

Plaintiff raised issue of fact by his radiologist’s and orthopedic surgeon’s findings of bulging discs and bilateral meniscal tears, his treating physician’s narrative detailing limited ROM and opining that injuries were caused by the accident, another physician’s report finding limited ROM at recent examination and attributing plaintiff’s injuries to the accident. Nothing else was required without evidence of preexisting injuries in plaintiff’s own medical records. Rodriguez v Konate

NOTEWORTHY
(17 summaries)
MUST READS IF YOU MUST READ

Late Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice  

Second Deptartment

Firefighter injured when he slipped and fell on recently mopped floor in firehouse without wet floor signs granted leave to serve late Notice of Claim 1 year after accident because town fire department that aided him at time of fall had actual knowledge of the essential facts within 90-days and did not rebut plaintiff’s initially showing that fire department was not prejudiced by delay even if firefighter did not offer a reasonable excuse for delay. Matter of O


Negligent Supervision   Foreseeability   Causation   Expert Aff   Conclusory  

First

Boy Scouts of America granted summary judgment on proof that plaintiff’s troop had a history of travelling to/from showers in an orderly fashion using the buddy system without supervision and not horsing around, making plaintiff’s sudden running from shower house where he tripped on uneven surface wholly unforeseeable even considering 10 NYCRR § 7-2.5(o) which requires “adequate supervision” of child campgrounds. Plaintiff’s expert’s opinion of inadequate supervision was conclusory. Gomes v Boy Scouts of Am.


Motion to Dismiss   Amend Complaint  

Second Deptartment

School’s motion to dismiss based on negligent investigation and negligent training of investigator granted where middle school student committed suicide after being suspended from school for misconduct. There is no cause of action for negligent investigation, prosecution, or training for investigation. Motion to amend Complaint denied where amendment was palpably devoid of merit. Juerss v Millbrook Cent. Sch. Dist.


Labor Law §240   Labor Law §241   Safety Devices   Industrial Code  

First

Ironworker denied summary judgment on Labor Law §§ 240(1) and 241(6) based on §23-1.7(b)(1)(hazardous opening) over question of whether static lines were available where worker could tie off provided harness and lanyard. Maman v Marx Realty & Improvement Co., Inc.


Premises Liab   De Minimus   Expert Aff   Subsequent Repairs  

Second Deptartment

Defendants failed to show that gap between sidewalk vault doors was trivial where their expert’s opinion was based on an inspection, photographs, and video taken more than 5 years after accident and vault looked different than photographs identified at deposition and one defendant testified that he had the doors repaired (after the accident as per lower court decision) after he noticed an “opening in the door.” Simos v Vic-Armen Realty, LLC


Med Mal   Respondeat Superior   Raised For First Time  

Second Deptartment

Defendants’ motion for summary judgment on ground that hospital could not be vicariously liable for malpractice of defendant intensivist who was not hospital employee denied where physician was the only intensivist on duty for all 4 hospital ICUs during her shift and only worked at the hospital and defendants failed to submit the governing written agreements to show that intensivist was not under control of the hospital. Castro v Durban


Highway Design   Dangerous Condition   NYC  

First

NYC granted summary judgment where there were no prior complaints of persons making U-turns at the intersection. NYC not required to constantly reevaluate signage without proof that intersection became dangerous. Plaintiff’s expert opinion that a “no U-turn” sign should have been installed rejected without history of similar accidents at intersection. Cerio v Carrington


Labor Law §200   Control   Agent  

First

Issues of fact remained whether concrete equipment lessor that controlled and operated the equipment was a material provider or subcontractor and whether it controlled, in whole or in part, the equipment cleanup where plaintiff was injured. There was also a question of whether it was an agent for the owner or general contractor supervising the cleanup. Pacheco v Almeida Concrete Pumping & Equip., Inc.


Premises Liab   Lead Poisoning  

First

Building not entitled to summary judgment where lead abatement did not begin until 7 months after infant-plaintiff tested positive for lead and showed signs of developmental delay, learning disabilities, and behavioral issues. Third-party defendant, whose building infant lived in before living in defendant’s building, granted summary judgment where child did not test positive for lead or show signs of delays or disabilities during that time. Brown v Webb-Weber


Premises Liab   Lead Poisoning  

First

Building which failed to show that it acted reasonably by timely abating lead in apartment or moving infant to another apartment denied summary judgment. PL v 506-510 Assoc., LLC


Vacate Default   Reasonable Excuse   Meritorious Action  

Second Deptartment

Lower court providently denied plaintiff’s motion to vacate default in opposing county’s summary judgment motion that showed county did not own manhole cover plaintiff struck. Claim that opposition was not filed because handling attorney left firm without telling anyone that opposition was not filed was not a reasonable excuse and plaintiff failed to show a meritorious defense by submitting any evidence to rebut county’s proof of manhole ownership. Lee v Village of Airmont


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

First

Proof of NYC’s extensive snow/ice removal efforts over 8 days between 20” snowfall and plaintiff’s slip on black ice she didn’t see until after she fell entitled it to summary judgment because it did not create the condition or have actual or constructive notice. Plaintiff’s expert’s opinion that NYC should have inspected area twice a day was not supported by any “authority, standard, or other corroborating evidence.” Pena v City of New York


Premises Liab   Out of Possession  

Second Deptartment

Owner of building where plaintiff tripped on entrance to tenant’s deli granted summary judgment on proof that it was an out of possession landlord without an obligation to repair. Reservation of right to reenter to make repairs is not sufficient to impose a duty. Fuzaylova v 63-28 99th St. Farm Ltd.


Med Mal   Accepted Practice   Causation   Expert Aff   Speculation   NYC  

First

HHC granted summary judgment on experts’ opinions that no treatment could have prevented plaintiff’s blindness from assault on inmate-plaintiff. Plaintiff’s expert’s opinions on accepted practice and causation were speculative and failed to raise an issue of fact. Simington v City of New York


Dogbite   Vicious Propensity  

First

Without proof of dog’s vicious propensities neither dog owner nor veterinary hospital where dog bite occurred could be liable. Easley v Animal Med. Ctr.


Attorney Fees   Interest  

First

Estate of deceased attorney that was found entitled to 20% of fee on $8 million settlement entitled to pre-judgment interest at 9%. Marin v Constitutional Realty, LLC


MVA   MVIAC   Reargument  

Second Deptartment

Lower court providently granted reargument on MVIAC’s application that it misapplied test by looking at whether injury was from intentional conduct of the victim instead of the motorist and upon granting reargument granted MVIAC’s motion to dismiss since injury was not caused by an “accident.” Castillo v Motor Veh. Acc. Indem. Corp.

IF YOU MUST READ
(1 summaries)
MUST READS NOTEWORTHY

MVA  

Second Deptartment

Defendant, whose employee was driving a van transporting plaintiff’s decedent to a dental appointment, denied summary judgment on negligence claim and cross-claims where it failed to show freedom from fault. The court does not give the details of the proofs. Abbaticchio v Association for the Help of Retarded Children, Inc.