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

July 9, 2024 | Vol. 425

(2 summaries)

Labor Law §200   Labor Law §240   Ladder   Duty   Espinal   Comparative Fault   Indemnity  

First Department
Electrical subcontractor whose allegedly defective A-frame ladder plaintiff fell from when he used it to take overhead measurements without the subcontractor’s permission granted summary judgment dismissing Labor Law §200 and common-law negligence claims as the subcontractor owed no contractual duty to provide equipment and not provide the ladder to the plaintiff from which there could be a duty to shown it launched an instrumentality of harm. There was 1-dissent on this issue. Contractual indemnity claims against electrical contractor dismissed as accident was not part of the scope of its work.

Plaintiff granted summary judgment on Labor Law §240(1) on proof the ladder moved as he reached overhead, causing him and the ladder to fall. Statements in accident reports not attributable to plaintiff and those attributable to his foreman who only saw plaintiff fall out of his peripheral vision did not raise an issue and, in any event, failing to keep 3-point contact on the ladder at all times would not be defense to §240. Dibrino v Rockefeller Ctr. North, Inc.    

Premises Liab   Set Aside Verdict   Preclusion   Experts   Frye   Notice   Speculation   Conclusory   Severance  

Second Department
Defendants’ motion to set aside liability verdict against them in the interest of justice for the trial court’s preclusion of their expert engineer’s testimony as to what can cause a ceiling to collapse, without a detectable defect that would give notice of the condition, granted as the testimony would not be so speculative, conclusory, or without basis to make it inadmissible and any shortcomings would go to the weight of the testimony. Frye hearing properly denied as the opinions were based on the expert’s personal training and experience, not a novel scientific principle or procedure.

Plaintiffs providently granted severance of their separate damage claims. Ghazala v Shore Haven Apt. Del, LLC    

(6 summaries)

Malpractice   CPLR § 3126   Note of Issue   Discovery   Willful/Contumacious  

Second Department
Plaintiff’s motion to extend his time to file the Note of Issue denied and Defendant’s motion to strike the Complaint for failure to provide discovery and file the Note of Issue granted where plaintiff’s willful/contumacious failure to provide all authorizations required in 4-discovery orders and to timely file the Note of Issue can be inferred from his repeated failure to comply without an adequate excuse. Taglianetti v Bay Ridge Med. Imaging, P.C.    

MVA   Bus   Emergency Doctrine   Comparative Fault   NYC  

First Department
NYC’s motion to extend its time to move for summary judgment motion granted on good cause where plaintiff sought summary judgment on both liability and comparative fault but NYC denied summary judgment even though it showed driver of vehicle that school bus collided with was solely at fault for the initial impact by entering the bus’s lane when unsafe without proof the bus driver reacted reasonably in response to the emergency situation. Plaintiff failed to show bus driver was negligent as a matter of law. Lewinski v City of New York    

Premises Liab   Wet Floor   Open/Obvious   Inherently Dangerous   Warnings   Survelliance Video  

Second Department
Fast food restaurant denied summary judgment dismissing customer’s claim for slip and fall on wet floor where it failed to show the condition was open/obvious and not inherently dangerous by surveillance video that showed its employee mopped the aisle where plaintiff slipped shortly before the fall, the condition was not plainly visible on the video, and plaintiff testified she did not see the employee mop the floor or any water on the floor before she fell. Employee’s testimony she placed a sign near where plaintiff fell did not prove adequate warning where the video showed only 1-sign a significant distance from the area and plaintiff testified she did not see a sign near where she fell. Hoffman v Dean C Ltd Partnership    

Labor Law §240   Ladder   Falling Object   Sole Cause   Hearsay   Experts   Speculation  

First Department
Worker who fell 10’-12’ when ductwork he was cutting in ceiling fell on him as he stood on an A-frame ladder, causing him and the ladder to tip and fall, granted summary judgment on Labor Law §240(1) as he was involved in demolition and renovation work. Accident reports claiming plaintiff lost his balance failed to raise an issue on sole cause where not corroborated by sworn testimony and the declarants were not identified. Defense expert’s opinion was speculative where expert did not examine the ladder, ductwork, or room and claim that if the ladder fell it was due to plaintiff’s negligence was mere conjecture. Rivera v 712 Fifth Ave. Owner LP    

Child Victims Act   Foreseeability  

Second Department
Nature center granted summary judgment dismissing Child Victims Act claims for sexual abuse of plaintiff by its employee’s child between 1990-1996 on proof it ‘had no notice of the same or similar criminal activity occurring at a location sufficiently proximate to the subject premises,’ establishing the conduct for not foreseeable. The Court does not give the details of the proofs. Lazarus v Wildlife Preserves, Inc.    

Premises Liab   Sidewalk   Snow/Ice   Storm in Progress   Uncertified Records  

Second Department
Defendants failed to meet burden for summary judgment dismissing claim for fall on snow/ice on abutting sidewalk by uncertified climatological records and plaintiff’s testimony which left questions of whether there was a storm in progress at the time of the accident. The Court does not give the details of the proofs. Ahmed v Fulton Nostrand, LLC    

(2 summaries)

Serious Injury   Causation  

Second Department
Defendants denied summary judgment on serious injury for failure to provide competent medical proof that plaintiff’s hip injury was not a serious injury or that it was not caused by the accident. The Court does not give the details of the proofs. Yoon Sik Moon v Ramirez    

Serious Injury   Experts  

Second Department
Plaintiff did not contest that defendant met his burden for summary judgment on serious injury but raised an issue in opposition by the affirmed medical report of his doctor. The Court does not give the details of the proofs. Gurung v Sotoestrada