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

March 5, 2019 | Vol. 148

MUST READS
(8 summaries)
NOTEWORTHY IF YOU MUST READ

Late Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice   Burden of Proof  

First

Petitioner’s affidavit stating he was injured using weight lifting equipment at city facility, was assisted by city employee who filled out a report that he signed, and proof that the equipment was repaired several months later showed as a matter of law that NYC had actual notice of the pertinent facts if not the actual claim within 90-days and was not prejudiced by the delay in seeking leave to file late Notice of Claim. This shifted the burden to NYC to show it did not have actual notice and was prejudiced. NYC did not dispute that the accident report was prepared by its employee or that the equipment was repaired. Petition granted even if petitioner’s claim of law office failure was not a reasonable excuse. Matter of Mercedes v City of New York

Comment: This addresses a common problem where petitioner is aware that municipality prepared a report but does not have a copy of it. An affidavit with actual knowledge that a report was prepared may shift the burden to the municipality to show that the report did not give actual knowledge of the essential facts.


Premises Liab   Discovery   Privilege   Burden of Proof   Conclusory   Strike Answer  

Second Deptartment

Defense counsel’s affirmation and property manager’s affidavit with conclusory claims that reports, notes, statements, and photographs regarding apartment fire where plaintiff was injured were materials prepared for litigation and attorney work product were insufficient to meet defendant’s burden of showing they were privileged because they failed to identify any documents, “the authors, recipients and dates on which they were prepared and the impetus for their preparation.” Defendant’s repeated failure to comply with orders to provide the discovery warranted conditional order striking Answer but Court granted defendant additional 30-days to comply. Peralta v New York City Hous. Auth.


Bankruptcy   Capacity to Sue   CPLR §205(a)   Statute of Limitations  

Second Deptartment

Subsequent suit brought by bankruptcy trustee, after reopening bankruptcy proceeding, served within 6-months of plaintiff’s original action dismissal for failure to include the lawsuit in bankruptcy filing was entitled to 6-month savings clause of CPLR §205(a). Although not the original plaintiff trustee was asserting only the interests of the plaintiff from the original suit and dismissal of original suit for lack of capacity did not take it out of CPLR §205(a). Goodman v Skanska USA Civ., Inc.


Dogbite   Vacate Jud   Vacate Default   Materially Deviates   Pain/Suffering   Service   Reasonable Excuse   Untimely   Discovery  

Second Deptartment

Defendants’ motion to vacate default in dog bite case denied, against wife as untimely being made more than 1-year after service of judgment with Notice of Entry under CPLR 5015(a)(1), and as to husband for failure to show that he was not properly served. Enforcement of judgments stayed pending discovery of medical records and hearing to determine if $200,000/$300,000 pain/suffering award was excessive where only plaintiff testified with no expert testimony at inquest. Court has inherent power to set aside an “unwarranted and excessive award after inquest.” Loeffler v Glasgow


Assault   Discovery   Motion to Dismiss   CPLR § 3126   Preclusion   Sanctions   Spoliation   Estoppel  

First

Plaintiff’s action for assaults dismissed on CPLR §§ 3103 & 3126 where Delaware court had previously found plaintiff improperly accessed defendants’ attorney/client privileged communications and deleted many of them. Delaware decision barred plaintiff from relitigating issues of discovery, abuse, and spoliation. Shawe v Elting


Amend Notice of Claim   Amend Complaint   Amend BP   CPLR § 3101(d)   Preclusion   Note of Issue  

Second Deptartment

Plaintiff’s attempts to add new liability theory, that she was allowed to exit bus in area of ice, raised for the first time after Note of Issue by amending her Notice of Claim, Complaint, and BP denied and municipalities’ motion to preclude plaintiff’s expert witness from testifying and striking the CPLR 3101(d) notice granted, because it would be a substantive amendment to the Notice of Claim. While leave to amend pleadings should be freely given, where it is “belatedly sought” discretion should be used sparingly. Holder v County of Westchester

Comment: Since the new claim was not in the Notice of Claim it could also be said that the proposed amendments of the pleadings were patently devoid of merit.


Set Aside Verdict   Appealable Order  

Second Deptartment

Plaintiff’s appeal from denial of CPLR §4404(a) motion for additur or to set aside $25,000 verdict as contrary to the weight of evidence and inadequate dismissed where previous appeal from denial of motion was dismissed as abandoned and there were no extenuating circumstances for the court to exercise its discretion in hearing the appeal. Parente v Zevelez


Premises Liab   Slip/Trip   Snow/Ice   Bankruptcy   Severance   CPLR Art. 16  

Second Deptartment

Plaintiff’s CPLR §603 motion to sever case against non-bankruptcy defendants granted where Pathmark/A&P bankruptcy stay not likely to be lifted due to self-retention. Equities favor plaintiff seeking severance where action is stayed due to one party filing bankruptcy. Article 16 apportionment applies if severed defendants are found less than 50% at fault. Vogric v Pathmark Stores, Inc.

NOTEWORTHY
(17 summaries)
MUST READS IF YOU MUST READ

Vacate Default   Service   Renew  

First

Defendant’s motion to vacate default in answering denied were plaintiff proved proper service on a person of suitable age and discretion at building defendant owned based on testimony of NYC Department of Finance employee that he listed it as his actual place of business and received tax bills there, and defendant’s testimony that he would go to the building any time there were issues with his tenants, establishing that he regularly transacts business there. Court providently refused to consider documents on renewal available at time of original motion without explanation for their not being included. Defendant failed to preserve issue under CPLR §3117. Xiao Hong Wang v Chi Kei Li


Labor Law §240   Labor Law §241   1-2 Family Exception  

Second Deptartment

Plaintiff raised issue of fact as to whether brownstone he was working on when he fell off a scaffold was in fact a 3-family house that would take it out of the 1-2 family house exception to Labor Law §§240(1) & 241(6). Hannan v Freeman


MVA   VTL §1104   Set Aside Verdict   Directed Verdict  

Second Deptartment

Plaintiff’s motion for directed verdict or to set aside defense verdict as against weight of evidence where police officer was responding to an emergency with lights and sirens denied. Police officer entitled to reckless disregard standard under VTL §1104 and evidence did not make out a case for reckless disregard. Verdict could be reached on fair interpretation of the evidence. Baker v City of White Plains


MVA   Train   Set Aside Verdict  

Second Deptartment

Plaintiff’s motion to set aside defense verdict, where he fell from subway platform onto tracks and was run over by train severing his leg and crushing his foot that was later amputated, denied where jury could reach verdict on fair interpretation of the evidence. Testimony concerning plaintiff’s intoxication at time of accident did not deprive him of fair trial and defense counsel’s reading from precluded medical record was harmless where trial court gave a curative instruction. Searcy v New York City Tr. Auth.


Premises Liab   Slip/Trip   Stairs   Create Condition   Notice   Last Inspection  

First

Defendant failed to meet burden for summary judgment on testimony of general cleaning procedures and not last time stairs were inspected failing to eliminate question of constructive notice and, in any event, plaintiff raised issue of fact where brother testified that light fixture was broken a week before accident and cousin testified that owner was aware of the condition. Omaar v Rodriguez


Med Mal   Discovery   Sanctions   Reasonable Excuse   Meritorious Action  

Second Deptartment

Defendant’s motion to dismiss for failure to comply with conditional order of dismissal granted where plaintiff did not provide reasonable excuse for not complying or proof of a meritorious action. Drummond v Winiarsky


Pothole Law   Motion to Dismiss   Notice of Claim   Prior Written Notice   Create Condition   Expert Aff   NYC  

First

NYC’s motion for summary judgment, properly deemed a motion to dismiss for failure to state a cause of action, granted where pedestrian did not plead prior written notice of the defect in the Notice of Claim or Complaint, did not dispute NYC’s evidence of no prior written notice, did not plead exception to the prior written notice requirement that NYC created the condition, and her proposed expert’s opinion that defect was foreseeable result of deterioration did not establish creation of an immediately dangerous condition required to fit within the exception. Kales v City of New York


Premises Liab   Security Guard   Motion to Dismiss  

Second Deptartment

Security company that bought assets of security company providing security at assisted living facility where plaintiff’s decedent was murdered 6-days after the murder failed to submit documentary evidence conclusively establishing that asset purchase was not a de facto merger or mere continuation of the seller, exceptions to the rule that asset purchaser is not responsible for liabilities of predecessor company. Shea v Salvation Army


MVA   VTL §1104   Governmental Immunity  

First

Governmental immunity does not apply to police vehicles striking pedestrian while pursuing suspect for traffic violation which would at least be governed by a reckless standard. Question of fact existed as to whether police were engaged in an activity under VTL §1104(e), going through a red light while pursuing traffic violator, to establish whether ordinary or reckless standard applied. Santana v City of New York


MVA   Admissibility   Hearsay   Uncertified Records  

Second Deptartment

Defendant made out prima facie entitlement to summary judgment on proof that he was not driving his motorcycle at time and place of accident and that his motorcycle was inoperable at time of the accident. Unsworn affidavit of eyewitness signed a year after accident inadmissible as was uncertified police report and plaintiff failed to provide any reason to accept inadmissible evidence. Attorney’s affirmation alone was insufficient to raise an issue of fact. Han Hao Huang v “John Doe”


Venue  

First

Defendant’s motion to change venue denied because of 3-month delay in making motion from time plaintiff admitted he was Westchester resident at time he placed venue in Bronx. Defendant failed to show entitlement to venue change on convenience of witness where it did not submit affidavits from any witnesses. Sanchez v 1 Burgess Rd., LLC


MVA   Turning Vehicle   There to be Seen   Sole Cause  

Second Deptartment

Driver entering intersection without traffic device who struck plaintiff’s vehicle making a left-hand turn after stopping at red light granted summary judgment. Driver at a stop sign must yield right-of-way before entering intersection or making a left-hand turn under VTL §1142, leaving plaintiff’s negligence as the sole proximate cause of the accident. Enriquez v Joseph


MVA   Graves Amendment  

First

Defendant failed to meet burden of showing it was in business of renting vehicles for summary judgment on Graves Amendment where it was in the storage space business and vehicle registration listed use as “private.” Brown v McKenzie


MVA   Rear End   Nonnegligent Explanation   Serious Injury   ROM   Expert Aff  

Second Deptartment

Defendants failed to meet initial burden on serious injury where their orthopedist didn’t compare ROM against normal and defendants didn’t address 90/180-day category claim, where plaintiff was unemployed prior to the accident and unable to work after, and significant disfigurement category. Second Department granted summary judgment, denied as moot by lower court, on plaintiff’s testimony that she was struck in the rear while stopped at a red light and defendants’ testimony that light had turned green, plaintiff began to move, and he struck her after she stepped on his brakes, submitted by plaintiff, failed to provide a nonnegligent explanation. A sudden stop, in and of itself, is not a nonnegligent explanation. Buchanan v Keller


MVA   Pedestrian   Comparative Fault   Question of Fact  

First

Pedestrian granted summary judgment on comparative fault but not on liability where defendant driver’s affidavit raised question of fact on whether he entered intersection with a green light. Hedian v MTLR Corp.


Serious Injury   ROM   Expert Aff  

Second Deptartment

Defendant met burden for summary judgment by examining orthopedist’s affirmed report showing normal range of motion in spine and shoulder and plaintiff’s deposition stating she did not lose time from work on 90/180-day category. Plaintiff’s physician’s affirmed report showing significant loss of ROM in spine on recent exam not considered as it did not identify objective test used to measure ROM. Rojas v Linton


Serious Injury   ROM  

Second Deptartment

Plaintiff raised issues of fact on serious injury by competent medical proof of significant loss of ROM in opposition to defendant’s prima facie showing of entitlement to summary judgment. Ye Jin Han v Karimzada

IF YOU MUST READ
(1 summaries)
MUST READS NOTEWORTHY

False Arrest   False Imprisonment   Malicious Prosecution   1983 Action   Probable Cause   NYC  

First

Police officer’s observations established probable cause, a complete defense to plaintiff’s claims and police officers’ testimony, photographs, and vouchers established that he did recover a bag of cocaine. Hunter v City of New York