Settlement General Release CPLR § 5003-a
 CPLR §5003-a requires a general release and stipulation of discontinuance before judgment can be entered and carrier cannot add conditions after settlement is reached. Carrier’s claim that stipulation was defective with original defense attorney and not attorney who settled action as they requested rejected without signed substitution of attorney or order changing attorney of record. Plaintiff must provide for release of any potential Medicaid/Medicare liens which she did by signing hold harmless agreement carrier requested. As minutes of settlement were not provided and there was no written settlement agreement, other carrier conditions such as adding carrier to release and providing no liens letter from CMS could not be determined and remanded for further determination by lower court. Kumar v Demasi
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Med Mal Discovery
Lower court improvidently denied plaintiff’s motion to compel hospital to produce audit trail of records for period after foot surgery that resulted in infection necessitating below knee amputation requiring showing of ‘the necessity and utility of audit trail production.’ Audit trails, required under 45 CFR 164.312[b] and 10 NYCRR 405.10[c][4][v], show all access and changes to electronic records and meet threshold of reasonably calculated to yield relevant [not indispensable] information for discovery. Vargas v Lee
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Discovery Subpoena Privilege IME/DME
 Showing strong support IME watchdogs to keep IME/DME process “honest,” the First Department found that IME watchdog who was a college graduate with no specific medical training did not have an independent privilege but came under umbrella of material prepared for litigation as hiring attorney’s agent where she was not expected to testify at trial requiring defendant to show that they could not obtain substantially equivalent information on their own, quashing subpoena for her testimony and notes. Court specifically noted ruling only applied where IME watchdog is not expected to testify at trial. Markel v Pure Power Boot Camp, Inc.
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Construction Liab. Slip/Trip Question of Fact Expert Aff
Contractor that backfilled Con Ed excavation proved work was deemed satisfactory by Con Ed, photographs showed no defects at time project was turned over to subcontractor to finish road surface and its expert who opinied that there were no defects granted summary judgment, but appellate division reversed finding questions of credibility of moving defendant’s witnesses raising questions of fact. Jones v City of New York
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50-H Motion to Dismiss
Motion to dismiss for failure to appear for 50-H hearing denied where doctors for woman in her late 80’s provided letters that she “was homebound, weak, and had multiple medical and mental problems” meeting exceptional circumstances, such as extreme physical or psychological incapacity, necessary to excuse compliance with 50-H. Riabaia v New York City Health & Hosps. Corp.
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Set Aside Verdict Materially Deviates Missing Witness Charge
Verdict of $1.2/$1 million for past/future pain/suffering, $255,582 future medical expenses, and $250,000 future lost earning set aside unless plaintiff agreed to reduce past/future pain/suffering to $1 million/$675,000 for 69-year-old with spinal injury. Missing witness charges for defendant’s orthopedist and radiologist appropriate where neurologist admitted he was not an orthopedist, plaintiff’s injuries were orthopedic, and he could not give opinion on them, making the orthopedist’s testimony noncumulative, and radiologist’s testimony was relevant on issue of degenerative disc disease. Award of future lost earnings was not “utterly irrational” as to be against the weight of the evidence. Dacaj v New York City Tr. Auth.
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Building Security Circumstantial Evidence Feigned Issue
NYCHA granted summary judgment on plaintiff’s testimony that she was not a resident, did not know any tenants other than her 2-patients, her assailant kept his face concealed by hood of his sweatshirt, and she did not know whether assailant was an intruder, tenant, or guest and there was no evidence of prior ongoing criminal activity in building. Victim’s familiarity with building residents, ongoing criminal activity, and assailant’s attempts to conceal his/her identity are sufficient circumstantial evidence from which jury could find assailant more probably than not an intruder. Each of these elements was missing in this case. NYCHA’s failure to repair a broken door lock is not proof that the assailant was an intruder. Plaintiff’s affidavit contradicting her 50-H and EBT testimony raised only feigned issues. There were 2 dissenters. Laniox v City of New York
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Labor Law §240 Ladder Admissibility Hearsay
Painter who fell from A-frame ladder that collapsed when screwdriver used by employer as makeshift lock fell out entitled to summary judgment on Labor Law §240(1). Defendant failed to show that notation in hospital record that plaintiff fell when he lost balance was attributable to plaintiff or that it was necessary for care treatment necessary to take it out of hearsay. Where hearsay is only evidence offered it cannot be used to defeat summary judgment. Gomez v Kitchen & Bath by Linda Burkhardt, Inc.
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Med Mal Accepted Practice Causation Reargument Expert Aff
Lower court providently granted reargument where it overlooked unredacted affirmation of plaintiff’s expert and reversed grant of summary judgment to gastroenterologist and his LLC where plaintiff’s expert opined that their failure to conduct additional tests to diagnose and treat plaintiff’s decedent’s recurring anastomotic leak caused her death. They were entitled to summary judgment on informed consent as allegations were of failing to undertake a procedure. Bueno v Allam
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MVA Set Aside Verdict Causation Pain/Suffering Materially Deviates
After damage only trial jury returned verdict of $750,000/$300,000 past/future pain/suffering for fractured rib, arthroscopic surgery on both knees and both shoulders that surgeon opined was traumatic based on observation that cartilage damage was isolated, with a grave prognosis of developing serious arthritis in knees and permanent structural damage in shoulders. Defendant’s radiologist opined that osteophytes showed pre-existing degeneration. Jury entitled to believe plaintiff’s treating orthopedist and finding of causation for knee and shoulder injuries was not against weight of evidence. Lower court reduced past pain/suffering to $300,000, stipulated to by plaintiff’s, which did not materially deviate from reasonable compensation. Lewis v Vertex Constr. Corp.
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MVA VTL §1104 Turning Vehicle NYC
Marked police car canvassing neighborhood for suspects of gunpoint robbery “in progress” engaged in emergency operation under VTL §1104 when they made left-hand turn with the green light after stopping and car in opposite direction flashed its lights to tell them to proceed, establishing they did not act in a reckless manner. Jimenez-Cruz v City of New York
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Vacate Default Strike Answer Reasonable Excuse
Plaintiff’s excuse for defaulting on last motion to strike Answer after failing to properly respond to multiple orders for discovery claiming that he needed to go to Puerto Rico where he had a satellite office in order to prepare for hurricane Emma was not a reasonable excuse since he had already been granted an extension of time to respond, made no attempt to seek a further extension, opposition was due weeks before hurricane, and he never explained why someone else from his office could not oppose the motion. Kondrotas-Williams v Westbridge Enters., Inc.
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Building Security Assault Admissibility Foreseeability
Building owner denied summary judgment where most of its exhibits were inadmissible, including an unsigned EBT of nonparty witness with no proof that it was sent to witness to review and sign, unauthenticated criminal trial transcripts, and uncertified records submitted from Kings County DA’s office. Defendant failed to show that assault in vicinity of building was unforeseeable, that failure to maintain doors and frames was not a cause of assault, and that it lacked actual or constructive notice relying instead on gaps in plaintiff’s proofs. Li Xian v Tat Lee Supplies Co., Inc.
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Late Notice of Claim Actual Knowledge Reasonable Excuse Prejudice
Police officer showed NYC had actual knowledge of his claim under Labor Law §27-A(3) that they failed to provide him with safe place to work when he fell off back of police truck when it hit bump by police accident report, collision report, witness statement, and line-of-duty injury report all dated on the date of the accident and that NYC was not prejudiced by the 6-month delay where witness, a fellow officer, was still employed by NYPD who also still had the truck available for inspection. Lack of reasonable excuse did not require denial of petition Matter of Nieto v City of New York
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Negligent Supervision Assault Notice Foreseeability
School district and school bus company made out entitlement to summary judgment on proof they did not have notice of violent propensity of student who assaulted plaintiff-student on bus, but plaintiff raised issue on whether bus driver and monitor failed to take observe fight and take “energetic steps to intervene” in fight as it developed. BOCES which ran special needs program showed student was beyond its custody and authority at time of incident. Williams v Student Bus Co., Inc.
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Premises Liab Slip/Trip Sidewalk § 7-210 Subsequent Repairs
Tenants’ cross-motion for summary judgment claiming it owned no duty to pedestrian who tripped on sidewalk denied. While administrative code §7-210 does not impose duty on tenant, and lease requiring tenant to maintain sidewalk does not create duty to the public, questions of fact existed on whether tenant wholly replaced landlord’s duty to maintain sidewalk. Tenant’s subsequent repair admissible on control of sidewalk. Yanovskiy v Tim
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Premises Liab Slip/Trip Sidewalk § 7-210 Create Condition Premature Motion
Abutting landowner granted summary judgment where it did not create condition and was not subject to §7-210 as owner/occupied residential owners of 2-family house. Plaintiff’s speculation that discovery might reveal facts to oppose motion insufficient. Stubenhaus v City of New York
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Premises Liab Slip/Trip § 7-210 Appealable Order NYC
Abutting landowner granted summary judgment where it did not create condition, condition was not result of special use, and they were not subject to administrative code §7-210 as owner/occupier of residential property. Lower court inappropriately searched record and granted summary judgment to NYC where no party moved for relief against NYC and NYC did not submit a brief on the appeal. Cerbone v Lauriano
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Premises Liab Slip/Trip Create Condition Notice Last Inspection Renew
Defendants responsible for parking lot where plaintiff’s foot got caught underneath elevated and broken plastic wheel stop causing her to fall over did not meet initial burden where they failed to show last time the area was inspected, necessary to eliminate issues on constructive notice. Motion to renew providently denied where measurements of wheel stop taken 3-years after accident could not be identified as accurate. Baviello v Patterson Auto Convenience Store, Inc.
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Med Mal Accepted Practice Causation BP Expert Aff Speculation Conclusory
Podiatrist established entitlement to summary judgment on expert’s opinion that his debridement of corn on plaintiff’s 2nd toe was performed within accepted practice and that infection 4-months later was too remote to be caused by the corn debridement. Plaintiff’s expert’s opinion that podiatrist should have referred plaintiff to vascular surgeon after observing a low foot pulse was not “readily discernible” from the BP and ignored. Plaintiff’s expert’s other opinions were speculative and conclusory and failed to raise an issue of fact. Iodice v Giordano
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MVA Set Aside Verdict Causation Nonnegligent Explanation
Jury’s finding that defendant’s van driver was negligent in striking plaintiff pedestrian but not a cause of accident was against the weight of evidence as negligence and causation were inextricably interwoven absent a nonnegligent explanation for striking the plaintiff. Nieves v 8 Ave. Furniture, Inc.
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MVA Bus Emergency Doctrine
MTA granted summary judgment under emergency doctrine where bus driver’s testimony and video showed that car swerved suddenly in front of bus giving bus driver little time to react and applying brakes sufficient to stop collision and turning slightly to right reasonable actions. Claim that it was the second time the car swerved in front of the bus was not supported by the video. Emergency doctrine considered even though not raised in MTAs Answer because plaintiff was aware of facts by virtue of bus driver’s deposition and exchanged video. Santana v Metropolitan Transp. Co.
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Premises Liab Res Ipsa Loquitor Raised For First Time NYC
Teacher injured when faceplate of air conditioner above window fell on her head after student slammed classroom door failed to establish res ipsa loquitor because it could have fallen from negligence or from student’s slamming door and since outside contractors were responsible for repairing air-conditioners it was not in the exclusive possession of BOE. Claims that BOE created dangerous condition not raised below and not considered. NYC’s cross-motion for summary judgment granted on proof that it does not operate, maintain, or control public schools. Dilligard v City of New York
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Premises Liab Slip/Trip Unknown Cause Create Condition Notice
Pre-school granted summary judgment where plaintiff slipped on floor mat that she walked over 10 minutes earlier without observing anything wrong. Plaintiff could not identify what was wrong with mat and defendant showed it did not create or have notice of any defect in the mat. Lee v International Preschools
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Venue
By not moving for change of venue prior to Answer, Defendants waived change of venue by right and failed to submit information on any witness’ inconvenience. Affidavit of defendant whose King’s residence was basis for venue stating she resided in Queens at time of commencement insufficient to overcome residence listed in DMV and police report. Reardon v Macy’s, Inc.
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Premises Liab Slip/Trip Notice Unknown Cause
NYCTA failed to meet its burden for summary judgment where it did not eliminate all questions of fact on actual and constructive notice and plaintiff’s testimony that he slipped on wet step on escalator in subway sufficiently identified cause of the accident. Any discrepancies go only to credibility. Kerzhner v New York City Tr. Auth.
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Serious Injury Preexisting Degenerative Causation Expert Aff
Taxi owner and driver granted summary judgment on serious injury where plaintiff claimed aggravation of pre-existing spinal injuries resulting in spinal fusion 7-years before accident and defendants’ orthopedist, neurologist, radiologist, and emergency room doctors found that plaintiff’s symptoms all related to previous condition. Medical records submitted in opposition confirmed pre-existing degenerative condition and physician report submitted by plaintiff based on examination 2-years after accident, while acknowledging pre-existing condition, gave no specific reasons to conclude that symptoms were from recent accident. Dixon v Kone
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MVA Workers Comp Defense
Driver of van for company that provided and paid plaintiff’s Worker’s Comp. benefits brought claim against van owner for injuries caused by negligent maintenance. Van owner also drove the van for company that paid plaintiffs Worker’s Comp. benefits. Comp board’s finding that plaintiff was employee of company paying comp benefits could not be disputed outside of board or appeal from board’s decision and established that plaintiff was not employee of company that owned van. Van owner made out prima facie that he was a “special employee” of company both plaintiff and defendant drove for because they controlled the manner and details of his work and as co-employee could not be sued under the exclusivity of Worker’s Compensation. Plaintiff raised issue of fact on the special employee issue by van owner’s testimony that he had stopped working for the company they drove for before accident and interrogatories from a related case that he had no ownership interest in the company that owned the van. Chiloyan v Chiloyan
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MVA Emergency Doctrine
Wife’s claim against husband who was driving car she was in when it was struck by forklift that entered road midblock from behind parked car dismissed under emergency doctrine as her testimony showed husband had only 2-seconds to react. Jeong Sook Lee-Son v Doe
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False Arrest Malicious Prosecution Probable Cause NYC
In a 3/2 decision affirming lower court’s grant of summary judgment to NYC on false arrest and malicious prosecution case the Court pointed out that an eventual acquittal should not guide decision of whether there was probable cause for arrest or prosecution finding that a witness’ later recantation of her identification of the plaintiff as the murderer did not raise reasonable suspicions of credibility of her original statement that was consistent with evidence and another witness, giving them a reasonable belief that plaintiff committed the crime. The record also did not support a claim that NYC acted with malice for malicious prosecution. Roberts v City of New York
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MVA Question of Fact
Questions of fact existed regarding whether defendants were responsible for accident by placement of a metal plate in roadway as part of the construction accident which caused vehicle to strike plaintiff’s decedent on a bicycle. Gray v Jackson
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Serious Injury Unaffirmed Report Admissibility ROM Expert Aff
Plaintiff failed to raise issue of fact by unaffirmed medical reports which were not otherwise admissible on consequential and significant limitation categories and affirmed report of orthopedist that did not identify objective test for measuring ROM. Plaintiff failed to rebut defendants’ evidence that plaintiff did not meet 90/180-day category. Radoncic v Faulk
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Serious Injury Causation Expert Aff
Plaintiff raised question of fact in opposition to defendant’s showing of entitlement to summary judgment on serious injury by doctor’s affirmation. Burden on causation never shifted to plaintiff as defendant did not make out prima facie case on causation. Sang Joon Park v Orvieto
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