Building Security Sanctions
 Plaintiff’s motions for default judgment, to submit new evidence, and summary judgment denied where all claims against defendants involving plaintiff being shot at shelter were dismissed by prior court order or by defense verdict and court providently awarded third-party defendant $4000 in sanctions where it previously warned plaintiff of frivolous motions and gave plaintiff opportunity to be heard. Stora v City of New York
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1983 Action Motion to Dismiss NYC
Motion to dismiss denied where NYC and police officer who stopped plaintiff and his friend, both African-Americans, while driving a luxury car, searched them finding only a small amount of marijuana in friend’s pocket but arrested plaintiff and held him for 2-days. Allegations in Complaint, and affidavit in opposition, including 24-page report by New York City Bar Association on NYPD’s stop and frisk policy, sufficient to state a cause of action for violation of plaintiff’s constitutional rights under 42 USC §1983. Smith v City of New York
Comment: All claims other than 1983 were previously dismissed for failure to timely serve a Notice of Claim. |
Med Mal Vacate Default Reasonable Excuse
 Plaintiff’s motion to vacate default in opposing individual defendants’ motions to dismiss based on repeated failure to provide discovery, and failure of her initial attorney to appear or oppose motion denied with court finding that based on her 2.5 year failure to inquire regarding the status of her case, first attorneys’ failure to respond and oppose can be imputed to her and conclusory allegations of no notice of discovery demands and default insufficient to provide a reasonable excuse. Vizelter v Strogov
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MVA Rear End Set Aside Verdict Comparative Fault
In reviewing nonjury trial, appellate court has same authority as trial court and found 95%/5% liability for defendant/plaintiff’s decedent against weight of evidence and modified to 85%/15% where evidence showed that plaintiff suddenly swerved his motorcycle in lane and came to sudden stop before being hit in the rear by defendant’s truck.
While loss of household services does not have to be calculated with great precision, there was no evidence of what services plaintiff’s decedent provided prior to accident and economist’s opinion based on statistical averages could not justify award of $15,200/$336,070.10 past/future household services. Case remanded for recalculation of $108,364.60/$904,021.90 past/future lost earnings and $82,877.05 lost benefits in line with recalculated fault percentages. Finney v Morton
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Vacate Jud Attorney Fees
Non-party judgment creditor’s motion to vacate judgment entered on confession of judgment signed in blank to plaintiff firm for referring cases for prosecution to defendant firm under letter agreement for joint representation granted because confession of judgment affidavit must clearly state precise amount or grounds for computing amount owed under the confession of judgment and plaintiff estimated amount after the fact. Parker Waichman, LLP v Getreu
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MVA Rear End Nonnegligent Explanation
Rear ended taxi denied summary judgment in passenger’s action on proof that it did not have available seatbelts in violation of VTL §383 even though other vehicle did not offer a nonnegligent explanation. Court declined to search record and grant plaintiff summary judgment as plaintiff did not cross move and defendant was not on notice of need to establish presence of seatbelts. Grant v AAIJ African Mkt. Corp.
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Motion to Dismiss Settlement General Release Raised For First Time
Plaintiff’s affidavit showing claim rep’s pressure to sign release for $6000 while recovering from surgery and out of work raised issue of overreaching and unfair circumstances of release at the initial stages of the case where plaintiff suffered a broken hip. Question of ratification, first raised on appeal, not preserved and did not present a question of law on the face of the record. Paulino v Braun
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Defamation Motion to Dismiss
Pres. Trump’s motion to dismiss defamation action by former apprentice contestant whose allegations of sexual harassment he called lies during campaign, or stay action until after his term(s), on grounds of US supremacy clause, failure to state a cause of action, and California’s anti-slapp statute denied. There are no conflicting federal statutes requiring federal preemption of state action for unofficial torts committed before president took office, the complaint stated facts which could be reasonably interpreted as calling the plaintiff’s allegations lies, and California’s anti-slapp provision protecting defamation defendants from “strategic lawsuits against public participation,” brought to create a chill effect on politicians’ official acts did not apply. The majority did not agree that the president possibility being compelled to appear or held in contempt during discovery process was part of the issue before it, observing that deference could and should be afforded to accommodate the president’s schedule to avoid hindering his ability to function as president. There was one dissent which would have stayed the case until after the end of his presidential term(s). Zervos v Trump
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Med Mal Directed Verdict Accepted Practice Expert Aff Appealable Order
Defendant granted directed verdict where plaintiff did not have expert to testify that risks she was advised of were quantitatively insufficient or that defendant deviated from any accepted medical practice. Plaintiff’s arguments regarding granting of motions in limine, preclusion of her expert, and refusal to admit out-of-state records not preserved as they were not mentioned or incorporated in the notice of appeal. Martin v Silver
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Premises Liab Slip/Trip Wet Floor Create Condition Notice
Bagel shop’s motion for summary judgment where it diverted condensation from air conditioner above door to sidewalk where it ran down to NYC’s pedestrian ramp denied as was the building owner’s and manager’s motions for summary judgment where photographs, conflicting testimony, and expert opinions raised issues of fact if bagel shop created condition and owner and manager had notice based on employee’s testimony that he observed water streaming on sidewalk even if he did not see it continue to the pedestrian ramp. Shatsky v Highpoint Assoc. V, LLC
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Premises Liab Slip/Trip Noseworthy Unknown Cause
Homeowner granted summary judgment where deceased tenant fell on driveway on proof that plaintiff could not identify the cause of decedent’s fall. Noseworthy doctrine does not eliminate need to prove causation and expert’s opinion identifying different defects did not prove what caused decedent to fall. Perrelli v Evangelista
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Negligent Supervision Strike Answer Note of Issue NYC
By filing Note of Issue before bringing motion to strike Answer for failing to comply with discovery, plaintiff waived any objections to discovery. School showed that no amount of supervision could have prevented accident where 7th-grader stuck his hand outside window and another student closed window severing tip of infant-plaintiff’s index finger. J.H. v City of New York
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Med Mal Agent Vicarious Liab
Hospital denied summary judgment where it failed to show that emergency room doctor was not its ostensible agent and that plaintiff was aware of doctor’s relationship with the hospital. Chapman v Tovar
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Med Mal Accepted Practice Expert Aff
Summary judgment motion by physician assistant who examined plaintiff’s hand 3-days after surgery without removing splint and his employer denied where expert only recounted treatment and stated there was no departure from accepted medical practice in conclusory terms. Orthopedist examined hand 8-days later, found index finger had died, and it was amputated a week later. Wodzenski v Eastern Long Is. Hosp.
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MVA Wrongful Death Amend Complaint Statute of Limitations
Cause of action that is time-barred when plaintiff seeks to add it in amended Complaint is patently devoid of merit but since transactions and occurrences were fully pled in original Complaint, the cause of action for wrongful death after plaintiff’s decedent died was timely under relation back doctrine of CPLR §203(f) and motion to amend Complaint was providently granted. DeLuca v PSCH, Inc.
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Labor Law §241 Labor Law §200 Industrial Code Control Premises Liab Create Condition Notice
Plaintiff’s employer’s testimony that he did not see uncapped exposed wires hanging from ceiling where plaintiff received electric shock while installing dropped ceiling pins did not raise issue of fact where plaintiff and supervisor testified that exposed wires were uncapped, electricians came to cap them after the accident, and employer did not arrive on scene for 20-30 minutes. Plaintiff granted summary judgment on Labor Law §241(6) on industrial codes §§23-1.13(b)(3)&(4)(electrical hazards). Building owner denied summary judgment on Labor Law §200 and negligence claim where it failed to show it did not create dangerous condition on property or have notice of it even though it did show that it did not control means and methods of work. Haynes v Boricua Vil. Hous. Dev. Fund Co., Inc.
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Labor Law §241
HVAC worker’s back injury while holding rope attached to 100 lb. circulation pump that had to be reinstalled while switching from heating to cooling every year, as company had done for 10-years, not covered under Labor Law §241(6) because it was routine maintenance outside of a construction, renovation, or demolition context. Byrnes v Nursing Sisters of the Sick Poor, Inc.
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Med Mal Set Aside Verdict Accepted Practice Question of Fact
Conflicting expert opinions on whether defendant deviated from accepted practice by not administering prophylactic antibiotics hours earlier in response to symptoms of necrotizing fasciitis and compartment syndrome raised issues to be decided by jury and verdict in favor of defendant could be reached on fair interpretation of evidence. Munoz v New York Presbyt. Hosp.
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Amend Complaint Notice of Claim Statute of Limitations
Plaintiff’s motion to amend Complaint to include negligent design of subway station for not including barriers to prevent plaintiff from falling on subway tracks granted where Notice of Claim stated claim for negligent design and original Complaint gave notice of the occurrence for application of the relation back doctrine under CPLR §203(f). Ortega v New York City Tr. Auth.
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MVA Workers Comp Defense Graves Amendment Agent Premature Motion
Employer and coworker granted summary judgment where plaintiff struck by bus operated by coworker under exclusivity of worker compensation and codefendant, lessor of bus, granted summary judgment under Greaves amendment on proof it was in business of leasing vehicles, leased the vehicle to plaintiff’s employer, and was not plaintiff’s employer’s agent. Plaintiff failed to show what evidence was necessary in order to oppose motion on claim that motion was premature. Zielinski v New Jersey Tr. Corp.
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MVA Bus Feigned Issue
Bus company granted summary judgment on plaintiff’s testimony that she was only caused to land on bus floor 1′ from where she sat as bus made turn, establishing that it was not unusual and violent movement different from normal jerks and jolts of buses. Plaintiff’s affidavit stating for the first time that she was thrown across 2-seats before being thrown to floor was feigned issue. Mastrantonakis v Metropolitan Transp. Auth.
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Labor Law §200
Third-party defendant subcontractor granted summary judgment on Labor Law §200 claim where building worker claimed he fell on construction debris in basement but general contractor and subcontractor proved that neither were working on the premises at time of plaintiff’s fall, that all work had stopped between phases 3-weeks before accident and area was cleaned and free of debris at that time. Buttigieg v Marlin Mech. Corp.
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Premises Liab Sidewalk § 7-210 Duty Causation
Abutting landowner whose contractor placed scaffolding on sidewalk, narrowing walkway, did not owe duty to maintain tree well plaintiff tripped in when she stepped aside to let person in wheelchair use the sidewalk since administrative code §7-210 does not require abutting landowner to maintain tree wells owned by city and there was no evidence that landowner created or negligently repaired uneven bricks in tree well that caused her to fall, or create a dangerous condition through special use. At most, the narrowing of the passageway furnished occasion for the accident and did not cause it. Chulpayeva v 109-01 Realty Co., LLC
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Premises Liab Slip/Trip Open/Obvious Inherently Dangerous
Store granted summary judgment on plaintiff’s testimony and surveillance video showing that red bucket in middle of aisle plaintiff tripped on was open/obvious, that plaintiff had actual knowledge of the bucket before her fall, and that it was not inherently dangerous as a matter of law as it did not present a trap for the unwary. Ramirez v Creative Linen House, Inc.
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Premises Liab Slip/Trip Sidewalk § 7-210 NYC
Abutting landowner of 1-family dwelling granted summary judgment where plaintiff slipped on sidewalk as it owed no duty to plaintiff since administrative code §7-210 does not apply to 1-3 family owner occupied homes. Santelices v City of New York
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Dogbite Vicious Propensity Notice
Landlords granted summary judgment where tenants’ dog bit plaintiff on proof they did not have notice that tenants were harboring dog with vicious propensities. Logie v Lester
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Premises Liab Slip/Trip Stairs
Building owner denied summary judgment where it failed to rebut plaintiff’s testimony that she fell when her foot got caught in hole in stairs. A challenge to plaintiff’s credibility must be resolved at trial. Morales v 320 E. 176th St., LLC
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MVA Sole Cause There to be Seen
Box truck’s driver not negligent where truck cab passed parked vehicle with all doors closed and driver of parked car that plaintiff was a passenger in opened door catching body of truck in violation of VTL §1214, and for failing to see what was there to be seen, establishing that the driver of the parked vehicle was the sole proximate cause of the accident. Persaud v Hub Truck Rental Corp.
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MVA Rear End Nonnegligent Explanation Feigned Issue Uncertified Records Premature Motion
Plaintiffs entitled to summary judgment on plaintiff-driver’s affidavit that they were traveling in lane when they were rear-ended by defendant’s vehicle and uncertified police report with defendant’s admissible statement that he changed lanes and did not have time to stop before hitting plaintiffs’ vehicle. Defendant’s affidavit claiming that he did not change lanes and that plaintiff stopped short was a feigned issue in direct contradiction of statement to police and conclusory allegations of stopping short insufficient to raise issue of fact. Defendant failed to show what discovery would be necessary to oppose motion on claim that summary judgment was premature. Batashvili v Veliz-Palacios
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MVA Uncertified Records
Plaintiff entitled to summary judgment on his affidavit that he saw defendant enter intersection against light failing to yield right-of-way. Defendants’ claims that police report and weather reports raise issue of fact not considered as reports were uncertified. Garcia v McCrea
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Premises Liab Dangerous Condition
Tenant whose pasta machine was being repaired and repairman was injured when tenant’s worker allegedly turned it on granted summary judgment where there was no proof that pasta machine was a dangerous condition and plaintiff’s argument, raised for the first time on in opposition, that safety device was missing was belied by his testimony that he would’ve had to remove safety device in order to perform repair. Court did not address issue of defendant’s employee’s turning on the machine during the repair. Han Bin Hu v Bravo Food, Inc.
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Serious Injury ROM Expert Aff
Defendant granted summary judgment on serious injury where examining orthopedist found no more than 10% restrictions from normal of ROM in spine and plaintiff testified he missed only 1-week from work. Chiropractor’s affidavit stating plaintiff had significant loss of ROM in cervical and thoracic spine compared to normal, without giving measurements or normal ROM, insufficient to raise question of fact. Broadwood v Bedoya
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