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

November 13, 2018 | Vol. 132

MUST READS
(7 summaries)
NOTEWORTHY IF YOU MUST READ

Med Mal   Set Aside Verdict   Admissibility   Informed Consent  

Second Deptartment

Verdict for doctor who did not test plaintiff for nickel allergy before first or after procedures to insert Essure coils containing nickel fallopian tubes where plaintiff was subsequently diagnosed with nickel allergy and parties disputed whether plaintiff had advised defendant of prior reactions to non-gold jewelry and belt buckles. Jury’s verdict based on a fair interpretation of the evidence where it could credit defendant’s statement that plaintiff never notified him of reactions to nickel items and his expert’s opinion that there was no indications in the record requiring that she be tested for nickel allergy.

Plaintiffs failed to preserve issue of court’s limitation on admissibility of manufacturer’s documents by not objecting at trial. Lower court properly denied plaintiffs’ request for special interrogatory on informed consent without testimony on this issue. Aronov v Kanarek


Discovery   Preclusion   Reasonable Excuse   Meritorious Action  

Second Deptartment

Lower court’s conditional grant of summary judgment to defendant unless plaintiff provided authorization for prior accident that he previously agreed to provide in so ordered stipulation with conditional order precluding him from providing evidence on liability or damages reversed. Prior conditional order of preclusion became absolute after plaintiff failed to comply and absent a showing of reasonable excuse and meritorious action should not have been extended. Khan v Old Navy


Negligent Supervision   Foreseeability   Notice   Violent Propensity  

Second Deptartment

School district and bus company denied summary judgment on claims students injured by classmate attack on bus. School district failed to show it lacked notice of classmate’s violent propensities where assistant principal testified that student had a disciplinary record but responded “not that I remember” to whether it included violence. Victim’s testimony that security guard who entered bus 3-minutes into the 6-minute fight did not intervene and bus driver’s testimony that 4 security guards entered bus but he did not know whether they stopped the fight or it just ended, raised question of whether they took “energetic steps to intervene” and whether injuries occurred in such a short span of time that no degree of supervision could have prevented them. Palopoli v Sewanhaka Cent. High Sch. Dist.


Premises Liab   Out of Possession   Building Code   Amend BP  

Second Deptartment

Building owner made out a prima facie entitlement to summary judgment on issue of structural defects where electromagnetic door locking mechanism fell on plaintiff’s head on proof that it was out-of-possession landlord without responsibility to repair other than structural defects under lease. Defendants failed to make out prima facie case under specific lease language that expanded landlord’s responsibility to “latent defects” without expressly limiting that responsibility to latent defects at the time of the lease. Plaintiff’s cross-motion to amend BP to include New York State Property Maintenance Code (19 NYCRR §1226.1) violations granted as there was no surprise and amendment was not palpably improper. Richer v JQ II Assoc., LLC


Premises Liab   Causation   Raised For First Time   NYC  

First

NYC’s motion for summary judgment denied where a jury could find plaintiff’s presence on school property was foreseeable. Property owner’s motion for summary judgment claiming that hole in its fence that allowed access to school property was not a proximate cause of injuries because it merely provided occasion for accident granted. Property owner raised causation issue for first time on appeal, but court considered it because it presented a question of law appearing on the face of the record and could not be avoided if raised below. Mauro v City of New York


Motion to Dismiss   Vacate Default   Untimely   Compel Acceptance   Reasonable Excuse   Meritorious Action  

Second Deptartment

Plaintiff’s motion to vacate default not timely serving a Complaint after demand denied where he claimed that he prepared a cross motion to compel acceptance and opposition to motion to dismiss but did not properly file them and motion to vacate was brought more than 1-year after service of dismissal order with Notice of Entry. Plaintiff also failed to show a reasonable excuse or meritorious action. Lower court did not have authority to correct defect in prior order because it affected substantial rights of the party. Housen v Boston Mkt. Corp.


Serious Injury   Admissibility  

Second Deptartment

Plaintiff’s doctor’s affirmed report with an electronic signature was admissible on motion for summary judgment on serious injury and raised issues of fact on serious injury but court does not give the details of the proofs. Ramirez v Miah

NOTEWORTHY
(19 summaries)
MUST READS IF YOU MUST READ

Motion to Dismiss   Personal Juridiction   Bankruptcy  

Second Deptartment

Service upon codefendant as person of suitable age and discretion valid despite fact that she had filed for bankruptcy prior to service. Motion to dismiss on personal jurisdiction granted as to defendant who filed bankruptcy and denied as to codefendant. Castaldini v Walsh


Motion to Dismiss   Personal Juridiction   Untimely   Reasonable Excuse  

Second Deptartment

Defendants’ motion to dismiss for lack of personal jurisdiction brought well beyond 60-day limit of CPLR §3211(e) denied where defendants did not show “undue hardship” preventing a timely filing. Service of amended Complaint did not restart 60-day time period. Bulkan v Stepp


Premises Liab   Slip/Trip   Stairs   Building Code   Causation   Expert Aff  

Second Deptartment

Building owners met burden of showing no dangerous condition where plaintiff slipped on interior stairs with hand rail on 1-side and partial wall with “guard rail” on top on other side, but plaintiff’s expert engineer raised issue of fact that partial wall with guard rail violated 1984 building code that required 2-handrails. Plaintiff’s testimony that she reached for hand rail and there was none raised issue on causation. Rakovsky v Rob-Lee Corp.


Labor Law §240   Safety Devices   Gravity Risk  

First

Tract welds on metal shim used to temporarily hold shim in place while hoisting steel column into place were “safety devices” since they were temporary and meant to prevent shim from falling on workers. Plaintiff granted summary judgment where tract welds failed, and 200-400 lb. shim fell and hit him in the head. Keerdoja v Legacy Yards Tenant, LLC


Labor Law §240   Labor Law §241   Labor Law §200   Late Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice   Renew  

Second Deptartment

Petition to deem late Notice of Claim timely served nunc pro tunc and motion to renew based on NYC DDC report denied. Petitioner failed to show NYC had actual knowledge within 90-days or a reasonable time thereafter and report proffered on motion to renew only stated that petitioner lost his balance and fell when his clipboard blew away and would not have changed denial of the petition. Petitioner did not show that photographs and witness statement were provided to respondent failing to show lack of prejudice and also did not provide a reasonable excuse. Matter of Nadler v City of New York


Premises Liab   Slip/Trip   Wet Floor   Create Condition   Notice   3rd Party Contractor   Espinal  

Second Deptartment

Building owner granted summary judgment on plaintiff’s testimony that he passed area 20-minutes before fall without seeing liquid establishing building did not create condition or have notice within reasonable time to correct it. Cleaning contractor granted summary judgment on showing that plaintiffs were not a party to their contract and plaintiff did not allege any facts sufficient to raise an Espinal exception. Hagan v City of New York


Labor Law §240   Labor Law §241   Gravity Risk   Industrial Code  

Second Deptartment

Worker injured when roof where he was removing asbestos from during demolition and asbestos abatement project collapsed granted summary judgment on Labor Law §§240(1) & 241(6) on his testimony that roof collapsed just before he began to remove asbestos despite foreman’s testimony that plaintiff began removing asbestos earlier. Plaintiff’s work fell within definition of demolition under industrial code §23-3.3. Quizhpi v South Queens Boys & Girls Club, Inc.


MVA   Sole Cause   Admissibility   Hearsay   Admission   Feigned Issue  

Second Deptartment

Passenger in car going through intersection on road without traffic device granted summary judgment against owner and driver of car entering intersection from road controlled by stop sign, whether or not car stopped before entering intersection, because they failed to yield right-of-way under VTL ¬§1142(a). Owner and driver of car plaintiff was in granted summary judgment because other driver’s failure to yield right-of-way was sole cause of accident. Negligent defendant’s statement in police report that she did not see other car was an admission and that defendant’s testimony contradicting statement ignored. Kraynova v Lowy


Slip/Trip   Pothole Law   Prior Written Notice   NYC  

Second Deptartment

NYC granted summary judgment under administrative code §7-201(c) where search of its records showed it did not receive prior written notice of pothole that was filled with water when plaintiff stepped off the curb into pothole. Amer v City of New York


Premises Liab   Slip/Trip   Notice   Last Inspection  

Second Deptartment

Where plaintiff tripped and fell when her foot caught under wheel stop in parking lot, defendants failed to make out a prima facie entitlement to summary judgment on issue of notice absent proof of last time area was inspected. Troina v Canyon Donuts Jericho Turnpike, Inc.


MVA   Bus  

Second Deptartment

Bus company granted summary judgment on plaintiff’s deposition testimony showing that bus did not come to unusual or violent stop. Fuentes v Nassau Inter-County Express


MVA   Rear End   Nonnegligent Explanation  

Second Deptartment

Plaintiff failed to eliminate all questions of fact in rear end collision where she submitted defendant’s testimony that plaintiff came to sudden stop on ramp while there was no traffic in front of her establishing nonnegligent explanation for rear end collision. Richter v Delutri


Labor Law §240  

Second Deptartment

Verizon who contracted with plaintiff’s employer for maintenance of vehicles granted summary judgment on Labor Law §240(1) where plaintiff fell while climbing 10′ van to replace light bulbs in beacon on top of van because plaintiff was engaged in routine maintenance rather than repair in a non-construction setting not within the protections of Labor Law §240(1). Trotman v Verizon Communications, Inc.


Vacate Default   Motion to Dismiss   Personal Juridiction  

Second Deptartment

Defendant’s motion to vacate default judgment and to dismiss for lack of jurisdiction denied where process server’s affidavit was prima facie proof of service and defendant’s unsubstantiated claim that she no longer lived at address was insufficient to rebut presumption of service. Second motion on same grounds denied as not permitted under CPLR §3211(e). Shannon v Ifemesia


Serious Injury  

Second Deptartment

By raising a question of fact on serious injury for her shoulder, plaintiff was entitled to recover for all injuries and lower court erred in dismissing other injuries. Nussbaum v Chase


Serious Injury   Expert Aff  

Second Deptartment

Defendant failed to meet its burden for summary judgment on serious injury where it’s examining orthopedist found 50% reduction of lumbar flexion and 75% reduction of dorsiflexion in plaintiff’s ankle regardless of plaintiff’s opposition. Epstein v Kachar


Assault   Emotional Harm   HIPAA  

First

In a case where plaintiff claimed emotional harm from verbal abuse, harassment, threats of violence, and spitting, his motion for protective order against authorizations for full psychiatric and psychological records denied where he put his mental condition into issue and had previously stipulated to provide unrestricted HIPAA authorization for mental health records. Rosen v MHM Realty LLC


Discovery   Premature Motion  

Second Deptartment

Plaintiff’s motion for summary judgment providently denied without prejudice to renew where virtually no discovery completed, and defendant submitted evidence suggesting that further discovery might lead to relevant information. Haxhijaj v Ferrer


Serious Injury   Expert Aff  

Second Deptartment

Defendants met burden for summary judgment on serious injury by submitting plaintiff’s deposition and affirmation of examining orthopedist showing normal ROM 2-years after accident and other proof showing that she did not meet the threshold under 90/180 day category. Physician’s affirmation submitted by plaintiff showing restrictions of ROM on recent examination did not raise issue of fact where physician did not identify the objective tests to measure ROM. Fiorucci-Melosevich v Harris

IF YOU MUST READ
(1 summaries)
MUST READS NOTEWORTHY

Serious Injury   BP  

Second Deptartment

Defendant did not meet initial burden for summary judgment on serious injury where it failed to address plaintiff’s claim under 90/180 day category alleged in BP. The court does not give the details of the proofs. Gentry v Mean