About Matt McMahon

Civil trials and appeals since 1984

May 31, 2016 | Vol. 4

MUST READS
(6 summaries)

Notice of Claim   Labor Law §240   Hudson River Park  

First

Plaintiff was injured when a beam collapsed and fell on him while he was working on a construction project on Pier 40. Titled owner of the property was the State of New York but complete responsibility had been transferred to the “Hudson River Park Trust” by legislative enactment. Plaintiff filed notice of claim against the City who was granted summary judgment against plaintiff. Plaintiff then sought leave to serve a late notice of claim against the State. Court of Claims denied and Appellate Division affirmed. Under Labor law § 240(1) the non-delegable duty of an owner can only be supplanted by a clear enactment of the legislature such as the one and two family exception in the labor law itself. Legislation transferring total control of the Hudson River Park to the Trust showed a clear legislative intent to carve out an exception to the absolute liability of an owner under the labor law. Costa v State of New York

Comment: The court acknowledged the unfairness that this can create for a plaintiff relying on title ownership and indicated that such unfairness may be the grounds for appropriate relief but it cannot create liability on behalf of the State. Presumably, it would provide a reasonable excuse when seeking leave to serve a late notice of claim on the proper party.

Because the Hudson River Park is an extensive area, running from north of Battery Park City to 59th St., plaintiffs would be well advised to check if the Hudson River Park Trust has to be served with a notice of claim and included in the suit for any accidents happening within that broad area.


Serious Injury   Expert Aff   Equally Plausible Opinion   Preexisting   Wrong Direction   ROM  

First

Defendant’s expert affidavits from neurologist and orthopedist met initial burden by showing full range of motion and resolution of all injuries. Defendant’s radiologist found pre-existing degenerative conditions in the cervical and lumbar spine. The appellate court, however, found that the plaintiff’s treating physician who reviewed the MRI films and found no evidence of desiccation or degenerative condition, reviewed EMGs showing radiculopathy and neuropathy, found spasms on several examinations and opined that given plaintiff’s lack of symptoms before the accident, the injuries were caused by the accident, presented an “equally plausible” opinion as to causation.The treating doctor did not record quantified limitations of range of motion in his examinations of the plaintiff which the court found was unnecessary, citing Pearl v. Meher. The treating doctor’s percentages of plaintiff’s loss of range of motion in certain planes at the most recent examination was sufficient to raise an issue of fact.The defendant’s driver had driven on the Harlem River Drive in the wrong direction which was sufficient for summary judgment for the plaintiff who was a backseat passenger. Birch v 31 N. Blvd., Inc.

Comment: For many years the courts had required that there be contemporaneous quantification of limited range of motion in degrees and not percentages. This case is a continuation of the trend away from that requirement. Range of motion can be recorded in percentage or degrees and it is no longer fatal that they were not recorded early on in the treatment. There must be contemporaneous “objective proof” of the injury which is usually met with an x-ray or MRI early on in the treatment.


90 Day Notice   CPLR § 2004   Law Office Failure   Meritorious Action   Unknown Cause   Hearsay  

Second Deptartment

Plaintiff’s proof of law office failure was insufficient to show reasonable excuse and her EBT testimony that she didn’t know what caused her to fall defeated any claim of meritorious action necessary to vacate her default in not filing a note of issue or moving to extend the time to file a note of issue under CPLR § 2004 within 90 days of signing a certification order which contained a 90 day notice. Bender v Autism Speaks, Inc.

Comment: Preliminary conference, compliance conference or certification conference orders in many counties contain language sufficient to be deemed a 90 day notice. This can be a boon for defendants and a nightmare for plaintiffs who don’t monitor the dates carefully.


Set Aside Verdict   Pedestrian   Bus   Materially Deviates  

First

The defendant’s bus ran over the infant plaintiff’s foot. Defendant claimed that the infant walked into the bus. Jury found defendant liable and found the infant negligent but that the infant’s negligence was not a proximate cause of the accident. The court found that the jury could reasonably have found that the infant was not a proximate cause of the accident because the bus driver had a clear view of the plaintiff and an opportunity to avoid striking him.Award of future pain and suffering [$3,907,000.00, not included in the decision itself] did not materially deviate from reasonable compensation where evidence showed a traumatic brain injury which impaired cognitive functioning, fractures to two metatarsals, degloving of foot, crushed tendons, bones and muscles, amputation of the left little toe, and partial amputation of the left big toe. Matter of Angel R. v New York City Tr. Auth.


Set Aside Verdict   Interest of Justice   Impeach Own Witness   Convictions   Bad Acts   Spoliation  

Second Deptartment

Nonverbal disabled plaintiff brought suit by her sister as guardian ad litem. Sister was also a fact witness. Jury returned a 5-1 verdict in favor of defendant. Under CPLR § 4404(a) a verdict may be set aside where it is contrary to the weight of the evidence or “in the interest of justice.” A verdict should be set aside in the interest of justice where court rulings, mistakes in charges, newly discovered evidence, or surprise deprive the party of a fair trial, looking more to common sense, experience, and fairness than to precedents. The Appellate Division reversed the lower court and granted a new trial in the interest of justice based on extensive questioning of the guardian ad litem by the defendant on direct examination about her criminal history and prior bad acts clearly designed to deprive the plaintiff of a fair trial. An adverse party may not be impeached on direct examination by criminal convictions. The lower court did not error in refusing to strike the defendant’s answer as a sanction for spoliation or for failing to identify two witnesses. Morency v Horizon Transp. Servs., Inc.


Late Notice of Claim   Leave of Court   Infancy Toll  

Second Deptartment

Infant plaintiff waited more than five years after the accident to file a complaint. The lower court denied the municipality’s motion for summary judgment for failing to serve a notice of claim and granted the plaintiff’s cross-motion for leave to serve a late notice of claim. The appellate court reversed. While not all factors have to be met for leave to be granted, the most important one is whether the municipality “or it’s attorney or insurance carrier” acquired knowledge of the essential facts establishing the claim within 90 days or a reasonable time thereafter. Knowledge of the accident and even the seriousness of an accident, does not satisfy this requirement. Accident report which does not give the facts which would show negligence is insufficient. Infancy automatically tolls the one year and 90 day statute of limitations but does not alone compel granting leave to serve a late notice of claim. Plaintiff was unable to show that the delay was due to infancy. Mother’s claim that she relied on the school district’s representation that they would assume responsibility for the medical expenses was insufficient without proof as to when the medical benefits were denied. Horn v Bellmore Union Free Sch. Dist.

NOTEWORTHY
(29 summaries)

CPLR § 3101(d)   Vocational Rehab  

First

Lower court properly denied defendant’s motion for plaintiff’s experts’ reports, notes and records and for examination by a vocational rehabilitation expert. Plaintiff’s 3101(d) provided enough details regarding the substance of the experts’ expected testimony. Defendants are not entitled to an expert’s reports, notes or records. Nor were they entitled to a vocational rehabilitation examination after the filing of the note of issue absent unusual or unanticipated circumstances arising after the filing. Keita v Zahava Servs. Corp.


Collateral Estoppel   Workers Comp   Arbitration   Identical Issue   Rear End   Nonnegligent Explanation  

Second Deptartment

Workers compensation decision which found that plaintiff had returned to work a week after accident and did not sustain permanent limitation was not entitled to collateral estoppel against plaintiff’s claim in a subsequent lawsuit that he sustained a traumatic brain injury which was not included in the workers compensation case. Issues were not identical nor did plaintiff have a full opportunity to litigate issue in the arbitration. Defendant’s affidavit that plaintiff stopped 150’ behind the nearest car, causing defendant to rear end plaintiff, did not provide a non-negligent explanation for the rear end collision. Sudden stops are a foreseeable risk and the driver must leave sufficient room to stop when the car in front of him stops suddenly. Melendez v McCrowell


Serious Injury   Amend BP   Strike Note of Issue   Prejudice  

First

Lower court properly allowed plaintiff to amend the bill of particulars to include a nasal fracture which was noted in two DME reports. Since the nasal fracture was raised by the defendant’s own experts, defendant cannot claim prejudice. Nor can defendant claim prejudice with discovery as the lower court struck the note of issue for additional discovery and a subsequent motion on summary judgment.

Bagan v Tomer


Settlement   CPLR § 5003-a   Vacate Jud  

Second Deptartment

Defendant paid a settlement three days after the clerk signed a judgment pursuant to CPLR 5003-(e). The check was cashed by the plaintiff four days later. The judgment was entered four days after the check cleared. Since defendant paid the plaintiff prior to the entry of the judgment, plaintiff is not entitled to the entry of the judgment and was not entitled to interest and costs. Davila v Cornelia 1731 Corp.


Emergency Doctrine   Rear End   Nonnegligent Explanation   Hazard Lights  

First

Presumption of liability based on rear end collision can be challenged where a question of fact exists as to whether the emergency doctrine applies which would give the defendant an excuse for the collision. Plaintiff stopped in the right lane of a highway with a flat tire. He put on his hazard lights and was directing cars around him. Defendant claims that he was behind another car and did not have enough time to react when the other car changed lanes. Defendant also claimed that the plaintiff’s hazard lights were not on. Question of fact. Gonzalez v Marescot


§ 7-210   Sidewalk   Tree Well  

Second Deptartment

§ 7-210 does not impose liability on abutting landowners for City owned tree wells unless it has affirmatively created the condition, made negligent repairs or caused a dangerous condition through special use. Summary judgment for land owner.

Gibbons v City of New York


Med Mal   Accepted Practice   Expert Aff   Unplead Theories  

First

Defendant trauma surgeon made out his primary entitlement to summary judgment. Expert affidavits by codefendant and plaintiff were based on theories of liability not set forth in the pleadings or bill of particulars. Plaintiff cannot rely on general allegations directed at all defendants. The expert affidavits of the plaintiff and City were speculative and unsupported by the record giving conflicting theories of causation. Neither provided scientific basis for their claims that the abdominal compartment syndrome which caused the death was the result of requiring additional liquids during surgery or a delay in beginning the surgery. Concepcion v City of New York


Labor Law §240   Labor Law §200   Flatbed Truck   Elevated Platform   Safety Devices  

First

6’ tall, 1500 lb crate containing glass that fell on the plaintiff as he was using a J-bar to prepare it to be hoisted by a crane from a flatbed truck constituted an elevation related risk within § 240(1) and was an object which “required securing for the purposes of the undertaking.” There was evidence that various safety devices to stabilize the crate were not available and, therefore, the plaintiff’s use of a J-bar to move the crate into position was not the sole proximate cause of the accident.The flatbed truck was a temporary condition in a limited space that was part of the means and methods of work over which the museum had no supervision or control and, therefore they were not liable under Labor Law § 200. A video showing that the transport company driver may have caused or contributed to the toppling of the crate defeated their motion for summary judgment. Grant v Solomon R. Guggenheim Museum


Labor Law §200   Labor Law §240   Foreseeability   Fence  

Second Deptartment

Painting subcontractor on high school project was injured when he fell from a 6’ fence that he scaled because the entire perimeter had been locked while they did their work at night. Under Labor Law § 200 the general contractor and owner may only be liable when they have constructive notice of the dangerous condition or authority to supervise or control the performance of the work. It was reasonably foreseeable that a locked-in worker would scale the fence. Defendant failed to meet its initial burden of showing that it did not have constructive notice and did not supervise the work. Claims under § 240 were properly dismissed because scaling the fence was not an inherent part of the work being performed and there was no evidence that the defendant had locked the fence (which would have made it an inherent part of the work). Niewojt v Nikko Constr. Corp.


Labor Law §240   Roof   Workers Comp Defense   Alter Ego   Safety Devices   Materially Deviates  

First

Plaintiff fell from a permanently affixed ladder leading to a roof which shook when he stepped on it to climb down from the roof in the rain, claiming, inter alia, that the ladder was so close to the wall that there was insufficient room for his feet. The court upheld the denial of the management company’s motion for summary judgment as well as their motion to amend the BP to include a workers comp defense. The ladder was considered a safety device and the plaintiff was engaged in roof repair which is one of the enumerated activities under labor Law § 240(1). Even though the corporate owner of the building who employed the plaintiff shared an address and one principle with the management company, this was not enough to establish an alter ego since they were separate companies. Kolenovic v 56th Realty, LLC


Labor Law §240   Unknown Cause   Falling Object  

Second Deptartment

Plaintiff was unloading portions of scaffolds lowered from the roof to the ground when he was hit in the head by a piece of wood. He did not see where the wood came from but assumed it was a piece of wood placed on top of the roof parapet to protect it as workers lowered debris to the ground with ropes. To recover under § 240(1) for a falling object, plaintiff must show that the object was being hoisted or secured or required to be secured for the work and that it fell because of the absence of a safety device or a defective safety device of the kind enumerated in the statute. Because plaintiff did not see the wood fall or where it fell from, he could not make out his burden of proof that it was part of the safety device used to lower the material. Summary judgment properly denied to the plaintiff. Pazmino v 41-50 78th St. Corp.


Assumption of Risk   Baseball  

Second Deptartment

Plaintiff was struck in the head by a ball thrown by a coach wearing a fleece glove while participating in the high school baseball team’s practice. Testimony from his 50H hearing showed that plaintiff was aware of the dangers of mis-thrown balls and had been hit by errant balls in the past. Since he was participating in a school athletic activity with knowledge of the risks, primary assumption of risk applied to bar his case. His claim that the coach unreasonably increased the risk by throwing with the fleece winter glove was insufficient to raise a question of fact. Primary assumption of risk does not require optimal conditions. Kaminer v Jericho Union Free Sch. Dist.


Question of Fact   Notice  

First

Plaintiff’s testimony, submitted on the defendant’s motion for summary judgment, showed that she observed a puddle of urine at the same time that the defendant’s witnesses said they inspected the area and found no urine, in the same spot where she later fell. Her daughter testified that she saw a puddle of urine in the area two hours before the accident which was several hours after her mother saw it. Question of fact as to whether puddle existed on the stairs for six hours prior to plaintiff’s accident. Mendoza v Fordham-Bedford Hous. Corp.


Admin. Code § 27-809   Pipe Cover   Custom and Practice  

First

NYCHA failed to show that Admin. Code § 27-809 did not apply and summary judgment was reversed on that ground. NYCHA did, however, prove its prima facie entitlement to summary judgment on common-law negligence by showing through documentary evidence that they complied with common practices and the condition would not otherwise be a dangerous condition absent the administrative code. No indication that NYCHA assumed a duty by removing a bent and rusty cover. White v New York City Hous. Auth.


Venue   Raised For First Time  

Second Deptartment

Defendant’s motion to change venue from Kings County to Orange County in personal injury case was granted by the lower court and reversed. The party seeking change of venue bears the initial burden of showing both that the original venue was wrong and that the proposed venue is correct. Defendant’s proof that the LLC’s principal place of venue was Orange County was for a different LLC then the one sued and defendant made no connection between the two. Questions of law which appear on the face of the record and could not have been avoided if raised below, may be raised for the first time on appeal. Defendant could not have avoided it if raised below because they could not introduce new evidence in a reply. Pinos v Clinton Cafe & Deli, Inc.


Traverse Hearing   Personal Juridiction   Service  

First

After a Traverse hearing, lower court dismissed for lack of jurisdiction and the appellate court reversed. The motion court did not find the process server to be credible but cameras on the exterior of the building showed attempts on three dates. Flaws in attempted service raised for the first time on appeal were rejected. Videos demonstrate “minimal diligence,” but were sufficient for substituted service. Matter of Krodel v Amalgamated Dwellings, Inc.


Snow/Ice   Notice   Nonjury Trial  

Second Deptartment

Court of Claims found against claimant where State’s expert and police officers testified that the area of ice of which the state had actual notice of had areas of discoloration and pock marks showing that the area had been salted in contradiction to the plaintiff’s expert. After observing the ice area early in the morning, the road supervisor sent out a salting crew with instructions to blast any bad areas. The salting crew considered this area to be one of those areas where they always used extra salt. The finding that the State had taken reasonable measures to correct the icy conditions was warranted. Chavez v State of New York


Public Library  

First

Complaint was properly dismissed against New York City for trip and fall at a branch of New York Public Library. The City is not responsible for negligent maintenance of the library even though it provides funding for the maintenance. Yon v City of New York


Turning Vehicle   Sole Cause   Comparative Fault  

Second Deptartment

A plaintiff moving for summary judgment on liability must show that he or she was free from comparative fault and that the defendant’s negligence was the sole proximate cause of the accident. Since there were conflicting stories of how the accident occurred, plaintiff did not meet her initial burden of showing that she was free from fault. Hartsuff v Michaels


Directed Verdict   Security Guard   Respondeat Superior  

First

Directed verdict at close of plaintiff’s case was reversed where testimony of plaintiff and his companion was that person who punched him was dressed the same as other security guards at the club, that assailant was posted at an entrance hallway and that he told plaintiff that he had to pay a fee to get in. Plaintiff also read into evidence deposition testimony of the defendant’s director of operations that they had placed two guards to check identification at the location where the plaintiff was punched. This provided reasonable basis for a jury verdict in plaintiff’s favor. An assault could be found to be within the scope of a security guard’s employment. Plaintiff did not submit evidence of negligent supervision since he did not know the identity of the person who assaulted him and did not submit evidence of premises liability because he could not show prior similar acts for the person who assaulted him. Jones v Hiro Cocktail Lounge


Unknown Cause   Feigned Issue  

Second Deptartment

Defendant granted summary judgment based on plaintiff’s EBT transcript where she was unable to identify the cause of her fall. Plaintiff’s attempt to raise issues in an affidavit was found to be feigned issue of fact designed to avoid her prior testimony. Ackerman v Iskhakov


Slip/Trip   Last Inspection  

Second Deptartment

Defendant entitled to summary judgment where affidavit and testimony of employee shows that the area where the plaintiff slipped and fell had been inspected 15 minutes prior to the accident and there was no water on the floor at that time. Plaintiff failed to raise a question of fact in opposition. Finch v Dake Bros., Inc.


Summary Jud   Late Filing  

First

Defendant’s motion for summary judgment should have been denied since it was 50 days after the deadline contained in the preliminary conference order and no excuse for late filing was proffered. Reassignment to a different part after the preliminary conference is not good cause since there was no subsequent order or directive providing a different time. If properly filed, motion would have to have been denied anyway as plaintiff raised a triable issue of fact [the court does not describe what the question of fact was]. Waxman v Hallen Constr. Co., Inc.


General Release   Gen. Obl. L. § 15-108(a)  

First

Individual doctor’s motion for summary judgment on the grounds of general release was denied and affirmed. The release by its terms only released claims against the nursing and rehabilitation center. A release may not be extended to cover parties not intended. Holding otherwise would return to the common-law rule which existed before Gen. Obl. Law § 15-108 (a) when general releases were considered ‘a trap for the average man…’ Linn v New York Downtown Hosp.


Settlement   Writing   CPLR § 2104   Partial Performance   Trespass  

Second Deptartment

The parties had entered into a settlement agreement in this trespass action for encroachment on a neighbor’s property where the plaintiff would discontinue the action upon the defendant satisfying certain conditions including removal of the alleged encroachment. Defendant complied but plaintiff never discontinued the action and three years later complained that they were still encroaching. Defendants moved to enforce the settlement agreement and to dismiss the action. Pursuant to CPLR § 2104, a settlement agreement is binding if in writing subscribed by the party or his or her attorney which contains all the material terms. The agreement was contained in a letter by plaintiff’s former attorney who had apparent authority to settle the case. The defendant’s completion of the tasks demanded without objection by the plaintiff was sufficient to create an enforceable agreement. Martin v Harrington


Dogbite   Strict Liab   Dangerous Propensities  

Second Deptartment

Proof that a dog barked and even occasionally growled at strangers who came into the home was insufficient to show dangerous propensities. Case dismissed. Ioveno v Schwartz


Unknown Cause  

Second Deptartment

Plaintiff testified at her EBT that she did not know what caused her to fall down the slope of the ninth hole fairway during the US Open golf championship making out defendant’s initial entitlement to summary judgment. Plaintiff failed to raise a question of fact in opposition. Sexton v United States Golf Assn.


Tortious Interference   Arbitration   Rabbinical Court   Arbitrator Immunity  

Second Deptartment

Dispute over life insurance proceeds was brought to a rabbinical court arbitration. Plaintiff sued the rabbinical court arbitrators claiming tortious interference with contract and defendants moved to dismiss for failure to state a cause of action. Lower court denied the motion on the ground that the rabbinical court arbitration decision was thrown out for exceeding its authority. Appellate Division reversed. When acting in their capacity as arbitrators, arbitrators are immune from suit even when they exceed their authority. A motion to dismiss for failure to state a cause of action is directed solely to whether the pleading states any cognizable cause of action and not the facts necessary to prove that cause of action. Since the pleadings did not assert that the arbitrators took any action outside of their scope as arbitrators, the complaint failed to state a cause of action and was dismissed. Pinkesz Mut. Holdings, LLC v Pinkesz


Tortious Interference   Privilege  

First

Tortious interference with contract claim was properly dismissed because party had its own economic interest in the agreement that it terminated and was therefore privileged to ‘interfere’ in the transaction. Canon Fin. Servs., Inc. v Meyers Assoc., LP

IF YOU MUST READ
(5 summaries)

Pileup  

Second Deptartment

Middle vehicle denied summary judgment where there was conflicting evidence as to how the accident occurred. Middle vehicle and several witnesses testified that he was stopped before being rear ended. Defendant and codefendant, however, testified that the middle vehicle struck the lead vehicle before being hit in the rear. Krutul v Tanner


Fraud   Pleading Specificity   Hearsay  

First

Fraud claims against third-party defendant were dismissed where third-party plaintiff failed to allege specific facts other than upon information and belief. Alleged fact that third-party plaintiff overheard unidentified person saying that he heard third-party defendants planning to defraud third-party plaintiff was insufficient to meet the enhanced pleading requirements of CPLR § 3016(b). Manda Intl. Corp. v Yager


Attorney Fees   Indemnity  

Second Deptartment

The lower court granted the defendant, Verizon’s, motion for summary judgment against the plaintiff, finding that no work had been done at the intersection where the accident was alleged to occur. The lower court, however, denied Verizon’s motion for summary judgment under a contractual indemnity clause against the contractor who was to perform the work. The Appellate Division modified to grant Verizon’s motion for summary judgment against the contractor noting that under the contract language they were to be indemnified for any acts or omissions “alleged,” to have occurred. Contractor was required to indemnify for defense costs and attorney fees. Cuellar v City of New York


Duty to Defend  

First

Carrier sought declaratory judgment that it was not obligated to defend the City because the underlying accident did not take place in an area that the insured was required to maintain. The court declared that the carrier was required to continue to defend the City as the duty to defend is larger than the duty to indemnify. As long as the allegations of the complaint fit within the responsibility of the carrier, they must continue to defend. Axis Surplus Ins. Co. v GTJ Co., Inc.


Serious Injury  

Second Deptartment

Defendant made out its initial burden of proof with competent medical evidence and plaintiff failed to raise a triable issue of fact in opposition. The court did not give the details of any of the medical proof submitted by either party. Villanueva v Lawson