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

October 30, 2018 | Vol. 130

MUST READS
(7 summaries)
NOTEWORTHY IF YOU MUST READ

Med Mal   1983 Action  

First

Non-municipal hospital contracting to provide medical services at detention center is considered a municipality for 1983 action claiming “deliberate indifference to medical needs.” Hospital granted summary judgement absent proof that it had an unconstitutional policy or practice to discourage off-premises care by threatening or disciplining doctors for ordering off-site care. Failure to schedule offsite CT scan when first recommended, months before detainee’s fatal aortic dissection, insufficient to show policy or practice of deliberate indifference. Small v St. Barnabas Hosp.


Premises Liab   Duty   Causation   Dangerous Condition   Assumption of Risk  

Second Deptartment

Homeowner who planned with plaintiff to remove tree branch by having plaintiff cut branch while defendant applied pressure to rope attached to plaintiff’s car to move it away from neighbor’s house denied summary judgment on questions of fact as to whether homeowner’s actions contributed to accident. Normally homeowner does not owe a duty to plaintiff who is injured due to plaintiff’s actions, as opposed to a dangerous condition of the property, but defendant failed to meet that burden. Fernandez v Castillo


Premises Liab   Lead Poisoning   Indemnity  

Second Deptartment

Condominium had nondelegable duty under administrative code existing at time infant-plaintiff ingested lead in apartment she lived in with her mother. Condominium’s third-party action for contractual indemnity against unit owner dismissed where proprietary lease was unenforceable under GOL because it was not limited to lessee’s acts of negligence. N.A. v Hillcrest Owners Assn., Inc.


Premises Liab   Slip/Trip   Sidewalk   § 7-210   NYC  

First

Plaintiff tripped and fell from gaps in flagstones on defendant’s abutting sidewalk. Although NYC admitted it owned bus stop pole and shelter near where plaintiff fell, summary judgment for defendant reversed absent statute or evidence defining the extent of a bus stop. Abutting landowner is not responsible for area within a bus shelter under administrative code §7-210. McCormick v City of New York


Premises Liab   Slip/Trip   Sidewalk   § 7-210   Admissibility  

First

Adjoining landowner granted summary judgment on her testimony that she lived a 1-family-home adjacent to sidewalk, falling outside of liability under administrative code §7-210. Defendant not required to prove defense by a deed. Existence of fence with gate did not constitute special use as persons using gate to access property would be walking on the sidewalk just as public would use the sidewalk. Plaintiff also failed to show causation since gate was not where plaintiff fell. Hernandez v Ortiz


Serious Injury   ROM   Renew   Reasonable Excuse  

Second Deptartment

Defendant’s examining orthopedist’s affirmed report showing full ROM met defendant’s burden on serious injury and plaintiff’s own affidavit stating that she back surgery before the accident was aggravated by the accident was insufficient to raise a question of fact. Plaintiff’s motion to renew based on affirmation and operative report of her orthopedic surgeon showing that she had a subsequent surgery 6-months before the first decision denied as it would not have changed the outcome and plaintiff failed to offer a reasonable excuse for not including it in her original opposition. Moore v Burns


Serious Injury   ROM   Expert Aff  

Second Deptartment

Defendant’s examining orthopedist’s finding of normal ROM met burden of proof on serious injury of cervical spine but affirmed report of plaintiff’s neurologist who examined her more than 6-years after accident and found 20% deficit in cervical flexion sufficient to raise question of fact. Kholdarov v Hyman

NOTEWORTHY
(21 summaries)
MUST READS IF YOU MUST READ

Building Security   Foreseeability   Causation   Duty  

First

Building’s motion for summary judgment on argument that alleyway leading to boiler room and superintendent’s apartment where infant-plaintiff assaulted was a public area where building was not required to provide minimal security denied. Questions of fact existed as to foreseeability of the assault raised by “previous criminal activity in or at the building, including drug dealing, multiple burglaries, including one at gunpoint, and gunshots and the discovery of empty shell casings outside the building,” whether gate was left open, and lighting was sufficient.

Plaintiff’s alternative theory that defendant voluntarily assumed duty by installing gate rejected where plaintiff failed to show that she was lulled into a false sense of security because of gate. Sanchez v Morris Ave. Equities Corp.


Building Security   Foreseeability  

Second Deptartment

Building granted summary judgment where tenant assaulted in vestibule between unlocked front door and locked inner door controlled by intercom because plaintiff failed to show prior incidents sufficiently similar to make assault foreseeable and would require an exterior locking door and exterior intercom. Prior incidents relied on by plaintiff occurred inside apartments and not in or near vestibule. George v 855 Ocean Ave., LLC


Premises Liab   Directed Verdict   Set Aside Verdict   Recurring Condition   Notice   NYC  

Second Deptartment

There was rational path for jury to find against NYC and reach their verdict on fair interpretation of evidence and permissible inferences where school custodian testified that they were aware of recurring water accumulation in area where plaintiff fell during rain storms. Jury could credit plaintiff’s testimony that there were no mats and reject custodians’ claim that there were mats. Gonzalez v Board of Educ. of City of N.Y.


Labor Law §240   Labor Law §200   Scaffold   Spoliation   Negative Inference   Indemnity  

Second Deptartment

Carpenter who fell 6’ feet when scaffold plank broke entitled to summary judgment because building owner failed to provide a scaffold to protect him from fall at elevated height. GC’s motion for summary judgment on Labor Law §200 and negligence on proof that masonry subcontractor authorized plaintiff to use scaffold denied where GC also submitted plaintiff’s testimony showing that GC’s employee directed him to use scaffold.

Striking GC’s third-party complaint for failure to preserve subcontractor’s scaffold unwarranted where parties could prove their cases without scaffold. Proper sanction was negative inference. Cross-motions for summary judgment on contractual and common-law indemnity denied finding questions of fact as to parties’ respective negligence. McDonnell v Sandaro Realty, Inc.


Serious Injury   Expert Aff   Conclusory  

Court of Appeals

Court found by 4/3 that plaintiff failed to raise issue of fact on serious injury in opposition to defendants’ prima facie entitlement where his orthopedist failed to address defendants’ radiologist’s opinion that there was no injury to shoulder on MRI. His orthopedist’s opinion of causation from surgery 2 years after accident was conclusory. Rosa v Delacruz


Premises Liab   Out of Possession   Control  

Second Deptartment

Building owner which rented portion of building to bodega where plaintiff slipped on wet floor and wet cardboard in basement after asking to use bathroom failed to make out prima facie case for summary judgment on claim that it was an out of possession owner against plaintiff’s claims that building owner violated a duty imposed by the administrative code and failed to show that it had relinquished all control of the basement so that it could not be held liable under administrative code. Nieves v Pennsylvania, LLC


Labor Law §240   Ladder   Sole Cause   NYC  

Second Deptartment

NYC’s motion for summary judgment on Labor Law §240(1) denied where carpenter placed closed A-frame ladder against doorframe to install sheet rock because it failed to show that ladder could have been placed in a safe position for the work or that supervisor did not give tacit approval necessary to show that carpenter was sole cause of the accident. Gillett v City of New York


Med Mal   Set Aside Verdict   Accepted Practice   Causation  

Second Deptartment

Plaintiff’s motion to set aside verdict that found doctor departed from accepted practice but was not a proximate cause of injury as against the weight of the evidence denied where it could be reached on fair interpretation of the evidence and verdict was not inconsistent because issues of departure and causation were not inextricably interwoven. Sela v Katz


Premises Liab   Negligent Supervision   Duty  

Second Deptartment

School district’s motion for summary judgment granted where infant-plaintiff, a type I diabetic with a 1-on-1 aide, received a crush amputation of her index finger from hinge side of bathroom door where she went unaccompanied with permission of teacher. Accident happened in such a short span of time that supervision of 1-on-1 aide would not have been able to prevent it. The court does not address plaintiff’s claims, dismissed by the lower court, that door was defective. Hinz v Wantagh Union Free Sch. Dist.


Vacate Jud   CPLR § 5003-a   Interest  

First

A plaintiff is not entitled to interest between time of settlement and tender of executed settlement papers under CPLR 5003-a. Lower court did not have authority to act as appellate court and sua sponte vacate its own order absent request for relief by one of the parties. Howell v City of New York


MVA   Rear End   Nonnegligent Explanation   Court of Claims  

Second Deptartment

Decision for State in Court of Claims after nonjury trial affirmed where claimant testified that State vehicle struck her driver’s side and then pulled in front of her, daughter testified that State vehicle abruptly changed lanes when there wasn’t enough space for her mother’s car to stop, and State driver testified that he changed lanes after making sure it was safe and was struck in the rear, because driver must anticipate stops in heavy traffic. In reviewing decision from nonjury trial Appellate Division can make its own determination but lower court’s assessment of credibility should be given great weight. Annan v New York State Off. of Mental Health


Premises Liab   Slip/Trip   Snow/Ice   Create Condition   3rd Party Contractor   Indemnity  

Second Deptartment

Hospital denied summary judgment for plaintiff’s fall on black ice in parking lot for failing to show that ice was not caused by snow removal efforts. 3rd-party contractor’s motion for summary judgment of contractual indemnity claim denied where it failed to show it did not cause condition but granted on common-law indemnity claim where it established that plaintiff’s injuries were not caused by act solely within its own province. Wilson v Nassau Univ. Med. Ctr.


MVA   Pileup   Rear End   Speculation   Conclusory   Premature Motion  

Second Deptartment

Middle car owner and driver granted summary judgment on proof, including plaintiff’s statement to police, that vehicle was stopped or stopping in heavy traffic when it was hit in the rear by codefendants’ car and propelled into lead car. Plaintiff’s claims that seatbelt and airbag were defective were conclusory and speculative without an inspection and proof of expertise. Plaintiff failed to show what discovery was necessary to oppose the motion. Skura v Wojtlowski


MVA   Rear End   Emergency Doctrine  

Second Deptartment

Truck stopped in traffic due to jackknifed tractor-trailer in front of it granted summary judgment against plaintiff in following vehicle who broke and veered across 2 lanes of traffic, hitting divider where he was struck by codefendants’ vechicle. Codefendants entitled to summary judgment on showing that codefendant driver had only seconds to react to an emergency situation. She was not required to anticipate that plaintiff would lose control of his car and cross multiple lanes of traffic. Bailey v Vitrano


Premises Liab   Slip/Trip   Snow/Ice   Sidewalk   Create Condition   Notice   Speculation  

Second Deptartment

Three-family-home owners granted summary judgment by showing that they neither created ice plaintiff slipped on nor had notice of it based on plaintiff’s testimony that she did not see ice or snow on the sidewalk as she was walking, that ice was black and thin, and temperature never went above freezing. Claims that ice was caused by negligent snow removal and existed for a period of time were speculative. Elassad v Nastasi


Med Mal   Late Notice of Claim   Actual Knowledge   Reasonable Excuse  

Second Deptartment

Petition to serve late Notice of Claim denied where petitioner failed to show hospital had actual knowledge within 90 days. Creation of medical records does not give knowledge of essential facts constituting causes of action which was not apparent from an independent review of the medical records. Petitioner’s claim that he was unaware of requirement to serve Notice of Claim insufficient excuse and he failed to show by admissible evidence that his medical condition prevented him from timely filing. Matter of Smith v Westchester County Health Care Corp.


MVA   Pedestrian   Comparative Fault  

First

Pedestrian crossing in crosswalk with green light struck by defendant’s vehicle entitled to summary judgment where defendant did not dispute plaintiff’s version and he told police that he mistakenly believed he had right way. Comparative fault is no longer a necessary element for summary judgment and defendant failed to raise a question of fact on comparative fault anyway. Bokum v Sera Sec. Servs., LLC


MVA   Turning Vehicle  

Second Deptartment

Defendant going straight through intersection with light when his vehicle was struck by codefendants’ vehicle trying to make a left turn when light turned yellow granted summary judgment. Turning vehicle violated VTL §1141 establishing negligence per se for making a turn when it was not safe to do so and through-driver had right to assume that turning vehicle would obey VTL. Giannone v Urdahl


MVA   Rear End   Nonnegligent Explanation  

First

Owner and driver granted summary judgment dismissing passengers’ claim on proof that their car was rear-ended in heavy stop and go traffic and rear-ending defendant failed to offer nonnegligent explanation. Miller v DeSouza


Serious Injury   Degenerative   Expert Aff  

Second Deptartment

Plaintiffs failed to raise issue of fact regarding serious injury in opposition to defendant’s prima facie entitlement to summary judgment and plaintiff’s expert failed to address defendant’s radiologist’s finding that spine injures were degenerative. Sylvain v Maurer


Stay Arb   Notice   Uninsured   SUM  

Second Deptartment

Carrier’s petition to permanently stay uninsured/underinsured arbitration granted where insured did not give carrier notice of claim for 4-years and did not file a sworn statement after the accident as required by policy. Carrier’s disclaimer 2 1/2 weeks after receiving notice was as soon as reasonably possible. Matter of Ameriprise Ins. Co. v Katouchis

IF YOU MUST READ
(4 summaries)
MUST READS NOTEWORTHY

Legal Mal   Collateral Estoppel  

First

Legal malpractice claim that attorneys in federal action did not properly translate what plaintiff was willing to accept in settlement to/from ASL barred by collateral estoppel where plaintiff’s motion to set aside settlement in federal court on same grounds was rejected by both District Court and de novo by Second Circuit. Collateral estoppel applied even though causes of action were different in state and federal actions since they were based on the same allegations and facts. Wang v Simon, Eisenberg & Baum, LLP


Serious Injury  

Second Deptartment

Defendant granted summary judgment on serious injury based on competent medical proof on permanent consequential and significant limitations and 90/180 days and plaintiff failed to raise question of fact in opposition. The court does not give the details of the proofs. Antonucci v Lentini


Serious Injury  

Second Deptartment

Defendants granted summary judgment on serious injury as to one plaintiff based on competent medical proof and plaintiff failed to raise a question of fact in opposition. The court does not give the details of the proofs. Fabian v County of Suffolk


Serious Injury  

Second Deptartment

Defendants denied summary judgment on serious injury where plaintiff raised a question of fact in opposition. The court does not give the details of the proofs. Williams v Fito Taxi Serv., Inc.