Vacate Jud CPLR § 2104
 Plaintiff’s motion to vacate stipulation of discontinuance signed by her attorney in response to her text message instructing him to do so and defense attorney but not entered in court until after plaintiff texted her former attorney not to discontinue the action just 1 day later denied. Her attorney had express authority to do sign the stipulation and under CPLR §2104 the signed stipulation became a binding contract even where it was not entered until after plaintiff change her mind. Demetriou v Wolfer
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MVA VTL §1104
 Taxi’s 3rd-party action against police officer driving police car that plaintiff was a passenger in dismissed where police officer testified that he was responding to an emergency, came to a complete stop, and looked for traffic before going through the red light as permitted under VTL §1104. Whether sirens were on was irrelevant as not required for a police vehicle under VTL §1104. Deno v Belliard
Comment: VTL §1104(c) requires all emergency vehicles other than police vehicles responding to emergencies to have sirens and at least one 365° light on. |
MVA VTL §1104 Police NYC Premature Motion Comparative Fault
Plaintiff injured when police car backed into her car granted summary judgment on proof that police officer was merely observing suspicious activity, later identified as a person carrying an open alcoholic container, which did not rise to the level of an emergency under VTL §1104. Under ordinary negligence standard, officer’s failure to make sure it was safe before backing up established liability. Plaintiffs no longer have to prove freedom from comparative fault for summary judgment and defendants failed to show what discovery might lead to relevant information necessary to deem motion premature. Portalatin v City of New York
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MVA Turning Vehicle There to be Seen Admissibility Hearsay
Statement in plaintiff’s medical record that he was speeding was inadmissible hearsay as it did not identify the declarant and was not necessary for diagnosis or treatment. Motorcyclist granted summary judgment where defendants’ car made left hand turn in front of motorcycle failing to yield right-of-way establishing negligence per se under VTL §1141, and failing to see plaintiff’s motorcycle. Ming-Fai Jon v Wager
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Premises Liab MVA § 7-210 Foreseeability Causation
Adjoining landowner granted summary judgment where plaintiff was struck by taxicab driving onto sidewalk after altercation with bike messenger. Building had no duty to protect against unforeseeable criminal act and administrative code §7-210 does not impose such a duty. Since administrative code is in derogation of common-law it must be strictly construed as to the types of maintenance and repair described in the code provision. Green v Himon
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Labor Law §240 Labor Law §241 Control Safety Devices Industrial Code Indemnity
Plaintiff granted summary judgment on Labor Law §240(1) on proof that he fell from 12’-16’ temporary tower his employer had been hired to clean in preparation for demolition where he had not been provided with any safety devices to prevent fall. Work was a protected activity under Labor Law §240(1) as plaintiff showed that contractor that hired his employer had right to exercise control over the work. Contractor failed to show that slippery condition on oil tank violating industrial code §23-1.7(d)(slipping hazards) was not a proximate cause of fall. Owner and manager denied summary judgment on common law indemnification where they failed to show that contractor exercised actual supervision over plaintiff’s work Padilla v Park Plaza Owners Corp.
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MVA
Defendants’ second motion for summary judgment denied as party can only make 1 motion for summary judgment under CPLR §3212 and defendants failed to show that 2nd motion was based on “newly discovered evidence or other sufficient cause.” Rogers v DeGennaro
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Late Notice of Claim Actual Knowledge Reasonable Excuse Prejudice
Petition to serve late Notice of Claim on behalf of 7-year-old autistic child left unattended in parked school bus and found wandering by herself 45-minutes later granted. School district had actual notice within 90-days where superintendent met with petitioner and daughter at scene, viewed multiple videos of incident within days, and emailed with petitioner and could not claim prejudice. Lack of reasonable excuse not sufficient to deny petition where there was no prejudice. Matter of John P. v Plainedge Union Free Sch. Dist.
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Premature Motion
Defendants’ motion for summary judgment denied as premature where no employees were deposed, and records could show what work defendants undertook and when. Plaintiff showed that “facts essential to oppose defendants’ motions may lie within defendants’ exclusive knowledge and/or control.” Defendant also failed to show that Complaint did not adequately plead a cause of action. Marabyan v 511 W. 179 Realty Corp.
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Premises Liab Slip/Trip Snow/Ice 3rd Party Contractor Espinal Speculation
Summary judgment granted to airline’s 3rd-party on-call snow removal contractor where airline’s employees slipped and fell the day after a snowfall that the airline did not call for contractor to perform snow removal. Plaintiff didn’t allege Espinal exceptions and failed to raise an issue on launch an instrumentality of harm or detrimental reliance Espinal exceptions because the contractor was not called for that snowfall. Plaintiff’s claims that snow from prior snow removal efforts melted and re-froze was speculative. Cayetano v Port Auth. of N.Y. & N.J.
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Late Notice of Claim Motion to Dismiss Reasonable Excuse Actual Knowledge Prejudice
Plaintiff’s motion to serve late Notice of Claim 2-months after commencing action denied. Lack of diligence in discovering who owned golf course where the plaintiff slipped and fell on ice on the sidewalk was not a reasonable excuse and plaintiff failed to show that defendant had actual knowledge of essential facts within 90-days. Balancing the factors, lack of prejudice was not enough to deny motion for leave and Complaint was properly dismissed. Constantino v City of New York
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Premises Liab Slip/Trip Open/Obvious Inherently Dangerous
Town failed to meet its burden for summary judgment claiming that hump between players’ benches and third-base entrance created by a drain covered with asphalt was open and obvious and not inherently dangerous because it submitted plaintiff’s testimony that the hump was covered with dirt and surrounded by players obscuring its danger. An obvious danger may become an inherently dangerous trap because of the surrounding circumstances. Dillon v Town of Smithtown
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Dram Shop Building Security Foreseeability Duty
Defendant granted summary judgment on dram shop claim on witnesses’ testimony that assailant did not appear to be intoxicated at time he was served which was sufficient to show that he was not visibly intoxicated at the time he was served under GOL §11-101. While first attack was sudden and unforeseeable, Defendant owner’s testimony that he was escorting assailant from the premises after he somewhat calmed down did not establish reasonable security measures where witness noticed assailant leaving unescorted just before second attack. Possessor of real property owes duty to protect against reasonably foreseeable criminal acts. Ricaurte v Inwood Beer Garden & Bistro Inc.
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Med Mal Accepted Practice Causation Expert Aff
Doctor who performed episiotomy and forceps delivery after being consulted during delivery made out entitlement to summary judgment on expert’s opinion of no departure or causation, but plaintiff’s expert raised issues of fact that doctor caused an undiagnosed 4th degree laceration during forceps delivery and that departed from accepted practice by failing to repair laceration and perform a post-delivery rectal examination causing plaintiff’s complications. Jagenburg v Chen-Stiebel
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Med Mal Motion to Dismiss Statute of Limitations
Doctor who performed bilateral skin-sparing mastectomy resulting in MRSA infection met burden of proving that action was commenced 4-months after 2.5-year statute of limitations, but plaintiff raised issue of fact on continuous treatment by showing that she continued to be treated for this condition by other party and nonparty doctors employed by the same practice as the movant which would make the action timely. Osborn v DeChiara
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Premises Liab Slip/Trip Wet Floor Last Inspection Notice
Building failed to meet its burden where porter testified that it was another porter’s job to inspect and clean floor where plaintiff slipped on small puddle of oily substance and he did not know whether the other porter complied with the inspection schedule or the last time the porter inspected or cleaned the area. The same porter also testified that he walked on the ramp several times before the accident and observed a wet substance but neither inspected nor cleaned it. Sager v Waldo Gardens, Inc.
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Premises Liab Notice Foreseeability Sole Cause
Lunt-Fontanne Theater granted summary judgment where plaintiff-patron was instructed to go to the end of the line, which was not on defendants’ property, stepped into the street, and fell when her heel got caught between 2 metal plates because theater was not aware of any danger in the area where the line formed, the sidewalk was not overcrowded, and plaintiff chose to step in the street. Even if the sidewalk was completely blocked, theater had no prior notice of a dangerous condition. Plaintiff failed to raise question of fact showing that accident was not caused by her own conduct. Quigley v Nederlander Org., Inc.
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Vacate Default Reasonable Excuse Notice Meritorious Defense
Nonreceipt of summons and complaint because defendants they did not update their address with Secretary of State was not a reasonable excuse and general statements that they did not know about the incident were insufficient to show a meritorious defense or explain how they did not receive the summons and complaint and other documents mailed to the accident building they owned. Defendants not entitled to vacate the judgment under CPLR §317. Gomez v One Sickles St. Co., LP
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Negligent Supervision 1983 Action Assault Notice Violent Propensity
School district granted summary judgment where special needs student without one-on-one aide went with other special needs student before class to athletic field where she was sexually assaulted by him. Parents had no expectation that she would be escorted outside of class, daughter had no history of leaving school unexpectedly, and they did not allege that other special needs student had a dangerous propensity or that school had notice of such propensity. School district met burden of showing that they did not violate students constitutional right for 1983 action. Deb B. v Longwood Cent. Sch. Dist.
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MVA Rear End Graves Amendment
Company involved in renting vehicles including the one that struck plaintiff’s car in the rear failed to show that it was free from negligence in maintenance of the vehicle as alleged in plaintiff’s BP necessary for summary judgment under the Graves Amendment. Lozano v Magda, Inc.
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MVIAC
Infant-petitioner’s MVIAC claim denied under “hit and run” procedure where petitioner had obtained judgment against driver of car that hit infant-petitioner and, therefore, knew the identity of the driver precluding use of the hit-and-run procedure. Matter of Abdul S. v Motor Veh. Acc. Indem. Corp.
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Assault 1983 Action Emotional Harm Motion to Dismiss
Plaintiff’s claim for negligence dismissed where sole allegations were of intentional assault on persons other than plaintiff. Fact that defendant did not intend to injure plaintiff did not make it negligence. Claims for negligent infliction of emotional harm dismissed absent allegations of negligence in the Complaint, and 1983 claim dismissed absent claim that defendants acted as government or governmental actors. Borrerro v Haks Group, Inc.
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Serious Injury Expert Aff ROM Uncertified Records
Defendants granted summary judgment on serious injury on examining doctors’ affirmed reports showing normal ROM, resolved strains/sprains, and no objective evidence of serious injury. Plaintiff failed to raise issue in opposition by unsworn/uncertified chiropractic and physical therapy records which lower court properly refused to consider and in any event records did not contain MRI reports providing objective evidence of an injury. Plaintiff resumed her normal activities, including gymnastics, after she stopped treating within 4-months of accident. Castro v DADS Natl. Enters., Inc.
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Governmental Immunity Notice Police NYC
Claims of wrongful incarceration from “negligent investigation” dismissed as New York does not recognize such a cause of action and plaintiff failed to show that officer’s discretionary acts were not entitled to immunity because they were inconsistent with acceptable police practices. Plaintiff had adequate notice of potential dismissal of both claims. Alabi-Ajidagba v City of New York
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