MVA Stay Arb Uninsured Set Aside Verdict Subpoena
 It was an abuse of discretion for lower court not to grant injured party’s uninsured carrier’s motion pursuant to CPLR §4404(b) to set aside judgment from non-jury trial dismissing petition to stay arbitration after properly subpoenaed police officer and driver of offending vehicle failed to show at framed issue hearing. Carrier entitled to continuance to enforce properly served subpoenas and there was no evidence of willful delay. Matter of Global Liberty Ins. Co. v Perez
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MVA Discovery Admissibility Respondeat Superior Negligent Hiring
 NYCTA’s motion to vacate order to disclose personnel records of bus driver involved in accident, including disciplinary records, complaints, and daily trip sheets for several years granted as its recognition that it employed driver making them vicariously liable under respondeat superior removed any claim of negligent hiring absent which the requested documents would be inadmissible as prior acts of carelessness and irrelevant. Trotman v New York City Tr. Auth.
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Lead Poisoning Raised For First Time
Presumption of lead paint under Local Law 1 applies only to buildings “erected” before 1/1/1960, meaning constructed not just steel frame installed, but NYCHA denied summary judgment because 2005 report it relied on did not eliminate question of fact regarding presence of lead in 2002 and 2003 raised by plaintiff and child’s elevated lead levels. Inconsistencies in plaintiff’s testimony about abatement went to credibility for jury to decide. Fact that plaintiff first raised argument on Local Law 1 on appeal did not preclude court from deciding it since it was a legal argument apparent on the face of the record that could not be avoided if raised below. A.L. v New York City Hous. Auth.
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Products Liab Burden of Proof
Plaintiff attorney’s affirmation stating that a defaulting defendant had shown him a piece of paper with the moving defendant’s name hand written on it identifying moving defendant as supplier of concrete supporting mesh plaintiff claimed was defective, in response to a pre-action order to show cause to ascertain all persons in the chain of distribution, was insufficient to raise an issue in opposition to moving defendant’s proof that it was not in the manufacturing, selling, or distribution chain of the mesh. Plaintiff was required to show that it was probable, not just possible or evenly likely that moving defendant was in the chain. Tyminskyy v Sand Man Bldg. Materials, Inc.
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Construction Liab. Strike Answer Willful/Contumacious Reargument Indemnity Workers Comp Defense
Third-party defendant’s motion to “modify” order striking its Answer for failing to appear for deposition in violation of 4 court orders, deemed a motion to reargue that was granted and original decision adhered to, providently denied where records showed that third-party defendant’s principal willfully refused to comply, not that they could not locate a witness. Summary judgment on workers comp defense for contractual indemnity claim also denied as that defense does not preclude contractual indemnity claims. 76th & Broadway, LLC v Consolidated Edison Co. of N.Y., Inc.
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Late Notice of Claim Actual Knowledge Reasonable Excuse Prejudice
Petition to serve late Notice of Claim denied where MTA did not have actual knowledge of the claim within 90-days or reasonable time thereafter and the condition had changed. Fact that respondent’s attorneys represented MTA in a case in a different county involving the same accident did not provide actual knowledge where there was no allegation that timely Notice of Claim was served in that action. Petitioner failed to show lack of prejudice where condition was transitory and there was no proof that respondent received an accident report alerting it to the claims or that the condition remained unchanged. Matter of Smiley v Metropolitan Transp. Auth.
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Med Mal Accepted Practice Frye Causation Expert Aff Conclusory
Defendant granted summary judgment on expert’s opinion that plaintiff’s decedent’s pressure ulcer was unavoidable due to comorbidities and necessity for head-of-bed elevation greater than 30° and plaintiff’s expert’s conclusory opinions that didn’t address defendant’s expert’s opinions and misstated record failed to raise an issue in opposition. Defendant’s expert’s opinions were not novel theories subject to a Frye hearing and were consistent with 10 NYCRR 415.12(c)(1) and 42 CFR 483.25(b)(1)(i) which both require avoidance of pressure sores unless “unavoidable.” Vargas v St. Barnabas Hosp.
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Serious Injury ROM Expert Aff
Ankle and foot strains/sprains where IME/DME doctor found normal ROM and affirmed report of no-fault IME orthopedic surgeon opining that MRI showed osteoarthritis and other conditions and opined that arthroscopic surgery 4-months after accident were not medically necessary or caused by the accident met defendants’ burden for summary judgment on serious injury. Plaintiff failed to raise an issue in opposition where he was only diagnosed with strain/sprains and his treating podiatrist found only a 5° limitation on recent examination. Ampofo v Key
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Premises Liab Slip/Trip De Minimus Expert Aff Foreseeability Sole Cause
Plaintiff’s expert’s opinion that 9″ long 1/4″ to 1-1/8″ chip on stair tread was proximate cause of plaintiff’s accident raised an issue of fact in opposition to defendants’ expert’s opinion that 1/4″ to 3/8″ height differential was trivial. There were questions of fact as to whether plaintiff’s intoxication and decision to descend stairs during power outage were so “egregious or unforeseeable” to be the sole proximate cause of the accident. Katz v 260 Park Ave. S. Condominium Assoc.
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Med Mal Wrongful Death Accepted Practice Causation Expert Aff
Orthopedic surgeon who performed total knee replacement on 66-year-old woman and ordered anticoagulants prophylactically made out entitlement to summary judgment by expert’s opinion that the drug and dose were in accordance with accepted orthopedic standards and that there were no signs of a DVT prior to plaintiff’s decedent’s fatal pulmonary embolus 5-days after surgery. Plaintiff’s expert, a forensic pathologist, failed to establish specific training or expertise in orthopedic surgery or how he was familiar with the applicable standards of care, and failed to state what standards of care were violated. Defendants’ expert’s failure to address claim of increased risk for DVT from anemia did not raise an issue of fact where plaintiff’s expert failed to state that anemia was a risk factor for DVT. Noble v Kingsbrook Jewish Med. Ctr.
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Premises Liab Slip/Trip De Minimus Open/Obvious Inherently Dangerous Optical Confusion Expert Aff Speculation Building Code
Construction company granted summary judgment where plaintiff tripped on door saddle on proof that height differential was trivial and door saddle had a different color than surrounding floor making it open/obvious and not inherently dangerous. Expert’s opinion of “optical confusion” was speculative and contradicted by expert’s own photos showing the different coloration and expert relied on inapplicable building code provisions for “means of egress.” Hall v New Way Remodeling, Inc.
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Labor Law §240 Labor Law §241 Labor Law §200 Safety Devices Indemnity Workers Comp Defense Grave Injury
While conflicting stories of how plaintiff fell from 7th to 6th floor at construction site left issues of fact on Labor Law §§241(6), 200, and negligence claims, failure to provide any safety device to prevent fall entitled plaintiff to summary judgment on Labor Law §240(1). Third-party defendant entitled to summary judgment on common-law indemnity and contribution claims which are barred by workers compensation defense where there was no grave injury. Cashbamba v 1056 Bedford LLC
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Premises Liab Causation Expert Aff
Plaintiff walked into glass door exiting store because sun was in her eyes. Her expert’s opinion that failure to provide marker at eye level was negligence did not show that it was the cause of her accident. Ambersley v Athleta LLC
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Labor Law §240 Safety Devices
Plaintiff granted summary judgment where 2500-3500 lb. pallet of flooring material being lowered 4′ by hydraulic lift from truck flatbed during construction fell on him because defendant failed to provide a proper safety device to secure the load and defendant failed to raise a question of fact in opposition. Ramos-Perez v Evelyn USA, LLC
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Labor Law §240 Ladder
Plaintiff’s testimony that ladder shifted unexpectedly causing him to fall while working on new home construction entitled him to summary judgment on Labor Law §240(1). Vicuna v Vista Woods, LLC
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MVA Bus Circumstantial Evidence There to be Seen
Defendants denied summary judgment where evidence that bus struck plaintiff while he was unloading material from his vehicle left possible inferences that plaintiff backed up into the bus or that defendant failed to exercise reasonable care to avoid hitting plaintiff who he admitted seeing before the accident. Barracato v SP Plus Corp.
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Premises Liab Slip/Trip Stairs Unknown Cause Hearsay
Defendant waived objection to plaintiff’s expert’s unsworn report by not raising it below but expert’s opinion that there were irregular and excessive riser heights did not raise issue of fact because there was no evidence that these defects caused the accident. Plaintiff’s testimony that she saw decedent’s leg lodged in the riser when she arrived did not connect riser defects with the accident and decedent’s hearsay statements in expert reports did not say that he fell because of risers. Thompson-Shepard v Lido Hall Condominiums
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Premises Liab Slip/Trip Stairs Dangerous Condition Expert Aff Speculation
Worn marble step is not by itself an actionable dangerous condition, defendant put forth proof that it did not create or have notice of the condition, and plaintiff’s expert’s opinion was speculative and did not show that the stair was subject to the NYC administrative code. Plaintiff’s testimony that the lighting was dim contradicted her testimony that j she fell on the stair, not that she fell because of poor lighting. Reyes v 83 Post Ave. Assoc., L.L.C.
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Premises Liab Slip/Trip Wet Floor Last Inspection NYC
NYCHA’s motion for summary judgment claiming it did have notice of urine on elevator floor where plaintiff slipped denied as testimony that custodians were instructed to inspect and clean elevators twice a day and that his office often responded to complaints of urine was insufficient to eliminate constructive notice absent proof of last time elevator was inspected and cleaned. Hobbs v New York City Hous. Auth.
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Discovery Note of Issue BP IME/DME
Lower court providently denied defendant’s request in response to supplemental BP stating that plaintiff’s doctor recommended surgery or further preoperative and postoperative depositions and IME/DME’s, except to require plaintiff to provide authorizations for continuing treatment, where recommendation of surgery was disclosed at plaintiff’s deposition and there was no evidence that he planned to go forward with the surgery or that his physical condition materially changed since the deposition. Floyd v Player
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MVA Turning Vehicle Comparative Fault Sole Cause
Plaintiff granted summary judgment on defendant’s testimony that collision occurred when he switched lanes with the backhoe and plaintiff was not required to show freedom from comparative fault or that defendant was sole proximate cause of the accident. Ayala v Pascarelli
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MVA Turning Vehicle Comparative Fault Sole Cause
Plaintiff granted summary judgment on defendant’s testimony that collision occurred when he switched lanes and plaintiff was not required to show freedom from comparative fault or that defendant was sole proximate cause of the accident. Silverio v Ford Motor Co.
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