Labor Law §240 Industrial Code Question of Fact Admission Hearsay
Plaintiff denied summary judgment on Labor Law §241(6) based on industrial code §23-1.7(d) where he gave conflicting statements of how accident happened to his coworkers, to the WCB, and to his medical providers. Medical records properly considered in opposition even if not germane to diagnosis and treatment since they were directly attributable to plaintiff and would be admissions. Even if hearsay, they properly considered where they were not the only evidence. Pina v Arthur Clinton Hous. Dev. Fund Corp.
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Premises Liab Products Liab Dangerous Condition Inherently Dangerous Notice Control NYC
An unguarded top bunk used by an adult is not inherently dangerous and requires notice that it presented a danger for liability. Question of fact remained on whether temporary housing shelter operator under contract with NYC had notice top bunk without guard rail that decedent fell from, becoming quadriplegic and later dying, was dangerous on decedent’s wife’s testimony they complained of the danger to the shelter before the accident and the maintenance director’s testimony that he and staff knew it was dangerous for anyone to sleep on top bunk without a guardrail. NYC and shelter’s parent company granted summary judgment on proof they had no notice of a dangerous condition.
Manufacturer of bunk bed granted summary judgment where federal regulations plaintiff relied on were to prevent children from slipping through bottom of rail and not to protect adults. Slaughter v City of New York
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Labor Law §240 Labor Law §200 Labor Law §241 Ladder Sole Cause Notice
Plaintiff’s uncontroverted testimony he was instructed to climb a closed A-frame ladder placed against metal studs that fell when one of the studs detached made out prima facie violation of Labor Law §240(1) with is normally a question of fact ‘except when the device collapses, moves, falls, or otherwise fails to support the plaintiff and his or her materials.’ Plaintiff’s actions cannot be sole cause where there are no adequate safety device, especially where there is evidence worker was following example of coworkers with a supervisor’s tacit approval. Defendants failed to show they lacked notice of an unsecured ladder on Labor Law §200 and negligence claims but they should have been granted summary judgment on Labor Law §241(6) where plaintiff did not oppose that portion of their motion or raise an issue in opposition. Luan Zholanji v 52 Wooster Holdings, LLC
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MVA Rear End Pileup Nonnegligent Explanation Foreseeability Note of Issue Untimely
First and second car in 4-car pileup granted summary judgment on proof first car lost power coming to a stop through unforeseeable mechanical issue and gave proper warnings to vehicles behind, second car came to a complete stop before it was hit in the rear by third car, and subsequently plaintiff’s car struck third car, establishing that neither the first nor second car drivers were negligent.
Plaintiff’s motion for summary judgment filed more than 60-days after Note of Issue untimely where it did not raise nearly identical issues as the defendants’ motions. Daniel v Ian-Michael
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Labor Law §240 Labor Law §200 Safety Devices Sole Cause Control Indemnity
Plaintiff entitled to summary judgment on proof he fell from roof without any safety devices during roofing work. Plaintiff could not be a sole cause of accident where there were no safety devices provided. Defendant entitled to summary judgment on Labor Law §200 and common-law negligence on proof it did not retain authority over means and methods of plaintiff’s work, and on its contractual indemnity claim against contractor since it was only vicariously liable. Padilla v Absolute Realty, Inc.
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Motion to Dismiss Discovery Preclusion Willful/Contumacious
Lower court was not required to grant motion to strike Complaint or preclude plaintiff from offering evidence at trial based on prior order of another judge warning that failure to comply with discovery would be construed as willful/contumacious as it was not a conditional order and would require a finding of willful/contumacious conduct. History of case demonstrated plaintiff complied with most discovery orders showing good faith attempts to comply. Lyoussi v Etufugh
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Premises Liab Dangerous Condition Building Code Warnings Expert Aff
Playground equipment manufacturer and village granted summary judgment where 2-year-old fell from top of equipment on proof posted signs warned apparatus was suitable only for 5-12 year olds, signs designated a separate area as suitable for 2-12 year-olds, and equipment complied with all relevant safety standards and was not inherently dangerous. Plaintiff’s engineer’s opinion failed to raise issue where he did not have specialized knowledge, training, experience, or education in the playground equipment involved. C.N. v Pat Corsetti, Inc.
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Dogbite Vicious Propensity
Defendants granted summary judgment on proof they neither knew or should have known their dog showed aggressive behavior before bite. Occasionally jumping on people when greeting them did not raise triable issue and “the nature and severity of the attack does not demonstrate that the defendants knew or should have known of the dog’s alleged vicious propensities.” Costanza v Scarlata
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Premises Liab Slip/Trip Wet Floor Unknown Cause Last Inspection Notice
NYCHA established entitlement to summary judgment on plaintiff’s testimony he slipped on wet surface, did not know what the substance was, could not describe it, and did not see the substance before or after his fall and caretaker’s testimony there was no defect when he inspected stairs at end of his shift day before or during his morning walk down inspection where he discovered the accident but no debris or wet surface. Building is not required to patrol stairs 24-hours a day. Ellis v City of New York
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Premises Liab Slip/Trip Sidewalk § 7-210 Homeowner Exception Duty Create Condition Speculation
Adjoining landowner granted summary judgment on proof she was entitled to homeowner’s exception to administrative code §7-210, owed no duty to plaintiff to maintain sidewalk, and did not create the condition directly or through special use. Claim condition was caused by water draining from defendant’s gutters onto the sidewalk was speculative. Frazier v Hunte
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Labor Law §240 Scaffold Safety Devices Recalcitrant Worker Comparative Fault Reargument Appealable Order
Lower court granted reargument by addressing plaintiff’s cross-motion and adhere to its original decision, making it an appealable order. Plaintiff entitled to summary judgment on proof he fell from 12′ ladder after receiving shock from electrical wire and was not provided with safety harness or safety lines. Fact plaintiff inspected scaffold and found no defects before using it or that scaffold had side rails but no safety harness or lines did not raise issues of fact. Foreman’s mentioning the wearing of harnesses as an example during weekly safety meetings insufficient to show recalcitrant worker or that plaintiff was at that meeting. Plaintiff’s failure to turn off power before conducting work was at most comparative negligence not a defense under §240. Goundan v Pav-Lak Contr. Inc.
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Premises Liab Notice Last Inspection Foreseeability Expert Aff
Garage’s motion for summary judgment denied where director testified to general safety at its various garages but knew nothing of conditions at garage where plaintiff was struck, and did not submit any expert opinion. Defendant failed to show lack of notice of condition, the last time the area was inspected, or that it was unforeseeable patrons were speeding on the ramps where director testified he was aware employees were telling tenants to slow down when they saw them speeding and issuing community complaints. Serrano v Riverbay Corp.
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Labor Law §200 Premises Liab Create Condition Notice Control
Building owner granted summary judgment on proof it neither created nor had actual or constructive notice of defective ramp that shifted as plaintiff was pulling dumpster filled with demolition debris, causing it to tip and building owner did not retain control over means and methods of plaintiff’s work. Plaintiff’s opposition to dismissal of Labor Law §200 and common law negligence raised for the first time on appeal not considered nor were arguments regarding Labor Law §240 that could have been argued on appeal from order dismissing that cause of action which was dismissed for lack of prosecution. Villada v 452 Fifth Owners, LLC
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Construction Liab. 3rd Party Contractor Espinal Create Condition Speculation
Tree remover owed no duty to nonparties to its contract with a school district to remove 2-trees and made out entitlement to summary judgment on proof that no 12″ wide 6″-8″ deep holes were in the area after it removed the trees. Plaintiff’s claim the tree removal created the holes she tripped on and was speculative. Pi Chu Chow v Valley Stream Union Free Sch. Dist. 30
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Premises Liab Slip/Trip Dangerous Condition Admissibility Subsequent Repairs Causation Expert Aff
Floor installer granted summary judgment where plaintiff slipped on hotel kitchen floor he claimed was slippery but not wet where all experts agreed the floor, selected by the hotel, was within the industry acceptable range for slip resistance and there was no evidence of improper installation or defective materials. Subsequent repair not admissible where there was no issue of control or manufacturing defect. Varied floor textures could not be a cause of the accident where area plaintiff fell on was uniform, the hotel, not installer, chose textures, and plaintiff failed to show the textures were inappropriate. Arias v Stonhard, Inc.
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Premises Liab Notice Causation
Building owners failed to make out prima facie entitlement to summary judgment by submitting testimony of non-party mother stating she complained of stove that admitted fire ball injuring her son, on three occasions before the accident leaving the question of whether owners had constructive notice of the condition and, with other evidence, whether their negligence caused the fire. Chung v Young
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MVA Rear End Nonnegligent Explanation Amend Answer Emergency Doctrine
Plaintiff granted summary judgment and defendants’ motion to amend Answer to include emergency doctrine affirmative defense denied on proof vehicle plaintiff was a passenger in came to a full stop before being struck in the rear by defendants’ vehicle in what defendant-driver explained was slow traffic with lots of cars. Police report and defendant-driver’s affidavit stating car plaintiff was in stopped short had no probative value where defendant could not testify at deposition how fast the car was traveling or when he first observed it, making proffered affirmative defense of emergency doctrine devoid of merit. Capuozzo v Miller
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Med Mal Wrongful Death Amend Complaint
Plaintiff’s motion to amend Complaint to add wrongful death cause of action denied without competent medical proof that death was caused by the epidural injection. Kamara v 767 Fifth Partners, LLC
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