December 1, 2020 | Vol. 238

MUST READS
(5 summaries)
NOTEWORTHY IF YOU MUST READ

Battery   False Imprisonment   Negligent Supervision  

Second Department

In a case of first impression, the Second Department held the “protection of people with special needs act,” Social Services Law Art. 11, and specifically §493(4)(b) does not provide a private cause of action. Under the rules of statutory interpretation, the most important of which is whether a private cause of action would be consistent with the legislative scheme, the Court found the legislature considered and set out mechanisms for enforcement so that creating a private cause of action would not be consistent with the legislative scheme. The creation of a “justice center” with concurrent authority to prosecute abuse and neglect with district attorneys, the justice center’s creation of standards, a 24/7 hotline, and a statewide registry of abusers were mechanisms to protect persons with special needs they, as in this case, can still address abuses through tort causes of action such as assault, battery, and false imprisonment. Joseph v Nyack Hosp.


Premises Liab   Slip/Trip   Stairs   Wet Floor   Set Aside Verdict   Directed Verdict   Jury Charge   Create Condition   Causation   Intervening Cause  

Second Department

Plaintiff’s motion to set aside verdict that found there was water on the stairs, it was a dangerous condition, defendant knew or should have known of its existence, but that defendant had insufficient notice to remedy the condition granted where trial court erred in modifying PJI 2:91 charge to take out the possibility that defendant created the condition, over plaintiff’s objection. Evidence that superintendent placed a lined garbage can filled with water near building entrance so tenants could carry water to their apartments after the water main broke, and was aware tenants were carrying and spilling the water, provided a rational path for a jury to conclude the tenants’ actions were foreseeable and defendant created the condition. Plaintiff denied judgment as a matter of law as there was a path for jury to find fall was not caused by defendant’s negligence. Alonzo v City of New York


Discovery   Subpoena   Burden of Proof  

Second Department

Order quashing defendants’ subpoenas for testimony of decedent’s treating physicians, finding they did not meet burden of showing special circumstances, reversed as CPLR §3101(a)(4) requires only minimal showing that nonparty was apprised of circumstances and reasons for disclosure before shifting burden to person resisting subpoena to show “the inevitability or obviousness of the futility of the process to uncover anything legitimate or that the information sought is utterly irrelevant to any proper inquiry.” Reda v Port Auth. of N.Y. & N.J.


Med Mal   Accepted Practice   Expert Aff   Speculation   Conclusory  

First Department

Defendants made out entitlement to summary judgment on expert’s opinion they did not depart from Canadian CT Head Rule (CCHR) standards when determining a CT scan was not necessary in the ER where plaintiff showed no neurological deficits. Plaintiff’s expert failed to raise issue in opposition without addressing CCHR standards, and opinion that the location of injury and fact it was a stabbing wound, if discovered , would have indicated a likelihood of a skull fracture, diagnosed as a days-old fracture a week later were speculative and conclusory based on hindsight. Cruz v New York City Health & Hosps. Corp.


Premises Liab   Notice   Last Inspection   Latent Defect  

Second Department

Homeowners who purchased house 8-months before plaintiff fell from porch after leaning on railing that gave way did not meet burden for summary judgment as they did not establish defect was not visible where they did not inspect the railing anytime before the accident or show the defect was latent and could not be discovered based on plaintiff’s testimony that the railing collapsed as soon as he leaned against it and it felt as if it unconnected. Prior homeowners granted summary judgment on proof they did not create the condition, inspection prior to sale showed no defects, and 8-months since sale was sufficient time for new buyer to discover any defect, taking it out of limited circumstances for liability of prior owners. Hayden v 334 Dune Rd., LLC

NOTEWORTHY
(18 summaries)
MUST READS IF YOU MUST READ

Labor Law §240   Industrial Code   Question of Fact   Admission   Hearsay  

First Department

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.


Premises Liab   Products Liab   Dangerous Condition   Inherently Dangerous   Notice   Control   NYC  

First Department

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


Labor Law §240   Labor Law §200   Labor Law §241   Ladder   Sole Cause   Notice  

Second Department

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


MVA   Rear End   Pileup   Nonnegligent Explanation   Foreseeability   Note of Issue   Untimely  

Second Department

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


Labor Law §240   Labor Law §200   Safety Devices   Sole Cause   Control   Indemnity  

First Department

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.


Motion to Dismiss   Discovery   Preclusion   Willful/Contumacious  

First Department

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


Premises Liab   Dangerous Condition   Building Code   Warnings   Expert Aff  

Second Department

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.


Dogbite   Vicious Propensity  

Second Department

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


Premises Liab   Slip/Trip   Wet Floor   Unknown Cause   Last Inspection   Notice  

First Department

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


Premises Liab   Slip/Trip   Sidewalk   § 7-210   Homeowner Exception   Duty   Create Condition   Speculation  

Second Department

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


Labor Law §240   Scaffold   Safety Devices   Recalcitrant Worker   Comparative Fault   Reargument   Appealable Order  

First Department

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.


Premises Liab   Notice   Last Inspection   Foreseeability   Expert Aff  

First Department

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.


Labor Law §200   Premises Liab   Create Condition   Notice   Control  

Second Department

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


Construction Liab.   3rd Party Contractor   Espinal   Create Condition   Speculation  

Second Department

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


Premises Liab   Slip/Trip   Dangerous Condition   Admissibility   Subsequent Repairs   Causation   Expert Aff  

First Department

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.


Premises Liab   Notice   Causation  

Second Department

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


MVA   Rear End   Nonnegligent Explanation   Amend Answer   Emergency Doctrine  

Second Department

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


Med Mal   Wrongful Death   Amend Complaint  

First Department

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

IF YOU MUST READ
(3 summaries)
MUST READS NOTEWORTHY

Workers Comp Defense  

First Department

Plaintiff’s claim against his employer dismissed as barred by exclusivity clause of Worker’s Compensation. Sanchez v Delta Airlines, Inc.


Uninsured   Stay Arb  

Second Department

Carrier’s submission of injured parties MV 104 listing offending vehicle license plate number and proof vehicle was registered and insured, albeit under a name different than given at scene, warranted temporary stay of uninsured arbitration for framed issue hearing for Supreme Court, not arbitrator, to determine if the vehicle was in fact involved in the accident. Motion to renew providently denied without new facts that would change the result. Matter of Allstate Ins. Co. v Robinson


Premises Liab   Slip/Trip   Snow/Ice   Storm in Progress   Notice  

Second Department

Hospital failed to show there was a storm in progress at time plaintiff slipped on snow/ice on its walkway and that it did not have notice of the condition. The Court does not give the details of the proofs. Keckeisen v South Nassau Communities Hosp.

About Matt McMahon

Civil trials and appeals since 1984
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