| MUST READS (3 summaries) | |||
| NOTEWORTHY | IF YOU MUST READ | ||
 Plaintiff and abutting landowner failed to raise an issue of whether the sidewalk defect was within the 12” of a NYC manhole cover under 34 RCNY§ 2-07 where the defect was 4’-5’ feet from the manhole and NYC’s undisputed evidence showed it fulfilled is §2-07 duty to prevent hazardous conditions within the 12” perimeter to expand beyond the perimeter by its prior inspection that found no issues within the 12” that could have expanded. Claim that catch basin underneath the manhole may have caused the defect rejected as §2-07 only applies to covers, gratings, and the 12” perimeter.Plaintiff and abutting landowner also failed to raise an issue on prior written notice as 311 calls were not about the defect plaintiff tripped on and calls do not satisfy prior written notice even where reduced to writing or where there is a service report as a result of such a call. Dixon v Afternoon Delight Fifth Ave. Assoc., LLC ✉ |
 Spa’s motion to dismiss for lack of personal jurisdiction granted after hearing where substituted service on owner was insufficient under CPLR §311(a)(1) which requires personal service. Jurisdiction over owner not effectuated by substituted service as service address was not representative’s actual residence or usual place of abode on the date of service regardless of whether she eventually had notice of the action.Appeal from grant of hearing dismissed as no appeal lies from an order directing a hearing to aid in the disposition of a motion. Flatow v Goddess Sanctuary & Spa Corp. ✉ |
| Petitioners’ motion to renew petition to serve late Notice of Claim for infant’s hypoxic ischemic encephalopathy during birth granted where they adequately explained that the medical records and expert’s affirmation establishing NYCHHC had actual knowledge of the essential facts by an independent review of the records were not available at the time of the original petition and the records were voluminous. The infant’s severe medical condition and need for constant attention provided a reasonable excuse for the 5-month delay is seeking leave to serve the late Notice of Claim. Matter of Bergado v New York City Health & Hosps. Corp. ✉ |
| NOTEWORTHY (12 summaries) | |||
| MUST READS | IF YOU MUST READ | ||
| Lower court improvidently granted defendants’ motion to dismiss for failure to file a Note of Issue after a 90-day notice where plaintiffs’ excuse that they thought the stay of the action for resolution of a federal action was still pending, even though it had been settled, was reasonable, plaintiffs showed a meritorious action, and CPLR §3216 is a very forgiving statute. Holness v Gigglesworld Corp. ✉ |
| Defendants’ motion to vacate plaintiff’s default judgment denied where claim they thought plaintiff had withdrawn the action based on communications with his employer that they were trying to settle the WC claim, and later that plaintiff had lost the WC claim, was not reasonable as the documents showed plaintiff won his WC claim and defendant made no effort to confirm their belief that the action had been withdrawn. Melendez v 106 Mt. Hope LLC ✉ |
| Plaintiff’s and defendants’ motions for summary judgment denied where defendants’ expert’s opinions did not conclusively show that plaintiff’s description of the accident, that the elevator stopped between floors, its internal door opened, and it shook or jumped up and down before dropping to the basement and rising to the sixth floor, was impossible since the elevator mechanics acknowledged that could be caused by loose or broken wires on the controller which had not been replaced since the 1970s and required numerous repairs. Questions remained on whether defendants had notice from numerous prior repairs and whether res ipsa loquitor applies as the malfunction described by plaintiff does not ordinarily occur absent negligence. Trotman v Precision El. Corp. ✉ |
| Gap worker injured when portion of basement ceiling fell on him raised issues in opposition by testimony there were holes, cracks, and patchwork in the ceiling before the accident and his engineer’s opinion that those would give notice on inspection that the ceiling was defective and needed repair, which conflicted with defendants’ expert’s opinions. Both experts agreed prior work may have caused the ceiling to fall, leaving questions of who created and had notice of the condition. Issues remained on whether the out of possession landlord exercised exclusive control of the basement for res ipsa loquitor where it had a right to make repairs. Gap granted summary judgment dismissing contractual indemnity claim as it did not receive “prompt notice” of the claim. Common-law indemnity and contribution claims dismissed without opposition. Patrick v 278 8th Assoc. ✉ |
| NYC granted summary judgment dismissing false arrest claim as victim’s statement to police that plaintiff threatened to kill him in violation of a standing protection order which was attached demonstrated probable cause and ‘an eyewitness-victim of a crime can prove probable cause for the arrest of his assailant despite the fact that his reliability has not been previously established or his information corroborated.’ Marshall v City of New York ✉ |
| Defendants’ motion to dismiss legal malpractice claim for suing NYC, which did not own or control the property where plaintiff was injured while working as an independent contractor, but not suing the US and US Department of Parks, which owned the property, denied as plaintiff adequately pled legal malpractice and defendants’ documentary evidence failed to utterly refute the factual allegations as it did not conclusively establish the independent contractor or discretionary function exceptions to the waiver of sovereign immunity barred recovery. Postiglione v Sacks & Sacks, LLP ✉ Comment: Plaintiff’s motion to dismiss appeal from earlier order denying defendants’ motion to dismiss original Complaint granted as academic where the plaintiff amended the Complaint and defendant moved to dismiss the original Complaint. Postiglione v Sacks & Sacks, LLP. |
| Nursing home granted partial summary judgment dismissing plaintiff’s claims for gross negligence and punitive damages on evidence decedent’s fall risk protocols were progressively increased to the point he was placed near a nurse’s station during waking hours and disagreements as to whether other fall protection should have been provided did not rise to the level of willful conduct evincing a high degree of moral culpability. Muhlstock v Hebrew Home for the Aged at Riverdale ✉ |
| Bar’s motion for summary judgment dismissing plaintiff’s Amended Complaint which added dramshop claim against bar, based on defendant-driver’s testimony he drank at the bar before the accident, denied as defendant-driver’s subsequent testimony years after the accident that he was not in the bar that night and had never been in the bar before failed to conclusively show they did not serve the defendant-driver but only raised questions of fact where his earlier testimony gave significant details of the bar and the bartender. Simmons v Vecchiano ✉ |
| Third-party contractor hired by hospital to train and manage housekeeping staff granted summary judgment dismissing nursing technician’s claim for injuries at the hospital on 2-separate dates on proof it did not launch an instrumentality of harm and its agreement did not entirely displace the hospital’s duty to maintain the premises under Espinal. Plaintiff was not a third-party beneficiary to the agreement where she did not receive an immediate benefit from the contract which did not confer a direct benefit on her. Rivera v Sodexo, Inc. ✉ |
| Pedestrian on sidewalk who was struck by defendant’s vehicle as it was backing out of driveway granted summary judgment for negligence per se violation of VTL § 1211(a) for backing up when it was unsafe to do so and dismissal of comparative default defense. Plaintiff granted summary judgment establishing serious injury on his doctor’s affirmation that he sustained multiple fractures and wasn’t able to work or perform usual daily activities for 6-months after the accident. Doctor’s sworn opinion was competent and admissible even though he relied on unsworn x-ray reports. The motion was not premature. Wei Ping Zheng v Sun & Son, Inc. ✉ |
| NYCTA’s motion to reargue its motion for summary judgment providently granted and plaintiff’s claim for sudden stop of bus dismissed where the court overlooked the emergency doctrine shown by bus-driver’s testimony that a vehicle suddenly cut in front of the bus in the bus lane, causing him to have to stop. Plaintiff failed to raise an issue in opposition. Kinard v New York City Tr. Auth. ✉ |
| Plaintiff granted summary judgment on defendant-driver’s testimony his tractor-trailer rear-ended the vehicle plaintiff was in and comparative fault defense dismissed as plaintiff was an innocent passenger. Defendants failed to raise a nonnegligent explanation for the rear-end collision. Holton v New York City Tr. Auth. ✉ |
| IF YOU MUST READ (2 summaries) | |||
| MUST READS | NOTEWORTHY | ||
| Plaintiff’s motion to amend Complaint to add fraud and GBL §349 deceptive business practices causes of action for allowing an unsupervised PA to treat plaintiff’s skin lesions that turned out to be cancerous denied. The §349 claim was barred by the 3-year statute of limitations and did not relate back to the original Complaint which did not have consumer-oriented allegations. It also failed to allege how statements on the website were misleading and caused plaintiff’s injuries. Fraud claims were duplicative of malpractice claims and defendants would be prejudiced by 5-year delay in asserting the claim. Motion to renew denied as new documents would not have changed the determination. Heisler v Advanced Dermatology of N.Y. P.C. ✉ |
| Passenger in vehicle rear-ended by defendants’ vehicle denied summary judgment where he only submitted the pleadings and an affirmation from his attorney to support the motion. Swain v Rahman ✉ |