December 11, 2018 | Vol. 136

MUST READS
(8 summaries)
NOTEWORTHY IF YOU MUST READ

Med Mal   Motion to Dismiss   CPLR § 3101(d)   Vacate Default   Reasonable Excuse   Meritorious Action   Statute of Limitations   CPLR §205  

Second Deptartment

After having once been unable to proceed with trial because of unavailability of experts, plaintiff again was unable to proceed because of unavailability of her expert witness on issue of malpractice and sought to substitute different previously undisclosed expert. Lower court providently refused to allow the substitution because plaintiff failed to show good cause for not being able to disclose prior to trial under CPLR §3101(d) and providently dismissed action for failing to proceed under 22 NYCRR §202.27. Dismissal should have been without prejudice instead of with prejudice since dismissal for failure to prosecute is not on the merits. Geffner v Mercy Med. Ctr.

Comment: In a separate decision, plaintiff’s motion to vacate denied for failing to show reasonable excuse where she provided insufficient details of expert’s purported lack of availability and her conclusory claim that her attorney was engaged was insufficient where attorney made no such claim at trial. Geffner v Mercy Med. Ctr. Not discussed was the option to commence a new action if the statute of limitations had not already run since the dismissal was without prejudice. While CPLR §205(a) allows a new suit within 6-months of dismissal even if statute of limitations has run, that extension doesn’t apply where dismissal was for failure to prosecute or lack of personal jurisdiction.


MVA   Vacate Jud   Admissibility   Frye  

Second Deptartment

Second Department upheld lower court’s decision to deny plaintiff’s motion to preclude defendants’ biomechanical engineer or conduct a Frye hearing before allowing the evidence based on lower court’s recent ruling permitting the same witness to testify in another case citing the rule that court can rely on “previous rulings in other court proceedings as an aid in determining the admissibility of proffered testimony.” The Second Department found a proper foundation for the expert’s opinion in this case. Shah v Rahman

Comment: This is like granting a res judicata or collateral estoppel effect to a party who had not had an opportunity to fairly litigate the issue in the prior case.


Premises Liab   Res Ipsa Loquitor   Control  

First

Defendant established it had no affirmative duty to conduct reasonable inspections of window installation that fell on plaintiff when he closed the window, but plaintiff raised issue on res ipsa loquitor. Windows do not normally fall out absent negligence and plaintiff was not required to prove defendant “‘had sole physical access’ to the window” to establish exclusive control. Wilkins v West Harlem Group Assistance, Inc.


MVA   Pedestrian   VTL §1104  

Second Deptartment

Police officer’s speeding while engaged in emergency was protected activity under VTL §1104 requiring the reckless standard. Plaintiff failed to raise an issue under reckless standard where officer had green light, plaintiff was in the middle of the street, in the crosswalk, crossing against the light, and officer tried to break in order to avoid hitting plaintiff. Chesney v City of Yonkers


Labor Law §240   Labor Law §241   Labor Law §200   Agent   Control  

First

Property manager was statutory agent for property owner and general contractor for purposes of Labor Law §§241(6) & 200 but not §240(1) where its employees testified that they oversaw general operations in the building giving them the duty to keep the premises safe including areas of hardware upgrades that they were involved in. They were unaware of and did not control plaintiff’s internet installation work and plaintiff testified that he controlled his own work and that no one from the property manager supervised him, entitling property manager to summary judgment on Labor Law §240(1). Burgund v Cushman & Wakefield, Inc.


Premises Liab   Slip/Trip   Sidewalk   Create Condition   Notice   Last Inspection  

First

Time Warner denied summary judgment where plaintiff tripped on sidewalk defect more than 12″ from box cover where evidence showed that it did not regularly inspect the box cover as required by 34 RCNY 2-07(b). While it was only required to maintain sidewalk 12″ from box cover, box cover was a special use of the sidewalk carrying a duty to not create a dangerous condition, even if it did not install the box cover. Defendants’ expert did not opine on whether box cover created the dangerous condition. Robles v Time Warner Cable Inc.


90 Day Notice   Discovery   Reasonable Excuse   Meritorious Action  

Second Deptartment

Pointing out that a court is never required but only permitted to dismiss an action for failure to prosecute, the Second Department upheld lower court’s exercise of discretion in denying motion to dismiss for failure to prosecute under CPLR §3216. Because plaintiff failed to timely file Note of Issue or move to vacate or extend, he was required to show a reasonable excuse and meritorious action both of which he did which, along with an absence of a persistent pattern of neglect or delay or an intent to abandon, supported the lower court’s exercise of discretion in denying the motion. Angamarca v 47-51 Bridge St. Prop., LLC


Negligent Hiring   CPLR § 3126   Spoliation   Strike Answer   Negative Inference  

Second Deptartment

Plaintiff proved that worker’s employment file was relevant given disclosure that he had fractured plaintiffs’ blind and non-verbal ward while trying to stand him up and evidence of 2- employees that worker had been fired shortly after incident for failing a drug test. Defendant’s negligent destruction of the relevant employment file which did not deprive plaintiff of the ability to pursue the case required lesser sanction of negative inference rather than striking Answer. Squillacioti v Independent Group Home Living Program, Inc.

NOTEWORTHY
(16 summaries)
MUST READS IF YOU MUST READ

Premises Liab   GML §205-e   Building Code   Unknown Cause   Causation   Dangerous Condition  

Second Deptartment

Defendants who asked police to patrol their property while they were away denied summary judgment where police officer fell while descending exterior stairs lit only by officer’s flashlight. Plaintiff’s description of substance as a slimy, moss-like or ice-like was sufficient to identify cause of his fall and was not an unknown cause as claimed by the defendants. Defendants also failed to show lack of constructive notice in that there was no dangerous condition.

Property Maintenance Code of New York State provisions requiring all exterior stairs to be kept safe and stairs over 4 risers to have handrails were sufficient predicates under GML §205-e. Plaintiff failed to meet his burden for summary judgment. Stancarone v Sullivan


MVA   Set Aside Verdict   Directed Verdict  

Second Deptartment

Plaintiff’s motion to set aside verdict and for judgment as a matter of law and as against weight of the evidence denied where there was sufficient evidence for jury to believe that plaintiff sideswiped defendants’ truck while attempting to make unsafe lane change. There was a valid line of reasoning for the jury’s verdict which could be reached on a fair interpretation of the evidence. Cetoute v Sidney


Labor Law §240   Safety Devices   Sole Cause  

First

Fire escape used by worker to access different elevated levels was a safety device under Labor Law §240(1) raising a question of fact in opposition to contractor’s motion for summary judgment. Defendant not entitled to summary judgment on sole cause absent proof that there was another available ladder plaintiff unreasonably chose not to use. Plaintiff’s motion for summary judgment on §240(1) denied on issue of whether he was permitted to work at site on day of accident. Goya v Longwood Hous. Dev. Fund43282/16E Co., Inc.


Labor Law §240   Safety Devices   Sole Cause  

First

Plaintiff granted summary judgment on proof that wooden structure he and coworker were erecting on roof for asbestos abatement work collapsed due to inadequate bracing. Gusty wind could not be sole proximate cause of injury since safety devices must be provided to prevent against foreseeable risks. Uvidia v Cardinal Spellman High Sch.


Med Mal   Motion to Dismiss   Statute of Limitations   Foreign Object  

Second Deptartment

Malpractice claim against hospital dismissed on statute of limitations where ureteral stent/catheter plaintiff claimed was left in him in 1993 and not discovered until 2012 was a device intended to be left in the body for up to 6-months and, therefore, not a “foreign object” that would extend the statute of limitations. Livsey v Nyack Hosp.


Premises Liab   Slip/Trip   Open/Obvious   Dangerous Condition  

Second Deptartment

Store failed to meet initial burden of showing that small table plaintiff-customer tripped on was open/obvious and not dangerous under the circumstances based in part on defendants’ own evidence of lighting and presence of other patrons in the area. Elfassi v Hollister Co.


Premises Liab   Construction Liab.   Inherently Dangerous   Control   Notice   Espinal  

First

Building owner granted summary judgment on proof that stripping of stucco being conducted by independent contractor was not an inherently dangerous activity, it did not have notice of any dangerous condition, and did not control the independent contractor’s work. Contractor could be liable under Espinal exception for launching instrumentality of harm. Joshua R. v 101 Delancey Realty, LLC


Premises Liab   Slip/Trip   Wet Floor  

Second Deptartment

Drug company’s summary judgment motion denied where it failed to show that plaintiff had been hired to fix the condition causing water to leak from manufacturing totes and there were conflicting stories about whether the floor was wet when plaintiff-security guard fell and whether the totes would be filled with water. Plaintiff similarly denied summary judgment based on conflicting stories. Reaves v Novartis Pharms. Corp.


MVA   Rear End   Nonnegligent Explanation  

Second Deptartment

Defendant’s claim that plaintiff stopped suddenly in the middle-of-the-road without explanation as to how fast defendant was driving and how much distance he kept from plaintiff’s car failed to provide nonnegligent explanation necessary to raise an issue of fact in opposition to plaintiff’s affidavit that he was stopped for 45 seconds before being struck in the rear. Auguste v Jeter


Premises Liab   Slip/Trip   Notice   Last Inspection   NYC  

First

NYCHA’s motion for summary judgment denied where care taker testified that cleaning schedule was not consistently followed and supervisor contradicted caretaker’s testimony, failing to show that NYCHA did not have constructive notice of dangerous condition. Person v New York City Hous. Auth.


MVA   Turning Vehicle   Sole Cause  

Second Deptartment

Driver of car owned by NYC, and NYC, denied summary judgment where they failed to eliminate questions of fact as to whether their driver was partially at fault for not avoiding the collision with the car plaintiff was a passenger in, and speeding, despite fact that left turning car passenger was in was for failed to yield the right-of-way. NYC defendants failed to show other car was sole cause of the accident. Alatsas v Sacchetti


MVA   Comparative Fault  

Second Deptartment

Defendant-driver’s testimony that plaintiff struck his right fender right after he pulled out from a parking spot raised a question of fact in opposition to plaintiff’s version that defendants’ car went through a stop sign and failed to yield the right-of-way. Summary judgment for plaintiff denied. Kaziu v Human Care Servs. for Families & Children, Inc.


Vacate Default   Reasonable Excuse   Meritorious Action   Prejudice  

First

Lower court providently accepted law office failure as a reasonable excuse to vacate default because it was an isolated and unintentional incident without prejudice to defendants. Verified BP and deposition established meritorious action. Hamilton v National Amusements, Inc.


Serious Injury   ROM   Expert Aff   Speculation  

First

Defendants made out prima facie entitlement to summary judgment on serious injury by affirmed expert reports showing no objective proof of injury, including radiologist’s report of no injury on MRI, no complaints at emergency room, normal ROM in medical records and on examination, and plaintiff’s stopping treatment after only a few months. Plaintiff’s expert’s affirmation after 4-years of no treatment was speculative. Pastora L. v Diallo


Discovery   Untimely  

Second Deptartment

Where plaintiff filed a motion for summary judgment less than 3-weeks after defendant answered, lower court providently denied motion without prejudice to permit defendant to conduct discovery. Amyotte v Armic Serv. Corp.


Malicious Prosecution   Probable Cause  

Second Deptartment

Town granted summary judgment on plaintiff’s malicious prosecution claim where it showed that probable cause to believe that plaintiff’s deck was built in violation of codes requiring a permit. Hoffman v Town of Southampton

IF YOU MUST READ
(1 summaries)
MUST READS NOTEWORTHY

Serious Injury   BP  

Second Deptartment

Plaintiff failed to raise issues of fact in opposition to defendant’s showing of entitlement to summary judgment on serious injury for significant and permanent consequential categories and plaintiff’s deposition testimony that he only missed two weeks of work on the 90/180-day category. The court does not get the details of the proofs. Amato v Gorecik

About Matt McMahon

Civil trials and appeals since 1984
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