December 12, 2023 | Vol. 395

(4 summaries)

Child Victims Act   Governmental Function   Governmental Immunity   Special Duty   NYC  

First Department
Addressing the need to prove a special duty in the context of a Child Victims Act case involving a municipality’s foster care management, the First Department found the CVA did not alter or abrogate the need to show a special duty owned to the plaintiff enunciated in McLean v. City of New York, 12 NY3d 194 (2009) for ministerial acts while performing a governmental function. NYC granted summary judgment where plaintiff agreed Social Services Law did not authorize a private cause of action for placement of foster care either directly or impliedly. Q.G. v City of New York    

Wrongful Death   Malpractice   Emotional Harm   Motion to Dismiss   Notice of Claim   Untimely   Prejudice   NYC  

Second Department
NYC denied dismissal of wrongful death claim where issues of fact remained of whether second Notice of Claim for wrongful death, which must be served within 90-days of appointment of administrator, was timely served and plaintiff’s cross-motion to amend the Notice of Claim to include an attorney’s verification granted where there was no prejudice to defendants.

NYC’s motion to dismiss malpractice and intentional infliction of emotional harm claims granted where there was no proof of plaintiff’s claim of attempted personal service 3-days before expiration of the 90-day period, defendants received the Notice of Claim by mail 10-days later, and rejected it within 30-days of receipt as required by GML §50-e(3)(c). To the extent plaintiff’s cross-motion could be for leave to serve the late Notice of Claim, the Court lacked authority to grant leave where the motion was made beyond the statute of limitations. Watts v Jamaica Hosp. Med. Ctr.    

Premises Liab   Prior Written Notice  

Second Department
Lower court improvidently declined to consider whether concrete island in Family Court parking lot was covered by prior written notice statute which GML §50-e(4) limits to ‘streets, highways, bridges, culverts, sidewalks and crosswalks’ in denying county’s motion for summary judgment. In the interest of judicial economy, the Court found it was covered as a functional equivalent of a sidewalk and granted county’s motion on affidavit of person who searched county attorney’s records and found no prior written notice for 6-years prior to plaintiff’s accident. The county was not required to show it did not create the condition for summary judgment. Sanchez v County of Nassau    

Sanctions   Motion to Dismiss   Discovery   Willful/Contumacious   Appealable Order   NYC  

First Department
Lower court order granting $18,671.45 sanctions against NYC to cover costs of obtaining discovery and appeal on that issue reversed where lower court failed to specify the statute or court rule it relied on and the record did not show NYC willfully failed to comply with any discovery orders. If the sanction was premised on NYC delaying its motion to dismiss for failure to state a cause of action, which was granted, a CPLR §3211(7) motion may be made at any time.

The order was nonappealable as a matter of right where it was not decided on a notice of motion, but the Court deemed it a motion for leave to appeal which it granted. Junmei Zhang v City of New York    

Comment: The decision upholding the disclosure was reported in Vol. 283.
(15 summaries)

Malpractice   Amend Complaint   Statute of Limitations  

Second Department
Plaintiff’s motion to amend the Complaint to substitute the non-party named oncologist in place of John Doe, MD, identified as the treating oncologist on a specific date in the clinic where decedent was treated for lung cancer, brought 4-years after decedent’s death, providently granted under the relation back doctrine allowing addition of a party after the statute of limitations where the claim arose out of the same conduct, the additional party was united in interest with the original defendants, and the oncologist knew or should have known he would have been named absent mistake. Cioti v Byrd    

Premises Liab   Discovery   CPLR § 3126   Sanctions   Preclusion   Willful/Contumacious  

Second Department
Lower court improvidently granted sanction of precluding defendants from contesting notice of broken marble step plaintiff fell on for failure to disclose name or contact information of witness who replaced the building super on the day of the accident and reported the broken step but did not know what caused it to break where defendants did not have the contact information but agreed to try to get it from the original superintendent who was no longer employed by defendants and who refused to comply with plaintiff’s subpoena. Lower court correctly determined plaintiff failed to make a clear showing that defendant’s conduct was willful/contumacious, necessary for CPLR §3126 sanctions, but incorrectly determined that the witness was essential where it was unclear if he had witnessed the accident or the broken step. Decius v 1362 Ocean, LLC    

Premises Liab   Respondeat Superior   Espinal   Indemnity  

First Department
Company that provided engineers for hotel failed to meet burden of showing its engineers were special employees of the hotel, even though the hotel’s engineering director testified “he trained, scheduled, and had day-to-day control of the engineers without any input from [moving defendant],” where it failed to address that they listed the engineers as their general employees, could terminate them, and the service agreement required it to pay the employees, guarantee the quality of their work, and provide WC insurance and liability insurance for the hotel.

Issues of fact remained on whether moving-defendant’s engineers launched an instrumentality of harm under Espinal and it did not dispute that its engineers regularly responded to calls of clogged drains in the restaurant where plaintiff was injured. Moving-defendant denied dismissal of cross-claims for contractual indemnification where it provided guarantees of quality assurance and indemnification in the service agreement. Axelrod v 44 Lexington Assoc., LLC    

Malpractice   Vicarious Liab   Respondeat Superior   Accepted Practice   Causation   Experts  

Second Department
Medical facility met burden for summary judgment dismissing claim it was vicariously liable for malpractice of ophthalmologist who performed surgery on showing ophthalmologist was a private attending chosen by plaintiff but denied summary judgment as questions remained of whether it’s employees committed an independent act that was a departure from accepted practice and a cause of plaintiff’s injuries. Ophthalmologist met burden for summary judgment on expert opinion of no departure from accepted practice or causation but plaintiff raised an issue in opposition by conflicting expert opinion. Khutoryanskaya v Laser & Microsurgery, P.C.    

Assault   Duty   Control   Foreseeability  

First Department
Spa granted summary judgment dismissing claim of female patron who was sexually assaulted by another patron who pretended to be a masseuse on proof the assault was not “reasonably predictable based on the prior occurrence of the same or similar criminal activity at a location sufficiently proximate to the subject location.” Prior fight between drunk male patrons did not raise an issue as it was totally unrelated to plaintiff’s assault. Memeh v Spa 88, LLC    

Labor Law §240   Labor Law §241   Ladder   Industrial Code   Waiver   Raised For First Time  

Second Department
Plaintiff met burden for summary judgment on Labor Law §240(1) by his testimony that temporary ladder installed between floors moved as he started to descend it causing him to fall but defendants raised an issue in opposition by a conflicting version of how the accident occurred.

Defendants granted summary judgment dismissing Labor Law §241(6) claims based on industrial code §23-1.21(b)(4)(ii)(secure footings) on photographs showing the ladder was securely affixed to the non-slippery floor and plaintiff waived reliance on this provision without addressing it in opposition to the motion below. Rivas v Purvis Holdings, LLC    

Labor Law §240   Labor Law §241   Labor Law §200   Gravity Risk   Appealable Order   Waiver  

First Department
Lower court erred in searching the record and granting plaintiff summary judgment on Labor Law §240(1) against consulting engineer where there was conflicting evidence on whether plaintiff was in an excavation or at street level when the water gate key he was using popped off, causing him to lose his balance but not fall, leaving questions of whether plaintiff’s work was covered under §240. Defendant denied summary judgment on Labor Law §241(6) for question of whether the work was covered by that section.

The Court did not consider plaintiff’s challenge to dismissal of plaintiff’s Labor Law §200 claim where he did not perfect his appeal from that portion of the order. Knight v Amman & Whitney, Inc.    

Construction Liab.   Duty   Independant Contractor   Notice   Control  

First Department
Lower court correctly interpreted New Jersey law denying summary judgment to GC, finding plaintiff’s claim was that the GC owed him directly “a duty to exercise ordinary care to render reasonably safe the areas in which [it] might [have] reasonably expect[ed] [plaintiff] to be working” and questions remained of whether the GC had constructive notice of the exposed uncovered electrical box where he was electrocuted, whether it violated the GC’s safety plan or OSHA regulations which are probative but not dispositive, and whether it exercised control over the work or general supervisory control over the worksite. A party is not responsible for an independent contractor’s negligence in NJ absent 3-conditions. Bradby v Structure Tone, LLC    

Premises Liab   Out of Possession   Causation   Speculation  

Second Department
Building owner denied summary judgment on claim it was an out-of-possession owner with no duty to maintain the ramp leading to the vestibule where plaintiff slipped and fell when the wheel of her cart lifted a rug exposing the wet floor beneath as the lease required it to maintain all exterior areas including the parking area and defendant testified the ramp was part of the parking lot. Defendant failed to show the negligent maintenance of the ramp was not a cause of plaintiff’s fall and her claim the momentum necessary to push the cart up the steep ramp was a cause of her accident was not pure speculation. Thepenier v BGTWO Realty, LLC    

Premises Liab   Out of Possession   Espinal   Admissibility  

Second Department
Building management company failed to show owner was out-of-possession of loading dock where delivery driver’s foot fell in gap between truck and loading dock as questions remained of whether the loading dock as a “structure” under the lease and whether owner and management company had a duty to maintain the area. Management company also failed to eliminate issues on whether it wholly displaced the owner’s and tenant’s duties to maintain the area under Espinal. Lease agreement properly authenticated by property manager’s testimony. Young v Crescent Coffee, Inc.    

Malpractice   Accepted Practice   Experts   Speculation  

First Department
Defendants granted summary judgment on their experts’ opinions they did not depart from accepted practice and plaintiff’s experts failed to raise issues in opposition on opinions that defendants failed to perform a proper examination based on the assumption that defendants intentionally testified incorrectly regarding the medical records as the opinions were not supported by the record, including their claim defendant should have ordered an MRI based on plaintiff falling on an outstretched hand with a popping noise which was not contained in any medical records. Pittelli v MacGillivray    

Labor Law §241   Industrial Code  

First Department
Plaintiff’s cross-motion for summary judgment on Labor Law §241(6) denied where he failed to show the slippery substance in the passageway that caused him to fall was not associated his or his coworkers’ work under industrial code §23-1.7(d)(slippery substances). Orellana v 386 Park S. LLC    

MVA   Rear End   Nonnegligent Explanation   Comparative Fault   VTL §1104   Police   NYC  

Second Department
Plaintiff met burden for summary judgment on his affidavit that his vehicle was rear-ended by the police vehicle but defendants raised an issue of nonnegligent explanation on their driver’s affidavit that plaintiff stopped short in the middle of the street without pedestrian or vehicle traffic ahead or another reason to stop. Questions also remained of whether defendants were entitled to the reckless standard under VTL §1104 and whether their driver acted recklessly. Plaintiff’s affidavit had insufficient details to establish he was not comparatively at fault. Bhattarai v Louie    

MVA   Bicycle   Turning Vehicle  

Second Department
Plaintiff denied summary judgment where infant-bicyclist’s testified he turned from sidewalk into crosswalk with a green light but failed to show negligence per se for violation of VTL §1234(c) as he did not testify he stopped before entering the intersection as required under §1234 and defendants’ driver testified she saw the infant-plaintiff 10′-15′ from the crosswalk after the accident. Hart v Chiang    

Premises Liab   Sidewalk   Open/Obvious   Inherently Dangerous   Comparative Fault  

Second Department
Although hose running across sidewalk was open/obvious, testimony that the abutting landowner’s employee tried to keep the hose clear of the sidewalk and other evidence left questions of whether the condition was inherently dangerous. Proof the condition is open/obvious alone goes solely to issue of comparative fault. Anderson v East Hills Subaru, Inc.    

(1 summaries)

Malpractice   Accepted Practice   Causation   Experts   Speculation  

Second Department
Defendants granted summary judgment on medical records and expert opinions showing they did not depart from accepted practice and were not a cause of plaintiff’s injuries. Plaintiff failed to raise issues in opposition where his medical experts’ opinions on accepted practice and causation were speculative. The Court does not give the details of the proofs. Torres v Yakobov    

About Matt McMahon

Civil trials and appeals since 1984. Retired partner McMahon | McCarthy.
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