December 13, 2022 | Vol. 343

(4 summaries)

Negligent Supervision   Governmental Function   Special Duty  

Second Department
Teacher who did not report student’s Instagram suicide threat to school psychologist that another student told her about after school hours until after student committed suicide the next day, school district, superintendent, and principal granted summary judgment as they owed no duty to student to prevent the suicide once the student was released from their control. Schools have a “special duty” to each student while in their custody which can extend beyond direct custody/premises in rare instances where “connected to or flow from activities that occur on school premises,” or released into an unsafe environment. One student bullying decedent on Instagram the previous day was not related to school activities and Education Law §12 (prohibiting harassment/discrimination) did not create a private right of action. Hauburger v McMane    

Comment: Student who reported suicide threat the night before later told teacher the issue was resolved.

Labor Law §240   Ladder   Causation  

First Department
Plaintiff granted summary judgment under Labor Law §240(1) on his testimony that 6’ A-Frame ladder suddenly moved, causing him to fall. Plaintiff’s finding ladder in good working order on inspection before using it irrelevant as was absence of corroborating witnesses.

Supervisor’s log entry stating accident happened on stairs and his testimony that plaintiff never said he fell from the ladder did not raise a question where he lacked personal knowledge of the accident and recorded plaintiff’s statement he fell from the ladder on the incident report immediately after the accident. Delay of 2-weeks in seeking medical attention irrelevant where plaintiff reported the incident immediately. Defense expert’s opinion might go to causation, but not to §240 liability. Pinzon v Royal Charter Props., Inc.    

Premises Liab   Arbitration   Hearing  

Second Department
Lower court improvidently granted defendants’ motion to compel arbitration of negligence claim for resident with delirium superimposed on dementia who was pushed down stairs by another resident at nursing home and died 6-days later where son was given signature pages to sign after father was admitted and only given a blank copy of the agreement which contained the arbitration clause after signing, as his representation he had a power of attorney, his status as patient’s son, and his willingness to be the responsible party did not prove he had authority to bind his father to the arbitration agreement. Case remanded for hearing on whether son had authority to bind father to agreement. Wolf v Hollis Operating Co., LLC    

Premises Liab   Wet Floor   Snow/Ice   Notice   Last Inspection   Building Code   Experts  

First Department
Building owner failed to show entitlement to summary judgment where it was aware 20-inspectors would be inspecting HVAC on step-back roof that was 13.5” higher than penthouse floor they entered from, that it recently snowed and the inspectors would track back water from the wet gravel roof onto a metal step down to the penthouse floor, and they offered no evidence of when the step was last cleaned/inspected. Duty to take preventative measure arises from knowledge that water may be tracked into a specific area.

Court did not need to consider plaintiffs’ opposition but conflicting expert opinions on applicability of building code for height differential between floor and roof would have raised issues of fact. Castellanos v 57-115 Assoc., L.P.    

(14 summaries)

Vacate Default   Personal Juridiction   Service   Reasonable Excuse   Meritorious Defense   Hearsay  

First Department
Third-party-defendant’s motion to vacate default in answering denied as claim of improper service on neighbor not authorized to accept service did not excuse failure to answer effective service on Secretary of State. Court did not need to look at issue of meritorious defense but, in any event, manager’s affidavit contained only hearsay allegations. Perez v 1790-1792 Third Ave. LLC    

MVA   Bus   Set Aside Verdict   Directed Verdict   Turning Vehicle   Survelliance Video   Pain/Suffering   Materially Deviates  

Second Department
NYCTA’s motion to set aside verdict finding bus driver negligent and cause of accident and plaintiff negligent but not a cause and for judgment as a matter of law denied as there was a valid line of reasoning for jury to reach the verdict, but set aside as against the weight of evidence where bus driver and driver of bus behind her testified bus had green light when turning confirmed by bus video and plaintiff had a red light as evidence preponderated so heavily in defendants’ favor and against plaintiff.

Portion of $300,000/$840,000 past/future pain/suffering award set aside unless plaintiff stipulated to reduce future pain/suffering to $500,000 in event of liability verdict where plaintiff sustained Lisfranc fracture/dislocation of midfoot requiring surgery, fractures of 2-metatarsals, 1-rib, sternum, clavicle, and L1 vertebrae with resultant pain, need for daily home health aide, inability to resume previous physical activities, and progressive difficulty walking likely requiring an additional surgery. Blair v Coleman    

Malpractice   Accepted Practice   Causation   Experts   Speculation   Consolidation   Respondeat Superior  

Second Department
Plaintiffs’ expert raised issues on departure and causation by opinion that injured-plaintiff’s primary gynecologist was in charge of hysterectomy even though she only worked on right side and left ureter was injured/severed during the operation, and the nonparty assisting doctor who worked on the left-side departed before closing, by failing to evaluate the course of the ureters and visualize them before transection, especially where the patient’s cervix was dilated and there was bleeding on the left side, and did not take steps to reduce the risk of injury. Plaintiffs’ expert’s opinions were not speculative or conclusory where based on CT scans and medical records of the hysterectomy and subsequent repair and he addressed the opinions of the defense expert. Failure to review all pleadings and evidence goes to weight not admissibility. Plaintiffs failed to raise issues on preoperative and postoperative care and those claims were dismissed.

Hospital and healthcare system granted summary judgment where their employee assisted in surgery only after the nonparty private physician who assisted left and participated in closing after the surgery as a hospital is not vicariously liable where employee merely follows orders of a private attending unless those orders are so clearly contraindicated that they should not be followed. Bhuiyan v Germain    

Malpractice   Accepted Practice   Experts  

Second Department
OB/GYN granted summary judgment on expert’s opinion he complied with accepted practice by following radiologist’s recommendation for further testing in 6-12 months after a “probably benign” mammogram and plaintiffs’ expert failed to raise an issue with opinion that follow-up testing should have been conducted in no more than 6-months due to patient’s family history of colon cancer without stating the basis of that opinion or that it was a standard of care. Paglinawan v Ing-Yann Jeng    

Malpractice   Statute of Limitations  

Second Department
Defendants granted summary judgment dismissing causes of action that alleged their employee gave plaintiff an allergy shot intended for another patient as time barred by 2.5-year malpractice statute of limitations as giving injection was medical treatment or bore a substantial relationship to rendition of medical treatment. Rivera v Advanced Allergy & Asthma Assessment & Diagnostics, P.C.    

Labor Law §240   Ladder   Conclusory   Speculation   Premature Motion  

First Department
Painter granted summary judgment where 6’-8’ A-Frame ladder moved, causing him to fall, because it was propped against wall due to boxes in room that made it impossible to open ladder. Contractor’s affidavit claiming there was sufficient room to open ladder was conclusory and speculative where he admitted presence of boxes, did not refute plaintiff’s testimony he was instructed not to move them, and did not give any details of how ladder could have been opened.

Defendants’ claim motion was premature without deposition of foreman rejected where foreman was not on site on day of accident, they never noticed foreman’s EBT, and foreman was never mentioned in emails requesting EBT of a representative. Castillo v TRM Contr. 626, LLC    

Labor Law §240   Labor Law §241   Ladder   Question of Fact   Raised For First Time  

First Department
Plaintiff denied summary judgment on Labor Law §§240(1) and 241(1) for fall from unsecured ladder where foreman’s affidavit that accident described by plaintiff did not occur and plaintiff testified the foreman directed him to climb the ladder, witnessed the accident, and assisted him after the fall. Plaintiff’s claim WCB determinations collaterally estopped defendants from denying accident occurred not considered where raised for first time on appeal. Singh v New York City Hous. Auth.    

Labor Law §240   Labor Law §241   Labor Law §200   Industrial Code   Open/Obvious   Inherently Dangerous  

First Department
Building owner’s motion for summary judgment dismissing Labor Law §200 and negligence claims denied where questions remained on whether boards covering boiler room entranceway that inured plaintiff when his neck struck them as he stood up were open/obvious and not inherently dangerous. Labor Law §240(1) claims dismissed as accident did not involve an elevation risk.

Lower court providently denied plaintiff’s motion for summary judgment on Labor Law §241(6) and declined to consider building owner’s second motion for summary judgment but on searching record Court dismissed §241 claim based on industrial code §23-1.7(e)(1)(sharp projections) as boards were not sharp. Widdecombe v Consolidated Edison Co. of N.Y., Inc.    

Premises Liab   Open/Obvious   Inherently Dangerous  

Second Department
Fitness center failed to meet burden for summary judgment with claim that single-step tiled riser plaintiff slipped on while entering shower was open/obvious and not inherently dangerous under surrounding circumstances, including plaintiff’s claim of poor lighting. Lore v Fitness Intl., LLC    

MVA   Bus   Serious Injury   ROM   Comparative Fault   Experts  

First Department
Orthopedic surgeon’s report finding no limited ROM or accident related injury to plaintiff’s hand from bus accident made out MTA’s entitlement to summary judgment on serious injury but reports of treating and nother doctor opining injury required surgery and resulted in meaningful limitations 3-years after accident raised issues on serious injury.

Plaintiff, innocent passenger on bus when it struck taxi, granted summary judgment dismissing comparative fault defense but denied summary judgment on liability where bus-driver testified taxi shot in front of him to make a U-turn which was supported by 2-bus passengers. MTA denied summary judgment on conflicting versions of accident. Hobbs v MTA Bus Co.    

MVA   Rear End   Nonnegligent Explanation   Comparative Fault  

First Department
Access-a-ride driver granted summary judgment on liability and comparative fault where defendants’ vehicle rear ended her van. Defendant-driver’s testimony he hit brakes when he saw plaintiff’s brake lights go on but couldn’t stop was not a nonnegligent explanation. Unclear hospital record entry contradicting plaintiff’s testimony insufficient to raise comparative fault issue where defendant-driver could not remember if any of the vehicles changed lanes. Goodman v IEH Auto Parts, LLC    

Arbitration   SUM   Appealable Order  

Second Department
Injured party’s appeal from order denying his motion to renew/reargue order granting permanent stay of SUM claim after framed issue hearing dismissed where record did not include transcript of framed issue hearing or most papers submitted on petition as there was an inadequate record for the Court to decide the appeal. Matter of Progressive Specialty Ins. Co. v Seng Jin Jang    

Premises Liab   Assault   Control   Intervening Cause   Foreseeability   GML §205-a-e   Police  

Second Department
Starbucks granted summary judgment dismissing police officer’s case for his shoulder injury when struggling to handcuff patron after responding to 911 call that patron was sleeping in store, refused to leave, and yelled at a customer where patron appeared calm and cooperative for 15-minutes with officers before yelling/threatening/struggling as assault was unexpected and unforeseeable. Defendant also showed it did not violate statues plaintiff alleged on separate GML §205-e claim. Wall v Starbucks Corp.    

Malpractice   Motion to Dismiss   Statute of Limitations   Amend Complaint  

Second Department
Law firm granted summary judgment dismissing pro se plaintiff’s, administrator of murdered son, legal malpractice claim on statute of limitations where action was commenced more than 4-years after law firm complied with all conditions of order granting its motion to withdraw. Defendant granted summary judgment of fraud claim where plaintiff did not specifically plead facts of material misrepresentations, defendant’s knowledge of falsity, or justifiable reliance and plaintiff’s cross-motion to amend Complaint denied where he did not attach proposed amended Complaint. Davis v Siben & Siben, LLC    

Comment: In related decision on wrongful death case, pro se plaintiff’s motion to stay action pending determination of federal action against County and NYS Troopers for unconstitutional retaliation denied as that action had no relation to the wrongful death action. Davis v Commack Hotel, LLC. The Court previously upheld summary judgment for pro se plaintiff on the wrongful death action, reported in Vol. 166.
(2 summaries)

Motion to Dismiss   Prior Written Notice   Create Condition   Open/Obvious   Inherently Dangerous  

Second Department
Town did not receive required prior written notice of blacktop defect between sidewalk and roadway but plaintiff raised issue on creation of dangerous condition exception. Town failed to show as a matter of law that defect was open/obvious and not inherently dangerous. The Court does not give the details of the proofs. Timmons v Town of Babylon    

Premises Liab   Unknown Cause  

Second Department
Defendant denied summary judgment where it failed to show plaintiff could not identify the cause of his fall in JFK parking lot, taking the evidence in the light most favorable to plaintiff. The Court does not give the details of the proofs. Jean-Joseph v Port Auth. of N.Y. & N.J.    

About Matt McMahon

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