December 14, 2021 | Vol. 291

(5 summaries)

Child Victims Act   Discovery  

First Department
Reviewing the confidentiality/sharing order from the CVA Regional Part covering thousands of Child Victims Act cases in NYC, the First Department made minor changes by adding ‘personal information, including educational and employment records’ as an additional category defendants can designate as confidential, limited those whom plaintiffs can share the provided information with from parties to claims involving one or more of the same parties or one or more of the same abusers to ‘involving the same alleged abuser’ after at least 20-days notice to the producer of the impending disclosure so the producer can move to stop disclosure. The Court maintained the burden of bringing a motion to contest confidentiality on the document producer, noting that to do otherwise would encourage producers to mark all documents confidential. These modifications bring the order within the protections of the European Union’s General Data Protection Regulation. Matter of Child Victims Act NYC Litig.    

Child Victims Act   Admission   Prejudice   Appealable Order  

Second Department
In a thorough review of the requirements to strike scandalous or prejudicial matter from pleadings under CPLR §3024(b), the Second Department delineated a two-tier test where the matter must first be found to be scandalous or prejudicial within the context of the case and then found to be unnecessary, i.e. irrelevant. The Court found allegations of other incidents of sexual abuse based on the defendant’s admissions in the 6-paragraphs challenged, though inherently scandalous and prejudicial, not scandalous or prejudicial in a sexual abuse case, and relevant. An allegation the defendant sent a letter to another survivor of defendant’s molestation without identifying the recipient as a molestation survivor or admitting to molestation was found to be scandalous and prejudicial and ordered stricken.

While there is no right of appeal from an order granting or denying a motion to strike portions of pleadings as scandalous or prejudicial, a party may move for leave to appeal, and the Court granted leave to appeal given the need to address these issues in light of the recent Child Victims Act. Pisula v Roman Catholic Archdiocese of N.Y.    

Comment: The same language from the same letter that did not identify the recipient as a victim precluded in this case as scandalous and prejudicial was ordered stricken in a separate case. BCVAWCH-Doe v Roman Catholic Archdiocese of N.Y..

Spoliation   IME/DME   Prejudice  

First Department
Court denied defendant’s spoliation motion where plaintiff underwent a lumbar discectomy before a scheduled medical examination, finding it absurd to require plaintiffs to forego medical treatment to preserve an injured body part for medical examination. “The condition of one’s body is not the type of evidence that is subject to a spoliation analysis,” and requiring someone “to preserve his or her body in an injured state so that a defendant may conduct an ME, is antithetical to our belief in personal liberty and control over our own bodies.” Defendant was not prejudiced by the discectomy where it could rely on evidence other than a medical exam.

The Court also took issue with defendant’s characterization of its medical examination as ‘independent,’ noting such exams ‘far from being independent in any ordinary sense of the word, are paid for and frequently controlled in their scope and conduct by legal adversaries of the examinee. They are emphatically not occasions for treatment, but are most often utilized to contest the examinee’s claimed injury and to dispute the need for any treatment at all.’ Gilliam v Uni holdings    

Vacate Default   Capacity to Sue   Prejudice  

First Department
Substitute counsel lacked capacity to move to vacate order dismissing case where consent to change attorney form was executed by attorneys and party but never filed, and case providently dismissed after outgoing attorney who remained attorney of record failed to appear for scheduled compliance conference or adjourned conference of which it had notice. Menendez v Abingdon Ct. Owners Corp.    

Malpractice   Respondeat Superior  

First Department
OB/GYN professional corporation and its owner granted summary judgment for alleged malpractice of physician who was employed by a separate non-defendant professional corporation. Fact both corporations shared address, were owned by the same doctor, and were listed on the same webpage did not raise an issue as they were distinct corporations. Semper v Karamitsos    

(19 summaries)

Labor Law §200   Duty   Control   Notice   Indemnity   Waiver   NYC  

First Department
Owner failed to establish it lacked notice of uneven floor condition where plaintiff rolled his ankle when stepping from platform onto uneven floor from tiles being removed months earlier. Duty to maintain property in reasonably safe condition remains regardless of mean/methods question.

Questions of owner’s negligence required denial of its motion for summary judgment on contractual indemnity claim against GC. GC’s contractual indemnity claim against sub-contractor who built platform plaintiff stepped from dismissed as leveling floor was GC’s responsibility and beyond scope of sub-contractor’s contract.

GC abandoned its appeal where its brief did not argue lower court order should be reversed or modified. Vasquez v City of New York    

Strike Answer   Preclusion   Compel Acceptance   CPLR § 3101(d)   Experts  

First Department
Plaintiff’s motion to strike defendants’ Answer or preclude their bio-mechanical expert from testifying for not providing methodology and scientific principles used to determine that the forces in the accident could not have caused plaintiff’s injuries granted to extent of compelling defendants to provide this information. Striking the Answer or precluding the witness would be too drastic at this stage of the action. The expert’s qualifications to render the opinion were not disputed. Munoz v Rock Group NY Corp.    

Snow/Ice   Create Condition   Prior Written Notice   Speculation   Sole Cause   Raised For First Time  

Second Department
Homeowners failed to meet burden for summary judgment without showing their snow removal efforts did not create or exacerbate snow mound in roadway in front of their house that plaintiff slipped on. Claim plaintiff was sole cause of accident rejected where raised for first time in reply.

County met burden of showing it had no prior written notice of condition as required by prior written notice law. Plaintiffs’ claim county created condition by plowing snow purely speculative. Thompson v Nassau County    

Malpractice   Informed Consent   Judgment Rule   Accepted Practice   Experts   Conclusory   Speculation  

First Department
Cardiothoracic surgeon’s expert made out entitlement to summary judgment on opinion that decision to address ascending aortic aneurysm intraoperatively before mitral valve repair and use an edge-to-edge mitral valve repair instead of annuloplasty ring repair considering time patient would be on cardiopulmonary bypass was within accepted practice of exercising “best judgment” under the circumstances. Plaintiff’s expert’s opinion was conclusory and speculative where it did not address defense expert’s opinions and disregarded facts and evidence, including postoperative pathology report showing connective tissue condition that created a higher risk if aneurysm was left untreated.

Defendant met burden for summary judgment on informed consent by testimony and records establishing plaintiff was advised of reasonably foreseeable risks and signed 2-consent forms. Plaintiff failed to show a reasonably prudent person would not have undergone the procedure if advised of the risks and any claim based on failure to provide annuloplasty ring repair was untenable. Akel v Gerardi    

Malpractice   Accepted Practice   Causation   Experts   Conclusory  

First Department
Defendants’ expert made out entitlement to summary judgment by opinion addressing all of plaintiff’s claims, finding defendants did not depart from accepted practice by timely diagnosing plaintiff’s Heparin‐induced thrombocytopenia (HIT), using post-surgical platelet levels as a baseline, considering HIT in the differential diagnosis, and performing tests to rule out HIT which required consultations from multiple disciplines given patient’s comorbidities as a cause of her low platelet count and cyanotic fingers. Plaintiff’s expert’s opinion did not raise an issue where it was vague and conclusory, failed to explain why use post-surgical platelet count as a baseline was a departure, failed to say when HIT should have been diagnosed, failed to address patient’s comorbidities, or sufficiently explain how an earlier diagnosis would have prevented the loss of fingers when heparin had been discontinued days earlier. Hashem v Osorio    

Labor Law §240   Ladder   Safety Devices   Sole Cause   Comparative Fault   Admissibility  

First Department
Plaintiff entitled to summary judgment on Labor Law §240(1) where he fell from A-frame ladder while attempting to drill metal piece into 9′ ceiling and landed in garbage chute falling 4-stories onto rebar in basement regardless of whether ladder moved or he fell from vibration of drill. No safety equipment was provided to prevent worker from falling into garbage chute. Placing ladder near garbage chute was at most comparative fault, not a defense under §240.

Denial of defendants’ motion to dismiss past/future lost earnings claims appropriate where they failed to show plaintiff could not prove lost earnings with reasonable certainty. Diming Wu v 34 17th St. Project LLC    

Labor Law §240   Labor Law §241   Labor Law §200   Homeowner Exception   Agent   3rd Party Contractor   Espinal   Indemnity   Reargument   Reasonable Excuse  

Second Department
Homeowners denied summary judgment on homeowner exception to Labor Law §240(1) without proof home was not used for commercial purposes and motion to reargue based on this information included as new facts denied without explanation of why it was not included in original motion. Carpentry subcontractor who provided extension ladder to access 2nd floor in place of staircase that had been removed denied summary judgment for plaintiff’s fall from ladder on negligence and Labor Law §200 claims as questions remained of whether it created the condition, launched an instrumentality of harm, and had authority to control the means/methods of plaintiff’s work. That subcontractor also denied summary judgment on Labor Law §§240(1) and 241(6) where it failed to show it was not an agent of the owner or GC as its contract with the GC gave it power similar to a GC.

Carpentry subcontractor’s motion for summary judgment dismissing contractual and common law indemnity claims denied where its negligence remained a question. Cando v Ajay Gen. Contr. Co. Inc.    

Premises Liab   Stairs   Open/Obvious   Inherently Dangerous   Experts   Indemnity   Appealable Order  

Second Department
Single stair plaintiff fell on while leaving kiosk operated by defendant chamber of commerce in parking lot owned by defendant-bank and licensed to defendant-village for a parking lot was open and obvious and not inherently dangerous entitling defendants to summary judgment. Plaintiff’s expert failed to raise issue on optical confusion with photographs showing stair did not have the lines bordering slabs as on the sidewalk and did not identify violation of any applicable standard.

Summary judgment did not moot bank’s contractual indemnity claim against village but questions remained of whether fall was on portion of licensed property or was covered under indemnification language. Dagnino v Key Bank    

Comment: Bank’s appeal from denial of its motion to renew dismissed as it was a motion to reargue and no appeal lies from denial of a motion to reargue. Dagnino v Key Bank.

Labor Law §241   Labor Law §200   Sidewalk   Industrial Code   Inherently Dangerous  

First Department
Plaintiff made out prima facie entitlement to summary judgment on Labor Law §241(6) based on industrial code §23-1.7(e)(2) where sidewalk at construction site was broken concrete and brick and area was a “working area,” but defendant raised issue on whether sidewalk was inherently dangerous. Ingrati v Avalonbay Communities, Inc.    

Premises Liab   Wet Floor   Out of Possession  

First Department
Out of possession landlord granted summary judgment where it had no obligation to maintain or repair 12th floor under lease and leaking steam pipe that caused water plaintiff slipped on was not a structural defect. Landlord had right of reentry to make repairs if tenant failed to maintain property but was not required to do so. Burdier v Renaissance Midtown West, LLC    

Strike Answer   Vacate Default   Reasonable Excuse   Service  

First Department
Defendant’s motion to vacate order striking Answer for default in appearing at trial denied as notices were sent to him and he defaulted in appearing for inquest. Defendant admitted receiving notice of settlement of judgment after inquest and denials of service of all other notices did not raise an issue on reasonable excuse where affidavits of service showed proper service on address listed in defendant’s Answer. Question of meritorious defense moot. Acevedo v Mojica    

Premises Liab   Create Condition   Notice  

Second Department
Homeowners failed to show piece of wood placed over area in attic where joist had been removed several years before, which collapsed causing HVAC worker to fall through ceiling, was latent condition that could not be detected on reasonable inspection or that they otherwise did not have constructive notice of the defect. The Court does not give the details of the proofs. Jack v Weiner    

Comment: Prior owner denied summary judgment where it made no attempt to show condition did not exist when home was sold 4-years before the accident, that the prior owner was not aware of it, or that the prior owner informed the new owner of the condition and its attempt to show the condition was discoverable by the new owner on a reasonable inspection failed to eliminate all questions of fact. Jack v Weiner.

Premises Liab   Workers Comp Defense   Collateral Estoppel   Raised For First Time   Premature Motion  

First Department
Plaintiff’s motion to dismiss affirmative defense of workers comp exclusivity granted where agreement with her employer stated it would pay her, provide equipment and facilities for work, and directed work schedule. Fact she worked in a nursing home in of itself insufficient to establish special employment. Plaintiff not collaterally estopped from denying she was nursing home’s employee as alleged in prior human rights proceeding as she did not obtain a judgment in her favor in that proceeding. Harris v Pelham Parkway Nursing Care & Rehabilitation Facility LLC    

Premises Liab   Snow/Ice   Notice   Question of Fact   Vacate Default   Reasonable Excuse   Prejudice  

Second Department
Given 7-day delay in submitting opposition papers, lack of willfulness in delay, lack of prejudice to defendant by short delay, strong policy in favor of deciding cases on the merits, and plaintiffs showing of meritorious opposition to defendant’s motion for summary judgment, lower court improvidently exercised its discretion in denying plaintiff’s motion to vacate default. Upon vacating default, defendant met burden for summary judgment on agreement requiring plaintiff-tenant to remove snow/ice, but plaintiff raised issue in opposition by his affidavit that he had not performed snow/ice removal for decades, he was physically unable to do so, and there was a question of whether the condition existed long enough for defendant to discover and remedy it. Stango v Byrnes    

Premises Liab   Snow/Ice   Open/Obvious   Inherently Dangerous   Storm in Progress   Experts   Building Code  

First Department
Building owner granted summary judgment on proof 3″ tree-well border plaintiff tripped on was not defective in any way and did not violate any building codes and it was snowing when plaintiff fell. Claim snow obscured border rejected where snowstorm was in progress. Plaintiff’s expert failed to raise issue by opinion border was inherently dangerous unsupported by any accepted industry wide standard or practice. Parks Department’s recommendation borders be 18″ high was to preserve plants and not a safety recommendation. Kovel v Glenwood Mgt. Corp.    

Premises Liab   Create Condition   Notice   Duty   Res Ipsa Loquitor   Experts  

Second Department
Duty to maintain property in a reasonably safe condition does not extend to requiring owner to remove portions of wall/ceiling to see what lies beneath absent a warning of a latent defect. Owner and manager granted summary judgment on proof plaintiffs lived in apartment where ceiling collapsed for 4-years, noticed no defects, made no complaints, and debris and remaining ceiling were dry after ceiling fell. Plaintiff failed to meet exclusive control test for res ipsa loquitor. Matson v Dermer Mgt., Inc.    

Premises Liab   Wet Floor   Circumstantial Evidence   Speculation  

First Department
Plaintiff granted summary judgment on circumstantial evidence on her affidavit and eyewitness testimony that stairs plaintiff fell on were wet, looked like they were just mopped, there were no wet floor signs, and superintendent was standing at the top of stairs. Defendants failed to rebut that proof and claim stairs could have been wet from other condition was purely speculative. Chavez v Prana Holding Co. LLC    

Dogbite   Governmental Function   Special Duty  

Second Department
Village granted summary judgment for claim it was negligent in failing to enforce its leash laws despite notice of prior incidents resulting in infant-plaintiff being bitten by 2-unleashed dogs as policing its leash law is a governmental function and plaintiff failed to raise an issue in opposition or show village owed infant a special duty. J. E. v Incorporated Vil. of Westbury    

MVA   Turning Vehicle   Rear End   Reargument   Appealable Order  

First Department
On reargument, lower court properly denied summary judgment for owner/driver of vehicle plaintiff was a passenger in as conflicting testimony and statements in police report raised issues of whether that car was rear ended before making a left-hand turn, pushing it in front of defendants’ vehicle traveling in opposite direction which collided with the vehicle plaintiff was in.

Plaintiff’s appeal from motion to reargue denial of its summary judgment motion dismissed as no appeal lies from denial of a motion to reargue. Jiang v Mitacchione    

(1 summaries)

Vacate Default   Compel Acceptance   Reasonable Excuse   Meritorious Defense   Prejudice  

Second Department
Plaintiff’s motion for default judgment against GC of renovation project and village denied, and village’s cross motion to compel plaintiff to accept its Answer providently granted on village’s proof of a reasonable excuse and meritorious defense, fact default was not willful, and lack of prejudice to plaintiff. The Court does not give the details of the reasonable excuse or meritorious defense. Sadowski v Windsor Vil. Apts. Co., LLC    

About Matt McMahon

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