| MUST READS (3 summaries) | |||
| NOTEWORTHY | IF YOU MUST READ | ||
 Defendants’ motion to set aside plaintiff verdict denied where plaintiff’s expert opined defendants departed from accepted practice and caused plaintiff’s injuries by performing an experimental and contraindicated laser ablation and defendant doctor virtually conceded it was experimental. Defendants expressly waived right to poll the jury and waived inconsistent verdict claim where not raised while the jury was present. Award for pain/suffering, medical expenses, and loss of services did not materially deviate from reasonable compensation.Trial court providently allowed plaintiff to amend the Complaint to include punitive damages where the “doctor directed changes to plaintiff’s medical records after it was determined that his biopsy was negative for cancer, and then again after this suit had been filed.” Issue of whether jury’s finding of punitive damages was supported academic where trial court vacated that finding due to a charge error and set it down for a retrial. Rosenthal v Sperling ✉ Comment: From the trial court’s order, jury awarded $500,000/$2,075,000 past/future pain/suffering, $29,000 past medical expenses,and $200,000 past loss of services at the end of a 3-month trial. |
 Out of possession landlord granted summary judgment dismissing plaintiff’s claim for slip and fall on water in a bodega bathroom even though it retained the responsibility to make certain repairs under the lease as that responsibility did not extend to the conditions that caused plaintiff’s accident. “When an out-of-possession landlord retains some control and some contractual duty to make repairs to the leased premises, the question of liability will turn on whether the injury-producing condition fell within the landlord’s contractual responsibilities.” Plunkett v 519 Gourmet Deli & Grill, Inc., No. 5 ✉ |
| NYC’s motion to amend its Answer to include fraud claim based on the federal RICO complaint against plaintiff’s attorney alleging a scheme to refer clients to doctors for false tests to support lawsuits providently denied as there were no allegations plaintiff himself made any misrepresentations, the RICO allegations are against the attorney not the client, and the trial court should determine whether defendants can explore the RICO allegations at trial. Sanctions against defendants denied as not frivolous since they had a legitimate interest in protecting against fraudulent claims. Linares v City of New York ✉ |
| NOTEWORTHY (17 summaries) | |||
| MUST READS | IF YOU MUST READ | ||
| Plaintiff’s motion to set aside jury verdict finding 65%/35% defendant/plaintiff liability denied as not against the weight of the evidence where plaintiff testified she was walking 1′-3′ outside the crosswalk. Award of $125,000/$125,000 past/future pain/suffering not insufficient as the jury could credit defendants’ expert’s opinion the plaintiff was not as seriously injured as she claimed and $200,000 future medical expenses was not excessive as the jury could credit plaintiff’s spine surgeon’s testimony about future surgeries, evaluations, and treatments. Greenidge v Steele ✉ |
| Plaintiffs’ motion for leave to serve late Notice of Claim granted as NYCHA received actual knowledge of the essential facts of the claim within 90-days of the infant’s diagnosis of elevated blood levels, or a reasonable time thereafter, where it received the DOH inspection reports within 2-months of the diagnosis that included lead violations, which also made a plausible argument that NYCHA was not prejudiced by the 6-month delay in seeking leave. NYCHA failed to make a particularized showing that it would be substantially prejudiced. Plaintiffs’ delay in obtaining counsel and the test results was not a compelling excuse, but the lack of a reasonable excuse was not fatal to grant of leave to file a late Notice of Claim. Matter of JJCRR v New York City Hous. Auth. ✉ |
| Police officer’s motion to amend timely served Notice of Claim to include claims for unsafe police vehicle and failure to provide a safe workplace under Labor Law §27-a(3), where officer was injured as a passenger in the police vehicle it went through a red light with lights and sirens on and was hit by another vehicle, denied as they asserted new theories not raised in the original Notice of Claim and plaintiff’s 50H testimony was insufficient for amending the NOC that was not just to correct mistakes. Amendment of the Notice of Claim to include GML §205-e allegations based on VTL violations unnecessary where the NOC allegations gave sufficient notice of these. Leave to amend the Complaint to include these allegations granted as they merely amplified the Complaint. Plaintiff’s testimony showed that amendment to include speeding statute was devoid of merit, but NYC failed to show remaining VTL violations were palpably insufficient or patently devoid of merit. Mitchell v Jimenez ✉ |
| Petition to serve late Notice of Claim on HHC for alleged malpractice denied where timely service of NOC on NYC Comptroller’s office did not provide a reasonable excuse for not serving HHC which is a separate entity from NYC and has to be served separately. Petitioners failed to show HHC received timely actual knowledge of the essential facts without proof it was apparent from an independent review of the records and an unidentified yelp review by the daughter did not show HHC received actual knowledge. Petitioners also failed to show lack of substantial prejudice. Matter of Akangi v New York City Health & Hosps. Corp. ✉ |
| School defendants’ motion to dismiss Child Victims Act claims of negligent hiring, negligence, and gross negligence negligent for sexual abuse by Fordham Prep teacher granted where the Complaint did not allege any nexus between the teacher’s employment and the abuse which occurred off school property and outside of school hours and there was no allegation the teacher engaged in inappropriate conduct at school. Defendant did not owe a duty to plaintiff as landowners or as their student which does not generally extend beyond school property and time. P.S. v Beck ✉ |
| Policy organization’s motion to extend it’s time to answer providently granted where it did not receive notice of the action, even though served through the Secretary of State, it promptly moved when it learned of the suit, plaintiff was not prejudiced by the 2-month delay, and it showed a meritorious defense. Organization’s motion to dismiss Child Victims Act claim for abuse by daycare staff member granted on proof it was a policy and advocacy organization that did not provide the services or employ teachers or daycare workers, establishing it showed no duty to plaintiff. Camille v Federation of Prot. Welfare Agencies, Inc. ✉ |
| Defendants met burden for summary judgment on experts’ opinions they did not depart from accepted practice during a septoplasty and nasal polyp removal surgery and were not a cause of plaintiff’s injuries because they appropriately placed her in the supine position, secured her arms with Velcro, did not need to reposition her during the 1.5-hour surgery, plaintiff’s rotator cuff tear was degeneration, and she was not moved with enough force during the surgery to create an acute tear. Plaintiff’s expert conceded plaintiff was properly positioned with her arms at her sides and claim contoured arm padding should have been used was conclusory and presented a new theory not pleaded or raised in a deposition. Vucetaj v Dahl ✉ |
| Hospital’s motion to dismiss 71-year-old patient’s claims for fall in bathroom while unattended as barred by the malpractice statute of limitations granted only to the extent of dismissing claims based on malpractice but denied as to allegations based on negligence. Butler v Wyckoff Hgts. Med. Ctr. ✉ |
| Defendant granted summary judgment dismissing pedestrian’s claim for being struck by a police vehicle that was driving the wrong way on 34th St. on proof the officer was responding to an assault in progress entitling him to the VTL §1104 qualified immunity and reckless standard. Proof that he checked there was no traffic and turned on the siren and lights before entering the lane and was unable to avoid hitting plaintiff despite breaking hard when she stepped into the lane directly in front of him from between parked cars establish he was not reckless. Plaintiff’s statement she did not see the police vehicle or remember seeing lights or hearing sirens did not raise an issue of fact or the officer’s testimony he avoided hitting other pedestrians since he was not speeding. Yuet C. Chiu-Yu v Chin ✉ |
| Hospital met burden for summary judgment on medical expert’s opinion plaintiff’s claim security guard struck him in the back of his neck with a heavy object was medically impossible given there was no bruising on the back of his neck but plaintiff’s medical expert raised an issue in opposition by pointing out defendant’s expert failed to consider plaintiff’s neck rotated after he fell, which did not rule out how he was rendered quadriplegic. Plaintiff’s testimony was mostly consistent with his statements to his expert and issues of credibility are for the jury. Wilson v Bronx Lebanon Hosp. Ctr. ✉ |
| Worker granted summary judgment on Labor Law §240(1) where unsecured 20′ ladder fell on him when his coworker stepped on the ladder which was placed on a rubber mat covered in cow manure and hay in a barn as the ladder was inadequate to shield the worker from the application of gravity, the accident was foreseeable, and covered under §240 which is not limited to objects being hoisted or secured. The accident was not so extraordinary as to sever the causal connection between the §240 violation and plaintiff’s injuries. Defendant denied summary judgment dismissing Labor Law §§ 241(6), 200, and common-law negligence claims where questions remained of whether it was a hard hat job under industrial code §23-1.8(c)(1), whether the ladder footings were inadequate §23-1.21(b)(4)(ii)(ladder footings), and whether it had actual or constructive notice of the slippery condition. Wright v Pennings ✉ |
| Worker injured while installing alarm system in attic during construction when pull down stairs detached from the ceiling granted summary judgment on Labor Law §§240(1) and 241(6) as the pull down stairs was the functional equivalent of a ladder, was an inadequate §240 safety device, and violated industrial code §23-1.21(b)(1) for the §241 predicate. Plaintiff’s claims regarding Labor Law §200 and negligence not properly before the Court where raised for the first time on appeal. Jaimes-Gutierrez v 37 Raywood Dr., LLC ✉ |
| GC denied summary judgment dismissing flooring worker’s Labor Law §200 and negligence claims for slip and fall on water on stairs where plaintiff testified he reported to the GC’s employee who was aware of the condition and instructed him to use that staircase without any warnings, leaving questions of whether GC had control over the manner of plaintiff’s work. Motions to grant or dismiss contractual indemnity claims denied where the agreements had negligence triggers and questions remained on the parties’ negligence. Flooring material provider granted summary judgment dismissing common-law contribution and indemnity claims on proof it was not negligent. Vargas v 622 Third Ave. Co. LLC ✉ |
| Condominium board of managers denied summary judgment where declaration and by-laws gave the duty to maintain all common elements, including pipes and plumbing that service the entire building, and they failed to specify which ceiling drainpipes in the basement garage, where plaintiff slipped on water from leaking overhead pipes, service the entire building. Manager’s testimony and expert’s affidavit that there were no drainpipes above the accident site did not eliminate questions of fact and defendant failed to show it did not create or have notice of the condition. German v 333 Rector Garage, LLC ✉ |
| Supermarket defendant failed to meet burden for summary judgment dismissing plaintiff’s claim for slip and fall on wet floor where it failed to establish the floor, which was being cleaned at the time, in a narrow corridor behind the cash register was open/obvious and not inherently dangerous under the circumstances or that the warnings were adequate. Naftaliyeva v Shoprite of Ave. I ✉ |
| Athletic association and landscaping company denied summary judgment dismissing spectator’s claim for stepping into a hole in the field after a sporting event due to inadequate lighting where the association failed to establish it was not responsible for the lighting and the landscaper-president’s testimony of its ordinary procedures did not eliminate questions of whether it created or exacerbated the condition as he had no personal knowledge of the procedures used that day. Association’s motion to dismiss claims of contractual indemnity and common-law indemnity and contribution by owner and manager denied as the indemnification agreement applied to all claims arising out of the association’s use or occupancy of the premises, or neglect, which did not violate GOL §5-321, and the association failed to show it did not negligently provide inadequate lighting. Landscaper’s motion to dismiss common-law indemnification and contribution cross-claims denied. Hangan v Edgewater Park Owners Coop., Inc. ✉ |
| City, Police Department, and police officer denied summary judgment dismissing plaintiff’s false arrest and malicious prosecution claims based on confidential informant’s and victim’s identification of the plaintiff as the shooter where questions remained of whether they identified plaintiff as the shooter or just as present at the time and the victim recanted the identification, leaving questions of whether they had probable cause for plaintiff’s arrest and actual malice on malicious prosecution claim and qualified immunity. Abuse of process claims dismissed where defendant “did not use process in a perverted manner to obtain a collateral objective.” Ballinger v City of Mount Vernon ✉ |
| IF YOU MUST READ (0 summaries) | |||
| MUST READS | NOTEWORTHY | ||