December 18, 2018 | Vol. 137

MUST READS
(8 summaries)
NOTEWORTHY IF YOU MUST READ

Med Mal   Set Aside Verdict   Jury Charge   Emergency Doctrine  

Second Deptartment

Defense verdict set aside on lower court error in giving emergency doctrine charge over plaintiff’s objection. Defendant-anesthesiologist was trained and prepared to open airways closed by secretions, which he eventually did in less than a minute, and was not presented with an emergency situation defined as a sudden and unforeseen circumstance. Crayton v Sher


Strike Answer   Discovery   CPLR § 3126   Willful/Contumacious  

First

Defendant’s failure to comply with discovery orders and it’s bare-bones disclosure by counsel that company which existed at time of suit no longer existed failed to show good faith efforts to comply. Failure to make any efforts to preserve relevant records regarding repair and maintenance of elevator, including inspection records required by statute, was willful and deprived plaintiff of ability to prove case warranting striking of Answer. Suarez v Dameco Indus., Inc.


Med Mal   Vacate Default   Renew   Discovery   Reasonable Excuse   Meritorious Action   Sanctions  

Second Deptartment

Plaintiff’s motion to renew and upon renewal vacate lower court’s order denying motion to vacate default and granting defendants’ cross-motion to dismiss for failing to comply with conditional order of dismissal granted based on new evidence which may have been available at time of original motion but was not submitted due to a misunderstanding of counsel constituting law office failure. Lower court had discretion to accept law office failure as a reasonable excuse and plaintiff showed a meritorious action for medical malpractice and wrongful death. Court does not give the details of counsel’s misunderstanding.

Lower court should only have denied defendants’ motions to dismiss to the extent of ordering plaintiff’s counsel to pay opposing counsel $2500 each for failing to comply with court’s discovery orders. Burro v Kang


Late Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice   NYC  

Second Deptartment

Petitioner’s motion to deem late Notice of Claim served 8-months after accident, 5-months after 90-day period, timely served denied. Internet photographs from before and after accident may have shown NYC had notice of pothole in crosswalk but not that they had actual knowledge of petitioner’s accident and the facts and circumstances surrounding the accident and comprising the claim. 5-months after 90-day period was not “within a reasonable time thereafter.” Failure to provide medical proof that delay was caused by injuries negated finding of reasonable excuse.

Petitioner’s claim that prior internet photographs and photographs taken shortly after accident were evidence that NYC was not prejudiced by delay rejected because photographs were taken at different angles and lacked measurements or dimensions to substantiate that defect was in same condition. Matter of Bermudez v City of New York


Strike Answer   Discovery   Willful/Contumacious  

First

Defendant’s Answer providently stricken for failing to properly respond to several court orders where only response, after plaintiff’s motion to strike, consisted mainly of objections. Shohat v Suky


Vacate Default   CPLR § 3126   Reasonable Excuse  

First

Plaintiff’s motion to vacate default in responding to CPLR §3126 motion to dismiss for failure to respond to discovery orders providently denied where claimed law office failure of mis-calendaring return date was not an isolated incident and, therefore, not a reasonable excuse. Spivey v City of New York


MVA   Special Duty   Renew   NYC  

Second Deptartment

Police officers responding to highway MVA did not assume special duty to plaintiff who was struck by his own car after it or a tow truck had been struck by another vehicle as they were all outside their vehicles. Special duty requires showing of “1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative undertaking.” Officers’ instruction to plaintiff not relied on did not establish a special duty.

“New facts” necessary for motion to renew can include resubmission of document not properly authenticated on original motion such as resubmitting non-medical expert’s affidavit instead of an affirmation, but affidavit would not have changed the outcome. Nair v City of New York


Negligent Supervision   Negligent Hiring  

Second Deptartment

Evaluating whether DASA (Dignity for All Students Act) Educ. L. §10, et seq. provides a private civil cause of action against schools and districts for not preventing bullying, harassment, and discrimination, the Second Department concluded that the legislative history indicates that no private cause of action was created but the existing causes of action such as negligent supervision are not affected. District’s motion to dismiss DASSA claims granted but motion to dismiss negligent supervision and negligent hiring denied where claimed negligence was for not enforcing district’s existing policies. Eskenazi-McGibney v Connetquot Cent. Sch. Dist.

Comment: The court noted that part of the reason for enacting DASA was to protect schools and districts from bullying lawsuits.

NOTEWORTHY
(20 summaries)
MUST READS IF YOU MUST READ

Premises Liab   Assumption of Risk  

Second Deptartment

Ice rink and referee granted summary judgment on proof that plaintiff voluntarily engaged in fight during hockey game, that referee was allowed to use physical contact to break up fights, and that plaintiff played in league for 5-10 years and was aware of fights even if he had never engaged in one, establishing primary assumption of risk. Falcaro v American Skating Ctrs., LLC


Strike Note of Issue   Subpoena   Discovery   Privilege  

First

Defendants’ motion to strike Note of Issue denied where they failed to show unusual or unanticipated circumstances after Note of Issue where plaintiff did not convert action to wrongful death, claim any ew injuries, or supplement BP. Plaintiff’s motion to quash non-party subpoena for unredacted death certificate granted where defendants twice deposed plaintiff’s decedent, had IME/DMEs, received his entire medical file, and plaintiff did not put cause of death in issue. Palmiero v 417 E. 9th St. Assoc., LLC


Labor Law §241   Industrial Code  

First

Plaintiff’s fall on pile of snow covered pipes outside shanty entrance door did not fall within industrial code §23-1.7(e)(1) because it was not a passageway but could fall within §23-1.7(d) (slipping hazards) which covered hazards on a “floor, passageway, walkway, scaffold, platform or other elevated working surface,” as well as §23-1.7(e)(2) (tripping hazards) because the workers routinely traversed area as their only access to equipment raising issues of fact.

Motion to dismiss Labor Law §200 and negligence denied where defendant failed to show it did not create the dangerous condition or have notice of it when it focused solely on snow covering pipes instead of who placed pipes. Quigley v Port Auth. of N.Y. & N.J.


Labor Law §240   Gravity Risk  

First

Defendant’s motion for summary judgment denied where 300-400 lb glass partition that traveled only a short distance presented a sufficient elevation risk and lifting device with insufficient maximum lifting load did not provide proper protection. Slawsky v Turner Constr. Co.


Premises Liab   Slip/Trip   Wet Floor   Independant Contractor   Create Condition   Espinal  

Second Deptartment

Cleaning contractor made out prima facie entitlement to summary judgment on claim that it did not owe duty to plaintiff arising from its contract, but plaintiff raised an issue of fact in opposition showing that defendant created the condition. Christian v 709 Brighton Beach, LLC


Premises Liab   Slip/Trip   Snow/Ice   Stairs   Notice   Last Inspection  

First

Building’s motion for summary judgment denied where it failed to show it did not create ice and melting ice condition plaintiff slipped on in interior stairs that plaintiff alleged was brought in by people walking from outside where building manager could not identify when stairs were last inspected or cleaned, whether handyman had cleared snow outside building, and offered no evidence of when weekly stair cleaning was done before accident. Blanco v 866 Morris Park Realty Mgt., LLC


Premises Liab   De Minimus   Expert Aff  

Second Deptartment

Culinary Institute and company providing temporary dance floor met burden of showing beveled edge between temporary dance floor and carpet was not dangerous based on architect’s affidavit that there was sufficient color changes to mark edge and that dance floor was covered in nonskid surface but engineer’s opinion submitted by plaintiff showing that beveled edge surface had insufficient slip resistance based on coefficient of friction testing and that inadequate lighting failed to alert that dance floor ended with metal edging. Conflicting expert opinions made summary judgment inappropriate. Poliziani v Culinary Inst. of Am.


Premises Liab   Slip/Trip   Duty   Create Condition   Notice   Appealable Order  

Second Deptartment

NYCHA and building tenant granted summary judgment on proof that they owed no duty to maintain tree well with cable extending from it that plaintiff tripped on, did not create the condition, nor have notice of it. Appeal from order granting building owner summary judgment dismissed as abandoned where plaintiff did not request reversal in his brief. Booker v New York City Hous. Auth.


Negligent Supervision   Motion to Dismiss   Special Duty   NYC  

Second Deptartment

DOE’s motion to dismiss, converted to summary judgment by the court, granted where plaintiff failed to show that DOE assumed a special duty to principal who was injured when student snatched cell phone from his hand. Principal failed to show that DOE assumed duty to him other than governmental duty to provide general protection to the public. Wilson v New York City Bd. of Educ.


Court of Claims   Late Notice of Claim   Statute of Limitations  

Second Deptartment

Plaintiff failed to timely serve and file Notice of Claim under Court of Claims act §10(3) and failed to move for leave to serve late Notice of Claim until after statute of limitations. ourt had no authority to grant leave to serve late Notice of Claim after statute of limitations. Chaudry v State of New York


Late Notice of Claim   Amend Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice   Statute of Limitations  

Second Deptartment

Petition to amend infant’s Notice of Claim and for leave to serve late Notice of Claim on behalf of mother brought 3-years after accident denied. Court had no authority to grant mother’s petition where statute of limitations expired. Infant’s petition to amend Notice of Claim to include new theory that town park ranger waived family to cross street denied as amendment is only permissible to correct good faith, non-prejudicial, technical defects and not add entirely new theories of liability. Petitioner also failed to show that town had actual knowledge of new theory within 90-days or a reasonable time thereafter where mother did not testify to ranger waving at 50-H and reports containing this information were prepared by county and not town officers and not in town park ranger’s report. Petitioner failed to show reasonable excuse for delay but did show lack of prejudice which buy itself did not warrant granting petition. Matter of Johnson v County of Suffolk


MVA   Rear End   Nonnegligent Explanation  

First

School bus owner and driver granted summary judgment where co-defendants, livery cab owner and driver, failed to offer nonnegligent explanation for rear-ending bus while plaintiff was a passenger in the cab or proof that they maintained a safe distance behind bus. Morales v Consolidated Bus Tr., Inc.


Products Liab   Raised For First Time   Feigned Issue  

Second Deptartment

Home Depot granted summary judgment on claim that articulating ladder plaintiff fell from could not have been purchased by codefendant between 1994-1998 at store he claimed he purchased it from because that store did not open until 2001 proving that Home Depot was not within chain of manufacturing, sale or distribution necessary to impose strict liability based on affidavit signed by codefendant prior to codefendant settling with plaintiff. Subsequent affidavit submitted for the first time in opposition to motion where codefendant speculates that he either bought ladder at a different Home Depot store he frequented or purchased it in or after 2001 was a feigned attempt to avoid summary judgment insufficient to raise issue of fact. Rooney v Garberg


MVA   Rear End   Nonnegligent Explanation  

Second Deptartment

Defendants whose car plaintiff was a passenger in when it was rear ended failed to meet burden for summary judgment where they submitted deposition of rear-ending codefendants’ driver claiming that moving defendants’ car suddenly cut in front of him forcing him to stop short and rear end vehicle. Cruz v Valentine Packaging Corp.


Premises Liab   Slip/Trip   Snow/Ice   Storm in Progress   Expert Aff  

Second Deptartment

Building owner and manager made out prima facie entitlement to summary judgment showing that accident happened during storm in progress, but plaintiff raised issues of fact by, inter alia, meteorologist’s affidavit regarding whether snow removal efforts exacerbated ice condition and whether ice was from prior storm 4-6 days earlier. Hyun Kyung Oh v Sky View Towers Holding, LLC


MVA   CPLR §3124   Premature Motion  

Second Deptartment

Plaintiff’s motion to compel defendant, who claimed that his non-party wife was registered owner and driver of car that struck plaintiff, to provide authorization for insurance records regarding vehicle granted and defendant’s motion for summary judgment denied as premature with leave to renew. A certificate of title is prima facie proof of ownership but can be rebutted by evidence showing that someone else is the actual owner. Portillo v Carlson


Serious Injury   Appealable Order   Untimely  

First

Plaintiff’s pro se appeal dismissed where plaintiff could not prove Notice of Appeal was filed or served within 30-days of notice of entry of order granting summary judgment on serious injury. Plaintiff’s claim that clerk would not accept pro se Notice of Appeal unavailing without proof and belied by fact that it and accompanying papers were dated the day after plaintiff purportedly attempted to file them. Plaintiff’s claim of a spasmodic disorder affecting his speech and making him chronically hoarse would have been rejected based on the same allegations from an undisclosed 1996 accident lawsuit. Avgush v Jerry Fontan, Inc.


Serious Injury   ROM   Expert Aff  

Second Deptartment

Defendant met burden for no serious injury by examining orthopedist’s affirmed report showing normal ROM measured by goniometer, but plaintiff raised an issue of fact in opposition by physician’s affirmation based on computerized ROM measurements showing significant limitations approximately 1-year before motion. Paez v Osborne


Default Judgment   Reargument   Appealable Order  

First

Plaintiff’s pro se appeal from order adhering to original order denying default judgment dismissed for failure to perfect and plaintiff’s appendix which did not include original motion papers was patently insufficient. Davis v Prestige Mgt. Inc.


MVA   Uninsured   Stay Arb  

Second Deptartment

Carrier’s petition to permanently stay uninsured arbitration denied on driver’s testimony that he removed key from ignition and left it on driver seat where it could not be seen due to tinted windows establishing by “substantial evidence” that car was stolen and therefore not insured when it struck him as he stood in front of car to try to prevent it from leaving gas station. Matter of Country-Wide Ins. Co. v Park

IF YOU MUST READ
(4 summaries)
MUST READS NOTEWORTHY

Serious Injury   BP   Indemnity   Sole Cause  

Second Deptartment

Defendants did not make out entitlement to summary judgment on serious injury where they failed to address plaintiff’s allegations under the 90/180-day category in the BP. Third-party defendant failed to make out entitlement to summary judgment on third-party contribution/indemnity claims where it failed to show that accident where bus shelter partition fell on plaintiff after being struck by a bus was caused solely by the negligence of NYCTA and MTA. The court does not give the details of the proofs. Floyd v New York City Tr. Auth.


Serious Injury  

Second Deptartment

Defendants did not make out entitlement to summary judgment on serious injury where they failed to address plaintiff’s allegations under the 90/180-day category in the BP as to one plaintiff and other plaintiff raised issue of fact in opposition to defendants’ prima facie showing. The court does not give the details of the proofs. Levitant v Beninati


Serious Injury   Causation  

Second Deptartment

Defendants met their burden for showing that plaintiff did not sustain a serious injury under significant or permanent consequential limitations and on 90/180-day category by plaintiff’s deposition that she missed only 1-week of work in the first 180-days and that any injuries were not caused by the accident and plaintiff failed to raise an issue in opposition. The court does not give the details of the proofs. Kang v Bhullar


Serious Injury  

Second Deptartment

Defendants made out entitlement to summary judgment based on competent medical proof, but plaintiff raised an issue of fact on lumbar spine and shoulder injuries. The court does not give the details of the proofs. Kaplan v Margolis

About Matt McMahon

Civil trials and appeals since 1984
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