December 19, 2023 | Vol. 396

(6 summaries)

Child Victims Act   Negligent Hiring   Negligent Supervision   Discovery  

First Department
Archdiocese providently ordered to produce letters from its former employee to Cardinal O’Connor in which he discussed that archdiocese allowed him to leave the state for a sabbatical, he was seeing a doctor who communicated with the archdiocese, and was trying to overcome his difficulty from 1985-1992 after an in camera inspection as they were relevant to plaintiff’s claims of abuse by that employee between 1985-1988, even though written after the time of the abuse, as germane to whether the archdiocese knew or should have known the employee was abusing students and failed to act before plaintiff was abused. Lisiecki v Roman Catholic Archdiocese of N.Y.    

Attorney Fees   Lien  

Second Department
Where outgoing attorney sought charging lien representing 1/3 of highest settlement offer he procured, plus a portion of the fee on any higher settlement or verdict obtained by substituting attorney, the lower court erred in awarding a judgment for 1/3 of the highest settlement offer ($20,833.33) instead of granting a charging lien in that amount but providently declined to include a share of any higher settlement or verdict as by making the motion prior to the completion of the case the outgoing attorney sought quantum meruit not a proportionate share of the contingency fee based on his proportionate share of work on the entire case. Messina v Wedderburn    

Premises Liab   Duty   Special Duty   Vicarious Liab   Independant Contractor   Control  

First Department
BP Co. defendants granted summary judgment dismissing plaintiff’s claim for tripping over raised gas cap at its franchisee’s gas station as they were not an owner of the gas station, owed no duty or special duty to maintain the property under their dealer supply agreement, and did not have sufficient access or control to the property. Franchisee was an independent contractor under their agreement for which the franchisor cannot be vicariously liable even though the agreement required the franchisee to adhere to certain standards and gave the BP companies the right to enter and inspect but not day-to-day control necessary to create a duty. Blackstock v Accede Inc.    

Assault   Battery   Qualified Immunity   Raised For First Time  

Second Department
County granted summary judgment dismissing negligence claim of woman assaulted by police as they were trying to arrest her boyfriend on her 50H testimony that officer “grabbed her, picked her up, and threw her to the ground” which can only be interpreted as an intentional act and NY does not recognize a cause of action for negligent battery. Issue considered by the Court even though raised for the first time an appeal where it was a pure question of law on the face of the record and could not be avoided if raised below.

County denied summary judgment on assault and battery causes of action as qualified immunity requires finding that officers’ actions were ‘objectively reasonable’ which is intensely factual and best left to the jury. Pleva v County of Suffolk    

MVA   Rear End   VTL §1103   Reckless   Nonnegligent Explanation  

Second Department
Plaintiff granted summary judgment where defendants’ backhoe rear ended his vehicle and defendants failed to show a nonnegligent explanation. Defendants denied summary judgment on claim backhoe was entitled to reckless standard of VTL §1103(b) for vehicles actually engaged in highway work when the backhoe driver was transporting gravel to the worksite. Defendants did not argue their driver was “actually engaged” in highway work while transporting the gravel and the Court rejected their argument that driver fell within the scope of the statute because he had been repairing the roadway earlier in the day and was returning to finish the work, finding that “actually engaged” does not include ancillary activities related to the highway work. Qosaj v Village of Sleepy Hollow    

MVA   Motion to Dismiss   General Release   Raised For First Time  

Second Department
Plaintiff-driver’s motion to dismiss defendant’s counterclaim for injuries sustained by coplaintiff-passenger based on a $200 general release releasing plaintiff-driver for injuries sustained by her passenger granted as GOL §15-108(b) relieves the releaseor of any liability for contribution. Defendant’s questioning of the validity of the release not considered where raised for the first time on appeal. Moraskin v Lati    

(15 summaries)

MVA   Bus   Directed Verdict   Set Aside Verdict   Pain/Suffering   Materially Deviates   Raised For First Time  

First Department
NYCTA’s motion for directed verdict at close of plaintiff’s case providently denied where jury could find bus’s wheel rolled along plaintiff’s leg and not over it after plaintiff fell from his bicycle. Award of $500,000/$1,050,000 past/future pain/suffering did not materially deviate from reasonable compensation where treating physician adequately described nature and extent of injuries and award was supported by testimony, photos, and records showing not just plaintiff’s injuries but the degree of his continuing pain. $125,000 award for future medical expenses supported by testimony of plaintiff’s treating physician, who the trial court providently allowed to testify, and defendants were not prejudiced where future medical expenses were contained in the BP and expert disclosure.

Trial court did not err in denying 1-day continuance to allow pregnant bus driver to testify where it granted NYCTA’s alternative request to read bus driver’s EBT testimony and NYCTA did not object. Request for mistrial providently denied where jury initially returned an inconsistent verdict but corrected it after the judge reinstructed them. Comments by plaintiff’s counsel were either not objected to or were we fair comment. Claim that allocation of no fault to plaintiff was against the weight evidence rejected where not raised when moving to set aside the verdict. Moctezuma v New York City Tr. Auth.    

Premises Liab   Preclusion   Directed Verdict   Experts   CPLR § 3101(d)   BP   Speculation   Conclusory  

Second Department
Trial court providently precluded plaintiff’s engineer’s testimony that carpet she slipped on was slippery in violation of American Society of Testing Materials ASTM D2047-17 standard which applied to polish-coated surfaces, not carpeted surfaces, plaintiff did not disclose expert’s reliance on this standard in the BP or CPLR §3101(d) disclosure, and the expert failed to show the condition was the same as at the time of the accident when he inspected it 5-years later, making his opinion conclusory and speculative. Plaintiff could not make a prima facie case without the expert’s opinion and the trial court properly granted defendant’s motion for a directed verdict at the close of plaintiff’s case. Zeppetelli v 1372 Broadway, LLC    

Premises Liab   Assault   Discovery   IME/DME   Note of Issue   Renew   Reargument   Reasonable Excuse  

Second Department
Lower court improvidently denied defendant’s motion for reargument of its motion to extend its time to conduct an IME and strike the Note of Issue where it submitted proof that authorizations for plaintiff’s medical records, provided by plaintiff after the Note of Issue, prevented it from conducting its IME that constituted new facts and justification for not presenting these facts on its original motion and the papers submitted by the defendant and original motion papers submitted by plaintiff were sufficient to determine the motion.

Motion to dismiss the appeal from the denial of reargument without prejudice granted where defendants failed to show reargument was denied and no appeal lies from denial of a motion to reargue. Fulcher v Empire State Grand Council Ancient & Accepted Scottish Rite Masons, Inc.    

Motion to Dismiss   Personal Juridiction   Service   Burden of Proof   Estoppel  

Second Department
Defendant’s motion to dismiss for lack of personal jurisdiction granted. Plaintiff failed to show by a preponderance of the evidence at a hearing that defendant was properly served as the address where service was attempted on a person of suitable age and discretion was not defendant’s actual dwelling place or usual place of abode under CPLR §308(2) since defendant was a permanent resident of Belize. Defendant’s failure to update his DMV records alone did not estop him from raising lack of personal jurisdiction. Pil Yong Yoo v Good Clean Fun    

Malpractice   Accepted Practice   Causation   Burden of Proof  

Second Department
OB/GYN failed to meet burden of showing he did not depart from accepted practice or cause the infant’s permanent Erb’s palsy where he submitted plaintiffs’ testimony that during the last 10-minutes of delivery the mother’s feet were not removed from the stirrups and flexed backwards to perform a McRoberts movement or that anyone applied superpubic pressure in response to fetal shoulder dystocia as alleged by plaintiffs. George v Plotnitskiy    

Labor Law §241   Labor Law §240   Labor Law §200   Industrial Code   Notice   Gravity Risk   Waiver   Appealable Order   Indemnity  

First Department
Plaintiffs failed to meet burden for summary judgment on Labor Law §241(6) based on industrial code §23-9.2(a)(power-operated equipment) without proof defendants were on notice the hydraulic arm that injured plaintiff was defective and they failed to repair or take it out of service and on industrial code §23-1.5(c)(equipment condition) without proof of prior notice as to whether the arm was sound and operable. Labor Law §240(1) claim dismissed where accident was not caused by force of gravity on the hydraulic arm. Plaintiffs waived appeal from dismissal of Labor Law §200 claim without opposing that portion of defendants’ motion below.

Defendants’ and third-party defendants’ failed to meet their burdens on common-law and contractual indemnity claims which, in any event, had been addressed on a prior appeal. Cabral v Rockefeller Univ.    

Premises Liab   Sidewalk   Snow/Ice   Storm in Progress   Notice   Create Condition   Experts   Speculation   Conclusory   NYC  

Second Department
NYC denied summary judgment dismissing plaintiff’s claim for slip and fall on ice under accumulating snow on sidewalk as it failed to show the ice was from an ongoing storm rather than accumulation of ice from prior storms, that it did not have constructive notice of the condition, and that “the ice condition was not of such a dangerous or unusual nature so as to impose a duty upon the City to remedy it.”

Abutting landowner granted summary judgment on her testimony showing her snow removal efforts did not affirmatively increase the hazard of the naturally-occurring condition and plaintiff’s experts’ opinions did not raise an issue in opposition where they were conclusory and speculative. Cardona v City of New York    

Premises Liab   Malpractice   Causation   Open/Obvious   Notice  

First Department
Attorney denied summary judgment dismissing legal malpractice claim for dismissal of underlying suit for failure to provide discovery where he failed to show plaintiff could not have prevailed in the underlying suit absent the dismissal. Issues of credibility are not subject to summary judgment and defendant could not rely on plaintiff’s lack of proof that the underlying defendant created or had notice of the condition. Even if the condition was open/obvious, that would not eliminate the duty to maintain the premises in a reasonably safe condition. Carasco v Schlesinger    

Premises Liab   Stairs   Causation   Building Code   Open/Obvious   Experts  

First Department
Defendants met burden for summary judgment dismissing plaintiff’s claim for breaking his ankle when his foot rolled off a trapezoid-shaped single-step landing as he left defendants’ restaurant but plaintiff raised issues in opposition on his testimony and unrebutted expert affidavit that the landing violated NYC building codes and caused plaintiff’s foot to roll off the landing. Claim that the condition was open/obvious irrelevant as it only goes to duty to warn, not duty to maintain property in a reasonably safe condition. Perry v Sada Three, LLC    

Premises Liab   Sidewalk   § 7-210   Create Condition   Prior Written Notice   Raised For First Time   NYC  

Second Department
NYC denied summary judgment for plaintiff’s trip and fall on sidewalk depression where it conceded the abutting landowner was not responsible for the sidewalk under administrative code §7-210, failed to show it did not create the condition, an exception to the prior written notice defense, and it never raised issue of prior written notice on the motion below. Avagyan v City of New York    

MVA   Premises Liab   Out of Possession   Building Code   Sole Cause   Experts  

First Department
Building owner granted summary judgment dismissing plaintiff’s claim for injuries when armored truck struck a support column in a truck bay as plaintiff sat in a chair in the rear cargo area of the truck on proof it was an out-of-possession owner, despite a right to reenter and make repairs, there were no structural or design defects, and the armored car driver’s negligence was the sole cause of plaintiff’s injuries. Plaintiff failed to raise issues in opposition on violations of NYC building codes §§ BC 1003.6 and 27-369(obstruction to means of egress) which applies to people walking to an interior exit and not vehicles driven to garage doors and §BC 27-381(corridors and exits lighting) as a truck bay is neither a corridor nor a passageway for people. VTL §1680 was inapplicable as it only applies to street and highway boundaries.

Building’s expert’s opinions of inadequate light based on inspection 9-years after accident probative where plaintiff admitted the area was painted in the same yellow color and the lighting was ‘not bright’ but plaintiff’s expert’s opinion based on plaintiff’s testimony without an inspection was not probative. Williams v Plaxall Realty Sub, LLC.    

MVA   Construction Liab.   Conclusory  

First Department
Empire subway company failed to meet burden for summary judgment by record researcher’s affidavit that it “had no facilities or conduit and performed no work” where decedent lost control of his motorcycle which was conclusory without stating the search included street opening permits 500′ from the intersection where decedent’s brother saw him lose control of his motorcycle. Cornejo v City of New York    

MVA   Bicycle   Comparative Fault   Feigned Issue  

Second Department
Electric bicycle rider denied summary judgment on liability and dismissal of comparative fault affirmative defenses where conflicting version of how accident occurred in defendant-driver’s testimony, submitted by plaintiff, raised issues of whether defendant-driver was at fault without raising a raise feigned issue since it did not conflict with his statements in the certified police report submitted by plaintiff. Garutti v Kim Co Refrig. Corp.    

Premises Liab   Snow/Ice   Storm in Progress   Workers Comp Defense  

Second Department
Rehab facility where nurse practitioner slipped on ice in parking lot denied summary judgment on worker comp defense where it failed to show she was its “special employee.” Defendant met burden of showing storm in progress but plaintiff raised issues in opposition on storm in progress and constructive notice. The Court does not give the details of the proofs. James v Highland Rehabilitation & Nursing Ctr.    

Comment: From the lower court decision, nurse practitioners were general employees of the agency which was required to pay them and provide workers compensation insurance under the agreement between the temporary agency and the rehab facility . Plaintiff submitted conflicting expert opinion on storm in progress.

Prior Written Notice   Create Condition   Indemnity   Premature Motion  

Second Department
Utility company’s appeal from order granting city summary judgment dismissing claim and utility company’s cross-claims for contribution and indemnity on proof city did not have prior written notice of pothole plaintiff tripped on dismissed as utility company was not aggrieved by the order and order affirmed where utility company failed to show the city affirmatively created the condition. Utility company failed to show discovery might lead to relevant information or facts essential to oppose the motion solely with the city’s knowledge on its claim the motion was premature. Walker v City of Newburgh    

(1 summaries)

Uninsured   Arbitration   Hearing  

Second Department
Lower court erred in granting permanent stay of uninsured arbitration without a hearing where carrier met its initial burden of showing offending vehicle had insurance but insured raised issue of fact requiring a framed-issue hearing while temporary stay remained in place. Matter of Standard Fire Ins. Co. v Sanchez    

About Matt McMahon

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