December 20, 2016 | Vol. 33

MUST READS
(5 summaries)

Med Mal   Emotional Harm  

Second Deptartment

In upholding the lower court’s grant of summary judgment to the defendants in an action where a fetus was injured in utero, born alive, allegedly without consciousness, and died 8 days later, the Second Department expressly declined to expand the cause of action for a mother’s emotional harm recognized by the Court of Appeals in Sheppard-Mobley v King, 4 NY3d 627 (2005). Noting that the Sheppard-Mobley decision addressed a narrow class of individuals with no available remedy that overruled prior precedents, the Second Department further found that the deceased child was not without a remedy. Ward v Safajou


Premises Liab   Slip/Trip   § 7-210   NYC  

First

NYC, tenant of building adjoining sidewalk where plaintiff tripped and fell, should not have been granted summary judgment. While administrative code §7-210 does not ordinarily apply to a tenant, where the tenant has entered into a lease that is so comprehensive as to replace the landlord’s duty to maintain the sidewalk, the tenant may be responsible. The lease provided that NYC was required at its sole cost to make all repairs “ordinary and extraordinary, foreseen and unforeseen,” and that the owner would have no responsibility for sidewalk maintenance. Hsu v City of New York


Med Mal   Notice of Claim   Independant Contractor  

First

Lower court’s grant of summary judgment in favor of doctors for failure to serve a notice of claim on nonparty Westchester Health Corporation, the public service corporation that runs Westchester County Medical Center, was reversed for defendants’ failure to show that they were employees and not independent contractors of the nonparty or that they complied with the written request for indemnification required to trigger a statutory obligation to indemnify the doctors if they were found to be employees. Ayers v Mohan


Labor Law §240   Gravity Risk  

First

Plaintiff entitled to summary judgment on Labor Law §240(1) claim where the pallet jack he was operating with several thousand pounds of cinder blocks slid down a wet ramp due to the failure to provide adequate safety devices (braking and steering system on pallet jack) even though material was not being hoisted or secured at time of injury. The court distinguished the facts of this case from the Court of Appeals case of Nicometi v Vineyards of Fredonia, LLC, 25 NY3d 90 (2015) finding that it was not solely the slipperiness of the floor that caused the accident but the lack of adequate safety devices (the pallet jack), citing the Court of Appeals case of Runner v New York Stock Exch., Inc. 13 NY3d 599 (2009) ‘the single decisive question is whether plaintiff’s injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential.’ Landi v SDS William St., LLC


Labor Law §240   Labor Law §241   Workers Comp Defense   Collateral Estoppel  

First

Lower court properly granted plaintiff partial summary judgment on Labor Law §240(1) claim and denied defendant owner’s cross-motion for summary judgment on Labor Law §240(1) & §241(6). Plaintiff was an independent contractor hired to supply containers to the worksite and, per his unrebutted testimony, also hired to load debris into the containers. He was injured while loading debris into a container when the scaffold he was on collapsed. The building owner argued that plaintiff was not an “employee” for purposes of Labor Law §§240 & 241 as the Worker Compensation board had already determined that he was not an employee. The Worker Compensation Board finding, however, was not entitled to collateral estoppel as there was no identity of issues. The definition of employee for worker compensation benefits differs from the definition of employee under Labor Law. Plaintiff must show that he/she was “suffered or permitted to work” and was “hired” by someone for purposes of Labor Law protections. Issue in worker compensation hearing was whether plaintiff was an employee for whom worker compensation benefits were required. Finding that plaintiff was an independent contractor not entitled to worker compensation benefits was not tantamount to finding that he was a “volunteer” or performed services gratuitously and, therefore, he met the definition of employee for purposes of Labor Law §240(1). Vera v Low Income Mktg. Corp.

Comment: There was one dissent which agreed that there was no collateral estoppel but would have found a question of fact on whether plaintiff was an employee entitled to protection of Labor Law.

NOTEWORTHY
(30 summaries)

Med Mal   Ostensible Agency   Expert Aff  

First

Only one defendant podiatrist should have been granted summary judgment since he was a resident acting under the supervision and control of attending physicians. The expert affidavit relied upon by the other podiatrists did not make out entitlement to summary judgment since they were based on a portion of the plaintiff’s hospital record indicating that the wound on the left foot was not infected which was contradicted by plaintiff’s testimony, plaintiff’s expert’s opinion that the notes for the right and left foot were switched, and the hospital’s concession that it was likely an error. Defendant’s argument that plaintiff’s infectious disease expert who was not a podiatrist was incompetent to give an opinion was found unpersuasive. Mezzone v Goetz


False Arrest   Late Notice of Claim   Reasonable Excuse   Notice   NYC  

Second Deptartment

The lower court properly denied the plaintiff’s petition for leave to serve a late notice of claim for plaintiff’s failure to show a reasonable excuse for his delay in filing the notice of claim on his false arrest case. Neither an unsubstantiated claim of a “family emergency” which allegedly required him to be in Georgia, nor his ignorance of the need to serve a notice of claim, constitute a reasonable excuse. Plaintiff failed to show why he could not file the notice of claim prior to leaving for Georgia or why it could not be served while he was in Georgia. Plaintiff also failed to show that the defendant had actual notice of the facts constituting the claim within 90 days or a reasonable time thereafter or that the defendant would not be prejudiced by the delay. Matter of Hamilton v City of New York


Premises Liab   Labor Law §200   Slip/Trip   Agent   Notice   Workers Comp Defense  

First

Defendant building manager company was not entitled to summary judgment on Labor Law §200 and negligence claims where plaintiff, a porter in the building, tripped on a tool bag left in the stair landing by codefendant construction company. Building manager exercised “general supervision” over the contractors, was able to make complaints to them, and stop the job if it thought it was dangerous. General supervision was sufficient to impose a duty under Labor Law §200 and not the exclusivity claimed by the appellant. Since the building manager did not supervise the porter, it was not entitled to the worker comp defense even if it was found to be a statutory agent of the owner. Burgos v Premiere Props., Inc.


Premises Liab   Slip/Trip   Wet Floor   Set Aside Verdict  

Second Deptartment

Trial court correctly set aside verdict as internally inconsistent, ordered a new trial, and denied defendant’s motion for a directed verdict as a matter of law. At the liability phase of the trial, the jury found the defendant negligent, and its negligence a proximate cause of the accident and found the plaintiff negligent but not a proximate cause of the accident. During the damage trial, the jury sent a question asking if they should reduce their award by 15% given that they found the plaintiff 15% at fault. There was sufficient evidence to uphold the jury’s finding of liability but it was clear that there was jury confusion regarding apportionment of fault. When a jury gives an inconsistent verdict the court must either redirect the jury or order a new trial. Magee v Cumberland Farms, Inc.


Med Mal   Vicarious Liab  

First

Hospital and residents in case alleging that plaintiff sustained injuries after discharge from the hospital were entitled to summary judgment. The residents and hospital staff worked under the supervision of the codefendant attending physician, who was not included in the motion, and had no authority themselves to discharge the patient. Irizarry v St. Barnabas Hosp.


Premises Liab   Slip/Trip   Sidewalk   § 7-210   Create Condition   Expert Aff   Conclusory  

Second Deptartment

Defendant adjoining property owner should have been granted summary judgment upon showing that she fell within the exception for 1-3 family owner occupied houses used solely for residential purposes and that she did not create the raised sidewalk condition which caused the plaintiff to trip and fall. Plaintiff’s expert’s affidavit opining that the defect was caused by the roots of a tree on the defendant’s premises was conclusory and speculative. Adjoining landowners are not liable for defective conditions on the sidewalk caused by tree roots. Missirlakis v McCarthy


Premises Liab   Building Code   Handrail  

First

Defendant building owner entitled to summary judgment on claim that building did not comply with 1916 building code because it had only one hand rail. Building was built before 1916 and fell within the “Tenement Housing Law,” the precursor to the Multiple Dwelling Law, both of which only required one hand rail. Even if alterations had been made in 1931, the 1916 code specifically stated that it did not apply to buildings covered by the Tenement Housing Law. Ndiaye v NEP W. 119th St. L.P.


Vacate Default   Reasonable Excuse   Meritorious Action  

Second Deptartment

Defendant adult day care center was not entitled to vacate an order granting a default judgment for failure to answer the complaint under CPLR 5015(a) because it failed to show a reasonable excuse or potentially meritorious defense. Nor was it entitled to vacate the default under CPLR 317, which was not cited by the defendant, which permits the court to vacate a default when the defendant did not personally receive the summons and complaint in sufficient time to adequately defend and defendant has a meritorious defense. In both instances, defendant’s only proffered excuse was that its claim that it didn’t receive the summons and complaint and there was no proof that the address filed with the Secretary of State for service was incorrect. Goldfarb v Zhukov


MVA   Bicycle   Proximate Cause   There to be Seen  

Second Deptartment

Plaintiff was injured when she rode her bike between a parked car with its door open and a double-parked car striking the open door. Double parked car who was waiting to pull into a parking space should have been granted summary judgment as it merely furnished the condition for the accident and was not a proximate cause. Summary judgment was properly denied to defendants of car with open door as there was a question of whether it was reasonable to open the door and whether they observed what was there to be seen. Price v Tasber


MVA   Pedestrian   Comparative Fault  

Second Deptartment

Plaintiff made out his prima facie entitlement to summary judgment on testimony that he crossed almost halfway across the street with the pedestrian traffic light in his favor, in the crosswalk, after looking both ways, when defendant’s vehicle which was slowing down for a red light struck the plaintiff’s car. Defendant, however, raised a triable issue as to plaintiff’s comparative fault on his testimony that he was traveling 2 mph approaching the red light when he heard something hit the side of his limousine and when he stopped and got out he saw that his limousine had not yet reached the crosswalk raising the question of whether the plaintiff was in the crosswalk at the time of the accident. Lezcano-Correa v Sunny’s Limousine Serv., Inc.


MVA   Traffic Signs   Comparative Fault   Sole Cause  

Second Deptartment

Plaintiff was entitled to summary judgment on deposition testimony, photographs of vehicle damage, and defendant’s admission in an uncertified police report that he was inching forward through a stop sign when the accident occurred. Plaintiff did not have a stop sign and was entitled to rely on other driver yielding the right-of-way. Defendant’s deposition testimony that he was stopped in the intersection at the time of impact was irrelevant because he admitted that he did not see the plaintiff’s vehicle before the accident. Defendant’s arguments that plaintiff may have been speeding or negligent in not taking evasive action were speculative. Pivetz v Brusco


MVA   Vicarious Liab   Independant Contractor  

First

Taxicab medallion company is not vicariously liable for the taxicab driver where lease expressly disclaimed employee relationship and on proof that driver worked without a set schedule or guaranteed compensation and without direct control from medallion lease company. Proof that medallion company did background check, processed credit card payments for driver, and inspected the car weekly are mere “incidental or general supervisory control” that does not create an employee relationship. Zeng Ji Liu v Bathily


MVA   Rear End   Burden of Proof  

Second Deptartment

Defendants’ affidavits that their vehicle was “standing still” when struck in the rear by the plaintiff’s vehicle were not sufficient for summary judgment because they failed to explain why their vehicle was “standing still.” Defendants had burden of eliminating all possible grounds of fault regardless of plaintiff’s opposition. Suris v Citiwide Auto Leasing, Inc.


MVA   Comparative Fault  

Second Deptartment

Plaintiff’s deposition testimony submitted on his motion showed a conflict in testimony regarding where the plaintiff’s car was parked when defendant’s car struck it as defendant was making a right-hand turn. Violation of a VTL statute is negligence per se but the plaintiff failed to eliminate the possibility that he too was negligent by parking entirely within a crosswalk. Pena v Spade


MVA   Bus   Discovery  

First

It was a provident exercise of discretion to grant plaintiff’s motion for disclosure of 3 months post accident repair records of wheelchair ramp on bus to ascertain that it was the same ramp involved in the accident. The appellate court gave the defendant the option of executing an affidavit conceding that it is the same ramp. Perkins v New York City Tr. Auth.


Labor Law §240   Labor Law §241   Gravity Risk   Industrial Code  

First

Defendant entitled to summary judgment on Labor Law §240(1) claim where steel beam being cut by worker sprang up hitting the plaintiff since the accident was not caused by missing or inadequate protection against a gravity related risk. The appellate court found that the industrial codes relied upon by the plaintiff, requiring hardhats where risk of being hit on the head by falling objects or head bumping and structural integrity of floorboards, were inapplicable and granted summary judgment on the Labor Law §241(6) claim as well. Quishpi v 80 WEA Owner, LLC


Premises Liab   Sidewalk   Slip/Trip   Create Condition   Notice  

Second Deptartment

Defendant entitled to summary judgment where it showed that it did not create the icy patch on the sidewalk adjoining its property or have actual or constructive notice of the condition. Plaintiff failed to raise a triable issue of fact in opposition. Khalil v Fernandez


Premises Liab   Slip/Trip   Notice  

First

Defendant, parking garage owner, was entitled to summary judgment on proof that it did not own the cord or barrel or have notice of a cord being tied between a street sign and barrel where plaintiff tripped outside of parking garage. Lau v Margaret E. Pescatore Parking, Inc.


Premises Liab   Slip/Trip   Open/Obvious   Inherently Dangerous  

Second Deptartment

Defendant property owner entitled to summary judgment on proof that plaintiff tripped on yellow “wheel stops” in the parking lot which plaintiff testified she noticed shortly before her accident. Property owner is not responsible for conditions which are open and obvious and not inherently dangerous. Observable wheel stops or parking dividers are generally considered not inherently dangerous. Bogaty v Bluestone Realty NY, Inc.


Premises Liab   Stairs   Open/Obvious   Inherently Dangerous  

First

Defendant restaurant entitled to summary judgment on plaintiff’s testimony that he knew step was there, stair was sufficiently lit for him to see it, stair had a recessed light, and accident was caused by plaintiff not raising his foot high enough to clear the top of the stair. Plaintiff failed to raise a question of fact in opposition. Barakos v Old Heidelberg Corp.


MVA   Traffic Signs   Comparative Fault   There to be Seen  

Second Deptartment

Plaintiff made out her prima facie case for summary judgment with affidavit that traffic lights at the intersection were not working and that she stopped prior to entering the intersection and proceeded with all due caution. Defendant, however, raised a triable issue in opposition by his affidavit that he had a yellow flashing light and plaintiff had a red flashing light and that he slowly and cautiously entered the intersection when it was safe to do so after which the plaintiff’s vehicle struck the front driver’s quarter panel of his vehicle. VTL §1117 provides that when the lights at an intersection are not working properly, vehicles are required to stop as if there was a stop sign and proceed per the right-of-way rules. There can be more than one cause of an accident and even when a party has the right-of-way, they must proceed only when it is safe to do so. Plaintiff failed to show her freedom from comparative fault and motion should have been denied. Jeudy v Passmore


MVA   Discovery   Premature Motion   Independant Contractor  

Second Deptartment

Shortly after being added by amended complaint alleging that the driver of the vehicle was employed by the added defendant, the added defendant moved for summary judgment before any discovery, including EBTs. The lower court granted the motion and the Appellate Division reversed finding under CPLR 3212(f) that depositions of the defendants regarding their relationship and dealings may disclose evidence regarding whether the driver was an employee or independent contractor. Brielmeier v Leal


MVA   Discovery   Premature Motion   Emergency Doctrine   Comparative Fault  

Second Deptartment

Lower court properly denied plaintiff’s motion for summary judgment, before discovery, without prejudice to renew at the completion of discovery. Plaintiff failed to meet its burden of showing that he was free from comparative fault and defendant raised an issue of whether he was confronted with an emergency doctrine not of his own creation. Firayner v Castro


Appealable Order   Reasonable Excuse  

Second Deptartment

There is no appeal from a judgment or order entered upon a default. Only matters contested below can be addressed on an appeal which, in this case, was only the issue of whether the lower court improvidently exercised its discretion in not granting an extension of the return date of the defendant’s motions for summary judgment which were unopposed. Plaintiffs failed to show a reasonable excuse for the delay other than their own lack of diligence and denial of extension was not an improvident use of discretion. Adotey v British Airways, PLC


Personal Juridiction   Vacate Default   Reasonable Excuse  

First

When defendant moves to vacate a default and to dismiss based on personal jurisdiction, the reasonable excuse provision of CPLR 317 does not apply. Defendant had no contacts with the State of New York and plaintiff failed to raise triable issues of fact in opposition. Claim of tortious act outside of the state causing injury inside the state still required proof of doing business in New York or deriving substantial revenue inside the state or through international or interstate commerce. Liu Yu v Ma


Venue  

First

Defendant was not entitled to a change of venue from Bronx County to Westchester County as it failed to rebut the evidence that defendant’s employee’s stay at a rehabilitation center in Montrose New York at the time the summons and complaint was served on his mother in the Bronx was only temporary and that he resided in the Bronx. Defendant also failed to show that a change of venue was warranted based on convenience of witnesses. Manzo v Acevedo


Discovery   Strike Answer  

First

Lower court properly denied motion to strike Answer as defendant was already precluded from offering evidence regarding liability at trial and plaintiff could not show that he was unduly prejudiced by the delay sufficient to justify an additional drastic sanction.
Doino v RPS Corp.


MVA   Motion to Dismiss   Statute of Limitations  

First

Defendant’s motion to dismiss should have been granted where the plaintiff, who was the defendant in a prior action commenced in a different County for the same accident, raised an affirmative defense of comparative fault and that prior action was settled. The current action was brought after the statute of limitations but plaintiff sought to use the relation back theory to the time of the prior action. The relation back theory was inapplicable because plaintiff was not seeking to amend a pleading timely commenced and plaintiff cited no case law to support this use of the relation back theory. Plaintiff also failed to show that the delay in bringing the action was due to a mistake in the identities of the defendants (in the present action) which were always known to the plaintiff. Davis v Sanseverino


Appealable Order   Reargument  

First

Defendants failed to appeal the order denying its motion for summary judgment as untimely and no appeal lies from denial of a motion for reargument. Kitchen v Crotona Park W. Hous. Dev. Fund Corp.


Appealable Order   Reargument  

First

Defendants failed to appeal the order denying its motion for summary judgment as untimely and no appeal lies from denial of a motion for reargument. Kitchen v Crotona Park W. Hous. Dev. Fund Corp.

IF YOU MUST READ
(3 summaries)

SUM  

Second Deptartment

Carrier was entitled to declaratory judgment finding that it did not have to provide SUM coverage where the plaintiff was struck by another car just before he reached his work vehicle. He had driven the vehicle to his job, exited, retrieved papers necessary for a meeting, and was struck just returning to the vehicle. Under the SUM policy, the carrier was only obligated to provide coverage for someone “occupying” the vehicle. When a person has left the vehicle to perform a non-vehicle related task (retrieving papers) the person is no longer occupying the vehicle. In addition, it is not enough to “intend” to occupy the vehicle and someone on their way to the vehicle, but two has not reached it, is not covered. J. Lawrence Constr. Corp. v Republic Franklin Ins. Co.


Coverage   Raised For First Time  

First

Carrier was entitled to summary judgment where defendants admitted that they did not reside in the property at the time of the underlying accident for which they were being sued and the appellate court found that the word “reside,” was not ambiguous. Purely questions of law can be raised for the first time on appeal. Tower Ins. Co. of N.Y. v Zaroom


Coverage  

First

Carrier entitled to declaration that it had no duty to defend or indemnify based on insured’s unexplained 2-month delay in notifying it of the underlying personal injury action. Question of whether insured received claim letter from the injured party’s attorney prior to that and claim that he believed there was no liability were irrelevant since the 2-month delay in notifying the carrier of the commencement of the accident action was sufficient for disclaimer. Cruz v Western Heritage Ins. Co.

About Matt McMahon

Civil trials and appeals since 1984

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