December 20, 2022 | Vol. 344

(8 summaries)

Vacate Default   Appealable Order   Untimely   Reasonable Excuse  

Second Department
Pro se defendant’s appeal from denial of motion to vacate order awarding $274,541.54 after inquest and ordering plaintiff to settle order dismissed as no appeal lies from denial of motion to vacate a decision but granted to reverse initial decision granting default and ordering inquest, and vacating order after inquest where plaintiff waited 2.5-years to settle order after inquest which must be settled within 60-days under 22 NYCRR §202.48 and plaintiff failed to offer a good excuse for waiting so long to settle the order. Cruz v Pierce    

Malpractice   Directed Verdict   Set Aside Verdict   Accepted Practice   Causation  

Second Department
Defendants’ motion to set aside verdict which found defendant-doctor departed from accepted practice by performing McMurrary test on patient’s left knee while standing on patient’s right side instead of left and for grant of judgment as a matter of law denied as there was a rational path for the verdict viewing the evidence in the light most favorable to plaintiffs, but motion to set aside verdict as contrary to the evidence granted as the verdict could be reached on any fair interpretation of the evidence. Case remanded for a new trial as the Court did not have power to make new findings of fact after finding the jury made mistaken findings of fact. Osorio v New York City Health & Hosps. Corp.    

Motion to Dismiss   Court of Claims  

Second Department
Claim dismissed as description of location in Claim where decedent sustained fatal injuries when his bicycle hit loose gravel as “entrance roadway of Tallman Mountain State Park” without a road name insufficient to meet pleading requirement of Court of Claims Act §11(b) which must be strictly construed as waiver of sovereign and State is derogation from common-law. State not required to look beyond Notice of Intention and Claim. Vallarta v State of New York    

Malpractice   Motion to Dismiss   Notice of Claim   Statute of Limitations   Court of Claims  

Second Department
State’s motion to dismiss Claim granted where claimant alleged range of dates action arose in Notice of Intention and actual date when defendant’s employee spilled hot wax on her face while preparing to take a dental mold was outside that range which was insufficient to meet pleading requirement of Court of Claims Act §11(b) which must be strictly construed as waiver of sovereign immunity is derogation from common law. State is not required to look beyond Notice of Intention or Claim.

The Court pointed out that its language in prior cases suggesting “substantial compliance” might be sufficient does not apply to the joint requirements of a Notice of Intention and Claim which require an accurate description of the date, time, and place.

Plaintiff’s reliance on continuous treatment irrelevant where the defective Notice of Intention did not extend the time to file the Claim, making the Claim untimely. Sacher v State of New York    

Labor Law §240   Labor Law §241   Notice of Claim   Untimely   Reasonable Excuse   Meritorious Action   Prejudice   Court of Claims  

Second Department
Plaintiffs’ motion for leave to file late Claim granted and defendants’ motion to dismiss denied where plaintiffs timely filed a Notice of Intension for fall from ladder while working at the TZ bridge but served only the Attorney General and not NYSTA, even though they lacked a reasonable excuse for not serving NYSTA, where the claim appeared to have merit, was not patently frivolous, and NYSTA had actual knowledge of the essential facts within 90-days, and it would not be prejudiced by allowing the late Claim. Swart v State of New York    

Motion in Limine   Appealable Order   Court of Claims  

Second Department
Claimant’s appeal from Court of Claims’ denial of motion in limine to preclude testimony of certain witnesses dismissed as there is no appeal, by right or permission, from an evidentiary ruling in advance of trial which is merely an advisory opinion. Credendino v State of New York    

Labor Law §240   Vacate Default   Discovery   Reasonable Excuse   Meritorious Action   Prejudice  

First Department
Lower court improvidently denied plaintiffs’ unopposed motion to vacate court’s sua sponte dismissal for failure to provide a discovery progress update on date set by the court where correspondence among counsel showed plaintiffs had the wrong date and none of the defendants corrected the date, establishing a reasonable excuse by law office failure, and plaintiff showed a potentially meritorious Labor Law §240(1) action with the injured plaintiff’s testimony that ladder at construction site moved, causing him to fall.

Dismissing plaintiffs’ action when all parties failed to comply “unfairly penalized only plaintiffs.” Melikov v 66 Overlook Terrace Corp.    

Highway Design   Qualified Immunity   NYC  

Second Department
NYC’s proof of no prior accidents or complaints or prior traffic studies at intersection where plaintiff claimed stop sign was set too far back to allow drivers to properly look for traffic before entering intersection insufficient for summary judgment as they were not entitled to qualified immunity without proof the original design was based on a deliberative decision-making process that considered the issue to be put to the jury. Lack of prior accidents or complaints for 5-years alone does not show intersection was safe, NYC did not submit any expert opinion on safety of intersection, and party depositions raised issue of whether it was safe. Petronic v City of New York    

(19 summaries)

Premises Liab   Dogbite   Notice   Vicious Propensity   Speculation  

Second Department
Homeowners granted summary judgment where tenant’s pit bull bit plaintiff on proof they did not know or should have known of dog’s vicious propensities. Belief that “beware of dog” sign was result of dog’s behavior was speculative and plaintiff’s testimony that dog had a reputation for viciousness, the homeowners visited the building often, and a neighbor’s affidavit that the dog ran loose, growled, and barked did not raise an issue on whether the homeowners knew of the dog’s propensities. Brooks v Adell    

MVA   Control   Vicarious Liab  

First Department
HMO which provided transportation to medical appointments granted summary judgment where it did not arrange for transport with the taxi service and in any event did not have any control or supervision over driver for vicarious liability. Coker v Perez    

Prior Written Notice   Untimely   Reasonable Excuse  

Second Department
Town’s late motion for summary judgment granted on proof it did not receive prior written notice of sand on road that caused plaintiff to fall from her bike and verbal complaints cannot satisfy requirement of prior written notice.

Plaintiff’s scheduling record officer’s EBT after summary judgment deadline provided good cause to entertain the late motion. Panzavecchia v County of Nassau    

Labor Law §240   Labor Law §241   Labor Law §200   Safety Devices   Gravity Risk   Falling Object   Sole Cause  

First Department
Alimak construction hoist operator injured when 30 lb. emergency hatch at top of hoist fell on him as he stood on a ladder to reach an emergency serviceperson after the hoist got stuck granted summary judgment on Labor Law §240(1) as the safety device (hoist) was inadequate to protect him from the foreseeable need to exit the emergency hatch and he would have been entitled to summary judgment even if the hatch was the safety device as it failed to protect him from a falling object given the weight and distance the hatch fell. The manner in which plaintiff climbed the ladder or opened the hatch was at most comparative fault. Labor Law §241(6) and 200 claims dismissed. Ladd v Thor 680 Madison Ave LLC    

Premises Liab   Negligent Supervision   Building Code   Dangerous Condition   Notice   Foreseeability   NYC  

First Department
Plaintiffs failed to meet burden for summary judgment where wooden cubby outside classroom fell on kindergartner as she retrieved her lunch as their expert failed to cite any standard or regulation requiring the cubby to be attached to the wall, opine that the condition was otherwise dangerous, that defendants had notice the condition was dangerous, or that an inspection would have shown it to be dangerous. On negligent supervision claim, plaintiff did not show it was unreasonable to allow kindergartner to go to cubby in the hall with personnel close by in the classroom or that any degree of supervision could have prevented the accident. M.O. v City of New York    

Informed Consent   Negligent Hiring   Negligent Supervision   Respondeat Superior   Spoliation  

Second Department
Informed consent claim does not apply to situations where a procedure is delayed or not performed as in this birth injury case. Defendants granted summary judgment dismissing negligent hiring and supervision claims as hospital is responsible for employees acting within the scope of their duties under respondeat superior and plaintiff failed to raise an issue on the punitive damage for gross negligence exception.

Lower court providently denied striking Hospital’s Answer where it lost fetal monitoring strips and deferred question of adverse inference to trial judge. S.W. v Catskill Regional Med. Ctr.    

Premises Liab   Sidewalk   Duty   Create Condition   Causation  

Second Department
For summary judgment landowners are ‘required to do more than simply demonstrate that the alleged defect was on another landowner’s property.’ Homeowner defendants failed to meet burden by fact that plaintiff tripped on 3″ height differential between sidewalk flags on neighboring property where one of the flags extended several feet onto their property and they offered no evidence it was maintained in a reasonably safe condition or that it was not a cause of plaintiff’s accident. Village ordinance shifted tort liability to abutting landowners. Kuritsky v Meshenberg    

Construction Liab.   3rd Party Contractor   Espinal   Experts   Speculation   Indemnity  

First Department
Contractor which backfilled are it excavated granted summary judgment as Con Ed’s inspection and approval of work, including compacting backfill, 5-years before plaintiff’s accident proved it did not launch an instrumentality of harm under Espinal. Plaintiff’s expert’s opinion that backfill was not properly compacted failed to raise an issue, and was speculative, where expert did not opine it could be the only cause of the defect, instead opining the defendant paving contractor also failed to seal the pavement.

Contractor denied dismissal of Con Ed’s indemnity claim as it did not show injury was solely result of work by paving contractor and Con Ed. McDaniel v City of New York    

Premises Liab   Duty  

Second Department
Real estate agency granted summary judgment as it owed not duty to plaintiff where it did not own, occupy, control, or make special use of the house it was showing to a prospective buyer who slipped on a wooden wheelchair ramp. Kennedy v Hennessey    

Premises Liab   Wet Floor   Notice   Unknown Cause  

First Department
Defendants’ successive summary judgment motions, discouraged absent new evidence, improper where plaintiff’s subsequent deposition did not contradict his original testimony which established the cause of his fall and did not alter defendants’ failure to show lack of constructive notice. Dembele v Action Carting Envtl. Servs., Inc.    

Premises Liab   Duty  

Second Department
Town granted summary judgment as it provided safe egress from its building and provided only the occasion for plaintiff’s fall in a dip in State roadway she entered after leaving town’s building as property owners have no duty to protect against dangers on neighboring property. Town had no duty to illuminate a State roadway. Buehler v Town of Pawling    

Premises Liab   Renew   Reasonable Excuse   Indemnity  

First Department
Motions to renew opposition to defendants’ motions for summary judgement dismissing plaintiff’s claims and dismissing Con Ed’s indemnity claim denied where new written document showing a specification for location was in Con Ed’s possession since 2008 and claim it didn’t show up on their initial search was insufficient to show due diligence. Plaintiff became aware of the document at an EBT in 2016, before Note of Issue, but never requested it. Claim that remaining defendants should have disclosed it rejected as it was exclusively within Co Ed’s possession. Rodriguez v Consolidated Edison Co. of N.Y., Inc.    

Serious Injury   ROM   Admissibility   Unaffirmed Report   Experts  

First Department
Defendants granted summary judgment on neurologist report showing normal ROM with no evidence of neurological impairment and expert’s failure to address diagnostic and operative findings of a herniated disc did not detract from fact defendants met their burden. Plaintiff’s testimony he returned to work after 2-weeks and was never confined to bed/home met burden to dismiss 90/180-day category.

MRI reports showing herniated discs and facet arthrosis does not meet serious injury threshold without objective medical evidence of significant physical limitations. Unaffirmed medical reports and records of treating physicians ignored and defense expert’s review of them did not open door for plaintiff to rely on them where defendants did not submit them and their experts did not rely on them. Chiropractor’s unsworn report rejected as chiropractor reports must be notarized. Burgess v Avignon Taxi, LLC    

Premises Liab   Consolidation   Prejudice  

Second Department
Consolidation of personal injury cases of firefighters injured when responding to fire at restaurant with cases involving various property damage and indemnity claims resulting from the same fire providently denied as potentially unwieldy and restaurant owner could be prejudiced in its defense of personal injury claims were property claims included in the same trial. Restaurant’s motion to preclude consolidation of claims granted. Catlett v Szechuan Gourmet    

Premises Liab   Sidewalk   Question of Fact   Espinal   Open/Obvious   Inherently Dangerous   Indemnity   NYC  

First Department
Motions for summary judgment by NYC, building owner, and tenant for plaintiff’s trip on spiked guard around empty tree well denied where questions remained of whether it was open/obvious and not inherently dangerous by its nature and location, whether tenant-Tavern was responsible for the tree well and guard and wholly displaced landlord’s obligation to maintain the area in a reasonably safe condition.

Tenant denied summary judgment for common-law and contractual indemnity against landlord where issues remained on their negligence. Holmes v City of New York    

MVA   CPLR § 3126   Appealable Order  

Second Department
Where plaintiff counsel represented that a stipulation was pivotal to lower court’s dismissal of action pursuant to CPLR §3126 but did not include a copy with the record, the record was inadequate and appeal dismissed. Carl Daily Leasing Corp. v Larochelle    

Premises Liab   Open/Obvious   Inherently Dangerous   Survelliance Video  

First Department
Supermarket denied summary judgment where surveillance video and photographs showed the plastic shopping basket that caused plaintiff to trip on the floor next to a large cart with plastic baskets piled on top leaving questions of whether it was open/obvious and not inherently dangerous or a ‘trap for the unwary.’ Castro v Village Super Mkt. of NY, LLC    

Premises Liab   Sidewalk   Raised For First Time  

First Department
Defendants’ motion for summary judgment denied where they failed to show sidewalk defect was not abutting their property and plaintiff consistently described where he fell and identified the defect on photographs. Any inconsistencies in plaintiff’s testimony go to credibility. Whether plaintiff’s subsequent accident was a superseding cause not considered where raised for the first time in reply. Serrano v Brook Plaza, LLC    

MVA   Pileup   Nonnegligent Explanation   Causation   Sole Cause  

Second Department
Defendants, driver and owner of vehicle in pileup accident granted summary judgment on proof their vehicle was stopped with hazard lights on when rearended by fourth vehicle whose driver was intoxicated. Stopping in lane of traffic with hazard lights on only provided occasion not causation for accident. Fuzailova v Rincon    

Comment: Plaintiff’s motion to renew denied where EBT transcript would not have changed the original determination. Fuzailova v Rincon. Defendants, driver and owner of vehicle plaintiff exited from granted summary judgment on proof intoxicated driver who struck vehicle pushing it into their vehicle was sole cause of accident. Fuzailova v Rincon.
(3 summaries)

Malpractice   Motion to Dismiss   Causation   NYC  

First Department
Law firm’s motion to dismiss carrier’s malpractice claim denied as Complaint sufficiently alleged facts that carrier would have achieved a better result than $4mil settlement in defense of action absent firm’s negligence but granted as to claims of fraud and misrepresentation where documentary evidence showed it fully disclosed its conflict and that it would not pursue any cross-claim against NYC. Federal Ins. Co. v Lester Schwab Katz & Dwyer, LLP    

MVA   Question of Fact  

Second Department
Defendants failed to meet burden for summary judgment where they submitted EBT transcripts of plaintiff and defendant driver leaving questions of fact. The Court does not give the details of the proofs. Baab v HP, Inc.    

Serious Injury  

Second Department
Defendants met burden for summary judgment on serious injury by competent medical proof. The Court does not give the details of the proofs. Antoine v Viera-Sanchez    

About Matt McMahon

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