Construction Liab. Open/Obvious Inherently Dangerous Question of Fact
Elevator company showed pallet topped with boxes of elevator parts was open/obvious and not inherently dangerous, but plaintiff raised issues in opposition that he couldn’t see wider pallet underneath the boxes as he walked his usual path or a sharp edge coming from the boxes on top that caught his shirt. Question remained on whether pallet was inherently dangerous where plaintiff had to navigate it suddenly and unexpectedly with other objects distracting him. Conflicting evidence must be resolved by the factfinder. Pizzolo v Thyssenkrupp El. Corp.
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Labor Law §240 Labor Law §241 Labor Law §200 Ladder Industrial Code Control
Both owner and tenant corporations that entered into contract for renovation of building denied summary judgment on Labor Law §240(1) where worker was standing on 9′-ladder that moved when he and coworkers tried to move concrete slab on roof/ceiling as it was an elevated risk during demolition and reconstruction covered by §240 and plaintiff testified a sling should have been used to secure the slab. Tenant was owner for §240 where sole shareholder was also sole shareholder of owner corporation and both corporations contracted for the work.
Defendants granted summary judgment on Labor Law §241(6) as industrial code §23-1.5(c) was inapplicable without proof crowbar was defective and proof that fall was not caused by structural instability that could have been avoided by proper inspections §23-3.3. Labor Law §200 claim dismissed where owner and tenant did not have authority control means and methods of plaintiff’s work. Gomez v 670 Merrick Rd. Realty Corp.
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Labor Law §240 Labor Law §200 Safety Devices Indemnity
Plaintiffs’ and defendants’ motions for summary judgment on Labor Law §240(1) denied where stack of cement boards fell off truck onto plaintiff when skid it was on broke. Questions remained on sole proximate cause where plaintiff-foreman directed transport and unloading of the boards, ordered his workers to unload damaged boards with a pallet jack instead of by hand using A-frame dollies, and whether defendants’ refusal to allow them to be unloaded with a street level hoist, the improper loading of the truck, how fast the truck was driven to the subbasement, and whether time constraints caused or merely furnished the occasion for the accident. There was 1-dissent on this issue. Questions also remained on Labor Law §200 and negligence on defendants’ directing deliveries in subbasement without street level hoist or whether concrete covered pipe the truck ran over was a dangerous condition.
Contractual indemnity claim against company that loaded and delivered boards dismissed where there was no contract, but issues remained on common-law indemnification and contribution. Valle v Port Auth. of N.Y. & N.J.
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Premises Liab Notice Last Inspection Expert Aff
Conflicting stories of whether bathroom floor in restaurant plaintiff slipped on was wet at time of accident and conflicting expert opinions on role chipped or repaired floor tile played in accident precluded summary judgment and defendant’s testimony of general cleaning practices without evidence of last time bathroom was cleaned or inspected did not eliminate questions of constructive notice.
Plaintiff raised issue on whether lost profits from personal business were caused by inability to devote his personal skill and ability to business because of accident. Gartenberg v Supreme Co. I LLC
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Labor Law §240 Labor Law §200 Sole Cause Control Notice
Cable provider and internet installation contractor it hired granted summary judgment of Labor Law §§240(1) and 241(6) claims on proof plaintiff, an independent contractor, was sole cause of his accident where he stepped from his 28′ ladder onto porch roof he knew was covered in snow to un-snag a wire and fell. Labor Law §200 and negligence claims dismissed against these defendants where they did not have ability to control means and methods of plaintiff’s work. Property owner granted summary judgment of §240 claim on proof it was not aware cable technician would be on property and did not consent to installation which was allowed to be installed under Public Service Law §228. Tomlinson v Demco Props. NY, LLC
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Prior Written Notice Notice Create Condition
Town failed to meet burden for summary judgment on prior written notice where it did not address plaintiff’s claims municipality created an immediately dangerous condition, an exception to the prior written notice rule, by its initial placement of the manhole and use of an ill-fitting manhole cover. The manhole cover gave way when plaintiff stepped on it. Dejesus v Town of Mamaroneck
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Labor Law §241 Labor Law §200 Industrial Code Create Condition Notice Last Inspection Amend BP Prejudice Untimely Reasonable Excuse
Contractor denied summary judgment on Labor Law §241(6) predicated on industrial code §23-1.7(e)(1)(tripping hazards and passageways) where wheel of container of cinder blocks plaintiff was pushing fell in 3″-gap when plywood covering broke and plaintiff’s motion to amend BP to include industrial code provision granted where there was no prejudice to defendant despite lack of excuse for 3.5-year delay in moving to amend. Contractor did not meet burden of showing it neither created nor had actual or constructive notice of condition for Labor Law §200 and negligence claims without proof of last time area was inspected. Trinidad v Turner Constr. Co.
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Slip/Trip Pothole Law Prior Written Notice Create Condition Speculation NYC
Plaintiff raised issues in opposition to NYC’s showing of entitlement to summary judgment on proof it did not receive prior written notice of defect on evidence NYC created an immediately dangerous condition by girlfriend’s testimony that workers who arrived in truck bearing “New York City” repaired the area 1-month before accident in response to her complaints area accumulates water and they left portions of the asphalt loose and raised because they only rolled over it once, plaintiff’s testimony and photographs showing a repair patch 1.5″ raised above surrounding area from the time of the repair 1-month before his accident, and NYC’s records showing they sent several crews to do repairs in the vicinity 35-days before the accident and there was no evidence that the defect occurred over time. Girlfriend’s testimony that NYC workers did the repairs even though she did not see “Department of Transportation” that would have been on repair trucks was not speculative as NYC cannot rely on gaps in testimony and the question should be resolved by jury. Martin v City of New York
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Premises Liab Slip/Trip Open/Obvious Inherently Dangerous Reargument
Lower court providently granted motion to reargue and on reargument denied defendants’ motion for summary judgment where assistant manager testified wheel stops in parking low would routinely be moved to move merchandise, and plaintiff testified she tripped over wheel stop which was not in its normal position, leaving questions of whether wheel stop was open/obvious or inherently dangerous given totality of the circumstances. Brett v AJ 1086 Assoc., LLC
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Premises Liab Slip/Trip Wet Floor Notice Last Inspection Feigned Issue
Restaurant denied summary judgment where manager’s testimony gave only general cleaning/inspection practices, and he could not identify last time area was cleaned/inspected before accident. His subsequent affidavit giving details of inspection, claiming he personally inspected area every 5-10 minutes, contradicted his deposition testimony. Whether area was heavily trafficked was not an issue for determination on summary judgment and would not preclude drinks being spilled in the area where testimony showed servers used the area to carry drinks to customers. Belton v Vornado Gun Hill Rd., LLC
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Vacate Default Reasonable Excuse Conclusory
Conclusory excuse that attorney needed more time to oppose motion court had adjourned for more than 1-month after attorney was to return from traveling was not a sufficiently detailed and corroborated explanation of law office failure to provide a reasonable excuse to vacate default. Tlais v Cinozgumes
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Labor Law §240 Labor Law §200 Ladder Recalcitrant Worker Sole Cause Control Indemnity
Worker who fell from ladder that was shaking and leaned to side missing rubber foot granted summary judgment on Labor Law §240(1) against building owners and contractor who hired plaintiff’s employer as subcontractor where contractor had authority to control activity causing the injury even if not exercised. Building owners failed to raise issue on sole cause without proof plaintiff knew and was instructed to use a different ladder and plaintiff testified he complained about condition to supervisor who advised him to use the ladder anyway. Contractor granted summary judgment on Labor Law §200 where it could not control means and methods of plaintiff’s work. Contractor did not meet burden for summary judgment on contractual indemnity claim where it failed to authenticate contract and Court declined to search the record. Garces v Windsor Plaza, LLC.
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Premises Liab Construction Liab. Duty Slip/Trip Create Condition Notice Building Code
Owner and manager of building with store plaintiff worked in, and contractor who subcontracted building of temporary plywood ramp while sidewalk was being reconstructed that plaintiff slipped on, failed to meet burden for summary judgment on proof they neither created nor had noticed of the condition where plaintiff made specific allegations including violations of building codes not addressed by defendants and they had a nondelegable duty as property was open to the public. Cox v 118 E. 60th Owners, Inc.
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Labor Law §240 Safety Devices
Worker who fell 12′ off roof of commercial building while cleaning exhaust fan granted summary judgment on Labor Law §240(1) where work was “cleaning” covered by §240 and plaintiff was not provided with any safety devices for work at an elevated height. Ixcoy v Pavlou
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Med Mal Informed Consent Accepted Practice Causation Expert Aff Speculation Conclusory
Dentist granted summary judgment on expert’s opinion that treatment over 6-months did not depart from accepted practice and was not a cause of plaintiff’s injuries. Plaintiff’s expert’s opinions did not raise an issue where conclusory and speculative. Informed consent dismissed where defendant established injuries were not caused by treatment. Kelapire v Kale
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Labor Law §200 Premises Liab Control
Homeowners granted summary judgment of Labor Law §200 and negligence claims of masonry worker who fell in hole dug by co-employees as accident was result of the means and methods of work and not a premises defect and homeowner did not have authority to control plaintiff’s work. Tsongas v Apex Constr./Masonry Corp.
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Labor Law §241 Industrial Code Discovery Sanctions Survelliance Video Spoliation Strike Answer Subpoena Reargument Appealable Order
Plaintiff denied summary judgment on Labor Law §241(6) on questions of whether accident occurred in passageway covered by industrial code §23-1.7(e)(1) and whether object was integral part of work. Spoliation sanctions and striking Answer unwarranted where plaintiff failed to show surveillance videos ever existed and why they no longer exist or that defendant violated any court order.
Sanctions against nonparty for not complying with subpoena unwarranted and not appealable where subpoena was squashed by stipulation resolving motion and plaintiff appealed from denial of motion to reargue not original motion. Jones v New York & Presbyt. Hosp.
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Premises Liab Causation Question of Fact Expert Aff
Hunts Point Market failed to meet burden for summary judgment where it did not show lighting in area where plaintiff was struck by truck while operating a pallet jack was adequate, that it did not have notice of condition, or that lighting was not a cause of the accident. In any event, plaintiff raised issues of fact by his testimony and photographs showing area was dark, truck driver’s testimony that he didn’t see plaintiff, proof that high mast lighting was not working, that he complained about it not working before the accident, and expert’s opinion that lighting was a factor in causing the accident. Marin v City of New York
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MVA Preclusion Res Judicata Collateral Estoppel Reargument
Lower court properly granted reargument of motion to preclude defendant from testifying that he was personally not involved in accident and denied motion where different judge previously found on motion to stay uninsured arbitration only that vehicle, not driver, was involved eliminating identity of issues for driver’s involvement under res judicata and collateral estoppel. Ali-Choudhury v Vartia
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Motion to Dismiss Forum non conveniens
Plaintiffs’ choice of home forum is most significant factor in determining forum non conveniens although not dispositive. Defendants’ motion to dismiss denied where managing directors were NY residents, board meetings took place in NY, and they pleaded NY as primary place of business in another case establishing connections to state. They failed to show corporate structure changed and failed to meet heavy burden of showing forum non conveniens factors point “strongly in [their] favor.” They identified only 3-witnesses in Anguilla, 1 who was in prison and available by video, but did show that the other 2 would not testify in NY. J.G. v Goldfinger
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MVA Directed Verdict Set Aside Verdict
Plaintiff’s motion for directed verdict at close of evidence and for verdict as a matter of law after defense verdict on liability denied as there was a rational path for jury’s verdict taking evidence in light most favorable to nonmoving party. Judgment entered for stipulated high/low amount. The Court does not give the details of the proofs. Kowalski v Oliver
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Premises Liab Slip/Trip Snow/Ice Storm in Progress Reargument Renew
NYCHA granted summary judgment on plaintiff’s 50-H testimony establishing a storm in progress and plaintiff failed to raise an issue of whether ice under the snow existed before the storm. Plaintiff’s motion to renew or reargue was in fact a motion to reargue as it offered no new facts improvidently denied. Brito v New York City Hous. Auth.
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Motion to Dismiss Statute of Limitations CPLR §205 Raised For First Time
Prior action dismissed for failure to prosecute is specifically not entitled to be refiled under CPLR §205(a) and fact prior action was not dismissed with prejudice does not change the statutory prohibition. Arguments raised for the first time on appeal were not considered. Duval v Centerlight Health Sys., Inc.
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