December 22, 2020 | Vol. 241

MUST READS
(6 summaries)
NOTEWORTHY IF YOU MUST READ

MVA   Motion to Dismiss   Statute of Limitations   Late Notice of Claim  

Second Department

Defendants met burden for dismissal on proof action was commenced more than 1-year and 90-days after accident shifting burden to plaintiff to show applicable tolls. Plaintiff was only entitled to tolls for period from commencement of petition for late Notice of Claim to denial and again from motion to renew and time it was granted, not from initial petition until ultimate granting of petition. Properly calculating toll, action was commenced beyond statute of limitations. Artup v Simeone


Motion to Dismiss   Settlement   Gen. Obl. L. § 15-108(a)  

First Department

“A vicariously liable party can settle, then seek common law indemnity from a non-settling active tortfeasor,” and the presence of multiple tortfeasors does not preclude an indemnity claim. Allegations of Complaint stated cause of action for indemnity not barred by GOL §15-108. Lexington Ins. Co. v Public Adm’r of N.Y. County


Set Aside Verdict   Mistrial   Pain/Suffering   Materially Deviates   Notice  

First Department

Where defendants did not request a mistrial or object to trial court’s corrective measures in response to plaintiff’s counsel’s “unnecessarily inflammatory” comments, under CPLR §4017 Court could only review lower court’s exercise of discretion which it found appropriate.

$1 million/$6 million past/future pain/suffering award modified to reduce future pain/suffering to $2 million for tendon and ligament ankle tears, herniated discs with 2-day spinal fusion surgery, and pain and limited movement. $7 million for future medical expenses reduced to $2,644,513 where there was inadequate support for clinical psychologist services and other estimates were inflated.

1%/99% apportionment of fault to owner of building up to 6-days before accident and owners at time of accident was not against weight of evidence which showed new owners were aware of condition and had time to correct it. Register v SAS Morrison LLC


MVA   Motion to Dismiss   Personal Juridiction   Service   CPLR §306-b   Graves Amendment  

Second Department

Defendant-driver’s pre-Answer motion to dismiss for lack of personal jurisdiction granted where acknowledgement sent with mail service under CPLR §312-a(a) was never returned and plaintiff made no other attempts to serve within 120-days as required by CPLR §306-b. Summary judgment granted Zipcar which owned car and company whose name it was registered in based on Graves Amendment on proof they were in business of leasing vehicles and were not negligent or engaged in criminal wrongdoing. Harewood v Car


Assault   1983 Action   Motion to Dismiss   Statute of Limitations   Collateral Estoppel   Negligent Hiring   Respondeat Superior   Appealable Order  

Second Department

Plaintiff’s state action for assault against police officer originally designated as “John Doe” brought after federal action was dismissed for plaintiff’s lack of diligent efforts to ascertain officer’s identity, necessary to allow substitution of named party to relate back to original Complaint under CPLR §1024, dismissed as time barred where §1024 issue was determined by District Court. Negligent hiring and retention claims against county dismissed for failure to state cause of action where plaintiff alleged officer was acting within scope of duty. No appeal lies from order compelling plaintiff to provide a more definite statement in Complaint. Moran v County of Suffolk


Premises Liab   Slip/Trip   Snow/Ice   Sidewalk   Create Condition   Notice   Comparative Fault   Emergency Doctrine  

First Department

EMT technician granted summary judgment against restaurant and building owner on proof restaurant hosed down sidewalk on a cold night causing it to freeze as owner watched, showing notice to owner. Plaintiff not required to show freedom from comparative fault or eliminate all other causes for summary judgment.

Plaintiff failed to show “danger invites rescue” doctrine applied where EMT technician could not show he was unable to avoid ice because person was in danger if not immediately transported. Benny v Concord Partners 46th St. LLC

NOTEWORTHY
(23 summaries)
MUST READS IF YOU MUST READ

Construction Liab.   Open/Obvious   Inherently Dangerous   Question of Fact  

First Department

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.


Labor Law §240   Labor Law §241   Labor Law §200   Ladder   Industrial Code   Control  

Second Department

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.


Labor Law §240   Labor Law §200   Safety Devices   Indemnity  

Second Department

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.


Premises Liab   Notice   Last Inspection   Expert Aff  

First Department

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


Labor Law §240   Labor Law §200   Sole Cause   Control   Notice  

Second Department

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


Prior Written Notice   Notice   Create Condition  

Second Department

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


Labor Law §241   Labor Law §200   Industrial Code   Create Condition   Notice   Last Inspection   Amend BP   Prejudice   Untimely   Reasonable Excuse  

First Department

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.


Slip/Trip   Pothole Law   Prior Written Notice   Create Condition   Speculation   NYC  

First Department

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


Premises Liab   Slip/Trip   Open/Obvious   Inherently Dangerous   Reargument  

Second Department

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


Premises Liab   Slip/Trip   Wet Floor   Notice   Last Inspection   Feigned Issue  

First Department

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


Vacate Default   Reasonable Excuse   Conclusory  

Second Department

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


Labor Law §240   Labor Law §200   Ladder   Recalcitrant Worker   Sole Cause   Control   Indemnity  

First Department

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.


Premises Liab   Construction Liab.   Duty   Slip/Trip   Create Condition   Notice   Building Code  

Second Department

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.


Labor Law §240   Safety Devices  

First Department

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


Med Mal   Informed Consent   Accepted Practice   Causation   Expert Aff   Speculation   Conclusory  

Second Department

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


Labor Law §200   Premises Liab   Control  

First Department

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.


Labor Law §241   Industrial Code   Discovery   Sanctions   Survelliance Video   Spoliation   Strike Answer   Subpoena   Reargument   Appealable Order  

First Department

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.


Premises Liab   Causation   Question of Fact   Expert Aff  

First Department

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


MVA   Preclusion   Res Judicata   Collateral Estoppel   Reargument  

Second Department

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


Motion to Dismiss   Forum non conveniens  

First Department

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


MVA   Directed Verdict   Set Aside Verdict  

Second Department

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


Premises Liab   Slip/Trip   Snow/Ice   Storm in Progress   Reargument   Renew  

Second Department

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.


Motion to Dismiss   Statute of Limitations   CPLR §205   Raised For First Time  

First Department

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.

IF YOU MUST READ
(3 summaries)
MUST READS NOTEWORTHY

Uninsured   Stay Arb   Notice   Prejudice  

Second Department

Insured’s notice to carrier of property damage on day of accident, while not notice of an uninsured claim, required carrier to show prejudice from 11.5 month delay in notice of uninsured claim. Carrier was prejudiced by lack of notice or opportunity to investigate fact plaintiff was injured in accident for 11.5 months and permanent stay granted. Matter of Allstate Ins. Co. v Jae Chel Kim


SUM   Stay Arb   Untimely   Reasonable Excuse  

Second Department

A delay in disclaiming cannot be reasonably explained where reason for disclaimer was or should have been apparent at the onset or where carrier fails to show delay was reasonably connected to conducting a thorough investigation. Carrier failed to show reason for disclaimer was not initially apparent or reasonably related to a thorough investigation making 4-month delay unreasonable. Matter of Liberty Mut. Ins. Co. v Rhone


Serious Injury  

Second Department

Defendant met burden of showing no serious injury by competent medical proof and plaintiff failed to raise an issue in opposition. The Court does not give the details of the proofs. Devito v Anatra

About Matt McMahon

Civil trials and appeals since 1984
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