December 24, 2019 | Vol. 190

(5 summaries)

CPLR Art. 16   Preclusion  

Court of Appeals
$1 million judgment for plaintiff on jury verdict affirmed where trial court did not err in precluding defendant from asserting Article 16 defense against rehab facility or putting line for them on verdict sheet since parties agreed to sever case against rehab facility and defendant represented it would not seek to establish liability against them during this trial. Mancuso v Kaleida Health

MVA   Set Aside Verdict   Pain/Suffering   Materially Deviates  

Second Department
Motion to set aside jury verdict awarding $25,000/$0 past/future pain/suffering for torn meniscus requiring arthroscopic surgery and partial tear of hand ligament where surgeon testified it would not heal even with surgery granted unless defendants stipulated to increase award to $100,000/$50,000 as award of no future damages could not be reached on fair interpretation of evidence and past/future pain/suffering materially deviated from reasonable compensation. Cullen v Thumser

Med Mal   Wrongful Death   Pain/Suffering   Expert Aff  

First Department
Defendants’ motion to dismiss conscious pain/suffering claim based on experts’ affidavits opining that decedent had only signs of reflexes and not conscious pain/suffering and that it was “not medically plausible” that decedent blinked in response to questions as testified to by plaintiff denied where plaintiff also testified that decedent smiled, grimaced, moaned, and cried, noted in the medical records but not observe by anyone other than plaintiff, and plaintiff’s expert opined that based on plaintiff’s observations there was sufficient awareness for decedent to be aware of pain/suffering even without directly addressing defendants’ experts’ opinions. Estreich v Jewish Home Lifecare

Building Security   Privilege   Discovery  

Second Department
Extended health facility required to disclose all incident reports involving assault of resident by other resident where it raised only issue of medical privilege below and did not show that Ed. Law §6527(3) and Pub. Health Law §2805(1) barring disclosure of quality assurance investigations applied. Assailant’s admission report not subject to disclosure as he was not a party and did not waive privilege. DeLeon v Nassau Health Care Corp.

Discovery   CPLR § 3126   Sanctions   Preclusion   Willful/Contumacious   Settlement  

Second Department
In consolidated action for 19 wrongful death and personal injury actions from collision between train and car, plaintiffs’ motion to compel discovery and for sanctions under CPLR 3126 granted, without need to show willfulness, to the extent of granting conditional order of preclusion if not provided by a date certain. A conditional order of preclusion relieves the court of having to determine willfulness. Matter of Metro-North Train Acc. of Feb. 3, 2015

Comment: In a companion decision, train defendants required to provide copies of settlement agreements of a party who was both a plaintiff and a defendant, even though they contained a confidentiality clause, for an in camera inspection and upon the lower court’s inspection was required to provide them to the steering committee for the plaintiffs under the liberal interpretation of CPLR 3101 that the terms of the agreement may in good faith be sought for use as evidence, cross-examination, or rebuttal. Matter of Metro-North Train Acc. of Feb. 3, 2015.
(14 summaries)

MVA   There to be Seen  

First Department
Driver entering intersection with yield sign who tapped his brakes before entering intersection and looked to his left for oncoming 1-way traffic, but not to his right, granted summary judgment where plaintiff conceded he was driving wrong way on 1-way street, slowed slightly but did not stop before entering intersection with yield sign, saw defendant’s vehicle but did nothing to avoid collision or warn defendant. Defendant was not required to look to his right for traffic traveling in the wrong direction before entering intersection. Felix v Polakoff

Labor Law §240   1-2 Family Exception  

Second Department
Owners of building being renovated to be used as their residence entitled to summary judgment under 1-2 family exception of Labor Law §240(1). Even if portion of building was used for commercial purposes, defendant showed renovations were solely for residential purposes and plaintiff failed to raise issue in opposition. Romero v Bangiyeb

Dogbite   Vicious Propensity   Notice   Control   Bifurcation  

Second Department
Upstairs tenants in 2-family home denied summary judgment where their child secluded their dog in their apartment before allowing downstairs neighbor’s child, the infant plaintiff, to use the upstairs bathroom when the dog ran down the stairs and attacked the infant-plaintiff. Proof that dog owners often segregated dog to prevent interaction with visitors, dog had been purchased partly for security, severity of the attack, and that dog attempted to bite the infant-plaintiff 2-months before the incident tearing his pants made out knowledge of the dog’s vicious propensities. Building owner and management company granted summary judgment where they had notice of the dog’s presence 3-months before incident but never had notice of dog’s vicious propensities. Case remanded for decision on plaintiff’s motion for unified trial. King v Hoffman


First Department
Defendants’ motion to change venue from New York to Suffolk County based on inconvenience of 1 of defendants’ nonparty witnesses who was willing to testify about relevant information granted where 2 of plaintiff’s nonparty witnesses would not be inconvenienced as they routinely traveled to Suffolk County before the incident and plaintiff’s 3rd nonparty witness did not have potentially material testimony. Marcus v Jason & Bill

Labor Law §240   Labor Law §241   Labor Law §200   Control   Premature Motion  

Second Department
Town granted summary judgment prior to discovery on proof that utility pole and wires plaintiff was working on when he fell were not owned by town and there was insufficient nexus between plaintiff and town, whose property pole was on, to impose liability under Labor Law §§240(1) and 241(6). Accident was caused by means and methods of work and town established it did not contract for work or have authority to control work. Plaintiff failed to show what discovery would be necessary to oppose motion. Paul v Village of Quogue

MVA   Prior Written Notice   Recurring Condition   Dangerous Condition   Notice   NYC  

First Department
NYC granted summary judgment where driver’s car struck and rolled over guardrail on proof that NYC never received prior written of the defect, 8-prior flooding incidents did not show notice of a recurring condition as 3 involved another location, 3 were unsubstantiated, and remaining 2 were either timely or spontaneously resolved and none were caused by a clogged catch basin, 2 prior incidents of “collision with guardrail” in DOT records and 5 Notices of Claim for prior accidents all had dissimilar facts. Guardrail replacement contractor granted summary judgment on proof it did not repair subject guardrail. Benjamin v City of New York

Labor Law §241   Industrial Code   Comparative Fault  

Second Department
Worker granted summary judgment on Labor Law §241(6) based on industrial code §§23-1.5(c), 23-1.28(a) and (b), and 23-9.2(a) where front leg of 3-wheel compressor he and coworkers were pushing up driveway gave way severing his finger. Locking mechanism for front wheel broke 2-months before incident and was replaced by boss with ordinary screwdriver that popped out on day of accident. Plaintiff is not required to show freedom from comparative fault for summary judgment. Ortega v Roman Catholic Diocese of Brooklyn, N.Y.

Labor Law §241   Industrial Code   Notice  

Second Department
Where hand held hammer-drill plaintiff was using to drill hole for gas line during conversion from oil to gas spun and hit him, building owners and plaintiff’s employer granted summary judgment on Labor Law §241(6) claim based on pleaded industrial codes, §23-9.2(b)(1) which was a general safety standard, §23-9.2(a) because the hammer drill was not heavy equipment or machinery and they did not have notice of a defective condition, §23-9.2[a] §23-1.5[c][3] because they did not have notice of defect in hammer drill, and §23-3.3(c) because the conversion from gas to oil was not a demolition project. Nicola v United Veterans Mut. Hous. No. 2, Corp.

Motion to Dismiss   Governmental Function   Governmental Immunity   Special Duty  

First Department
Complaints that NYC failed to inspect fire hydrants, correct safety violations, ensure fire hydrant was operable, investigate or remove child who allegedly started fire, and failure to properly combat fire dismissed where there were no allegations that NYC assumed a special duty. Rosa A. v D&E Equities, Inc.

Med Mal   Accepted Practice   Causation   Expert Aff   Conclusory  

First Department
Plaintiffs’ expert failed to raise issue of fact in opposition to defendants’ showing that they timely performed fasciotomy and that infant-plaintiff had no damage for timing of procedure where expert misstated when infant was first diagnosed with compartment syndrome and gave only conclusory opinion on causation. J.G. v New York City Health & Hosps. Corp.

Premises Liab   Slip/Trip   Snow/Ice   Notice   Last Inspection  

Second Department
Condominium’s motion for summary judgment denied where it only provided proof of general cleaning principles and not last time icy walkway was cleaned or inspected. Carro v Colonial Woods Condominiums

Labor Law §240   Labor Law §241   Labor Law §200   Control   Question of Fact  

First Department
Defendants’ motion for summary judgment on Labor Law §§240(1) and 241(6) denied where questions remained as to whether plaintiff was engaged in protected work under Labor Law and on Labor Law §200 and negligence claims for questions of whether defendants had control over plaintiff’s work. Ramirez v A.W.&S. Constr. Co., Inc.

Motion to Dismiss   Personal Juridiction   CPLR §306-b   Meritorious Action   Statute of Limitations   Prejudice  

Second Department
Defendant’s successive motions to dismiss for lack of jurisdiction denied and plaintiff’s successive cross-motions to extend time to serve under CPLR 306-b granted where plaintiff made diligent efforts to initially serve Complaint at address defendant gave to police, showed he had a meritorious action, and quickly cross-moved to extend time to serve after expiration of statute of limitations. In defendants’ initial motion they gave a different address in New York, which was his most current address listed with DMV, but which was being demolished when plaintiff attempted service within the extended time to serve, and plaintiff further attempted personal service at Georgia address where defendant had admittedly lived, warranting denial of defendant’s second motion to dismiss and a further extension of 120-day period to serve the Complaint in the interest of justice. Defendants were not prejudiced by delay. Mighty v Deshommes

Premises Liab   Elevator   Res Ipsa Loquitor   Expert Aff   Indemnity  

First Department
Defendant’s expert’s opinion that based on inspection of the elevator it would be impossible for elevator to freefall or speed up raised questions of fact on how accident occurred and application of res ipsa loquitor. Clear language of elevator service agreement entitled building owner to contractual indemnity from elevator servicer regardless of owner’s own negligence. Berra v CHSP 36th St. LLC

(4 summaries)

Ins. L. § 3420(a)(2)   Default Judgment   Willful/Contumacious   Coverage  

Second Department
Carrier’s motion for declaration it was not required to indemnify insured for lack of cooperation denied where carrier showed it made diligent efforts, including letters, telephone calls, and visits to the insured to have it appear for deposition, but failed to meet the high burden of showing that insured’s attitude was of willful and avowed obstruction. Since carrier could not show this element of its claim, motion for default also denied. Foddrell v Utica First Ins. Co.

Premises Liab   Building Security  

Second Department
Plaintiff granted summary judgment on proof that security gate was negligently operated by defendant security company employee causing it to fall on plaintiff. The court does not give the details of the proofs. Tatom v Andrews Intl., Inc.

MVA   Rear End   Nonnegligent Explanation  

Second Department
Plaintiff made out prima facie entitlement to summary judgment by her affidavit stating that defendant struck her car in the rear while she was stopped but defendant raised question of fact on a nonnegligent explanation in opposition. The court does not give the details of the defendants’ proof. Clements v Giatas

Serious Injury  

Second Department
Defendants’ motions for summary judgment on serious injury, originally granted, denied on reargument where they failed to eliminate all questions of fact as to whether alleged injuries of the multiple plaintiffs met serious injury threshold. The court does not give the details of the proofs. Mobley v Foster Phillips Funeral Home, Inc.

About Matt McMahon

Civil trials and appeals since 1984
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