| MUST READS (3 summaries) | |||
| NOTEWORTHY | IF YOU MUST READ | ||
 The Court of Appeals unanimously found that reports of road defects on the City of Albany’s online reporting system raised issues of prior “written notice” of the alleged road defect to the statutory designee of an agency that was abolished and replaced, despite users agreeing to terms that it “does not constitute a valid Notice of Claim nor valid prior written notice,” as the online system was promoted by the city and effectively gave notice to the statutory designee, bypassing the commissioner. The city’s failure to amend the prior written notice statute to designate the new agency did not make it “impossible” to give notice to the new agency where the act abolishing the old agency identified the new agency. The online notice was “written notice” in the same way that emails are written documents and the city could have amended the statute to define “written” differently, such as by ‘manually subscribed.’ Plaintiff’s engineer raised issues on the immediate dangerous exception to prior written notice with opinion that a water main repair 3-months before the accident that covered the hole with severe insufficient subbase and asphalt concrete caused roadway dipping and sinking that would have been immediately apparent. City not entitled to governmental immunity as roadway maintenance is a proprietary function. Calabrese v City of Albany ✉ |
| The Court of Appeals 4/3 declined to answer the certified question from the Fourth Department of whether interest accrues on a liability finding in a MVA case or only after a finding of serious injury as the Court does not review questions raised for the first time on appeal and its rarely used exception where the argument could not have been avoided through ‘factual showings or legal countersteps’ could not have been avoided at the lower court, did not apply. The dissenters would have found that interest accrues on a liability finding, with serious injuries being only a damage issue, which is the rule in the Second and Third Departments. The rule is less clear in the First Department. Sabine v State of New York ✉ |
 State’s motion to dismiss wrongful death claim for decedent who was struck by a subway train for the administrator’s lack of capacity to sue granted where letters of administration had not been issued at the time the Claim was filed which is a condition precedent to bringing an action under Court of Claims Act § 10(2) as the action must be commenced by an appointed administrator or executor and the state could not waive that precondition.Plaintiff not entitled to 6-month extension to file a new Claim because the filing of the original Claim without capacity was not “timely commenced” under CPLR §205(a). Matter of Gordon v State of New York ✉ Comment: From the lower court order, only voluntary letters of administration limited to obtaining medical records had been issued before the Claim was filed. |
| NOTEWORTHY (11 summaries) | |||
| MUST READS | IF YOU MUST READ | ||
 Defendants’ motions to set aside verdict awarding $700,000/$1,100,000 past/future pain/ suffering, $200,000/$150,000 past/future loss of services, $393,375 past lost earnings, $77,267 per year future lost earnings, and $35,307 loss of pension retirement income for a total judgment of $3,160,561.55 after CPLR Article 50-A adjustments, and for judgment as a matter of law denied as there was a rational path for the jury to find the triage nurse failed to take an appropriate history and that the ER doctor departed from accepted practice by failing to diagnose and treat plaintiff’s TIA, releasing him with a diagnosis of vertigo, dehydration, and sinusitis after which he had a stroke and that the verdict could be reached on a fair interpretation of the evidence. The awards for pain/suffering and loss of services did not materially deviate from reasonable compensation. Chicoine v Mendola ✉ |
| Motion for judgment as a matter of law at the close of plaintiff’s case properly granted to dismiss claims of 1983 violations for wrongful detention and excessive force in taking custody of a person for a mental evaluation since plaintiff did not allege or prove the officers’ actions were based on a municipal custom or policy under Monell but improperly granted dismissing battery claim as the jury could find the detention was not privileged under Mental Hygiene Law § 9.41 where the 60-year-old plaintiff was not violent or threatening to the officers who did not see a weapon and did not frisk her before they took her to the ground, handcuffed one of her wrists and, according to plaintiff, kicked her, jumped on her back, and tased her twice and that they were acting within the scope of their duties. Motion in limine to preclude plaintiff’s expert granted as speculative and conclusory where the expert did not review the officers’ EBT testimony and did not reference any standards, including Mental Hygiene Law § 9.41. Plaintiff’s motion to amend the Complaint during the trial to substitute John Does with the names of the officers providently denied as plaintiff made no genuine efforts to timely ascertain their identities and the amendment would be manifestly prejudicial. Mac v County of Suffolk ✉ |
| Plaintiffs’ motion to deem late Notice of Claim timely served nunc pro tunc providently granted where NYCHA conceded it received a lead abatement order within 90-days of the infant’s diagnosis, giving it actual knowledge of the essential facts of the claim. Plaintiffs’ failure to attach a proposed Notice of Claim to the motion, required by GML §50-e(7), was a technical defect that the court may overlook and plaintiffs’ motion indicated it was attached, but a different document was attached instead, and the motion clearly described the legal theory and underlying facts. S.A.N. v New York City Hous. Auth. ✉ |
| Petition to deem late Notice of Claim timely nunc pro tunc denied as untimely where petition was served more than 4-years after the accident. Pending action against NYCTA dismissed. Original Notice of Claim was served 93-days after the accident. Matter of Woodruff v New York City Tr. Auth ✉ |
| Defendants’ motion to dismiss plaintiff’s action for injuries when a scaffold fell on him at a construction site, based on a signed release that would bar the action, denied where plaintiff raised issues of whether it was signed “under circumstances that indicated unfairness and that the release was not fairly or knowingly made” on his affidavit that 2- supervisors told him he needed to sign it to return to work and that it would not jeopardize his existing action, he was not given time to read the release or discuss it with his attorney, he felt pressured to sign it because he couldn’t get a similar job to support his family, and there was no notary present when it was signed. Applewhite v 112 Liberty Assoc., LLC ✉ |
| Plaintiff’s motion to renew his prior motion for default judgment against abutting landowner improperly denied as untimely under CPLR §3215(c) where it was timely when Covid tolls added. Motion to renew improperly denied as untimely as there is no time limit to bring motion to renew except where based on a change in law and plaintiff was not required to show a reasonable excuse for the delay because the original motion was denied with leave to renew. Plaintiff’s motion for default judgment granted on proof of service of the Summons and Complaint, defendant’s default, and the facts of the claim. Smith v Realty on Fox Croft Corp. ✉ |
| On its finding NYCTA failed to provide demanded documents, lower court providently ordered NYCTA to produce documents of all prior gap-related accidents throughout the subway system under preclusion of denying at trial that certain other accidents were not substantially similar to plaintiff’s accident. Lower court improvidently ordered NYCTA to allow another plaintiff’s counsel entry to its video surveillance facility for a site inspection where NYCTA conceded it was possible that plaintiff’s accident was captured on video but destroyed after 30-days, years before plaintiff’s demand, as there was no material information to be gained from the inspection. The lower court providently ordered NYCTA to provide documents demanded by that plaintiff under preclusion but improperly shifted the burden of identifying the outstanding discovery, after the court found NYCTA was not entitled to qualified immunity, from the court to the plaintiff. Pollack v New York City Tr. Auth. ✉ |
| Building owner denied summary judgment dismissing plaintiff’s claim for 6-story fall when she stepped on a fire escape ladder missing a rung as its engineer’s opinion that plaintiff’s version was impossible was conclusory without “calculations, formulas, or evidence,” and a resident’s testimony confirming how the accident occurred left questions of fact. Plaintiff’s alleged legal intoxication was not a superseding or intervening cause. Plaintiff’s safety consultants’
opinions properly considered even though they were not engineers. Farella v 351 E 61 Realty LLC ✉ |
| Worker injured when bucket she was being lifted in to fourth floor snagged on scaffolding, ejecting her and her retractable lanyard did not operate properly to arrest her 20′ fall granted summary judgment under Labor Law §240(1) on her affidavit, coworkers’ affidavits and testimony, and construction manager’s affidavit confirming the manner in which the accident occurred, which was an admission. Unauthenticated incident reports inadmissible but plaintiff met her burden of proof on the other testimony. Defendants failed to show motion was premature. Harjo-Codd v Tishman Constr. Corp. ✉ |
| GC granted summary judgment dismissing negligent hiring and supervision claim of building owner’s worker who was assaulted by an employee of a subcontractor as it did not hire the subcontractor’s employee and did not have sufficient control over the assailant who was supervised by the subcontractor. Respondeat superior not applicable where the assault was not in furtherance of any business interest or the scope of his employment and the GC had no knowledge of the assailant’s propensity. Rodriguez v Manhattan Restoration LLC ✉ |
| Building owner granted summary judgment dismissing plaintiff’s claim for trip and fall on tenant’s door saddle on proof it was an out of possession landowner with no duty to maintain the tenant’s space except for a limited right of reentry to make repairs if tenant did not, the defect was not structural, and plaintiff did not allege violation of any specific statute. Goodson v Steph-Leigh Assoc., LLC ✉ |
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| MUST READS | NOTEWORTHY | ||