December 26, 2017 | Vol. 86

(7 summaries)

Lien   Workers Comp  

Court of Appeals

The Court of Appeals clarified that when a future worker’s compensation award cannot be quantified until after the underlying third-party claim has been settled or reduced to judgment the worker’s comp carrier must pay its fair share of the litigation costs (attorney fees and expenses) at the time it can be quantified. To do otherwise would give the carrier a benefit from the settlement or judgment not contemplated by Workers Comp. Law §29. Matter of Terranova v Lehr Constr. Co.

Negligent Supervision   Intervening Cause   Duty   NYC  


Brain injuries to foster infant shaken by foster mother’s daughter’s teenage boyfriend left to care for the infant were foreseeable from placement agency’s negligence in not following its own rules in assuring a child care plan with proper adult supervision when the foster mother worked and placement of the infant into a known unstable household. Foster mother granted summary judgment under Holodook v. Spencer, and NYC granted summary judgment where there was no proof that it knew or should have known that the infant would be placed in the care of an inappropriate teenager. There were 2 dissents on the denial of summary judgment to the placement agency. De’L. A. v City of New York

Negligent Supervision   Motion to Dismiss   Emotional Harm   Fraud  

Second Deptartment

In a case of alleged bullying and inappropriate relationship between school/teachers and student, fraud claim against teacher dismissed for failure to plead with specificity, breach of contract claim against school for failure to provide a proper education environment dismissed as barred by a prior arbitration award, but remaining negligence and intentional infliction of emotional distress not dismissed as they stated causes of action against all the defendants. While educational decisions are normally litigated in an Article 78 proceeding (with a short statute of limitation) the tort claims did not have to be brought in an article 78 and were timely. Sua sponte dismissal in favor of non-moving defendants was improper absent “extraordinary circumstances.” Cheslowitz v Board of Trustees of the Knox Sch.

Comment: A unique case of bullying allegedly perpetrated by the school and teachers rather than other students, this is an example of the creative solutions that tort lawyers are starting to pursue for often unaddressed bullying.

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

Second Deptartment

School district, high school, and construction manager granted summary judgment on Labor Law §240(1) on proof that 3’ height differential between 2 level roofs when plaintiff went to find a ladder was not the sort of elevation risk contemplated by the statute. Industrial code 23-1.7(f)(vertical passage) didn’t apply since plaintiff was not working on the upper level, and defendants did not have the authority to control the work for Labor Law §200 and negligence. Pita v Roosevelt Union Free Sch. Dist.

Directed Verdict   Control  

Second Deptartment

Alleged owner and manager of building under condo conversion properly granted directed verdict after plaintiff’s case where plaintiff did not put in proof of ownership or control or responsibility of manager. Plaintiff’s claim that denial of prior summary judgment precluded a directed verdict was rejected. Zebzda v Hudson St., LLC

MVA   Bus   Directed Verdict   Wrongful Death   There to be Seen   Causation   Collateral Estoppel  


Directed verdict at the end of plaintiff’s case reversed and judgment in favor of NYCTA vacated because jury could rationally have found that bus driver who hit plaintiff’s decedent after he had been hit by co-defendant and was attempting to stand up was negligent for not seeing him, and that he was alive when hit by the bus. Co-defendant’s criminal conviction did preclude a finding that bus driver was a cause of decedent’s death because plaintiff was not a party to the criminal case. Public Admr of Bronx County v New York City Tr. Auth.

Governmental Immunity   Duty   Motion to Dismiss   Court of Claims  

Second Deptartment

State’s motion to dismiss for failure to state a cause of action granted where plaintiff was arrested and detained overnight on outstanding DMV ticket that he had in fact paid but DMV failed to record. Plaintiff could not show a special duty without which there can be no liability for the failure to perform a governmental ministerial function. Gonzalez v State of New York

(16 summaries)

Labor Law §200   Labor Law §241   Workers Comp Defense   Industrial Code  

Second Deptartment

One defendant granted summary judgment on proof the plaintiff was its special employee barred from recovery under the exclusivity of workers compensation. Other defendant granted summary judgment on Labor Law §200 and negligence on proof that it did not control the area where the plaintiff worked and on Labor Law §241(6) on proof that the industrial code provisions relied on by plaintiff did not apply. Dereveneaux v Hyundai Motor Am.

1983 Action   Assault   Battery   Duty   Notice  

Second Deptartment

County and police department owed a duty to protect prisoner from harm, even from herself, of dangers they knew or should have known of. Injured plaintiff and her husband testified that they told a detective she had recently been hospitalized for attempted suicide, that she told them she needed her medication and suffered from claustrophobia and anxiety when they put her in a cell on the second floor, and that she cried and begged for someone to open the cell door. When they opened the cell door she slipped out of her handcuffs, pushed open the door and jumped out of an open window. She testified that while on the ground a police officer kicked her. Summary judgment denied. Iannelli v County of Nassau

Discovery   Privilege   NYC  

Second Deptartment

NYC’s failure to timely object to plaintiff’s document demands foreclosed all objections to producing the documents except as to privileged material and palpably improper demands. Recine v City of New York



Defendants’ motion for summary judgment was not untimely where it was served within 120 days of Note of Issue even where it was filed after the 120 days. Fomina v DUB Realty, LLC

Comment: Unlike the First Department case of Woodward v Millbrook Ventures LLC which ruled that timeliness is determined by e-file date, not service, this did not appear to be an e-file case.

Duty   Vicious Propensity  

Second Deptartment

County denied summary judgment where inmate was attacked by other inmate distributing lunch, and claimed he was not provided with adequate medical attention, because it failed to eliminate issues of fact as to whether it knew or should have known of the dangerous propensity of the assaulting inmates where its papers showed that attacks involving inmates distributing meals occurred monthly and it failed to submit an affidavit from an expert showing that it provided adequate medical attention. Prisons have a duty to safeguard inmates from foreseeable attacks and to provide adequate medical attention. Adeleke v County of Suffolk

Vacate Default   Reasonable Excuse  

Second Deptartment

Plaintiff’s motion to vacate default in opposing motion for summary judgment on serious injury denied for failure to provide a reasonable excuse for not checking whether an opposition had been filed after an associate left the firm and waiting 3 months to make the motion to vacate. Law office failure may provide a reasonable excuse, but mere neglect will not. Ki Tae Kim v Bishop

Premises Liab   Open/Obvious   Inherently Dangerous   Notice   Last Inspection  

Second Deptartment

Building owner failed to eliminate questions of fact on whether condition of wet leaves on the 7th step of a 20 step exterior stairs was open/obvious and not inherently dangerous where plaintiff testified that it was overcast, a light at the bottom of the stairs was not functioning, and that he could only see down to the 5th step. Defendant also failed to show that it did not have actual or constructive notice where manager did not know if he checked the stairs during his last weekly inspection or if anyone else was responsible for removing leaves. Bissett v 30 Merrick Plaza, LLC

Premises Liab   Open/Obvious   Inherently Dangerous   Assumption of Risk  

Second Deptartment

The lower court granted park district summary judgment on assumption of risk where plaintiff jumped to catch a football he and a friend had been throwing around for 15 minutes and his arm hit a metal sign 6’7” above the ground that he was aware of, but the Second Department affirmed on the ground that the condition was open/obvious and not inherently dangerous. Genefar v Great Neck Park Dist.

Premises Liab   Prior Written Notice   Create Condition   BP  

Second Deptartment

Town met burden of showing that it did not receive prior written notice of condition but failed to show that it did not create the condition, a recognized exception to prior written notice, where a barricade extended into a pedestrian walkway as alleged in the BP. Toscano v Town of Huntington

Med Mal   Accepted Practice   Causation   Expert Aff   Speculation   Conclusory  

Second Deptartment

Hospital and colorectal surgeon made out entitlement to summary judgment upon expert affirmation of a colorectal surgeon that defendants did not depart from accepted practice in performing 7 follow up surgeries to correct a circulation problem in plaintiff’s decedent’s bowel after surgery to repair aortic aneurisms in her abdomen and that any claimed departure was not a cause of her death. Plaintiff’s expert’s opinion failed to raise a question of fact in failing to address specific opinions offered by defendants’ expert and was speculative and conclusory. Keun Young Kim v Lenox Hill Hosp.

Premises Liab   Elevator   Notice   Res Ipsa Loquitor   Speculation   Conclusory  

Second Deptartment

Summary judgment granted to property owner on proof that it did not have actual or constructive notice of elevator mis-leveling that caused plaintiff to fall, and to elevator company with maintenance contract on proof that that it did not have actual or constructive notice of the condition and did not fail to use reasonable care to discover and correct it. Plaintiff failed to show that condition would not happen absent negligence negating res ipsa loquitor and his expert’s opinions were speculative and conclusory. Goodwin v Guardian Life Ins. Co. of Am.

MVA   Question of Fact  


Defendant denied summary judgment on conflicting versions of how the accident happened, including what lane co-defendant was in. Morris v Green

Med Mal   Informed Consent   Set Aside Verdict  

Second Deptartment

Plaintiffs’ motion to set aside defense verdict finding that husband was given appropriate information regarding vasectomy before procedure on informed consent claim denied where conflicting experts testified. Verdict was reached on a fair interpretation of the evidence. Alessi v Mucciolo

MVA   Comparative Fault  


Defendant granted summary judgment on testimony of both drivers that plaintiff made a left turn from the right lane into the side of defendants’ vehicle establishing a violation of VTL §1160(c). Defendant driver’s testimony that he was ahead of plaintiff, lawfully in left lane and could not avoid accident establish lack of comparative fault. Aguila v Benitez

Serious Injury  

Second Deptartment

Defendants met burden for summary judgment on serious injury by competent medical evidence on permanent consequential and significant limitations and plaintiff’s testimony that he only missed 2 weeks of work on 90/180-day category. Dae Kyoo Kim v Lemon Transp. Corp.

Serious Injury   BP  

Second Deptartment

Defendants failed to meet their initial burden for summary judgment on serious injury by failing to address plaintiff’s claim under the 90/180-day category in the BP. Stead v Serrano

(0 summaries)

About Matt McMahon

Civil trials and appeals since 1984
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