December 26, 2018 | Vol. 138

(6 summaries)

Discovery   Notice to Admit  


First Department reviews that the Notice to Admit is not a discovery device, especially after a Note of Issue, and can only be used “to eliminate from trial matters which are easily provable and about which there can be no controversy,” in excluding portions of plaintiff’s multiple Notices to Admit and motion to deem them admitted that could not reasonably be believed not to be in controversy, which were obtained from a non-party, or which were disguised discovery demands. Fetahu v New Jersey Tr. Corp.

Comment: This is a clear case to use whenever dealing with Notices to Admit.

MVA   Set Aside Verdict   Serious Injury  

Second Deptartment

$156,000/$750,000 jury verdict for past/future lost earnings set aside to the extent of removing future lost earnings for lack of reasonable certainty where plaintiff did not introduce competent medical evidence of future inability to work. Plaintiff was not required to show serious injury for economic losses exceeding $50,000 and there was a valid line of reasoning for jury to find initial lost earnings, proved to reasonable certainty by plaintiff’s testimony and W-2s, were caused by the accident. Gore v Cardany

Premises Liab   Slip/Trip   Snow/Ice   Create Condition   Notice   Last Inspection   3rd Party Contractor   Espinal  


Port Authority, owner of LaGuardia airport parking lot, failed to meet burden for summary judgment where its logs did not show icy condition, but witness testified that wouldn’t necessarily be documented in those logs and checking for icy conditions was not their focus. Plaintiff’s failure to see ice before fall did not establish lack of constructive notice where it was because she didn’t look down, not because it wasn’t visible.

Snow subcontractor did not meet burden for summary judgment where it failed to show it did not create condition by launching instrumentality of harm, including failing to continue to monitor area after it’s snow removal, and failed to show the condition prior to the accident. Other sub-contractor granted summary judgment on proof that it was “released” from snow/ice removal duties 11-days before accident and plaintiff failed to raise issue that icy condition was from before that time. Barrett v Aero Snow Removal Corp.

MVA   Emergency Doctrine   Serious Injury   BP   Expert Aff   Preclusion  

Second Deptartment

Defendant failed to meet burden for summary judgment on emergency doctrine where evidence raised question of fact as to whether he acted reasonably in light of emergency. Defendant also failed to meet burden on serious injury as to both plaintiffs by not addressing 90/180-day category allegations in BP and that one plaintiff did not meet threshold under permanent consequential and significant limitation categories. Aiken v Liotta

Comment: In separate opinion, court also upheld denial of defendant’s motion to enforce conditional order of preclusion where there was substantial compliance with the order. Aiken v Liotta.

Labor Law §240   Hearsay   Notice   Control   Agent  


Testimony of plaintiff and witness that he fell from ladder when it shifted entitled him to summary judgment on Labor Law §240(1). Defendants’ offer of statement in Workers Comp C-3 form was inadmissible hearsay where defendants did not establish that plaintiff was declarant and failed to offer expert opinion that “escalara,” written by plaintiff’s workers comp attorney, meant that he fell from “stairs” instead of “ladder” since it could be translated as either and there were no stairs near plaintiff’s work. Tenant’s testimony that she didn’t know extent of plaintiff’s work and that she allowed another person to act as her agent failed to raise issue of fact. Nava-Juarez v Mosholu Fieldston Realty, LLC

MVA   Uninsured   Stay Arb   Vacate Arb  

Second Deptartment

Petitioner’s motion to vacate arbitration award finding that he was not a covered person because he was not a passenger in insured’s car granted and remanded for a new hearing before a different arbitrator where arbitrator did not have authority to decide issue of coverage, which was a precondition to the arbitration, because carrier failed to move to stay arbitration waving all issues of coverage. Matter of Banegas v GEICO Ins. Co.

(8 summaries)

Premises Liab   Slip/Trip   Snow/Ice   3rd Party Contractor   Espinal   Create Condition   Notice  

Second Deptartment

Snow contractor entitled to summary judgment on proof that plaintiff was not a party to its contract for snow removal and plaintiff did not plead the launch an instrumentality of harm exception to Espinal. 3rd-party contractor cannot be liable for passive negligence. Owner and manager failed to meet burden for summary judgment where they did not submit evidence of parking lot condition prior to snowstorm and within a reasonable time after snowstorm and prior to plaintiff’s fall, including meteorological data. They could not meet their burden by merely pointing to gaps in plaintiff’s case. Bronstein v Benderson Dev. Co., LLC

Med Mal   Accepted Practice   Causation   Expert Aff  

Second Deptartment

OB/GYN failed to meet burden for summary judgment where expert did not address specific allegations in BP that amniotomy (artificial rupture of membrane) during labor induction was contraindicated given history of gestational diabetes, preeclampsia, and low-lying placenta and caused plaintiff’s bowel perforations. Perinatologist who consistently advised OB/GYN of low-lying placenta granted summary judgment on expert’s opinions that there was no departure or causation and plaintiff failed to raise an issue in opposition. Refuse v Wehbeh

Dental Mal   Spoliation   Sanctions  

Second Deptartment

Plaintiff not entitled to spoliation sanction for defendants’ failure to preserve pre-extraction mandibular study model where he failed to show that defendants intentionally or negligently destroyed it after notice that it might be needed for litigation. Cannella v Spector

Labor Law §241   Labor Law §200   Industrial Code   Control  

Second Deptartment

Construction manager granted summary judgment on Labor Law §241(6) where rebar that caught plaintiff-carpenter’s leg was integral part of work being performed under industrial code §23-1.7(e) and on Labor Law §200 where construction manager’s contract with plaintiff’s employer specifically stated that employer had sole responsibility for means and methods of work. Mitchell v Caton on the Park, LLC

Med Mal   Appealable Order   Privilege  

Second Deptartment

Defendants’ appeal from order denying motion to resettle prior order requiring them to produce privilege log dismissed as no appeal lies from an order not from a motion on notice. Only the original order requiring the privilege log would be appealable. Scully-Weinmuller v Gigante

False Arrest   Malicious Prosecution   Probable Cause   Amend Notice of Claim   NYC  

Second Deptartment

Police officers’ finding of gun and marijuana on plaintiff provided probable cause requiring summary judgment. Motion to amend Notice of Claim to include new theories denied. Adams v City of New York

False Arrest   False Imprisonment   Malicious Prosecution   Probable Cause   NYC  

Second Deptartment

Witness allegations provide probable cause unless there are “materially impeaching circumstances” that would require further investigation. Police and prosecutor were unaware of prior acrimonious history between plaintiff and victims and, therefore, had probable cause requiring summary judgment. Silverstein v New York City Police Dept.

SUM   Stay Arb   Raised For First Time  

Second Deptartment

Permanent stay of arbitration granted on proof that injured party was an occupier of his own car while trying to open door through an open window and not the insured’s car that belonged to his mother whom he lived with and was therefore subject to the policy exclusion for claims of occupiers of their own car. Carrier’s proof submitted for the first time in reply was properly considered as injured party was given an opportunity to submit a sur-reply. Matter of GEICO Ins. Co. v Rice

(1 summaries)


Second Deptartment

Petitioner raised questions of fact in response to MVIAC’s motion to dismiss based on pre-conditions to suit which could not be granted without an evidentiary hearing. Matter of Laszlone v Motor Veh. Acc. Indem. Corp.

About Matt McMahon

Civil trials and appeals since 1984
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