December 26, 2023 | Vol. 397

(6 summaries)

Labor Law §240   Falling Object  

Court of Appeals
Recognizing that Labor Law §240(1) does not apply solely to construction sites, the Court of Appeals declined to expand its application where a mechanic was repairing a trailer’s air brake system when the trailer he had raised with a front loader rolled back causing the trailer to fall on him, finding §240 was not intended to cover “ordinary vehicle repair” and that finding otherwise would subject all vehicle owners to absolute liability for elevated related injuries to vehicle mechanics. There was 1-dissent. Stoneham v Joseph Barsuk, Inc.    

MVA   Motion to Dismiss   Settlement   General Release  

Second Department
Defendants’ motion to dismiss MVA action based on $150,000 general release from prior action involving the same accident denied where plaintiff alleged in opposition that he never consented to or signed any documents for the settlement, raising issues of fact on whether the settlement was obtained by “fraud or illegality” and defendants’ documentary evidence did not utterly refute plaintiff’s allegations. Ming Long Liu v Kirkwood    

Discovery   NYC  

First Department
NYC required to disclose date of birth of nonparty witness with a common name who was homeless as providing only his name/address would unlikely help plaintiff locate him but it was not required to disclose his Social Security number which “courts have recognized [has] a heightened level of confidentiality.” Lane v City of New York    

Comment: Plaintiff was a nurse who was assaulted by the nonparty witness with left alone with him at the Manhattan Detention Complex.

Premises Liab   Strike Answer   Vacate Default   Discovery   Estate   Reasonable Excuse   Meritorious Defense  

First Department
Defendant’s motion to vacate order striking her Answer providently denied where stay issued upon her husband-defendant’s death explicitly did not stay the case as to her nor did CPLR §1015(b) and she failed to appear at 3-mandatory conferences or provide discovery. Law office failure claim rejected where her attorney showed a pattern of “failing to properly calendar the case and comply with court orders” and was vague, conclusory, and unsubstantiated. Although unnecessary to address meritorious defense, defendant’s affidavit failed to show her fence was not defective. Liakos v Spencer    

Premises Liab   Renew   Survelliance Video   Notice  

Second Department
Plaintiff’s motion to renew opposition to Red Lobster’s motion for summary judgment providently granted as the court has discretion to ‘grant renewal, in the interest of justice, upon facts which were known to the movant at the time the original motion was made’ and the pro se plaintiff had reasonable justification for her failure to include the video showing the condition that caused her to slip and fall on the original motion. On renewal, the plaintiff raised an issue of whether the restaurant had constructive notice of the condition. Blackman v Red Lobster Hospitality, LLC    

Premises Liab   Default Judgment   Raised For First Time  

First Department
Lower court erred in limiting grant of default judgment to plaintiff by ordering an inquest on issue of building owner’s liability where plaintiff’s affidavit and building department order substantiated plaintiff’s claims of negligence for causing her to fall off the unprotected roof. Defendant precluded from arguing plaintiff failed to give proper notice of electronic filing where it defaulted and therefore did not raise that issue below. Hamilton v 208-214 E 25th St LLC    

(28 summaries)

Note of Issue   Discovery   IME/DME   Untimely   NYC  

First Department
NYC failed to meet burden of showing “unusual or unanticipated circumstances” for vacating Note of Issue to require plaintiff to appear for an IME/DME regarding her shoulder injury and surgery brought 6-months after Note of Issue was filed where the shoulder injury and subsequent surgery was plead in the BP and supplemental BP and it was given authorizations for these records years before the Note of Issue, NYC failed to attend plaintiff’s EBT that extensively addressed her shoulder injury and surgery but received the transcript, and it failed to schedule their own IME/DME before the Note of Issue. Peterson v City of New York    

MVA   Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice  

First Department
Petition to serve late Notice of Claim against NYCTA 10-months after accident granted where NYCTA supervisor immediately investigated the incident, establishing it had actual notice of the essential facts within 90-days and was not prejudiced by the delay. Law office failure of clerical error in not filing within 90-days is not generally a reasonable excuse but lack of a reasonable excuse did not require denial of the petition where NYCTA had actual knowledge and they failed to provide particularized evidence of prejudice. Clarke v New York City Tr. Auth.    

Labor Law §240   Labor Law §241   Amend Complaint   Amend BP   Prejudice   Gravity Risk  

Second Department
Plaintiff’s motion to amend the Complaint and BP to allege a cause of action for Labor Law §240(1) on claim alleged violation of §241 instead of §240(1) was a typographical error granted where it was not devoid of merit and there was no surprise to defendants. Plaintiff’s motion for summary judgment on the unpled §240 claim considered by the Court on the appeal as ‘the proof supports such cause and … the opposing party has not been misled to its prejudice’ but denied where plaintiff failed to eliminate questions of whether the 4″ drop of a 194 pound cylinder with such force that it crushed his middle finger was from a sufficient elevation differential to be protected by §240. Defendants’ motion to dismiss §240 claim denied where questions remained of whether plaintiff was engaged in a repair versus routine maintenance. Castillo v Hawke Enters., LLC    

Consolidation   Discovery   Prejudice  

First Department
Lower court improvidently denied defendants’ motion to consolidate actions commenced 1.5-years apart by plaintiffs, friends who were injured in one of the plaintiff’s basement apartment by carbon monoxide fumes from an underground fire, on grounds of delay as the cases had common issues of law, significant overlapping facts, consolidation would serve judicial economy and prevent inconsistent determinations, and plaintiff in the first filed case failed to show consolidation would prejudice a substantial right even though the cases were at different discovery stages since expedited discovery in the second case could limit any prejudice from delay. Steele v Consolidated Edison Co. of N.Y. Inc.    

MVA   3rd Party Contractor   Espinal   Motion to Dismiss   Statute of Limitations   NYC  

Second Department
Contractor that placed barriers at a construction site owned by NYC which plaintiff claimed caused her MVA accident by diverting and obstructing traffic and blocking her view granted summary judgment on proof they did not launch an instrumentality of harm, the only Espinal exception pled. Motion to dismiss on statute of limitations by NYC, which had been third-partied in by defendant and subsequently added as a defendant by amended Complaint, granted where plaintiff failed to show NYC was related in interest with the original defendant or that it should have known it would have been included in the suit absent mistake, two of the three relation back doctrine requirements. Valdez v M.A. Angeliades, Inc.    

MVA   Default Judgment   Prejudice   Meritorious Defense  

First Department
Plaintiff’s motion for default judgment providently denied as defendant’s delay in filing an Answer was unintentional where she appeared in a separate action involving the same MVA and there was no proof plaintiff was prejudiced by the delay. Absent an existing default order/judgment, defendant was not required to include an affidavit of merit. Her attorney’s verification was sufficient. Watts v Garcia    


First Department
Defendant met threshold burden for change of venue on showing plaintiff was a Connecticut resident but plaintiff’s detailed affidavit and supporting documents established he was a Bronx resident with “some degree of permanency.” Vaccaro v Mercedes-Benz USA    

Malpractice   Accepted Practice   Causation   Vicarious Liab   Experts   Conclusory   Speculation  

Second Department
Nurse and home care agency denied summary judgment where plaintiff’s expert’s opinion that nurse’s failure to relay decedent’s elevated temperature, ruddy complexion, and lethargy to decedent’s doctor and not checking with decedent’s doctor if blood samples should be submitted to the defendant-lab or with what urgency were departures from standards of nursing care. Those defendants failed to meet burden on proximate cause so burden never shifted to plaintiff. Question of infusion therapy company’s vicarious liability for nurse’s malpractice, denied as moot where lower court granted nurse’s motion for summary judgment, remanded but granted summary judgment dismissing direct liability claims on its nephrology-expert’s opinion its actions were not a cause of decedent’s renal failure or death as it did not prescribe the renal toxic medication and decedent’s condition was irreversible when the laboratory tests were performed and could not have prevented kidney failure and death.

Remaining defendants granted summary judgment on their experts’ opinions of no departure or causation and plaintiff’s experts’ failed to raise issues in opposition by conclusory and speculative opinions that were not supported by the record. Alvarellos v Tassinari    

Malpractice   CPLR §306-b   Service  

First Department
Plaintiff entitled to second extension of time to serve defendant-doctor under CPLR §306-b on proof she made diligent efforts to serve the doctor in Ohio and New York and in the interest of justice on showing the doctor was not prejudiced by the delay since he was aware of the lawsuit before the request for the second extension. Plaintiff entitled to alternative service by email which was reasonably calculated to apprise him of the action and other methods were impracticable. Dixon v New York City Health & Hosps. Corp.    

Premises Liab   Discovery   CPLR § 3126   Strike Answer   Willful/Contumacious   Spoliation  

Second Department
Plaintiff’s motion to strike building owner’s Answer for failure to comply with discovery demands and for spoliation for not producing a home inspection report from 3-years prior to plaintiff’s injuries when a window she was trying to open swung out and caused her to fall providently denied without evidence the failure to produce the report was willful/contumacious and the lower court providently referred the issue of a spoliation adverse inference to the trial judge. Lifrieri v Gambale    

Premises Liab   Duty   Create Condition   Notice   3rd Party Contractor   Espinal  

First Department
Building owners failed to meet burden for summary judgment dismissing plaintiff’s claim for injuries when the metal door handle to an interior vestibule glass door came off as he pulled it, causing the glass to shatter and fall on him. Although the building owners did not create or have actual notice of the condition, they failed to show they performed a reasonable inspection of the door handle to establish lack of constructive notice where their witness’s testimony of an inspection weeks before the incident was vague without the date of the inspection or how the handle was inspected, he testified to a daily inspection protocol for the door but never saw anyone perform the inspections, his claim the inspections were to be done by the security guards was contradicted by the security guard, property manager, and chief engineer, and there were no records of daily cursory inspections which also failed to establish that biweekly inspections were reasonable or that the defect was latent and non-discoverable. The public’s use of the door handle rendered res ipsa loquitor inapplicable as it was not in the exclusive control of the building.

Company that managed building’s common elements granted summary judgment where plaintiff was not a party to its contact and there was no evidence it met any of the Espinal exceptions. Doherty v 730 Fifth Upper, LLC    

Premises Liab   Negligent Supervision   Assumption of Risk  

Second Department
School district granted summary judgment dismissing eighth-grader-plaintiff’s claim for injuries when he slipped on pebbles and wet grass while playing a pickup game of soccer at a school event on his testimony there were no puddles on the field and the grass was wet from the previous day’s rain and other students throwing water balloons as there was no evidence the pebbles and wet grass were concealed or increased the risks of playing soccer. Allowing students to play under those conditions was not negligent supervision and “[t]o hold otherwise would effectively prohibit schools from utilizing outdoor playing fields.” C.P.G. v Uniondale Sch. Dist.    

Premises Liab   Sidewalk   Duty   Out of Possession   Unknown Cause   Indemnity   NYC  

First Department
NYC’s motion for summary judgment dismissing plaintiff’s claim for a trip and fall on height differential between subway grate and hexagonal pavers in Foley Square denied where it retained ownership of the grate under its lease with NYCTA which only transferred ownership of “materials and supplies” incidental to the transit facilities and it was responsible for the surrounding area under 34 RCNY §2-07(b) which has no exception for an out-of-possession landlord. Plaintiff sufficiently identified the cause of her fall where she consistently testified her foot came in contact with a height differential between the grate and sidewalk and she was not required to identify the exact spot of the differential.

NYC denied summary judgment on contractual indemnity claim where NYCTA witnesses’ testimony established it may be responsible for portions of the pavers around the grate but Parks Department witness testified it was responsible for the pavers and would notify NYCTA of any defects and questions remained of whether NYCTA’s maintenance of the grate caused the height differential. Garrett v City of New York    

Labor Law §240   Labor Law §241   Falling Object   Gravity Risk   Safety Devices   Industrial Code  

First Department
Defendant met burden for summary judgment dismissing plaintiff’s Labor Law §240(1) claim on proof 50-pound 2’x4′ concrete form that struck his lower back was leaning against the wall resting on the same floor level where plaintiff stood but plaintiff raised issues of fact on whether the form fell from the force of gravity upon it, could generate significant force in the distance it fell, and whether his injuries were caused by a lack of a §240 safety device. Plaintiff raised issues of fact on Labor Law §241(6) based on industrial code §23-2.2(d)(stripping concrete forms) where the concrete forms were scattered around the worksite instead of piled as required by the industrial code. Lopez v 106 LPA LLC    

Labor Law §240   Agent   Control  

Second Department
Subcontractor who installed ceiling injured-plaintiff was spackling when he fell from stairwell railing he stood on as instructed by his employer granted summary judgment dismissing Labor Law §§ 240(1), 241(6) claims on proof it was not an agent of the owner or GC as it was not on the worksite on the day of the accident and did not have authority to supervise or control plaintiff’s work. Woodruff v Islandwide Carpentry Contrs., Inc.    

Premises Liab   Labor Law §241   3rd Party Contractor   Espinal  

First Department
Defendants granted summary judgment dismissing plaintiff’s Labor Law §241(6) claims for fall on broken step as he was involved in routine maintenance of an elevator, not “construction, demolition, excavation, or making repairs in connection with ongoing construction.” Fire/security contractor granted summary judgment as it was an independent contractor and any failure to identify broken step or report poor lighting conditions did not launch an instrumentality of harm and there was no evidence plaintiff detrimentally relied on the performance of their contractual duties under Espinal. Building management company denied summary judgment where issues remained of whether its cleaning of the stairs created or exacerbated the condition, launching an instrumentality of harm. Diamond v TF Cornerstone Inc.    

Malpractice   Accepted Practice   Causation   Experts   Conclusory   Speculation  

Second Department
Plastic surgeon and hospital granted summary judgment on medical records, defendant-physician’s and plaintiff’s depositions, and expert board-certified plastic surgeon’s opinion that defendant did not depart from accepted practice and that records showed plaintiff’s condition developed after she last saw the defendant. Plaintiff’s expert’s opinion failed to raise an issue in opposition where it was speculative, conclusory, and unsupported by evidence showing causation. Daniels v Pisarenko    

Malpractice   Accepted Practice   Experts   Conclusory   Speculation  

Second Department
General surgeon and hospital granted summary judgment dismissing malpractice claims for treatment of cholelithiasis and subsequent incisional hernia on their expert’s opinion there was no departure from accepted practice and plaintiff’s expert failed to raise an issue in opposition opinions that were conclusory, speculative, not supported by the record, and expert did not address the specific assertions of defendants’ expert. Weintroub v Maimonides Med. Ctr.    

Labor Law §240   Scaffold   Sole Cause   Comparative Fault   NYC  

First Department
Plaintiff granted summary judgment on Labor Law §240(1) where platform of scaffold he’d been working on for 3-hours collapsed for no apparent reason. Defendants failed to raise an issue in opposition by claim collapse was caused by plaintiff’s failure to lock all safety pins which would at most be comparative fault, not a defense to §240. Bialucha v City of New York    

MVA   Admissibility  

Second Department
Waste services company failed to meet burden for summary judgment on testimony and affidavits of its employees’ claiming the garbage truck that sideswiped plaintiff’s vehicle was not in service on the date of the accident as it was in the shop waiting to be repainted where neither witness had personal knowledge of the facts or kept the business records upon which they relied and defendant could not make out a prima facie case by pointing to gaps in plaintiff’s proofs. Defendant conceded it had a truck with the license plate number in the certified police report submitted by plaintiff that was the same color as identified by plaintiff and her passenger. Neither plaintiff nor her passengers saw the license plate number but her passenger obtained it from a picture taken by an eyewitness whose contact information they did not have, and who refused to stay until the police arrived. Kary Ventura-Sanchez v Royal Waste Servs., Inc.    

Malpractice   Accepted Practice  

Second Department
Periodontist and his practice denied summary judgment dismissing plaintiff’s claim for trigeminal neuralgia from slow healing block bone graft where plaintiff’s expert-oral surgeon opined defendant departed from accepted practice by failing to recognize the graft had failed and advising plaintiff to wait 4-months raising issues in opposition to defendants’ expert’s opinion of no departure. Turetsky v Shumantov    

MVA   Comparative Fault   Question of Fact  

Second Department
Plaintiff-passenger in vehicle operated by 1-defendant which collided with vehicle operated by other defendant-driver at intersection controlled by stop signs for both drivers denied summary judgment even though she was clearly not at fault as conflicting testimony submitted by plaintiff failed to establish as a matter of law that either driver was at fault and the issue was more than just apportionment of fault. Lee v Quallo    

MVA   Bus   Comparative Fault   Admissibility   Hearsay  

Second Department
Plaintiff granted summary judgment on liability and dismissing comparative fault affirmative defense on proof defendant-bus-driver failed to operate the bus within his lane, moving outside his lane and striking plaintiff’s vehicle in violation of VTL §1128(a). Self-serving statements by bus driver in certified motor vehicle crash report inadmissible hearsay. Singh v Jervis    

MVA   Comparative Fault   Sole Cause  

Second Department
Plaintiff granted summary judgment on liability on his affidavit that defendants’ vehicle was reversing to enter a driveway when it suddenly moved forward striking the rear passenger side of plaintiff’s vehicle. Defendants-driver’s affidavit that he came to a stop before going forward failed to establish that plaintiff entering the oncoming lane to go around defendants’ truck was the sole cause of the accident but plaintiff denied dismissal of comparative fault defense denied where issues of fact remained.

Defendant-driver’s affidavit with a jurat stating it was sworn before a Notary Public who signed and stamped it was properly considered. Karim v Proline Rental, LLC    

Settlement   Attorney Fees  

First Department
Motion to intervene in motion for compromise order to determine attorney fees of one of several prior attorneys and expenses allowed to final attorney providently granted only to the extent it addressed attorney fees and denied as to expenses for lack of standing as the motion-court had the ability to assess the legitimacy of the expenses and the guardian had the incentive to keep the expenses to a minimum. Allowing the intervention would prejudice the plaintiff by delay in receiving the proceeds of the settlement. Papageorgiou v Consolidated Edison Co. of N.Y., Inc.    

MVA   Bicycle   Turning Vehicle   Question of Fact  

Second Department
Defendant failed to meet burden for summary on his testimony that he did not see the plaintiff-bicyclist as he slowly made a right turn but also submitted plaintiff’s testimony that he saw defendant-driver make a sudden right turn in front of him 1-second prior to impact. Khalil v Garcia-Olea    

Assault   Battery   Negligent Hiring   Negligent Supervision   Violent Propensity   Causation   NYC  

First Department
DOE granted summary judgment dismissing plaintiff’s claim she was assaulted by a parent-volunteer where there was no proof DOE had notice of that parent’s violent propensities and there was no nexus between the offending-parent’s volunteer activities at the school and the assault. Patterson v New York City Dept. of Educ.    

Comment: According to the lower court decision, plaintiff was assaulted while acting as a volunteer crossing guard after the offending-parent had finished his volunteer work.

Renew   Reargument   Spoliation  

First Department
Appeal from denial of plaintiff’s motion for recusal of lower court judge and assignment to new judge to determine undecided motion for spoliation sanctions dismissed as moot where the Court had previously upheld the grant of summary judgment dismissing the case. Newell v City of New York    

Comment: Decision upholding summary judgment reported in Vol. 311.
(1 summaries)

MVA   Question of Fact  

Second Department
Plaintiff’s motion for summary judgment on liability, dismissing comparative fault defense, and for a trial on damages denied where conflicting versions of how accident occurred in plaintiff’s and defendant-driver’s testimony, submitted by plaintiff, left questions of fact on liability and comparative fault. The Court does not give the details of the proofs. Kutsankou v Brink    

About Matt McMahon

Civil trials and appeals since 1984. Retired partner McMahon | McCarthy.
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