December 27, 2016 | Vol. 34

(4 summaries)

MVA   Late Notice of Claim   Prejudice   Burden of Proof  

Court of Appeals

Petitioner’s 16 year old son was hit by a car crossing a street and sustained devastating injuries. Petitioner notified his son’s high school of the accident details within days, including the location of the accident and nature of his son’s injuries. The driver fled the scene and was later arrested. Petitioner made repeated requests for the police file which he was unable to obtain because of the ongoing criminal case. He filed timely Notices of Claim on the state, county, and town, including photographs taken by petitioner’s investigator.

Six months after the accident petitioner received the police file which included photographs taken at the time of the accident showing a large sign at the corner of the intersection where his son had been struck, which was not in the photographs taken by petitioner’s investigator. Due to the size the photographs the writing on the sign was illegible. After receiving enlarged photographs, promptly requested by petitioner, he saw that the sign which had been removed within the 90 days after the accident advertised a play at another school within the same district. Five months after the 90 day period to serve the Notice of Claim expired petitioner served a Notice of Claim on the school district by certified mail alleging that the sign obstructed the view of drivers and pedestrians, created a distraction, and created a dangerous and hazardous condition, and simultaneously filed a petition for leave to serve a late Notice of Claim or deem the Notice of Claim served timely, arguing that the school district had actual notice of the essential facts constituting petitioner’s claim from the notice he gave to his son’s high school several days after the accident and a reasonable excuse for not timely serving the Notice of Claim due to the difficulty in obtaining the police file and enlargement photographs. Petitioner also argued that the school district was not prejudiced by the delay because its employees or agents had placed the sign and removed it before the 90 day period expired, that the district knew about the accident several days after it occurred, that the district had access to the police file, including photographs and names and contact information of witnesses, and that except for the removal of the sign the conditions remained the same.

In opposing the motion the district submitted only its counsel’s affirmation which argued that it was the petitioner’s burden of the plaintiff to show that the district was not prejudiced.

The lower court considered four of the non-exhaustive factors listed in the statute in determining whether to grant the petition to serve a late Notice of Claim and found that prejudice can be inferred from the passage of time and the fading memories of witnesses. The Appellate Division affirmed on the same grounds and the Court of Appeals reversed finding that “mere inferences” cannot support a finding of prejudice in the absence of record evidence. The lower court presumed that the graduation of students hindered the district’s ability to investigate, without the district ever making that argument and without any proof in the record, and that prejudice could be inferred from the passage of time because of fading memories. The appellate division adopted these finding without discussion.

Resolving a split within and among the appellate divisions regarding who has the burden of proving prejudice, the Court held that the petitioner has an initial burden which “need not be extensive” and can be met by some evidence or a “plausible argument” such as in the present case where petitioner argued that the police photographs would permit the district to reconstruct the conditions. Once petitioner meets that burden, the municipality must come forth with “a particularized evidentiary showing” of substantial prejudice. Speculation and inference cannot meet the municipality’s burden. Andrew J. Hain v. Angela J. Jamison

Highway Design   Governmental Immunity   Qualified Immunity   Special Duty   Set Aside Verdict   NYC  

Court of Appeals

In affirming the denial of a motion to set aside a jury verdict in favor of plaintiff, the Court found a sufficient basis for the jury to conclude that the city was acting in a proprietary capacity and was not entitled to a qualified immunity. The infant plaintiff was severely injured while crossing Garretson Blvd. in Brooklyn on his bicycle. After numerous complaints and requests for traffic safety devices or studies were received, the NYC Department of Transportation conducted 4 intersection studies, 3 of which showed speeding at the intersection near where plaintiff was injured, prior to the accident. A municipality’s function of maintaining its highways and roads in a safe manner is generally considered a proprietary and not governmental function and, therefore, would not be entitled to a governmental immunity. Plaintiff did not have to show a special duty.

In addition, it is the nature of the work being performed by the municipality which governs whether it is a proprietary or governmental immunity and not the nature of the activity which is sought to be prevented. The fact that the DOT referred it’s report to the police department to curtail speeding does not change the function in which the municipality was engaged from proprietary (highway safety) to governmental (police protection).

When engaged in a highway planning decision the municipality is entitled to a qualified immunity if after a study which is not plainly inadequate, it considers and passes on the very same question of risk alleged by the plaintiff. The City conducted only intersection studies and not “traffic calming” studies, which the experts on both sides agreed are meant to reduce speeding through design changes rather than police enforcement, and never followed up on whether the efforts of the police to curtail speeding were effective. This provided a rational process by which the jury could find that the City was not entitled to a qualified immunity. The intersections studies could be found inadequate for addressing the speeding danger along the length of Garritson Blvd. Since speeding was foreseeable, the fact that the defendant’s speeding was also criminal did not break the chain of causation. There was one dissent. Anthony Turturro v. City of New York/Louis Pascarella

Proximate Cause   Intervening Cause   Wrongful Death   Foreseeability  

Court of Appeals

Plaintiff’s decedent stopped her car and got out to help a calf that escaped from a nearby farm. The evidence showed that the fence on the farm was in poor condition and cows and calves had previously escaped and wandered on the road. While plaintiff’s decedent was coming to the aid of the calf, she was struck by codefendant who thought she saw a dog in the road and only saw plaintiff’s decedent moments before she struck and killed her.

The farm defendant moved for summary judgment claiming that plaintiff’s decedent’s actions in stopping and getting out of her car brought a conclusion to the risk which it conceded its negligence could cause, a car striking a wandering cow or calf, and that at most its negligence provided only the opportunity for the accident and not a proximate cause. In reversing the Appellate Division’s grant of summary judgment on proximate cause grounds, the Court explained that the essential element of proximate cause is that the negligence is a “substantial cause of the events” resulting in the accident.

For there to be an intervening cause, the risk from the negligence must have ceased. On the other hand, if the intervening act is reasonably foreseeable from the defendant’s negligence, proximate cause cannot be decided as a matter of law. Where, as in this case, the risk of the intervening act occurring is the very same risk which rendered the farm negligent (failing to maintain its fence so as to avoid cows wandering into the road) proximate cause must be left to the jury. The condition was not completed since the calf was still wandering on the roadway at the time that the plaintiff’s decedent was struck. Even if the precise manner that plaintiff’s decedent was injured was not foreseeable, the foreseeability of injury from the negligence allows the question of proximate cause to go to the jury. Andrew J. Hain v. Angela J. Jamison

Asbestos   Set Aside Verdict  


Motion to include PowerPoint presentations used by plaintiff during summation in record should have been granted. While defendant waived any objection to the PowerPoint presentation from the opening, they made a timely objection to the PowerPoint presentation in the summation. Since post verdict motion and appeal will likely bring up questions of whether the power point presentation prejudiced the jury, it should have been included in the record. Matter of New York City Asbestos Litig.

(22 summaries)

Labor Law §240   Scaffold   Sole Cause  

Court of Appeals

The Court modified the Appellate Division’s reversal of the trial court’s grant of summary judgment for the plaintiff on his Labor Law §240(1) claim. The Appellate Division had denied summary judgment finding questions of fact regarding whether the plaintiff failed to follow instructions to use only pine planks on the scaffold floor. The Court found that since defendant failed to show that plaintiff was the sole proximate cause of the accident, summary judgment should have been granted to plaintiff. Rafael Batista v. Manhattanville College

MVA   Labor Law §240   Labor Law §241   Gravity Risk   Sole Cause  

Second Deptartment

Applying the Court of Appeals precedent from Dilluvio v City of New York, 95 NY2d 928 (2000), that a person who falls from the back of a pickup truck is not entitled to the protections of Labor Law §240(1) since the accident is not caused by an elevated risk, the Second Department applied the same rule to objects falling from the pickup truck. Plaintiff rode in the back of a pickup truck on top of a metal grate and was the sole proximate cause of his injury. Eddy v John Hummel Custom Bldrs., Inc.

Labor Law §240   Labor Law §200   Industrial Code   Products Liab   Spoliation  


In case where plaintiff was injured while using a saw blade with missing teeth after twice requesting a new blade, Labor Law §200 and common-law negligence claims were properly dismissed against owner, owner’s agent, and general contractor as they did not control the means and methods of plaintiff’s work. Industrial code 23-1.12(c)(1)(guards on power saws) was inapplicable as the injury was not caused by the lack of a safety guard. Industrial code 23-1.5(c)(3) which requires that all safety devices and equipment be in working order and immediately removed and repaired if damaged, did apply and the lower court should not have granted judgment on the Labor Law §241(6) claim.

Manufacturer was entitled to summary judgment on proof that the saw was designed to state-of-the-art, industry standards, and plaintiff’s misuse “could” have caused the accident. Plaintiff’s attempt to raise an issue of fact by its civil engineer’s opinion, who had a background in building design but who did not opine that the danger of the the saw outweighed it’s utility or offer an alternative safer design was insufficient. Plaintiff could not show that defendants were ever in possession o4 control of the saw and, therefore, could not show spoliation. Williams v River Place II, LLC

Assault   Default Judgment   Inquest   Set Aside Verdict   Punitive Damages   Verdict  

Second Deptartment

The court set aside the lower court’s award after inquest of $150,000 for past pain-and-suffering, lost earnings, and specials, with triple damages for punitive damages, and directed a new inquest before a different judge, due to the lower court’s failure to itemize the damages, failure to hear the testimony or look at the reports of the parties’ experts, and refusal to hear admissible evidence. Under CPLR 4213(b), nonjury verdicts must be itemized and the facts the court deemed necessary to the award stated to allow appellate review. This rule applies equally to inquests. Nunez v Bardwil

Labor Law §200   Create Condition   Notice   Amend BP   Indemnity  

Second Deptartment

Labor Law §200 is not limited to construction work and covered plaintiff who was hired to remove boxes from a basement under construction when he fell in hole. Where liability is premised on a defective condition, as opposed to the method or manner of work, liability can be found only when the defendant had control over the work and either created the condition or had notice of same. General contractor failed to show that it did not have control of the work, create the condition, or have notice of the defective condition and should have been denied summary judgment. Subcontractor’s motion for summary judgment on its indemnity claim should have been denied since it failed to show that it’s liability was solely vicarious. Plaintiff’s motion to amend the BP to allege violation of Multiple Dwelling Law §78 should have been granted despite the delay in seeking leave since it was not palpably insufficient or patently devoid of merit and there was no evidence that the defendant would be prejudiced. Rocha v GRT Constr. of N.Y.

Labor Law §240   Labor Law §241   Industrial Code   Sole Cause   Amend Complaint  


Plaintiff was injured when two ladders he was placing on top of a truck slid, knocking him off the truck. His task of removing ladders from the construction site was, for purposes of Labor Law §240 & §241, a construction-related activity but was not an elevated-related risk under §240(1). The truck he was placing the ladders on was slightly tilted with one wheel on top of some debris. The tilt was not noticed by the plaintiff and was de minimus and not a significant difference in elevation. The industrial code provisions relied upon by the plaintiff are not applicable. The plaintiff’s own actions in removing a bungee cord from the first ladder he placed on the roof of the truck because of its sliding, in order to attach the second ladder was the sole proximate cause of the accident. Motion to amend complaint to include claims directly against third-party defendant properly denied as devoid of merit given that plaintiff was the sole proximate cause of the accident. Guido v Dormitory Auth. of the State of N.Y.

Med Mal   Vicarious Liab   Expert Aff  


The lower court providently exercised its discretion in denying plaintiff additional time to provide a supplemental expert affidavit after receipt of 3 missing pages of defendant’s expert’s affidavit, since the missing pages were duplicative of the pages provided and fully discussed in the moving papers. Plaintiff’s claim that the case should not be dismissed against the hospital, after the individual doctor’s were granted summary judgment, was misplaced as the hospital could only be held vicariously liable for the departures of the individual doctors. Smith v Watkins

Amend Complaint   Statute of Limitations  

Second Deptartment

All claims in amended complaint, other than those asserting negligence resulting in a special needs child ingesting foreign objects plead in the original complaint, were properly dismissed on statute of limitation grounds. Relation back doctrine only applies to new causes of action asserted on facts and occurrences pled in the original complaint. New allegations were not part of the same facts and occurrences and are time barred. Cady v Springbrook NY, Inc.

Premises Liab   Dangerous Condition   Expert Aff  

Second Deptartment

The lower court dismissed the plaintiff’s claim of lack of supervision but denied summary judgment on the claim of defective condition of monkey bars and surface under monkey bars. The appellate court reversed finding that the defendant proved that neither the monkey bars nor the surface was a dangerous or defective condition. Plaintiff submitted an unsworn report of its expert in opposition, which the appellate court found inadmissible, and that the sworn report submitted in plaintiff’s surreply should not have been considered. Plaintiff’s argument that lack of supervision claim should not have been dismissed were not considered as plaintiff did not appeal the dismissal of that claim. Gao v City of New York

Comment: While the courts will sometimes allow the replacement of an unsworn report with a sworn one in a reply, it is not so certain in a surreply which requires leave of court. The better practice would be to obtain an adjournment to get the sworn report.

False Arrest   1983 Action   Set Aside Verdict  

Second Deptartment

Motion to set aside verdict as a matter of law should have been granted as to false arrest and §1983 causes of action as plaintiff was arrested on a facially valid outstanding arrest warrant and plaintiff did not contest that the arrest warrant was valid on its face. The jury’s award of $250,000.00 was set aside and the case was remanded for a new trial on damages under the remaining causes of action. Ali v City of New York

Premises Liab   Slip/Trip   Snow/Ice   Storm in Progress  

Second Deptartment

Condominium HOA failed to meet its burden for summary judgment in case where UPS driver slipped on snow/ice while delivering package to codefendant homeowner’s condominium. HOA had suspended snow removal based on codefendant’s failure to pay maintenance fees but failed to show that the failure to pay maintenance fees relieved it of its obligation for snow removal under the operative HOA agreement. HOA also failed to eliminate a triable issue regarding whether there was a sufficient period of time after the end of the storm to allow removal of the snow. Coons v Sorrentino

Assault   Negligent Hiring   Statute of Limitations   Vacate Default   Reasonable Excuse   Renew  

Second Deptartment

The Supreme Court granted renewal of plaintiff’s motion to vacate the default and correctly adhered to its original decision to dismiss the complaint for failure to comply with discovery demands. Plaintiff was able to show a reasonable excuse for not complying with discovery demands but was unable to show that he had a meritorious action. He claimed to have been assaulted by a person whom he believed was employed by the defendant but since he was unable to identify his assailant he was unable to show a relationship between the assailant and the defendant. Gaspard v Ditmas Gas Corp.

MVA   VTL §1104   Serious Injury  

Second Deptartment

Defendant failed to meet its burden for summary judgment by failing to eliminate all triable issues, including question of whether ambulance’s siren was on as it entered the intersection against the red light. The appellate court addressed the defendant’s alternative claim that plaintiff did not sustain a serious injury, not address by the lower court as academic, and found that defendant’s expert’s opinion that significantly limited range of motion in the plaintiff’s shoulder and knee were not caused by the accident was conclusory because it ignored positive MRI findings taken one month after the accident. Bonafede v Bonito

MVA   Bus   Rear End  

Second Deptartment

Defendant NYCTA entitled to summary judgment on proof that the car in which the infant plaintiffs were passengers struck the rear of the defendant’s bus suddenly and without warning. Plaintiff’s photographs of the vehicles at the scene did not raise a triable issue. Witonsky v New York City Tr. Auth.

Premises Liab   Unknown Cause   Feigned Issue   Errata Sheet  

Second Deptartment

Defendant was not entitled to summary judgment on its claim that the plaintiff was unable to identify the location or cause of his tripping in the supermarket parking lot because the plaintiff’s transcript, submitted on defendant’s motion, clearly identified through photographs the location and cause of his fall. Discrepancies between plaintiff’s testimony and errata sheet merely go to credibility to be assessed by the jury. Belton v Gemstone HQ Realty Assoc., LLC

Premises Liab   Slip/Trip   Labor Law §241   Industrial Code   Create Condition   Open/Obvious   Inherently Dangerous  

Second Deptartment

Homeowners entitled to summary judgment on showing that they did not create condition, dropcloth placed on stairs by codefendant contractor, causing plaintiff’s fall, and that they did not have notice of the condition. There is no constructive notice for latent defects, defects which would not be discovered by a layperson doing a reasonable inspection. Codefendant contractor failed to show that none of its employees created the condition, that plaintiff did not know the cause of his fall, or that the condition was open and obvious and not inherently dangerous. Contractor, however, did show that the fall was not caused by industrial code 23-1.7(d)(failure to remove or cover a foreign substance) and was entitled to summary judgment on Labor Law §241(6) claim. Kane v Peter M. Moore Constr. Co., Inc.

Premises Liab   Amend Answer   Workers Comp Defense  

Second Deptartment

Defendant homeowner not entitled to amend his answer to include workers comp defense as he failed to show that the plaintiff, Town sanitation worker, was his employee at the time of the accident or that the action was otherwise barred by workers compensation law. Cahill v Jordan Home Servs., LLC

MVA   Costs/Disbursements   US Constitution  

Second Deptartment

Addressing a constitutional challenge to the requirement for nonresident plaintiffs to post security for costs under CPLR §§8501(a) & 8503 the court ruled that these provisions do not violate the Privileges and Immunities Clause of the U.S. Constitution because they merely require security and do not charge different costs based on residency, and they meet the test that the costs imposed for accessing the courts are reasonable. The plaintiff was a New York resident involved in a motor vehicle accident with a New York City police vehicle who moved to the State of Georgia after the action was commenced. Clement v Durban

Labor Law §240   Labor Law §241   Gravity Risk   Industrial Code   Indemnity  

Second Deptartment

Plaintiff was injured when he was hit in the head by a pipe being carried down the ladder by a worker who turned without realizing that the plaintiff was near him. Defendants were entitled to summary judgment on the Labor Law §240(1) claim as the accident was not the result of any gravity related risk and on the Labor Law §241(6) claim since the industrial code provision relied upon by the plaintiff 23-1.8(c)(1)(head protection) was not applicable to this accident. General contractor showed that there was an indemnification clause in the agreement it had with the subcontractor and that general contractor was free from negligence. Palomeque v Capital Improvement Servs., LLC

Vacate Default   Reasonable Excuse   Law Office Failure  

Second Deptartment

Seeking to vacate a judgment granted on default, plaintiff failed to show a reasonable excuse for her failure to oppose the original motion. Claim of law office failure emanating from a 2 1/2 year delay in filing a consent to change attorney form was not sufficient given that new attorney was aware of the pending motion for 7 months. While lower office failure may provide the grounds for reasonable excuse, mere neglect is not enough. Onishenko v Ntansah

Serious Injury  

Second Deptartment

Lower court should have denied defendants’ motions for summary judgment on serious injury because they failed to address the allegations of 90/180 day in the BP, specifically failing to address allegation that plaintiff was unable to engage in her usual activities. Plaintiff was not entitled to summary judgment on serious injury even though she made out a prima facie case regarding her lumbar injury because defendants raised a triable issue of fact. Spann v City of New York

Med Mal   Venue  

Second Deptartment

Defendant in malpractice action which was started in Kings County failed to show that Kings County was improper venue. Defendant submitted plaintiff’s deposition which they claimed showed that she did not have a fixed address in Kings County before starting the action and that she moved to Florida the week before she started the action. The court found that taken as a whole the defendant’s proof failed to show that the plaintiff was not a resident of Kings County at the time she started the action. Johnson v Finkelstein

(2 summaries)

Legal Mal  

Second Deptartment

Lower court providently exercised its discretion in not deeming its prior order granting defendant’s unopposed motion to dismiss legal malpractice case abandoned because the defendant did not settle the order as directed in the decision and in granting defendant’s cross motion to extend its time to settle the order. The court does not give the details of the case. Goss v DiMarco

Serious Injury  

Second Deptartment

Defendant failed to make out a prima facie case for summary judgment on its cross-motion on serious injury because it failed to adequately address plaintiff’s claim under the 90/180 day category regardless of plaintiff’s opposition papers. The court does not give the details of the proofs. Kim v Park

rel=’nofollow’>Goss v DiMarco

About Matt McMahon

Civil trials and appeals since 1984
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