December 27, 2022 | Vol. 345

(7 summaries)

Assault   Discovery  

First Department
Plaintiff’s argument that allowing defendants to videotape infant-plaintiff’s EBT would worsen infant’s trauma by reliving the sexual assaults committed by defendants’ employees was sufficient to deny videotaping under CPLR §3103(a) but lower court providently allowed the adjuster or other interested person to be virtually present during the EBT, not visible to the infant with their microphone mooted. M.P. v Jewish Bd. of Family & Children    

Premises Liab   Elevator   Discovery   Privilege  

First Department
Elevator company’s motion for building owner’s pre-litigation statement to its carrier and an EBT regarding communications between owner and its carrier denied as communications between insured and liability insurer are conditionally privileged as material prepared for litigation. Request for post-EBT responses regarding videotape and deposition of current risk-manager denied as all relevant nonconfidential information was previously provided. Springer v Tishman Speyer Props., LP    

Malpractice   Wrongful Death   Statute of Limitations   Continuous Treatement   Accepted Practice   Causation   Appealable Order  

Second Department
Cause of action termed ‘loss of service’ adequately plead the elements of wrongful death action and was timely commenced under EPTL §5-4.1 where the underlying malpractice claim was viable at decedent’s death and the action was commenced exactly 2-years later. Malpractice claims against radiologist and primary care physicians dismissed as beyond the 2.5-year malpractice statute of limitations, but plaintiff’s motion to preclude defendants from relying on Article 16 and primary care physicians’ motion for summary judgment remanded where lower court deemed these issues academic.

Appeal from grant of hematologist/oncologist’s unopposed motion to dismiss on statute of limitations dismissed as no appeal lies from a judgment or order granted on default. Proano v Gutman    

Preclusion   Sanctions   Willful/Contumacious  

First Department
NYCTA’s motion to preclude plaintiffs in 5-cases from using its president statements made in response to plaintiffs’ attorney’s questions regarding future installation of platform edge systems to prevent gap accidents at a Town Hall meeting and to preclude plaintiffs’ counsel from asking any questions of NYCTA officials without pre-disclosure and its consent denied as plaintiffs’ counsel’s questions at the Town Hall meeting were about a matter of public concern ‘at the heart of the First Amendment’s protection’ and would have resulted in an “improper prior restraint on speech.” Plaintiffs’ cross-motion for sanctions, granted by the lower court, denied as defendants’ motion was ‘arguable’ and there was “no pattern of abusive, dilatory, or contumacious conduct.” Cepeda v City of New York    

Comment: A federal judge had previously ruled that plaintiffs’ counsel’s conduct in asking the NYCTA president questions at a Town Hall meeting did not violate disciplinary rules.

Vacate Jud  

Second Department
Judgment of $2,378,567.90 against individual member of LLC for collection of money judgment, with interest, from personal injury case against bar owned by LLC set aside. While plaintiff established member exercised complete dominion and control over LLC, he failed to show the dominion and control was used to render the LLC judgment proof or perpetrate a fraud or other wrong against plaintiff, necessary to pierce the corporate veil. Matter of DePetris v Traina    

Premises Liab   Elevator   Subsequent Repairs   Control   Products Liab  

First Department
Defendants’ motion to vacate preliminary conference order requiring them to provide post-accident repair records for elevator that injured plaintiff in a freefall improvidently granted as subsequent repair records are generally inadmissible, the exceptions for issues of control or manufacturing defect did not apply, and the condition of the elevator at the time of the accident could be proven without the post-accident repairs. Poplawski v 111 Wall St. LLC    

Premises Liab   Out of Possession   Raised For First Time  

Second Department
Building owner denied summary judgment on claim it was an out of possession owner where it failed to attach a copy of the lease to its motion which could not be cured by submitting it for the first time in reply. O’Connell v Los Compadres Liquors & Wines    

(16 summaries)

Malpractice   Notice of Claim   Reasonable Excuse   Actual Knowledge   Prejudice   NYC  

First Department
Even if claimant’s excuse for 5-month delay in moving to serve the late Notice of Claim were considered reasonable, claimant failed to show respondents had actual knowledge within 90 days or a reasonable time thereafter without including his medical records to show they would have alerted respondents to the essential facts that their malpractice caused him to sustain bed sores. Claimant also failed to show respondents would not be prejudiced by the late Notice of Claim. Matter of Gray v City of New York    

Assault   Motion to Dismiss   Court of Claims  

Second Department
Claim dismissed where allegations in plaintiff’s Claim that a NYS trooper sexually abused her “from ‘on or about and between approximately 1999 and 2003’ failed to meet pleading requirements of Court of Claims Act § 11(b) which must be strictly construed as waiver of sovereign immunity is derogation from common law. Weichsel v State of New York    

Vacate Default   Discovery   Untimely  

First Department
Lower court improvidently denied plaintiff’s request to vacate sua sponte dismissal of action for failing to timely file a discovery stipulation where all parties stipulated to vacate the dismissal, plaintiff expected all outstanding discovery issues would be addressed at a scheduled conference, and the outstanding discovery was owed by defendants, not plaintiff. Avagyan v 100 W. 74th St., LLC    

Premises Liab   Snow/Ice   Sidewalk   Vacate Default   Serious Injury   Reasonable Excuse   Meritorious Defense  

First Department
Motion to vacate default judgment by owner of property when plaintiff slipped on snow/ice on abutting sidewalk in Yonkers granted on proof it did not receive Summons and Complaint in time to defend the action under CPLR §317 where its principal first learned of the lawsuit from an information subpoena and principle of the realty company it designated to receive service from the Secretary of State was unaware of ever receiving a copy of the Summons and Complaint and owner had a meritorious defense as Yonkers does not impose tort liability on abutting landowners for failing to shovel snow/ice.

Fact that defendant never updated its address with the Secretary of State precluded vacating default under CPLR §5015(a)(1) but CPLR §317 does not require a reasonable excuse for not answering and plaintiff failed to show defendant was deliberately attempting to avoid receiving the Summons and Complaint. Gomez v Karyes Realty Corp.    

Bus   Motion to Dismiss   Notice of Claim   Prejudice   Waiver   Notice  

Second Department
A court can look at a 50H hearing or other evidence submitted to determine whether Notice of Claim describes the location of an accident with sufficient particularity. Looking at plaintiff’s 50H testimony and other evidence submitted on NYCTA’s motion to dismiss for failure to comply with GML §50-e(2), the plaintiff sufficiently described the area where he fell while alighting from a bus onto a bump in the road, causing him to fall. By waiting 5.5-years before bringing the motion to dismiss, NYCTA cannot claim it was prejudiced by not having the information sooner.

NYCTA’s motion for summary judgment denied where plaintiff’s testimony, submitted by NYCTA, raised questions of whether bus driver could have seen the condition that caused plaintiff to fall and whether plaintiff was provided with a safe place to exit the bus. Delisser v New York City Tr. Auth.    

Malpractice   Accepted Practice   Experts   Statute of Limitations   Continuous Treatement  

First Department
Defendants’ expert failed to show defendants did not depart from accepted practice with opinion that referring plaintiff for a nuclear stress test for shortness of breath was proper but did not address their failure to do the same during a visit 4-years and 9-months earlier. In any event, plaintiff’s expert’s opinion that failure to refer plaintiff for a nuclear stress test during the earlier visit was a departure and plaintiff would have been a candidate for angioplasty at that time instead of triple bypass after the later visit raised issues in opposition.

Malpractice claims from earlier visit not barred by statute of limitations as it was part of a long standing continuous treatment for plaintiff’s coronary artery disease. Zanni v Gomori    

Labor Law §240   Gravity Risk   Renew   Reasonable Excuse  

First Department
Plaintiff denied summary judgment on Labor Law §240(1) where 12”-18” height differential between ramp and pipes and concrete he fell on was not an elevation-related risk covered by §240. Renewal of plaintiff’s motion for summary judgment on Labor Law §241(1) denied where plaintiff waited a year to bring motion based on video of ramp taken 2-days after accident and excuse delay was because they could not figure out how to retrieve the video from an old Android phone was not reasonable justification where he had the video when he made the original motion and did not detail the efforts to retrieve it. D’Ambruoso v Port Auth. of N.Y. & N.J.    

Serious Injury   Experts  

Second Department
Where defendant’s neurologist failed to identify the objective tests used to support opinion that plaintiff did not sustain median neuropathy or carpal tunnel syndrome in his wrists, defendant failed to meet burden for summary judgment on serious injury. Mesias v Modak    

Serious Injury   Preexisting   Causation   Unaffirmed Report   Experts  

First Department
Defendants’ submissions of a prior MRI report showing the same disc herniations and bulges 4-years before plaintiff’s accident, expert’s personal review of prior hip MRI films and records of a prior hip replacement surgery with pain and limitations, and opinion of no injuries caused by the accident met burden for summary judgment on serious injury.

Unsworn medical records and MRI reports not relied on by defendants were inadmissible and affirmation of doctor who first saw plaintiff 4-years after the accident did not raise issue on causation where he did not address prior conditions or offer any findings of aggravation. Cinelli v Greyhound Lines, Inc.    

Labor Law §240   Labor Law §200   Sole Cause   Create Condition   Control   Premises Liab  

First Department
Plaintiff met burden for summary judgment on Labor Law §240(1) on his testimony he fell because leg of aluminum A-frame ladder twisted but defendants raised an issue of sole proximate cause on foreman’s testimony he told plaintiff not to use the aluminum ladder which belonged to another contractor but to use 1-of-3 fiberglass ladders belonging to his employer that were onsite, foreman put ladder in a dumpster, and employee of contractor who owned ladder stepped on leg of ladder to bend it so no one would use it.

Property owner granted summary judgment on Labor Law §200 and negligence claims where there was no claim of a dangerous property condition and it did not control plaintiff’s work but contractor that owned the ladder denied summary judgment as its employee’s bending the ladder created the hazardous condition that caused plaintiff’s fall. Breslin v Macy’s, Inc.    

Premises Liab   Open/Obvious   Inherently Dangerous   Foreseeability   Sole Cause  

First Department
Plaintiff’s actions of climbing onto top of mechanical room on roof, jumping down to roof of a bulkhead structure, and walking backwards in the dark as she took photos was the sole proximate cause of her injuries when she tripped over edge of the bulkhead roof and fell to the roof below. Condition was open/obvious, not inherently dangerous, and plaintiff’s actions were unforeseeable. Regan v W Assoc., LLC    

Dogbite   Notice   Vicious Propensity   Hearsay  

Second Department
Owner of German Shepherd that bit plaintiff granted summary judgment on proof he was not aware and should not have been aware of dog’s vicious propensities such as by ‘[e]vidence tending to prove that a dog has vicious propensities includes a prior attack, the dog’s tendency to growl, snap, or bare its teeth, the manner in which the dog was restrained, and a proclivity to act in a way that puts others at risk of harm.’ Plaintiff failed to raise an issue of fact by inadmissible hearsay and the nature and severity of an attack does not meet the burden of showing defendant knew or should have known of vicious propensities. Sattler v Passaro    

Serious Injury   BP   Causation   Experts  

Second Department
Defendants failed to meet burden for summary judgment on serious injury as to 1-plaintiff without eliminating issues on 90/180-day category alleged in the BP. They met burden as to the other plaintiff but that plaintiff raised issues in opposition on whether she sustained serious injuries to her spine. Since defendants’ expert opined the injuries were caused by the accident, the burden on causation never shifted to plaintiffs. Novembre v Punnoose    

Serious Injury   ROM   Experts  

Second Department
Defendant’s motion for summary judgment on serious injury denied where defendant’s expert found significant ROM limitations in plaintiff’s cervical and lumbar spine and expert failed to show these injuries were not caused by the accident. Court did not need to look at issue of 90/180-day category. Curiale v Delfavero    

Premises Liab   Stairs   Out of Possession   Building Code   Experts  

First Department
Building owner granted summary judgment on proof it was an out-of-possession landlord with no duty to maintain non-structural portions of stairs in tenant’s restaurant which tenant assumed the obligation to repair/maintain under the lease. Landlord’s right to reenter for repairs did not create duty as stairs were not a structural or design defect and codes relied on by plaintiff were either inapplicable or insufficiently specific. Kamara v 323 Pas Owner LLC    

Premises Liab   Elevator   Strike Answer   Spoliation  

First Department
Plaintiff’s motion to strike defendants’ Answer or for an adverse inference denied without proof handwritten elevator mechanic time tickets existed in addition to electronic records provided, unrebutted testimony that elevator logbook remained with building after building-defendants sold building, and plaintiff made no attempt to conduct nonparty EBT’s to obtain the logbooks. Blackstock v AVR Crossroads, LLC    

(2 summaries)

MVA   Premature Motion  

Second Department
Plaintiff’s motion for summary judgment brought before discovery denied as premature where it appeared that discovery might lead to relevant information regarding the circumstances of the MVA. The Court does not give the details of the proofs. Diller v Mirto    

Serious Injury   Causation  

Second Department
Defendants met burden for summary judgment on serious injury but plaintiff raised an issue in opposition. The Court does not give the details of the proofs. Zanni v Knutson    

About Matt McMahon

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