December 29, 2020 | Vol. 242

MUST READS
(5 summaries)
NOTEWORTHY IF YOU MUST READ

Med Mal   Set Aside Verdict   CPLR Art. 16   Appealable Order  

Second Department

On appeal by permission from trial court order limiting new trial to apportionment of fault after remittitur for new trial on defendants’ liability, the Second Department ordered that the new trial be on liability for the 3-defendants with their counsel able to cross-examine plaintiff’s experts on causation of non-party doctors and not just apportionment of fault among defendants. Trial court must strictly adhere to directions in order on remittitur. Daniele v Pain Mgt. Ctr. of Long Is.

Comment: The Appellate Division’s original decision was reported in Vol. #: 141.


Labor Law §240   Ladder  

Second Department

Plaintiff’s testimony ladder shook before he fell was not sufficient for summary judgment on Labor Law §240(1) where there was no evidence ladder moved out of position which would indicate it was improperly secured. Plaintiff testified ladder was not defective and placed on level ground with cross braces fully extended. Joseph v 210 W. 18th, LLC


Med Mal   Discovery   Vacate Default   Vacate Jud   Reasonable Excuse   Meritorious Action  

Second Department

Lower court abused discretion by giving plaintiff another opportunity to seek to vacate conditional order of dismissal after date certain expired, and vacating order and judgment 11-months after the date certain where plaintiff failed to provide discovery despite several orders for 5-years and excuse counsel had a “heavy schedule” was not reasonable. Conditional order of dismissal became absolute after date certain without a reasonable excuse and the Court did not need to look at meritorious action. Goldberg v Breth


Serious Injury   ROM   Admissibility   Hearsay   Causation   Expert Aff  

First Department

Plaintiff failed to raise issue on serious injury of shoulder injury by report of treating physician which found significant limitations later on and that injury was caused by accident but physician’s review of former partner’s medical records showing significant limitations post-accident, although inadmissible hearsay, raised an issue where it was not only evidence submitted.

Plaintiff failed to raise issue on lumbar injuries where first examination 1.5-years after accident was too remote to establish causation and limitations were minor. Plaintiff’s testimony of confinement to home for a few days warranted dismissal of 90/180-day category. Jung Ung Moon v Kumbee Ree P Some


Legal Mal   Judiciary Law §487   Motion to Dismiss   Notice of Claim  

Second Department

Plaintiff sued original attorney who did not timely serve Notice of Claim on NYCTA, subsequent attorney who served late Notice of Claim, and trial counsel retained by subsequent attorney who filed action against NYCTA without moving for leave to file late Notice of Claim resulting where NYCTA’s motion to dismiss was granted without opposition. Subsequent and trial counsels’ motions to dismiss on documentary evidence and for failure to state a cause of action denied where hearing transcripts, affirmation, and affidavit relied on were not documentary evidence and trial counsel agreement was not documentary evidence and did not utterly refute claims in Complaint by establishing a fact pleaded was not a fact at all, including that a petition for leave to serve the late Notice of Claim on NYCTA would have been futile. Plaintiff adequately pleaded Jud.L. §487 claim which was not duplicative of legal malpractice claim. Jud. L. §487 is not duplicative of cause of action for legal malpractice. Bianco v Law Offs. of Yuri Prakhin

NOTEWORTHY
(23 summaries)
MUST READS IF YOU MUST READ

Serious Injury   Vacate Default   Reasonable Excuse   Meritorious Action   Conclusory  

Second Department

Plaintiff’s conclusory and undetailed claims that counsels’ staff changes and moves caused default in opposing serious injury motion did not provide a reasonable excuse by law office failure and court did not need to look at meritorious action. Matthews v Vivero


Med Mal   Accepted Practice   Causation   Expert Aff   Conclusory   Speculation  

Second Department

Neurologist granted summary judgment on expert opinion of no departure from accepted practice during 6-months treatment for perceived seizure disorder and referring plaintiff for blood work, including a rapid plasma reagin test to rule out neurosyphilis, after he showed signs of memory loss, which plaintiff did not go for and plaintiff did not return to the neurologist, and no causation. Plaintiffs’ expert’s opinion that neurologist departed by not telling patient reason for blood tests did not raise issue without proof patient would have had the tests if told and ignored patient’s pattern of compliance with routine blood tests. Opinion that neurosyphilis caused plaintiff’s injuries was conclusory and speculative. Assunta v Rubin


Labor Law §240   Labor Law §241   Industrial Code   Recalcitrant Worker   Sole Cause   Hearsay   Workers Comp Defense   Grave Injury   Raised For First Time   Indemnity  

Second Department

Worker who fell down elevator shaft while dismantling scaffold granted summary judgment on Labor Law §§ 240(1) and 241(6)(based on industrial code §23-1.7[b][1][i] and [iii][falling hazards]). Defendant’s claim plaintiff was sole cause of accident, recalcitrant worker, and working outside the scope of employment rejected without proof plaintiff knew of and was instructed to use harness, and that one was available. Only evidence he was working outside scope of employment was hearsay not admissible in opposition where it was only evidence of claim.

GC’s common law indemnity claim against plaintiff’s employer dismissed on finding plaintiff’s brain injury was not a “grave injury” as medical reports did not find him unable to work in any capacity and there was no such claim in BP. Codefendant granted summary judgment against GC on contractual indemnity. Clarke v Empire Gen. Contr. & Painting Corp.


Labor Law §200   Labor Law §241   Industrial Code  

Second Department

Moving defendants granted summary judgment on Labor Law §200 and common law negligence claims of worker injured during tree removal where there no premises defect alleged and defendants did not have authority to control means and methods of plaintiff’s work. Labor Law §241(6) dismissed as tree removal work is not part of enumerated activities in industrial code §23-1.4(b)(13) that define work covered by §241, did not involve structural integrity of a structure or building, was integral to plaintiff’s work, and, in any event, §§23-1.7(d) and (e) were not applicable. Plaintiff’s statement directly contradicting his earlier testimony raised only feigned issue. Doran v JP Walsh Realty Group, LLC


Labor Law §240   Ladder   Falling Object   Safety Devices  

Second Department

Plaintiff standing on ladder when struck by pipe that fell from ceiling during demolition work granted summary judgment on Labor Law §240(1) regardless of whether he was standing on ladder or on floor when struck as injury was direct result of force of gravity and no safety devices were provided. Franco v 1221 Ave. Holdings, LLC


Labor Law §240   Gravity Risk   Question of Fact  

Second Department

Plaintiff and GC both denied summary judgment on Labor Law §240(1) where plaintiff fell through large, unprotected opening in living room floor his company was to construct an enclosure for. While opening was type of elevation risk covered by §240, questions of fact remained of whether work plaintiff was performing at time of accident required him to be in that area and whether it was type of work protected by §240. Zoto v 259 W. 10th, LLC


MVA   Late Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice   NYC  

Second Department

Petition to serve late Notice of Claim 11-months after FDNY truck sideswiped school bus denied where police report did not give NYC actual knowledge petitioners sustained serious injuries and allegations that reports exist was insufficient for actual knowledge without evidence of their content. Excuse that physicians needed more time to determine if injuries were serious and that attorney was suffering from congestive heart failure, without medical proof, were not reasonable and 10-month delay in bringing petition failed to meet initial burden of showing no prejudice by some evidence or plausible argument. Etienne v City of New York


MVA   Presumption   Speculation   Question of Fact  

First Department

Defendant established entitlement to summary judgment on plaintiff’s failure to yield right-of-way at stop sign in violation of VTL §1142(a) and plaintiff failed to rebut presumption of negligence from violation or show defendant was at all at fault. Fact that defendant didn’t see accident or know what direction plaintiff was traveling provided only speculation. Rivera v Haywood


Med Mal   Duty   Accepted Practice   Causation   Expert Aff   Conclusory   Speculation  

Second Department

Neurologist and chiropractor treating plaintiff’s decedent for neck and back injuries from accident granted summary judgment of claim they failed to diagnose adenocarcinoma behind his ear as their experts established their duty was limited to treating plaintiff for neck/back injuries and that they did not cause or make adenocarcinoma worse where decedent was seen by a dermatologist who saw no suspicious lesions. Decedent’s statement he saw quarter sized red spot before dermatologist saw no suspicious lesions and expert’s conclusory and speculative affidavit failed to raise issues. Cucchiara v Funicelli


Motion to Dismiss   Statute of Limitations   Collateral Estoppel   Appealable Order   Reargument   Renew  

Second Department

Pro se Plaintiff’s appeal from order granting renewal and on renewal dismissing Jud. L. §487 action against prosecutor based on collateral estoppel where case in chief was dismissed in EDNY, plaintiff directed not to file further papers, and that action dismissed as academic where plaintiff did not appeal order granting reargument and on reargument dismissing action on statute of limitations. Armatas v Kestenbaum


Strike Answer   Preclusion   Discovery   Willful/Contumacious   Note of Issue   Good Faith Aff   Sanctions   NYC  

First Department

Plaintiff’s motion to strike NYC’s Answer or preclude it from presenting evidence at trial denied where plaintiff didn’t show that clearly late disclosures provided on motion for summary judgment on eve of trial were part of a “pattern to ignore or thwart discovery orders,” or how it affected her case. Rather than filing Note of Issue, plaintiff could have moved to compel discovery. Lack of good faith affirmation not fatal where plaintiff showed NYC’s late disclosures were clearly willful/contumacious or due to bad faith and would not be resolved without the motion.

Plaintiff’s motion for sanctions against Con Ed for frivolous motion denied, even though motion ill advised, as not sufficiently egregious. Nugent v City of New York


Premises Liab   Slip/Trip   Snow/Ice   3rd Party Contractor   Espinal   Create Condition   Notice   Open/Obvious   Inherently Dangerous  

Second Department

Mall owner and management company denied summary judgment where property manager testified he saw snow piled on long concrete island but did not recall asking that it be removed and he saw people cross island to get to the shopping center, failing to establish lack of notice. Snow contractor denied summary judgment on president’s testimony of typical snow removal practices at the mall without evidence of snow removal before plaintiff’s accident, failing to establish it did not launch an instrumentality of harm under Espinal. Contractor also failed to show condition was not inherently dangerous or that plaintiff was sole cause. Parrinello v Independence Plaza SC, LLC


Prior Written Notice   Create Condition   Burden of Proof  

Second Department

Village proved it did not have prior written notice of road defect that caused injured-plaintiff’s bicycle to fall but failed to show it did not create the condition. Where plaintiff alleges exception to prior written notice rule, the defendant affirmatively created the condition or by special use, the municipality must show entitlement to summary judgment on that issue as well. Holleran v Incorporated Vil. of Floral Park


MVA   Bicycle   Hearsay   Admission   Foreseeability  

First Department

Defendants who drove/owned double parked car plaintiff bicyclist had to swerve around and was struck by nonmoving-defendant’s tractor-trailer denied summary judgment based on driver’s admission he was given ticket for blocking lane of traffic, tractor-trailer driver’s statement car was double parked, and car driver’s contemporaneous statement to police that he was double parked, even if hearsay, as it was not only evidence submitted in opposition. A jury could reasonably find a bicyclist being hit while swerving to avoid a double parked car was reasonably foreseeable. Dong v Cruz-Marte


Premises Liab   Slip/Trip   Wet Floor   Stairs   Dangerous Condition   Expert Aff  

Second Department

Building owner and restaurant-tenant granted summary judgment on proof plaintiff fell due to rain on steps at time of fall as rain, in and of itself, is not a dangerous condition. Plaintiff’s expert failed to raise issue in opposition. Derosa v Zaliv, LLC


Premises Liab   Slip/Trip   Stairs   Building Code   Causation   Expert Aff   Conclusory  

Second Department

Building owner and restaurant-tenant granted summary judgment on proof plaintiff fell because he lost control of hand truck while going downstairs and not inadequate lighting or temporary slippery condition on step, and that administrative code § 27-375 did not apply since staircase connected basement to first floor and was not a required building exit. Claim second handrail should have been installed, and testimony plaintiff reached for that side, irrelevant where not required by building code. Bare conclusory statement by plaintiff’s expert that second handrail was required insufficient to raise issue.

While translator’s affidavit accompanying plaintiff’s affidavit was insufficient without qualifications or statement translation was accurate, even if considered, it failed to raise an issue of fact. Salazar v Kellari Parea, LLC


Premises Liab   Slip/Trip   Wet Floor   Create Condition   Notice   Duty   Raised For First Time  

First Department

Building owner and tenant granted summary judgment on proof they did not create wet condition on mechanical room floor that plaintiff slipped on, that tenant had no actual or constructive notice of condition where it received no complaints and plaintiff who observed the condition on several occasions never reported it, and landlord had no obligation to maintain mechanical room even though it retained a right of reentry. Claim of defective pipes raised for first time in opposition to motion were “new theories” and not considered where plaintiff’s deposition testimony made clear theory was a wet floor. Keenan v Christie’s Inc.


Labor Law §240   Labor Law §241   Discovery   Note of Issue   Premature Motion  

Second Department

Worker’s motion for summary judgment or Labor Law §§240(1) and 241(6) providently denied with leave to renew where plaintiff admitted a witness had not been deposed when he allegedly filed a Note of Issue, even though no Note of Issue was found in record, defendants deposed that witness during pending motion to preclude, and witness provided photographs and identified 2-additional witnesses who had not yet been deposed. Even if plaintiff had filed a Note of Issue it would have been stricken since certificate of readiness alleging all discovery was complete would have been inaccurate and plaintiff could not rely on requests to preclude. Gibbon v 1515 Bedford Ave. Realty, LLC


Premises Liab   Set Aside Verdict   Notice   Court of Claims  

Second Department

On review of Court of Claims’ non-jury verdict in favor of state, where appellate court’s power to review is as broad as the trial court, the Court agreed plaintiff failed to establish state had notice of any defect in tree that fell on infant-plaintiff from strong winds during a storm. Notice can be established from proof a reasonable inspection would have revealed the dangerous condition which can be based on signs of decay readily observable from the ground or on that a reasonable inspection would have shown it. Rushton v State of New York


Premises Liab   Slip/Trip   Snow/Ice   Sidewalk   Out of Possession   § 7-210   Create Condition   Notice   Dangerous Condition   Speculation  

First Department

While an out of possession landlord has a nondelegable duty to maintain the sidewalk under administrative code §7-210, landlord and tenant met burden for summary judgment by proof they did not create a dangerous condition by tenant’s shoveling a path in the 1″-2 ” of snow on the sidewalk 3.5 hours before accident where he saw path was shoveled and salted immediately after accident. Plaintiff failed to raise issue without evidence he slipped on ice from snow a week earlier and claim they had notice because of improper snow removal was mere speculation. Labiner v Jerome Florist, Inc.


Premises Liab   Slip/Trip   Unknown Cause   Errata Sheet   Feigned Issue  

Second Department

Defendants granted summary judgment on plaintiff’s testimony she did not see or feel what her foot came into contact with before she fell, establishing she was unable to identify cause of her fall. Post-deposition errata sheet claiming she tripped on tree stump without adequately explaining change to deposition, and plaintiff’s affidavit, raised only feigned issues. Lower court had granted summary judgment on ground that tree stump was inherent nature of property. Theissen v 7-Eleven, Inc.


Premises Liab   Slip/Trip   Stairs   Wet Floor   Create Condition   Notice  

Second Department

NYCHA granted summary judgment on testimony it did not create condition of urine and garbage in stairway where plaintiff fell, received no prior complaints, and inspected the stairway 3-4 hours before the accident which would have been the last inspection of the day, without finding any debris or garbage, establishing it did not create the condition or have actual or constructive notice. Plaintiff failed to raise an issue in opposition. Meade v New York City Hous. Auth.


MVA   Rear End  

First Department

Owner/driver of lead vehicle granted summary judgment on proof vehicle plaintiff was passenger in struck lead vehicle in the rear, regardless of whether lead vehicle was stopped or moving with traffic. Callahan v Haji

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About Matt McMahon

Civil trials and appeals since 1984
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