Serious Injury Vacate Default Reasonable Excuse Meritorious Action Conclusory
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
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Med Mal Accepted Practice Causation Expert Aff Conclusory Speculation
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
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Labor Law §240 Labor Law §241 Industrial Code Recalcitrant Worker Sole Cause Hearsay Workers Comp Defense Grave Injury Raised For First Time Indemnity
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.
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Labor Law §200 Labor Law §241 Industrial Code
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
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Labor Law §240 Ladder Falling Object Safety Devices
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
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Labor Law §240 Gravity Risk Question of Fact
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
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MVA Late Notice of Claim Actual Knowledge Reasonable Excuse Prejudice NYC
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
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MVA Presumption Speculation Question of Fact
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
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Med Mal Duty Accepted Practice Causation Expert Aff Conclusory Speculation
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
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Motion to Dismiss Statute of Limitations Collateral Estoppel Appealable Order Reargument Renew
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
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Strike Answer Preclusion Discovery Willful/Contumacious Note of Issue Good Faith Aff Sanctions NYC
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
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Premises Liab Slip/Trip Snow/Ice 3rd Party Contractor Espinal Create Condition Notice Open/Obvious Inherently Dangerous
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
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Prior Written Notice Create Condition Burden of Proof
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
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MVA Bicycle Hearsay Admission Foreseeability
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
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Premises Liab Slip/Trip Wet Floor Stairs Dangerous Condition Expert Aff
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
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Premises Liab Slip/Trip Stairs Building Code Causation Expert Aff Conclusory
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
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Premises Liab Slip/Trip Wet Floor Create Condition Notice Duty Raised For First Time
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.
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Labor Law §240 Labor Law §241 Discovery Note of Issue Premature Motion
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
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Premises Liab Set Aside Verdict Notice Court of Claims
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
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Premises Liab Slip/Trip Snow/Ice Sidewalk Out of Possession § 7-210 Create Condition Notice Dangerous Condition Speculation
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.
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Premises Liab Slip/Trip Unknown Cause Errata Sheet Feigned Issue
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.
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Premises Liab Slip/Trip Stairs Wet Floor Create Condition Notice
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.
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MVA Rear End
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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