| MUST READS (5 summaries) | |||
| NOTEWORTHY | IF YOU MUST READ | ||
 In a major pronouncement on the application of state sovereign immunity for foreign state-created entities, the majority set out three factors to weigh in determining whether jurisdiction would offend the dignity of the foreign state; how the state defines the entity and its function, the state’s power to direct the entity’s conduct, and the effect of a judgment on the state and found New Jersey Transit is not entitled to sovereign immunity because a judgement would be paid by NJT, not the state, and NJT has significant autonomy. The issue of how the state defined NJT slightly favored immunity and the issue of control was neutral on immunity. In dicta, the Court rejected the notion that a foreign-state’s sovereign immunity can be disregarded because the suit may not otherwise be available. Five Judges joined the decision with one concurring opinion, and one Judge concurred in the result in a separate opinion. There was one dissent. Colt v New Jersey Tr. Corp. ✉Comment: The First Department decision was reported in Vol. 315. This will likely generate motions to renew cases previously dismissed on sovereign immunity based on new law and ultimately be reviewed by SCOTUS. |
| On appeal from decision granting Uber’s motion to compel arbitration for an accident where the plaintiff had commenced an action months before Uber updated its terms of service to include prior accidents, the 5/2 majority held plaintiff agreed to the terms of Uber’s updated binding arbitration agreement for preexisting cases by clicking on the accept button to access an Uber ride because the clickwrap agreement and links to the terms were clearly displayed, creating a valid contract and putting her on “inquiry notice” of the terms whether or not she read them, and a reasonable user would have understood that the agreement would require her preexisting lawsuit to proceed by arbitration. The majority rejected plaintiff’s argument she could not have assented to the new term because they sent the notice to her instead of her existing attorney, finding Uber was not aware of her attorney because of Covid and rejected plaintiff’s argument that the term requiring arbitration for all preexisting accidents wasn’t binding because Uber knew she would not have agreed to the term if she was aware of it as it did not go to whether there was a contract requiring arbitration but only whether that clause was enforceable which is to be decided by the arbitrator. Acknowledging studies showing that few people ever view or understand terms of service, the dissent saw the issue as contract formation of whether assent to a term “that mandated removal from court to arbitration of an already filed lawsuit” was a material term distinct from the overall arbitration of future suits and would have found no assent because the terms did not clearly state that, Uber knew plaintiff would not have agreed to it if she was aware of it, and Uber bypassed giving notice to her existing attorney by including a hyperlink to the terms sent to millions of its users and a pop up screen a user had to click in order to schedule a ride. Wu v Uber Tech., Inc. ✉ Comment: The First Department decision was reported in Vol. 384. It would be interesting to see whether the arbitrator finds the prior accident and lawsuit are or are not subject to the arbitration clause. |
| Nursing home’s motion to change venue from New York to Nassau County based on venue selection clause in 2-admission agreements electronically signed by patient granted where defendant met its initial burden of showing the agreements were authentic and enforceable by circumstantial evidence of the affidavit of its admission director, who had no recollection of decedent, that the agreements were kept in the regular course of business and that the signature of its representative on the agreements meant the representative was present when decedent signed them and the director described its representatives’ custom and practice of meeting with and reviewing the admission paperwork with each resident to determine if they are oriented and conversing appropriately and reviewing each page with the resident. Decedent’s signature on the last page of the forms and her initials on each page of the agreements and attachments acknowledged she understood the agreements. Plaintiff failed to raise an issue by claim the electronic signature was not his mother’s without proof the exemplar signature he submitted was from the relevant time and the Court acknowledged that electronic signatures may differ from handwritten signatures. Claim that signatures were inadmissible under CPLR 4539(b) without expert proof of anti-fraud measures inapplicable as that section only applies to reproductions of hard copy records. Knight v New York & Presbyt. Hosp. ✉ Comment: Reversed First Department decision reported in Vol. 378. |
| Plaintiffs’ appeal from grant of summary judgment to GC dismissed where motion to Court of Appeals for leave to appeal was filed 31-days after the GC filed on NYSCEF Notice of Entry of Appellate Division denial of motion for leave to appeal to the Court of Appeals, making it 1-day late, and filing on NYSCEF is the proper service date. Building owner and tenant failed to meet burden for summary judgment dismissing plaintiffs’ Labor Law §241(6) claim for slip and fall on concrete pebbles without conclusively showing “the pebbles were ‘inherent to the task at hand, and not . . . avoidable without obstructing the work or imperiling the worker,’” or that they were not a foreign substance under industrial code §23-1.7(d) as they were not part of the floor or necessary for its functionality, or that they were not a slippery condition under §23-1.7(e)(2) where plaintiff testified he slipped on them. Labor Law §200 and negligence claims against out of possession owner, manager, and tenant not occupying the space dismissed on proof they did not supervise or control the means and methods of the injured-plaintiff’s work. Ruisech v Structure Tone Inc. ✉ Comment: The First Department decision was reported in Vol. 327. |
 Lyft’s SUM carrier’s motion to permanently stay arbitration of claim for death of Lyft driver who was carrying a passenger when his vehicle was struck by an uninsured vehicle granted as the decedent was not an insured under the SUM policy which excluded use of “for-hire” vehicles under NYC administrative code which includes all vehicles carrying passengers for hire in New York City. Matter of Progressive Ins. Co. v Baby ✉Comment: Passenger’s SUM arbitration permanently stayed for the same reason. Matter of Progressive Ins. Co. v Callahan. |
| NOTEWORTHY (27 summaries) | |||
| MUST READS | IF YOU MUST READ | ||
 Embrel manufacturer’s motion to preclude opinions of plaintiffs’ causation experts, and for summary judgment, granted as plaintiffs concede there are no clinical studies or medical literature supporting the opinions that her use of Embrel caused her squamous cell carcinoma of the tongue and FDA warnings and adverse care reports are insufficient for Frye as ‘observational studies or case reports are not generally accepted in the scientific community on questions of causation.’ Plaintiffs’ experts failed to rebut defendants’ experts’ opinions that Enbrel had a unique mechanism of action compared to similar drugs and, in any event, the NY Frye rule is stricter than the federal Daubert standard. Wholey v Amgen Inc. ✉ |
| Testimony and affidavits of internist and cardiologist who treated plaintiff’s decedent inadmissible under the dead man statute both at trial and on motion for summary judgment as they were based on communications with the decedent and they had an interest in the events, Nurse’s testimony was not barred as she did not have an interest in the events. Medical records admissible as relevant to diagnosis and treatment. Internist granted summary judgment where the medical records showed she examined the decedent, performed appropriate tests, and referred decedent to the cardiologist. Cardiologist failed to meet burden for summary judgment, even though medical records stated decedent declined to go to ER for troponin testing, as they did not indicate he specifically advised decedent of the severity of her condition and the need for immediate hospital monitoring and treatment. Nurse testified she advised decedent to follow the cardiologist’s advice to go to the hospital but not that she discussed the specifics of decedent’s condition. Weber v Sharma ✉ |
| Plaintiffs appeal from order granting defendants’ motion to dismiss on default, where the lower court deemed plaintiff’s opposition papers that plaintiff filed 1-day before the return date untimely and defendants rejected the opposition, dismissed as no appeal lies from an order granted on default and plaintiff did not argue the lower court erred in not considering the opposition papers, only that the motion should have been denied on the merits. Fei Wu Hu v Lei ✉ |
| Motion to dismiss by police officers added by Amended Complaint, substituting them for John Doe’s, on statute of limitations granted as the statute of limitations had expired before they were added and the relation back doctrine did not apply as they were not untied in interest with NYC which cannot be vicariously liable for officers’ 1983 violations, and plaintiff failed to show diligent efforts to ascertain the officers’ identities before the statute of limitations expired. Lower court order permitting plaintiff to amend the Complaint was not binding as law of the case does not bind the appellate court. Agosto v Maria ✉ |
| On reargument, lower court properly adhered to its original order denying plaintiff’s motion to vacate dismissal on default as plaintiff failed to meet 2-prong test of reasonable excuse for the default and meritorious action but erred in not addressing plaintiff’s motion to renew based on a medical expert’s affidavit, finding the motion was one for reargument, as both reargument and renewal must be addressed when separately identified in the motion and the expert affidavit was sufficient new evidence to support the motion to renew. Pellerano v New York City Health & Hosps. Corp. ✉ |
| Petitioner’s motion for leave to serve late Notice of Claim, brought near the end of the statute of limitations, granted where NYC had timely actual knowledge of the essential facts, including what caused petitioner to fall off a ladder while making repairs, from unusual occurrence and line-of-duty reports, which also established lack of prejudice by the delay. Lack of a reasonable excuse for the delay not fatal to the petition. Matter of Peers v City of New York ✉ |
| NYCTA’s motion to dismiss on grounds the Notice of Claim had the wrong accident date and a missing portion of plaintiff’s name denied and plaintiff’s cross motion to amend the Notice of Claim granted where she testified to the correct date at her 50H and NYCTA failed to show prejudice from the incorrect date or missing portion of plaintiff’s name. Portion of motion that was to dismiss MTA as an improper party not properly before the Court where not addressed below. Hernandez-Panell v City of New York ✉ |
| Defendants’ motions to strike plaintiffs’ supplemental BP alleging violations of playground standards, and to preclude their expert’s testimony on those violations, granted where plaintiffs had previously withdrew a supplemental BP alleging playground standards and specifically “withdr[ew] any violations or statutes and ordinances in the above captioned matter,” making the violations in the second supplement BP new theories of liability which cannot be asserted in a supplemental BP. L.R. v Evergreen Charter Sch. ✉ |
| Best Buy’s motion for summary judgment dismissing plaintiff’s negligence, negligent hiring, retention, and supervision claims for sexual assault by workers in Best Buy uniforms who delivered and installed a TV denied as its manager’s affidavit that the installers weren’t employed by Best Buy lacked sufficient basis where the manager was hired 7-years after the incident, claim his review of a contract showed they were employed by an independent contractor rejected where the contract was not submitted, and documentary evidence submitted for the first time in reply was not considered. Breach of contract action dismissed as the TV was delivered and installed and appeal from dismissal of punitive damage claim dismissed as abandoned. Dahlen Kok Han Wee v Best Buy Co., Inc. ✉ |
| Lower court erred in searching the record, vacating a prior grant of summary judgment for plaintiff on Labor Law §241(6) against the building owner and GC which had been granted by a different judge that was upheld by the Second Department, and granted summary judgment to those defendants because it had no authority to grant relief that was not requested as part of the motion filed by a different defendant. Framing contractor granted summary judgment dismissing Labor Law §§ 240(1) and 241(6) claims of roofer who fell through uncovered chimney opening as it was not an owner or GC and had no authority to control plaintiff’s work. Labor Law §200 claims dismissed on framing contractor’s testimony it nailed a 3/4″ plywood covering over the opening before the roofers began their work and it had no authority to control plaintiff’s work. Mejia v 69 Mamaroneck Rd. Corp. ✉ |
| Store defendants granted summary judgment dismissing plaintiff’s negligent hiring, retention, training, and supervision claims that their employee attempted to take photos of her changing in a fitting room on proof they had no notice of the employee’s propensity for misconduct. Plaintiff’s expert failed to raise an issue in opposition with opinion defendants failed to conduct a pre-employment background check as ‘[t]here is no common-law duty to institute specific procedures for hiring employees unless the employer knows of facts that would lead a reasonably prudent person to investigate the prospective employee’ and there was no proof a background check would have revealed misconduct. Hashimi v Gap, Inc. ✉ |
| Worker who was struck by steel beam as it slid off a truck when caught by a crane hook while being hoisted granted summary judgment on Labor Law §240(1). Defendant failed to raise an issue on sole cause for plaintiff being in an unauthorized area without proof he was instructed not to be in that area and, in any event, they failed to show there was no §240 violation. Plaintiff being in an unauthorized area would only be comparative fault, not a §240 defense. C-3 form signed by plaintiff inadmissible without a proper foundation and it did not contradict plaintiff’s testimony. Dolcimascolo v 701 7th Prop. Owner, LLC ✉ |
| Plaintiff who fell from 3’ A-frame ladder that was admittedly inappropriate for installations on ceiling and unstable, granted summary judgment on Labor Law §240(1) where his boss told him to complete the work quickly and he looked for but couldn’t find appropriate ladders which were not readily available to him, so he could not be the sole cause of the accident. Llach v L.I.C.C. Realty Co. ✉ |
| Church defendants’ motion to dismiss Child Victims Act claims of sexual abuse by church elder denied as to negligent hiring, retention, and hiring where plaintiff adequately pled the elder was their employee or agent, the abuse took place on their property, and they knew or should have known the elder posed a threat to children. Claim for negligent failure to provide a safe environment dismissed as duplicative. SWKI 1 Doe v Watchtower Bible & Tract Socy. of Pa. ✉ |
| Owner and driver of vehicle that made left hand turn into a driveway met burden for summary judgment dismissing claim of plaintiff whose struck the rear of defendants’ vehicle on defendant’s affidavit and dashcam video showing he stopped and the other vehicle was not visible before making the turn and accident reconstructionist’s opinion that plaintiff was going 15 mph over the speed limit before impact. Plaintiff’s expert’s failed to show qualifications to render an opinion but conceded the plaintiff was speeding and that the dashcam video refuted plaintiff’s version of the accident. Opinion that defendant-driver could have avoided the accident was speculative where not supported by the record. Garcia v Brockenberry ✉ |
| NYC and Parks Department granted summary judgment dismissing plaintiff’s claim for trip and fall on metal fence surrounding tree well, where tree had previously been removed, on proof it did not receive prior written notice of a defect. Plaintiff failed to raise an issue by proof of two 311 calls regarding replacement of the tree as “verbal or telephonic communication to a municipal body that is reduced to writing does not satisfy the prior written notice requirement, even if the writing includes a service report.” Plaintiff’s expert failed to cite industry standards or practices for construction or design of tree well borders to show defendants created an immediately dangerous condition. Carney v City of New York ✉ |
| Building owner denied summary judgment dismissing plaintiff’s claim for slip and fall on snow/ice on sidewalk where it failed to show last time the sidewalk was inspected in order to show lack of notice. Member of LLC that owned building granted summary judgment as he owed no duty to plaintiff and did not create the condition. Marinis v Loschiavo ✉ |
| Charter school’s motion for summary judgment dismissing plaintiffs’ Complaint for infant’s fall from monkey bars on grounds they failed to serve a Notice of Claim denied as a plaintiff need not serve a Notice of Claim on a charter school. Property owner failed to establish it was an out of possession landlord where it had an office and after-school program on the property, its chief director was on the board of the charter school, and its employees were often at the property and addressed property issues. Defendants denied summary judgment where competing expert opinions left issues on sufficiency and placement of mats under monkey bars. L.R. v Evergreen Charter Sch. ✉ |
| Landowner demonstrated she did not own property abutting sidewalk or create height differential of sidewalk flags plaintiff tripped on but denied summary judgment for failing to show as a matter of law that a portion of the sidewalk flag that caused plaintiff to fall did not abut her property. Utility company granted summary judgment on proof it did not perform the work that caused the defect. Separate contractor granted summary judgment on proof it did no work on the sidewalk. Santiago v 527 Grand, LLC ✉ |
| Plaintiff’s neurologist raised issues in opposition to defendants’ motion for summary judgment on serious injury by findings shortly after the accident that plaintiff had headaches and balance, equilibrium, visual spatial task, attention, memory, and recall difficulties consistent with her Montreal Cognitive Assessment score and brain imaging studies, evincing a TBI from the accident. Plaintiff’s orthopedist raised issues on her bilateral shoulder injuries by findings of reduced ROM 2-months after the accident and MRI findings of bilateral labral tears. Fall v Greyhound Lines, Inc. ✉ |
| Defendants met burden from summary judgment by their neurologist and orthopedist reports finding normal ROM in plaintiff’s spine and shoulder and opinion that positive MRI findings were degenerative from normal wear and tear. The difference between these doctors’ identification of normal ROM as referenced by different versions of the AMA guidelines are insignificant. Plaintiff’s experts failed to raise an issue without addressing defendants’ experts’ opinions on degeneration, the effect of a subsequent accident, and without opining on causation. Brito v Bethlehem Haulage, LLC ✉ |
| Pedestrian granted summary judgment on her affidavit that she looked and did not see traffic before beginning to cross and had crossed 3/4 of the unmarked crosswalk before defendant’s vehicle ran over his foot and defendant did not submit his own affidavit in opposition. Plaintiff’s affidavit lacked sufficient details for dismissal of comparative fault defense. Lu Yan Li v Yong Hua Zhen ✉ |
| Plaintiff granted summary judgment on his affidavit that he was stopped for 20-30 seconds before being rear-ended by defendants’ truck but denied dismissal of comparative fault where defendant-driver’s affidavit that plaintiff suddenly stopped short for no reason raised an issue of fact. Martinez v Colonna ✉ |
| NYCTA raised issues of fact in opposition to plaintiff’s summary judgment motion for subway doors pinning her when she disembarked a train as plaintiff’s statement in her affidavit that the doors closed 3-seconds after they opened contradicted her testimony that they were open for 5-minutes before closing and NYCTA’s expert opined plaintiff’s version was impossible as the doors would have opened immediately on touching her. Plaintiff’s expert’s observation that this function could be modified at best raised an issue of fact. Berger v New York City Tr. Auth. ✉ |
| Plaintiff’s motion to compel bus defendants to provide GPS and bus route documents granted as relevant to the ‘place, proximity, and timing’ of the bus when it struck the police vehicle. Smith-Percival v MTA Bus Co. ✉ |
| Law firm’s motion to dismiss legal malpractice claim for representation of plaintiff as a defendant in a personal injury action denied as the documentary proof submitted did not utterly refute plaintiff’s factual allegations and plaintiff did not have to plead that the malpractice fell within the agreed scope of the representation as legal malpractice actions are not required to be pled with specificity. Berger v Lewis Johs Avallone Aviles, LLP ✉ |
| Law firm’s motion to dismiss malpractice claim against for failure to pursue a VTL §509(3)(violating learner permit restrictions) claim against a non-settling defendant which jury found not negligent denied as there was no proof it presented no evidence to support a negligence per se theory. Kowalski v Gold Benes, LLP ✉ |
| IF YOU MUST READ (3 summaries) | |||
| MUST READS | NOTEWORTHY | ||
| Surgeons and hospital granted summary judgment dismissing plaintiffs’ malpractice claims of failure to diagnose and treat compartment syndrome in her leg when admitted to the hospital on their expert vascular surgeon’s opinion of no departure from accepted practice or causation. Plaintiffs’ expert vascular surgeon’s conclusory and speculative opinions failed to raise an issue in opposition without addressing defendants’ expert’s specific assertions. The Court does not give the details of the proofs. Avgi v Policha ✉ |
| MTA granted summary judgment dismissing plaintiff’s claim for injuries when a fellow bus passenger fell on her on testimony of plaintiff and bus driver demonstrating the movement of bus was not unusual or violent. The Court does not give the details of the proofs. McClain v MTA Bus Co. ✉ |
| Plaintiff’s motion for summary judgment for collision in intersection denied as premature without prejudice to renew where no discovery was conducted and affidavits from plaintiff and defendant showed discovery may lead to relevant information regarding that defendant’s liability. The Court does not give the details of the proofs. Litchmore v Manan ✉ |