| MUST READS (3 summaries) | |||
| NOTEWORTHY | IF YOU MUST READ | ||
 School district failed to meet burden for summary judgment dismissing Child Victims Act Claim of negligent hiring, retention, and supervision for sexual assault and abuse by probationary math teacher who tutored plaintiff during her sophomore and junior years, who was convicted for his abuse, on testimony of fellow teacher, who was also convicted, and principal who testified they received no complaints and were unaware of the teacher’s abuse or abusive propensities where the frequency of abuse several times a week over an extended period of time in the same classroom and hallway with others present left issues of whether the district had constructive notice of the teacher’s propensity for abuse. Two dissenters would have affirmed the lower court’s grant of summary judgment finding “frequency and nature” a slippery slope that would not be sufficient to find constructive notice. Stanton v Longwood Cent. Sch. Dist. ✉Comment: With two dissenters, this decision is likely to end up in the Court of Appeals which has yet to address Child Victims Act issues. |
| The lower court improperly took judicial notice of Google Maps images from its independent internet search during a pretrial conference of the intersection where plaintiffs’ vehicle was struck by defendants who had previously settled but correctly granted summary judgment to driver of a vehicle that turned into the intersection on testimony there were 2-turning lanes and that his vehicle never struck plaintiffs’ vehicle and that the driver who had settled was intoxicated and the sole cause of the accident. Pokazanova v Kellyman ✉ |
 Defendant waived its right to an IME/DME by not designating an examining physician within the time set by a court order but plaintiff’s disclosure that she had been examined by an expert and received previously undisclosed counseling and treatment 4-days before filing the Note of Issue without providing a time and place for a further examination under NYCRR §202.17(g) entitled defendant to the IME where it timely moved to vacate the Note of Issue and demand the IME. Rodriguez v Bronx County Pub. Adm ✉ |
| NOTEWORTHY (20 summaries) | |||
| MUST READS | IF YOU MUST READ | ||
| Judgment for State after non-jury trial dismissing Claim where claimant fell when his motorcycle’s front wheel got caught in a rut reversed where claimant met burden of showing state had actual or constructive notice of the defect and failed to correct it by the state engineer’s testimony a rut that could change the direction of a vehicle is a dangerous condition, the area where claimant fell was within the travel lane, and the engineer responded to a fuel spill and clean-up 3-months before claimant’s accident and visited the location several times before the accident without observing the rut but was able to identify it on photographs taken before the accident. On an appeal from a non-jury trial, the Court’s power is as broad as the trial court with due deference to the trial court’s first hand advantage of observing the evidence. Paci v State of New York ✉ |
| Plaintiffs’ motion to set aside verdict that found defendants did not assault or batter the injured-plaintiff denied as not against the weight of the evident despite evidence of bodily contact where there was conflicting evidence of material aspects of the altercation for the jury’s consideration. Park v Yu Qing Yan ✉ |
| Plaintiff’s motion to void so ordered stipulation of discontinuance against physicians assistant and enter default judgment against her for NYCHHC failing to produce her for EBT, and for sanctions against NYCHCC for failing to produce physicians for EBTs pursuant to a separate stipulation, denied as hospital had no duty to produce the PA and physicians for nonparty EBTs as they were no longer employees when plaintiff sought to depose them years after the stipulations and, in any event, NYCHHC made reasonable efforts to contact them to appear at depositions. Ward v City of New York ✉ |
| Defendant’s motion to vacate default judgment denied where process server’s affidavit of service on person of suitable age and discretion was prima facie proof of proper service and defendant’s claim service was improper because follow up mailing went to her home instead of her PO box was misplaced as the statute requires it to be made to the last known residence. Defendant failed to show a reasonable excuse by claim she was unaware carrier disclaimed coverage for CPLR §5015 and her admission that the person of suitable age and discretion was served made CPLR §317 inapplicable. Gilhuys v Trovato ✉ |
| Plaintiff’s motion for default judgment brought 6-months after she rejected defendant’s Answer denied and defendant’s cross-motion to compel acceptance of its Answer granted as the NYS Secy. of State’s mailing was not made to or received by the corporate defendant until 3-months after the SOS was served and the Answer was filed within 30-days, providing a reasonable excuse for the delay. Alleged affirmative defense that the snow/ice was open, obvious, and apparent, verified only by counsel, provided a potentially meritorious defense,. Factual issues raised by plaintiff were for the jury to decide. King v 105-02 Forest Hills, LLC ✉ |
| Plaintiff’s motion to vacate portions of compliance conference order that stated he was not pursuing his lost earnings claim and 2-subsequent compliance conference orders stating he waived his lost earnings claim granted where his former attorney notified defense counsel of plaintiff’s intention to reassert the claim at the EBT, plaintiff was extensively questioned on his work history and provided work authorization, and defendants could not show prejudice where discovery was ongoing. Davis v Conklin ✉ |
| Plaintiffs’ expert raised issues of whether staff of hospital where plaintiff-patient was admitted for rehabilitation after spinal surgery at a different facility departed from accepted practice by failing to properly monitor and treat the surgical wound, including prematurely removing the surgical sutures, and whether these departures were a proximate cause of the wound dehiscence and subsequent debridement surgery. Plaintiffs’ expert established her qualifications to render an opinion on the accepted standards of wound care and her opinions did not present a new theory raised for the first time in opposition where the hospital’s expert recognized the importance of recognizing signs of wound infection and the timing of suture removal. Plaintiffs’ expert failed to raise an issue in opposition to spine surgeon’s expert’s opinion that surgeon adhered to the standard of care by appropriate wound care instructions and a follow-up appointment in 1-week to monitor the wound, which the patient failed to do. Donohue v Grossman ✉ |
| Carpenter shop steward granted summary judgment on Labor Law §240(1) against building owner and construction manager on proof unsecured shop built ladder slipped away from the wall as she ascended and defendants failed to show ‘that there was no statutory violation and that plaintiff’s own acts or omissions were the sole cause of the accident.’ Keen v Tishman Constr. Corp. of N.Y. ✉ |
| Elevator company granted summary judgment on proof its maintenance contract did not entirely displace LIRR’s duty to safely maintain the escalators at its train station as it could direct the elevator company’s employees and it inspected and made repairs to the escalators and that it did not launch an instrumentality of harm as its maintenance did not create or exacerbate the condition. Proof that it regularly inspected and maintained the elevator and lacked notice of any defect showed it “did not fail to use reasonable care to correct a condition about which it should have been aware.” Morrison v Long Is. R.R. ✉ |
| Motion to dismiss 1983 action for violation of plaintiff’s constitutional rights to a fair trial, to be free from continued detention, for failure to intervene, 42 USC §1985 action for conspiracy to violate his rights, and for attorney fees under 42 USC §1988 where plaintiff was held at Rikers Island for 2-years before being acquitted of attempted murder denied where plaintiff adequately pled that the individual officers knowingly fabricated the evidence by inducing a witness to falsely identify him as the shooter in a lineup and provided that information to the prosecutors. Plaintiff did not need to show the actions of the individual officers, in contrast to the police department, were based on a “policy or custom” under Monell. Failure to intervene cause of action could be pled as an alternative theory. Intra-enterprise conspiracy doctrine that holds actions by agents of the same agency cannot be conspiracy inapplicable where plaintiff alleged the officers conspired with members of the DA’s office. Pressley v City of New York ✉ |
| Police officer and department granted summary judgment dismissing plaintiffs’ claims for false arrest and unlawful search on theory that conceded probable cause for the search warrant, based on confidential informant information that a 19-year-old with a gun and extra magazine had hung out in the apartment days before, was ‘vitiated’ midsearch when the plaintiff-mother told the officer the 19-year-old did not live in the apartment but the officer continued the search as the probable cause continued after the mother’s statement based on the informant’s information and the search was done in a reasonable manner. There was 1-dissent. Valdez v City of New York ✉ |
| Snow removal contractors met burden for summary judgment dismissing plaintiff’s claim for slip and fall on ice in her employer’s parking lot as plaintiff was not a party to the snow removal contract and they did not have to affirmatively address Espinal exceptions which were not alleged. Plaintiff failed to raise an issue in opposition by coworker’s affidavit that only addressed the general condition of the parking lot, not the specific ice plaintiff fell on, or the affidavit of her employer’s former director which did not address the the employer’s partial responsibility for maintaining the parking lot in the contract on the issue of whether the contract entirely displaced the employer’s duty to maintain the parking. Brito-Hernandez v Superior Contr. ✉ |
| Police officer and NYC granted summary judgment dismissing claim of passengers in vehicle that made left-hand turn in front of the police vehicle which was proceeding through the intersection while responding to an emergency, establishing entitlement to the VTL §1104 reckless standard, and proof that the officer was not reckless and that the driver of vehicle plaintiffs were in violated VTL §1141 by making a turn when it was unsafe to do so. Haniff v City of New York ✉ Comment: From the lower court order, the police vehicle had its lights and sirens on as it went through a green light. |
| Plaintiff granted summary judgment against NYC defendants on proof his vehicle was stopped for 10-seconds before being rear-ended by police traffic enforcement tow truck on the highway. Defendants were not entitled to VTL §1103 reckless standard where tow truck driver only testified he was towing a vehicle without describing circumstances that would fit within that section and that he was driving 40 mph when he saw plaintiff’s vehicle 100 ‘ ahead, tailgating another vehicle which did not raise an issue on nonnegligent explanation without stating how far he was from plaintiff’s vehicle when it applied its brakes, the applicable speed limit, or the surrounding circumstances. Stolyar v City of New York ✉ |
| Hospital failed to meet burden for summary judgment dismissing patient’s claim for burns when a hospital employee spilled hot liquid on her by testimony of staff that they had no recollection of such an incident, plaintiff’s testimony that a hospital employee in white scrubs spilled the liquid on her, and her medical records that had 2-notations of her being treated for burns from spilled hot coffee. Brower v Staten Is. Univ. Hosp. ✉ |
| NYCHA granted summary judgment dismissing plaintiff’s claim for dog bite while delivering food to a NYCHA building on proof it had no notice the dog was being harbored in the building or knowledge of the dog’s vicious propensities. Plaintiff’s claim he previously complained about the dog to a NYCHA employee did not raise an issue without being able to identify the employee, show the employee was responsible for the property, or provide proof of the complaint. Gershik v New York City Hous. Auth. ✉ |
| Driver of vehicle plaintiff-passengers were in failed to meet burden for summary judgment on serious injury without competent medical evidence that 1-plaintiff’s injuries did not meet consequential or significant limitation categories, that other 2-plaintiffs’ injuries did not meet 90/180-day category, or that the injuries were not caused by the accident. Plaintiffs adequately explained gap in 1-plaintiff’s treatment by medical records showing the injuries were permanent and further treatment would only be palliative. Motion to dismiss by owner and driver of other vehicle based on lower court’s grant of summary judgment on serious injury, granted below, reversed. Valdez v Classic Hauling, LLC ✉ |
| Plaintiff granted summary judgment against owner and operator of vehicle that rearended the vehicle she was in. Defendant-driver’s statement that the vehicle plaintiff was in stopped short, noted in the police report, was insufficient to raise an issue on nonnegligent explanation. Chowdhury v Elshaer ✉ |
| GC granted summary judgment dismissing subcontractor’s employee’s claim for injuries while using a ladder on a renovation project in New Jersey as it only owed a negligence duty to plaintiff under NJ law, it did not have a contractual duty to protect the subcontractors’ workers, it did not have control over the means and methods of plaintiff’s work, the ladder belonged to the subcontractor and was set up by plaintiff and a coworker, and the GC had no notice of any defects in the ladder or that it was being used unsafely. Villaseñor v Sivan Consulting, LLC ✉ |
| Contractor granted summary judgment dismissing plaintiff’s claim for injuries when she stepped from curb onto hot painted crosswalk line on proof it did no work in the area of the crosswalk. Wright v City of New York ✉ |
| IF YOU MUST READ (2 summaries) | |||
| MUST READS | NOTEWORTHY | ||
| Defendants met burden for summary judgment on proof plaintiff’s injuries did not meet serious injury threshold and were degenerative. The Court does not give the details of the proofs. Ramos v Jahar ✉ |
| Defendant 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. Villatoro v DeJesus ✉ |