December 5, 2023 | Vol. 394

(4 summaries)

Labor Law §240   Scaffold   Set Aside Verdict   Causation  

First Department
Plaintiff’s motion to set aside verdict finding building owner and contractor did not violate Labor Law §240(1) granted as against the weight of the evidence where the scaffold failed to protect plaintiff from falling when his core drill jerked and ‘either defective or inadequate protective devices constituted a proximate cause of the accident.’

The Court noted that “compliance with industrial standards is irrelevant for the purpose of Labor Law § 240(1).” Isaac v 135 W. 52nd St. Owner LLC    

Malpractice   Vacate Default   Motion to Dismiss   CPLR § 3126   Preclusion   Willful/Contumacious  

Second Department
Plaintiff’s motion to vacate order of dismissal for failure to conduct depositions on date set in court order providently granted on proof that neither side conducted depositions according to the order, they exchanged emails but no telephone calls attempting to schedule the depositions, showing that failure to comply with the order was not willful/contumacious. Sokolnik v Voronova    

MVA   Default Judgment   Appealable Order  

Second Department
Appeal by NYCTA and MTA from grant of plaintiff’s motion for default judgment against Assess-A-Ride dismissed as they were not aggrieved by the order, even though they opposed the motion, without proof they were united in interest with the defaulting defendant. Estella v Val Auto, LLC    

Motion to Dismiss   Special Duty   Control   NYC  

First Department
NYC’s motion to dismiss granted where plaintiff failed to plead sufficient facts to show it owed a special duty to plaintiff’s decedent by violations of administrative codes designed to protect the class of people she belonged to rather than the general public. NYC’s reduction of the class of violation at a hearing did not support claim that it assumed direction and control of the building. Tishman v Himmel + Meringoff Props., LLC    

Comment: From the lower court decision, decedent was struck with debris falling from the façade of a building which NYC had inspected and issued violations.
(16 summaries)

Malpractice   Estate   Motion to Dismiss   Capacity to Sue   Renew   Reargument   Appealable Order  

Second Department
Defendant’s motion to dismiss appeal filed by decedent’s counsel from an order granting defendant’s motion to dismiss for failure to timely substitute an administrator after decedent’s death under CPLR §1021 granted as counsel’s authority to act on behalf of decedent terminated upon his death. Constable v Staten Is. Univ. Hosp.    

Comment: Appeal from denial of motion to renew/reargue dismissed where it was a motion to reargue and there is no appeal from denial of a motion to reargue. Constable v Staten Is. Univ. Hosp.

Premises Liab   Discovery   Untimely   CPLR § 3126   Preclusion   Willful/Contumacious   Law of the Case  

Second Department
Plaintiff’s motion to resolve issue of whether sidewalk he tripped on abutted defendant’s property based on defendant’s untimely disclosure of evidence showing it did not abut defendant’s property providently denied where plaintiff failed to make a clear showing that defendant’s failure to timely disclose was willful/contumacious or in bad faith and the issue was not barred by law of the case as the prior decision denying defendant’s motion to renew did not discuss sanctions or determine whether defendant’s delay was willful/contumacious. Finely v ZSN, LLC    

Default Judgment   Reasonable Excuse   Meritorious Defense   Motion to Dismiss   Untimely   NYC  

First Department
Plaintiff’s motion for a default judgment denied where defendant had a reasonable excuse for the delay in answering or filing a pre-Answer motion to dismiss due to the Covid epidemic and plaintiff did not argue NYC did not have a meritorious defense.

NYC’s motion to dismiss remanded for further consideration where the lower court failed to identify which portions of the motion it intended to deny or specify what actions it intended to take as to enumerated paragraphs. It would have been improper for the lower court to strike the enumerated paragraphs as NYC did not move to strike them and factual allegations can only be stricken if they are scandalous or prejudicial, which was not the case. Kelly v City of New York    

Premises Liab   Discovery   BP   NYC  

Second Department
Decedent placed his medical history of bilateral wrist complaints and conditions in issue by allegations of loss of enjoyment of life and ‘activation of underlying degenerative joint disease’ in his BP, entitling NYC to authorizations for treatment after the accident for bilateral wrist pain diagnosed as carpal tunnel syndrome that reportedly began prior to the accident. Frawley v City of New York    

Labor Law §240   Labor Law §241   Labor Law §200   Causation  

Second Department
Defendants granted summary judgment dismissing Labor Law §240(1) claim of Verizon worker who dove under truck when utility pole 150′ away snapped as workers hoisted it as plaintiff was not struck with any portion of the pole and his injuries were the result of him driving under the truck. Defendants denied summary judgment dismissing Labor Law §241(6) claims where evidence that the pole was being hoisted to be completely replaced after the pole had been damaged by a motor vehicle failed to show that the work was “routine maintenance” not covered by §241 versus a covered repair.

Defendants failed to show they lacked authority to control the work being performed by their employees at the time of the accident and did not address plaintiff’s claim they created and had notice of the dangerous condition under Labor Law §200. Plaintiff denied summary judgment on §200 where questions remained of whether defendants removed the pole in a negligent manner. Ricottone v PSEG Long Is., LLC    

Labor Law §240   Labor Law §200   Falling Object   Create Condition   Notice  

First Department
Project manager granted summary judgment on Labor Law §240(1) against owner and GC where escape ladder on hoist he was riding in fell 7′-8′ and struck him on his head as the ladder was a device that required securing for the undertaking. Owner and GC granted summary judgment dismissing Labor Law §200 claim where they did not create or have notice of the dangerous condition. Hoist contractor could not be liable under §240 as it was not an owner or general contractor but denied summary judgment on negligence claims where it installed and inspected the hoist and escape ladder. Tisselin v Memorial Hosp. for Cancer & Allied Diseases    

Labor Law §240   Scaffold   Agent   Control  

Second Department
Worker injured when rope scaffold he was on while pointing facade of building swung and hit the building granted summary judgment against building owner on Labor Law §240(1) where there was no dispute the rope scaffold failed to provide adequate protection for plaintiff’s work. Plaintiff failed to meet burden for summary judgment against owner on Labor Law §240(2) which requires guardrails and protections against swinging on scaffolds hung more than 20′ above the ground.

Management company granted summary judgment dismissing §§ 240 (1), (2), and 241(6) claims on proof it did not act as the agent of the building or construction company where it did not have authority to control or supervise the work site. Hossain v Condominium Bd. of Grand Professional Bldg.    

Labor Law §240   Labor Law §241   Falling Object   Industrial Code  

Second Department
Plaintiff and defendants denied summary judgment on Labor Law §240(1) where questions remained of whether glass panels that fell on plaintiff’s head when wheel of cart got stuck were required to be secured but couldn’t because of their size and whether they fell from a physically sufficiently significant height to be afforded the protection of §240.

Plaintiff denied summary judgment on Labor Law §241(6) based on industrial code §23-1.28(b)(free moving wheels), which is sufficiently specific for §241, where questions remained of whether the wheel got stuck because it was improperly maintained. Defendants granted summary judgment dismissing §241 claims based on industrial code §§23-1.28(a) & (c) on proof they were not applicable. Laliashvili v Kadmia Tenth Ave. SPE, LLC    

MVA   Rear End   Respondeat Superior  

First Department
Target’s motion for summary judgment dismissing action where it’s employee using his personal vehicle rear ended plaintiff’s vehicle denied as a jury could find its employee was acting within the scope of his employment when he had diverted to their Bronx store to pick up supplies for the Spring Valley store where he worked even though the accident happened on his normal route to the Spring Valley store and he did not go to the Bronx store after he learned they did not have the supplies he needed. He testified his work day started at 1 PM in the accident happened between 1:30-2:00. Cousins v Glover    

MVA   Burden of Proof   Hearsay  

Second Department
Defendant denied summary judgment dismissing claim of passenger in car he struck in intersection on his affidavit that he did not own the vehicle or license plate since 2005 when he transferred the vehicle to his sister who he claimed registered it New York, and he claimed that the photograph showing the vehicle and license plate number provided by plaintiff and police report listing the license plate number, submitted by him, were hearsay as it was his burden to show he did not own the vehicle, he could not meet his burden by merely pointing to gaps in plaintiff’s evidence, and the evidence he submitted supported plaintiff’s claim. Hernandez-Martinez v Shiao S. Wang    

Comment: See related decision below.


Second Department
Owner and driver of vehicle with plaintiff as a passenger granted summary judgment on driver’s affidavit that she entered the intersection with the green light and jammed on her brakes when she saw a vehicle entering the intersection from the perpendicular street against a red light, and the front driver’s side door of the other vehicle struck the front passenger side of her car and on plaintiff’s affidavit that she could not see whether the light was red or green but the car she was in followed the traffic ahead into the intersection and while entering the intersection when another car collided with them ‘all of a sudden.’ Hernandez-Martinez v Shiao S. Wang    

Comment: See related decision above.

Premises Liab   Sidewalk   § 7-210  

First Department
Abutting landowner failed to meet burden for summary judgment on claim protruding piece of metal plaintiff tripped on was on curb for which it owed no duty under administrative code §7-210 where plaintiff consistently testified she tripped on the sidewalk and the area she marked on photographs was on the sidewalk. Even if the photographs showed the area to be on the curb, plaintiff’s testimony that the metal protruded from a worn part of the sidewalk would have raised an issue of fact. Figueroa v City of New York    

Premises Liab   Stairs   Snow/Ice   Create Condition   Notice  

First Department
Building owner failed to eliminate all questions of whether it created or had actual or constructive notice of wet interior stairs delivery person slipped on where super testified to general cleaning procedures but not whether he followed them that day and resident testified the condition was caused by snow super piled on sides of walkway being tracked in which had been a problem ever since the super began piling the snow next to the walkway. Geranimo v Hanoz Realty, LTD    

MVA   Rear End   Nonnegligent Explanation   Premature Motion  

First Department
Plaintiff granted summary judgment on proof he braked to slow to the 15 mph construction speed limit in the Holland Tunnel when defendant’s vehicle rear-ended him 3-times and defendant failed to show she maintained a proper distance from plaintiff’s vehicle or that she could reasonably expect traffic to continue unimpeded under the circumstances. A sudden stop in and of itself does not raise a nonnegligent explanation. Motion was not premature where defendant had knowledge of the events. Ahmad v Behal    

MVA   Rear End   Sole Cause   Nonnegligent Explanation   Speculation   Premature Motion  

First Department
Owner and driver of taxi plaintiffs were passengers in granted summary judgment on proof the vehicle was rear-ended, including plaintiffs’ affidavits that the taxi was ‘violently rear-ended,’ establishing the offending vehicle which offered no nonnegligent explanation for the rear-ended impact was the sole cause of the accident. Plaintiffs’ claim they would not have crashed into a guard rail if the taxi driver had not jerked the wheel and properly applied the brakes was speculative. Motion not premature where plaintiffs had knowledge of the facts. Richard v Ventura    

Premises Liab   Snow/Ice   Storm in Progress   Question of Fact   Experts  

Second Department
NYCHA met burden for summary judgment on storm in progress at time plaintiff slipped on walkway based on expert opinion, climatological evidence, and plaintiffs EBT testimony where he described condition as dirty crunchy snow but plaintiff raised an issue in opposition by his testimony at 2-50H hearings that he slipped on ice, affidavit of his expert, and affidavit from the only eyewitness raising questions of whether plaintiff slipped on ice that existed prior to the storm. Townsend v City of New York    

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About Matt McMahon

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