December 6, 2016 | Vol. 31

MUST READS
(3 summaries)

Labor Law   GML §205-e   Res Judicata   Motion to Dismiss  

Second Deptartment

Police officer was injured when her mace can failed while trying to arrest a suspect. Defendant’s motion to dismiss the officer’s Gen. Mun. L. §205-e claim based on res judicata should have been granted. In a previous action against her employer, the officer raised the same claim alleging a violation of Labor Law §27-a(3) [Public Employee Safety and Health Act] which was dismissed by the Appellate Division. While Labor Law §27-a(3) can be a predicate for liability under GML §205-e, plaintiff in the prior action did not show that her injuries resulted from a recognized hazard and it cannot be re-litigated in a separate action. Blake v City of New York

Comment: To counteract the application of the “fireman’s rule,” when representing injured uniformed officers, the Public Employee Safety and Health Act, Labor Law §27-a(3) can provide the necessary predicate under GML §205-e and should always be looked at to see if it applies.


Labor Law §240   Labor Law §241   Gravity Risk   Falling Object   Industrial Code   Renew  

Second Deptartment

Defendant entitled to summary judgment on Labor Law §240(1) claim where sheet of plywood fell from floor above and it was not being hoisted or secured and was not required to be secured for purposes of the undertaking when it fell. Lower court properly granted plaintiff’s motion to renew based upon supervisor’s deposition testimony and upon renewal denied defendant’s motion for summary judgment on the Labor Law §241(6) predicated on Industrial Code §23-1.7(a)(1) [protection from overhead hazards]. Defendant made out is prima facie entitlement but plaintiff raised a triable issue of fact based on the supervisor’s testimony, which contradicted his affidavit, that objects fell “sometimes” and “once in a while.” Millette v Tishman Constr. Corp.


MVA  

First

The Appellate Division reversed the lower court’s grant of summary judgment for the defendant finding issues of fact from the parties’ depositions where plaintiff entered into intersection from a stop sign and defendant did not have a traffic control device, including whether plaintiff stopped before entering the intersection, who entered first, who had the right-of-way, and whether the driver with the right-of-way acted reasonably to avoid the accident. Ampofo v Brydson

Comment: Although a very short decision, the court clearly sets out the criteria to be considered where one party has a traffic control device and the other does not.

NOTEWORTHY
(16 summaries)

Labor Law §240   Ladder   Sole Cause   Comparative Fault  

First

Plaintiff should have been granted summary judgment on witness’ testimony that ladder kicked out to the left causing the plaintiff to fall because it was unsecured. Plaintiff did not have to prove that the ladder was defective and defendants’ claim that plaintiff was the sole proximate cause was unavailing because plaintiff did not set up the ladder and descending the ladder while holding pipes was at most contributory negligence which is not available under Labor Law §240(1). Fletcher v Brookfield Props.


Vacate Default   Service  

Second Deptartment

Service of an order to show cause and attached papers is jurisdictional and must be followed literally. Defendant served the plaintiff’s attorney by personal service one day before the time required to do so in the order to show cause and e-filed the plaintiff’s attorney’s admission of service but failed to attach a copy of the plaintiff’s attorney’s admission to the hard copy provided to the court. Plaintiff opposed the motion without raising improper service but Supreme Court denied the motion due to lack of proof of proper service. The Appellate Division reversed finding that service was properly made and the failure to include a copy with the motion papers, especially when the admission of service was e-filed, was a mere irregularity. The matter was remitted to Supreme Court for consideration. Gonzalez v Haniff


Labor Law §240   Labor Law §241   Labor Law §200   Industrial Code  

Second Deptartment

Plaintiff ironworker was injured when a steel beam he was installing nuts and bolts on while standing on a ladder pinned his elbow against the wall after another beam attached to it was struck by his foreman who was using a forklift. Defendant should have been granted summary judgment on the Labor Law §240(1) claim as the injury was not caused by a gravity related risk. The lower court properly dismissed so much of the Labor Law §241(6) claim as relied on 3 industrial code provisions which were inapplicable or did not provide a specific safety standard. The defendant, however, failed to meet its burden of showing that §23-2. 3(a)(1) [structural steel assembly] was either inapplicable or complied with. Labor Law §200 claim was properly dismissed as there was no proof the defendant had authority to supervise or control work. Guallpa v Canarsie Plaza, LLC


Labor Law §240   Labor Law §241   Labor Law §200   Scaffold   Safety Devices   Sole Cause   Industrial Code   Feigned Issue   Expert Aff  

First

Summary judgment for plaintiff who fell off of 6’ Baker scaffold without side rails that he was instructed to use to plaster ceiling. Defendant’s claim that plaintiff was the sole proximate cause of his fall because he stayed on the scaffold while it was moved was contrary to the evidence which showed that he did not know that the coworker was going to move the scaffold. In addition, defendant’s affidavit claiming that plaintiff was provided with a lifeline, belt, and harness was contradicted by his deposition testimony that he did not know what safety devices were provided. Hearsay statement that subcontractor instructed the workers to always use the lifeline was not considered since it was the only proof that plaintiff refused to use an available safety device and hearsay alone cannot be used to defeat summary judgment. Industrial Code §23-5.18(b) properly applied to defeat defendants motion for summary judgment on Labor Law §241(6) as it requires safety rails on manually propelled scaffolds regardless of height. Dismissal of the Labor Law §200 and common-law negligence claims were also properly denied.
Chong v 457 W. 22nd St. Tenants Corp.


Labor Law §240   Scaffold   Safety Devices   Comparative Fault   Feigned Issue   Expert Aff  

First

Plaintiff entitled to summary judgment under Labor Law §240(1) where it was undisputed that he fell off a scaffold without guard rails which would have prevented his fall. Claims that plaintiff did not properly use the locking mechanism on the wheels and moved the scaffold while on it were irrelevant since they would only amount to comparative fault. Defendant’s affidavit that safety rails were available contradicted his prior testimony and raised only a feigned issue. Industry customs and regulations are irrelevant under Labor Law §240(1) and defendant’s expert’s opinion regarding same was irrelevant. Celaj v Cornell


Premises Liab   Create Condition   Notice  

Second Deptartment

Defendant store made out prima facie entitlement to summary judgment by showing that it did not create the condition, a food item on the floor, or have notice of the condition, by producing its maintenance record for the day of the incident showing the last time that the area had been inspected. Plaintiff failed to raise a triable issue. Sohi v Costco Wholesale Corp.


MVA   Turning Vehicle   Traffic Signs   Expert Aff   Conclusory  

Second Deptartment

Defendant entitled to summary judgment on showing that he was traveling straight on road with no traffic device when plaintiff pulled out of a mall attempting to make a left hand turn with a stop sign. Plaintiff failed to yield the right-of-way by turning into an intersection in which the defendant’s vehicle was approaching so closely as to create a hazard. Plaintiff’s expert’s affidavit was conclusory and not supported by the record. From the lower court’s decision, the plaintiff testified that she saw “a vehicle” through a cutout which was 120’ from the intersection and the expert opined that the vehicle would have to be traveling at 45 mph (speed limit on the road was 30 mph) to strike plaintiff’s car. This affidavit was conclusory because the plaintiff did not testify that the vehicle she saw was the defendant’s vehicle and, therefore, the expert would have to make an assumption that it was the defendant’s vehicle. Wolf v Cruickshank


MVA   Nonnegligent Explanation  

First

Plaintiffs’ motion for summary judgment should have been granted on affidavits that their car was in the left lane when it was struck in the side and rear by the trailer of a tractor-trailer which came from the right lane into the left lane and that plaintiff could not avoid the accident. Defendant failed to raise a triable issue of fact and driver’s affidavit was undermined by his statement in the police report that he did not know that he had struck a vehicle until he was stopped by the officer. Steigelman v Transervice Lease Corp.


Dental Mal   Informed Consent   Set Aside Verdict  

Second Deptartment

Evidence was sufficient to uphold jury’s finding that defendant had provided adequate information for informed consent. Where experts testify on both sides it is within the jury’s providence to decide who to believe and there was evidence to support the jury’s finding. Motion to set aside verdict properly denied. Giammarino v Carlo


Premises Liab   De Minimus   Open/Obvious   Inherently Dangerous  

Second Deptartment

Lower court should have denied defendant’s motion for summary judgment for failing to meet its burden of proof that raised sidewalk defect was trivial and, under the circumstances, did not increase the risks. Defendant also failed to show that the defect was open and obvious and not inherently dangerous. The burden only shifts to plaintiff once defendant has met its initial burden. Parente v City of New York


Consolidation  

First

The lower court’s denial of defendant’s motion to join three pending actions involving the same plaintiff, but different facts, one for motor vehicle negligence, premises liability action, and a medical malpractice action was a provident exercise of discretion as the motor vehicle action was ready for trial whereas the other two were still in discovery. Since the three actions had different facts, witnesses, claims, injuries, and defendants there should not be a joint trial and there would be a high risk of jury confusion. Gillard v Reid


MVA   Vicarious Liab   Independant Contractor  

Second Deptartment

Plaintiff was injured when his vehicle was struck by a vehicle driven by one defendant who was employed by a nonparty. In a prior action, the plaintiff was granted summary judgment against the plaintiff’s employer and in this action sought to recover against the driver and the employer’s “distributor,” on a theory that the driver was employed by the distributor. The distributor was entitled to summary judgment on evidence that the driver was employed by the nonparty and that the distributor is not liable for an independent contractor under the five factors test. Raja v Big Geyser, Inc.


Serious Injury   Burden of Proof  

Second Deptartment

Defendants failed to make out their prima facie entitlement to summary judgment on serious injury because one of their experts found significant limitations in each of the plaintiffs’ cervical and lumbar spines regardless of the opposition papers. Dean v Coffee-Dean


MVA   Turning Vehicle   Comparative Fault  

First

Plaintiff entitled to summary judgment on testimony that she was crossing the street within the crosswalk with the light when defendant struck her while making a left turn and that she only saw defendant’s vehicle 1 to 2 seconds before being struck. Defendant failed to raise a triable issue of fact. Rozon v Rosario


Strike Note of Issue  

First

Supreme Court improvidently denied defendant’s motion to strike the note of issue and certificate of readiness as they did not contain any false facts regarding the state of discovery. It was also proper for the court to deny defendant’s request to extend its time to move for summary judgment since the delays in the discovery process were largely caused by the defendant’s dilatory conduct. Beni v Green 485 TIC LLC


Legal Mal   Vacate Default   Reasonable Excuse   Meritorious Defense   Motion to Dismiss  

Second Deptartment

Lower court properly denied plaintiff’s motion for default, filed three days after time to answer expired, and granted defendant’s cross motion to vacate the default upon showing of a reasonable excuse, that minimal delay in contacting plaintiff’s attorney was due to insurance carriers efforts to assign counsel, and meritorious defense. Courts prefer resolution on the merits and there was no prejudice to the plaintiff from the extremely short delay. Ingvarsdottir v Gaines, Gruner, Ponzini & Novick, LLP

Comment: In a related appeal defendants and third-party defendants were entitled to dismissal upon retainer statements which showed that representation began after the time to notify the employer that they were seeking to hold him personally liable under BCL §630 (A). Ingvarsdottir v Gaines, Gruner, Ponzini & Novick, LLP

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About Matt McMahon

Civil trials and appeals since 1984

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