December 6, 2022 | Vol. 342

(8 summaries)

Construction Liab.   Set Aside Verdict   Juror Confusion   Pain/Suffering   Materially Deviates  

Second Department
Plaintiff’s motion to set aside verdict awarding $200,000/$0 past/future pain/suffering and $3,000 past medical expenses as inadequate and against weight of evidence denied where jury could credit defendants’ expert’s opinion that plaintiff fully recovered from his finger injury 6-months after the accident and the other claimed injuries were caused by his subsequent fall.

Plaintiff’s claim of juror confusion based on affidavit of 1-juror stating jury was confused by court’s instruction in response to a note rejected as a post-verdict juror affidavit is ‘patently improper,’ where a jury’s substantial confusion is not apparent on the record. Trial court’s response to jury’s note instructing they could not consider record of single medical visit not admitted into evidence, only consider their own recollection of the testimony regarding that visit did not show juror confusion. Guaman v One Whitehall, L.P.    

MVA   Bankruptcy   Set Aside Verdict   Vicarious Liab  

First Department
All proceedings after defendant-driver in MVA case filed for bankruptcy declared void, including plaintiff verdict after jury trial, as filing of bankruptcy automatically stays all proceedings and neither state nor federal court have authority to make an equitable exception. Only a bankruptcy court could annul the stay. While automatic stay against one defendant does not automatically stay proceedings against all defendants, stay extended to vehicle owner which is only vicariously liable for defendant that filed bankruptcy. Joyner v City Carter Leasing Inc.    

Child Victims Act   Motion to Dismiss   Duty   Negligent Hiring   Negligent Supervision   Respondeat Superior   Emotional Harm   Notice   Causation  

Second Department
Motion to dismiss for failure to state a cause of action denied as allegations that plaintiff was a student at Defendant’s school, they employed priest who sexually abused plaintiff, knew priest was abusing plaintiff and other students or that he had a propensity to abuse them, and sexual abuse happened while was in defendant’s custody and control sufficiently pled negligence, negligent hiring, retention, and supervision of the priest, inadequate supervision of plaintiff, and sufficiently outrageous conduct for intentional infliction of emotional harm. Plaintiff pled a causal connection between the outrageous conduct and his injuries. Novak v Sisters of the Heart of Mary    

Child Victims Act   Motion to Dismiss   Emotional Harm   Notice   Causation  

Second Department
Motion to dismiss cause of action for intentional infliction of emotional harm in CVA case denied as allegations that defendants were aware and concealed fact priest they employed was sexually abusing the plaintiff and other children at a youth shelter they owned and operated alleged sufficiently “outrageous conduct” and further alleged a causal connection between the outrageous conduct and plaintiff’s injuries. Cause of action for intentional infliction of emotional harm was not duplicative of negligence cause of action. Eskridge v Diocese of Brooklyn    

Child Victims Act   Motion to Dismiss   Negligent Hiring   Negligent Supervision   Notice   Duty   Premature Motion  

First Department
Priestly order’s motion to dismiss negligent hiring/supervision and gross negligence claims of plaintiff, sexually abused when he was 11-years-old, denied where allegations they knew or should have known of priest’s dangerous propensities and covered them up sufficiently pled those causes action. As the specific facts of defendants’ notice was solely within their possession, the motion was premature.

Plaintiff’s cause of action for breach of fiduciary duty dismissed as a parishioner cannot rely on the general relationship to parishioners to establish a fiduciary relationship. Truesdell v Roman Catholic Diocese of Brooklyn, N.Y.    


Second Department
CPLR §6301 motion for preliminary injunction to stop defendant, who raped his nieces when they were teenagers, from dissipating assets as security for an eventual money judgment in their suit against him denied under long standing rule that plaintiffs seeking money judgment only have no rights against defendants’ property until entry of a judgment and Executive Law §632-a (Son-of-Sam law) did not provide remedies beyond those in the CPLR. Newer CPLR §6201(4) provided right to seek pre-judgement attachment for crime victims but plaintiffs did not seek attachment. Buckley v McAteer    

MVA   Discovery   HIPAA   Preexisting   CPLR § 3126   Willful/Contumacious   Note of Issue   Sanctions  

Second Department
Lower court improvidently granted defendants’ CPLR §3126 motion to dismiss Complaint for failure to provide HIPAA authorizations for preexisting injuries where plaintiff provided authorizations limited in date and defendants never contacted plaintiff to resolve issue before making their motion as plaintiff’s actions were not willful/contumacious. Note of Issue struck and plaintiff ordered to pay defense counsel $3,000 for failing to timely disclose preexisting injuries. Lopez v Maggies Paratransit Corp.    

Pothole Law   Prior Written Notice   Big Apple Pothole   Create Condition   NYC  

First Department
NYC granted summary judgment on proof it did not receive prior written notice of defect plaintiff tripped on as 2003 Big Apple Map showing a pothole where plaintiff tripped was remote in time to the 2011 accident, it made numerous repairs to the area in that 8-years, and the DOT deputy director stated the head of the repair crew is required to inspect the entire block and repair any defects every time a repair is made. Plaintiff failed to show either the creation of an immediately dangerous condition or special use exceptions to prior written notice applied. Figueroa v City of New York    

(15 summaries)

Vacate Default   Set Aside Verdict   Reasonable Excuse   Meritorious Defense  

Second Department
Lower court improvidently denied moving-defendant’s motion to vacate default in opposing plaintiff’s motion to set aside defense verdict that had been granted on default because it did not convert case to e-filing and e-file the opposition papers where moving-defendant physically filed its opposition on the return date just before the COVID pandemic, emailed a copy to the clerk 1-week later, and received a response from the clerk that the opposition was in the justice’s mailbox. Moving defendant provided a reasonable excuse for the default, a potentially meritorious opposition to the motion, and plaintiff was not prejudiced by the delay. Logan v 250 Pac., LLC    

Discovery   Emotional Harm   Spoliation  

First Department
Allegations of emotional and psychological injuries made plaintiff’s journals relevant for discovery and defendants did not have to meet a threshold burden for personal information where plaintiff did not move for a protective order. Defendants’ demand at her EBT created a duty for her to preserve the journals and her failure to preserve them and vague explanations of what happened to them gave rise to an inference of gross negligence for spoliation, warranting an adverse inference at trial. Clarke v Povella    

Malpractice   Accepted Practice   Causation   Experts  

First Department
Defendants met burden for summary judgment by expert opinion that low dose of methotrexate plaintiff took on 1-day for rheumatoid arthritis and discontinued when her leg pain increased could not cause peripheral neuropathy or plaintiff’s foot drop, there was no medical literature documenting this reaction from the drug since its inception in 1947, and plaintiff’s reaction was not typical of drug-induced peripheral neuropathy which would have dissipated within weeks and not continued for years as in her case. Plaintiff’s expert failed to raise an issue where he failed to address or refute defendants’ expert’s opinions that the dose taken by the plaintiff could not cause foot drop, why her symptoms didn’t resolve within weeks, and that her reaction was more typical of the presumed diagnosis of neuro-sarcoidosis. Camacho v Pintauro    

MVA   Premature Motion   Turning Vehicle   Comparative Fault   Reasonable Excuse   Speculation   Motion to Dismiss   Graves Amendment  

First Department
Plaintiff granted summary judgment against tractor-trailer driver who made left-hand turn from rightmost lane striking plaintiff’s vehicle in the left lane. Driver-defendant failed to show motion was premature because he was not deposed where counsel did not detail efforts to locate him or explain his months-long failure to respond to counsel’s emails. Claim that driver may appear for a future deposition was speculative.

Affidavit of truck leasing company insufficient documentary evidence on motion to dismiss under Graves Amendment and rental agreement did not address ownership of trailer or Graves Amendment. Affidavit also insufficient to dismiss against holding company where it did not provide evidentiary basis for statement that they were separate entities. Bailey v Gabrielli Truck Leasing LLC    

Premises Liab   Notice   Last Inspection   Trivial   Open/Obvious   Inherently Dangerous   Survelliance Video  

First Department
Defendants failed to meet burden for summary judgment where surveillance video showed that another person entering threshold tripped before plaintiff and video was monitored by security, leaving a question of actual notice, and their witness testified he did not keep a record of inspections and did not recall if he inspected the area before plaintiff fell on day of accident, leaving a question on constructive notice. Plaintiff raised an issue on constructive notice by nonparty witness’s testimony that he always stepped over the threshold because he knew it was sticking up 1″-2″ for 4-years before the accident.

Photographs and surveillance video left question of whether defect would have been visible to plaintiff as she opened the door on the issue of trivial defect and whether it was plainly observable on the issues of open/obvious and not inherently dangerous. Conflicting expert opinions of height differential and whether a person’s toe could get caught on the defect left questions of whether it was a tripping hazard. Carter v HP Lafayette Boynton Hous. Dev. Fund Co., Inc.    

Premises Liab   Wet Floor   Unknown Cause   Speculation   Res Ipsa Loquitor  

First Department
Plumbing company granted summary judgment where plaintiff slipped on wet floor from garbage can used to catch water from a leaking pipe in basement of building owned by plaintiff’s employer near storeroom where plumber repaired waste pipes 2-months before as plaintiff could not establish the plumber’s repair caused the floor to be wet without speculation. Since defendant was one of several plumbers used by the building, including its in-house plumber, res ipsa loquitor inapplicable as defendant did not have exclusive control of the pipes. Taitt v Riehm Plumbing Corp.    

Dram Shop   Causation  

First Department
Copacabana defendants failed to meet burden for summary judgment dismissing Dram Shop Act case on patron-defendant’s testimony he was drunk and could not remember much from the night, had only 1-beer before coming to the Copacabana, didn’t remember any of their staff serving him, but was equivocal on whether their waitstaff served him drinks beyond the package he purchased from the party promoter. The same questions required denial of plaintiff’s motion for summary judgment. Denenberg v 268 W. 47th Rest., Inc.    

Premises Liab   Stairs   Notice   Create Condition   Experts  

First Department
Defendants granted summary judgment on plaintiff’s testimony that it was not raining when he arrived at the building 45-minutes before his fall and the landing was dry without dirt, debris, or mud, he only saw muddy debris after his fall, and manager’s testimony there were no complaints that day and he would have sent a porter to clean the area immediately upon a complaint establishing defendants had no more than 45-60 minutes to discover and correct the condition.

Plaintiff’s claim that defendants created the condition by painting the stairs was speculative where based only on defendants’ testimony it was painted all the time. Plaintiff’s expert failed to raise an issue without refuting defendants’ expert’s friction testing. Castaldo v Manhattan Mini Stor. LLC    

Premises Liab   Wet Floor   Notice   Last Inspection  

First Department
Store granted summary judgment where plaintiff slipped on wet floor entering stall in ladies’ room on maintenance worker’s testimony she followed her set schedule of cleaning and making sure the bathroom floor was dry twice per hour which gave defendant at most 4-30 minutes to discover and correct the condition. Aguilera v BJ’s Wholesale Club, Inc.    

Malpractice   Discovery   Privilege  

First Department
Hospital’s motion for a protective order precluding it from having to respond to plaintiff’s demand for documents related to postoperative and gas gangrene infections at hospital for 5-years granted as information sought fit within quality assurance privilege of Education Law §6527(3). The Court does not give the details of the proofs. Langual v Sarwahi    

Serious Injury   ROM   Causation   Degenerative   Experts   Speculation  

First Department
Defendants met burden for summary judgment on serious injury by orthopedic and neurological reports showing normal ROM, neurological exams, and resolved strains/sprains, and that accident was not cause of injuries based on radiologist’s report showing only minimal disc desiccation and bulge that were degenerative. Plaintiff’s failure to explain gap in treatment made submission of report of chiropractor report who saw her only once after the accident and again 7-years later to show severity, permanency, and causation speculative. Where plaintiff returned to work days after her accident and stopped treatment 5-months later, her injuries were minor. Ziehl v Chao Rui Zhu    

MVA   Rear End   Comparative Fault   Nonnegligent Explanation   Premature Motion  

First Department
Plaintiff granted summary judgment on his affidavit that he was slowing in traffic to let a car merge into his lane when defendant’s vehicle rear ended him. Claim plaintiff stopped short, in and of itself, was not a nonnegligent explanation. Plaintiff was not required to show freedom from comparable summary judgment but his affidavit established he was wearing his seatbelt and was not at fault. Defendant failed to show facts essential to opposing the motion or solely within plaintiff’s knowledge could be obtained by discovery. Vasquez v Strickland    

False Arrest   Malicious Prosecution   Assault   Battery   Probable Cause   Police   NYC  

First Department
NYC granted summary judgment dismissing case alleging false arrest/imprisonment, malicious prosecution, assault, and battery. Complainant’s identification of plaintiff was “presumed reliable” giving probable cause for arrest. Alibi that he was signed into shelter logbook was not “materially impeaching circumstances” to undermine probable cause where shelter employee stated residents could leave without signing log. There were no intervening facts to question probable cause between arrest and criminal charges for malicious prosecution and plaintiff failed to show actual malice. Handcuffing plaintiff during a lawful arrest is not assault or battery. Christian v City of New York    

MVA   Pedestrian   Turning Vehicle   Survelliance Video  

First Department
Pedestrian granted summary judgment on his testimony and video showing he entered crosswalk with light in his favor and walked 4-5 steps before defendant-driver started his right turn and struck him, failing to yield the right-of-way. Defendant-driver’s affidavit failed to raise an issue where it was contradicted by the video. Miranda v Century Waste Servs., LLC    

MVA   Causation   Question of Fact  

First Department
Differing versions of how the accident happened, third-party defendant who was driving plaintiff stating he drove in one lane only, and defendant stating third-party defendant constantly switched lanes and defendant did not see him as defendant changed lanes but that third-party defendant drove fast and sideswiped defendant’s car precluded third-party defendant’s motion for summary judgment dismissing third-party Complaint as defendant’s version of the accident was not incredible as a matter of law and raised issues on the third-party-defendant’s negligence and causation. Estrella-Duarte v Rachel Cho Inc.    

(3 summaries)

Premises Liab   Sidewalk   Trivial   Open/Obvious   Inherently Dangerous  

Second Department
Hospital that owned building adjoining where plaintiff tripped due to height differential between sidewalk flags failed to make out entitlement to summary judgment as proof did not establish the defect was trivial or open/obvious and not inherently dangerous. The Court does not give the details of the proofs. Butera v Brookhaven Mem. Hosp. Med. Ctr., Inc.    

Serious Injury   Causation   Burden of Proof  

Second Department
Defendant met burden of showing plaintiff did not sustain a serious injury but plaintiff raised an issue in opposition for his lumbar and shoulder injuries. Where defendant did not show injuries were not caused by accident, burden of proof never shifted to plaintiff on causation. The Court does not give the details of the proofs. Confredo v Moore    

MVA   Question of Fact  

Second Department
Moving defendant’s submission of her and plaintiff’s depositions with conflicting versions of how accident happened precluded grant of summary judgment. The Court does not give the details of the proofs. Golovnya v Artemchenko    

About Matt McMahon

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