December 7, 2021 | Vol. 290

(5 summaries)

Products Liab   Negligent Supervision   Raised For First Time  

First Department
Amazon granted summary judgment of negligence and implied warranty claims for injuries when electric bicycle sold on Amazon by Chinese seller and assembled by 3rd-party company offering services on Amazon as Amazon did not sell, manufacture, distribute, or assemble the bicycle, UCC implied warranties only apply to sellers, and Amazon customers agree to Conditions of Use which disclaim all warranties for 3rd-party products and services. Claim Amazon negligently vetted assembly company rejected where raised for first time in opposition and unsupported by any authority. Lack of CPLR 2309(c) certificate of conformity for Amazon affidavits not fatal where oath duly given.

Court declined to create equitable remedy on claim plaintiff had no other remedy, distinguishing California case that found Amazon could be liable in strict liability as a pivotal part of distribution chain since the NY plaintiff did not allege strict liability and the California case dismissed the implied warranty claim. A recent SDNY case examining strict liability concluded 3rd-partysales on Amazon placed it outside manufacturing, selling, or distribution chain and it was “better characterized as a provider of services,” consistent with NY law. Wallace v Tri-State Assembly, LLC    

Products Liab  

Second Department
Plaintiff conceded that causes of action for product liability and breach of warranty for malfunction of HeartMate II Left Ventricular Assist System used to help heart pump blood were expressly preempted by federal law concerning such devices but claim manufacturer’s engineers negligently replaced device leads 2-days before decedent died of a heart attack were not precluded. Arnold v Lanier    

Assumption of Risk   Notice  

First Department
Hockey coach whose supervisors were Wollman Rink employees raised issue on “inherent compulsion” in opposition to prima facie showing of primary assumption of risk by testimony he complained about rough ice more than half-an-hour before his skate got caught in rut and supervisors dismissed complaint, told him to proceed with the practice, and he believed he lacked authority to cancel or reschedule the practice. Stewart v Wollman Rink Operations LLC    

Set Aside Verdict   Pain/Suffering   Materially Deviates   Causation   Appealable Order  

First Department
Verdict of $1.5mil/1.5mil past/future pain/suffering and $500,000 past loss of services where angle iron used to brace HVAC cover fell on plaintiff’s head due to vibration, reduced by lower court to $700,000/$1mil and $200,000, reinstated as verdict did not materially deviate from reasonable compensation. Special damages were established with reasonable certainty. Video which defendants claimed showed that plaintiff exaggerated injuries not considered where not submitted for Court’s review.

When Appellate Division previously dismissed claim of negligent design of HVAC breeching system against architect/engineer (Vol. 149) it was unaware a jury had already found against that defendant on general negligence question without distinguishing between impermissible negligent design and permissible negligent architectural/engineering oversight requiring verdict be set aside and new trial order on permissible theory only. Verdict finding defendant that installed all angle irons but claimed it did not install the one that fell, negligent but not cause of accident set aside as negligence and causation were so inextricably interwoven as to make verdict inconsistent. Motion to set aside verdict that sales representative was not negligent denied as there was rational path to find it was not permitted to modify system under contract with designer and it contacted designer who modified system. Demetro v Dormitory Auth. of the State of N.Y.    

Amend Complaint   Prejudice  

First Department
Individual defendant’s motion to compel plaintiff to amend pleadings to reflect her actual name in place of pseudonym denied where affidavits of her psychologist and psychiatrist, and medical records provided compelling proof her mental health would be significantly compromised by having to proceed under her real name. Defendant was not prejudiced where he waited 4-years before objecting to pseudonym and he was aware of her identity and her potential witnesses. Doe v Bloomberg L.P.    

(21 summaries)

Premises Liab   Out of Possession   § 7-210  

First Department
Building owner established she was out of possession owner not required to maintain property under lease which required tenant, plaintiff’s employer, to maintain property and make all structural repairs and hole that caught wheel of forklift plaintiff was using was not a significant structural defect contrary to a specific statutory provision. Tact tenant co-owner was son of building owner with power of attorney over owner’s affairs irrelevant to question of out of procession ownership. Defendant failed to meet burden for summary judgment of administrative code §7-210 claim, which applies to out of possession owners, where jury could find area plaintiff circled on photograph extended onto public sidewalk. Vargas v Weishaus    

Malpractice   Accepted Practice   Causation   Experts   Admissibility  

Second Department
Hospital and hospitalist made out entitlement to summary judgment on expert opinion of no departure or causation and plaintiffs failed to raise issue by redacted expert affidavits, inadmissible without explanation of why names and signatures were redacted and unredacted affidavits were not submitted to court. Nephrologist who correctly noted possible rhabdomyolysis made out entitlement to summary judgment and opinion of plaintiff’s expert who was not a nephrologist and did not show knowledge or experience in field had “no probative value.”

Plaintiff’s expert raised issue in opposition to ER doctor’s prima facie showing of no departure or causation on opinion of departure for not checking with EMT workers or patient’s wrist for medic-alert bracelet that would have informed him patient had Addison’s disease and should have immediately started fluids and hydrocortisone to reduce possibility of compartment syndrome or rhabdomyolysis. Plaintiff’s expert raised issue in opposition to pulmonary/critical care doctors prima facie showing of no departure or causation on opinion their examinations were inadequate as signs of compartment syndrome do not merely develop within hours and would have been apparent on examination and earlier diagnosis would have resulted in a better outcome. Motions for summary judgment denied on conflicting expert opinions. Montanari v Lorber    

Premises Liab   Out of Possession   Notice   Last Inspection  

First Department
Building owner granted summary judgment where plaintiff slipped on greasy substance on delivery ramp of supermarket as it was an out of possession owner with no obligation to maintain property under the lease. Supermarket failed to meet burden of showing lack of notice without proof of last time ramp was cleaned/inspected on day of accident. Fact plaintiff did not see condition when using ramp earlier did not establish lack of notice where he testified he did not necessarily walk on same area of the 15’ wide ramp. Cuello v 708 Tremont Realty, LLC    

Malpractice   Accepted Practice   Causation   Experts   Conclusory  

Second Department
Nurse practitioner, medical doctor, and employer practice failed to meet burden for summary judgment on their expert’s conclusory opinion suicide risk assessment conducted 2-weeks before patient attempted suicide by jumping off roof which did not set forth standard of care for suicide assessment and how defendants did not deviate from that standard as well as failing to address plaintiffs’ allegations these defendants failed to schedule/conduct a timely follow-up after changing patient’s medication. Expert also failed to show departures from accepted practice were not cause of patient’s injuries. Nodar v Pascaretti    

MVA   Rear End   Comparative Fault   Serious Injury  

Second Department
Where lower court found defendant failed to show plaintiff did not sustain serious injury to abdomen, it was error to consider whether other injuries met serious injury threshold. Plaintiff granted summary judgment on liability where both drivers testified plaintiff was stopped in heavy traffic when rear-ended by defendant and plaintiff is not required to show freedom from comparative fault. Pollet v Charyn    

Labor Law §240   Labor Law §241   Industrial Code   Raised For First Time   Admissibility   Hearsay   Admission   Premature Motion  

First Department
Worker granted summary judgment on Labor Law §§ 240(1) and 241(6) based on industrial code §23-1.7(b)(1)(i) on his testimony piece of wood used as temporary path shifted, causing him to fall between beams. Plaintiff was not required to submit an affidavit in addition to his testimony. Defendant failed to raise issue where claims that plaintiff’s evidence was improper were raised for first time on appeal, defendants failed to show plaintiff’s statements in certified medical records were germane to care/treatment or made by him, and contractors’ handwritten statements were inadmissible hearsay not admissions by an opposing party. Defendant failed to show what information solely within plaintiff’s possession was necessary to oppose motion or that it did not wave opportunities to obtain discovery on claim plaintiff’s motion was premature. Greca v Choice Assoc. LLC    

Labor Law §240   Ladder   Scaffold   Recalcitrant Worker   Sole Cause  

First Department
Proof carpenter was injured when unsecured extension ladder slid and collapsed entitled plaintiffs to summary judgment on Labor Law §240(1). Port Authority failed to raise issue on recalcitrant worker/sole cause claim that plaintiff should have used available scaffolds and manlifts where there was no proof plaintiff “knew he was expected to use them but for no good reason chose not to do so,” or that they would have been his ‘normal and logical response.’ Maltese v Port of Auth. of N.Y. & N.J.    

MVA   Pedestrian   Turning Vehicle   Causation  

Second Department
Lower court improperly discounted plaintiff-pedestrian’s testimony to find defendant could not be liable under Ins. Law §5104 because plaintiff’s claim she was injured when she dove to avoid defendant’s car as it approached crosswalk after she took several steps “were not caused directly by a motor vehicle” because there was no evidence defendant was speeding or driving recklessly. Both party’s summary judgment motions denied. Fitch v Lee    

Bicycle   Motion to Dismiss   Respondeat Superior  

First Department
Restaurant defendants’ motion to dismiss denied where delivery person struck plaintiff with electric bike as questions of whether delivery person was employed by restaurants was for jury and documentary evidence, Grubhub contract, did not eliminate all questions of fact as it was dated 1-year after accident and did not require delivery person to exclusively work for Grubhub. Birencwajg v Compaore    

MVA   Bicycle   Speculation   Comparative Fault   Admissibility   Uncertified Records   Hearsay  

First Department
Driver’s testimony he opened door adjacent to moving traffic without looking and bicyclist’s testimony he had no time to avoid door established violation of VTL §1214 entitling plaintiff to summary judgment. Claim plaintiff was riding too fast speculative and plaintiff is not required to prove freedom from comparative fault for summary judgment. Uncertified police report prepared by officer who didn’t witness accident inadmissible on causation. Garcia v BLS Limousine Serv. of N.Y., Inc.    

Construction Liab.   Amend Answer   Workers Comp Defense   Reasonable Excuse   Meritorious Defense  

Second Department
Plaintiff failed to meet burden of showing it would be prejudiced by GC’s 14-month delay in moving to amend Answer to include allegation plaintiff was special employee, which was not devoid of merit. Prejudice requires showing party would be ‘hindered in the preparation of [its] case or has been prevented from taking some measure in support of [its] position.’ Jin Liang Lin v Gee    

Premises Liab   Stairs   Open/Obvious   Inherently Dangerous   Building Code   Experts   Conclusory  

Second Department
Defendants granted summary judgment on testimony and photographs establishing last step before landing was open/obvious and not inherently dangerous and did not violate any applicable building code. Plaintiff’s expert failed to raise issue on claim of optical confusion where last step and landing were different colors and claim of dangerous condition from lack of handrail at last step was conclusory without reference to specific safety standard. Denstman v Manhattan Eye, Ear & Throat Hosp.    

Premises Liab   Sidewalk   Create Condition   Indemnity  

First Department
Tenant’s admission it repaired sidewalk where plaintiff tripped on defect left question of whether it created or exacerbated condition even though owner was responsible for maintaining sidewalk. Tenant offered no proof of when repairs were made and plaintiff’s testimony rebutted tenant’s testimony that there were no defects after the repair. Photographs submitted by tenant failed to establish area where plaintiff fell did not abut its property. Raff-DeSanto v 200 Chelsea Corp.    

Premises Liab   Open/Obvious   Inherently Dangerous  

Second Department
Plaintiff’s testimony that she was able to step over door saddle at funeral home while delivering large bouquet of flowers, and her left foot cleared the door saddle when she reentered with a flower spray and easel that did not obstruct her view, but her right foot then clipped the door saddle establish the condition was open/obvious and not inherently dangerous entitling defendants to summary judgment. Luttenberger v McManus-Lorey Funeral Home, Ltd.    

Premises Liab   Out of Possession   Control   Discovery  

First Department
Building owner granted summary judgment on proof it was out of possession landowner with no responsibility to make nonstructural repairs under lease. Limited right of reentry irrelevant where there was no claim conveyor belt that caused plaintiff’s injuries was a structural or design defect violating a specific statutory provision. Plaintiff’s claim owner exercised control at time of accident belied by testimony of multiple witnesses.

Plaintiff’s cross motion for a fourth EBT of tenant by owner’s daughter who was principal of tenant denied without requisite showing of necessity. Drame v 1650 Bushwick Realty Corp.    

MVA   Turning Vehicle   Sole Cause  

Second Department
Defendant-driver established driver of car plaintiff was passenger in failed to yield right-of-way while making left turn but failed to show that driver was sole cause of accident where testimony and police report left question of whether defendant-driver was speeding and failed to use reasonable care to avoid the accident. Bravo v Benish    

Serious Injury   ROM   Causation  

Second Department
Defendants’ expert’s finding of significant cervical limited ROM without adequate explanation supported by competent medical evidence of claim limitations were self-imposed, and failure to show cervical injuries were not caused by accident, failed to meet burden for summary judgment on serious injury. Kumar v Water Auth. of Nassau    

Spoliation   CPLR § 3126   Note of Issue   Willful/Contumacious  

Second Department
Plaintiff’s motion for spoliation sanctions under CPLR §3126, brought after Note of Issue filed when defense counsel informed plaintiff counsel that carpeting that buckled causing her to fall was removed and replaced, denied as not willfully/contumaciously destroyed since plaintiff’s counsel had declined offers to inspect carpet on 3-occasions over 3-years before Note of Issue. Slezak v Nassau Country Club    

Serious Injury   ROM  

First Department
Serious injury claims for spine, 90/180-day, permanent loss, and permanent consequential limitation dismissed but question of fact remained of serious shoulder injury and plaintiff can recover for all injuries caused by accident if she meets that threshold at trial. Lamar-Vaterpool v Devora    

MVA   Bus   Pedestrian   Question of Fact   Experts  

First Department
Defendants denied summary judgment where bus struck decedent based on conflicting testimony and expert opinions. The Court does not give the details of the proofs. Canestri v United Coach Lines, Inc.    

Preclusion   Appealable Order  

Second Department
Defendant’s appeal from order precluding it from testifying at trial dismissed where motion was not made on notice and there was no application for permission to appeal. Valerio v John Doe #1    

(3 summaries)

SUM   Arbitration  

Second Department
Injured-insured breached SUM coverage contract where she settled underlying personal injury case without carrier’s consent as required by policy and plaintiff failed to show carrier waived provision by words or deeds or acquiesced in settlement by silence since plaintiff did not notify carrier of settlement offer or settlement until 2-weeks before demanding arbitration. Matter of Travelers Personal Ins. Co. v Hanophy-Ryan    

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

Second Department
Respective motions for summary judgment by building owner, GC, and plaintiff denied where worker who fell through unsecured opening near second floor stairwell on construction site as owner and GC failed to eliminate questions of whether adequate safety devices were provided and whether industrial code provisions were applicable for Labor Law §§ 240(1) and 241(6) based on industrial code §§ 23-1.7(b)(1)(i) and 23-1.16(b). GC also failed to eliminate questions of whether it had control over premises and lacked notice of the condition on Labor Law §200 claim. The Court does not give the details of the proofs. Guaman v 178 Ct. St., LLC    

Premises Liab   Wet Floor   Create Condition   Notice  

Second Department
Owner and manager of building where plaintiff slipped on water in lobby granted summary judgment on proof they did not create or have actual or constructive notice of condition in time to remedy it. The Court does not give the details of the proofs. Peralta-Mejia v Park Terrace Owners, LLC    

About Matt McMahon

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