| MUST READS (3 summaries) | |||
| NOTEWORTHY | IF YOU MUST READ | ||
 Motion to dismiss Child Victims Act cases alleging sexual abuse of 2-middle school students by the same teacher against charter school, corporation, foundation, and its members granted, except to 2- members alleged to have had a role in hiring, training, supervising, or policymaking at the time, on documentary evidence showing the charter school and corporation did not exist at the time of the abuse and plaintiffs did not allege the foundation which did exist during a portion of the time of the abuse was responsible for safety policies, hiring, training, supervising, or disciplining staff. Plaintiffs failed to allege facts to support claim of assumption of predecessor tort liability and claims of corporation by estoppel and de facto corporation not considered where raised for the first time on appeal. Motion was not premature where based on undisputed documentary evidence. Jane Doe Three v KIPP Academy Charter Sch. ✉ |
 Lower court improvidently denied defendants’ motion to reargue denial of motion to dismiss claims of 1-plaintiff-passenger in vehicle struck by NYC and MTA Bus Co. bus on ground she did not initially appear for a demanded 50H hearing where it initially granted her 60-days to appear as new evidence that plaintiff subsequently appeared for her 50H hearing but did not testify would have changed the determination. The Court modified the decision to grant reargument and dismiss the claim by that plaintiff who did not offer proof of any “extreme physical or psychological incapacity” that would prevent her testimony. Defendants failed to offer any proof that would have changed the denial of the motion as to the remaining plaintiffs. Aikhoje v City of New York ✉ |
| Law firm’s motion to stay action for various tort and Adult Survivors Act (CPLR §214-j) claims brought by bankruptcy trustee alleging sexual assault by plaintiff’s co-worker and to compel plaintiff to arbitrate the claims based on an arbitration agreement signed by plaintiff and the law firm when she was hired granted. Arbitration was not barred by the federal Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFAA) as the claims occurred before its enactment and the revival of claims by §214-j did not affect the application of the EFAA. Mahn v Mullman ✉ |
| NOTEWORTHY (14 summaries) | |||
| MUST READS | IF YOU MUST READ | ||
| School district granted severance for trial of 7-plaintiffs’ claims for exposure to toxic substances at a middle school as the individual issues of each plaintiff would render a single trial “unwieldy and confuse the trier of fact.” Adamow v Northport-East Northport Union Free Sch. Dist. ✉ |
| Defendant’s motion to vacate default judgment entered on plaintiff’s unopposed motion denied where vague and conclusory affidavit of legal services company employee that he failed to make the file active without any affidavit by an employee of the defendant explaining the circumstances of the default was insufficient to establish a reasonable excuse for law office failure and defendant’s actions in ignoring plaintiff’s CPLR 3215(g)(4)(i) default letter and motion for default showed a willful pattern of delay and neglect. Rodriguez v Target Corp. ✉ |
| Hospital’s CPLR §3126 motion to strike the Complaint for repeated failure to provide final lien letters for more than 3-years in order to finalize $150,000 settlement for decedent’s fall out of a hospital bed denied where original partner representing plaintiff died, remaining partner suffered serious documented health issues, original partner’s widow could not find the file for more than a year after the partner’s death, plaintiff’s counsel filed a surrogate court petition to facilitate settlement approval, and ultimately produced the lien letters prior to the hospital’s deadline, showing the actions were not willful/contumacious to justify the extreme sanction of striking the Complaint. As there were significant delays with little effort to obtain the lien letters, plaintiff’s counsel was ordered to pay $500 to defendant for the cost of bringing the motion to strike. Ortiz v Montefiore Med. Ctr. ✉ |
| Motion to dismiss by decedent’s employer whose employee instructed decedent to fire an employee who followed, shot, and killed him granted as Worker’s Comp. was decedent’s exclusive remedy. Hamer v FPG Am., LLC ✉ |
| Plaintiff’s expert raised issues in opposition to prima facie showing of entitlement to summary judgment dismissing his malpractice action against nurse and patient care assistant by opinions they departed from accepted practice by placing him in a chair instead of on a stretcher with bed rails after he had been identified as a fall risk while waiting to be seen in the emergency room where he stood up and fell when called by the patient care assistant and that the departures were a cause of his fall. Hospital denied summary judgment on respondeat superior as they are responsible for their employees acting within the scope of their employment. Doctors granted summary judgment on their expert’s opinion on review of the records that they had no interaction with plaintiff until after his fall. Napolitano v Wighton ✉ |
| BOCES defendants failed to meet burden for summary judgment dismissing Child Victims Act claims of negligence, negligent hiring, supervision, training, and retention for sexual abuse by teacher between 1968-1970 where their submissions showing the abuse took place 1-2 times per week for 3-years in the same closet while the other students were left unattended and abuse outside school premises and hours on a regular basis was preceded by the alleged acts of abuse on school grounds during school hours left questions of whether they knew or should have known of the teacher’s propensity for sexual abuse. Sallustio v Southern Westchester Bd. of Coop. Educ. Servs. ✉ |
| Building owner granted summary judgment dismissing GC worker’s negligence and Labor Law §200 causes of action for injuries when a grinder without a blade guard kicked back and cut his leg while cutting a cement block on proof it did not interact with the GC’s employees or provide any tools or equipment, establishing it did not have the authority to supervise or control the means and methods of the work. Plaintiff’s cross motion for summary judgment on Labor Law §241(1) based on industrial code §23-1.5(c)(3) denied where questions remained of whether the owner had notice of a defect with the grinder. Martinez v Nader Enters., LLC ✉ |
| Pediatric orthopedic surgeon’s expert failed to meet burden of showing no departure from accepted practice for summary judgment dismissing infant’s claim for failure to diagnose fibula bone cyst and lesion requiring intensive surgery without addressing medical records showing the bone lesion was visible on an x-ray or specifically addressing plaintiff’s allegation that the surgeon failed to diagnose it during a visit at that time. Badescu v Lewis ✉ |
| Pepsi bottling company’s motion for summary judgment dismissing plaintiff’s claims for all injuries other than lacerations and abrasions on her foot that its employee ran over with a heavy cart granted on documentary evidence showing those injuries were identical to ones from a prior lawsuit and their expert-doctor’s opinions it was impossible for the foot laceration to cause her claimed medial ankle neuropathy on the opposite sides of the foot, her hammertoes were preexisting as shown by photos on the day of the accident, and abnormalities on an MRI 3-years after the accident were degenerative. Plaintiff’s treating doctor’s opinions on causation were conclusory and speculative, did not address the prior accident, and acknowledged without explanation that the injuries may have been preexisting but aggravated or exacerbated by the foot injury. McPherson v Pepsi-Cola Bottling Co. of N.Y., Inc. ✉ |
| Owner of building that rented to supermarket whose employee tripped and fell on broken and uneven concrete in loading dock failed to meet burden for summary judgment on claim it was an out of possession landlord with no duty to maintain the loading dock by contract or course of conduct where there was no allegation of a statutory violation as the lease was ambiguous and testimony of supermarket’s general manager conflicted with the owner’s testimony regarding responsibility for the loading dock. Plaintiff raised issues in opposition to the owner’s prima facie showing it lacked constructive notice based on how long the condition existed. Hernandez v Malchus B ✉ |
| Building and tenant-doctor granted summary judgment dismissing patient’s claim for fall from step as she left doctor’s office on plaintiff’s testimony she did not know how or why she lost her balance, a photo of the stairs, and their expert’s opinion that the stairs were safe and not a hidden trap. Plaintiff’s expert’s opinions based on plaintiff’s affidavit that contradicted her testimony, creating only feigned issues, was not competent to raise issues in opposition. Feinberg v 72nd Tenants Corp. ✉ |
| MTA and NYCTA granted summary judgment dismissing plaintiff’s claim for trip and fall on roadway pothole as MTA’s only function is planning and finance for public transportation, not ownership, maintenance, or control of property and on record searcher’s testimony that neither MTA nor NYCTA owned, occupied, nor made special use of the public roadway. Motions for summary judgment by ConEd and Brooklyn Union Gas denied as premature where plaintiff established discovery might lead to evidence of whether they did work in the area that may have caused the accident. Robles v City of New York ✉ |
| Plaintiffs granted summary judgment on liability and dismissing comparative fault and seatbelt defenses on their affidavits that their vehicle was stopped for 30-seconds before being rear-ended by defendants’ vehicle and defendants did not submit an affidavit in opposition from a person with personal knowledge. Defendants failed to show that motion, brought before discovery, was premature without evidentiary proof suggesting discovery might lead to relevant facts to oppose the motion. Maurice v Donovan ✉ |
| Truck owner and driver that struck driver’s side of plaintiff’s vehicle that was partially merged into travel lane from service road granted summary judgment on plaintiff’s negligence per se violation of VTL §1128(a) for merging when not safe to do so. Plaintiff’s claim he was stopped for 5-15 seconds before being struck did not raise an issue as defendant-driver had the right of way and only seconds to avoid the accident. Eltosam v Darling Ingredients Inc. ✉ |
| IF YOU MUST READ (2 summaries) | |||
| MUST READS | NOTEWORTHY | ||
| Law firm granted summary judgment dismissing legal malpractice claim where underlying personal injury action was dismissed for lack of serious injury on proof plaintiff did not sustain a serious injury and, therefore, would not have succeeded on the merits. The Court does not give the details of the proofs. Dodenc v Dell & Dean, PLLC ✉ |
| Plaintiff raised an issue on serious injury under permanent consequential and significant limitation categories in opposition to defendants’ prima facie showing of no serious injury. Defendants failed to meet burden of showing plaintiff’s injuries were not caused by the accident without addressing claim in the BP that the accident aggravated preexisting cervical and lumbar injuries and, therefore, plaintiff did not have to explain a gap in treatment. The Court does not give the details of the proofs. Petric v Retsina Cab Corp. ✉ |