February 12, 2019 | Vol. 145

MUST READS
(7 summaries)
NOTEWORTHY IF YOU MUST READ

Premises Liab   Dangerous Condition   Expert Aff  

Second Deptartment

Second Department granted reargument of its previous decision and on reargument vacated decision and denied school’s motion for summary judgment on claim of negligent maintenance of playground based on plaintiff’s expert’s opinion that surface underneath apparatus did not comply with CPSC guidelines. Court cited to General Business Law §399-dd (the one dealing with playgrounds) which requires NYS to promulgate rules and regulations consistent with CPSC guidelines for playgrounds. Boland v North Bellmore Union Free Sch. Dist.

Comment: The original decision was reported in Vol. 119 with a comment that the finding that CPSC guidelines could not be used to raise questions of fact because they did not have force of law seemed to be counter to Court of Appeals precedent. While the Second Department refers to the GBL connection to the CPSC guidelines for playgrounds, the Court of Appeals upheld their use playground cases long before GBL §399-dd was enacted Butler v. City of Gloversville, 12 N.Y.3d 902 (2009) and in non-playground cases. Kriz v. Schum, 75 N.Y.2d 25 (1989).


MVA   Feigned Issue  

First

One defendant granted summary judgment on his and codefendant’s testimony that codefendant merged into lane where defendant applied his brakes and swerved to avoid being hit. Plaintiff’s internally inconsistent testimony, first claiming that she did not see the accident then claiming that moving defendant swerved into codefendant’s car, contradicted every piece of evidence including defendants’ depositions, photographs showing damage to moving defendant’s right front fender, and police report noting that right front fender was only damage to moving defendant’s car. That damage could not occur if moving defendant struck codefendant merging from right to left. Plaintiff’s testimony was “demonstrably false” and incredible as a matter of law. There was 1 dissent. Carthen v Sherman


Pothole Law   Prior Written Notice  

Second Deptartment

Worksheets identifying defects at area where plaintiff fell prepared by Kiryas Joel “Superintendent of Public Works’,” one of 2 officers authorized to accept notice of defects, and emailed to the “Village Clerk,” the other officer authorized to accept notice of defects, submitted by Kiryas Joel on its motion for summary judgment, established prior written notice. A notice that does not identify the exact location but reasonably identifies the area of the defect may create a question of fact. Bochner v Town of Monroe


Labor Law §240   Labor Law §241   Duty   Control  

Second Deptartment

Owner of garage where plaintiff was injured when car engine hoist broke and fell on him while sweeping floor granted summary judgment on Labor Law §§240(1) and 241(6) because sweeping did not fall within “cleaning” contemplated by Labor Law §240(1) in that it was routine maintenance that could be performed with tools commonly found in a domestic setting and dismantling a vehicle did not fit within the definition of “demolition.” Negligence claim dismissed where owner did not control the means and methods of work. Guevarra v Wreckers Realty, LLC


MVA   Question of Fact   Expert Aff   Noseworthy  

First

Conflicting eyewitness accounts and conflicting expert opinions precluded summary judgment, but eyewitness accounts did not preclude application of Noseworthy doctrine where plaintiff sustained a severe head injury with loss of memory. Evans v Acosta


Premises Liab   Slip/Trip   Out of Possession   Control   Renew   Open/Obvious   Inherently Dangerous   Comparative Fault  

Second Deptartment

Out-of-possession owner granted summary judgment on proof that tenant’s employee installed extension cord plaintiff slipped on and owner did not have a duty to repair or maintain control of the premises. Owner’s motion to renew based on deposition of tenant employee taken after original motion was grounds for renewal but Court didn’t grant it costs since it should have waited until after all depositions before making original motion.

Tenant’s motion for summary judgment denied where it failed to show extension cord was not an inherently dangerous tripping hazard even where plaintiff was previously aware of its presence. Open/obvious only goes to comparative fault without proof that condition is not inherently dangerous. Crosby v Southport, LLC


Late Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice   Raised For First Time  

Second Deptartment

Petition to serve late Notice of Claim or deem late notice timely served denied, and cross motion to dismiss granted, where accident report stated only that petitioner fell in sanitation garage and had a seizure without any mention of a greasy substance on floor, failing to give actual knowledge of the claim within 90-days or a reasonable time thereafter. Petitioner also failed to offer a reasonable excuse for the 11-month delay in serving Notice of Claim or offer evidence or a plausible argument that defendant was not substantially prejudiced. Petitioner’s 50-H testimony submitted for the first time in reply not considered. Matter of McFarland v City of New York

NOTEWORTHY
(20 summaries)
MUST READS IF YOU MUST READ

Premises Liab   Slip/Trip   Snow/Ice   § 7-210  

First

Archdiocese granted summary judgment on proof it did not own, control, or have responsibility for pedestrian ramp where plaintiff slipped and fell on ice. Church which was the abutting landowner, and sidewalk shed contractor denied summary judgment where there was proof that water dripped from sidewalk shed to ramp and sidewalk causing icy condition and question of fact existed if church’s snow removal efforts exacerbated condition. Kruzhkov v Eglise St. Jean Baptiste


Premises Liab   Slip/Trip   Notice  

Second Deptartment

Monsignor’s testimony that 1″ X 1″ X 36″ gap between tiles at top of stairs in photograph taken by plaintiff accurately depicted condition when he saw it after the accident established constructive notice despite his testimony that he never saw it before the accident as it would have been visible on a reasonable inspection. Fasano v St. Bernard Church


Premises Liab   Building Security   Duty  

First

Manager of Co-op City granted summary judgment where plaintiff was shot outdoors because a landlord’s duty to maintain minimal security does not extend to the exterior of buildings. Palaj v Marion Scott Real Estate, Inc.


Negligent Supervision   Special Duty   NYC  

Second Deptartment

Crossing guard who directed infant-plaintiff not to cross roadway outside of crosswalk and directed her to crosswalk assumed a special duty but met that duty as a matter of law. Evidence that child went to middle of block and darted or ran out into street showed that no degree of supervision could have prevent the sudden and unexpected action. K.A. v City of New York


Premises Liab   Slip/Trip   Create Condition   Notice  

Second Deptartment

School denied summary judgment where it proved it did not create crumbled asphalt around sewer grate that plaintiff tripped on and did not have actual notice of the condition but failed to show condition was not open and obvious and existed long enough for school to become aware of and remedy it. Stepkowski v Holy Trinity Diocesan High Sch.


Labor Law §240   Falling Object   Speculation  

Second Deptartment

Plaintiff granted summary judgment on Labor Law §240(1) where he and coworker testified that 4 x 8 piece of plywood where supporting post was removed by other coworker fell as plaintiff walked under it, establishing that it needed to be secured. Opinion of coworker who did not witness accident that plywood could not “most likely” stay up without the supporting bracket was speculation and contradicted by another coworker. Passos v Noble Constr. Group, LLC


MVA   Serious Injury   Premature Motion   Raised For First Time  

First

Plaintiff granted summary judgment on liability on proof that defendant ran red light and struck another vehicle. Defendant’s claim that other vehicle may have been at fault was speculation and motion was not premature since defendant was at the scene and did not show what discovery was necessary. Hospital records showing fractured finger and sternum submitted for the first time in reply could not be considered as defendant did not have an opportunity to respond to them and had no discovery on serious injury, including receiving those documents. Estate of Bachman v Hong


MVA   Highway Design   Qualified Immunity  

Second Deptartment

Suffolk county showed that intersection and white line were visible and not obscured by foliage but failed to eliminate questions of fact regarding whether it performed an adequate study after being made aware of the danger. Busterna v County of Suffolk


Premises Liab   Slip/Trip   Survelliance Video   Spoliation   CPLR § 3126   Negative Inference  

Second Deptartment

Lower court improvidently granted negative inference as sanction for not preserving video from multiple cameras under CPLR §3126 where Fairway security manager testified that only 1 of 4 outdoor and 1 indoor cameras he reviewed captured the incident and he preserved 10 hours of that video with the remainder being automatically overwritten after 30-days. Plaintiff’s spoliation letter sent about a week after the incident demanded that they preserve footage of the location of the accident. Lower court entered order 5-months after spoliation letter requiring them to maintain 24 hours of video, but the video had already been overwritten. Under the circumstances 10 hours of video of the accident location was all Fairway knew needed to be preserved and plaintiff failed to show that she could not prove her case without the missing footage. Sarris v Fairway Group Plainview, LLC


Venue  

First

Defendant granted change of venue from Bronx to Westchester County upon substantial documentary proof including DMV, hospital, and employment records, and tax returns, showing plaintiff resided in Westchester when action was commenced, and plaintiff failed to rebut this evidence or establish that he resided in Bronx with any degree of permanency. Crovato v H&M Hennes & Mauritz, L.P.


Premises Liab   Assault   Intervening Cause   Foreseeability  

Second Deptartment

Restaurant owners and operators granted summary judgment on proof that attack on the plaintiff in its parking lot was unforeseeable and unexpected. Property owner only has duty to control conduct of persons on its premises when an attack is foreseeable, it has the opportunity to control the conduct, and is reasonably aware of the need to do so. Oblatore v 67 W. Main St., LLC


MVA   Question of Fact   There to be Seen  

First

Conflicting stories about whether plaintiff disembarked from delivery truck onto a sidewalk, or if one existed, precluded summary judgment for defendants. Owner and driver of car that struck plaintiff after he disembarked denied summary judgment where driver saw plaintiff in his lane 5′ ahead, kept his foot on the gas, and did not step on break until after he struck plaintiff. Lopez v Guillen


Med Mal   Negligent Hiring   Accepted Practice   Causation   Expert Aff  

Second Deptartment

Ophthalmologist and employer granted summary judgment where plaintiff’s ophthalmology expert raised a question of fact on whether the ophthalmologist’s failure order neurological consult was a departure but failed to show sufficient expertise in treating meningioma tumors to opine that an earlier diagnosis would have permitted radiation instead of surgery and had a different outcome. Employer granted summary judgment on negligent hiring where there was no proof that an employee went beyond the scope of their employment. Simpson v Edghill


Med Mal   Accepted Practice   Causation   Expert Aff   Speculation   Conclusory  

First

Defendants’ expert’s opinion that plaintiff’s injuries were not from a departure from accepted practice during her pelvic surgery made out entitlement to summary judgment and plaintiff’s expert’s affirmation was speculative and conclusory as injury itself cannot be the only basis for establishing a departure. Henry v Duncan


Serious Injury   ROM   Expert Aff  

Second Deptartment

Plaintiff’s neurologist’s affirmed report failed to raise issue of fact in opposition to defendant showing of entitlement to summary judgment on serious injury where it did not expressly compare her ROM to normal ROM or give qualitative assessment of her condition. Sanchez v L.R.S. Cab Corp.


Premises Liab   Slip/Trip   Stairs   Dangerous Condition   De Minimus   Feigned Issue  

First

Stairs that gradually sloped towards center due to normal wear and tear were trivial and not actionable. Plaintiff conceded that handrail met all codes and defendant successfully argued that her testimony that she was holding onto the handrail when she stepped down precluded finding of proximate cause. Plaintiff’s inconsistent testimony that she told triage nurse that she tried to grab onto something and nothing was there issue insufficient to raise a question of fact. Pezzello v Pierre Congress Apts., LLC


Premises Liab   Slip/Trip   Assumption of Risk   Open/Obvious   NYC  

First

NYC entitled to summary judgment where plaintiff frequently played on the outdoor basketball court which had a large open/obvious court-length crack and marked tar surface. Grass growing out of crack highlighted rather than hid crack’s depth and was one of the risks assumed by the plaintiff. Alvarado v City of New York


Premises Liab   Slip/Trip   Duty   Premature Motion  

Second Deptartment

LIRR granted summary judgment on proof that it did not own, occupy, control, or make special use of roof that plaintiff slipped on and, therefore, owed plaintiff no duty. Plaintiff’s hope that discovery would uncover facts to defeat motion insufficient to deem it premature. Bartlett v City of New York


CPLR § 3126   Sanctions   Preclusion   Negative Inference  

First

NYCTA’s failure to produce former employee train operator for deposition in violation of several court orders, taken as a whole, was insufficient to justify precluding NYCTA from calling the ex-employee at trial or granting an adverse inference, because it was not willful. Han v New York City Tr. Auth.


MVA   Admissibility   Hearsay  

First

Police report containing license plate number given by unidentified witness was inadmissible hearsay insufficient to raise an issue of fact in opposition to defendant’s and his wife’s testimony that he was home on the day of the accident with his car in his garage, his wife was at work, and neither were in the area of the accident. Rodriguez v Sit

IF YOU MUST READ
(2 summaries)
MUST READS NOTEWORTHY

Stay Arb   SUM   Estoppel  

First

Injured party acknowledged that police vehicles are not subject to SUM claims but argued that carrier should be equitably estopped from raising this as it did not disclaim for 4-years. Injured party not entitled to equitable estoppel as respondent was not an insured and it was not untimely since there never was any coverage. Matter of U.S. Specialty Ins. Co. v Navarro


Serious Injury  

Second Deptartment

Plaintiff raised questions of fact in opposition to defendant’s entitlement to summary judgment based on competent medical proof. The court does not give the details of the proofs. Saladino v Quinteros

About Matt McMahon

Civil trials and appeals since 1984
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