February 13, 2018 | Vol. 93

(4 summaries)

Note of Issue   Vacate Default   90 Day Notice   Reasonable Excuse  


The First Department highlighted how plaintiffs squandered the second change it gave in previously granting a motion to vacate a default, reinstating the Complaint “in the interest of justice and substantive fairness,” where plaintiffs moved to extend the time to file the Note of Issue after the expiration of a 90-day notice without explanation or a reasonable excuse and failed to produce 4 plaintiffs for depositions despite 5 orders and a stipulation. Claimed difficulty locating some of the plaintiffs was conclusory and unreasonable without details of the efforts made. Bustamante v Green Door Realty Corp.

Premises Liab   Duty   Sole Cause  


Landlord that violated NYC regulations requiring window guards in apartments with children under 10 did not owe a duty to plaintiff’s decedent, an adult who fell from a 5th floor window he leaned out of to smoke a cigarette while highly intoxicated, under the window guard regulations which applied only to children, Multi Dwelling Law § 78, or common law. Decedent’s conduct was the sole cause of the accident. Milano v 340 E. 74th St. Owners Corp.

Labor Law §240   Gravity Risk   Safety Devices   De Minimus  


Laborer granted summary judgment where he was injured when he and a coworker lifted a laundry bin with construction debris weighing 300 lbs above their heads to empty the contents into a dumpster. Because the weight of the bin could generate significant force over the 5-7’ it fell, the height differential was not de minimus. Miller v 177 Ninth Ave. Condominium

Premises Liab   Wet Floor   Create Condition   Notice   Warnings   Raised For First Time  


Building denied summary judgment where housekeeper testified that he saw a wet floor sign at the top of the stairs where plaintiff fell at the time of the fall contradicting the building superintendent’s testimony and creating questions of fact as to whether defendant created the dangerous condition or had notice of it. Defendant’s argument that the wet floor sign was placed by a tenant and not a building employee not supported by the evidence.

Argument that the wet floor sign gave proper warning was improperly raised for the first time on appeal and “[t]he mere placement of a wet floor warning sign does not automatically absolve defendant of negligence.” Hamilton v 3339 Park Dev. LLC

(13 summaries)

Premises Liab   3rd Party Contractor   Espinal   Duty   Admissibility  


Glass installer denied summary judgment where plaintiff walked into a glass wall that was supposed to have blue tape or other markings. Questions existed if contractor was still on the job site at the time of the accident and whether it was responsible for installing the markings and failed to do so which would have exacerbated or created a dangerous condition, launching a force or instrumentality of harm, an Espinal exception to the rule against third-party contractor liability.

Defendants were entitled to rely on documents and deposition testimony of other parties. Cardenas v Somerset Partners, LLC

Med Mal   Accepted Practice   Causation   Expert Aff  

Second Deptartment

Podiatrist’s expert’s opinion that plaintiff was properly treated for great toe ulcer by regular debridement, antibiotics, and proper wound care instructions met burden for summary judgment. Plaintiff’s expert failed to explain why amputation of the toe would have been warranted at the time where there were signs of healing.

Motions of vascular surgeon and hospital denied in part where plaintiff’s expert contradicted defendants’ expert’s opinion that amputation of the toe was warranted because “wet gangrene” was present during the hospital admission, a history of diabetes, longstanding ulcer, and chronic osteomyelitis resulting in plaintiff’s subsequent below-knee amputation. Smith v Mollica

Premises Liab   Create Condition   Notice   Duty  


Defendants denied summary judgment where plaintiff cut his foot on broken glass votive candle while entering the pool at the Standard Hotel. There was a question of fact as to whether the placement of glass votive candles near a pool where guests could be expected to walk barefoot was negligent and defendants failed to show that they lacked actual or constructive notice. None of their witnesses testified that they had not received complaints before the accident and the employee responsible for checking the pool had not checked it for 5 hours before the accident. Pronk v Standard Hotel

Set Aside Verdict   Pain/Suffering   Materially Deviates  


Past/future pain/suffering awards for 84-year-old (89 at trial) who suffered a comminuted humeral fracture reduced from $600,000/$400,000 to $400,000/$150,000 as greater amounts materially deviated from reasonable compensation. Jones v New York Presbyt. Hosp.

Premises Liab   Sidewalk   Snow/Ice   Slip/Trip   Storm in Progress   Expert Aff   Speculation  

Second Deptartment

Abutting landowner made out prima facie entitlement to summary judgment on storm in progress by testimony and meteorological expert and data showing that freezing rain was falling. Plaintiff raised an issue of fact by her testimony that the ice he husband slipped on was about 1” thick and her meteorological expert’s opinion that the freezing rain that day was too light to result in 1″ of ice and that was from a larger storm at least 30 hours prior to the storm in progress. The expert’s opinion was not speculative. Gervasi v Blagojevic

Forum non conveniens   MVA  


Defendants failed to meet their “heavy burden” of showing that plaintiff’s choice of New York for jurisdiction was not in the interests of substantial justice where bus company advertises and operates buses in NY, is authorized to do business in NY, the tour plaintiff took originated and terminated in NY, defendant that organized bus tour was located in NY, defendant’s principal witness resided in NY and defendants failed to identify any other witnesses, and defendants have offices in Hoboken New Jersey, just 3.5 miles from the NY courthouse. Foreign witnesses indicated that they intended to fly into JFK and stay in NY for their testimony. The fact that court would have to apply Pennsylvania law, where the accident happened, was not a ground for denying jurisdiction on forum non-convenience. Swaney v Academy Bus Tours of N.Y., Inc.

Premises Liab   Dangerous Condition   De Minimus  

Second Deptartment

Condominium failed to meet its burden of showing that elevated piece of concrete on pool deck was trivial where testimony and photographs left questions regarding the dimensions of the defect, never shifting the burden to plaintiff. Plaintiff failed to meet her burden on cross motion for summary judgment. Craig v Meadowbrook Pointe Homeowner

Premises Liab   Expert Aff   Speculation   Conclusory  


Contractor that installed expanding foam between conduits to prevent seepage of water into the building where plaintiff fell on a slippery surface granted summary judgment on showing that it acted with due care and plaintiff’s expert’s opinion that the sealing “must have failed” was conclusory speculation insufficient to create a question of fact. Puchades v Taube Mgt. Realty LLC

Labor Law §240   Scaffold   Question of Fact  


Plaintiff denied summary judgment on claim that she fell from scaffold while constructing wall based on foreperson’s conflicting testimony that he found her sitting on the scaffold she claimed to have fell from, which was confirmed in filed reports, creating a question of fact. Nieves v Trustees of Columbia Univ. in the City of New York

Prior Written Notice   Pothole Law   Slip/Trip   Create Condition   Notice   NYC  


NYC granted summary judgment on proof that it did not have prior written notice of defect that caused plaintiff to trip and fall. Evidence of other defects in the general area were not sufficient to provide prior written notice of a defect not listed on the notice. Kalsmith v City of New York

Premises Liab   Dangerous Condition   Create Condition  

Second Deptartment

School District failed to make out entitlement for summary judgment where the testimony and expert opinion failed to establish that the screw protruding from a fence that injured the infant plaintiff was not a dangerous condition and that it did not create that condition. McElhiney v Half Hollow Hills Cent. Sch. Dist.

Serious Injury   Expert Aff  


Plaintiffs raised issues of fact in opposition to defendants’ prima facie case for summary judgment on serious injury by treating doctor’s affirmation opining that spine and knee injuries were traumatic based on his examinations, surgical observations, and review of MRI films. Hendricks v Transcare N.Y., Inc.

Construction Liab.   Premature Motion  


Motion for summary judgment on behalf of 16-year-old injured when he fell from an A-frame ladder while installing a metal duct denied as premature where discovery and depositions not done and there were unresolved factual issues. David S. v Blizzard Cooling, Inc.

(1 summaries)

Coverage   Default Judgment   Compel Acceptance   Reasonable Excuse   Prejudice  


Insured denied default judgment and carrier’s motion to compel acceptance of Answer granted on excuse that clerical error prevented the papers from being routed to the right person, plaintiff did not claim prejudice, and attorney acted immediately upon learning of error. Tertiary, Inc. v Liberty Mut. Fire Ins. Co.

About Matt McMahon

Civil trials and appeals since 1984
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