February 14, 2023 | Vol. 352

(5 summaries)

Child Victims Act   Motion to Dismiss   Court of Claims  

Second Department
Court of Claims should not have dismissed Child Victims Act Claim for not specifying each date claimant was sexually abused at a diversionary program 40 years earlier on pleading requirements of Court of Claims Act §11 as the time period during which she alleged she was abused multiple times was sufficient to allow the State to investigate the incidents especially where claimant made a direct complaint to the State at the time, the counselor was arrested and convicted of rape at that time, and it would be unreasonable and against the purpose of the CVA to require victims to remember the specific dates of multiple assaults so long after the events. Case remitted for determination of other grounds the lower court did not address as academic. Fenton v State of New York    

Comment: The Court used the same logic in a near identical case involving the same counselor in Meyer v State of New York.

Set Aside Verdict   Pain/Suffering   Materially Deviates   NYC  

First Department
Separate line item for fear of impending death providently included on verdict sheet. $22mil total verdict providently reduced to $4.5mil, including reduction of $8mil for decedent’s pain/suffering to $2.75mil, $8mil for decedent’s impending fear of death for several hours to 2-days to $500,000, and parental guidance award of $1.25 million, consistent with comparable awards of reasonable compensation in other cases. Small v City of New York    

Motion to Dismiss   CPLR §205   Statute of Limitations  

First Department
Defendants’ motion to dismiss second action on pending action section of CPLR §3211(a)(4) because plaintiff’s appeal from dismissal of first action was pending denied as plaintiff is not required to wait for an appellate decision on the appeal from dismissal of the first action before commencing a second action under CPLR §205(a) even though the 6-month period to start the second action does not start until all appeals are exhausted. Portion of motion to dismiss for statute of limitations denied as first action was not dismissed for failure to prosecute, second action was commenced within 6-months under §205(a), and plaintiff was up to date with discovery when first action was dismissed for failure to file discovery-related stipulations. Concepcion v Lessel Transp. Corp.    

Motion to Dismiss   Amend Complaint   Special Duty  

Second Department
In a review of the standards for deciding motions to dismiss for failure to state a cause of action, the Second Department noted that the general standard of whether the Complaint states a cause of action is changed to whether the plaintiff has a cause of action if the court considers evidence submitted on the motion and the motion is not converted to a motion for summary judgment. Plaintiffs may submit evidence to correct defects in the Complaint but evidence submitted by defendants will not result in dismissal unless it shows ‘a material fact as claimed by the plaintiff is not a fact at all and no significant dispute exists regarding the alleged fact.’ Affidavits submitted by defendants will almost never warrant dismissal.

Once the lower court granted plaintiff’s motion to amend the Complaint, it properly considered the defendant fire department’s motion to dismiss as against the amended Complaint but improperly denied the motion on the “state a cause of action” standard where it considered the ‘defendant’s supporting documentation.’ Motion to dismiss granted on the evidentiary proof which showed that the branch that injured plaintiff was from a tree not on the fire department’s land, they had no duty to maintain the tree, and they owed no special duty to plaintiff. Langley v Melville Fire Dist.    

Malpractice   Motion to Dismiss   Discovery   Willful/Contumacious   Reasonable Excuse   Appealable Order  

First Department
Order dismissing plaintiffs’ action was appealable despite them not submitting opposition papers where they appeared and orally argued the motion during the final discovery conference.

Defendants’ motion to dismiss for failure to comply with discovery demands and orders providently granted where plaintiffs’ noncompliance over 1.5 years despite numerous opportunities to comply, including denial of a prior motion to dismiss, inferred willful/contumacious noncompliance. Ganz v Florman    

(17 summaries)

Discovery   Preclusion   Reasonable Excuse   Appealable Order   Meritorious Action  

First Department
Plaintiffs’ appeal from order on renewal adhering to original decision precluding plaintiffs from offering evidence at trial for failure to comply with discovery dismissed where prior appeal was dismissed for failure to prosecute and order affirmed where plaintiffs’ excuse of law office failure was conclusory and unsubstantiated and did not excuse their failure to comply with court ordered discovery over 2-years. The Court did not need to look at meritorious action. T.W. v Phillip Bus Serv.    

MVA   Discovery   HIPAA   CPLR § 3126   Preclusion   Willful/Contumacious   Reasonable Excuse   Appealable Order  

Second Department
Dismissal of plaintiff’s appeal from order denying motion to reargue opposition to defendants’ motions to strike the Complaint, for failure to perfect, did not preclude Court from hearing appeal from judgment striking the Complaint as it was not a motion to vacate the judgment.

Lower court properly struck the Complaint for failure to provide unrestricted HIPAA authorizations pursuant to a conditional order which became absolute, relieving the court of the need to find willful/contumacious noncompliance. Plaintiff failed to provide a reasonable excuse for noncompliance. Vallejo v Uzzi    

Premises Liab   Motion to Dismiss   Notice of Claim   Court of Claims  

Second Department
Claimant’s failure to specify in her proposed late Claim which of 3-ladders at the deep end of a State swimming pool had the sharp edge that injured her infant-daughter was a jurisdictional pleading defect under Court of Claims Act § 10(6). Claimant’s cross-motion to serve late Claim denied and State’s motion to dismiss for lack of subject matter jurisdiction granted. Smith v State of New York    

CPLR §306-b   Serious Injury   Statute of Limitations   Meritorious Action   Prejudice  

First Department
Lower court providently granted plaintiff’s CPLR §306-b motion to extend time to serve the Summons and Complaint in the interest of justice where the statute of limitations had not expired at the time the motion was made, the delay in service was short, plaintiff promptly moved for the extension, defendant did not show prejudice, and plaintiff showed a meritorious action for sexual abuse and harassment. Gjurashaj v ABM Indus. Groups, LLC    

Malpractice   Accepted Practice   Causation   Experts   Raised For First Time   BP  

Second Department
Critical care doctor met burden for summary judgment with opinion of critical care expert of no departure from accepted practice and that decedent’s death from coagulopathy was the inevitable result of decedent’s TBI from an assault but plaintiff’s expert raised issues in opposition with his contrary opinions. Plaintiff’s expert was qualified to render an opinion on critical care standards as a board certified emergency medicine expert with clinical experience and familiarity with the critical care standards. Plaintiff’s neurosurgeon expert raised issues in opposition by opinions contrary to defendant’neurosurgeon’s expert’s opinions.

Plaintiff did not raise new theories where her experts merely expounded on the allegations in the BPs. Alao v Richmond Univ. Med. Ctr.    

MVA   Bicycle   There to be Seen   Experts   Survelliance Video  

Court of Appeals
Summary judgment for bicyclist who struck pedestrian affirmed on proof pedestrian suddenly stepped off curb and video contradicted her testimony that she looked both ways before stepping off curb. There was one dissent. Min Zhong v Matranga    

Comment: The First Department decision was reported in Vol. 329.

Premises Liab   Stairs   Amend Complaint   Statute of Limitations   Out of Possession  

First Department
Lower court improvidently denied plaintiff’s motion to amend the Complaint to assert direct claims against third-party-defendants on the technical ground the changes were not redlined in the proposed amended Complaint under CPLR §3025(b) as the changes were sufficiently described in the moving papers and readily discernible by the court.

Amendment to add a claim against third-party subtenant granted as that third-party was added by defendant within the statute of limitations, plaintiff’s claim relates back to the commencement of third-party action for statute of limitation purposes, and argument that subtenant did not have notice of oil on basement stairs plaintiff fell on did not render amendment palpably devoid of merit.

Amendment to add claim against tenant who sublet premises denied as devoid of merit where tenant was an out of possession lessee/sublessee who had no duty to maintain the stairs. Herrera v Highgate Hotels, L.P.    

Premises Liab   Unknown Cause   Experts   Speculation   Conclusory  

Second Department
Building owner and pizzeria tenant granted summary judgment as intoxicated patron who went through door behind a curtain to find a restroom and was heard to fall down darkened stairs could not identify the cause of her fall without speculation where she testified she could not recall how she fell and the witness only heard but did not see her fall. Plaintiff’s expert’s opinion did not raise an issue where it was speculative, conclusory and did not causally connect the fall to any defects he observed. Buckstine v Schor    

Building Security   Premises Liab   3rd Party Contractor   Espinal   Open/Obvious   Inherently Dangerous   Create Condition   Notice  

Second Department
Motion by security company that managed guard house at parking lot where plaintiff was struck by security barrier arm as he walked under it denied where plaintiff raised an issue by conflicting evidence of whether the security arm was operated automatically or manually and operated so as to launch an instrumentality of harm under Espinal. Landowner granted summary judgment on proof the barrier arm was open/obvious and not inherently dangerous. Owner also showed it did not create or have notice of the alleged dangerous condition. Johnson v Acumen Capital Partners, LLC    

Premises Liab   Duty   Open/Obvious   Inherently Dangerous   Warnings   Experts   NYC  

First Department
NYC granted summary judgment dismissing case of infant-plaintiff injured while playing on a steep rock formation near a playground in Central Park as the rock formation was a natural geographic feature of the landscape that was open/ obvious and NYC had no duty to enclose or warn of the rock formation’s steep side. Cases cited by plaintiffs inapplicable as the condition was not man-made and plaintiffs’ expert’s opinion that an enclosure should have been installed irrelevant where NYC had no duty under the circumstances. Voss v City of New York    

Premises Liab   Trivial  

Second Department
Property owner granted summary judgment on proof defect plaintiff tripped on in parking lot was trivial as it was physically insignificant, did not increase the risks under the circumstances, and was not a trap or nuisance. Property owners are not liable for defects that may cause someone to ‘merely stumble, stub his or her toes, or trip.’ Drew v N&P USA Realty, LLC    

Prior Written Notice   Create Condition   Burden of Proof  

Second Department
Town granted summary judgment on proof it did not receive required prior written notice of depressed storm drain cap on walkway that plaintiff-wife tripped on and Plaintiffs failed to meet burden of showing the county created the condition, an exception to the prior written notice requirement. Gunnells v Town of Brookhaven    

MVA   Pedestrian   Premature Motion  

Second Department
Pedestrian granted summary judgment on her affidavit she was crossing in crosswalk with pedestrian light in her favor when defendants’ vehicle struck her, failing to yield the right-of-way, and defendants did not raise an issue in opposition. Motion was not premature as defendants failed to provide an evidentiary basis that relevant information from discovery or information solely within plaintiff’s knowledge was necessary to oppose the motion. Festagallo v Mandelbaum    

Motion to Dismiss   Amend Complaint  

First Department
Defendants’ motion to dismiss for failure to state a cause of action providently denied where the Complaint adequately pleaded a claim for negligence, accepting the allegations as true. Plaintiff’s motion to amend the Complaint to include a claim for allowing boaters to launch after sunset under Navigation Law §73-a(1)(e) providently granted. De La Cruz v Evers Mar. & Seaplane Base    

Premises Liab   Create Condition   Notice  

Second Department
County granted summary judgment on proof it did not create or have notice of wet condition on floor of jail that plaintiff slipped on and plaintiff failed to raise an issue in opposition. Gorley v County of Westchester    

MVA   Pileup   Nonnegligent Explanation  

Second Department
Lead 2-vehicles in 5-vehicle pileup granted summary judgment where testimony that they were each stopped at a red light when struck from behind provided a nonnegligent explanation. Robinson v New York City Tr. Auth.    

Assault   Battery   Motion to Dismiss   Statute of Limitations   Amend Complaint  

Second Department
Defendants’ motion to dismiss granted where plaintiff conceded the action was brought beyond the assault and battery statute of limitations and plaintiff’s motion to amend to include claims for violation of NYC’s Victims of Gender-Motivated Violence Protection Law and Civil Rights Law §79-n denied as patently devoid of merit. Smith v Sterling    

(1 summaries)

Serious Injury   Causation  

Second Department
Defendants met burden for summary judgment on serious injury by competent medical proof but plaintiff raised an issue in opposition on serious injury to her spine. Since defendants failed to show the injuries were not caused by the accident, the burden on causation never shifted to plaintiff. The Court does not give the details of the proofs. Hospedales v New York City Tr. Auth.    

About Matt McMahon

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

Comments are closed.