February 15, 2022 | Vol. 300

(4 summaries)

MVA   Motion to Dismiss   Res Judicata   Collateral Estoppel   Directed Verdict   Waiver  

Second Department
Defendants’ CPLR §3211(a)(5) motion to dismiss on res judicata or collateral estoppel granted where plaintiff in prior action against same defendants on same facts refused to go forward with damage only trial after Supreme Court granted summary judgment and transferred case to Civil Court which precluded plaintiff from introducing evidence of thoracic injuries and Civil Court treated defendants’ application in that case as a motion for directed verdict under CPLR §4401 and its grant of the directed verdict was a dismissal on the merits barring all future actions. Cartagena v Lee    

Notice of Claim   Sidewalk   NYC  

Second Department
Motion to dismiss based on plaintiff’s inadequate description of accident location under GML §50-e(2) granted as description was insufficient to enable NYC to investigate claim and plaintiff’s 50H testimony further confused both the location and cause of plaintiff’s accident. Burgos v City of New York    

Malicious Prosecution   False Imprisonment   Probable Cause   Statute of Limitations   NYC  

First Department
Defendants’ motion for summary judgment dismissing plaintiff’s malicious prosecution claim granted as plaintiff’s criminal case was not terminated in his favor even though conviction was reversed on grounds of an unlawful search without probable cause as that did not evince lack of culpability. Plaintiff failed to oppose dismissal of wrongful search or false imprisonment claims which were untimely where brought 5-years after illegal search. Statute of limitations for false imprisonment began to run at arraignment, not on plaintiff’s release after serving sentence. Butler v City of New York    

Strike Answer   Discovery   Preclusion   CPLR § 3126   Willful/Contumacious  

Second Department
Plaintiff’s failure to provide discovery, including adequate responses to interrogatories, as per multiple court orders over an extended time coupled with inadequate explanations for failure to comply was willful/contumacious and justified striking his Complaint especially where 2-orders warned in bold letters that failure to appear for EBT on specific dates could result in preclusion or Complaint being stricken and plaintiff failed to appear or seek leave of court to adjourn. Sansone v Syracuse Univ.    

(14 summaries)

Premises Liab   Sidewalk   § 7-210   Homeowner Exception   Unknown Cause  

Second Department
Homeowners’ motion for summary judgment claiming homeowner exception to administrative code §7-210 denied and plaintiff’s motion for summary judgment dismissing affirmative defense of homeowner exception granted on defendants’ deposition testimony and affidavits establishing the homeowners never lived in the home which was occupied by their daughter and son-in-law who were not owners.

Defendants failed to show plaintiff could not identify cause of her to fall on sidewalk where she pointed to area where she fell in photograph at EBT but was not asked to mark or circle the area. Brachfield v Sternlicht    

Preclusion   Waiver   Set Aside Verdict  

First Department
Plaintiffs mid-trial motion to redact accident information from ER record denied where plaintiff admitted into evidence and relied on entire record. Plaintiff’s motion to set aside defense verdict claiming error in permitting defendants to refer to the word “yesterday” after court instructed them to stay away from the word which appeared in hospital record indicating plaintiff experienced knee pain the day before his accident denied as plaintiff’s failure to object during summation or ask for curative instruction or mistrial waived the objection. Lois v Flintlock Constr. Servs., LLC    

MVA   Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice  

Second Department
Neither Triborough Bridge and Tunnel Authority nor NYCTA police reports gave essential facts from which an actionable wrong by NYCTA employees could be readily inferred for petition to serve late Notice of Claim and no-fault claim form is not proper substitute for a Notice of Claim as it does not apprise the municipality of a pending action. Petitioner also failed to show reasonable excuse or provide evidence or a plausible argument that NYCTA was not prejudiced by delay. Matter of Ibrahim v New York City Tr. Auth.    

Indemnity   Workers Comp Defense   Premature Motion   Grave Injury   Raised For First Time  

First Department
Subcontractor’s motion for summary judgment on workers comp exclusivity clause to dismiss third-party complaint seeking contribution and indemnity for assault by defendant’s employees denied where movant failed to show plaintiff did not suffer a “grave injury” by competent medical proof and plaintiff’s allegation he was “permanently physically incapacitated” was sufficient to put subcontractor on notice of a potential grave injury. WCB medical examination reports not considered where submitted for first time in reply. O’Flaherty v Columbo    

Labor Law §241   Labor Law §200   Snow/Ice   Industrial Code   Notice   Control   Conclusory  

First Department
Worker who slipped on snow/ice walking from entry gate to employer’s shanty granted summary judgment on Labor Law §200 and negligence against construction manager who designated worker entry gate on undisputed evidence snow/ice was from at least 1-day before fall, no path had been cleared for the workers, and construction manager had authority to direct contractor to remove snow. Duration of snow gave construction manager notice of the dangerous condition. Summary judgment for and against remaining defendants denied where issues of whether they had control over worksite were not addressed. Plaintiff denied summary judgment on Labor Law §241(6) based on industrial code §23-1.7(d)(slippery surfaces) where questions remained of existence of a defined path or if plaintiff was in shanty area.

Owner’s contractual indemnity claim against contractor dismissed as it violated anti-subrogation rule which also precludes claims against indemnitor covered by same policy. Carrier’s affidavit that contractor’s coverage with Owners Controlled Insurance Program had been cancelled failed to raise an issue where it was conclusory and not supported by evidence. Lapinsky v Extell Dev. Co.    

Malpractice   Accepted Practice   Causation   Experts   Untimely  

Second Department
Plaintiff’s obstetrical expert raised an issue in opposition where his opinions that plaintiff’s blood pressure medications were clearly indicated 2-weeks earlier than defendants expert’s opinion, plaintiff met standard for inpatient hospitalization and treatment for her hypertension, and premature delivery and injury to the child would not have been avoided if such precautions were taken directly contradicted defendant’s expert’s opinions.

Appeal by perinatal services corporation dismissed where not perfected within 6-months. Williams v Halstead    

Malpractice   Accepted Practice   Causation   Experts   Conclusory  

Second Department
Defendants’ expert’s opinions that ER doctor who examined and discharged plaintiff’s decedent with complaint of headache lasting 1-day, and decedent died 3-weeks later of a subarachnoid hemorrhage, failed to meet burden for summary judgment where he did not address plaintiff’s allegation ER doctor failed to order necessary diagnostic tests and failed to specify the applicable standard of care or explain how the ER doctor did not depart from the standard and the expert’s opinion on causation was conclusory. Ojeda v Barabe    

Labor Law §241   Labor Law §200   Wet Floor   Notice   Control   Indemnity  

First Department
Construction worker granted summary judgment on Labor Law §241, §200, and negligence against construction manager responsible for designating restrooms for workers where plaintiff repeatedly complained that sink in restroom was overflowing causing water to puddle on the floor and construction manager failed to designate a different restroom. Construction manager’s authority over the area made it an owner’s agent for Labor Law. Separate contractor granted summary judgment of §200 and negligence claims on proof bathroom was outside its contract except for an inspection 1-month before plaintiff’s accident and plaintiff failed to raise an issue of fact other than by speculation.

Construction manager entitled to conditional contractual indemnification against contractor which court also found negligent to extent of its proportionate of fault . Locke v URS Architecture & Eng    

MVA   Workers Comp Defense  

Second Department
Defendant-driver who was employed by New York Botanical Gardens [NYBG] and was a co-owner of the garden design company which owned the truck he was driving when he struck plaintiff, a NYBG employee, on NYBG grounds, and his company, granted summary judgment under workers comp exclusivity clause on proof both plaintiff and defendant-driver were acting within scope of their employment for NYBG at the time of the accident. Jones v Adams    

Labor Law §241   Labor Law §200   Open/Obvious   Inherently Dangerous   Control   Indemnity  

Second Department
Summary judgment motions of owners, GC, and plumbing contractor to dismiss Labor Law §200 and negligence claims granted on proof permanent drain pipe, covered by bucket to keep concrete from entering drain, plaintiff tripped on while pouring concrete was open/obvious and not inherently dangerous and they did not have authority to control plaintiff’s work where plaintiff testified only his supervisor directed his work. Labor Law §241(6) claim dismissed on proof administrative code §23-1.7(e)(2) is inapplicable as drainage pipe was permanent and integral part of construction. Employer’s motion for summary judgment dismissing §§200, 241, negligence, and contractual and common law indemnity and contribution claims granted. Sanchez v BBL Constr. Servs., LLC    

Premises Liab   Assumption of Risk   Open/Obvious   Inherently Dangerous   Comparative Fault   Question of Fact  

Second Department
Plaintiff met burden for summary judgment on liability, and to dismiss affirmative defenses of open/obvious condition not inherently dangerous and comparative fault, on her testimony, testimony of a witness, and expert affidavit showing electrical box next to treadmill that caused her fall as she stepped off it was similar in color and so close to treadmill it could not be seen from treadmill and that she was not at fault for the accident. Defendants raised issues in opposition on testimony and photographs showing electrical box was open/obvious and not inherently dangerous, and raised issues of credibility of plaintiff, her witnesses, and expert. Plaintiff granted summary judgment dismissing assumption of risk affirmative defense. Sebagh v Capital Fitness, Inc.    

Premises Liab   Create Condition   Notice  

First Department
Supermarket granted summary judgment on proof it did not create or have notice of condition on floor that plaintiff fell on where plaintiff testified she walked through same space minutes before without noticing the condition, establishing it was not visible or apparent. Torres v Bogopa Serv. Corp.    

Discovery   Strike Answer   Willful/Contumacious   Note of Issue  

First Department
Defendants’ motion to strike plaintiff’s Answer or compel plaintiff to provide specified discovery denied where there was no showing plaintiff willfully or contumaciously failed to comply with discovery orders and defendants failed to show unusual or unanticipated circumstances for discovery after Note of Issue as they were aware of preexisting back injuries for 3-years before Note of Issue. Diamond v WWP Off., LLC    

Discovery   BP   Preclusion   NYC  

First Department
Defendant’s motion to preclude plaintiff from offering any evidence of matters in demand for BP or compel plaintiff to provide a BP denied where plaintiff provided BP which adequately described date/time/location of accident, acts and omissions, and manner of notice of dangerous condition. Smith v City of New York    

(3 summaries)

Arbitration   SUM   Untimely   Prejudice  

Second Department
Carrier’s petition to permanently stay arbitration based on its disclaimer sent 7-weeks after receiving notice of accident, received 23-months after the accident, denied as it failed to show prejudice where it did not investigate claim when it first received notice and withheld disclaimer until it received request to consent to settlement 7-weeks later. Matter of Utica Natl. Ins. of Tex v Kassie    

Labor Law §240   Ladder   Question of Fact  

Second Department
Construction worker made out entitlement to summary judgment on his testimony he fell from defective ladder during renovation project but contractor raised issue of credibility by affidavit of plaintiff’s supervisor disputing plaintiff’s version of accident. Contractor’s motion for summary judgment denied where it failed to eliminate all questions of whether it was the contractor at the time of the accident. The Court does not give the details of the proofs. Alvarez v 2455 8 Ave, LLC.    

Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice   NYC  

Second Department
Petition for leave to serve late Notice of Claim or deem late Notice of Claim timely served nunc pro tunc denied where plaintiff failed to show NYC had actual knowledge of essential facts within 90-days or a reasonable time thereafter, provide a reasonable excuse for the delay, or present evidence or plausible argument NYC would not be prejudiced by delay. The Court does not give the details of the proofs. Matter of Brown v City of New York    

About Matt McMahon

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