February 16, 2021 | Vol. 249

MUST READS
(6 summaries)
NOTEWORTHY IF YOU MUST READ

Premises Liab   Dangerous Condition   Building Code  

Second Department

Building failed to make out prima facie entitlement to summary judgment on claim fire escape opening without handrails plaintiff fell through was not a dangerous condition because it did not violate any applicable codes or statutes, and they did not have constructive notice of the condition, as “a defendant may be held negligent for departing from generally accepted customs and practices even when the allegedly defective condition is in compliance with the relevant codes and ordinances” and it did not show that it was not a dangerous condition under common law duty to maintain property in a reasonably safe condition. As condition existed from time owner purchased building 6-years before accident, it failed to show lack of constructive notice. Dougherty v 359 Lewis Ave. Assoc., LLC


Untimely  

First Department

Defendants’ motion for summary judgment was timely filed within time set in PC order even though case was transferred to another judge with a shorter time for summary judgment motions. Time in PC order controlled absent a subsequent order or directive specifying a different time. Case remanded for decision on the merits. Lopez v Metropolitan Tr. Auth.


Med Mal   Set Aside Verdict   Accepted Practice   Causation   Admissibility   Preclusion  

Second Department

Plaintiff’s motion to set aside verdict finding first cardiologist did not depart from accepted practice and second cardiologist departed from accepted practice but was not a cause of decedent’s death granted to extent of setting aside verdict for second cardiologist where lower court erred in permitting evidence that CVS gave double dose of Digoxin and allowing second cardiologist to testify that the double dose predisposed decedent to arrhythmia that caused his death where CVS had previously been granted summary judgment, the “functional equivalent” of a trial finding the double dose was not a substantial factor in the death. Jury found second cardiologist departed from accepted practice by not referring decedent for stat mitral valve surgery consultation. Raineri v Lalani


Negligent Hiring   Negligent Supervision   Motion in Limine   Police   Special Duty   NYC  

Second Department

Motion to dismiss by NYC and police officers granted on finding that repeated statements by officers after 3-incidents where boyfriend violated an order of protection, that he would leave the premises, wouldn’t be coming back, and that plaintiff would be okay were vague assurances that plaintiff could not justifiably rely on as officers had not promised to arrest former boyfriend, establishing no special duty necessary to impose liability for failing to arrest former boyfriend or protect plaintiff. Former boyfriend threw plaintiff out of a third-floor window. Howell v City of New York


Venue  

First Department

Defendant’s motion for discretionary change of venue from Bronx to Westchester County granted as situs may provide a discretionary change of venue for convenience of witnesses and defendants, medical providers, and police officer all resided in Westchester and plaintiff relocated from Bronx to Nassau counties. Black v Fraken Bldrs., Inc.

Comment: A discretionary stay based on situs “still must be supported by a statement detailing the identity and availability of proposed witnesses, the nature and materiality of their anticipated testimony, and the manner in which they would be inconvenienced by the designated venue.” Krochta v On Time Delivery Serv., Inc.


Battery   Set Aside Verdict   Materially Deviates  

First Department

Verdict of $1.585 million for common law battery where defendant, plaintiff’s supervisor, struck her with telephone headset was not against weight of evidence, but award reduced to $750,000.00. Various employment discrimination awards totaling approximately $4.3 mil reduced to approximately $2.5 mil and remanded for new trial on punitive damages. Madrigal v Montefiore Med. Ctr.

Comment: This decision was handed down on 2/2/21.

NOTEWORTHY
(14 summaries)
MUST READS IF YOU MUST READ

MVA   Warnings   Notice   Causation   Expert Aff   Amend Complaint   Pain/Suffering   Statute of Limitations   Prejudice   NYC  

First Department

NYC denied summary judgment where plaintiff’s meteorological expert, photographs, and testimony of eye-witnesses raised questions of whether NYC plowed and salted highway sufficiently in 3-hours between snow stopping and accidents where black ice would have been present, whether they had constructive notice of condition, and whether they complied with orders for snow removal. NYC granted summary judgment of claim it should have posted warning signs and conducted traffic study as the Manual of Uniform Traffic Control Devices standards for placement of a sign are permissive not mandatory and there was no proof it was aware of a dangerous condition since there were no complaints in 5-years and only 2-accidents involving slippery pavement in 10-years. Defendants in the first accident denied summary judgment as questions remained of whether they were a cause of the subsequent accidents or merely provided the occasion for them.

NYC’s motion to amend Answer to include statute of limitations defense on decedent’s pain/suffering claim and to dismiss claim granted 6-years after original Answer where that plaintiff did not dispute the defense had merit and did not show prejudice. Disla v Biggs


Premises Liab   Slip/Trip   Stairs   Set Aside Verdict   Directed Verdict   Causation  

Second Department

Plaintiffs’ motion to set aside verdict as legally insufficient or against weight of evidence, and for directed verdict, denied where jury could find on fair interpretation of the evidence that defendants’ negligent maintenance of terrazzo tread on stair was not a proximate cause of the fall and there was a logical path for jury to reach its verdict of no causation where issues of liability and causation were not so inextricably interwoven that a finding of liability made it logically impossible to find no causation. Arroyo v Derfner Mgt., Inc.


Labor Law §240   Scaffold   Untimely   Question of Fact   Sole Cause  

First Department

Scaffolding company’s cross motion for summary judgment on Labor Law §240(1) denied as untimely where it was not a true cross motion as plaintiff did not move for against that defendant and it did not raise issues nearly identical to those raised by plaintiff. Plaintiff’s motion for summary judgment denied where issues remained on how accident occurred and whether climbing cross bracing instead of using scaffold stairs was sole proximate cause of accident. Crawford v 14 E. 11th St., LLC


Motion to Dismiss   Discovery   CPLR § 3126   Appealable Order  

Second Department

Plaintiff’s appeal from order granting unopposed motion to strike Complaint for failure to comply with discovery dismissed as no appeal lies from an order granted on default of appealing party. Rodriguez-Dominguez v Blackstone Contrs., LLC


Med Mal   Informed Consent   Accepted Practice  

Second Department

Dental practice, dentist that referred patient for wisdom tooth extraction, and dentist who extracted tooth granted summary judgment of malpractice claims on expert’s opinion they did not depart from accepted practice but denied summary judgment on informed consent. A signed consent form does not make out a prima facie case for summary judgment on informed consent and injured-plaintiff’s testimony that she was never told risks of the procedure, submitted by defendants, left questions of fact on informed consent as did initial dentist’s and office’s failure to show it did not participate in treatment after initial visit. Xiao Yan Ye v Din Lam


Compel Acceptance   Default Judgment   Reasonable Excuse   Prejudice   NYC  

Second Department

Motion by NYC and FDNY paramedics to compel acceptance of amended Answer served 1-year late granted under CPLR §3012(d), and plaintiff’s motion for default judgment denied, as NYC’s obligation to thoroughly investigate whether paramedics were acting within scope of their employment to determine if they were required to defend and indemnify provided a reasonable excuse for delay and there was no prejudice to the plaintiffs. Belches v City of New York


Labor Law §240   Labor Law §241   Industrial Code  

First Department

Project manager’s testimony that if he had seen gaps in ramp where wheel of A-frame cart got caught causing particle boards to fall on plaintiff, he would have required ramp to be rebuilt entitled plaintiff to partial summary judgment on Labor Law §241(6) based on industrial code §23-1.22(b)(3)(ramp planks). Both motions for summary judgment on Labor Law §240(1) denied where question remained of whether cumulative weight was capable of generating sufficient force over a short distance to fall within protection of §240. Bain v 50 W. Dev., LLC


Premises Liab   Snow/Ice   Sidewalk   Storm in Progress   3rd Party Contractor   Espinal   Create Condition   Expert Aff   Admissibility   Reasonable Excuse  

Second Department

Abutting landowner and tenant granted summary judgment where plaintiff slipped on snow/ice on expert opinion and climatological data showing storm in progress and that any snow removal efforts did not create a dangerous condition. Snow contractor granted summary judgment on proof contract for snow removal did not meet Espinal exceptions where it did not wholly displace landlord’s responsibility and it did not launch an instrumentality of harm. Plaintiff failed to offer reasonable excuse for not submitting an expert report in admissible form. Balagyozyan v Federal Realty Ltd. Partnership


MVA   Rear End   Turning Vehicle   Nonnegligent Explanation  

First Department

Owner/driver of car that was stopped for 1.5 minutes before its rear side bumper was struck by truck, pushing it into plaintiff’s vehicle, entitled to summary judgment and claim his bumper was in intersection was irrelevant. Plaintiff granted summary judgment against truck on same evidence as truck failed to provide a nonnegligent explanation. Driver’s testimony he did not know about the accident until a week later did not contradict plaintiff’s and codefendant’s testimony and testimony that there was no damage when he saw truck a week after accident did not raise issue of fact as he did not inspect truck on day of the accident. Dejorge v Metropolitan Foods, Inc.


MVA   Causation   NYC  

Second Department

Motion by NYC and electric company for summary judgment claiming nonfunctioning traffic signals at intersection where 2-car collision occurred was not cause of accident as driver approaching intersection was aware of nonfunctioning signal denied where other driver was not aware of nonfunctioning signal and went through dark intersection relying on green light at next intersection. Fox v Murgolo

Comment: In husband-driver’s consolidated case, order granting summary judgment on res judicata and collateral estoppel reversed based on above decision. Fox v Welsbach Elec. Corp..


MVIAC   Motion to Dismiss   Statute of Limitations   Reasonable Excuse  

First Department

MVIAC’s motion to dismiss claiming plaintiff was not a “qualified person” denied where suit was timely filed within 3-years of plaintiff turning 18 and error in identifying driver of hit/run vehicle was excusable given misidentification on police report and criminal charge against listed driver was dismissed, leaving identity of driver unknown. Aquero v Nelson


MVA   Bus   Discovery   HIPAA   NYC  

Second Department

Plaintiff’s motion to vacate JHO order to provide HIPAA authorizations for all medical treatment for 5-years prior to accident denied as plaintiff put her entire medical history in issue by “broad allegations of physical injuries, exacerbation of preexisting medical conditions, and loss of enjoyment of life” and lower court exercised its discretion in limiting disclosure to 5-years. Garland v City of New York


MVA   Bus   Emergency Doctrine  

First Department

NYCTA granted summary judgment of passenger’s sudden stop claim on proof pedestrian ignored flashing don’t walk sign and darted in front bus as it made a turn, establishing driver was responding to an emergency. Neary v New York City Tr. Auth.


Premises Liab   Slip/Trip   Stairs   Notice   Question of Fact  

First Department

Building manager’s testimony that photographs taken 1-month after accident showing bunched up and lifted step edge accurately depicted conditions day before and day of accident left questions of fact on constructive notice requiring denial of defendant’s motion for summary judgment. Tsotakos v TSE Group, LLC

IF YOU MUST READ
(2 summaries)
MUST READS NOTEWORTHY

Labor Law §240   Labor Law §241   Question of Fact  

First Department

Plaintiff’s inconsistent statements of how accident occurred did not require dismissal of his Labor Law §§240(1) and 241(6) claims. Defendants denied summary judgment where they presented questions of fact for a jury’s determination. The Court does not give the details of the proofs. Brielmeier v Legacy Yards Tenant, LLC


Premises Liab   Slip/Trip   Unknown Cause  

Second Department

Defendants granted summary judgment on proof injured-plaintiff could not identify cause of her fall on defendants’ exterior grounds. The Court does not give the details of the proofs. Carrasquillo v Dedoto

About Matt McMahon

Civil trials and appeals since 1984
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