MVA Warnings Notice Causation Expert Aff Amend Complaint Pain/Suffering Statute of Limitations Prejudice NYC
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
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Premises Liab Slip/Trip Stairs Set Aside Verdict Directed Verdict Causation
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.
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Labor Law §240 Scaffold Untimely Question of Fact Sole Cause
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
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Motion to Dismiss Discovery CPLR § 3126 Appealable Order
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
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Med Mal Informed Consent Accepted Practice
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
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Compel Acceptance Default Judgment Reasonable Excuse Prejudice NYC
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
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Labor Law §240 Labor Law §241 Industrial Code
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
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Premises Liab Snow/Ice Sidewalk Storm in Progress 3rd Party Contractor Espinal Create Condition Expert Aff Admissibility Reasonable Excuse
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
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MVA Rear End Turning Vehicle Nonnegligent Explanation
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.
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MVA Causation NYC
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..
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MVIAC Motion to Dismiss Statute of Limitations Reasonable Excuse
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
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MVA Bus Discovery HIPAA NYC
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
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MVA Bus Emergency Doctrine
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.
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Premises Liab Slip/Trip Stairs Notice Question of Fact
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
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