| MUST READS (4 summaries) | |||
| NOTEWORTHY | IF YOU MUST READ | ||
 Jury could reach defense verdict on conflicting testimony of whether hospital bed that slid out from underneath patient was or was not locked in position but judgment on defense verdict reversed and remanded for a new trial where trial court improvidently allowed defense counsel to cross-examine plaintiff about a lawsuit alleging he failed to pay for a medical procedure as a lawsuit has no probative value on credibility without a finding against him and defense counsel’s reference to an allegation plaintiff took $200,000 of insurance money that was to be paid to his medical providers and referring to “someone” taking $250,000 that didn’t belong to him after being precluded from questioning plaintiff on whether the allegation he took $200,000 was true and prejudiced plaintiff who was the sole witness. The lower court should have granted plaintiff’s motion for a mistrial. Drayton v Putnam Hosp. Ctr. ✉ |
| Nassau County’s motion to dismiss Child Victims Act Amended Complaint, which substituted it for Suffolk County pursuant to an order granting plaintiff’s motion to substitute it in place of a John Doe in the original Complaint that identified Suffolk County as the entity that had custody or control of her when she was sexually abused by her foster father in 1975-76 without prejudice to a statute of limitations defense, granted where the Complaint was amended after the statute of limitations and plaintiff failed to show due diligence in attempting to identify Nassau County as a defendant under CPLR §1024. Her counsel made no effort to follow up on a letter request for her Suffolk County foster care records for 8-months. In addition, allegations in the original complaint that Suffolk County was her legal guardian responsible for placing her in foster care were insufficient to advise Nassau County that it was an intended subject of the lawsuit. J.V. v Suffolk County ✉ |
 Plaintiff’s motion for summary judgment for trip and fall on sidewalk crack denied. Google Map images admissible under CPLR §4532-b where properly dated and noticed with intent to use them within 30-days of trial, surveillance video admissible on plaintiff’s attestation it fairly and accurately depicted accident, and YouTube videos admissible on their creators’ affidavits they fairly and accurately depicted the subject location and were complete, accurate and unaltered but insufficient to eliminate questions of whether abutting landowner and tenant created or had actual or constructive notice of the defective condition as the videos where not sharp enough to show a hazardous condition, the visible crack was not readily apparent on the Google images from 2-years before the accident, and plaintiff did not submit photos depicting the crack between then and his accident. Video of loose segment of cement inadmissible despite plaintiff’s statement it fairly and accurately depicted the defective condition without showing plaintiff was present when it was taken or an affidavit from its creator that it was complete, accurate, and unaltered. Plaintiff’s expert failed to show constructive notice without inspecting the scene, relying solely on the photo and videos. Chiu Shing Tsang v Ng ✉ |
| Lower court dismissed petition seeking injunctive relief to prevent hospital from discharging petitioner after a hearing on an order to show cause but improvidently dismissed the entire petition which sought recovery for medical malpractice as improperly brought by a proceeding instead of converting the order to show cause to the Summons and the petition to a Complaint for malpractice as under “’CPLR 103(c), a proceeding should not be dismissed ‘solely because it is not brought in the proper form,’ and the court has the power to convert a proceeding into the proper form.’” Matter of Robinson v NYU Langone Hosps. ✉ |
| NOTEWORTHY (15 summaries) | |||
| MUST READS | IF YOU MUST READ | ||
| Plaintiff’s motion to vacate conditional order striking his Complaint and subsequent order striking the Complaint for failure to provide discovery, both entered on default, providently denied where vague and unsubstantiated claim of calendaring errors was not unsupported by a detailed and credible explanation to show a reasonable excuse for delay by law office failure. Subsequent CPLR §5015(a)(1) motion to vacate denial of plaintiff’s first motion to vacate denied as procedurally improper where not entered on default and plaintiff was not entitled to a second motion on the same grounds. Adams v 161 Ct. St., LLC ✉ |
| Plaintiff’s motion to vacate dismissal of Complaint after he failed to appear for an IME/DME under conditional order of dismissal providently denied where plaintiff failed to provide a reasonable excuse for his failure to comply with the conditional order. Ewans v Eklecco ✉ |
| NYCHHC granted summary judgment dismissing plaintiff’s action for fall while being escorted to a bathroom in the hospital by a nurse and aide after she had received anesthesia as untimely where commenced more than 1-year and 90-days after the date of her fall. Allegations of malpractice and lack of informed consent in the Complaint, BP, and plaintiff’s 50H testimony were new theories not included in the Notice of Claim and, unlike descriptions of location or injuries, cannot be used to amend the theory of liability in the Notice of Claim. Therefore, the doctrine of continuous treatment was inapplicable to toll the statute of limitations. Barrett v New York Presbyt. Hosp.-N.Y. Weill ✉ |
| Owners of condo unit being renovated granted summary judgment dismissing worker’s Labor Law §§ 240(1), 241 (6), and 200 claims for being hit on the head by Z-clips dropped by a coworker from a ladder under the 1-2 family exceptions to §240 & 241 on proof they owned 1-apartment and did not direct or control the work and proof they did not direct or control plaintiff’s work met burden for summary judgment dismissing §200 and negligence claims. Plaintiff’s hearsay statement that homeowner gave instructions to worker’s supervisor inadmissible. Condo defendants granted summary judgment on proof the work was not on common elements of the building and they did not have authority to supervise or control plaintiff’s work in order for them to be an agent of the unit owner. Jagdeo v Borden House Condominium ✉ |
| Worker tasked with chipping cement from cement encased vertical metal columns granted summary judgment against NYC which owned the building and FIT which occupied it where he was struck by a 200-300 pound piece of cement that fell from a column on proof he was not engaged in cement removal at the time and that shoring or bracing the columns would not have made the work impossible. Defendants failed to show adequate safety measures would have prevented plaintiff from completing his assigned task. Questions of fact remained of whether construction manager was the statutory agent of FIT on testimony it could stop work to enforce safety practices and that it was the ’eyes and ears’ of FIT during the project and on demolition subcontractor’s proof the demolition work could have destabilized the cement encasements. Mannino v Waldorf Exteriors, LLC ✉ |
| NYCHA’s motion for summary judgment dismissing plaintiff’s Labor Law §§ 240(1) and 200 claims for injuries when coworker slammed a 2’x 1’ slab of concrete on his hand as they were moving concrete slabs into an excavator bucket from different heights denied as premature where no written discovery or EBTs had been conducted and plaintiff showed discovery on relevant issues necessary to oppose the motion was exclusively within NYCHA’s possession. NYCHA granted summary judgment dismissing Labor Law §241(6) claim where alleged industrial codes were either inapplicable or insufficiently specific for a §241 predicate. Magistro v New York City Hous. Auth. ✉ |
| Plaintiff granted summary judgment on Labor Law §240(1) on his uncontested testimony his foot slipped on the top rung of a ladder that was wet, lacked slip protection, and had no tie off point that and he was not required to wear fall protection equipment in violation of §240. Comparative fault defense dismissed as inapplicable to §240. Saula v Harlem Urban Dev. Corp. ✉ |
| Church and its snow removal contractor failed to meet burden for summary judgment dismissing plaintiff’s claim for fall on ice in parking lot where plaintiff’s and pastor’s testimony left questions of whether the ice was from a storm in progress or from a storm 2-days earlier and the church failed to show it lacked constructive notice of the defect. Contractor’s argument church’s third-party contractual indemnification should be dismissed where hold harmless clause could not be enforced because it did not have an end date rejected as there was no dispute the contractor continued to provide services at the time of the accident. Contractor raised issues in opposition to church’s motion for summary judgment on contractual indemnity on whether the ice formed after they performed their services 2-days before the accident and did not have notice of the condition. Venza v Catholic Charities of the Diocese of Rockville Ctr. ✉ |
| Building owners granted summary judgment dismissing plaintiff’s claim for trip and fall on elevator she claimed misleveled 5”-6” where coworker with her at the time testified she did not see plaintiff fall or notice any misleveling and their employees’ testimony establishing they had not received any complaints or notice of prior accidents, their superintendent inspected the elevator daily stopping at each floor to check for misleveling, and the only violation for misleveling was 2-years before the accident and was resolved, establishing the elevator was not in a dangerous condition and they had no actual or constructive notice of misleveling. Elevator company met burden of showing it did not have notice of a misleveling condition and that it performed regular necessary maintenance to prevent such condition which included a monthly preventative maintenance inspection that included checking the leveling at each floor. Plaintiff’s expert failed to raise an issue in opposition by speculative opinion not supported by the record. Res ipsa loquitur did not eliminate plaintiff’s burden of showing notice where the accident could’ve happened through his misstep. Walsh v West Gramercy Assoc. LLC ✉ |
| Elevator company failed to meet burden for summary judgment dismissing building workers’ claim for fall from a ladder in the boiler room where its principal’s affidavit failed to address plaintiff’s claim he fell on the specific date and emails attached to its motion established it performed work in the boiler room before that date. Plaintiff established motion was premature on proof invoices, work orders, and proposals for work done before the date of the accident were necessary to oppose the motion. Konstantinovic v Finch Apt. Corp. ✉ |
| Landlord and tenant failed to meet burden for summary judgment by showing parking lot pothole that caused plaintiff to trip and fall was trivial where they submitted no measurements of the hole, plaintiff testified it was 5”x18”, and it could not be determined whether it was trivial by attached photographs. Defendants failed to eliminate questions on constructive notice without proof of the last time the area was inspected and failed to show it was an out of possession owner with no duty to maintain the parking lot under the lease. Rubin v Sivan Merrick, LLC ✉ |
| Towing company granted summary judgment dismissing negligence and negligent hiring claims for its tow-truck-driver’s assault of the injured-plaintiff where it submitted evidentiary proof that it did not have notice of the driver’s propensity to commit an assault and plaintiffs failed to raise an issue of fact on notice. Defendant failed to meet burden for dismissal of respondeat superior claim as its submissions raised issues of whether its driver was “acting solely for personal motives unrelated to the furtherance of the employer’s business.” Shah v Runway Towing Corp. ✉ |
| Defendants met burden for summary judgment on serious injury and causation by opinions of their radiologist that positive CT and MRI images showed only degenerative and preexisting conditions, their neurologist who found some limited ROM in 1-plane of plaintiff’s cervical spine but noted plaintiff’s orthopedic surgeon found normal or near-normal ROM in the months following the accident, and that plaintiff’s complaints and need for surgery were caused by the preexisting degenerative conditions. Plaintiffs’ unaffirmed medical records showing degenerative conditions and normal ROM failed to rebut defendants’ prima facie showing of no serious injury and his expert orthopedist’s finding of limited ROM found 6-years later was too remote to raise an issue and was conclusory without explaining how the degenerative conditions were not the cause of his complaints and surgery. Lack of causation made 90/180-day category moot. Krmic v Corrie ✉ |
| Tractor-trailer driver’s affidavit stating plaintiff’s vehicle suddenly cut in front of him from an on-ramp onto the expressway during inclement weather raised a nonnegligent explanation in opposition to plaintiff’s prima facie showing of entitlement to summary judgment on his affidavit that he was slowing in traffic on the expressway when rear-ended by the tractor-trailer. Madera v Charles Hukrston Truck, Inc. ✉ |
| Plaintiffs, bus-passengers, raised issues of fact in opposition to bus driver’s testimony that codefendant’s vehicle merged into moving traffic when it was unsafe to do so by their testimony that the accident was caused when the bus veered into the center lane. Leach v GVC II Inc. ✉ |
| IF YOU MUST READ (0 summaries) | |||
| MUST READS | NOTEWORTHY | ||