February 19, 2019 | Vol. 146

MUST READS
(8 summaries)
NOTEWORTHY IF YOU MUST READ

Assault   Motion to Dismiss   Statute of Limitations   Estoppel  

Second Deptartment

Defendant’s motion to dismiss on statute of limitations for alleged sexual abuse granted where actions commenced beyond 3-years after CPLR 208 infancy toll. CPLR 213-c 5-year statute of limitations for sexual assault did not accrue at the end of infancy. CPLR 207(3) toll for absence from state didn’t apply because defendant could be served out of state. Plaintiffs failed to raise issue on estoppel where they did not show a representation by defendant causing them to delay filing past statute of limitations. MP v Davidsohn

Comment: This case was handed down 1-day before the Child Victims Act was signed into law which will make it viable again in 6-months. The Child Victims Act amends CPLR §208 extending the statute of limitations for specifically defined sexual abuse to the victim’s 55th birthday; adds section §214-g giving cases previously barred or dismissed on statute of limitations 1-year to start an action beginning 6 months after law became effective (2/14/19); and adds subsection (7) to §3403(a) giving a special preference. Other sections apply the extended statute of limitations including time to file a Notice of Claim against municipalities in GML §§50-e, 50-i, Court of Claims Act §10, and Education Law §3813.


Labor Law §240   Labor Law §241   Falling Object  

Second Deptartment

Removing and replacing rollup gate was a “repair” entitling plaintiff to Labor Law §240(1) protection where differential block and chain fell on plaintiff’s head. Summary judgment appropriate on §240(1) whether it was inadequately secured or slipped from coworker’s hands. Defendant granted summary judgment on Labor Law §241(6) because under that section the work must be performed in the context of construction or demolition. Barrios v 19-19 24th Ave. Co., LLC


Med Mal   CPLR § 3126   Willful/Contumacious   Reasonable Excuse  

First

Finding the lower court improvidently exercised its discretion in dismissing the action for failure to comply with discovery, the First Department noted that “warnings in prior court orders that the deposition was not to be adjourned is not notice to plaintiffs that dismissal of the complaint may result should it not go forward.” Defendants failed to show that plaintiff’s failure to go forward with deposition of 1 doctor was willful, contumacious, or in bad faith and plaintiff’s excuse that attorney was in MVA accident 2-weeks before scheduled deposition was reasonable. Michaluk v New York City Health & Hosps. Corp.


Labor Law §240   Labor Law §241   Labor Law §200   Industrial Code   Dangerous Condition  

Second Deptartment

Whether inspection work falls within Labor Law §§240(1) and 241(6) is determined on a case-by-case basis. Environmental technician responsible for making sure of proper removal of asbestos was a covered worker because ‘his inspections were essential, ongoing, and more than mere observation.’ Plaintiff raised issue of fact or Labor Law §§240(1) and 200 and negligence claims on proof that defendant contractor placed milk crate under window as means of access to scaffold which was used by their own employees and plaintiff. Labor Law §200 and negligence claims were for dangerous premises condition and not means and methods of work.

Defendant granted summary judgment on Labor Law §241(6) on industrial code §23-1.7(f)(vertical passage) on proof that plaintiff could have accessed floor by using building’s stairs establishing no violation of industrial code. Channer v ABAX Inc.


Serious Injury   Preexisting   Degenerative   Expert Aff  

First

Plaintiff raised issue of fact on serious injury under permanent consequential and significant limitation categories for lumbar spine where treating doctor, neurosurgeon, and chiropractor opined that her pre-existing, age related spinal degeneration was aggravated by, and her symptoms and need for treatment including surgery was caused by the motor vehicle accident based on fact that she was asymptomatic before the accident. “An explanation that the plaintiff was previously asymptomatic, and the accident aggravated an underlying preexisting condition, rendering the plaintiff symptomatic, is sufficient to raise an issue of fact as to causation.” She adequately explained the 15-month gap in treatment before her surgery where her treating physician noted that she was symptomatic at the time she stopped treatment and that she would not receive further benefit from physical therapy. Ortiz v Boamah


MVA   Motion to Dismiss   Graves Amendment  

Second Deptartment

Vehicle owners’ motion to dismiss on Graves amendment granted on proof that they were engaged in business of leasing motor vehicles. Defendants showed that Plaintiffs claim of improper maintenance was not a fact that all, necessary on a motion to dismiss with documentary proof that is not converted to a motion for summary judgment, on proof that they never “possess, inspect, repair, maintain, or service” the leased vehicles. Cukoviq v Iftikhar


Assumption of Risk   Expert Aff  

Second Deptartment

Snow tubing park denied summary judgment on assumption of risk where plaintiff raised issue regarding whether unanticipated premature uncoupling of tube she was on while being towed to top of hill was an unanticipated risk not inherent in snow tubing and plaintiff’s expert raised an issue of whether tubing park design contributed to the dangerous condition caused by defendant’s employees’ actions. Jamjyan v West Mtn. Ski Club, Inc.


MVA   Serious Injury   Turning Vehicle   Comparative Fault   Graves Amendment  

Second Deptartment

Motorcycle passenger granted summary judgment against van owner and driver who attempted left turn in front of motorcycle. Innocent passenger’s entitlement to summary judgment is not impaired by potential comparative fault. Summary judgment denied against van lessor where questions of fact remained on maintenance under Graves Amendment. Serious injury defenses dismissed as not applicable to a motorcycle. Jung v Glover

NOTEWORTHY
(19 summaries)
MUST READS IF YOU MUST READ

Labor Law §241   Slip/Trip   Snow/Ice   Set Aside Verdict   Directed Verdict  

Second Deptartment

Defendant’s motion to set aside jury verdict as based on legally insufficient evidence and for judgment as a matter of law based on foreman’s testimony, read in evidence, that there was ice on the floor plaintiff fell on but that plaintiff fell at a different location denied where there was a rational path, including reasonable inferences, for jury to conclude ice formed on an unheated floor on a very cold day establishing that someone in the chain of construction was negligent. Lower court had granted defendant’s motion to the extent of ordering a new trial based on erroneous jury instructions. Bocanegra v Chest Realty Corp.


Premises Liab   Slip/Trip   Wet Floor   3rd Party Contractor   Espinal   Create Condition   Notice  

Second Deptartment

Third-party contractor failed to eliminate all questions of fact on whether it launched an instrumentality of harm where evidence showed it was responsible for cleaning floor outside bathroom where plaintiff slipped, and plaintiff testified that there was no water on the floor when she entered the restroom but that it was wet and slippery when she exited and saw a bucket and mop in the area with no wet floor signs. Plaintiff was not required to show defendant had notice of condition where claim was that it created the condition. Bruce v Edgewater Indus. Park, LLC


Premises Liab   § 7-210   Duty   De Minimus   Indemnity  

First

Property owner’s nondelegable duty under administrative code §720 and tenant’s duty arising from its special use of cellar door located on sidewalk that plaintiff tripped on precluded summary judgment for defendants where both may be liable as joint tortfeasors. Conflicting evidence of height differential at edge of cellar door frame, heavy traffic obstructing plaintiff’s view of cellar door, and photographs showing a sharp edge raised issues of fact on whether it presented a tripping hazard. Tenant not entitled to summary judgment on indemnification claim where tenant may have been negligent. LaRosa v Corner Locations, II, L.P.


Premises Liab   § 7-210   1-2 Family Exception   Create Condition   Speculation  

Second Deptartment

Homeowner granted summary judgment on proof that she fit within 1-3 family owner occupied exception to administrative code §720 and did not create the condition or make special use of sidewalk. Cosme v City of New York


Premises Liab   Set Aside Verdict  

Second Deptartment

Judgment on defense verdict affirmed where verdict was reached on a fair interpretation of the evidence, including fact that plaintiff did not produce her brother whom she testified was present when radiator sprayed hot water on her claiming that he was in the Caribbean. Defense counsel’s improper comment that plaintiff should’ve produced the radiator was harmless given strong evidence opposing plaintiff’s theory that radiator was not properly repaired. Defense counsel’s comments regarding brother’s absence were not preserved for appeal without objection at trial. Baynes v Maple 3, LLC


Labor Law §240   Control  

First

Adjoining property owners where tree removal worker fell from terrace granted summary judgment on Labor Law §240(1) on proof that worker was not hired and did not work for adjoining property owners who did not give permission for workers to go on terrace, specifically instructed neighbor that their contractors could not use the terrace, and that they did not control means or methods of work. Penza v Quoohs


Default Judgment   Compel Acceptance   Reasonable Excuse   Meritorious Defense  

Second Deptartment

Plaintiff’s motion for default judgment granted and defendant’s cross-motion to compel acceptance of Answer denied where defendant failed to offer reasonable excuse for its default regardless of whether it had a meritorious defense. Vega v West Nostrand Realty, LLC


MVA   Emergency Doctrine   Speculation   Question of Fact  

Second Deptartment

Owner and driver of ambulette plaintiff health aide was a passenger in granted summary judgment on depositions and photographs establishing that codefendants’ car crossed into their lane leaving moving moving defendant driver little time to react based on emergency not of his own creation. Plaintiff’s speculation that moving defendant may not have taken avoidance measures insufficient to raise question of fact. Francis v Ride


MVA   Bus   Causation   Sole Cause  

First

NYCTA and bus driver granted summary judgment on proof that car traveling 40-50 mph crossed double yellow line while the driver was looking at his phone and struck bus which could not switch lanes because of parked cars. Plaintiff’s testimony that bus was driving 40-50 mph did not raise issue of fact since bus speed was not a factor in the accident. De La Rosa v New York City Tr. Auth.


Labor Law §240   Labor Law §241   Ladder   Industrial Code  

First

Summary judgment for defendant on Labor Law §240(1) where plaintiff lost his footing on secured, nondefective ladder that did not malfunction and on §241(6) where ladder was properly placed under industrial code §23-1.21(b)(4)(i)(general ladder requirements). Mitchell v City of New York


Duty   Question of Fact  

Second Deptartment

Using buoys to create a channel in navigable waters, Town assumed a duty under maritime law to reasonably maintain the buoys and Town failed to eliminate all questions of fact on its negligence despite evidence that boat driver was at least partly responsible for alliding (crashing into a stationary object) into goat island. Sugamele v Town of Hempstead


Premises Liab   Slip/Trip   Snow/Ice   Create Condition   Notice  

Second Deptartment

Landowner granted summary judgment on plaintiff’s testimony that she walked on slate landing 15 minutes before accident which did not have ice but slipped on ice when she returned, establishing that owner did not create or have notice of condition. Mann v Zougras


Premises Liab   Ladder   Create Condition   Notice  

First

Church granted summary judgment where volunteer fell from stepladder decorating for Easter on proof of no complaints about stepladder, plaintiff testified it appeared sturdy when she first took it, and plaintiff’s expert opined that defect was latent establishing that defendant did not have notice of the condition. Filarakos v St. John the Baptist Greek Orthodox Church


Med Mal   CPLR §306-b   Motion to Dismiss   Personal Juridiction   Statute of Limitations   Prejudice  

Second Deptartment

Lower court providently exercised discretion in granting plaintiff’s motion to extend time to serve Summons/Complaint and denied defendant’s motion to dismiss based on lack of jurisdiction where plaintiff made attempt to serve within 120-days and promptly moved to extend time after defendant answered, the statute of limitations had expired, and there was no demonstrable prejudice to defendant. Darko v Guerrino


Discovery  

First

Lower court improvidently exercised discretion in ordering plaintiff to respond to interrogatories even though prior court had denied plaintiff a protective order seeking video deposition where plaintiff now resided in India and was unable to come to New York for medical and financial reasons. Kuriakose v Motor Veh. Acc. Indem. Corp.


Premises Liab   Open/Obvious   Inherently Dangerous  

Second Deptartment

Defendant granted summary judgment on proof that fire department key lock box plaintiff hit his head on after leaving a Wendy’s was open/obvious and not inherently dangerous. The court does not give the details of the proofs. Erario v Wen Shirley, LLC


Premises Liab   Slip/Trip   Open/Obvious   Inherently Dangerous   Spoliation  

Second Deptartment

Ikea granted summary judgment on proof that rug plaintiff slipped on was open/obvious and not inherently dangerous. Plaintiff did not show that defendant failed to preserve critical evidence after notice it might be needed for evidence. Sprott v IKEA N.Y., LLC


Serious Injury   ROM   Expert Aff   Res Judicata  

Second Deptartment

Driver of car plaintiff was riding in granted summary judgment on serious injury based on competent medical evidence. Plaintiff’s treating doctor’s affidavit did not raise an issue of fact on ROM where it did not identify objective test to measure ROM. Owner and driver of other car subsequently granted summary judgment on serious injury under res judicata. Skuret v Yoyo Cab Corp.


Serious Injury   BP  

Second Deptartment

By not addressing plaintiff’s claims of serious injury under the 90/180-day category alleged in the BP, defendants failed to meet their initial burden of proof for summary judgment. Chang Sun Ahn v Hyo Chung

IF YOU MUST READ
(1 summaries)
MUST READS NOTEWORTHY

Emotional Harm   Motion to Dismiss  

Second Deptartment

Neighbor’s shouting obscenities and racial slurs at plaintiff did not rise to level of extreme or outrageous conduct and plaintiff failed to plead facts demonstrating a guarantee of genuineness of emotional harm. Ajie Chen v Deliso

About Matt McMahon

Civil trials and appeals since 1984
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