February 2, 2021 | Vol. 247

MUST READS
(8 summaries)
NOTEWORTHY IF YOU MUST READ

Building Security   Intervening Cause   Foreseeability   Burden of Proof  

Second Department

Rejecting First Department’s holdings that targeted versus random attacks break the chain of causation in building security cases, the Second Department defined the relevant issue as whether a broken lock or other failure to provide minimal security was a “concurrent contributory factor” of the assault regardless of whether it was targeted or random. It held it “foreseeable that some form of criminal conduct could occur to the detriment of one or more of the residents” from a broken lock requiring defendant to prove the broken lock was not a concurrent cause. In opposing summary judgment plaintiff need not prove the broken lock was a cause by a preponderance of evidence, but only that an issue of fact exists. Scurry v New York City Hous. Auth.


Med Mal   Wrongful Death   Duty   Accepted Practice   Causation  

Second Department

Emergency room doctor and hospital failed to meet burden for summary judgment where co-defendant doctor testified he had a conversation about the patient with the ER doctor but could not remember what was said leaving a question of fact on an implied doctor/patient relationship and defendants failed to show ER doctor did not depart from accepted practice and was not a cause of decedent’s death.

Radiologist and group made out entitlement to summary judgment on proof of no departure from accepted practice in preparing preliminary abdominal/pelvic CT report and that it was not a cause of decedent’s death 2-days later from cardiorespiratory failure. Blau v Benodin


Labor Law §240   Labor Law §241   Labor Law §200   Control   Dangerous Condition   Create Condition   Notice  

Second Department

Excavation subcontractor failed to show plaintiff’s inspection of renovation work as president of company that hired subcontractor fell outside scope of Labor Law §§240(1) and 241(6) as plaintiff may be found to be an employee as defined by Labor Law §2(5), inspecting work on behalf of a GC is a protected activity, and a subcontractor may be liable under §§240 and 241 where it had control of worksite and was delegated duty to enforce safety protocols. Defendant granted summary judgment on §240 as retaining wall plaintiff stepped on, covered with oil leaked from excavator, was not physically significant height differential protected by §240. Defendant failed to show it did not create or have notice of dangerous condition necessary for dismissal of Labor Law §200 and negligence claims. Eliassian v G.F. Constr., Inc.


Premises Liab   Slip/Trip   Sidewalk   Prior Written Notice   § 7-210   NYC  

First Department

Argument that prior written notice requirement does not shield NYC as an abutting landowner under administrative code §7-210 ignored §7-210(d) language that section does not affect prior written notice requirements. NYC granted summary judgment where it did not have prior written notice. Bacourt v City of New York


Premises Liab   Slip/Trip   Snow/Ice   Storm in Progress  

Second Department

Building owner failed to meet burden for summary judgment where meteorological data showed only 1/10” of snow fell and stopped 2-hours before plaintiff’s fall. NYC administrative code §16-123(a) inapplicable where fall was on private walkway, not public sidewalk. Edmund-Hunter v Toussie


Premises Liab   Slip/Trip   Snow/Ice   Storm in Progress   Notice   Last Inspection  

First Department

Defendants failed to conclusively show storm in progress despite meteorological data showing a storm in progress where plaintiff testified it was not snowing when she fell, and defendants failed to show last time walkway was cleaned/inspected or salted, or that they did not have sufficient notice of condition. Evidence of general cleaning procedures did not raise issue of fact. Agosto v 1 Sadore Lane Realty Corp.


Premises Liab   Note of Issue   Untimely   Reasonable Excuse   Raised For First Time  

Second Department

Lower court abused its discretion in considering defendants’ argument of good cause for submitting motion for summary judgment beyond 120-day limit where defendants did not seek leave to file late motion and claim of good cause was offered for first time in reply. Rivera v Zouzias


Med Mal   HIPAA   Preexisting  

Second Department

Plaintiff’s broad allegations of physical injuries and loss of enjoyment of life put his entire medical condition in issue, including mental health issues, and he was required to provide authorizations for psychiatric records including previous psychiatric records necessary to show pre-existing injuries. Plaintiff’s motion for protective order denied. DiLorenzo v Toledano

NOTEWORTHY
(28 summaries)
MUST READS IF YOU MUST READ

Med Mal   Informed Consent   Late Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice  

Second Department

Petition to serve late Notice of Claim denied where petitioner first learned her phrenic nerve was removed during thymectomy 9-months after the surgery as an independent review of the surgical records would not give NYCHH actual knowledge of alleged malpractice or lack of informed consent, petitioner failed to give reasonable excuse for not seeking leave until 11-months after the claim arose, and did not meet initial burden of showing NYCHH would not be prejudiced. Matter of Brown v New York City Health & Hosps. Corp.


Premises Liab   Labor Law §240   Labor Law §241   Labor Law §200   Notice of Claim   Create Condition   Notice   NYC  

Second Department

Where Notice of Claim, Complaint, BP, and 50H hearing did not address claims plaintiff was injured while working on construction project under Labor Law §§240, 241, or 200, those claims were barred and NYC and NYCDEP granted summary judgment. Defendants denied summary judgment of negligence claim where they failed to show they did not create or have notice of temporary cinder block stairs plaintiff fell from while trying to gain access to roof. Washington v City of New York


Labor Law §240   Gravity Risk   Falling Object   Sole Cause   Comparative Fault  

First Department

Plaintiff granted summary judgment on Labor Law §240(1) on his testimony that metal jack toppled onto his head which was consistent with description in unsworn hospital record that he was hit by a pipe like structure and there was no evidence he was hit by a pipe from a nearby scaffold as claimed by defendants. Whether hit by jack he was using to lift steel beam or beam itself, adequate safety devices were not provided. Claims that plaintiff should have waited for boss and improperly installed jack would go only to comparative fault which is not a defense to §240. Martinez v Ghorta


Vacate Default   Discovery   Reasonable Excuse   Meritorious Action  

Second Department

Plaintiff’s motion to vacate default in opposing motions to preclude and strike Complaint for repeated failure to comply with discovery demands and so ordered stipulation to provide discovery denied where unsubstantiated claim of law office failure was insufficient to provide reasonable excuse for the default and meritorious action need not be addressed. Rizzo v Gmes, LLC


Amend Complaint   Statute of Limitations   Personal Juridiction  

First Department

Plaintiff granted leave to amend Summons and Complaint to add NY corporation on proof claim arose from same injury and corporation knew or should have known that absent pleading error it would have been included as defendant. Plaintiff’s failure to show corporation united in interest with named defendants for relation back doctrine not dispositive as discovery was not complete which weighed in favor of allowing amendment.

Defendants, foreign corporations registered in NY, granted summary judgment where plaintiff failed to show substantial relationship between accident and the corporations’ contacts with NY. Plaintiff’s attempt to base jurisdiction on piercing these defendants’ corporate veil failws without allegations they abused the corporate form. Weik v LSG Sky Chefs N. Am. Solutions, Inc.


Note of Issue   Strike Note of Issue   Serious Injury   IME/DME   Prejudice   Untimely  

Second Department

Lower court improvidently denied defendants’ motion to strike Note of Issue and compel IME/DME as the IME/DME had not been scheduled due to clerical error by the selected vendor, even absent defendants’ showing of prejudice, where plaintiff did not show she would be prejudiced. Andujar v Boyle

Comment: Lower court erred in denying plaintiff’s motion for summary judgment on serious injury as untimely where Certificate of Readiness filed with original Note of Issue that did not state discovery was complete or waived was a nullity and did not commence time to bring motion. Companion decision striking Note of Issue rendered question moot. Andujar v Boyle.


Labor Law §240   Ladder   Recalcitrant Worker   Sole Cause   Comparative Fault  

First Department

Worker’s testimony that closed A-frame ladder slipped from underneath him established prima facie entitlement to summary judgment on Labor Law §240(1). Using closed A-frame ladder does not make worker per se sole cause of accident especially where plaintiff gives a specific reason for using it in a closed position. Defendants failed to meet burden for recalcitrant worker without evidence plaintiff’s ‘normal and logical response’ should have been to use it in an open position, or that plaintiff was aware a taller ladder was available, that he was expected to use it, and did not use it for no good reason, or that he refused an instruction to use the taller ladder. Defendant’s contentions amount to comparative fault which is not a defense to §240. Morales v 2400 Ryer Ave. Realty, LLC


Labor Law §240   Labor Law §241   Labor Law §200   1-2 Family Exception   Industrial Code   Causation   Control   Indemnity  

Second Department

Worker who stepped onto planks on top of triangle brackets that collapsed without explanation granted summary judgment on Labor Law §240(1) and defendants failed to rebut presumption scaffold did not provide proper protection for work. Homeowners granted summary judgment of §§240(1) and 241(6) claims on 1-2 homeowner exception where single-family home was being constructed for son’s residential use and adjoining home being built by them for commercial purposes did not change result. Contractor failed to show that several industrial code provisions relied on by plaintiff were inapplicable or not sufficiently specific for a §241 predicate and were not a cause of plaintiff’s fall. However, §5.1(f) sets a general not specific safety standard and cannot be used as a predicate for §241. Labor Law and negligence causes of action dismissed where defendants did not have authority to control plaintiff’s work as was homeowners’ claims of common law contribution and indemnity which only applies where defendants supervised work. Lack of contract provision for indemnity required dismissal of homeowners’ contractual indemnity claim. Debennedetto v Chetrit


Labor Law §240   Labor Law §241   Ladder   Industrial Code   Survelliance Video   Admissibility  

First Department

Surveillance video and photographs showed ladder did not move prior to plaintiff’s fall, that it was secured to sidewalk bridge and scaffolding above and scaffolding midway up, had proper rubber feet, and was placed on dry ground wholly refuting plaintiff’s testimony that ladder moved, entitling defendant to summary judgment on Labor Law §§240(1) and 241(6). Industrial code provision relied on by plaintiff inapplicable where plaintiff could not show any violation. Video and photographs properly authenticated. Cordova v 653 Eleventh Ave. LLC.


Premises Liab   Slip/Trip   Sidewalk   § 7-210   De Minimus   Notice   Open/Obvious   Inherently Dangerous   Sole Cause   Comparative Fault  

First Department

Plaintiff granted summary judgment on his testimony that sidewalk flag was 3″ higher than adjoining sidewalk flag, considerably higher than.5″ height differential requiring remedial action under NYC administrative code §19-152(a)(4). NYC inspections 7-years before plaintiff’s fall identified multiple areas requiring remediation, including replacement of 685′ of sidewalk, which was never cured proving constructive if not actual notice, even if defendant did not receive the notices as claimed, as the condition existed long enough to be detected and cured and defendants admitted they routinely inspected the sidewalk and that the conditions were observable. Even if condition was open/obvious, that only relieved defendant of duty to provide warnings, not to provide a reasonably safe sidewalk under administrative code §7-210 and claim accident was caused by plaintiff rushing went to comparative fault which is not a bar to summary judgment. Tropper v Henry St. Settlement


Med Mal   Informed Consent   Battery  

Second Department

Surgeon’s submission of plaintiff’s testimony claiming surgeon removed cyst from her Bartholin area instead of leg abscess failed to eliminate issues of fact of whether surgeon operated on wrong area and caused plaintiff’s injuries. Boilerplate consent form that did not indicate procedure to be performed and contained only bare-bones handwritten notation “Left Bartholin/Left Inguinal Abscess” did not meet burden for summary judgment on informed consent. Issues of fact remained on whether operating on wrong side was a “bodily contact, made with intent, and offensive in nature” for battery claim. Preciado v Ravins


Med Mal   Accepted Practice   Causation   Expert Aff  

First Department

Anesthesiologist granted summary judgment on expert opinions that hemodynamic stability monitoring during craniotomy with vasoconstrictors to manage blood pressure were within accepted medical practice, plaintiff’s postsurgical loss of vision was not caused by ischemic event during surgery, and evidence showed optic nerve was not damaged by compromise blood flow. Plaintiff’s expert failed to raise issue without addressing lack of evidence of ischemic event or injury from loss of blood flow, and that injury was not consistent with ischemic event where vision loss was unilateral and short-lived. McGonnigal v Deiner


Venue  

Second Department

Lower court properly rejected referee’s report finding plaintiff resided in Kings County at commencement of action, finding instead he resided in Queens County based on documentary evidence showing he owned a home, paid property taxes, and was registered to vote and drive under Queens address rejecting plaintiff’s and mother’s testimony that he maintained a separate residence at mother’s house which was not supported by documentary evidence. Lower court improperly changed venue to Queens County based on location of accident and not Nassau County as requested by defendant as plaintiff lost right to choose venue by choosing improper venue and court was without power to move venue to Queens where neither party requested that relief. Campbell v New Way Life, Inc.


Serious Injury   ROM   Preexisting   Causation   No-Fault   Expert Aff  

First Department

Plaintiff raised issues in response to NYC’s showing of no serious injury by physiatrist’s report showing limited ROM causally related the accident on recent examination. Defendant never met burden on causation where its expert neurologist opined MRI findings shortly before subsequent accident showed herniations caused by initial accident with no evidence of preexisting condition despite x-ray showing degenerative changes after subsequent accident. Burden of causation, including perceived gaps in treatment and proof of contemporaneous treatment, never shifted to plaintiff. Plaintiff’s testimony, submitted by defendants, gave adequate explanation for not continuing treatment where no-fault benefits were cut off and plaintiff could not afford to continue treatment. Nwanji v City of New York


Negligent Supervision   Duty  

Second Department

School district denied summary judgment where documents it submitted raised issue as to whether student was adequately supervised, including given adequate instructions for the safe use of a zip line in the elementary school. A.C. v Brentwood Union Free Sch. Dist.


Construction Liab.   Slip/Trip   Unknown Cause   Create Condition   Open/Obvious   Inherently Dangerous  

Second Department

Plaintiff’s testimony that identified raised catch basin as cause of fall and identified it on photographs sufficiently specified cause to deny defendant’s motion claiming plaintiff could not identify cause of fall. A contractor who creates a dangerous condition on a public street by an affirmative act of negligence may be liable. Defendant failed to meet burden of showing it did not create condition or that it was open/obvious and not inherently dangerous. Nativo v Dragonetti Bros. Landscaping Nursery & Florist, Inc.


Premises Liab   Slip/Trip   Snow/Ice   Last Inspection  

Second Department

School failed to meet burden for summary judgment where first inspection on morning where plaintiff slipped on black ice in parking lot showed a puddle of water and evidence of second inspection 2-hours before plaintiff’s fall provided only general inspection procedures and not what was seen or not seen. Steffens v Sachem Cent. Sch. Dist.


MVA   Bus   There to be Seen   Survelliance Video  

First Department

MTA Bus Co. denied summary judgment on questions of fact of whether plaintiff opened car door while traffic was moving or stopped, was struck in the back and edge of car door, and whether bus driver should have seen plaintiff and open door before moving bus forward. Incomplete video footage failed to resolve these issues. Paulino v MTA Bus Co.


Labor Law §240   Labor Law §200   Industrial Code   Create Condition   Notice  

Second Department

Defendants denied summary judgment on Labor Law §241(6) predicated on industrial code §23-1.7(d) as basement where plaintiff slipped on wet paper was area where construction, excavation, or demolition was being performed placing it within protection of §241 but granted summary judgment of claim predicated on §23-1.7(e)(1) as open basement area was work area not passageway. Defendants failed to meet burden on §200 and negligence without establishing they did not create or have notice of the condition. Gancarz v Brooklyn Pier 1 Residential Owner, L.P.


Premises Liab   Slip/Trip   Wet Floor   Unknown Cause  

Second Department

Tenant’s testimony that she knew landing was slick because her feet quickly went out from underneath her, she could not stop her fall, and her back was wet after the fall, even if she did not see the condition before she fell, was sufficient to create a question of fact on cause of fall. McEnroe v 31-64 Cephalonia Realty, LLC


Construction Liab.   Notice   Indemnity   Expert Aff   NYC  

First Department

Lessor of sidewalk shed failed to meet burden for summary judgment without proof sidewalk shed was structurally sound and its principle’s testimony and plaintiff’s expert showed that lessor left shed up for 7-years knowing it had a 3-5 year useful life, and each plaintiff was struck by rotted boards. Questions remained on who was responsible to maintain shed. NYC’s contractual indemnity claim against lessor dismissed where there was no support in the record and NYC did not oppose the motion. Narvaez v City of New York


Med Mal   Motion to Dismiss   Statute of Limitations   Continuous Treatement  

First Department

Defendants granted summary judgment on statute of limitations of action brought more than 2.5 years after emergency room visit that showed lesion on liver on CT scan as subsequent ER visit 2-years 4-months later was not a course of treatment for continuous treatment doctrine and there was no evidence of an ongoing relationship. Plaintiff did not challenge dismissal against individual physician. Estrella v Montefiore Med. Ctr.


Premises Liab   Speculation   Raised For First Time   NYC  

Second Department

NYC granted summary judgment where teacher was injured climbing over fence with locked gate after leaving fire exit as a result of alarm while leaving school as NYC cannot be liable for DOE’s torts. Plaintiff’s claim that administrator intentionally tripped alarm as a prank was speculative where administrator was away from building when alarm sounded, and new theories of negligence raised for the first time in opposition were not considered. Sanchez v City of New York


Serious Injury   ROM   Degenerative   Causation   Expert Aff   Hearsay  

First Department

Defendants met burden for summary judgment on serious injury by orthopedist report showing normal ROM and injuries resolved, radiologist’s opinion that findings on MRI were degenerative, neurologist’s opinion that slightly limited ROM was subjective and not observed during spontaneous activities, and plaintiff’s deposition regarding usual activities before/after the accident. Medical records submitted by plaintiff showing some limited ROM 1-month after accident failed to show evidence of serious injury and affirmation of doctor who examined him 4-years after accident, reciting another doctor’s finding of limited ROM, was inadmissible hearsay. Failing to show treatment beyond 6-months after accident precluded a finding of permanency. Nadim v Gadi Inc.


Premises Liab   Slip/Trip   Sidewalk   § 7-210   Premature Motion   NYC  

First Department

NYC granted summary judgment of third-party complaint alleging defect plaintiff tripped on was within tree well where testimony and exhibits showed plaintiff tripped closer to storefront than curb and there were no trees on the street at time of the accident. Google map image from after accident showing tree on street and street cut permit for different area failed to raise issue of fact. Claim that motion was premature where parks department was not deposed rejected where 900-pages of documents and affidavits were exchanged. Medina-Diaz v 540 W. 145 LLC


Premises Liab   Slip/Trip   Snow/Ice   Create Condition   Causation   Expert Aff   Speculation   Conclusory  

First Department

Meteorological data and expert’s opinion established that icicles overhanging co-defendant’s property was not cause of plaintiff fall where temperature remained below freezing for several hours before plaintiff’s fall, plaintiff testified she did not see water dripping from icicles before accident, and owner of property where plaintiff fell testified icicles were not dripping an hour before the accident when her husband removed them and salted the area. Plaintiff’s experts’ opinions did not raise issues of fact as their failure to address below freezing temperature rendered them conclusory and speculative. Casellas v Proano


Premises Liab   Slip/Trip   Stairs   De Minimus   Notice   Last Inspection  

First Department

Building failed to meet burden of showing defect was trivial as a matter of law where plaintiff’s flip-flop got caught on gap of stairway riser and issues remained on constructive notice without testimony of last time stairs were inspected. Jury could infer from photographs that condition existed for sufficient time to be observed and corrected. Solomon v Diego Beekman Mut. Hous. Dev. Fund Corp.


Premises Liab   Slip/Trip   Sidewalk   Create Condition   Notice   Causation  

Second Department

Landlord failed to meet burden for summary judgment without proof she did not create condition, a twig on sidewalk and inadequate lighting, or that these were not cause of plaintiff’s fall. Wittman v Nespola

IF YOU MUST READ
(1 summaries)
MUST READS NOTEWORTHY

Premises Liab   Slip/Trip   Sidewalk   Unknown Cause   Speculation   NYC  

Second Department

Defendants granted summary judgment on plaintiff’s deposition which demonstrated he was unable to identify cause of his fall without speculation. The Court does not give the details of the proofs. Diaz v City of New York

About Matt McMahon

Civil trials and appeals since 1984
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