February 21, 2017 | Vol. 42

MUST READS
(7 summaries)

Fallen Tree   CPLR Art. 16   Court of Claims   Subject Jurisdiction  

Court of Appeals

In a case involving a tree branch near a highway falling on a car, the Court clarifies the question of whether a jury can apportion fault against the State under CPLR 1601(1). The parties agreed in the Supreme Court action that evidence of the State’s negligence could be put to the jury but disagreed as to whether there could be a jury charge and line on the verdict sheet for apportionment of the State’s negligence. Pointing to the difference between “actions” and “claims” in CPLR 1601(1) requested by the New York Attorney General when it was enacted, as well as the portion of the statute prohibiting apportionment for defendants over whom jurisdiction cannot be obtained, the Court made it clear that there can be no apportionment of fault of the State’s negligence in an “action” outside of the Court of Claims. An aggrieved defendant who believes that it has been unfairly apportioned fault can seek contribution from the State in the Court of Claims. There was 1 dissent. Carol Artibee v. Home Place Corporation


Premises Liab   Stairs   Spoliation   Strike Answer  

First

The lower court’s grant of plaintiff’s motion for sanctions for spoliation to the extent of precluding defendant from putting forth evidence of the stairs condition was modified by the Appellate Division to strike the defendants’ Answers entirely where the plaintiff had served a preservation letter, commenced the action, obtained a PC order requiring an inspection of the stairs, and the stairs were destroyed days before the inspection. The Appellate Division considered it an intentional destruction of key evidence necessary for the plaintiff to prove his case as there were no known photographs of the stairs. Fact that the defendant was the tenant and not owner of the building did not change the result as defendant’s CEO was one of the owners of the building. Rookwood v Busy B


Labor Law §241   Agent  

First

Property owner and construction manager denied summary judgment where plaintiff was injured when he tripped and fell on debris at an off-site location rented by a subcontractor solely for fabrication of rebar to be used at the property owner’s construction site, finding that the plaintiff was engaged in construction as defined in Labor Law §241(6). The court distinguished this situation from prior cases which found that fabrication of items being done at an employer’s own facility would not fall within the ambit of Labor Law §241(6). Language of the contracts showed that the construction manager, explicitly an agent of the owner, had the right to designate temporary worksites and that this worksite was neither rented by the employer nor used for any of the employer’s work other than for the property owner’s construction. There was 1 dissent. Gerrish v 56 Leonard LLC


Premises Liab   Slip/Trip   Sidewalk   § 7-210  

Second Deptartment

Owners of 2 family house granted summary judgment for trip and fall on sidewalk even though 1 of the owners used a portion of the basement to receive mail out of season for a camp he was director of in upstate New York. Defendants did not claim the office space as a tax deduction and did not use the office space with any regularity. Koronkevich v Dembitzer


Med Mal   Strike Answer   Willful/Contumacious   Discovery   CPLR § 3126  

Second Deptartment

The Appellate Division reversed the lower court’s grant of defendant’s motion to strike the defendants, doctor and hospital’s Answers only to the extent of granting monetary sanctions and struck their Answers in all respects for willful and contumacious failure to properly respond to numerous discovery orders and giving incorrect responses regarding employees and forms. The lower court providently exercised its discretion in denying plaintiff’s motion to enter default judgment against another defendant which was voluntarily discontinued based on defense attorney’s affirmation that the defendant did not have medical malpractice insurance and did not engage in medical practice, which was later shown to be false, as there was a minimal delay, no showing of prejudice to plaintiff, and no showing of willfulness. Lucas v Stam


Med Mal   Notice of Claim   Judicial Admissions   Estoppel  

First

HHC and doctor employees granted summary judgment for failure to properly serve a Notice of Claim. Notice of Claim was served on NYC and HHC through the Comptroller’s office. HHC is a separate corporation and must be served separately. HHC’s denial that it was served with the Notice of Claim in the Answer eliminated claims of equitable estoppel and the court was powerless to grant leave to serve a late Notice of Claim since the statute of limitations had run. Two doctors who were not HHC employees were denied summary judgment even though the complaint alleged that they were HHC employees. Since the allegations were upon information and belief, they did not constitute formal judicial admissions. Young v New York City Health & Hosps. Corp.


MVA   IME/DME  

Second Deptartment

Defendant moved for a protective order after plaintiff objected to defendant’s notice of physical exam which prohibited a non-attorney in the room during the examination. The Appellate Division reversed the lower court’s grant of the protective order finding that the defendant failed to meet its burden of proof of showing that the plaintiff’s representative would improperly interfere with the examination. Henderson v Ross

NOTEWORTHY
(36 summaries)

Assault   Governmental Immunity   Governmental Function   Special Duty  

Court of Appeals

Plaintiff was sexually assaulted by a BOCES worker who had been referred by the County to BOCES as part of a “welfare to work” program while knowing that the worker was a level 3 sex offender contray to its agreement with BOCES which expressly stated that they would not refer potential workers with criminal records. In determining whether a municipality is engaged in a governmental or proprietary function it is the specific act complained of which is determinative. The Court found that referring potential workers under a welfare to work program was a purely governmental function entitling the County to absolute immunity unless it had taken on a special duty to the plaintiff. All 4 criteria for finding a special duty (promise, knowledge of potential harm, direct contact with injured party, and justifiable reliance) must be met. Even if the first 2 criteria could be met, there was no direct contact between the County and the plaintiff and without it there could be no justifiable reliance by the plaintiff. Tara N.P. (Anonymous) v. Western Suffolk Board of Cooperative Educational Services


MVA   Emergency Doctrine  

Second Deptartment

Defendants granted summary judgment on testimony, medical records, and medical opinion that sudden stroke causing defendant driver to cross over into plaintiff’s oncoming lane was an unforeseen sudden medical emergency. Van De Merlen v Karpf


Premises Liab   Slip/Trip   De Minimus   Set Aside Verdict  

First

$1,032,532.65 verdict in favor of plaintiff upheld where evidence showed that the wooden board used to cover the edge of the train platform had a 12” defect with an edge that posed a tripping hazard sufficient to catch plaintiff’s right foot, causing his left leg to get stuck between the platform and the train as he attempted to board the train on a crowded platform during rush hour. Under the circumstances, it is unlikely that the board or the defect would have been noticeable and there was a rational basis for the jury’s verdict. Flores v New York City Tr. Auth.


Premises Liab   Late Notice of Claim   Amend Notice of Claim  

Second Deptartment

Plaintiff’s original Notice of Claim stated the time and date as 11 PM on 3/2/12, and her BP stated it as 12 AM on 3/2/12. NYCTA moved to dismiss for failure to serve a timely Notice of Claim and plaintiff cross moved to amend the Notice of Claim to show that the correct date and time was just after midnight on 3/3/12. NYCTA’s motion was denied and plaintiff’s cross-motion granted based on aided accident report and hospital records showing the March 3, 2012 date. The Notice of Claim requirement is to be used as a shield to protect municipalities, not as a sword to dismiss valid claims. The short time difference in the Notice of Claim and the actual time and date of the accident was not put forth in bad faith and should not be a ground for dismissing the claim. Bowers v City of New York


Labor Law §240   Causation   Sole Cause  

Second Deptartment

Plaintiff denied summary judgment where he failed to show that his fall from a ladder was caused by a defect in the ladder or that it was not properly secured. Proof that a person fell from a ladder, without more, is insufficient for summary judgment. Plaintiff’s own testimony submitted on his motion raised issues as to how the accident occurred, whether the ladder was adequately secured, and whether he was the sole cause of an accident. One defendant failed to eliminate all triable issues on Labor Law §200 and common-law negligence claims by failing to show that it did not have control of the worksite. Shaughnessy v Huntington Hosp. Assn.


Premises Liab   Snow/Ice   Slip/Trip   IME/DME  

First

Defendant denied summary judgment based on questions as to whether it was snowing at the time of plaintiff’s accident and whether ice that plaintiff slipped on was from before the snow began. Meteorological data from LaGuardia Airport without an expert affidavit was not conclusive and plaintiff and her partner’s affidavits stating that it did not snow that day, nor the day before, and weather data showing it had not snowed for several days, and that the ice existed at least 1 hour before the accident raised triable issues of fact. Defendant’s motion to compel a physical examination 10 months after Note of Issue was denied but plaintiff was required to give HIPAA compliant authorizations. Gamino v DDSR Props., Inc.


Premises Liab   Stairs   Slip/Trip   Last Inspection   Recalcitrant Worker   Recurring Condition  

First

Building owner denied summary judgment for failing to put forth evidence of inspection, maintenance, and cleaning of stairs where liquid caused plaintiff to slip and fall. Testimony of plaintiff’s witnesses that wetness on the stairs was a recurring condition would have defeated summary judgment if defendant had met its initial burden. Diaz v NY Affordable Hous. DeKalb Assoc. LLC.


Labor Law   Scaffold   1-2 Family Exception   Control   Agent  

Second Deptartment

Homeowner which did not direct or control renovation work granted summary judgment but codefendant who signed the contract for the renovation work, was on the job site every day, and directed the plaintiff to use the defective scaffold and safety belt which caused the accident, denied summary judgment. Codefendant’s was an agent of the owner under Labor Law and had sufficient control of the work to impose a duty under Labor Law and common-law negligence. Abdou v Rampaul


Med Mal   Strike Answer   Willful/Contumacious   Amend Complaint   Statute of Limitations  

First

Plaintiff’s motion to strike defendant’s Answer for failure to timely provide medical records denied as delay was not willful or contumacious. Plaintiff’s motion to amend Complaint to include additional dates of treatment denied since the new dates were barred by the statute of limitations. Joseph v Saint Joseph


Med Mal   Accepted Practice   Causation   Expert Aff  

Second Deptartment

Defendants made out prima facie entitlement to summary judgment by expert affirmations opining that they did not depart from accepted practice and that the plaintiff’s decedent’s death was not caused by her decubitus ulcers. Plaintiff raised an issue of fact by an expert affirmation opining that there were departures from accepted medical practice with references to excerpts from medical journals, and that these departures were the proximate cause of the plaintiff’s decedent’s injuries and death. Cummings v Brooklyn Hosp. Ctr.


Med Mal   Wrongful Death   Accepted Practice   Expert Aff  

Second Deptartment

Defendants, neurologist and hospital, made out a prima facie case for summary judgment based on expert affirmations that they did not depart from accepted practice by discontinuing heparin after neurological surgery and not continuing sequential compression stockings but plaintiff raised questions of fact by their expert’s affirmation opining that the plaintiff’s decedent’s condition had not improved sufficiently to discontinue heparin and that the hospital’s employees’ failure to follow the defendant neurologist’s instructions to continue the sequential compression stockings was an independent departure. Memoli v Winthrop-University Hosp.


Battery   Duty  

Court of Appeals

Treatment facility for drug addiction and mental health accepting referrals from criminal diversion program entitled to summary judgment where patient, discharged for violation of rules involving violence and intoxication, attacked the plaintiff as it owed no duty owed to the plaintiff. Defendant’s duty ceased upon discharge since it no longer had control of the patient. Fact that discharge was on a weekend and defendant did not follow its internal procedures for referring the patient to an interim facility until the diversion program could be notified on the next Monday did not change the result. The facility called the police to escort the intoxicated patient off the premises for the protection of the other residents and could not be said to still have control of the patient who was free to leave at any time. Anthony Oddo v. Queens Village Committee for Mental Health for Jamaica Community Adolescent Program


Labor Law §241   Control   Industrial Code  

First

Building owner’s motion for summary judgment on Labor Law §241(6) based on industrial code §23-1.28(b) (hand propelled vehicles) denied where plaintiff testified that shortly before the incident the wheel of the mini container kept getting stuck and was not “moving freely” as required by the industrial code, and that when he yanked the mini container it rolled onto his foot causing injuries. Owner failed to show that the mini container was not defective. Container company’s motion for summary judgment on the §241(6) claim was granted as it had no control over the worksite or the manner of the plaintiff’s work. Ahern v NYU Langone Med. Ctr.


Premises Liab   Building Security  

Second Deptartment

Plaintiff’s testimony, submitted on defendant’s motion for summary judgment, that she saw her assailant who was not a resident of her building walking toward her building on the opposite side of the street and that when she arrived at the building he opened the door which had a broken lock that malfunctioned that day, the day before, and on numerous other occasions, raised an issue of fact regardless of plaintiff’s submissions. Ramos v New York City Hous. Auth.


Premises Liab   Snow/Ice   Slip/Trip   Storm in Progress   Expert Aff  

First

Defendant denied summary judgment where plaintiff and nonparty witness testified that the ice patch was not clear, was whitish to grayish, and had some thickness. Meteorological records and expert’s opinion showed that freezing rain was only .1” and would have produced at most a thin clear glaze of ice. Storm in progress defense was not applicable. Bagnoli v 3GR/228 LLC


Labor Law §240  

Second Deptartment

Defendants who had performed construction work to replace a gas main granted summary judgment on claim by employee of subsequent contractor retained to replace the cold patch temporary repair of the sidewalk with a permanent sidewalk. Since plaintiff’s work was not part of the replacement of the gas main, he did not fall within the protection of the Labor Law §240(1) which applies to workers involved in enumerated activities for a “building or structure.” Plaintiff was injured when portions of concrete he had broken up and loaded onto a backhoe fell striking him. Davis v City of New York


Premises Liab   Open/Obvious   Inherently Dangerous  

Second Deptartment

Plaintiff tripped on an exposed tree root on the common grounds of her residential development. Defendant was granted summary judgment on proof that the tree root was open and obvious and “inherent or incidental to the nature of the property.” Dottavio v Aspen Knolls Estates Home Owners Assn.

Comment: The second part of the test “inherent or incidental to the nature of the property” differs from the “not inherently dangerous” standard applicable in most premises liability cases. It applies only when it is a natural condition, as opposed to a man-made condition, and readily observable and avoidable.


Labor Law §240   Safety Devices   Comparative Fault   Directed Verdict   Intervening Cause  

Second Deptartment

Plaintiff was injured when a coworker accidentally bumped into valves which had cut off hot water and steam to pipes they were working on, causing plaintiff to be burned and fall from an unprotected ledge. The jury returned a verdict finding that defendant breached Labor Law §240 but that the breach was not a proximate cause of the accident, that the defendant was negligent and the plaintiff 10% negligent. The lower court properly denied defendant’s motion for a directed verdict and granted plaintiff’s motion for a directed verdict based on the evidence, taken in the light most favorable to the defendant, showing that the accident was the result of failing to provide proper protections under Labor Law §240(1) and comparative fault would not apply. The coworker’s bumping into the valves was not so extraordinary as to break the chain of causation. Raia v Berkeley Coop. Towers Section II Corp.


Premises Liab   Prior Written Notice   Create Condition  

Second Deptartment

Town denied summary judgment where it showed that it did not receive prior written notice of the depression in the roadway but failed to show that it did not create the condition when it opened the street prior to the plaintiff’s fall and plaintiff affirmatively pled the affirmative negligence exception. Lewak v Town of Hempstead


Premises Liab   Sidewalk   Slip/Trip   De Minimus   Tripping Hazard  

First

Defendant denied summary judgment where plaintiff testified that she saw the crack in the sidewalk that caused her to fall 1 year before her accident and photographs taken near the time of the fall were sufficient for a jury to find that it existed long enough for defendant to have had notice and the ability to correct the condition. Defendant failed to show that the defect was trivial or that it did not increase the risks posed by its characteristics and surrounding conditions. Latif v Eugene Smilovic Hous. Dev. Fund Co., Inc.


Premises Liab   Notice   Labor Law §241   Industrial Code   BP  

Second Deptartment

Defendant’s submission of plaintiff’s testimony on its motion for summary judgment, showing that plaintiff observed lines in the concrete, which eventually broke, for 10 days prior to the accident failed to eliminate all questions of fact as to constructive notice. Plaintiff’s failure to allege any specific industrial code provision in the BP or in opposition to the motion entitled defendant to summary judgment on the Labor Law §241(6) claim. Grabowski v Board of Mgrs. of Avonova Condominium


Labor Law §240   Repair  

Second Deptartment

Defendant granted summary judgment on Labor Law §240(1) claim upon proof that plaintiff who fell while climbing over on a beam supporting an A/C unit was engaged in routine maintenance and not a repair that would be protected under the Labor Law. The court does not give the details of the work being performed. Tserpelis v Tamares Real Estate Holdings, Inc.


Premises Liab   Snow/Ice   Slip/Trip   § 7-210   Create Condition  

Second Deptartment

Owners of a 2-family residential building failed to show that they did not conduct snow removal prior to the plaintiff’s accident even if they otherwise fit within the 1-3 family exemption under administrative code §7-210. Ming Hsia v Valle


MVA   Comparative Fault   Question of Fact  

Second Deptartment

Defendant driver made out prima facie entitlement to summary judgment on his testimony and testimony of flagman that accident occurred because plaintiff was using his cell phone when he struck defendant’s car which was completely stopped. Plaintiff raised a question of fact by his own testimony and affidavit stating that the defendant’s car made a sudden and unexpected change into his lane. Remaining defendants were granted summary judgment by showing that they were either not at the scene or not negligent and plaintiff failed to raise an issue of fact. Butbul v City of New York


Building Security   3rd Party Contractor  

First

Homeless shelter failed to meet its initial burden for summary judgment, that minimal security was provided, in light of plaintiff’s testimony that she had complained of her assailant, another resident’s, violent propensity for weeks before the assault during which the assailant attacked 2 other residents and that the night manager had observed the assailant drunk and belligerent in the hallway on the night of the assault. Third-party contractor security company was entitled to summary judgment as there was no proof that the plaintiff was an intended third-party beneficiary to the contract or that any of the exceptions under Espinal applied. Mitchell v Long Acre Hotel


MVA   Turning Vehicle   Traffic Signs   Comparative Fault   Premature Motion  

Second Deptartment

Plaintiff entitled to summary judgment on her affidavit showing that she had entered the intersection, started making a left-hand turn, with the green light, after checking the intersection to make sure it was clear when the defendant drove through a red light and struck her car. Her proof established both defendant’s liability and her lack of comparative fault. Defendant’s attorney’s affirmation was insufficient to raise a question of fact and defendant failed to show what evidence needed to be obtained by further discovery on its claim that the motion was premature. Bentick v Gatchalian


Premises Liab   Labor Law §240   Labor Law §241   Wrongful Death   Unknown Cause   Speculation  

Second Deptartment

Plaintiff’s decedent fell off the roof of a 2-story building owned by a company of which the plaintiff’s decedent’s now deceased uncle was an officer and who allegedly asked him to measure a window. There were no witnesses to the accident and plaintiff was unable to identify what caused her decedent to fall. Any finding as to the cause of the fall would be speculation. Manzo v 372 Doughty Blvd. Corp.


Serious Injury   Expert Aff   ROM   Unaffirmed Report  

First

In response to defendant’s prima facie showing of entitlement to summary judgment on serious injury, plaintiff raised triable issues of fact by showing that x-rays with multiple views taken a month after the accident showed 2 rib fractures which were not visible on the initial x-ray, medical records showing that she complained of rib pain in the ER, and that her orthopedist diagnosed rib fractures or contusions on her initial visit. She also raised issues as to her lumbar and cervical spine by medical records showing contemporaneous complaints, affirmed reports of her doctors documenting limited ROM, and a pain management evaluation which showed significant limitations 3 years after the accident. Pain management doctor relied on MRI reports which showed herniated and bulging discs in her lumbar and cervical spine. Subsequent MRI which showed degenerative changes a year later did not contradict original MRI. Although MRI reports were not affirmed, they could be used on summary judgment motion because they were not the only evidence submitted. Plaintiff failed to meet threshold on her shoulder injury even by her orthopedic surgeon’s affirmation because it did not explain how her rotator cuff tear was caused by her accident three years earlier rather than by the degenerative changes in her initial MRI. Frias v Gonzalez-Vargas


Premises Liab   Elevator   Notice  

Second Deptartment

Building owner and elevator maintenance company failed to make out their prima facie case for summary judgment, based on plaintiff’s testimony and BP, by failing to show that the elevator which dropped from the 27th to the 23rd floor abruptly functioned properly or that the defendants did not have notice of the defective condition. Orahovac v CF Lex Assoc.


Premises Liab   Notice   Last Inspection  

First

Building owner denied summary judgment for failing to show the last time that the table and legs were inspected, thus failing to eliminate triable issues on constructive notice. Vargas v Cadwalader Wickersham & Taft, LLP


Premature Motion   Discovery  

Second Deptartment

NYCTA’s motion for summary judgment served 3 months after its Answer was providently denied by the lower court as premature. Parties should have a reasonable opportunity to conduct discovery prior to summary judgment. Okula v City of New York


Premises Liab   Snow/Ice   Slip/Trip   Motion to Dismiss  

First

Defendant’s motion to dismiss denied where the documentary evidence relied upon did not conclusively establish that it did not own the building abutting the sidewalk where the plaintiff slipped on snow and ice. Kalaj v Tortola Salon


MVA   Premature Motion   Discovery  

Second Deptartment

The lower court providently exercised its discretion in denying plaintiff’s motion for summary judgment without prejudice to renew after discovery based on circumstances that little discovery had been conducted and depositions had not yet taken place. Sodhi v 112 Park Enters., LLC


Discovery   Strike Answer   Reasonable Excuse   CPLR § 3126  

First

Lower court providently granted so much of plaintiff’s motion to strike defendant’s Answer by striking defendant’s affirmative defense of justification for failure to produce an employee for deposition despite numerous court orders and for failing to notify plaintiff that witness had left its employ until after the motion was made. Defendant failed to show a reasonable excuse for not complying with the discovery orders. Crooke v Bonofacio


Premises Liab   Sidewalk  

First

Defendant granted summary judgment upon proof that corporation did not perform any work on the sidewalk where the accident occurred. Issuance of permit was not proof that work was performed and plaintiff and codefendant owner’s reliance on a permit issued to Con Edison several years before which was not linked to the corporate defendant did not raise an issue of fact. OJon v Brown


Trespass   Notice of Claim   1983 Action   Motion to Dismiss  

Second Deptartment

Town’s motion to dismiss causes of action for unlawful taking, abuse of process, and intentional infliction of emotional distress which were neither included in the Notice of Claim nor sufficient facts to make out those causes of action was granted. Cause of action for trespass was dismissed for failure to allege or show unlawful entry on the property where town’s employees entered the property to ring the doorbell or speak to the plaintiff and, on one occasion, pursuant to a search warrant. Complaint failed to state a cause of action on constitutional claims of equal protection for enforcement of town laws by failing to allege or show that plaintiff was treated differently than any similarly situated individual or group. Boring v Town of Babylon

IF YOU MUST READ
(3 summaries)

Defamation  

First

Yelp reviews posted anonymously by plaintiff’s former partner contained mixed facts and opinions but overall would be viewed as opinions especially since internet reviews posted anonymously are not given much weight by internet users. Facebook message published to only 3 members of the plaintiff’s family were actionable. Publication to only one person is necessary to make maintain an action for defamation. Torati v Hodak


Premises Liab   Optical Confusion  

First

Defendant made out its prima facie entitlement to summary judgment and plaintiff failed to raise an issue of fact as to her claim of optical confusion. The court does not give the details of the claims or proofs. Richardson v Brookfield Props. OLP Co. LLC


Uninsured   Coverage   Stay Arb  

Second Deptartment

Offending vehicle’s insurance carrier improperly disclaimed coverage by failing to show that its insured’s lack of cooperation was willful and obstructive. Stay of arbitration against injured’s carrier upheld. Matter of Government Empls. Ins. Co. v Fletcher

About Matt McMahon

Civil trials and appeals since 1984
Bookmark the permalink.

Comments are closed