February 21, 2023 | Vol. 353

(5 summaries)

Malpractice   Discovery   Hearing  

Second Department
The Second Department addresses the novel issue of whether or when a relative may act as a party’s interpreter. Holding that a relative may only act as in interpreter under exceptional circumstances, the Court sets out 4-criteria: 1) has the party needing the interpreter given enough information for the other party to find a “disinterested interpreter” 2) was an “exhausted and meaningful search” for a disinterested interpreter done; 3) is the proffered interpreter the “least interested” interpreter available; and 4) is the proffered interpreter able to objectively translate, which can only be determined at a hearing.

Where plaintiff never gave enough information to determine the exact Mandarin dialect she spoke, she did not meet the first criteria nor could she meet the meet the second. There was no proof of whether other, less interested family members were available where the proffered daughter would be a witness for the third criteria. While the daughter provided an affidavit that she would translate “accurately, completely and impartially,” the lower court never conducted a hearing and the fact that the daughter translated all communications between her mother and the defendant-doctor failed to meet the fourth criteria. Defendants’ motion to disqualify the daughter as the interpreter granted. Zhiwen Yang v Harmon    

Labor Law §241   Industrial Code   Create Condition   Indemnity  

First Department
NYCTA/MTA’s contractual indemnity claim against GC dismissed where raised in their Answer to the original Complaint but they never served an Answer to the Amended Complaint.

Plaintiff granted summary judgment against NYCTA/MTA on Labor Law §241(6) based on industrial code §23-1.7(e)(2)(debris/tools) as owners of the bus terminal where he stepped on electrical conduit on floor while cleaning debris at a construction site. NYCTA/MTA denied summary judgment dismissing Labor Law §200 claim without proof they did not create the condition.

GC denied summary judgment on §200 where there was conflicting testimony of whether it owned the electrical conduit that caused plaintiff’s fall. Questions of fact as to who owned the conduit and whether NYCTA/MTA was negligent precluded summary judgment on contribution and indemnity claims for and against electrical subcontractor. Romano v New York City Tr. Auth.    

Premises Liab   Notice of Claim   Motion to Dismiss   Statute of Limitations  

Second Department
Port Authority’s motion to dismiss for failure to serve a Notice of Claim 60-days before the 1-year statute of limitations for commencing an action against it, agreeing that the statute of limitations was tolled by the governor’s Covid executive orders but arguing those tolls did not extend to the time to serve the Notice of Claim, denied as the statutory requirement to serve the Notice of Claim 60-days before commencement of the action effectively tolled the time to serve the Notice of Claim. Espinal v Port Auth. of N.Y. & N.J.    


First Department
Building owner’s motion to change venue from New York to Delaware County denied as its 1939 application to conduct business in New York, listing New York County as the location of its principal office, was dispositive, and its claim that a biennial statement filed 6-months before plaintiff’s accident, stating its registered agent for service was in Albany County, had no effect. Defendant also failed to identify any material nonparty witness that would be inconvenienced by having to testify in New York County or that they even contacted any witness to see if they were willing to testify there. Prechtl v Trane U.S., Inc.    

Products Liab   Design Defect   Spoliation   Prejudice  

Second Department
Manufacturers of can opener that malfunctioned injuring Rikers Island cook’s hand not entitled to strike Complaint for spoliation where the subject opener could not be found 6-years later as they failed to show plaintiff had control over the can opener, an obligation to preserve it when it was destroyed, she was the one that lost or destroyed it, or that defendant was prejudiced by its destruction since a design defect case can be shown by defects in identical products.

One of the manufacturer’s motion for summary judgment denied where it failed to show the can opener was not defective or the accident was caused by factors other than the product itself and circumstantial evidence it submitted sufficiently identified that it as the manufacturer of the can opener. Auguste v Edlund Co., LLC    

(18 summaries)

Negligent Supervision   Negligent Hiring   Motion to Dismiss   Intervening Cause   Discovery  

Second Department
School district’s motion to dismiss granted where allegations that plaintiff was sexually assaulted by choral teacher employed by the district at the teachers home failed to state a cause of action against the school district as there is no cause of action for in loco parentis and the district’s duty to the plaintiff arose only when plaintiff was in its custody. Plaintiff failed to state a cause of action for negligent supervision, hiring, and retention without sufficiently pleading the district knew or should have known of the teacher’s conduct. While these allegations need not be pled with specificity, bare legal conclusions unsupported by factual allegations are not sufficient and taking the allegations as true, they failed to show a nexus between the teacher’s employment and the incidents at the teacher’s home. Plaintiff failed to show any basis for discovery before dismissal. Doe v Hauppauge Union Free Sch. Dist.    

Premises Liab   Sidewalk   Default Judgment   Service  

First Department
Plaintiff’s Verified Complaint stating she fell on a defective sidewalk condition outside defendant’s property and her affidavit attesting to the truth of those allegations were sufficient to make out a viable cause of action for entitlement to a default judgment. On default the defendant admits ‘all traversable allegations in the complaint, including the basic allegation[] of liability.’ Irregularity as to nonmilitary service in process server’s affidavit not jurisdictional where there was no claim defendant was on military duty or a military dependent at time of default. Bigio v Gooding    

Child Victims Act   Negligent Hiring   Negligent Supervision   Motion to Dismiss  

Second Department
Motions to dismiss for failure to state a cause of action by diocese, church, and school providently denied where allegations in the Complaint that the abusers were employed by the moving defendants who knew their employees were abusing or had the propensity to abuse the plaintiff during school time while plaintiff was under the care and supervision of the defendants, giving defendants a duty to act as a reasonable parent, were sufficient to allege causes of action for negligent hiring, retention, and supervision which does not have to be pled with specificity. Allegations that moving defendants knew of the sexual abuse and either condoned it or covered it up was sufficient to plead gross negligence as it would show “a reckless indifference” or failure “to exercise even slight care or diligence. Belcastro v Roman Catholic Diocese of Brooklyn, N.Y.    

Labor Law §240   Labor Law §241   Gravity Risk   Amend BP   Industrial Code   Untimely   Reasonable Excuse  

First Department
Defendants granted summary judgment dismissing Labor Law §240(1) claim where only a portion of a piece of sheet rock tipped over for 3′ before striking plaintiff as the size, weight, and distance the object fell constituted an ordinary construction hazard, not an extraordinary danger under §240. Plaintiff’s cross-motion for summary judgment on §240 properly considered even though submitted beyond the time for dispositive motions in a so ordered stipulation as it sought relief “nearly identical” to the defendants’ motion. A later stipulation setting a uniform return date for all motions did not conflict with or supersede the so ordered stipulation.

Plaintiff’s cross-motion to amend his BP to plead industrial code provisions and for summary judgment on Labor Law §241(6) denied as untimely where it did not seek “nearly identical” relief as defendants since it was based on newly pled industrial codes and plaintiff offered no justification for waiting years to amend the BP. Connor v AMA Consulting Engrs. PC    

Labor Law §240   Stairs   Safety Devices   Indemnity   Premature Motion  

First Department
Worker who was injured when instructed to help carry a heavy painting machine down a flight of stairs while walking backwards granted summary judgment on Labor Law §240(1) as the stairs were an elevated platform under §240 requiring safety devices and nobody disputed the lack of safety devices caused plaintiff’s injuries. Defendants’ motion for summary judgment on their contractual indemnity claims against painting company denied as premature where questions remained of whether defendants were negligent and supervised the injury producing work. Burgos Caba v 587-91 Third Owner, LLC    

Labor Law §240   Labor Law §241   Labor Law §200   Falling Object   Raised For First Time   Hearsay  

First Department
Laborer granted summary judgment on Labor Law §240(1) against building owner and GC where 10’ section of cement hose fell on him from floor above and whether it was dropped or fell for some other reason was irrelevant. Plaintiff was not in a ‘drop zone’ and defendants testified it should not have been dropped.

Plaintiff’s appeal from grant of summary judgment to concrete pumping contractor dismissing Labor Law §§ 240(1) and §241(6) claims unpreserved where raised for the first time on appeal and he did not oppose that defendant’s motion below. Plaintiff’s cross motion for summary judgment on Labor Law §200 against concrete pumping contractor denied as based on hearsay but not dismissed as admissible evidence raised a question of whether its employees were responsible for the hose. Malan v FSJ Realty Group II LLC    

Malpractice   Wrongful Death   Accepted Practice   Causation   Experts  

First Department
Where plaintiff explicitly waived pecuniary damages, wrongful death action dismissed as only pecuniary losses are recoverable in wrongful death which does not include loss of consortium. Administrator’s personal claim also dismissed.

Plaintiff’s expert’s opinion that hospital departed from standards of care for adequately turning and repositioning decedent and providing a specialty mattress raised issues by contradicting the hospital’s experts. Single page of medical record showing nurses turned and repositioned decedent bi-hourly, 9-days after admission, did not contradict plaintiff’s expert’s opinion. Jury could reasonably infer a specialty mattress was removed where the record noted a specialty mattress on only 1-date. Plaintiff’s expert contradicted hospital’s experts’ opinions on causation and provided a basis for his opinions that decedent’s ulcer were not unavoidable and the hospital did not address those bases. Plaintiff’s expert’s opinion the ulcers caused decedent’s death was supported by the death certificate. Reape v NCRNC, LLC    

Building Security   Duty   3rd Party Contractor   Espinal   Notice   Foreseeability  

First Department
Performer Drake granted summary judgment dismissing claim of concert attendee injured when struck by an aluminum bottle thrown by another attendee as she was not party to Drake’s contract with the concert promoter/producer and plaintiff failed to show the applicability of any Espinal exception. Promoter/producer denied summary judgment where it’s contract required it to provide security in coordination with Madison Square Garden [MSG] creating a duty to ensure the large crowd “attracted for its financial gain” did not pose an unreasonable risk to concertgoers and plaintiff’s allegations that concertgoers were throwing bottles throughout the concert raised issues of whether the promoter/producer had notice of the unsafe condition. Plaintiff’s motion for summary judgment against MSG denied where questions of foreseeability and causation remained. Giovacco v Graham    

Elevator   Duty   3rd Party Contractor   Espinal   Experts   Res Ipsa Loquitor  

First Department
Elevator company made out entitlement to summary judgment on proof misleveling condition was caused by supermarket employees hitting carts and jacks into the doors, establishing it did not launch an instrumentality of harm under Espinal by creating or exacerbating the condition. Plaintiffs’ expert’s opinion that defendant previously inadequately inspected or repaired the doors would at most show they were not an instrument of good, not that they created or exacerbated the condition. Res ipsa loquitor inapplicable as defendant did not have exclusive control of the elevator doors. Maldonado v Liberty El. Corp.    

Amend Complaint   Reargument   Service  

First Department
Plaintiff’s reliance on informal judicial admissions insufficient to amend Complaint to add “Foot Locker” as a defendant where there was no evidence it had purchased or merged with the defendant, a company called “The Foot Locker, Inc.” which later changed his name to “The Boot Locker, Inc.,” and could not be considered their successor in interest. The proposed amendment would not be to correct a simple misnomer. Lower court properly considered defendant’s motion to reargue as prior supreme and appellate orders resolved plaintiff’s motion to amend the Complaint but not the moving defendant’s order to show cause for summary judgment. Jonke v Foot Locker, Inc.    

Premises Liab   Snow/Ice   Storm in Progress   Experts  

Second Department
Defendants not entitled to summary judgment on storm in progress where certified climatological data and the expert’s opinion they submitted showed only a trace amount of snow, less 0.1”, fell on the morning of plaintiff’s accident with no snowfall the day before. Other evidence submitted by defendants, including plaintiff’s EBT, raised issues on whether any other snowfall occurred at or near the time she fell. Bodoff v Cedarhurst Park Corp.    

Premises Liab   Duty   Foreseeability   Create Condition   Causation  

Second Department
Building owner and motel tenant denied summary judgment dismissing claim of plaintiff who tripped on elevated border around unguarded cellar window well and fell into the well where broken glass lodged in his wrist where they failed to show accident was caused by plaintiff’s misuse of the building, that it was an extraordinary occurrence not foreseeable, or that their alleged negligence was not a cause of the accident. Even if defendants did not cause the glass to be at the bottom of the window well, any question of whether their negligence was a cause or merely furnished the occasion for the accident was for the jury. Smith v Dutchess Motor Lodge    

Premises Liab   3rd Party Contractor   Sole Cause   Out of Possession   Renew   Indemnity  

First Department
Building management company and janitorial subcontractor granted summary judgment dismissing claim of plaintiff, delivery person pinned between liftgate on her truck and debris on loading dock after being instructed to use the loading dock’s liftgate by the tenant’s employees, where plaintiff conceded there was insufficient evidence to show they owed her a duty. Those defendants’ motion for summary judgment dismissing cross-claims for common-law and contractual indemnity denied where facts remained of whether they were negligent regarding the debris on the dock, including claims between the management company and janitorial subcontractor.

Building owner and tenant failed to present new facts that would change the lower court order, previously affirmed on appeal reported in Vol. 244 where facts remained on whether plaintiff was sole cause of the accident and whether tenant was negligent in maintaining the dock. Building owner failed to show it was an out of possession landlord. Ellis v JPMorgan Chase Bank N.A.    

Premises Liab   Sidewalk   § 7-210   Hearsay  

First Department
Tenant granted summary judgment on proof owner, not tenant, was the only one required to repair defects in the sidewalk. Tenant’s obligation to keep sidewalk free of snow/ice, debris, and vermin did not create a duty to repair sidewalk defects and, even if it had, it’s obligation would have been to the building owner, not the public under administrative code §7-210. Lease was admissible where tenant’s witness was familiar with the terms even though he did not sign the agreement and plaintiff relied on the lease in opposing the motion. Building owner’s witness acknowledged they were the only one responsible for repairing the sidewalk and when shown photographs at his EBT, he testified he did not think the defect was a tripping hazard. Choudhry v Starbucks Corp.    

Premises Liab   Stairs   Open/Obvious   Inherently Dangerous  

Second Department
Defendants granted summary judgment on proof exterior stair plaintiff slipped on was open/obvious and not inherently dangerous by plaintiff’s testimony that she ascended the stair moments before her fall without incident, it was sunny, and nothing obstructed her view. Martinez v Fairfield Hills E., LLC    

MVA   There to be Seen   Sole Cause  

First Department
Plaintiff raised issues of fact on her testimony she stopped at stop sign, looked both ways before entering intersection, and the front of her SUV had reached the opposite crosswalk when her rear quarter panel was hit by defendants’ truck with enough force to spin her SUV into a parked car, ricocheting it into another car across the street, and defendant-driver’s testimony that he saw plaintiff’s SUV when it was 60’-70’ away but then took his eyes off it. A driver entering an intersection with a stop sign is not automatically the sole cause of a collision in the intersection. Cordero v Kacinskis    

Malpractice   Question of Fact  

Second Department
LLP partner met burden of proof for summary judgment dismissing legal malpractice claim against him personally on his testimony and affidavit showing he was not involved in plaintiffs injury case and did not supervise the responsible attorney but plaintiff raised issues in opposition on Partnership Law §§ 26(b), (c) with documents showing the moving attorney met with the client for an initial intake, filled out the client’s fact sheet, signed the retainer statement, signed a stipulation discontinuing certain defendants, and the other attorneys at the firm consulted him about strategy. Hagans v Dell    

Battery   Punitive Damages  

First Department
Pro se plaintiff’s OSC for compensatory and punitive damages denied where plaintiff did not submit full pleadings and the papers submitted raised issues of whether the plaintiff was the initial aggressor. Lower court providently declined to convert motion to summary judgment where plaintiff did not ask for that relief and questions of fact remained. Doumbia v Bamba    

(3 summaries)

Attorney Fees  

Second Department
Court providently granted initial attorney who commenced action 10%, substituted attorneys who prosecuted case for 1.5 years before the court granted an order allowing them to withdraw 30%, and the final attorney who obtained an award by binding arbitration 60% based on the work performed by each attorney and its effect on the final disposition. The Court does not give the details of the proofs. Lamanna v Compitiello    

Serious Injury   Causation  

Second Department
Defendants met burden for summary judgment on serious injury by competent medical proof that plaintiff’s shoulder and spinal injuries did not constitute a serious injury and were not caused by the accident. Plaintiff failed to raise an issue in opposition. The Court does not give the details of the proofs. Malik v Turcios    

Serious Injury  

Second Department
Defendants met their burden for summary judgment on serious injury by competent medical proof that plaintiff’s spinal injuries did not constitute a serious injury and plaintiff failed to raise an issue in opposition. The Court does not give the details of the proofs. Leon v Eagle Auto Mall Corp.    

About Matt McMahon

Civil trials and appeals since 1984. Retired partner McMahon | McCarthy.
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