February 22, 2022 | Vol. 301

(7 summaries)

Premises Liab   Set Aside Verdict   Experts   Preclusion   § 7-210  

Second Department
Trial court providently precluded plaintiff’s expert from testifying as determination of whether sidewalk was in reasonably safe condition was not beyond “ken of the typical juror” and plaintiff’s motion to set aside verdict denied where it was not against weight of evidence.

Plaintiff failed to meet burden for summary judgment where there were no measurements of sidewalk defect, photographs were poor quality, and plaintiff’s expert never visited site. Administrative code §7-210 does not make landowner an insurer of sidewalk. Curry v Eastern Extension, LLC    

Malpractice   Set Aside Verdict   Accepted Practice   Experts  

Second Department
Motion to set aside verdict finding internist did not depart from accepted practice for not ordering a urology consultation during hospitalization as inconsistent and against weight of evidence where other-defendant internist, who also did not order urology consultation during same hospitalization, settled before trial denied as only testimony that settling defendant was negligent was from plaintiff’s expert whose opinion the jury could reject. Ditoro v Richmond Univ. Med. Ctr.    

Labor Law §240   Falling Object   Comparative Fault   Sole Cause   Admissibility   Hearsay   Untimely   Note of Issue  

First Department
Plaintiff’s motion for summary judgment on Labor Law §240(1), brought more than 120-days after Note of Issue, was timely where Note of Issue was withdrawn, returning case to pre-Note status and reasons for withdrawal of Note of Issue immaterial given so ordered stipulation signed by parties.

Worker granted summary judgment on §240 based on his testimony he was struck by an unsecured brick and his foreman’s statement, properly admitted under business record exception to hearsay, that debris fell through torn debris bag from hanging scaffold. Plaintiff’s testimony that netting was provided unavailing as brick required securing and netting proved an inadequate safety device. Employer’s testimony plaintiff was not authorized to work on top of canopy ignored where employer had no knowledge of plaintiff’s working circumstances and claim he was not authorized to work on sidewalk bridge was unsupported by record. In either case, it would have been only comparative fault, not a defense under §240, not sole proximate cause. Mayorquin v Carriage House Owner    


Second Department
Lower court improvidently granted pre-action motion pursuant to CPLR §3102(c) directing NYCTA to preserve all video surveillance or records of slip and fall on water at top of escalator and to permit plaintiff to inspect them as plaintiff had sufficient information to formulate Complaint. Direction to preserve condition of site until after an inspection was unduly burdensome given evidence plaintiff already possessed. Matter of Neham v New York City Tr. Auth.    

Malpractice   Reargument   Appealable Order  

First Department
Lower court providently granted reargument where it failed to see plaintiff pleaded claim of excessive propofol dose during ankle surgery that resulted in 6-minute respiratory depression causing brain damage and clarified prior order where court confused pleaded claim that defendants failed to monitor and respond to oxygen desaturation with unpleaded claim of failure to perform blood tests, and on reargument denied defendant’s motion for summary judgment.

Court deemed lower court’s silence on claim anesthesiologist failed to supervise physician administering propofol a sub silentio denial of defendants’ motion. Defendant’s arguments they should have been granted summary judgment not properly before Court as they did not appeal original order or cross move reargument. Tyagi v Gadella    

Labor Law §200   Labor Law §241   Industrial Code   Indemnity   Control   Notice   Raised For First Time  

First Department
Apartment building owner’s motion for summary judgment of Labor Law causes of action on claim defendant-purchaser, set to close on building 3-4 hours after plaintiff’s accident, was de facto owner rejected as it was record owner at time of plaintiff’s fall on a floor wet from coworker pouring large amounts of water while slop mopping floors during renovation. While a wet floor can be a transient hazardous condition, there was no dispute it was result of means and methods of coworker’s work and Labor Law §200 and negligence claims against building owner dismissed as it had only general supervisory authority and did not control the means and methods of the plaintiffs or coworker’s work. Labor Law §240(1) claims dismissed and applicability of industrial code predicates for §241(6), raised for the first time on appeal, not considered as they require factual, not legal resolution. Building owner denied summary judgment on common law indemnity against purchaser where there was no proof purchaser was negligent. Arnold v Empire 326 Grand LLC    

MVA   No-Fault   Lien   NYC  

First Department
Lien asserted by NYC HRA for medical bills paid as a result of plaintiff’s automobile accident vacated as plaintiff could not sue for medical expenses covered by no-fault where his basic economic losses were under $50,000, and no part of settlement was for medical expenses. Marmol v Mutino    

(21 summaries)

MVA   Bus   Bicycle   There to be Seen   Set Aside Verdict   Directed Verdict   Sole Cause   Waiver  

Second Department
Bicyclist’s motion to set aside verdict that found NYCTA’s bus driver negligent for not seeing bicyclist when making left-hand turn but not proximate cause, for directed verdict, and new trial denied as plaintiff waived inconsistent verdict argument without raising the objection before jury was discharged and, in any event, a verdict is only “inconsistent and against the weight of the evidence only when the issues are so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause.” Finding that bicyclist’s failure to see and avoid bus was sole cause of accident was supported by fair interpretation of the evidence. Graviano v New York City Tr. Auth.    

Subpoena   Sanctions  

Second Department
Plaintiff’s motion to compel nonparty former town supervisor to comply with nonjudicial subpoena for deposition improvidently denied by lower court where it found the subpoena proper, there was no motion to quash, and nonparty failed to appear. Matter remanded for scheduling of deposition. Lower court providently denied plaintiff’s motion to hold nonparty in contempt where there was no proof failure to appear was intended to “defeat, impair, or prejudice the plaintiff’s rights.” Schiller v Town of Ramapo    

Comment: See related decision on motions for summary judgment below.

Premises Liab   Construction Liab.   Prior Written Notice   Create Condition   3rd Party Contractor   Espinal   Experts  

Second Department
Town’s motion for summary judgment denied where allegation it gave negligent instructions to tree contractor to repair pathway where plaintiff stepped in a hole, and plaintiff’s expert’s opinion the negligent instructions immediately resulted in a hazardous condition, raised issue on exception to prior written notice requirement. Contractor’s motion for summary judgment denied where issues remained of whether it launched an instrumentality of harm under Espinal. Schiller v Town of Ramapo    

Comment: See related decision on subpoena above.

Malpractice   Informed Consent   Accepted Practice   Causation   Experts  

Second Department
Podiatrist and musculoskeletal radiologist who performed ultrasound-guided steroid injections for bone spurs on plaintiff’s heel made out prima facie entitlement to summary judgment but plaintiff’s expert raised issues by opinion that recommending and performing the ultrasound-guided steroid injections departed from accepted practice and was a cause of plaintiff’s injuries. Plaintiff’s EBT, submitted by defendants, contradicted defendants’ testimony that they apprised him of risks and alternatives of the procedure and a signed consent form is not a prima facie showing of informed consent. Palmeiro v Luchs    

Premises Liab   Create Condition   Notice   Last Inspection   Assumption of Risk  

Second Department
Defendants failed to meet burden for summary judgment where arm and foot pedal of elliptical machine detached throwing plaintiff from the machine without proof of last time the machine was inspected or that defect was latent. Proof that machines were inspected every weekday was insufficient to show lack of constructive notice. Defendants also failed to show primary assumption of risk as parts of an elliptical machine detaching enhance the risks and are not inherent risks of the activity. Buffalino v XSport Fitness    

Labor Law §240   Labor Law §200   Labor Law §241   Ladder   Industrial Code   Create Condition   Notice  

Second Department
Building owner and tenant failed to meet burden for summary judgment on Labor Law §240(1) where they submitted testimony of plaintiff-security service/maintenance worker who fell off ladder provided by tenant while returning security camera that had not been working for some time back to its plastic housing after testing it, leaving questions of whether plaintiff was engaged in repair covered by §240 or routine maintenance not covered by §240.

Owner granted summary judgment of Labor Law §200 and negligence claims on proof it did not have authority over plaintiff’s work, did not provide the ladder, or create or have notice of a dangerous condition. Tenant denied summary judgment on plaintiff’s testimony it provided the ladder and tenant failed to prove it did not create or have notice of a dangerous condition even if it did not control plaintiff’s work. Defendants granted summary judgment of Labor Law §241(6) claims where plaintiff did not plead violations of any industrial code provisions in the Complaint or BP. Hamm v Review Assoc., LLC    

Premises Liab   Snow/Ice   Create Condition   Notice   Recurring Condition   Last Inspection   NYC  

Second Department
Teacher’s motion for summary judgment denied where she was struck by ice falling from exterior surfaces of school building during student dismissal as general notice that ice can form on building exterior and protruding devices was insufficient to show constructive notice of each recurrence of a recurring condition. NYC granted summary judgment as DOE and not NYC was the proper party. DOE failed to meet its burden for summary judgment without proof of last time exterior of building and protruding devices were cleaned/inspected in order to eliminate all questions of constructive notice. Marazita v City of New York    

Premises Liab   Sidewalk   Snow/Ice   Storm in Progress   Create Condition  

Second Department
Building owner denied summary judgment on plaintiff’s testimony it rained and snowed the day before and sidewalk was clear except for patch of ice she slipped on and defendant did not produce any evidence of whether it attempted to remove snow/ice, leaving questions of whether it created the condition. Defendant also failed to show ice plaintiff slipped on was from a single storm before the accident. Flournoy v Marcy Residence, LLC    

Assault   Vacate Default   Personal Juridiction   Service   Set Aside Verdict   Materially Deviates  

Second Department
Defendant’s claim suitable age and discretion service was improper on CPLR §317 motion to vacate default because he was incarcerated at time rejected on proof he was on parole and living at service address. Defendant failed to refute prima facie evidence of proper service from process server’s affidavit.

Judgment after inquest of $193,413.73 for injuries sustained during armed robbery reduced to $25,000 as excessive. The Court does not give the details of the injuries. Kokolis v Wallace    

Comment: Appeal from grant of default and judgment on inquest dismissed as no appeal lies from a judgment entered on default. Kokolis v Wallace.

Assault   Building Security   Governmental Function   Governmental Immunity   Special Duty   Amend Complaint   Malpractice   Negligent Supervision   Accepted Practice   Court of Claims  

First Department
State granted summary judgment dismissing sexual assault claim of patient at psychiatric facility as facility security is a governmental function involving discretionary allocation of resources and there was no proof state assumed a special duty or was performing a ministerial act. Plaintiff’s motion to amend Claim to include allegation of negligent supervision of claimant denied where post-discovery record showed no departure from accepted practice in admitting and allowing claimant to remain in facility. T.R. v State of New York    

False Arrest   Battery   Malicious Prosecution   1983 Action   Probable Cause   Admissibility   Unsigned Transcript   Raised For First Time   Punitive Damages   NYC  

Second Department
Lower court properly considered unsigned defendant EBT’s under CPLR §3116(a) submitted by defendants as they were certified and adopted as accurate by the deponents. Evidence that a copy of his EBT was provided to plaintiff who failed to sign and return it within 60-days properly considered where submitted in reply as it directly responded to allegations submitted for first time by plaintiff in opposition, and EBT admitted as if it were signed.

UPS worker who was fired and arrested when cell phone was stolen and proof it was activated by his father’s and then his SIM cards, and charges were dismissed prior to criminal court arrangement, brought multiple claims against UPS and police. Claims of violation of civil and constitutional rights dismissed where plaintiff did not plead any specific statutes or constitutional provisions and administrative code and Miranda rights raised for first time in reply on appeal were not considered. False arrest, false imprisonment, malicious prosecution, and assault and battery claims related to bodily contact during against NYC and officers dismissed where there was probable cause for arrest. Malicious prosecution and abuse of process claims against UPS dismissed where there was probable cause and no proof of actual malice. Negligent supervision claim against UPS dismissed where employees were acting within the scope of their employment and punitive damage claim against UPS dismissed as there was no proof of gross negligence. Farquharson v United Parcel Serv.    

MVA   Bus   Rear End   Nonnegligent Explanation   Comparative Fault   There to be Seen   Emergency Doctrine   Causation  

Second Department
Motions for summary judgment by plaintiff and defendants denied where plaintiff’s scooter was rear-ended by bus on videos showing both vehicles changing lanes at approximately the same time and bus driver testified she didn’t see scooter until “seconds” before impact, raising questions of comparative fault and whether bus driver saw what was there to be seen as video showed bus following scooter for 2-blocks. Questions remained of whether bus driver’s failure to see scooter caused or contributed to an emergency under the emergency doctrine. Fergile v Payne    

Sidewalk   Prior Written Notice   Create Condition   Raised For First Time  

Second Department
Municipality granted summary judgment where plaintiff tripped and fell on sidewalk defect on proof it did not receive prior written notice as required by local law and municipality was not required to show it did not create condition by an affirmative act of negligence, an exception to the prior written notice rule, where that exception was not pleaded. Plaintiff failed to raise issue by claiming exception to written notice rule where first raised in opposition. Herron v City of Long Beach    

Premises Liab   Stairs   Last Inspection   Admissibility   Prejudice  

First Department
Plaintiff raised issue in opposition to building’s prima facie showing of entitlement to summary judgment by testimony of building’s manager and director of administration contradicting their super’s affidavit stating porters, not the super, inspect the premises and the super starts his workday 1-hour after he claimed and 45-minutes after he claimed to have inspected the stairs. Plaintiff’s testimony that rain would enter through a broken window on one floor and an open window on another creating a recurring wet condition on the stairs, that it rained the night before she slipped on the wet marble stairs, and that she previously complained about this condition to the super rebutted the super’s affidavit and video of the fall which defendants claimed showed no water on the stairs and no open or broken windows.

Wet stairs was not a new theory where pleaded in the Complaint and BP. Defendants were not prejudiced by consideration of witnesses’ affidavits as they appeared in the video so there could be no surprise. Delvalle v 1733 Unico LLC    

Premises Liab   Stairs   Wet Floor   Create Condition  

Second Department
Contractor granted summary judgment where plaintiff slipped on wet staircase-landing on proof they did no work on the staircase, came to site in morning solely to remove tools and equipment as their work was complete, and did not access the staircase. Plaintiff claimed contractor’s employee dropped a bucket of water at about 3:45 PM. Roldan v Caldwell & Walsh Bldg. Constr., Inc.    

Subpoena   Alter Ego   Amend Complaint   Reasonable Excuse   Untimely  

First Department
Motion to quash information subpoenas by personal injury judgment debtor and nonparty alleged alter ego, and for a protective order requiring judgment creditor to destroy and not use records received from Chase Bank information subpoena denied and judgment creditor’s motion to amend petition to include alter ego/veil-piercing allegations and compel compliance with the subpoenas granted. First Department previously granted creditor permission to amend the petition and creditor showed a reasonable excuse for not amending petition earlier. Subpoenas were limited to obtaining relevant information regarding debtor and alter egos. Berisha v Tosca Cafe, Inc.    

Comment: Previous decision reported in Vol. 185.

Premises Liab   Duty   Notice   Unknown Cause  

Second Department
Defendant with no connection to property where plaintiff tripped and fell granted summary judgment as it owed no duty to plaintiff absent ownership, management, or control of property. Remaining defendants denied summary judgment where they failed to show plaintiff could not identify cause of her fall viewing the evidence in the light most favorable to the nonmoving party, or that they did not have constructive notice of the defect. The Court does not give the details of the proofs. Deutsch v Green Hills (USA), LLC    

Premises Liab   Motion to Dismiss   Personal Juridiction  

First Department
Motion to dismiss for lack of personal jurisdiction by California residents who were in Florida when lounge chair on terrace of apartment they rented in NYC fell from terrace striking plaintiff denied as CPLR §302 (a)(4) provides for jurisdiction for use of real property within NY and §302 (a)(2), jurisdiction for tortious acts committed within NY applied as defendants did not refute allegation they failed to secure the lounge chair in NY. Sen v GR Realty Holdings LLC    

Serious Injury   BP  

Second Department
Defendants failed to meet burden for summary judgment on serious injury without addressing plaintiff’s allegation of 90/180-day category pleaded in the BP. Fanfan v Sowacki    

False Arrest   False Imprisonment   Assault   Battery   Probable Cause   NYC  

First Department
NYC granted summary judgment where eyewitness’ 911 call identifying car double parked next to car being broken into gave police probable cause for arrest when they arrived, identified both vehicles, saw dents and scratches near trunk-lock car being broken into, and they found screwdrivers in plaintiff’s vehicle. Assault/battery claims for excessive force in applying handcuffs dismissed on probable cause and lack of proof of actual injury. Pagan v City of New York    

Labor Law §200   Ladder   Create Condition   Indemnity   Sole Cause   Control  

First Department
GC failed to meet burden for summary judgment dismissing Labor Law §200 and negligence claims of steamfitter who fell when one leg of ladder he was working on fell through Masonite boards as it could not prove it did not create the hazardous condition where its workers placed the boards on the roof.

Under broad language of HVAC contractor’s agreement indemnifying owner and GC for accidents arising out of its, or its subcontractors work, owner was entitled to summary judgment on its contractual indemnity claim regardless of its own negligence and plaintiff had withdrawn his §200 and negligence claims against the owner. GC not entitled to summary judgment on its indemnity claim, or conditional indemnity, where issue existed of whether it was sole cause of the accident. Issue of GC’s sole cause precluded summary judgment against HVAC sub-contractor, plaintiff’s employer, whose agreement was only triggered by its negligence. Common law contribution and indemnity claims against HVAC contractor dismissed without evidence it controlled plaintiff’s work but owner and GC granted summary judgment on breach of contract claim for failure to procure insurance. Quiroz v New York Presbyt./Columbia Univ. Med. Ctr.    

(2 summaries)

Premises Liab   Open/Obvious   Inherently Dangerous  

Second Department
Building owner and tenant-supermarket granted summary judgment on proof that rolled up mat in supermarket which plaintiff was aware of was open/obvious and not inherently dangerous. The Court does not give the details of the proofs. Williams v E & R Jamaica Food Corp.    

Labor Law §240   Ladder   Indemnity  

Second Department
Plaintiff failed to meet burden for summary judgment on Labor Law §240(1) for fall from ladder without proof his work was a repair and not routine maintenance. The Court does not give the details of the proofs. Building owner failed to show tenant was negligent or controlled plaintiff’s work for summary judgment on common-law indemnity. Aponte v Airport Indus. Park, LLC    

About Matt McMahon

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