Governmental Function Governmental Immunity Special Duty NYC
NYC and NYC Department of Sanitation failed to show they did not assume special duty to plaintiff, a sanitation worker removing debris during superstorm Sandy, who was electrocuted when he stepped on wire where his supervisor assured him electricity had been cut off from area. Lewery v City of New York
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Labor Law §240 Labor Law §241 Gravity Risk Renew Reasonable Excuse Control Premature Motion
Plaintiffs’ explanation they did not submit with original opposition co-worker’s affidavit raising issue of whether window cleaning was to be done inside or outside fourth floor window decedent fell from because they was unaware co-worker left defendant’s employ and could be contacted, and discovery motions were pending at time summary judgment motions were made, required renewal be granted in interest of justice and defendants’ motion for summary judgment on Labor Law §240(1) denied on conflicting evidence, but granted on Labor Law §200 and negligence claims where defendants did not control means and methods of decedent’s work. Summary judgment denied for building owner/managers where their role was unclear, and discovery was stayed pending summary judgment motions, making motion premature. S.V.L. v PBM, LLC
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Motion to Dismiss Wrongful Death Statute of Limitations Punitive Damages
Defendants’ motion to dismiss all claims on 1-year statute of limitations for intentional torts denied as to negligence claims, even where pleaded as “malicious, willful, reprehensible,” and as to wrongful death claim where pecuniary loss to surviving distributees was alleged in supplemental BP served without leave of court and plaintiff adopted statements as his own. Punitive damages allowable under both negligence and wrongful death in appropriate cases. Claims of violation of PHL articles 29-C and 29-CC dismissed as they provide no private cause of action. Reid v St. Luke’s-Roosevelt Hosp. Ctr.
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Labor Law §240 Labor Law §241 Labor Law §200 Premises Liab Gravity Risk Industrial Code Raised For First Time
Plaintiff granted summary judgment on Labor Law §§240(1) and 241(6) based on industrial code §23-1.30 (illumination) where unsecured plywood plank plaintiff was walking on below grade popped up causing plaintiff’s leg to fall into hole and get stuck in concrete and area was only lit by floodlights 80′ away. Fall into hole was gravity risk covered under §240 even though below grade but industrial codes §§23-1.7(b) did not apply without proof plaintiff could fall all the way through hole. Defendants denied summary judgment on Labor Law §200 and negligence where issues remained of whether hole was a dangerous premises condition and if accident was caused by means and methods of defendants’ work. Contractors’ argument they were not proper Labor Law defendants not considered where raised for first time on appeal. Favaloro v Port Auth. of N.Y. & N.J.
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Vacate Default Notice Reasonable Excuse Meritorious Action
Defendant’s motion to vacate default judgment on CPLR §5015(a)(1), which requires showing of reasonable excuse and meritorious action, denied where principle’s affidavit stating they did not have notice of action until they received plaintiff’s motion for default was unsubstantiated and did not provide a reasonable excuse for not opposing the motion for default or rebut the presumption of proper service on its designated agent. Without a reasonable excuse there was no need to look at meritorious defense. Caguana v Beach 22, LLC
Comment: Defendant was not entitled to move under CPLR §317 which only applies when service is not made on the person or agent of the defendant.
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MVA Bus Set Aside Verdict Turning Vehicle Expert Aff
Plaintiff’s motion to set aside verdict in favor of NYCTA and bus driver denied where jury could find bus driver not negligent in failing to see van plaintiff was a passenger in that tried to beat the bus through a right hand turn going faster than the bus where both plaintiff’s and defendant’ experts agreed the van was going faster than the bus at impact. Cruz v Richardson
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Premises Liab Sidewalk Building Code § 7-210 Dangerous Condition Warnings
Building owner and management company granted summary judgment where plaintiff fell into open sidewalk cellar doors on proof nothing was wrong with doors and plaintiff fell only because tenant opened doors from below instead of usual procedure of opening them from sidewalk level. There was no requirement for building owner to provide warnings such as flashing lights, and administrative code §7-210 was applicable as accident was not caused by sidewalk defect. Harrington v Azogues Corp.
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Med Mal Informed Consent Accepted Practice Causation Expert Aff
Eye surgeon denied summary judgment based on conflicting expert opinions and plaintiffs did not raise new theories in opposition. Surgeon failed to meet burden for summary judgment on informed consent without proof he informed her of reasonably foreseeable risks and that a reasonably prudent patient would not have undergone the surgery if fully informed. Plaintiff raised issue of fact on causation. Rich v Donnenfeld
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Premises Liab Slip/Trip Open/Obvious Inherently Dangerous
Supermarket failed to meet burden for summary judgment where customer tripped over cans stacked 1′ high on floor at end of aisle by failing to show condition was not inherently dangerous as a matter of law even if it was open/obvious. Clayton v Marcy Supermarket & Deli Corp.
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Labor Law §240 Safety Devices Sole Cause
Worker injured when portion of sidewalk bridge he was using while dismantling scaffold collapsed entitled to summary judgment against NYCHA who would be responsible under any of the claimed inconsistent versions of the accident and NYCHA failed to raise issue on sole cause where it did not contradict plaintiff’s testimony he could not use safety harness and lifeline he had used on the scaffold while working on the sidewalk bridge. Singh v City of New York
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MVA Bus Emergency Doctrine Speculation
Defendants granted summary judgment on plaintiff and defendant’s testimony that car cut in front of bus as it accelerated through intersection making bus driver’s action of stepping on brake a reasonable response to an emergency under the emergency doctrine. Plaintiff’s speculation that bus driver may have created emergency insufficient to raise issue of fact. Weber v Monsey New Sq. Trails Corp.
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Premises Liab Motion to Dismiss Duty
Motion to dismiss by Papa John’s USA granted on documentary evidence it was not party to and had no part in lease entered into by franchisee and did not have a duty to maintain the premises as it did not own, manage, or control the property. Philanthrope v Papa John’s Pizza
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MVA Question of Fact Unknown Cause
Plaintiff’s motion for summary judgment denied where car owned by one defendant and being worked on by defendant-mechanic accelerated into wall inside service station and wall pushed plaintiff who was standing on the other side causing him to fall as plaintiff’s testimony showed he did not know what caused the accident and the certified police report containing the mechanic’s statement did not unequivocally state the vehicle accelerated due to mechanic’s negligence. Maher v Vargas-Bonilla
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Labor Law §240 Snow/Ice
Plaintiff who fell while removing snow from sign and awning over employer’s grocery store not entitled to protections of Labor Law §240 as it was routine maintenance not “cleaning.” Escobar v MRS II Realty, LLC
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MVA
Plaintiff struck on sidewalk by defendant’s vehicle as it backed out of outdoor parking lot granted summary judgment. Defendant’s affidavit in opposition failed to raise issue of fact. Mims v Hobbs
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Renew
Motion for renewal on claim that reversal of a Kings County trial order was a change in the law that would change prior determination denied as Second Department decision applied long-standing principles, not new law. Punter v New York City Health & Hosp. Corp.
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