February 23, 2021 | Vol. 250

(5 summaries)

Premises Liab   Emotional Harm   Zone of Harm   Amend Complaint  

Court of Appeals

In a thorough discussion of the limits of “immediate family” for emotional harm recovery in the zone of harm the Court found it error to deny plaintiff’s motion to amend the Complaint to include a zone of harm claim for a grandmother unquestionably within the zone of harm when her granddaughter, whom she was very close to, was struck by falling debris from the building façade and later died noting the “increasing legal recognition of the special status of grandparents, shifting societal norms, and common sense” to rule that a grandparent falls within the definition of immediate family. There were two concurrences, one arguing that all persons within the zone of harm should be able to recover regardless of relationship to the person they observe injured and that persons with a strong bond regardless of formal relationship should be able to recover even if outside the zone of harm. Greene v Esplanade Venture Partnership

Comment: The appellate division case denying the motion to amend was reported in Vol 159.

MVA   Train   Amend Notice of Claim   Actual Knowledge   Survelliance Video   Design Defect   Prejudice  

Second Department

Plaintiff’s motion to amend the Notice of Claim to include fact he tried to climb up from tracks after he fell and a claim of negligence for not providing a ladder granted where plaintiff had no recollection of accident due to severe injuries and original Notice of Claim was based on statements made by MTA detectives in police report, and to plaintiff’s father, that plaintiff was unconscious after fall. Defendants could have acquired actual knowledge of fact with a “modicum of effort” by reviewing their surveillance video, provided during discovery, which showed plaintiff walking around and trying to climb onto platform after he fell. Failure to provide a ladder for fallen passengers to get back on the platform was not a new theory where it was alleged platform was defectively designed.

Defendants failed to show prejudice as mere passage of time is insufficient and plaintiff’s motion was made before 50-H hearing was conducted or Complaint filed. Pisano v Metropolitan Transp. Auth.

Med Mal   Motion to Dismiss   Certificate of Merit   Reasonable Excuse   Meritorious Action  

First Department

First Department made clear that failure to comply with requirement for a Certificate of Merit under CPLR §3012-a, as well as Notice of Malpractice Action under CPLR §3406 (a), are not pleading defects that would require reasonable excuse and meritorious action to correct and that courts are not empowered to dismiss an action for violation of these statutes, but that a court may issue a conditional order of dismissal if not complied with within a set period of time. Fortune v New York City Health & Hosps. Corps.

Labor Law §240   Labor Law §241   MVA   Set Aside Verdict   Materially Deviates   CPLR § 3101(d)   Jury Charge  

First Department

$1.5 mil/$1.5 mil past/future pain/suffering award and $500,000/$500,000 past/future loss of services award set aside as materially deviating from reasonable compensation unless plaintiff stipulated to reduce awards to $500,000/$1.5 mil past/future pain/suffering and $300,000/$500,000 past/future loss of services. Plaintiff’s failure to provide CPLR 3101(d)(1)(i) disclosure for treating physician’s testimony on future medical needs required preclusion of opinion on this issue where doctor was asked his opinion for first time on stand, admitting he was testifying “off the top of his head,” and $600k verdict for future medical expenses vacated. $196,000/$450,000 past/future lost earnings upheld.

Apportionment of 95% fault against building owner previously found vicariously liable under Labor Law §§240(1) and 241(6) and 5% against truck driver who struck plaintiff-flagmen while within barricaded area causing him to fall into 5′-8′ trench supported by evidence and jury charges were proper and did not confuse jury. Gjeka v Iron Horse Transp., Inc.

MVA   Pain/Suffering   Expert Aff   CPLR § 3101(d)   Admissibility   Survelliance Video  

First Department

Jury award for conscious pain/suffering [$750,000], supported by eye witness testimony that decedent was conscious for 20-30 seconds after being struck by defendants’ vehicle and expert’s opinion that he would have felt pain and suffering while conscious, did not materially deviate from reasonable compensation. CPLR §3101(d) disclosed substance of testimony in “reasonable detail” by providing evidence doctor would rely on, including autopsy report, and that he would testify to conscious pain/suffering before death. “There is no requirement that an expert set forth the specific facts and opinions that will be encompassed in his or her anticipated testimony.”

Copy of surveillance video providently admitted where produced by NYPD in FOIL response and detective testified it was same footage he viewed on original, laying foundation for its authentication. Comments by plaintiff’s counsel in summation in response to defense counsel’s comments did not create “climate of hostility that so obscured the issues as to have made the trial unfair.” Velez v Roy

(16 summaries)

Governmental Function   Governmental Immunity   Special Duty   NYC  

Second Department

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

Labor Law §240   Labor Law §241   Gravity Risk   Renew   Reasonable Excuse   Control   Premature Motion  

Second Department

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

Motion to Dismiss   Wrongful Death   Statute of Limitations   Punitive Damages  

First Department

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.

Labor Law §240   Labor Law §241   Labor Law §200   Premises Liab   Gravity Risk   Industrial Code   Raised For First Time  

First Department

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.

Vacate Default   Notice   Reasonable Excuse   Meritorious Action  

Second Department

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.

MVA   Bus   Set Aside Verdict   Turning Vehicle   Expert Aff  

First Department

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

Premises Liab   Sidewalk   Building Code   § 7-210   Dangerous Condition   Warnings  

First Department

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.

Med Mal   Informed Consent   Accepted Practice   Causation   Expert Aff  

Second Department

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

Premises Liab   Slip/Trip   Open/Obvious   Inherently Dangerous  

Second Department

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.

Labor Law §240   Safety Devices   Sole Cause  

First Department

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

MVA   Bus   Emergency Doctrine   Speculation  

Second Department

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.

Premises Liab   Motion to Dismiss   Duty  

First Department

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

MVA   Question of Fact   Unknown Cause  

Second Department

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

Labor Law §240   Snow/Ice  

First Department

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


Second Department

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


First Department

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.

(2 summaries)

Med Mal   Informed Consent   Accepted Practice   Causation   Expert Aff   Waiver  

First Department

Plaintiff’s expert raised issues of fact on accepted practice and causation for postoperative care and treatment in opposition to NYCHHC’s expert’s opinion of no departure or causation in performance of surgery or postoperative care and treatment. The Court does not give the details of the proofs. Plaintiff’s expert did not address issue of informed consent which was dismissed as plaintiff indicated he was not pursuing it. John v New York City Health & Hosps. Corp.

Premises Liab   Design Defect   MVA   Dangerous Condition   Causation   Renew  

Second Department

Premises owner granted summary judgment on proof parking lot where plaintiff was struck by turning vehicle was not negligently designed or a cause of accident and plaintiff’s affidavit in opposition failed to raise issue of fact. Renewal providently denied where plaintiff offered no new facts that would change the outcome. The Court does not give the details of the proofs. McGowan-Amandola v Federal Realty Inv. Trust

About Matt McMahon

Civil trials and appeals since 1984
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