February 25, 2020 | Vol. 199


MUST READS
(6 summaries)
NOTEWORTHYIF YOU MUST READ

Labor Law §240   Scaffold   Safety Devices   Recalcitrant Worker   Sole Cause  

Court of Appeals
In 4/3 decision Court found question of fact remained on whether plaintiff who fell while trying to enter building through window cut from scaffold beam as he had just seen co-worker do was aware of general contractor’s standing order not to enter through window cut outs, and whether his statement that he “wasn’t supposed to pass through there” unequivocally shows he was aware of order. The Court sets out the 4-elements of sole proximate cause defense based on recalcitrant worker: 1) adequate available safety device; 2) worker knew it was both available and required to be used; 3) chose not to use safety device for no good reason; and 4) would not have been injured absent choice. Biaca-Neto v Boston Rd. II Hous. Dev. Fund Corp.


Directed Verdict   Notice   Prejudice  

First Department
Trial court improvidently precluded testimony of defendant’s superintendent at time of accident noticed on eve of trial as prejudicial as defendant could not claim surprise and was not prejudiced by witness who was its employee at time of accident. Trial court improvidently granted directed verdict where plaintiff’s and his former girlfriend’s testimony that lobby floor plaintiff slipped on was wet on prior occasions from leaking ceiling established constructive notice of a recurring condition. Monzac v 1141 Elder Towers LLC


MVA   MVIAC   Capacity to Sue   Settlement   General Release   Estoppel  

Second Department
8-defendants identified as driving cabs for defendant livery cab company on night plaintiff-pedestrian was struck denied summary judgment on claim that plaintiff’s settlement with MVIAC for full policy barred lawsuit under subrogation provision of Ins. Law §5103(b) where release signed with MVIAC did not assign subrogation rights and §5103(b) states that they should be assigned but does not itself assign subrogation rights and affidavit of MVIAC administrator acknowledged that settlement did not include assignment of subrogation rights as plaintiff was continuing to attempt to identify driver and would reimburse MVIAC if he succeeded. Defendants collateral estoppel claim of “estoppel against inconsistent positions” rejected where plaintiff’s position was that he has not yet identified driver, not that he will never be able to identify driver. Archer v Beach Car Serv., Inc.


Labor Law §240  

Court of Appeals
Plaintiff’s decedent’s work as welder fabricating components for air pre heaters during ‘normal manufacturing process’ did not fit within ‘erection, demolition, repairing, altering, painting, cleaning or pointing’ of a building or structure to fall within the protections of Labor Law §240(1). Preston v APCH, Inc.


Premises Liab   Discovery   Lead Poisoning  

First Department
Plaintiff’s request for 5-years of lead paint records covering entire housing complex modified to 3-years for building where plaintiff was exposed to lead paint. Lead paint records of same building relevant to show notice of lead paint or need to inspect other areas. K.V. v New York City Hous. Auth.


Vacate Jud   Set Aside Verdict   Assumption of Risk   Jury Charge   Admissibility   Materially Deviates  

Second Department
$20,701,302.80 judgment in favor of 9-year old novice skier who skied past slow skiing area signs at bottom of bunny slope and crashed into PVC stanchion holding bright orange rope for chair lift corral, on verdict finding ski center 100% at fault, vacated where lower court refused request for implied assumption of risk charge and refused to admit video deposition of volunteer member of defendant’s ski patrol under CPLR 3117(a). Lower court properly denied summary judgment on assumption of risk as 9-year old was inexperienced skier using the bunny slope intended to be used by most inexperienced skiers and warnings were to ski slowly not stop, raising question of whether she fully appreciated the risk.

Damage award for fractured femur with closed reduction and external screws resulting in disparate leg lengths that may require future surgery and mild knee deformity materially deviated from reasonable compensation and set aside unless, after a liability verdict for plaintiff at new trial, plaintiff stipulated to reduce awards from $3mil/$15mil past/future pain/suffering to $950k/$1.25mil, and $61,233.68/$1mil past/future medical expenses to $4,783.46/$115k including $56,440.22 collateral source setoff. Lower court had denied collateral source offset. Zhou v Tuxedo Ridge, LLC


Comment: Appeal from order denying motion to set aside dismissed as right to appeal terminated on entry of judgment and issues raised are addressed on appeal from judgment. Zhou v Tuxedo Ridge, LLC.
 
NOTEWORTHY
(24 summaries)
MUST READSIF YOU MUST READ

Labor Law §240   Scaffold   Safety Devices   Comparative Fault  

First Department
Painter who fell from scaffold 4′ above floor without safety rails when board popped up as he prepared for painting granted summary judgment on Labor Law §240(1) establishing that defendants failed to provide a proper safety device. Defendants’ claim that a safer scaffold was available at an unidentified location was insufficient to raise issue of fact and claims that plaintiff was negligent presented nothing more than comparative fault which is not a defense under §240. Carpentieri v 309 Fifth Ave., LLC


Motion to Dismiss   CPLR § 3126   Willful/Contumacious  

Second Department
Plaintiff’s repeated failure to complete second deposition after action was removed from trial calendar for discovery on new injuries, without reasonable excuse, evinces willful refusal to comply but she should have been precluded from offering evidence of new injuries not having her Complaint stricken. Turiano v Schwaber


Discovery   HIPAA  

First Department
Defendants’ motion to compel plaintiff to provide authorizations for primary physician, various other physicians, and pharmacy records denied where they failed to show that plaintiff sought treatment or received medication by these providers for the same body parts injured in the accident and defendants failed to tailor their requests to aggravation of injuries from prior MVA. Lafata v Verizon Communications Inc.


MVA   Premises Liab   Motion to Dismiss   Pain/Suffering  

Second Department
Motions to dismiss causes of action for pre-impact terror and conscious pain and suffering by defendants whom plaintiff claimed made special use of dead-end area of road missing a portion of guard rail where driver of vehicle decedent was in attempted to make a U-turn and slid into a creek where all occupants died denied as defendant’s affidavit did not constitute documentary evidence under CPLR 3211(1) and deeds and easements did not utterly refute plaintiff’s factual allegations. Defendants failed to show plaintiff had no cause of action under liberal interpretation of Complaint. Leader v Steinway, Inc.


Discovery   Raised For First Time  

First Department
Lower court improvidently restricted so ordered subpoena for social media accounts to posts regarding musical events and performances where other activities were relevant on plaintiff’s claim of disability and plaintiff failed to show any items requested were irrelevant or private and at one point agreed to give authorization for the requested material. Claim that subpoena was defective not considered where it was not raised below. Caserta v Triborough Bridge & Tunnel Auth.


Late Notice of Claim   False Arrest   Statute of Limitations   Probable Cause   Court of Claims  

First Department
Claimant’s motion for leave to file late Claim for false arrest, false imprisonment denied where date Atty. Gen. was properly served was beyond 1-year statute of limitations for intentional tort. Leave to file late Claim for conversion based on confiscation of electronics during arrest, which has a 3-years statute of limitations, denied as barred by probable cause for arrest. Ndemenoh v City Univ. of N.Y. (CUNY)-City Coll.


Med Mal   Accepted Practice   Causation   Loss of Chance   Expert Aff   Speculation  

First Department
Plaintiff’s expert raised issues of fact in opposition to defendants’ showing of entitlement to summary judgment with opinion that defendants departed from accepted practice by not ordering diagnostic workup including an x-ray based on plaintiff’s symptoms of non-responsiveness to asthma medication, smoker status, her age, a bad cough that may have been masked by medication, and the character change of her headaches, and that defendants deprived her of a chance of a better outcome if lung cancer was diagnosed earlier. Expert’s opinion was not speculative where it gave detailed explanations supported by evidence. Perez v 139 Med. Facility, P.C.


Premises Liab   Slip/Trip   Sidewalk   § 7-210   Homeowner Exception   Prior Written Notice   Create Condition   NYC  

Second Department
NYC’s unopposed motion for summary judgment granted on proof that abutting landowner did not fit within 1-3 family owner occupied exception to administrative code §7-210 and even if it was responsible for tree and tree roots which may have raised sidewalk flag, failure to maintain them would be nonfeasance not affirmative negligence. While not stated in the appellate or lower court decisions, presumably the court found that NYC did not have prior written notice of the condition which would require a showing that they created an immediately dangerous condition by an affirmative act. Dragonetti v 301 Mar. Ave. Corp.


Premises Liab   Slip/Trip   Sidewalk   § 7-210   Premature Motion   NYC  

First Department
Defendants denied summary judgment where plaintiff’s nonspecific testimony and circles on photograph did not eliminate all questions of whether hole extended outside curb onto sidewalk. Remainder of defendants’ motion for summary judgment premature as defendants have not yet been deposed and information on creation of hold was solely within their knowledge. Vizcaino v Park Lane Mosholu, LLC


Premises Liab   Construction Liab.   Slip/Trip   3rd Party Contractor   Create Condition   Indemnity   Raised For First Time  

Second Department
Con Ed’s excavating and paving contractors failed to meet burden for summary judgment without proof they did not perform any work at location of plaintiff’s fall on the alleged dangerous condition and that they did not create the condition which the lower court mistakenly found was 78′ from the accident. Contractors can be liable for dangerous conditions they create on a public street. Con Ed’s request for summary judgment on indemnity claim against subcontractors rejected where first requested in affirmation in opposition to subcontractors’ motion for summary judgment. Malayeva v City of New York


Labor Law §240   Labor Law §241   Labor Law §200   Gravity Risk   Safety Devices   Industrial Code   Notice   Causation   Feigned Issue  

First Department
Defendants denied summary judgment on Labor Law §240(1) where bathroom ceiling collapsed on plaintiff after he removed plaster from 2-walls during renovation. On claim of failure of permanent building structure under §240 plaintiff showed need for safety device to protect against foreseeable gravity risk from work he was performing. Evidence of water damage precluded summary judgment on Labor Law §200 and negligence claims raising issue on constructive notice and causation. Plaintiff’s affidavit noting he observed stains was not feigned issue where prior testimony was that he did not observe “damage” on ceiling which was different than stains. Defendants denied summary judgment on Labor Law §241(6) where work was part of larger project which included demolition. Clemente v 205 W. 103 Owners Corp.


Labor Law §200   Labor Law §241   Industrial Code   Dangerous Condition  

Second Department
General contractor for bridge project granted summary judgment on Labor Law §§200 and 241(6) claims where plaintiff’s leg got trapped between mooring line and pier on proof that accident was result of means and methods of work and not a dangerous condition and it did not have right to exercise control over means and methods of plaintiff’s work. Defendant also showed industrial code provision relied upon by plaintiff did not apply. Boody v El Sol Contr. & Constr. Corp.


Premises Liab   Circumstantial Evidence   Building Code  

First Department
Defendant’s motion for summary judgment denied based on plaintiff’s testimony of where he was standing on second floor roof deck with low parapet and position of his body after fall from which a jury could infer negligence for failure to raise parapet wall that violated applicable building codes after prior accident. Broderick v Edgewater Park Owners Coop., Inc.


Premises Liab   Slip/Trip   Stairs   Unknown Cause   Speculation   Building Code  

Second Department
Plaintiff’s testimony that she did not know what caused her to lose balance as she walked down 2-steps without handrails between levels at conference center established she could not identify what caused her to fall without speculation entitling defendant to summary judgment. Defendant’s expert’s affidavit and affidavit of building superintendent established that no handrails were required under all applicable building codes. Gaither-Angus v Adelphi Univ.


Premises Liab   Slip/Trip   Stairs   Dangerous Condition   Building Code   Expert Aff  

First Department
MoMA granted summary judgment where plaintiff fell stepping on 1-of-2 steps at end of outdoor garden bridge on proof there was no dangerous condition and handrails were not required as it was not interior or exterior stairs as defined by building codes. Plaintiff’s expert’s opinion was based on general standards of steps and utility of handrails and not supported by ‘specific, applicable safety standards or practices.’ Chester v Museum of Modern Art


MVA   Graves Amendment  

Second Department
Plaintiff entitled to summary judgment for violation of VTL §1162 (moving stopped vehicle) where driver of van plaintiff was leaning into stepped on gas causing open door to slam on her back. Van owner failed to show it was bona fide commercial lessor of vehicles and denied summary judgment under Graves amendment. Edwards v J&D Express Serv. Corp.


Labor Law §241   Industrial Code  

First Department
Defendant granted summary judgment on Labor Law §241(6) based on industrial code § 23-1.l0(a)(“Edged tools shall be kept sharp and shall be maintained free from burrs and mushroomed heads”) where plaintiff was struck by shard from mushroomed head of draft pin used to align holes in steel beams as there was no proof that draft pin had sharp edges and the court has previously found this industrial code provision does not apply to tools with flat or round edges. Charles v Summit Glory LLC


Premises Liab   Workers Comp Defense   Control  

First Department
Building owner’s motion for summary judgment on workers comp defense denied as general instructions to clean and maintain building were insufficient to establish plaintiff was its special employee and general employer retained extensive control over plaintiff’s work. Contract defined employee as employed by general employer. Ramos v 110 Bennett Ave., LLC


Labor Law §240   Labor Law §241  

First Department
The First Department again rejected Port Authority’s claim that as a bistate entity approved by a federal compact it could not be held liable under Labor Law §§240(1) or 241(6), since the compact clause of the U.S. Constitution does not apply to workplace safety statute for work done in New York. Ayars v Port Auth. of N.Y. & N.J.


Premises Liab   Slip/Trip   Snow/Ice   Storm in Progress  

Court of Appeals
Defendants entitled to summary judgment on uncontroverted proof of storm in progress at time of accident. Battaglia v MDC Concourse Ctr., LLC


Premises Liab   Slip/Trip   Snow/Ice   Create Condition   BP  

Second Department
Snow removal contractor and its subcontractors denied summary judgment where plaintiff’s testimony that snow contractors were working on parking lot prior to his accident, submitted by defendants, was insufficient to establish they did not create the condition as alleged in the BP. Conrad v Global Indus. Servs., Inc.


Premises Liab   Slip/Trip   Sidewalk   Snow/Ice   § 7-210   Homeowner Exception   Storm in Progress   Create Condition   Causation   NYC  

First Department
Abutting landowner granted summary judgment on proof it was owner occupied 1-3 family home under administrative code §7-210 and in any event would not have been required to remove snow at 6:30 AM under 4-hour window before requiring snow removal for snowfall between 9 PM and 7 AM. Spreading salt at 1:30 AM did not cause or aggravate the condition. NYC entitled to summary judgment where plaintiff failed to show NYC employee assigned to shovel snow in area, shoveled the sidewalk in question raising only speculation. Santana v Melendez


Premises Liab   Prior Written Notice   Res Ipsa Loquitor   NYC  

First Department
NYC granted summary judgment where sign from metal post dislodged and struck plaintiff in head on proof NYC did not have prior written notice and plaintiff’s speculation that it could have resulted from an immediately apparent defect on installation 7-months earlier was insufficient to raise issue on exception to prior written notice. Res ipsa loquitor did not apply where sign post was not exclusively within NYC’s control. Bunn v City of New York


Serious Injury   Preexisting   Degenerative   Causation   ROM   Expert Aff  

First Department
Plaintiff’s orthopedic surgeon and examining physician failed to raise issue in opposition to defendant’s entitlement to summary judgment on medical proof that condition was pre-existing and degenerative where surgeon gave only conclusory opinion on causation and examining physician did not offer objective basis for concluding condition was caused by accident or address surgeon’s findings of normal ROM 1-month after accident. Reynoso v Tradore

IF YOU MUST READ
(1 summaries)
MUST READSNOTEWORTHY

MVA   Vacate Arb   Fraud   Res Judicata   Venue  

Second Department
GEICO’s motion to vacate arbitration award that dismissed GEICO’s petition for reimbursement of property damage on res judicata from jury verdict on property subrogation claim finding no negligence granted on fraud grounds where other carrier failed to inform arbitrator of motion to set aside jury verdict, court’s attempts to resolve matter based on strength of GEICO’s motion, and court’s statement that it intended to grant motion to set aside the verdict. Other carrier’s motion to change venue from Putnam to New York County denied where it failed to show that GEICO did not do business in Putnam. Matter of GEICO v National Ind. Truckers

About Matt McMahon

Civil trials and appeals since 1984
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