February 26, 2019 | Vol. 147

(9 summaries)

Premises Liab   Slip/Trip   Stairs   Set Aside Verdict   Jury Charge   Pain/Suffering   Collateral Source  


Judgment on verdict awarding $1,600,000/4,500,000 past/future pain/suffering and $2,547,054 future medical expenses set aside only if plaintiff did not stipulate to reduce future medical award by $294,474 for radiofrequency sympathectomy amounts where she had never had it and there was no proof that she would benefit from it. Pain/suffering award did not materially deviate where plaintiff had 2 surgeries for trimalleolar fracture and developed traumatic arthritis and RSD.

Trial judge providently gave jury supplemental charge 1-hour into deliberations that violation of administrative code §§27-127 and 27-128 could be evidence of negligence consistent with original instruction on stair maintenance and explained this did not change original instruction.

Defendants’ claim that expert would testify to health plans available to plaintiff did not show entitlement to collateral source hearing where they did not show that she would receive future collateral benefits from health insurance. Kromah v 2265 Davidson Realty LLC

Med Mal   Discovery   Preclusion   Reasonable Excuse  


Trial judge providently precluded defendant doctor’s statement against interest in disability insurance form produced by plaintiff less than 2-days before trial as unfair surprise and plaintiff failed to offer a reasonable excuse. Judgment on defense verdict affirmed. Fowler v Buffa

Med Mal   Late Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice  

Second Deptartment

Plaintiff’s motion to deem late Notice of Claim, served 2-years and 9-months after infant’s birth granted where medical records gave actual knowledge of essential elements of claim on an independent review which showed mother was not admitted although having contractions, doctor ordered she be ”admitted secondary to non-reassuring fetal heart tracing,” and infant was delivered within 1-hour of her return to hospital 2-days later and after multiple fetal heart monitor alarms. Plaintiff showed defendant was not prejudiced by delay and absence of a reasonable excuse for the delay was not dispositive. J.H. v New York City Health & Hosps. Corp.

Venue   Renew   Reasonable Excuse  


Venue may be changed after party who venue was based on is dismissed or discontinued. Venue changed from New York to Nassau County. Court could entertain renewal even where defendants did not offer excuse for not including proof in original motion in the interest of “substantial fairness.” Arthur v Liberty Mut. Auto & Home Servs. LLC


Second Deptartment

College providing a list of available off campus housing does not assume duty to ensure that all fire regulations are met for properties on the list as the private landlord and student are in the best position to protect against such risks. In loco parentis does not apply to college students. College did not do anything to induce student, who died in a fire, to forgo any opportunity to avoid a risk. Fitzsimons v Brennan

Labor Law §240   Scaffold   Forum non conveniens   Venue   Prejudice  


Third-party defendant’s motion to dismiss based on forum non conveniens (CPLR 327[a]) where worker injured in fall from scaffold at worksite in Westchester County and all defendants were Connecticut residents denied. By engaging in substantial construction contract in NY, subject to NY worker safety rules, 3rd-party defendant was not prejudiced by having to defend in NY and there is minimal inconvenience to NY court where NY law is applied with only a chance of CT law applying to indemnity claim.

Where no party resided in NY, plaintiff could choose any venue, making Bronx a proper venue. Lobo v Gatehouse Partners, LLC

Negligent Supervision   Negligent Hiring   Motion to Dismiss   Vicarious Liab   3rd Party Contractor   Punitive Damages  

Second Deptartment

Foster care agency’s motion to dismiss claims of negligence in selection and subsequent supervision of foster parents denied where plaintiff’s grandchildren were sexually abused by another child in the home. Agency can be sued for negligent selection and supervision but cannot be held vicariously liable for acts of foster parent. Plaintiff properly pleaded negligent selection and supervision and loss of services but claims of vicarious liability and loss of society and companionship, which are not allowed for a child, were dismissed. George v Windham

Asbestos   General Release  

Court of Appeals

Chevron sued as successor in interest to Texaco who settled claim by plaintiff in 1997 denied summary judgment on claim that 1997 release barred mesothelioma claim where Chevron bore heavy burden of proof under maritime law to show that it was ‘[1] executed freely, without deception or coercion”; [2] “it was made by the seaman with full understanding of his rights”; [3] “[t]he adequacy of the consideration”; and [4] “the nature of the medical and [5] legal advice available to the seaman at the time of signing the release are relevant to an appraisal of this understanding” where he only received $1,750 as part of a mass settlement where it was not likely that he discussed release with his attorney, he had only a non-cancerous pulmonary condition, and the release did not mention mesothelioma or other asbestos cancers which were mentioned in the complaint. 4/3 decision. Matter of New York City Asbestos Litig.

Comment: This case has limited applicability to cases under maritime law.

Premises Liab   Stairs   Prior Written Notice  

Court of Appeals

Pedestrian bridge from public road to parking lot was functional equivalent of sidewalk requiring prior written notice under Village code resulting in summary judgment for the village. There were 2 dissenters. Hinton v Village of Pulaski

(15 summaries)

Med Mal   Directed Verdict   Accepted Practice  

Second Deptartment

Doctor who performed brachioplasty using posterior approach granted judgment as a matter of law at close of plaintiff’s case where plaintiff’s expert admitted several times on cross-examination that posterior approach would not be her preferred method but was within accepted practice. Without expert opinion of departure from accepted practice there was no rational path for jury to find for plaintiff. Feteha v Scheinman



In a discrimination case, the court upheld a discovery order requiring MTA to conduct a search of all emails and produce emails matching specific search terms combined with plaintiff’s name or nickname. O’Halloran v Metropolitan Transp. Auth.

Dram Shop   Causation  

Second Deptartment

Bar granted summary judgment of dram shop claim it served visibly intoxicate person who later assaulted plaintiff where plaintiff testified that he observed assailant visibly intoxicated but then bought the “unlawful drink” for the assailant. Esposito v Rail Bar & Grill Corp.

Labor Law §240   Admission  

Second Deptartment

Warehouse owner and tenant failed to show that day worker’s fall from 20’ forklift platform as he was stocking shelves was not part of larger demolition and renovation project that would entitle him to Labor Law §240(1) protection but plaintiff admitted that there was a question of fact on whether his fall fit within Labor Law §240(1). Motion and cross-motion for summary judgment denied. Bonilla-Reyes v Ribellino

Labor Law §240   Labor Law §241   Labor Law §200   Scaffold   Indemnity   Appealable Order  

Second Deptartment

Owner and tenant of building where worker fell from scaffold while installing sheetrock to soundproof wall between 2-tenants, both of whom used the same contractor to construct their spaces, and contractor denied summary judgment on Labor Law §§ 240(1) & 241(6) where owner contracted for work and there was question of fact of whether tenant also contracted for work. Contractor’s appeal dismissed as abandoned where it did not request reversal.

Owner and tenant granted summary judgment on indemnity against contractor where they were only vicariously liable for Labor Law §§ 240(1) & 241(6) violations and contractor controlled and supervised work but owner denied contractual indemnity where attached contract was for other tenant’s project. Rizo v 165 Eileen Way, LLC

Premises Liab   Labor Law §200   Create Condition   Notice   Open/Obvious   Inherently Dangerous   Unknown Cause   Speculation  

Second Deptartment

Owner of construction site granted summary judgment on Labor Law §200 and negligence claims where delivery man who saw oily substance outside construction site and walked over sand and dirt on site before returning and slipping off of truck on proof that it did not create a dangerous condition or have notice of one, that the sand and dirt were open/obvious and not inherently dangerous, and that plaintiff could not identify the source of the oil, sand, and dirt on his boot or what caused him to fall without speculation. DiSanto v Spahiu

Premises Liab   Slip/Trip   Stairs   Notice   Last Inspection   Unknown Cause   50-H   Speculation  

Second Deptartment

NYCHA failed to eliminate question of constructive notice on testimony of general cleaning procedures instead of last time area was inspected or cleaned but granted summary judgment on 50-H testimony showing plaintiff could not identify cause of fall without speculation. Rodriguez v New York City Hous. Auth.

MVA   Comparative Fault  

Second Deptartment

Plaintiff entitled to summary judgment on his and defendant’s testimony that he turned on the road and drove 40-50’ over 5-seconds before defendant came out of abutting diner in violation of VTL §1143, failing to yield right of way when entering a roadway from a driveway, also establishing freedom from comparative fault. Harvey v White

Premises Liab   Vacate Default   Statute of Limitations   Reasonable Excuse   Meritorious Action  


Plaintiff’s motion to vacate default in opposing defendant’s motion to dismiss denied where even if there was a reasonable excuse, claims were barred by statute of limitations. Murawski v Bisso

Public Health §2801-d   Slip/Trip   Punitive Damages   Appealable Order  

Second Deptartment

Plaintiff’s claim for punitive damages under Pub. Health Law §2801-d(2) dismissed where nursing home showed that 84-year-old’s fall from bed did not result from willful or reckless disregard. Separate common law punitive damage claim, although inconsistent with lower court’s finding, not dismissed where defendant did not cross-appeal and plaintiff was not aggrieved. Judgment dismissing entire first cause of action, instead of just punitive damage claim, inconsistent with lower court’s decision and entered in error. Valensi v Park Ave. Operating Co., LLC

Negligent Supervision   Intervening Cause  


DOE met burden for summary judgment by showing injury took place when other student so suddenly and unexpectantly collided with infant-plaintiff during game in gym class that no amount of supervision could have prevented it. Court found question of fact given “how the game was played, the number of students and the size of the gym space.” The Court does not give the details of plaintiffs’ proofs. F.P.V. v City of New York

MVA   Question of Fact   Feigned Issue  

Second Deptartment

Defendants raised issue fact in opposition to plaintiff’s affidavit that defendant driver entered intersection against red light by defendant driver’s affidavit stating that plaintiff ran a red light. Defendant driver’s affidavit did not contradict his statement to police that he thought he had the green light. Duvalsaint v Yupe-Garcia

Motion to Dismiss   Amend Complaint   Statute of Limitations  


Plaintiffs’ motion to amend Complaint to add condominium board, brought before expiration of statute of limitations, denied as it did not toll the statute of limitations against the board where plaintiff did not attach the supplemental Summons and failed to show unity of interest under relation back doctrine. Bossung v Rebaco Realty Holding Co., N.V.

Labor Law §240   Question of Fact  

Second Deptartment

Plaintiff’s motion and defendant’s cross-motion for summary judgment on Labor Law §240(1) denied where there were questions of fact if work fell within protections of that section. The court does not give the details of the proofs. Dorville v Royal Farms, Inc.

Med Mal   Motion to Dismiss   Personal Juridiction   Estoppel  


Defendant’s motion to dismiss on personal jurisdiction denied as untimely but plaintiff’s cross-motion to dismiss personal jurisdiction defenses denied where issues existed on whether defendant is equitably estopped from raising defense. Ayangbesan v Finkelstein

(1 summaries)

Late Notice of Claim   Actual Knowledge   Prejudice  


Petition to serve late Notice of Claim should have been granted where MTA had actual knowledge of facts and circumstances within 90-days and was not prejudiced. The Court does not give the details of the proofs. Matter of Gasperetti v Metropolitan Transp. Auth.

About Matt McMahon

Civil trials and appeals since 1984
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