February 27, 2018 | Vol. 95

(5 summaries)

Governmental Function   Motion to Dismiss   Duty  

Court of Appeals

Plaintiffs’ Amended Complaint alleging loss of real and personal property as a result of LIPA’s, (government authority that took over the private entity LILCO) failure to prophylactically shut off power to the Rockaway Peninsula ahead of hurricane Sandy stated a cause of action requiring denial of defendants’ motions to dismiss. All sides agreed that providing electricity is ordinarily done by private entities and is a proprietary function which does not require a showing of a special duty. The Court could not say as a matter of law that LIPA was acting as a governmental function in preparing and responding to a natural disaster where defendants failed to connect the magnitude of the disaster to the specific failures alleged, i.e. failure to deenergize the lines. Connolly v Long Is. Power Auth.

Labor Law §241   Motion to Dismiss   Agent  

Court of Appeals

The Court upheld the Appellate Division’s reversal of the lower court’s grant of defendants’ motion to dismiss iron worker’s Labor Law §241(6) where he tripped and fell on debris at an offsite location leased to fabricate rebar to be used at the defendants’ construction site. The Court agreed with the Appellate Division that plaintiff adequately pleaded that the offsite area was part of the construction site based on the contract and lease terms which were approved by the owner and construction manager. Gerrish v 56 Leonard LLC

Comment: The Appellate Division case was originally reported in Vol. 42.

Med Mal   Premises Liab   Accepted Practice   Create Condition   Notice  

Second Deptartment

Physical therapist met burden for summary judgment with expert’s opinion that she did not depart from accepted practice by leaving the room after starting the plaintiff on a treadmill, after which the treadmill sped up, rising and dropping, causing plaintiff to fall.

Rehab center and building owners failed to show that they did not create the condition or have notice of it and denied summary judgment. Argument that plaintiff was too confused at deposition about where the facility was at most created a question of credibility as to whether the accident happened. Cohen v Lebgutt Realty, LLC

Workers Comp   Lien  

Second Deptartment

Petition to approve settlement nunc pro tunc, made within 3 months after settlement, providently denied, upholding the denial of future workers comp benefits, where petitioner failed to include most of the information required by Workers Comp. L. §29(5). Matter of Carlone v Utica Mut. Assur. Co.

Motion to Dismiss   General Release   Fraud  

Second Deptartment

Defendants met burden to dismiss under CPLR 3211(a)(5) by presenting a release for $1,500.00 signed by plaintiff, but plaintiff’s pleadings and affidavit raised issues of whether the release was obtained by fraud, circumstances which indicate unfairness, and whether it was “not fairly and knowingly made.” Sacchetti-Virga v Bonilla

(8 summaries)

Labor Law §240   Ladder   Safety Devices   Sole Cause  


Worker who fell from unsecured damaged ladder granted summary judgment on Labor Law §240(1) based on his testimony. Supervisor’s affidavit in opposition was ambiguous and claim that other ladders were available did not rebut plaintiff’s testimony that they were being used by other workers. Claim that worker was sole cause of accident rejected where defendant failed to provide adequate safety devices. Pena v Jane H. Goldman Residuary Trust No. 1

Labor Law §240   Ladder  


Plaintiff granted summary judgment on Labor Law §240(1) on his testimony that unsecured ladder suddenly shifted causing him to lose balance and fall. Affidavits of co-workers who did not see accident did not contradict plaintiff’s account. Statement of co-worker in unsworn report that plaintiff said he lost his balance and fell did not dispute plaintiff’s account that ladder suddenly shifted causing him to lose his balance. Rom v Eurostruct, Inc.

Dental Mal   Statute of Limitations   Uncertified Records  

Second Deptartment

One dentist in group denied dismissal on statute of limitations where she failed to establish the date of her last treatment. The uncertified dental records were barely legible making it impossible to determine which dentists treated the patient within the statute of limitation. Dentist’s affirmation was based solely on the records and not on independent recollection. Berger v Stolzenberg

Med Mal   Accepted Practice   Causation   Expert Aff  


Plaintiff failed to raise a triable issue in opposition to defendants’ showing that they did not depart from accepted practice in classifying plaintiff’s decedent as a moderate to low fall risk, or in not restricting him to bed with the rails up, and that in any event his fall was not caused by the alleged malpractice but by a sudden, unexpected asystole (flatline). Violation of a hospital’s own rules is some evidence of negligence, but plaintiff must still show causation. Ogarro v St. Luke

Prior Written Notice   Notice of Claim   BP   Create Condition   Raised For First Time  

Second Deptartment

Plaintiffs failed to show that the town created an immediately dangerous condition in response to the town’s showing that it did not have prior written notice as required by town law. Failure to plead special use in the Notice of Claim, Complaint, or BP was fatal to showing an exception to the prior written notice requirement and improperly raised for the first time in opposition. Taustine v Incorporated Vil. of Lindenhurst

MVA   Rear End   Nonnegligent Explanation  


Plaintiff granted summary judgment on unrebutted testimony that he was stopped when struck in the rear by defendants’ car. Claim that plaintiff stopped suddenly was not a nonnegligent explanation. Perdomo v Llanos

Statute of Limitations   Burden of Proof  


Claimant’s action for unjust conviction under Court of Claims Act §8-b was barred by 2-year statute of limitations in §8-b(7) from dismissal of the indictment. The reversal of the conviction by the Court of Appeals more than 2 years before the claim was brought did not require that it be remitted to the trial court to dismiss the indictment, as would have been required in the Appellate Division, and was self-executing. Rodriguez v State of New York

Comment: Unjust conviction is a statutory cause of action intended to be over and above traditional tort remedies. It requires documentary proof (with a great preference for DNA evidence) and clear and convincing evidence. Claimant must show that he/she was innocent as opposed to just a lack of probable cause.

Serious Injury   Expert Aff   ROM   Preexisting  


Plaintiff’s orthopedist failed to explain how the tears seen during surgery were caused by the accident and not the degenerative cysts noted by plaintiff’s radiologist on the shoulder MRI. Defendants’ orthopedists’ affirmed reports found no loss of ROM shortly after the accident and 2 years later after the shoulder surgery. Rosa v Delacruz

(1 summaries)

No-Fault   Confirm Arb   Bus  


Arbitrator’s award of No-Fault benefits to patron who fell when she had to put her walker into the street because the bus driver refused to lower the lift to assist her was “in the use or operation of a motor vehicle,” and confirmed. Matter of New York City Tr. Auth. v Physical Medicine & Rehab of NY PC

About Matt McMahon

Civil trials and appeals since 1984
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