February 27, 2024 | Vol. 406

(5 summaries)

Labor Law §241   Industrial Code   Dangerous Condition   Inherently Dangerous  

Court of Appeals
The Court of Appeals found that a slippery plastic sheeting placed on the escalator the plaintiff-painter slipped on as he started his work was a “foreign substance” under industrial code §23-1.7(d) as it was not a part of the escalator, without needing to find that it was analogous to the exemplar hazards listed in the code, and that it was not integral to the work where it was inherently dangerous and there were safer alternatives. Concurring opinion would have found it a foreign substance because it shared the same hazardous properties of “ice, snow, water, and grease” listed in §23-1.7(d) and not because it was not a part of the escalator. Bazdaric v Almah Partners LLC    

Comment: The First Department decision was reported in Vol. 307.

Malpractice   Set Aside Verdict   CPLR Art. 16  

Second Department
Plaintiffs’ repeated CPLR §4202 motions for a new trial in the interests of justice on claim defendants, general practitioner and hospital, were trying to shift blame to the cardiac surgeon and anesthesiologist who had been granted summary judgment, providently denied where defendants’ experts opined the patient suffered a transient heart arrhythmia that caused his respiratory arrest rather than failure to give a medication the GP failed to list on the surgical clearance form, all experts agreed the surgeon and anesthesiologist were aware of the respiratory medication even though it was not listed on the form, and defendants’ experts did not claim the surgeon and anesthesiologist were at fault.

Verdict finding the GP departed from accepted practice but was not a cause of the respiratory arrest, and that the hospital did not depart from accepted practice as its personnel appropriately responded to the patient was not against the weight of the evidence as the jury could find the patient’s respiratory arrest was caused by transient arrhythmia, not any failure to provide a medication. Angieri v Musso    

MVA   VTL §1104   Reckless   Capacity to Sue  

Second Department
Town and its police officer failed to meet burden for summary judgment dismissing plaintiff’s claim for injuries when his vehicle was struck by vehicle being chased by the police officer where officer and other witnesses testified he officer pursued the chase at high speeds, on damp roads, through a main thoroughfare, and the pursed vehicle narrowly avoided colliding with other vehicles early in the chase, leaving questions on whether the officer’s conduct was reckless under VTL §1104, whether he activated his siren, and violated protocols by not updating his supervisors during the chase.

Town and officer granted summary judgment dismissing claim of pursued driver as driving erratically and speeding to avoid the police was a serious violation of the law which barred the pursued driver from bringing suit for injuries and wrongful death. Kolvenbach v Cunningham    

Set Aside Verdict   Bicycle   Assumption of Risk   Court of Claims  

Second Department
Court of Claims judgment finding claimant, injured when he fell from his bicycle on loose asphalt as he attempted to go around 2-pedestrians on a public-park path, had assumed the risks by bicycling at a designated venue reversed and remanded for a new decision. Assumption of risk did not apply as “the path was for public use, and not a designated venue for bicycling” where it was not designated exclusively for bicycle riding. Alfieri v State of New York    

Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice  

First Department
Petition to serve late Notice of Claim 14-months after the accident providently granted where NYCTA had the opportunity to investigate the essential facts from the presence of a NYC police officer on the scene, was not prejudiced, and petitioner was incapacitated from her injuries and the convergence of Covid where she was hospitalized for 2.5-months and was unable to timely obtain counsel and prepare the Notice of Claim. Matter of Mejia v New York City Tr. Auth.    

Comment: From the lower court order, plaintiff fell in a gap between a train and the station resulting in amputation of her legs.
(15 summaries)

Malpractice   Motion to Dismiss   90 Day Notice   Note of Issue   Reasonable Excuse   Meritorious Action  

First Department
Motion to dismiss for failure to file a Note of Issue within time set in 90-day notice granted even though plaintiffs showed a justifiable excuse for not timely filing the Note of Issue where they failed to “submit the affidavit of a medical expert demonstrating the merits of the [dental malpractice] action.” Arias v Vecchione    

Malpractice   Vacate Default   Renew   Reasonable Excuse   Reargument   Appealable Order  

Second Department
Plaintiff’s motion to renew motion to vacate dismissal for failure of his substituted attorney to file a notice of appearance or appear at a conference 2-weeks past the deadline to obtain new counsel denied where the new facts submitted were available to plaintiff at the time of the original motion, plaintiff failed to offer reasonable justification for not submitting the facts on the original motion, and the new facts would not have changed the determination. Appeal from denial of motion to reargue dismissed as no appeal lies from denial of a motion to reargue. MD Aminul Islam v New York City Health & Hosps. Corp.    

Vacate Default   Untimely   Reasonable Excuse   Meritorious Defense  

First Department
Defendant’s motion to vacate default judgment denied where filed beyond than 1-year CPLR §5015(a)(1) deadline after service of the order granting default judgment with notice of entry. Defendant failed to show a reasonable excuse with claim carrier failed to assign counsel as defendant did nothing to ensure carrier assigned counsel and failed to show a meritorious defense. Martucci v 500 W25th Owner LLC    

Discovery   Strike Answer   Preclusion   Sanctions   Good Faith Aff  

Second Department
Plaintiff’s motion to strike university’s Answer, preclude it from offering testimony at trial, or compel it to provide a full response to plaintiff’s post-EBT discovery demand denied where plaintiff failed to include an affirmation of good faith on her motion. Sanchez v St. John    

Motion to Dismiss   Note of Issue   Errata Sheet   Create Condition   Discovery   NYC  

First Department
NYC’s motion to dismiss for failure to comply with Notice of Claim requirements granted where Notice of Claim, Complaint, BP, and 50H alleged plaintiff fell in a crosswalk at a different intersection than the one he testified at deposition, he was previously alerted to the discrepancy from a prior summary judgment order yet made no attempt to correct the discrepancy by an errata sheet or amendment, and sought discovery regarding the correct intersection. Plaintiff’s counsel’s claim that the original intersection was correct, not probative as counsel lacked personal knowledge.

Con Edison granted summary judgment on its employees’ testimony and documents showing they did no work at the location alleged in the BP for 2-years prior to the accident and plaintiff failed to submit evidence to contradict Con Ed’s proof, show there was outstanding discovery, or that he was entitled to discovery on the intersection not contained in the pleadings. Burtz v City of New York    

Premises Liab   Construction Liab.   Duty   Control   Espinal   3rd Party Contractor   Vicarious Liab   Waiver  

First Department
Condominium management company denied summary judgment where its contract and property manager’s testimony raised issues of whether it controlled the areas where plaintiff was struck by a screwdriver dropped by window installers and whether it wholly displaced the owner’s obligation to safely maintain the area under Espinal. Window manufacturer’s motion for summary judgment dismissing management company’s cross claims on claim window installers were independent contractors denied on proof the installer who dropped the screwdriver worked exclusively on the window manufacturer’s jobs for 10-hours a day for 3-years, was occasionally paid directly by the window manufacturer, and installer and coworkers wore shirts with the window manufacturer’s logo, leaving questions on whether he was its employee.

Plaintiff waived reinstatement of claim against window manufacturer where he did not appeal the lower court’s grant of summary judgment. Brown v Window King LLC    

Premises Liab   § 7-210   Create Condition   Subsequent Repairs   NYC  

Second Department
Abutting landowner granted summary judgment dismissing infant’s claim for fall from her scooter on uneven cobblestone on proof it did not owe a duty under administrative code §7-210 as the incident occurred within a tree well owned by NYC and it did not create the dangerous condition or cause the hazard through special use. Abutting landowner’s subsequent repairs did not raise an issue on whether it had a duty to maintain the tree well. Marcano v City of New York    

Labor Law §240   Stairs   Gravity Risk   Safety Devices   Sole Cause   Experts  

First Department
Worker carrying 200 lb. mold with his foreman up permanent stairs, after the foreman refused his request to provide a hoist, granted summary judgment on Labor Law §240(1) after they repeatedly hit a vertical support causing plaintiff to slip and fall down stairs for failure to provide a proper safety device. Fact that the stairs were a permanent structure did not take it out of §240 protection. Plaintiff could not be sole cause of the accident where he was following foreman’s instructions. Conflicting expert opinions did not raise an issue where they did not disagree that a safety device was necessary but only as to which hoist should have been provided. DaSilva v Toll GC LLC    

Labor Law §240   Labor Law §241   Labor Law §200   Ladder   Agent   Indemnity  

Second Department
Plaintiff failed to meet burden for summary judgment on Labor Law §§ 240(1) and 241(6) against contractor where there was conflicting evidence of how or even whether plaintiff fell from a defective ladder and whether a defective ladder was the cause of his fall. Contractor failed to show it was not an agent of the GC and denied summary judgment dismissing Labor Law §200 and negligence claims where questions remained of whether it had authority to control plaintiff’s work and the worksite. Contractor’s motion for summary judgment dismissing indemnity claims against it denied as questions remained on its negligence. Moran v Trustees of Columbia Univ. in the City of N.Y.    

Malpractice   Accepted Practice   Res Ipsa Loquitor   Experts   Speculation  

First Department
Plaintiffs failed to meet burden for summary judgment on nursing-expert’s opinion that defendants’ home care aide deviated from accepted practice by failing to stop pumping the Hoyer lift when the decedent started to slip which was speculative where neither the home aide’s ambiguous testimony nor video where incident took place offscreen demonstrated operator error and there were no other witnesses. In any event, defendants’ expert’s opinion the home care aid operated the lift within the standard of care and decedent could have slipped out of the lift for other reasons raised issues on departure and whether falls from the lift can happen absent negligence for res ipsa loquitor. Plaintiff also failed to show exclusive control where other aides used and adjusted the lift. Estate of Osorio v J. & P. Watson, Inc.    

Premises Liab   Snow/Ice   3rd Party Contractor   Duty   Espinal   Vicarious Liab  

Second Department
Snow/ice removal contractors failed to meet burden for summary judgment dismissing claim of mechanic who slipped on ice while inspecting a vehicle outside auto shop where plaintiff alleged Espinal exceptions that they launched an instrumentality of harm and wholly displaced the owner’s obligation to maintain the premises without eliminating questions of fact of whether the contractor that contracted with the building owner launched an instrumentality of harm through its admitted snow/ice removal prior to plaintiff’s fall, and the other contractor failed to show the contractor that performed the snow removal was an independent contractor and not its agent, servant, or employee.

Plaintiff’s motion for summary judgment denied where questions remained on whether the snow/ice contractors owed him a duty. Nesbitt v Advanced Serv. Solutions    

Serious Injury   Causation   Preexisting   Degenerative   ROM   Experts   Uncertified Records   Speculation   BP  

First Department
Defendant met burden for summary judgment on serious injury by radiologist’s opinion that positive spine MRI findings were pre-existing and degenerative, shoulder MRI was negative, and orthopedic surgeon’s findings on IME/DME of normal ROM and no positive findings on examination. Defendant’s orthopedic expert was not required to review plaintiff’s medical records before the examination.

Plaintiff failed to raise an issue on unaffirmed medical records, plaintiff’s prompt return to work with minimal treatment for 6-months that showed the injuries were minor, and his treating doctor’s opinion of permanency which was speculative where there was a 3.5-year gap in treatment between her examinations. Issue of lumbar injury not considered where it was not contained in plaintiff’s BP. Perez v Ahadzi    

Serious Injury   ROM   Causation   Experts   Unaffirmed Report   Admissibility  

First Department
Defendants granted summary judgment on serious injury on their orthopedic-surgeon’s report showing no ROM limitations or objective evidence of disability or permanency and radiologist’s opinion that plaintiff’s injuries were not caused by the accident where the MRI showed long-standing conditions without recent trauma and plaintiff had a back injury from a prior accident. Plaintiff failed to raise an issue by his treating orthopedist’s unsigned report which, even if admissible because defendants did not object, was too remote to show causation where based on a single examination 4-years after the accident and it did not address plaintiff’s medical condition from his prior or current accident. Rosado v Haidara    

Premises Liab   Sidewalk   Question of Fact  

First Department
Plaintiff failed to meet burden for summary judgment where his notarized Notice of Claim identified a sidewalk address different from his testimony, Complaint, and BP and did not mention the grate plaintiff slipped on and differing accounts of how the accident occurred in his medical records left issues of fact that could not be resolved on summary judgment. Vargas v Con Edison Co. of N.Y., Inc.    

MVA   Rear End   Nonnegligent Explanation   Comparative Fault  

Second Department
Plaintiff granted summary judgment on his affidavit showing defendants’ vehicle rear-ended his vehicle and defendants failed to show a non-negligent explanation for the rear end hit. Plaintiff denied dismissal of comparative fault where defendants raised issue of whether plaintiff’s vehicle rear-ended the lead vehicle before being rear-ended by their vehicle. Abramov v Martinez    

(1 summaries)

Attorney Fees   Discovery  

First Department
Law firm’s motion for a portion of the fee on a settlement, claiming it was the original attorney, denied where it did not produce a retainer agreement, commence the action, or appear in the case and, therefore, failed to show it was entitled to a charging lien or had standing in the underlying personal injury case. Law firm’s remedy would be to start a separate plenary action where it would be entitled to the discovery it sought. Camacho v G&R Garage    

About Matt McMahon

Civil trials and appeals since 1984. Retired partner McMahon | McCarthy.
Bookmark the permalink.

Comments are closed.