February 28, 2023 | Vol. 354

(5 summaries)

Child Victims Act   Motion to Dismiss   Negligent Supervision   Negligent Hiring   Duty  

Second Department
School district’s motion to dismiss for failure to state cause of action for violation of Social Services Law §413 for not reporting abuse, granted as their janitor was not a ‘person legally responsible’ for her care under the Family Court Act.

School district’s motion to dismiss negligent supervision, hiring, and retention causes of action denied as plaintiff’s allegations that she was sexually abused by the janitor for several months while in elementary school stated a cause of action for negligent supervision, hiring, and retention. Sullivan v Port Wash. Union Free Sch. Dist.    

Malpractice   Spoliation   Accepted Practice   Causation   Experts   Renew   Reargument   Appealable Order  

Second Department
Plaintiff not entitled to spoliation sanctions where certified nursing assistants’ accountability records regarding decedent’s swollen leg, found to have a fracture, were destroyed in a fire at an outside storage facility, not negligently or intentionally by defendant nursing home, nursing assistants’ observations were noted in other reports, and plaintiff deposed one of the assistants. Motion to renew providently denied where new facts would not have changed outcome.

Defendants granted summary judgment on experts’ opinions of no departures from accepted practice or causation and plaintiff’s experts failed to rebut defense experts’ specific assertions. Appeal from denial of motion to reargue dismissed as no appeal lies from denial of a motion to reargue. Barnaman v Bishop Hucles Episcopal Nursing Home    

Labor Law §240   Labor Law §241   Amend BP   Note of Issue   Prejudice   Industrial Code   Falling Object   Sole Cause  

Second Department
Lower court improvidently denied plaintiff’s motion to amend the BP to include additional industrial code provision on his Labor Law §241(6) claim, even after Note of Issue and in response to defendants’ motions for summary judgment, where the amendment had merit, did not prejudice defendants, and did not allege new facts or theories.

Defendants denied summary judgment dismissing Labor Law §240(1) claim where 1000 lb. pipe fell on plaintiff while being hoisted from trailer where facts remained on whether it was adequately secured. Plaintiff and defendants failed to eliminate all questions of whether plaintiff who secured the pipes with a choker strap was the sole cause of the accident. Castano v Algonquin Gas Transmission, LLC    

MVA   Estate   Motion to Dismiss  

Second Department
Attorney for carrier did not have standing to bring motion to dismiss on statute of limitations as he was not retained by the defendant’s estate. Plaintiff’s cross-motion for appointment of the Public Administrator as temporary administrator for deceased defendant should have been granted to ‘avoid delay and prejudice in a pending action’ where Public Administrator had previously been appointed in a related action but not empowered to represent the estate in this action. Franco v Estate of Arthur C. Ketterer    


Second Department
Carrier granted declaratory judgment that it does not have to provide SUM coverage where insured settled underlying personal injury case without first getting carrier’s consent. Insured is presumed to have read and agreed to the policy terms. Soshnick v GEICO Gen. Ins. Co.    

(15 summaries)

Vacate Default   Reasonable Excuse   Meritorious Action   Willful/Contumacious  

Second Department
Lower court improvidently denied plaintiff’s motion to vacate judgment on default under CPLR §5015(a)(1) for not opposing defendant’s motion for summary judgment. Plaintiff’s attorney’s claim of law office failure was reasonable where clerk mistakenly calendared return date as last date to submit opposition, attempted to submit opposition 1-day before return date, and asked for adjournment on return date in order to submit opposition was reasonable as the delay was “brief, isolated, and unintentional” with no indication of willfulness and public policy favors resolution on the merits. Plaintiff showed a meritorious action. Valesquez v Landino    

Discovery   IME/DME   Note of Issue   Untimely   Reasonable Excuse  

First Department
Defendants’ motion for post Note of Issue discovery and IME/DME denied where they did not schedule IME/DME within time provided in a court order, took no actions in months before the COVID shutdown, and did not explain 14-months delay after plaintiff did not show for an IME/DME before attempting to compel her to appear. Excuse of protracted illness and death of attorney handling case rejected where firm had 65-attorneys and lack of diligence is not “unusual or unanticipated circumstances” justifying post Note of Issue discovery. Partow v Van Owners Purch. Bur., Inc.    

MVA   Bus   Duty   Dangerous Condition  

First Department
Plaintiff granted summary judgment where he slipped on ice when exiting rear passenger doors of NYCTA bus as driver saw ice on sidewalk before opening rear passenger doors, breaching common carrier duty to provide a safe place for passengers to alight. Driver should have kept rear doors closed and required passengers to exit from front doors where there was no ice. Whether plaintiff heard the bus driver instruct passengers to exit from the front door was irrelevant where the rear doors were opened. Webb v New York City Tr. Auth.    

MVA   VTL §1104   Reckless  

Second Department
Police department and officer showed U-Turn to pursue vehicle that went through stop sign while driver was on hand-held phone was protected by VTL §1104(b) reckless standard but failed to eliminate question of whether officer was reckless on testimony that he looked at the offending vehicle in his driver’s side mirror and did not look back at the road until plaintiff’s vehicle, traveling in the same direction as the vehicle being chased, was a half car length away without activating his turn signal, lights, or siren. Bourdierd v City of Yonkers    

Labor Law §240   Labor Law §241   Labor Law §200   Control   Notice  

First Department
Auto salesman who occasionally did property management type work for his employer, a principal of defendants that owned/managed the building where plaintiff was injured while videotaping premises vacated by a commercial tenant, was not a covered person under Labor Law §§240(1), 241(6) but lower court should not have dismissed Labor Law §200 and negligence claims on the same grounds. Negligence and §200 claims properly dismissed where none of the defendants were aware of a loose wire after the ceiling portion of a truck lift was removed and they did not supervise or control the removal. DeJesus v 935 Bronx Riv. Ave., LLC    

Premises Liab   Stairs   Construction Liab.   Create Condition   Notice   Last Inspection   Trivial   3rd Party Contractor   Espinal  

Second Department
Building owners granted summary judgment on proof they neither created nor had notice of construction debris on exterior stairs where plaintiff slipped and their super inspected and cleaned the construction debris according to their established schedule 5-hours before plaintiff’s fall. Plaintiff did not show the schedule was ‘manifestly unreasonable.’

Construction defendants denied summary judgment where issues remained on whether they launched an instrumentality of harm under Espinal and they failed to show the condition was trivial. Bradley v US Brownsville III Hous. Dev. Fund Corp.    

Labor Law §240   Scaffold   Sole Cause  

First Department
Plaintiff entitled to summary judgment under Labor Law §240(1) on his testimony that he and his boss fell 16′ when they stepped on unsecured scaffold planks. Plaintiff could not be sole proximate cause where there was a violation of §240. Francis v 3475 Third Ave. Owner Realty, LLC    

Labor Law §240   Labor Law §200   Ladder   Safety Devices   Control   Dangerous Condition   Create Condition  

First Department
Plaintiff met burden for summary judgment on Labor Law §240(1) on his testimony he slipped on wet A-frame ladder while trying to repair overhead leak and defendant failed to provide him with adequate safety devices. Inconsistencies in plaintiff’s testimony did not raise an issue because they did not dispute his testimony that he injured his shoulder when he slipped and used a wrench to try to stop from falling. Plaintiff also granted summary judgment on Labor Law §200 and negligence claims, even though defendant did not control the means and methods of his work, on proof defendant’s workers created the condition by breaking the pipe. Lindsay v CG Maiden Member, LLC    

Premises Liab   Stairs   Out of Possession  

First Department
Building owner granted summary judgment dismissing plaintiff’s claim for fall down stairs to basement where doors on sidewalk outside premises were left open by tenant on proof it was an out of possession owner and accident was caused by tenant’s negligence, not a structural or design defect. De Paz v 4221 Broadway Owner LLC    

Premises Liab   Building Code   Experts   Causation   Create Condition   Notice   Last Inspection  

First Department
Hospital denied summary judgment as conflicting expert opinions on whether ramp at entrance to hospital was defective, violated related building codes or industry standards, and whether decedent’s fell from his motorized scooters turning over when the rear wheel contacted an elevated lip or from him trying to stand on one leg raised issues of fact. Defendant failed to meet burden of showing it did not create or have constructive notice of a dangerous condition where it did not submit evidence of the ramp’s construction in 1993, admitted it had not been repaired since 1993, and did not show the last time the ramp was inspected/cleaned before plaintiff’s accident. Bossert v New York Univ. Langone Med. Ctr. Tisch Hosp.    

Premises Liab   Trivial   Notice   Experts   Speculation  

First Department
Defendants granted summary judgment on proof expansion joint was trivial under the circumstances as it was in a well-lit hotel hallway with contrasting carpet patterns and colors, had very shallow slopes on the sides of the expansion joint, and plaintiff walked over the expansion joint several times over several days without incident. Where defendants showed the defect was trivial, they were not required to show lack of notice. Photographs submitted by plaintiff showing exact area where her toe caught the joint did not raise an issue as her expert failed to measure the height differential at that point, making the report speculative. Florsheim v Marriott Intl., Inc.    

MVA   Rear End   Nonnegligent Explanation   Comparative Fault  

Second Department
Plaintiff granted summary judgment on his affidavit that he was stopped when struck in the rear by defendants’ vehicle. Witness affidavit that plaintiff was backing up when struck in the rear, submitted by defendants, did not provide a nonnegligent explanation but raised an issue on comparative fault. Plaintiff was not required to show freedom from comparative fault for summary judgment. An v Abbate    

MVA   Nonnegligent Explanation   Comparative Fault   There to be Seen  

First Department
Plaintiff granted summary judgment against taxi owner and driver on proof taxi driver failed to yield right-of-way to vehicle entering intersection from perpendicular street without a stop sign. Taxi driver’s testimony he stopped at stop sign and looked both ways without seeing other vehicle before entering did not provide a nonnegligent explanation. One plaintiff’s testimony that taxi driver closely followed a van into intersection, and taxi driver’s testimony regarding where other vehicle was raised issues on whether other vehicle could have avoided the accident, denying other defendants’ motion to dismiss taxi defendants’ cross-claims. Fernandez v Bright Leasing Corp.    

MVA   Rear End   Nonnegligent Explanation   Comparative Fault   Premature Motion  

Second Department
Plaintiff granted summary judgment on his affidavit that he was stopped when struck in the rear by defendants’ vehicle. Defendants failed to show a nonnegligent explanation and plaintiff was not required to show freedom from comparative fault for summary judgment. Motion was not premature. Balgobin v McKenzie    

Premises Liab   MVA   Causation  

Second Department
Homeowner granted summary judgment dismissing claim of motorcycle passenger injured when driver swerved to avoid another motorcycle and struck a boulder in homeowner’s yard on proof the boulder was not a proximate cause of the accident. The Court does not give the details of the proofs. Figueroa v Figueroa    

Comment: Decision confirming grant of summary judgment Figueroa v Klug.
(2 summaries)

Arbitration   Uninsured   Burden of Proof   Reargument   Hearing  

Second Department
Carrier for vehicle injured parties were passengers in when struck by a possibly uninsured vehicle met burden for permanent stay by its investigator’s affidavit that a property claim for the same accident was made to a different carrier, a proposed additional respondent, but plaintiff raised an issue on whether that carrier’s insured was involved in the accident. Lower court granted motion to reargue but should have modified its prior order and issued a temporary stay until a fact finding hearing resolved the issue. Matter of Infinity Indem. Ins. Co. v Leo    

Serious Injury   Causation  

Second Department
Defendants met burden for summary judgment on serious injury by competent medical proof that the infant-plaintiff’s head and brain injuries were not caused by the MVA accident but plaintiffs raised an issue in opposition. The Court does not give the details of the proofs. H. F. v Lisker    

About Matt McMahon

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