February 4, 2020 | Vol. 196

(7 summaries)

Med Mal   Motion to Dismiss   Duty  

First Department
Defendants who treated infant plaintiff’s older brother before infant-plaintiff was born owed no duty to the infant plaintiff to advise his parents of possibility he would be born in an impaired state and plaintiffs’ claim that defendants’ malpractice delayed diagnosis of older brother depriving them of ability to terminate pregnancy of the infant-plaintiff did not establish malpractice as the defendant owed no duty to the infant plaintiff at that time. Wrongful life case on behalf of infant plaintiff dismissed. John v De Vivo

Set Aside Verdict   Appealable Order  

First Department
Sua sponte grant of mistrial in summary jury trial (SJT) likely based on clear evidentiary ruling error during trial reversed as under Bronx rules for SJT’s, parties waived the ability to set aside a verdict or judgment. The rules do not prohibit posttrial motions and the parties were free to stipulate to rules different than the court approved rules barring motions to set aside. Vargas v LaMacchia

Premises Liab   Assumption of Risk   Causation   Foreseeability   Create Condition   Notice  

Second Department
Upholding lower court’s grant of summary judgment for defendants, the Second Department made clear that the assumption of risk doctrine should be applied only to ‘sporting events, sponsored athletic and recreative activities, or athletic and recreational pursuits that take place at designated venues,’ finding that using a swing at a playground does not invoke the doctrine. The plaintiff’s jamming his hand while trying to “rescue” his daughter because an improperly installed swing swung crookedly with 1 chain longer than the other was not a foreseeable consequence of the improper installation and the rescue doctrine did not apply where the child was not in life-threatening peril. School did not create the condition or have notice of it. Raldiris v Enlarged City Sch. Dist. of Middletown

Premises Liab   Slip/Trip   Out of Possession   NYC  

Second Department
NYC denied summary judgment for failing to meet test of out of position owner where it granted a “permit” for plaintiff’s employer to park its school buses, which is a license not a lease with the lessor presumptively retaining control, permit gave some responsibility to bus company to maintain lot but reserved “full and uninterrupted access” to NYC who could cancel the permit any time, and NYC routinely inspected the parking lot. D’Angelo v City of New York

Wrongful Death   Duty   Causation   Expert Aff   Question of Fact  

Second Department
Plaintiff granted partial summary judgment on health club’s failure to meet its limited common law duty to provide aid to patrons suffering a heart attack during athletic activities on their premises where sole attendant was not given training on how to respond to emergencies and refused to go into ladies room after another patron advised him that a woman passed out in a bathroom stall or to call 911, delaying aid by approximately 4.5 minutes. Questions of fact remained on whether delay deprived decedent of chance of recovery based on conflicting expert opinions. Plaintiff’s claim for treble damages under GBL §628, based on GBL §627-a requiring health clubs to have an AED device dismissed as that section does not require that the health club use the AED device. Hamlin v PFNY, LLC

Labor Law §241   Amend Notice of Claim   Amend Complaint   Industrial Code   Sole Cause  

Second Department
Plaintiff’s motion to amend Complaint and Notice of Claim to add specific industrial code sections granted, even after Note of Issue, because defendants were not prejudiced where it did not add new facts or theories. Town and construction company denied summary judgment of Labor Law §241(6) where questions remained on whether plaintiff was sole cause of accident. Matute v Town of Hempstead

Expert Aff  

First Department
Defendants’ motion for summary judgment providently denied for far exceeding page limits under 22 NYCRR 9.1 and court found that if it had reviewed motion it would have been denied based on conflicting expert opinions. Hornsby v Cathedral Parkway Apts. Corp.

(17 summaries)

Premises Liab   Elevator   Notice   Res Ipsa Loquitor   Expert Aff   Conclusory  

First Department
Defendants granted summary judgment where elevator plaintiffs were in fell 39 floors on defendants’ mechanic’s opinion that it was electrically and mechanically impossible for elevator to drop as plaintiffs claimed and that they did not have notice of any condition that could cause the fall. Plaintiff’s expert’s opinion in opposition was conclusory because it did not address defendants’ mechanic’s findings and res ipsa loquitor didn’t apply where plaintiff failed to show that elevator stoppage was the type of event that ordinarily did not occur absent negligence. Cinquemani v Otis El. Co.

Building Security   Circumstantial Evidence   Question of Fact   Notice   Last Inspection  

First Department
NYCHA failed to eliminate question of fact on whether the assailant who shot plaintiff gained access to building through a negligently maintained entrance where jury could infer from plaintiff’s testimony that assailant spoke to him outside building asking where he could obtain drugs and saw him again when he opened the door to the stairwell on his floor, that the door was unlocked that day and the day before, that he knew the residents in the building and could identify the assailant who was not a resident if shown a picture. NYCHA’s last inspection was 2-days before incident and they were aware of need to repair lock from a robbery 18-months before the assault. Clotter v New York City Hous. Auth.

Med Mal   Accepted Practice   BP   Raised For First Time   Expert Aff   Admissibility  

Second Department
Hospital granted summary judgment on expert’s opinion that doctors who performed angiogram for a spinal dural arterial venus fistula and 2-days later performed spinal embolism comported with accepted medical practice, plaintiffs agreed that the doctors did not depart from accepted medical practice, and broad allegations of malpractice against hospital by its employees were insufficient to put hospital on notice of plaintiffs’ new theory, raised the first time in reply, that its staff failed to administer Decadron and Heparin as prescribed. Plaintiff’s expert’s affirmation should not have been considered under CPLR §2106 because he was not licensed to practice in New York. Bacalan v St. Vincents Catholic Med. Ctrs. of N.Y.

Labor Law §240   Labor Law §241   Labor Law §200   Safety Devices   Sole Cause   Comparative Fault   Industrial Code   Control   Workers Comp Defense   Grave Injury  

First Department
Electrician who fell through unprotected floor opening entitled to summary judgment on Labor Law §240(1) whether he fell from ladder or while climbing over a barricade because defendants failed to provide safety device to prevent the fall and his decision to climb 4′ barricade was at most comparative fault and not sole proximate cause of fall. Defendants denied summary judgment on Labor Law §241(6) based on industrial code § 23-1.7(b)(1)(hazardous opening) but industrial codes §§ 23-1.7(f) & 23-1.22(c) not applicable. General contractor denied summary judgment on Labor Law §200 and negligence claim where it did not have authority to supervise means and methods of plaintiff’s work but did have authority to supervise proper barricading of the stairwell.

Contribution and indemnity claim by defendant against employer dismissed on finding of no grave injury where plaintiff’s physician did not find “unemployability in any capacity,” and claim would be barred by Worker’s Comp. exclusivity. Court also decided remaining contribution and indemnity claims. Sotarriba v 346 W. 17th St. LLC

Premises Liab   Slip/Trip   Snow/Ice   Storm in Progress   Control  

First Department
Defendants failed to make out storm in progress with climatological data showing no precipitation at time of accident and only trace amounts for hours leading to accident. Questions of fact remained on cross-claims where tenant claimed landlord had snow removal obligation but tenant had some obligation for snow removal under lease and there was proof that both managing agent and tenant performed snow removal. Issue remained on whether managing agent had control of premises precluding summary judgment. Tracy v 29-33 Convent Ave. Hous. Dev. Fund Corp.

Attorney Fees   Vacate Default   Reasonable Excuse   Meritorious Action  

Second Department
Motion by third and last firm representing plaintiff to vacate default order denied for failure to show reasonable excuse for failing to appear for hearing to determine allocation of fee and whether first-firm was fired for cause where it sent per diem attorney to ask for adjournment on day of hearing and on next day after being granted a 1-day adjournment as it did not produce evidence that partner was out of country at time. Court need not look to whether movant had meritorious claim absent reasonable excuse. Court found first-firm entitled to 20%, second and third firms each entitled to 40% ($96,666.62) of fee. Grant of 1-day adjournment was provident exercise of discretion. Third-firm had paid itself $120,000 of $241,666.58 attorney fee before any of the motions. Hayden v Vevante

Labor Law §241   Industrial Code  

First Department
Plaintiff’s and defendants’ motions for summary judgment on Labor Law §241(6) based on industrial code §§ 23-1.25(d), (e)(1), (e)(3), and (f)(welding and flame cutting operations) denied where plaintiff was injured while installing 200lb refrigeration condenser several weeks after he installed 3-300lb condensers as part of build-out on question of whether installation of last unit was an “alteration” under §241(6). Rodriguez v Antillana & Metro Supermarket Corp.

Premises Liab   Independant Contractor   Duty   Create Condition   Raised For First Time  

Second Department
Utility companies granted summary judgment on proof that steel plate that popped up causing plaintiff’s car to go into hole was placed by independent contractor they hired to do construction work. Where plaintiff first argued utility companies assumed duty in contract in opposition, proof that they did not submitted for first time in reply was properly considered. Utility companies’ argument that NYC was entitled to summary judgment without proof of prior written notice of claim not considered as it was raised for the first time in reply. Hussain v City of New York

Premises Liab   Slip/Trip   Wet Floor   Survelliance Video   Warnings   Create Condition   Open/Obvious   Vicarious Liab  

Second Department
Defendants denied summary judgment where surveillance video showed floor stripper moved warning sign from in front of elevator to side just before plaintiff exited elevator and slipped on floor wet with stripping solution, failing to show they did not create condition or that it was open/obvious and not inherently dangerous. Owner failed to show it could not be responsible for floor stripper’s actions as part of its nondelegable duty to keep premises safe. Monroy v Lexington Operating Partners, LLC

Premises Liab   Slip/Trip   Wet Floor   Workers Comp Defense  

First Department
Defendant’s motion and plaintiff’s cross motion for summary judgment denied where there was question of whether plaintiff was a special employee of defendant when he slipped and fell on a recently mopped floor based on evidence that decision as to where he would work was made by his general employer and not the defendant. Pewritt v Compass Group, USA, Inc.

Premises Liab   Duty  

First Department
Landlord granted summary judgment where tenant injured in apartment fire claimed landlord failed to maintain smoke detector on proof that landlord complied with requirement to install smoke detector switching burden to maintain smoke detectors to tenant. Tenant’s claim that landlord voluntarily assumed duty by inspecting smoke detector rejected without proof that tenant justifiably relied on landlord’s inspection placing him in a worse position. Figueroa v Parkash

Labor Law §240   Ladder   Speculation  

First Department
Third-party defendant’s motion for summary judgment denied where plaintiff testified that ladder slipped while he was performing electrical work because it was on plastic tarp placed the day before by painters and excerpts of painting contractor’s testimony that its policy was not to use plastic tarps to establish it did not place the tarp that caused the ladder to fall was speculative. Scotto v 315 Park Ave S, LLC

Premises Liab   Slip/Trip   Stairs   Unknown Cause  

Second Department
Landlord granted summary judgment on proof that injured plaintiff could not identify what caused her to fall on exterior stairs as she was leaving building and plaintiffs’ submissions, including expert’s accident location report, failed to raise issue of fact without speculation. Miranda v Leone Realty, Inc.

MVA   Train   Duty   Feigned Issue  

First Department
NYCTA granted summary judgment where plaintiff, suffering from food poisoning, got off train and lost consciousness falling backwards while trying to get fresh air and his leg got caught in a cable as train was moving fracturing his leg on proof that the train was moving when plaintiff fell unconscious and NYCTA would not have owed him a duty as it wouldn’t have had notice of the potential danger. Danis v John C. Food Corp.

Premises Liab   Notice   Duty  

First Department
Pizza shop where ceiling collapsed on plaintiff and building owner denied summary judgment on question of fact of constructive notice as they had duty to reasonably inspect ceiling and would have constructive notice of latent defect if a reasonable inspection would have discovered the defect. Restaurant above pizza shop denied summary judgment where its expert acknowledged that wooden lath from plaster that fell showed water damage and there was history of leakage from the restaurant. Bentley v All-Star, Inc.

MVA   There to be Seen   Sole Cause  

Second Department
Driver entering uncontrolled intersection where street fair and construction taking place at 25 mph with foot on gas failed to show freedom from fault necessary to establish that plaintiff riding her bicycle on perpendicular street was sole proximate cause of the accident given the conditions present. Ballentine v Perrone

False Arrest   False Imprisonment   Motion to Dismiss   Qualified Immunity   NYC  

First Department
Plaintiff’s claims for false arrest and false imprisonment dismissed where his allegations show that arrest and detention for mental evaluation was privileged under Mental Hygiene Law § 9.41. Abascal-Montalvo v City of New York

(1 summaries)

Labor Law §240   Ladder   Sole Cause  

First Department
Plaintiff’s testimony that piece of Masonite supporting ladder kicked out causing him to fall made out prima facie entitlement to summary judgment but defendants raised issue of fact in opposition. The court does not give the details of the proofs. Cortes v Madison Sq. Garden Co.

About Matt McMahon

Civil trials and appeals since 1984
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