| MUST READS (6 summaries) | |||
| NOTEWORTHY | IF YOU MUST READ | ||
 Owner of vehicle being towed by truck which struck van with plaintiff as passenger denied summary judgment where it admitted the truck had permission to tow the vehicle as once attached for tow the 2-vehicles are jointly and severally liable and defendant failed to rebut VTL §388(1) presumption of permission. Argument that Graves Amendment barred recovery rejected where raised for first time on reply not in response to any of plaintiff’s arguments and, in any event, defendant failed to show it was a commercial lessor or that there was a lease. Martinez v Stericycle, Inc. ✉ |
 In a case of first impression, the Second Dept reversed a permanent stay of respondent’s SUM arbitration against his personal vehicle carrier for injuries in a MVA while he was driving a police vehicle, granted by the lower court based on Ins. L.§3420 exclusion of police vehicles from definition of “motor vehicle,” where the SUM endorsement extended benefits to him as the principal named insured for “damage caused by an uninsured motor vehicle” without requiring he occupy a motor vehicle at the time of the accident, as opposed to the definition of “insured” which required any person occupy a motor vehicle, and the interpretation was supported by dicta in the Court of Appeals Fitzgerald and Amato cases. Matter of Esurance Ins. Co. v Burdeynyy ✉ |
| Defendants who rear-ended the vehicle with plaintiffs driver and passengers raised an issue on nonnegligent explanation in opposition to plaintiffs’ prima facie showing of entitlement to summary judgment by its driver’s affidavit that plaintiff-driver stopped short on the Van Wyck Expressway for no apparent reason when there were no cars in front of it, which also raised an issue on whether the accident was staged. Defendants’ motion to amend the Answer to include a fraud claim granted as not devoid of merit. Gimenez v Pepsi-Cola Bottling Co. of N.Y., Inc. ✉ |
| Lower court did not have authority to deny motion for summary judgment by driver of vehicle with plaintiff as passenger because it was filed before Note of Issue in contravention of a compliance conference order staying all summary judgment motions until after Note of Issue as CPLR §3212 permits summary judgment motions any time after joinder of issue. That defendant granted summary judgment on proof codefendants’ vehicle rear-ended her vehicle while she was slowing in traffic. Jackson v Islam ✉ |
| Lower court erred in denying petition to serve Notice of Claim or deem late Notice of Claim timely served nunc pro tunc, brought 5.5-years after plaintiff claimed he was falsely arrested, tasered, and severely beaten by police officers, and in granting NYC’s motion to dismiss as beyond the 1-year and 90-day statute of limitations without an evidentiary hearing to determine petitioner’s claim he suffered schizophrenia and psychotic disorders as a result of his injuries and was entitled to the CPLR §208(a) insanity toll, which is a question of law that should be narrowly construed and applied ‘only [to] those individuals who are unable to protect their legal rights because of an over-all inability to function in society’ in order to determine whether and for what period of time the toll applied. Case remanded for an evidentiary hearing. Matter of Sinclair v City of New York ✉ |
| Abutting landowners of owner occupied single-family home granted summary judgment dismissing plaintiff’s claim for trip and fall on hole in curb cut as they had no duty to maintain curb under administrative code §7-210 and they showed they did not “affirmatively create, voluntarily but negligently repair, or create through a special use of the sidewalk” the defect. Even if the hole was created by a prior owner’s special use of the curb cut as a driveway, the current owner had no duty to maintain it where they did not continue to use it as a driveway. Byrams v Hamilton ✉ |
| NOTEWORTHY (22 summaries) | |||
| MUST READS | IF YOU MUST READ | ||
| Plaintiff’s motion to set aside liability defense verdict as against weight of the evidence denied “as the record was not ‘replete with evidence of negligence’” and jury could reach its decision on a fair interpretation of hospital security guard’s testimony that plaintiff did not mention she thought puddle of water she slipped on near ER came from an IV bag when interviewed shortly after the accident and maintenance supervisor’s testimony that patients sometimes remove IV bags and leave the ER, leaving credibility questions for the jury on whether the hospital created or had actual or constructive notice of the condition. Thompson v Northwell Health, Inc. ✉ |
| Plaintiff’s motion to set aside defense verdict as against the weight of the evidence and in the interest of justice denied where jury could reach the verdict on a fair interpretation of plaintiff’s and store employee’s conflicting testimony as to what caused the collision between the plaintiff’s shopping trolley and store’s power jack. Defense counsel’s remarks were either fair comment or not so prejudicial as to deprive plaintiff of a fair trial. Bacchus v Restaurant Depot, LLC ✉ |
| Plaintiff’s motion for leave to enter default judgment against a defendant, brought 14-months after that defendant’s default, denied and defendants’ CPLR §3215(c) cross motion to dismiss as abandoned where brought more than 1-year after the default granted. Plaintiff’s counsel’s unaffirmed statement in a memorandum of law that delay was due to law office failure caused by multiple Covid infections was speculative and failed to show good cause for the delay. Doe v Garfinkel ✉ |
| NYC granted summary judgment dismissing plaintiff’s claim for injuries when she drove over an uncovered manhole on proof it did not receive prior written notice of the condition, which plaintiff did not dispute. Plaintiff’s special use exception claim rejected as a new theory improperly raised for the first time in opposition where not raised in the Notice of Claim or Complaint. The Court did not address the special use issue. Anderson v City of New York ✉ |
| Honda and Nissan denied summary judgment dismissing plaintiff claims for decedent’s mesothelioma and death from exposure to their asbestos containing products in NY dealerships in the 1960s on personal jurisdiction, even though Florida’s interest outweighed NY’s interest in litigating the matter, as they failed to show interstate federalism concerns outweighed other considerations, including ‘the burden on the defendant,’ ‘the plaintiff’s interest in obtaining convenient and effective relief,’ ‘the interstate judicial system’s interest in obtaining the most efficient resolution of controversies,’ or ‘the shared interest of the several [s]tates in furthering fundamental substantive social policies’ and plaintiff met his burden for long-arm jurisdiction and due process. Beagan v Akebono Brake Corp. ✉ |
| Plaintiffs’ motion for default judgment against funeral home, filed on the same day the county clerk entered the federal remand order, denied as funeral home’s stipulated Answer date 2-weeks earlier was extended when codefendant removed the action to federal court and the case was remanded on the day the federal court Answer was due. State court could not resume the proceedings and the funeral home’s Answer could not be due until a certified copy of the remand order was mailed by the federal clerk to the state Supreme Court clerk, which was not included in the record, making the funeral home’s time to Answer the date the Supreme Court clerk entered the remand order, which was the same date of plaintiffs’ motion. Casiano v R.G. Ortiz Funeral Home Inc. ✉ |
| Bus companies which plaintiff-schoolteacher hired for a class trip granted summary judgment dismissing plaintiff’s injury claim from MVA where the Court had previously upheld dismissal of the same claims by another passenger on the ground they could not be vicariously liable for the actions of the independent contractors they hired. While plaintiff was not in privity with the plaintiff in the other action, the decision was stare decisis, collaterally estopping plaintiff in his separate action. Bragino v Coachman Luxury Transp., Inc. ✉ Comment: The prior decision, Morand v Coachman Luxury Transp., Inc, was reported in Vol. 422 |
| New Jersey Transit Authority’s motion to dismiss on sovereign immunity, claiming it is an arm of the state of New Jersey, denied as that issue was resolved against it by the Court of Appeals in the Colt case. Alvaran v New Jersey Tr. Corp. ✉ Comment: Colt v New Jersey Tr. Corp. was reported in Vol. 446 |
| Defendants’ failed to meet burden for summary judgment dismissing plaintiff’s Child Victims Act claims of negligent hiring, retention, training, and supervision against school district for sexual abuse by his teacher as proof the abuse took place 50-100 times over 2-years in a classroom and school parking lot during school hours left questions of whether they knew or should have known of the teacher’s propensity for sexual abuse. The teacher’s probationary status, proof she was alone with plaintiff in her classroom during some of the incidents, testimony of former students that her inappropriate relation with plaintiff was readily apparent, and fact that she had only one evaluation left questions of whether the district negligently supervised the teacher and plaintiff. Brauner v Locust Val. Cent. Sch. Dist. ✉ |
| Delivery truck driver who fell in 2’x 3’ hole after delivering tiles to be installed by his coworkers granted summary judgment on Labor Law §240(1) as delivering the tiles was “necessary and incidental” to the protected §240 activity. Electrical contractor granted summary judgment dismissing Labor Law §200 claim which only applies to owners, general contractors, and their statutory agents and its work did not encompass tile installation or maintaining the temporary ramp and area around the hole necessary to show supervision and control of the area or specific work causing the accident in order to be an owner agent. Rodriguez v Riverside Ctr. Site 5 Owner LLC ✉ |
| Podiatrist’s experts’ opinions of no departure from accepted practice during diabetic foot and ingrown toenail evaluation or causation for plaintiff’s gangrenous condition requiring amputation of her toe did not meet burden for summary judgment where they failed to address and were directly contradicted by plaintiff’s testimony that defendant dug into the side of her toenail, breaking the skin, and causing it to bleed. Cooper v Branca ✉ |
| Plaintiffs granted summary judgment on their expert’s opinion that sole handrail down middle of 115” wide staircase violated 1968 building code, which was undisputed, and lack of a second handrail would have enabled the injured-plaintiff to recover from the fall. Lower court providently considered motion despite plaintiff’s failure to attach defendants’ Answer which was electronically filed by defendants and annexed to their motion, providing a complete record for the Court’s review. Alpert v Moinian Group ✉ |
| Defendants failed to meet burden for summary judgment dismissing plaintiff’s claim for slip and fall on broken and uneven concrete on loading dock floor as their expert’s opinion that there were violations of building codes was in itself insufficient to establish the area was maintained in a reasonably safe condition, authenticated photographs on the date showed the broken and uneven concrete which their safety director agreed was a safety concern, and the safety director testified only to general inspection practices not the last time the area was inspected to eliminate questions of constructive notice. Summary judgment on causation is appropriate where there is only one conclusion to be drawn from the evidence and surveillance video left questions of whether the concrete condition was a cause of the fall. Bestani v Northwell Health, Inc. ✉ |
| Plaintiff granted summary judgment for slip and fall on stairs on injured-plaintiff’s testimony her pants and shirt were wet after she fell, her son’s testimony the stairs and floor below were wet and slippery when he came to his mother after the accident, and surveillance video showing the super mopping the floor at the end of the stairs and carrying the wet mop over the stairs before the accident. Tkachuk v D&J Realty of N.Y., LLC ✉ |
| Building owner and management company granted summary judgment dismissing plaintiff’s claim for slip and fall on water on her bathroom floor, where a burst pipe had been repaired 1-week earlier, as her testimony that she did not see water before she fell, could not identify what caused the water to be on the floor, and made no complaints after the pipe had been repaired until after the accident established defendants did not have actual or constructive notice of the condition. Plumber granted summary judgment on proof it did not have actual or constructive notice of the condition, did not launch an instrumentality of harm under Espinal, and did not have a maintenance agreement that would give it a duty to inspect or warn of the facts. Plaintiff failed to identify an object capable of deteriorating and leaking water that was concealed to give owner/maintenance company a duty to inspect or to show it was a recurring condition. Sanchez v Bronx United in Leveraging Dollars, Inc. ✉ |
| Homeowner granted summary judgment dismissing plaintiff’s claim for trip and fall on deck on ground plaintiff could not identify the cause of her fall without speculation where BP identified the cause as a ‘step/unlevel surface,’ plaintiff testified ‘somehow I landed on my face’ when she stepped up, she could not identify and did not look to see what caused her to fall, and claimed her foot caught on a nail she saw sticking up from the deck 5-days after the accident but didn’t know if it caused her fall. Dubois v Jenrich ✉ |
| Property owner granted summary judgment dismissing plaintiff’s claim for slip and fall on snow/ice in parking lot on the lease and testimony of owner and tenant establishing it was an out of possession order with no duty to maintain the parking spaces, which could only be shoveled when the tenant moved its vehicles. Plaintiff’s claim the owner created the condition by designing the building to drain water into the parking lot was speculation without proof of code violations or prior accidents or complaints and fact witness who made the claims did not have expertise on the subject. Maignan v Watsky & Damm, Inc. ✉ |
| NYC and traffic control officer granted summary judgment dismissing plaintiff’s claim for injuries when traffic control officer allegedly directed the vehicle into the intersection while plaintiff was already in the intersection as directing traffic is a governmental function and officer was performing a discretionary act entitled to immunity. Hershkovitz v Brown ✉ |
| Data from Uber’s app showing driver was off-line 7-minutes before accident insufficient to establish driver was not acting within the scope of his employment for summary judgment dismissing plaintiff’s respondeat superior claim and, in any event, plaintiff raised issues of fact on driver’s testimony that accident happened during time he planned to work for Uber, he was not working for Lyft that day, he had just taken a quick break which he did several times that day as shown by the Uber app. Soares v Rahmatulloev ✉ |
| NYC granted summary judgment dismissing plaintiff’s claim for MVA while being transported to complete community service on workers comp exclusivity defense where WCB decision found she was employed by NYC at the time of the accident. Searching the record the Court granted summary judgment to the defendant-driver who was also a NYC employee. Motion was not premature where plaintiff’s only argument was she had not yet received WC benefits. Buenano v City of New York ✉ |
| Middle vehicle in 3-car-pileup failed to meet burden for summary judgment with certified police report stating his vehicle was stopped when rear-ended by the third vehicle which was inadmissible as it did not contain an admission against interest and testimony of co-plaintiff driver of vehicle assumed the middle car was pushed into his vehicle by the third vehicle as he didn’t see the cars behind was speculative. Movant did not submit his own affidavit. Rumi v Charles ✉ |
| Property owner granted summary judgment dismissing real estate broker’s claim for trip and fall on single step riser between foyer with brown tile flooring and living room with gray carpeting on proof of no building code violations as the condition was open/obvious and not inherently dangerous. Capio v U.S. Bank N.A. ✉ |
| IF YOU MUST READ (4 summaries) | |||
| MUST READS | NOTEWORTHY | ||
| Plaintiffs’ motion to extinguish WC lien for comp benefits paid by injured-plaintiff’s employer’s carrier in New Jersey after New York carrier for offending vehicle settled case for $25,000 policy limit denied as carrier was entitled to reimbursement under New Jersey law. Gomez-Jimenez v Wilson ✉ |
| Pro se plaintiff’s motion to strike defendant’s Answer for alleged failure to comply with numerous discovery orders denied where plaintiff failed to show defendant’s actions were willful/contumacious. The Court does not give the details of the proofs. Farrell v Keldiyarov ✉ |
| Defendants met burden for summary judgment dismissing plaintiff’s claim for dog bite while walking his dog on their testimony they were not aware of their dog ever biting or acting aggressively but plaintiff’s mother’s affidavit raised an issue on vicious propensities. The Court does not give the details of the proofs. Felice v Margolies ✉ |
| Plaintiff raised an issue in opposition to defendant’s prima facie showing of no serious injury under permanent consequential and significant limitation categories. The Court does not give the details of the proofs. Farris v Caygan ✉ |