Discovery Motion to Dismiss Personal Juridiction
Lower court providently denied manufacturer’s motion to limit discovery to jurisdictional issues and hold its motion to dismiss on personal jurisdiction in abeyance until completion of jurisdictional discovery where the court previously denied its motion to dismiss on personal jurisdiction without prejudice to renew and manufacturer can move for protective order if it is served with an unduly burdensome discovery demand. Mercedes v Cool Wind Ventilation Corp. ✉
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Emotional Harm Discovery HIPAA CPLR § 3126 Reasonable Excuse Meritorious Action
Defendants’ motions to strike the Complaint on their affirmation of plaintiff’s noncompliance with a prior conditional order to provide HIPAA authorizations by a certain date granted as the conditional order became absolute on noncompliance and plaintiff failed to show a reasonable excuse for noncompliance or make any attempt to show a meritorious action. Mention v Archbishop Stepinac High Sch. ✉
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Malpractice Personal Juridiction Agent Spoliation
Plaintiff failed to meet his burden of showing personal jurisdiction over Connecticut attorney and law firm in legal malpractice case regarding representation in a SDNY case where the retainer agreement was signed by plaintiff only and, even if signed by moving defendants, contemplated work only in Connecticut. Special referee’s finding that moving defendants had previously worked with the referring attorney did not create an agency where the retainer agreement had a self-executing clause that representation would immediately cease on a negative medical review which they informed plaintiff of and told him they would no longer represent him. Claim that fully executed retainer agreement was spoliated was unpreserved. Leili v Romanello ✉
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Malpractice Accepted Practice Causation Experts
Plaintiff’s expert-cardiologist raised issues contradicting defendant-cardiologist’s expert by opinion defendant departed from accepted practice by failing to order emergent diagnostic tests when decedent first presented with an EKG showing hyperacute T waves which indicates unstable angina, failing to properly diagnose decedent based on his symptoms that indicated coronary artery syndrome, and that these departures caused or contributed to decedent’s death. Fiszer v Gliwa ✉
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Malpractice Accepted Practice Causation Experts Speculation
Plaintiff’s expert’s opinion that moving-defendants departed from accepted practice by failing to surgically treat plaintiff’s kidney stones failed to raise an issue in opposition as it was “speculative, relied on hindsight, and was unsupported by the evidence” where the expert ignored record evidence that plaintiff’s condition was nonemergent when he first presented and he was advised to get medical clearance for surgery which he failed to do. Plaintiff’s expert also failed to raise an issue on causation without addressing or explaining how failure to perform surgery weeks earlier caused plaintiff’s urosepsis and septic shock that progresses within hours, resulting in amputation of plaintiff’s limbs, and that plaintiff had undergone elective surgery with non-moving defendants in the interim. Fernandez v Hoke ✉
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Governmental Function Special Duty Amend Complaint NYC
NYC granted summary judgment dismissing claim of plaintiff who was struck by boat propeller as he drifted towards it after NYC marine firefighters threw him a safety line since the firefighters were performing a governmental function requiring plaintiff to show they owed him a special duty and plaintiff could not have “justifiably relied” on their performance of their duty where they did not lull him into a false sense of security so as to forgo other areas of help, did not place him in a worse position than had they not tried to rescue him, and did not assume positive direction/control “in the face of a known, blatant, and dangerous safety violation.” Cross-motion to amend Complaint moot. Marino v City of New York ✉
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Premises Liab 3rd Party Contractor Espinal Create Condition Notice Indemnity
Construction manager for interior fit-out granted summary judgment dismissing plaintiff’s claim for fall of valence on her head as she cleaned a sliding glass door on the 15th floor as it did not own, occupy, control, or make special use of the premises, did not fit within any Espinal exception as it did not launch an instrumentality of harm where it did not install the window which was purchased directly by the building owner, and completed its work on the 15th floor before plaintiff’s fall, did not entirely displace the owner’s duty to maintain and plaintiff could not rely on its work where she was unaware of their contract, and it did not have constructive notice of any defect without evidence it was defectively designed and manufactured or that any defect was visible instead of latent. Indemnity claim against manufacturer rendered moot. Rodriguez v Miller Plumbing & Heating, Inc. ✉
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Labor Law §241 Labor Law §200 Agent Industrial Code Control Indemnity Waiver
Construction manager was not an owner’s agent for Labor Law §241(6) where its contract specifically withheld authority to control plaintiff’s injury producing work and its general supervisory responsibilities were insufficient to impose liability. Construction manager and GC granted summary judgment dismissing Labor Law §200 and negligence causes of action on proof they had only general supervisory authority over plaintiff’s work. GC granted summary judgment dismissing §241(6) claim based on industrial code§ 23-1.7(f)(vertical passageways) which was inapplicable without allegation materials plaintiff was unloading were on a different level requiring a safe stairway, ramp, or runway, on §23-2.1(a)(1)(material or equipment storage) which was inapplicable where plaintiff was moving material from a flatbed to be used to construct sidewalk sheds, and on §23-2.3(c)(structural steel assembly tag lines) which was inapplicable without allegations the materials shifted causing plaintiff to fall or were being hoisted.
GC’s motion for summary judgment against steel contractor for common law indemnity and contribution denied. Steel contractor’s request for relief denied where it did not file a Notice of Appeal or motion for leave to appeal from sua sponte order granting plaintiff summary judgment against it on §200 and negligence.
Diaz v P&K Contr., Inc. ✉
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Labor Law §241 Labor Law §200 Industrial Code Control
Building owner and GC granted summary judgment dismissing welder’s Labor Law §241(6) claim for injuries when he tripped over electrical conduit piping sticking 5″-12″ above the floor based on industrial code §23-1.7(e)(2)(tripping hazards) on proof the piping was integral to the work being performed and §23-1.7(e)(2) does not require defendants to show they lacked authority to ensure the piping was safe. Defendants denied summary judgment on Labor Law §200 and negligence claims without proof they lacked authority to supervise the injury producing work. Maldonado v Hines 1045 Ave. of the Ams. Invs. LLC ✉
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Premises Liab Sidewalk § 7-210 Admissibility Waiver
Church failed to meet burden for summary judgment where lower court properly considered plaintiff’s 50H testimony that he fell on church’s defective sidewalk after he slipped off the steps of a NYCTA bus, even though church was not given notice of and was not present at the 50H hearing, where it waived the objection below, any inconsistencies on whether plaintiff fell on the street or sidewalk were questions for a jury, and the church failed to eliminate questions of whether it was exempt from administrative code §7-210 on allegation plaintiff fell at a bus stop. Earle v City of New York ✉
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Serious Injury Experts Speculation
Defendant met burden for summary judgment on serious injury by affirmed reports of his experts showing no objective evidence of limitations to body parts claimed to be injured, unexplained 7-year gap in treatment after only 9-months of treatment, and history of prior injury to the same body parts. Failure of one of defendant’s experts to address diagnostic tests showing bulging discs did not negate defendant’s prima facie showing and, in any event, defendant’s neurology expert noted the MRI findings but determined there were no physical limitations on examination. Plaintiff’s testimony she returned to work 3-days after the accident and could perform all ADLs met burden for dismissal of 90/180-day category.
Opinion of plaintiff’s medical expert’ who first examined plaintiff 8-years after the accident was speculative on permanency, significance, and causation in light of the 7-year gap in treatment. Rodriguez v Moss ✉
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Serious Injury Degenerative Preexisting ROM Admissibility Unaffirmed Report
Defendant met burden for summary judgment on serious injury by its radiologist’s sworn report that left knee MRI taken shortly after the accident showed only degenerative conditions with no traumatic injury and orthopedist’s sworn report showing normal objective tests, normal ROM, and equal ROM in both left and right knees. Plaintiff failed to raise issues in opposition by unaffirmed orthopedic surgeon report which, in any event, did not address causation or explain how degenerative conditions were not a cause of plaintiff’s injuries. Plaintiff’s orthopedist’s report was incompetent where it relied on unsworn reports and undisclosed records of other doctors. Cardwood v R&F Limousine Inc. ✉
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Labor Law §241 Labor Law §200 Industrial Code Safety Devices Control NYC
Defendants failed to meet burden for summary judgment dismissing Labor Law §241(6) claim for plaintiff’s eye being struck by a tile shard as he was disposing tiles in a dumpster, based on industrial code §23-1.8(a)(eye protection), where it submitted plaintiff’s testimony that he was not provided with approved safety glasses, wore his own safety glasses, and did not take them off, contradicting defendants’ evidence. Argueta v City of New York ✉
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Premises Liab Open/Obvious Inherently Dangerous Experts Conclusory Feigned Issue
School district granted summary judgment dismissing infant’s claim for slip and fall while walking on a grass field on proof the area was “open and obvious, not inherently dangerous, and incidental to the nature of the grass field” where it was not obscured by grass or debris and plaintiff was not distracted. Plaintiff’s expert’s conclusory opinion failed to raise an issue where he did not cite any violation of applicable codes or industry standards or explain how the condition was a ‘trap for the unwary.’ Plaintiff’s deposition testimony that he slipped on a depressed obscured grate raised only a feigned issue where it contradicted his 50H testimony that he slipped on a puddle and landed on a grate. D.S. v Sachem Cent. Sch. Dist. ✉
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MVA Bus Nonnegligent Explanation Admission Comparative Fault
Plaintiff who was driving in the middle lane when defendant’s bus struck his vehicle as the bus merged into his lane to avoid a vehicle parked in the bus’s lane granted summary judgment for bus’s violation of VTL §1128(a) by changing lanes when it was unsafe to do so. Comparative fault affirmative defense dismissed as bus supervisor’s notation in accident report claiming plaintiff stated he changed lanes and the bus hit him in retaliation did not raise an issue where plaintiff testified he drove in the middle lane the entire time and the bus driver testified he did not see plaintiff’s vehicle before impact. Mora v Branker ✉
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MVA Sole Cause Comparative Fault Premature Motion
Plaintiff granted summary judgment on proof parked defendant-driver opened his driver’s side door when unsafe to do so in violation of VTL §1214 and dismissal of comparative fault defense where plaintiff averred she had no time to avoid striking defendants’ door and defendants did not submit an affidavit from their driver, establishing defendants were sole cause of the accident. Plaintiff denied summary judgment on seat-belt defense VTL §1229-c(8). Speculation that discovery might reveal relevant information did not render motion premature. Gil v Frisina ✉
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MVA Sole Cause
Defendant granted summary judgment on proof plaintiff opened driver’s side door of his parked vehicle when unsafe to do so in violation of VTL §1214. Garcia v Titus ✉
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MVA Bicycle Turning Vehicle
Defendants raised an issue in opposition to plaintiff’s motion for summary judgment on their driver’s affidavit that he waited for traffic to pass before starting his left hand turn with a green light, stopped when he saw plaintiff riding his bicycle fast towards him, and plaintiff could not stop befor hitting defendants’ vehicle. Bicyclists have all the rights and responsibilities of a motorist while riding their bikes. Amancio-Gonzalez v Medina ✉
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Premises Liab Prior Written Notice Burden of Proof
County granted summary judgment dismissing plaintiffs’ claim for trip and fall on uneven sidewalk on record-searcher’s affidavit they did not receive required prior written notice of the defect for 6-years before the accident, shifting the burden of showing an exception to the prior written notice statute to plaintiff who failed to raise an issue in opposition. Grady v Town of Hempstead ✉
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MVA Rear End Pileup Renew Appealable Order
Lead vehicle in 3-car pileup granted summary judgment on proof it was slowing down in traffic when rear-ended by middle vehicle and plaintiff, passenger in the rear vehicle, failed to raise an issue in opposition. Motion by middle vehicle owner and driver to modify order that granted them summary judgment on liability 2-years earlier granted to add dismissal of the Complaint. Plaintiff’s motion to renew denied where he offered no new facts. Appeal from denial of plaintiff’s motion to reargue not appealable as no appeal was from denial of a motion to reargue. Batho v Urbana Cab Corp. ✉
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MVA Rear End
Taxi driver and owner granted summary judgment dismissing plaintiff-passenger’s claim on her unrefuted testimony that the taxi was stopped when it was rear ended. Pujols v Pros on the Move, LLC ✉
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