February 6, 2024 | Vol. 403

(4 summaries)

MVA   Pedestrian   Set Aside Verdict   Bifurcation   Experts  

Second Department
Judgment on defense verdict set aside and remanded for new trial where lower court improvidently denied plaintiff’s motion for a unified trial on orthopedic surgeon’s affirmation opining the location and pattern of her tibial plateau and fibula fractures showed she was struck on the lower right side of her right leg by the front bumper or front end of a vehicle as she was in front of it and could not have been caused by walking into the side of the vehicle as defendant-driver claimed. A unified trial was appropriate where plaintiff and defendant were the only witnesses and plaintiff’s injuries had “an important bearing on the issue of liability.” Marisova v Collins-Brewster    

Malpractice   Set Aside Verdict   Directed Verdict   Accepted Practice   Preclusion   CPLR § 3101(d)   Prejudice  

First Department
Plaintiff’s motion to set aside defense verdict finding hand surgeon did not cut the A2 pulley when removing a cyst on plaintiff’s index finger, and for a directed verdict, denied where the jury could reach its verdict on a fair interpretation of the evidence crediting defendants’ expert over plaintiff’s expert.

Trial court’s denial of in limine motion to limit defendants’ expert’s opinion on plaintiff’s sarcoidosis not included in their CPLR 3101(d) disclosure moot and, in any event plaintiff, was not prejudice by the ruling where her expert was allowed to testify in rebuttal and jury only addressed A2 pulley issue not causation or damages based on sarcoidosis. Ferreyra v Wayne    

Lead Poisoning   Untimely   Settlement  

First Department
NYCHA’s motion to enforce a settlement agreement denied even though the sole material term, the amount to be paid for the infant’s lead poisoning in its building, was contained in an email sent by the plaintiff and would have been binding had an infant compromise order not been required. Portion of motion which was for leave to file a late summary judgment motion granted where settlement was reached before NYCHA’s time to move and plaintiff did not renege on the agreement until 2-months after expiration of the time to move for summary judgment. DS v New York City Hous. Auth.    

Premises Liab  

First Department
Renowned opera singer’s motion for a special trial preference based on her decreased income providently denied where her remaining income was reasonably adequate. Motion was not rendered moot by plaintiff’s subsequent entitlement to a special preference based on her age but CPLR §3403(a) does not automatically provide for more than 1-special preference per case and plaintiff’s situation did not qualify as “exceptional circumstances” for preference stacking. White v Metropolitan Opera Assns., Inc.    

(21 summaries)

Discovery   Motion to Dismiss   Personal Juridiction  

First Department
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.    

Emotional Harm   Discovery   HIPAA   CPLR § 3126   Reasonable Excuse   Meritorious Action  

Second Department
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.    

Malpractice   Personal Juridiction   Agent   Spoliation  

First Department
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    

Malpractice   Accepted Practice   Causation   Experts  

Second Department
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    

Malpractice   Accepted Practice   Causation   Experts   Speculation  

First Department
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    

Governmental Function   Special Duty   Amend Complaint   NYC  

Second Department
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    

Premises Liab   3rd Party Contractor   Espinal   Create Condition   Notice   Indemnity  

First Department
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.    

Labor Law §241   Labor Law §200   Agent   Industrial Code   Control   Indemnity   Waiver  

First Department
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.    

Labor Law §241   Labor Law §200   Industrial Code   Control  

First Department
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    

Premises Liab   Sidewalk   § 7-210   Admissibility   Waiver  

Second Department
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    

Serious Injury   Experts   Speculation  

Second Department
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    

Serious Injury   Degenerative   Preexisting   ROM   Admissibility   Unaffirmed Report  

First Department
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.    

Labor Law §241   Labor Law §200   Industrial Code   Safety Devices   Control   NYC  

Second Department
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    

Premises Liab   Open/Obvious   Inherently Dangerous   Experts   Conclusory   Feigned Issue  

Second Department
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.    

MVA   Bus   Nonnegligent Explanation   Admission   Comparative Fault  

First Department
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    

MVA   Sole Cause   Comparative Fault   Premature Motion  

Second Department
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    

MVA   Sole Cause  

Second Department
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    

MVA   Bicycle   Turning Vehicle  

Second Department
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    

Premises Liab   Prior Written Notice   Burden of Proof  

Second Department
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    

MVA   Rear End   Pileup   Renew   Appealable Order  

First Department
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.    

MVA   Rear End  

First Department
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    

(3 summaries)

Construction Liab.   Control   Indemnity  

First Department
Engineering company’s motion for summary judgment dismissing electrician’s claim for cables that fell on him from a man lift granted where NJ law permits OSHA regulations to be used as evidence of negligence in some instances but not where engineering company was not plaintiff’s employer, did not have authority to control the means and methods of plaintiff’s work, and was not present at the time of the accident. Cross claims for contractual indemnity against engineering company dismissed where indemnity agreement could only be triggered by its negligent or intentional conduct. Havison v Port Auth. of N.Y. & N.J.    

Premises Liab   Sidewalk   § 7-210   Special Duty   Special Duty   Comparative Fault   NYC  

Second Department
Plaintiff granted summary judgment against abutting landowner under administrative code §7-210 on proof he tripped on a height differential between 2-sidewalk flags and neither questions of whether NYC assumed a special duty or plaintiff was comparatively at fault precluded summary judgment. The Court does not give the details of the proofs. Cumbal v 83-09 35th Realty, LLC    

Vacate Default   Reasonable Excuse   Meritorious Defense   Prejudice  

Second Department
Defendants’ motion to vacate default judgment providently granted where lower court found a reasonable excuse under all the circumstances for the defaults, including the length of the delay, lack of prejudice, the policy favoring resolving cases on the merits, and defendant showed a meritorious defense. The Court does not give the details of the proofs. McCarey v Offshore Trophy Room, Inc.    

About Matt McMahon

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

Comments are closed.