February 7, 2017 | Vol. 40

MUST READS
(5 summaries)

Appealable Order   Set Aside Verdict   NYC  

First

In a prior appeal, plaintiff’s motion to set aside defense verdict was granted by the lower court and reversed by the Appellate Division which directed entry of judgment in favor of the defendant. Plaintiff appealed the judgment entered at the direction of the Appellate Division which, under CPLR 5701(a)(1), is not appealable. Entry of judgment at the direction of the Appellate Division is a final resolution of the matter. Plaintiff failed to cross-appeal on the original appeal. Powell v City of New York

Comment: A sober reminder to always consider whether a party must cross-appeal an order to preserve its rights even where it is not aggrieved by the order being appealed from.


Premises Liab   Pain/Suffering   Materially Deviates   Set Aside Verdict  

First

Jury award for plaintiff, a 70-year-old woman who sustained degloving injury and comminuted fractures resulting in infections, of $4,380,000 past and $7,442,000 future pain-and-suffering materially deviated from reasonable compensation to the extent that the appellate court ordered a new trial unless plaintiff stipulated to a reduction to $3,250,000 and $1,500,000 past and future pain-and-suffering. The lower court had reduced the awards to $2,500,000 and $1,500,000 respectively. Matter of Steam Pipe Explosion at768000/08E 41st St. & Lexington Ave.


Premises Liab   Sidewalk   Slip/Trip   NYC   Prior Written Notice   Dangerous Condition   Directed Verdict   Materially Deviates  

Second Deptartment

Plaintiff tripped and fell in a 4 x 4 hole in the street which the defendant NYC had excavated to repair a leak 6 weeks earlier. Testimony from the defendant’s employee showed that the cold patch applied after the repair left the area unstable and unsealed, instead of the hot patch which was supposed to be applied after the cold patch. The jury awarded plaintiff $2,798,599, including $2,025,600 for future medical expenses related to nursing home care for her broken hip. The lower court properly denied the defendant’s motions for a directed verdict and to set aside the verdict on liability. While NYC did not have prior written notice, the evidence showed that NYC created the condition and that it was immediately dangerous upon creation, meeting one of the exceptions to the prior written notice requirement.

The amounts awarded for future medical costs were duplicative of plaintiff’s needs from pre-existing conditions and the appellate court set aside that portion of the damage award unless plaintiff agreed to reduce the future medical award from $2,025,600 to $681,600. Guss v City of New York


Spoliation   Preclusion  

Second Deptartment

The lower court improvidently exercised its discretion in granting defendant’s motion to preclude plaintiffs from introducing certain evidence based on spoliation where an MRI center accidentally destroyed the database system holding the MRI. The actions of the MRI center cannot be imputed to the plaintiff who never had possession of the MRI. Gaoming You v Rahmouni


Premises Liab   Snow/Ice   Stairs   Prior Written Notice  

Second Deptartment

Defendant granted summary judgment on grounds of no prior written notice of icy condition on landing between 2 sets of exterior stairs on public building. Court held that exterior steps of the building “provided the public with a general right of passage, and thus served the same functional purpose as a sidewalk” under GML §50-e(4). Walker v County of Nassau

NOTEWORTHY
(28 summaries)

MVA   Bus   Bicycle   Wrongful Death   Emergency Doctrine  

First

NYCTA’s motion for summary judgment should have been denied based on proof that a former bus driver coming in the opposite direction saw the accident, saw that the defendant bus driver allowed passengers to remain in front of the white line obscuring his view of the plaintiff’s decedent on her bicycle, did not leave sufficient space between the bicycle rider and his bus to be able to avoid an accident in case someone in a parked car opened their door which he acknowledged was a common danger, and that the bus did not swerve until after it had run over the plaintiff’s decedent who had fallen in front of the bus after being hit by the opening door of a parked car. Under the conflicting facts summary judgment would be improper on the issue of the emergency doctrine. Powers v Kyong Kwan Min


Med Mal   Wrongful Death   Public Health §2801-d   Negligent Hiring   Respondeat Superior  

Second Deptartment

Defendant nursing home not entitled to summary judgment on causes of action for medical malpractice, wrongful death, and violation of Public Health Law. While the nursing home met its initial burden, plaintiff’s expert opined that the defendant’s failure to notify the attending physician of the decedent’s temperature of 100.7° was a departure which proximately caused infection, sepsis, and death. The cause of action for violation of Public Health Law is not for a violation of a standard of care but for deprivation of a right conferred by law or contract. Nursing home failed to meet its burden of showing that it did not violate Public Health Law § 2801-d. A cause of action for negligent hiring and supervision cannot be maintained for an employee who is acting within the scope of his/her duties where respondeat superior applies. Henry v Sunrise Manor Ctr. for Nursing & Rehabilitation


Med Mal   Wrongful Death   Expert Aff  

First

Defendant granted summary judgment on its expert’s opinion that the intraventricular hemorrhage first observed on MRI after plaintiff’s decedent’s fall was caused by a spike in blood pressure, a long-standing history of high blood pressure, and that the MRI was inconsistent with trauma from a fall as there was no other physical evidence on the MRI, or otherwise, of trauma from a fall. Plaintiff’s expert’s opinion that plaintiff was not in hypertensive crisis sufficient to cause the hemorrhage which was more likely than not caused by the fall, was insufficient because it failed to directly address the defense expert’s opinion regarding the MRI and was not sufficiently detailed and specific to show that the hemorrhage was caused by trauma to a specific portion of the head. Montilla v St. Luke


Labor Law §200   Control   Appealable Order   NYC  

Second Deptartment

In a Labor Law §200 case premised on the means and methods of work, plaintiff must show that the defendant contractor had the authority to control the means and methods of plaintiff’s work. “General supervisory authority at a work site, the right to stop a contractor’s work if a safety violation is observed, or the authority to ensure compliance with safety regulations or the terms of a contract is insufficient to impose liability under Labor Law § 200.” Defendant contractor had only general supervisory authority and was entitled to summary judgment where accident caused by plaintiff cutting cinderblocks with a wet saw supplied by his employer. Employer was the sole supervisor of the means and methods of work. Appeal from order granting NYC summary judgment was dismissed as the motion was not opposed below and no appeal lies from a judgment on default. Messina v City of New York


Premises Liab   Lead Poisoning   Premature Motion  

First

Defendants, who did not own the property containing one of the apartments that the infant plaintiff allegedly lived in and was allegedly exposed to lead during the applicable period, were properly dismissed. Remaining defendant was properly dismissed on proof that there was no evidence that the infant lived with her grandmother during the applicable period and defendant had no notice that a child under 10 was living in the apartment. Arelie F. v Cathedral Props., LLC


Premises Liab   Stairs   Handrail   Building Code   Comparative Fault   Unknown Cause  

Second Deptartment

Lower court’s grant of summary judgment for defendant was reversed where the plaintiff lost his balance going down the front stairs of his rental building, falling over the side of the stairs, due to the absence of handrails. Even though the plaintiff did not know what caused him to initially lose his balance, he raised a question as to the absence of handrails being a proximate cause of his fall to the driveway. Defendant showed that the building codes relied upon by the plaintiff were not applicable but plaintiff’s expert engineer raised an issue regarding defendant’s breach of the common-law duty to provide safe stairs by failing to have handrails. DeCarlo v Vacchio


Premises Liab   Stairs   Slip/Trip   Open/Obvious   Inherently Dangerous   Expert Aff  

First

Defendant university not entitled to summary judgment because plaintiff raised an issue of fact as to whether condition created optical confusion, where the step appeared to be a flat surface, by her expert’s affidavit and photographs. Buonchristiano v Fordham Univ.


Premises Liab   Duty  

First

Defendant trailer owner denied summary judgment where plaintiff fell when exiting trailer and stepped into a hole on the sidewalk. There was a 2’ gap between the steps and the sidewalk. Defendant failed to show that it owed no duty to the plaintiff. A premises owner owes a duty to keep its premises in reasonably safe condition and that rule applies to the owner of a trailer. Defendant made no attempt to show that even without handrails the trailer and steps were reasonably safe. Burke v Yankee Stadium, LLC


Negligent Supervision  

Second Deptartment

School denied summary judgment where plaintiff, prior to the start of class, attempted to jump over another student 3 times over a period of between 4-9 minutes when his knee popped on his last attempt. School failed to show that it provided adequate supervision by the attendance of two teachers who testified that they did not see any of the incidents before the accident. Cruz-Martinez v Brentwood Union Free Sch. Dist.


MVA   Bicycle   Comparative Fault  

First

Plaintiff bicyclist made out prima facie case on testimony that he was in bicycle lane with a yield sign in his favor when defendant taxi made a left turn in front of him and that he didn’t have time to stop, causing him to jam on his brakes, flipping his bicycle, but defendant taxi driver raised a triable issue of comparative fault by testimony that the plaintiff was traveling very fast. Bell v Angah


Vicious Propensity  

Second Deptartment

Deposition testimony and affidavits showing that the dog which jumped on the plaintiff causing her to fall had never jumped on anyone other than immediate family members and only on command entitled defendants to summary judgment. A dog which jumps on others even in playfulness would be sufficient to show dangerous propensities but that was not the proof in this case and there is no common-law negligence claim for domestic animals. Gammon v Curley


Personal Juridiction   Service   CPLR §306-b  

Second Deptartment

Defendants’ motion to dismiss for lack of jurisdiction should have been granted and plaintiff’s motion to extend his time to serve beyond 120 days should have been denied where the plaintiff did not start the lawsuit until one day before the statute of limitations, made no attempt to serve until 2 months after the 120 days when she made 1 attempt to serve by mail without the proper acknowledgments included, and failed to move to extend the 120 days prior to defendant’s motion to dismiss. Plaintiff’s actions show an extreme lack of diligence. Krasa v Dial 7 Car & Limousine Serv., Inc.


Premises Liab   Slip/Trip   Last Inspection   Notice  

Second Deptartment

Defendant failed to meet its initial burden of showing that it did not have constructive notice of the defect which caused plaintiff to fall by failing to show the last time that the area was cleaned or inspected by the defendant. Defendant’s witness testified only to general cleaning practices which is not sufficient. Jeremias v Lake Forest Estates


Premises Liab   § 7-210   Sidewalk   Tree Well   NYC  

Second Deptartment

NYC denied summary judgment for failure to eliminate questions regarding whether the plaintiff tripped and fell on a defect in the sidewalk or a tree well, which would not switch liability to the adjoining landowner under administrative code §7-210, and further failed to show that it did not create the condition or have notice of same. Antonyuk v Brightwater Towers Condo Homeowners


Premises Liab   Slip/Trip   Create Condition   Indemnity  

Second Deptartment

Defendant contractor met prima facie burden of showing that plaintiff tripped on a defect in the walkway and not on any condition created by the contractor, that the contractor was not working in the area, or making special use of the area. Plaintiff and codefendant (originally third-party plaintiff) raised issue of fact as to whether contractor created the condition which caused the plaintiff to fall. Claims for contractual indemnity and contractual duty to procure insurance were properly dismissed for lack of evidence of a contract. Pantaleo v Bellerose Senior Hous. Dev. Fund Co., Inc.


Premises Liab   Slip/Trip   Unknown Cause   Create Condition   Notice   Speculation  

Second Deptartment

Plaintiff was unable to identify a defect in the carpet adjacent to the defendant’s store which caused her to trip and fall and, therefore, any claim that defendant created the condition or had notice of it would be speculative. Rivera v 916 Peekskill Main Realty, Inc.


Negligent Supervision  

First

Board of Education granted summary judgment on proof that the infant plaintiff had successfully cleared 2 hurdles, consisting of 2 traffic cones with an unattached plastic stick on top, before he fell trying to clear the 3rd hurdle where DOE had numerous adults supervising, no other runners fell, and plaintiff failed to show how greater supervision would have prevented the accident or that DOE had notice of any dangerous condition. The hurdles had been placed by another defendant who was let out on summary judgment and plaintiff did not appeal that order. Andrea G. v City of New York


Venue  

Second Deptartment

Queens was improper county for venue where the defendant was the County of Nassau under CPLR 504(1) which requires that a county be sued in its own county. Plaintiff failed to show special compelling circumstances to place venue outside of Nassau County. Fergile v Payne


Venue  

First

Defendant’s motion for change of venue based on belief that plaintiff’s position as a member of the New York City Council and Secretary of the Bronx Democratic Committee meant that defendant could not get a fair trial in the Bronx, without proof of facts or circumstances, was insufficient to change venue. Palma v Burgos


Premises Liab  

First

Landlord granted summary judgment on proof that stove which ignited when plaintiff lit a match to start it because the pilot light was out, was purchased by the plaintiff and neither the lease nor any statute or ordinance required that defendant repair and maintain an appliance purchased and installed by a tenant. Plaintiff’s claim that accident was caused by a gas pipe replacement project was not supported by the proofs which showed that plaintiff’s pipes were not included in the project other than to check that gas was restored, and plaintiff’s claims that there were sporadic malfunctions after the project was insufficient to raise a question of fact. Kaplan v Tai Props., L.L.C.


Premises Liab   Stairs   Wet Floor  

First

Defendant not entitled to summary judgment where plaintiff testified that wet condition on stairs was caused by a leak on a higher floor which she had observed and complained about. Superintendent’s contrary testimony only creates a question of fact. Narvaez v River View Redevelopment Co., LP


MVA   Turning Vehicle   VTL §1141   Sole Cause  

Second Deptartment

Plaintiff granted summary judgment on proof that defendant made a left-hand turn into intersection in front of the plaintiff traveling in the opposite direction on his moped and that the plaintiff had no time to avoid the impact proving that defendant was the sole cause of the accident. Mei-Hua Gao v Makrinos


Uninsured   Attorney Fees  

First

Substituted attorney which interviewed the client, submitted notice of intention to make a claim, processed no fault benefits, requested a DMV search, obtained medical records and reports, filed a demand for uninsured arbitration, and requested witness statements, entitled to $10,000 of $32,850.03 fee for $100,000 recovery given proportion of work remaining undone when substitute attorney took over. Robinson & Yablon, P.C. v Borrell & Riso, LLP


Serious Injury   Set Aside Verdict  

First

Judgment for defendant after jury verdict finding that plaintiff did not sustain a serious injury affirmed. Jury was entitled to credit defendant’s evidence that injuries were pre-existing, chronic, or congenital. Appeal from motion to set aside verdict dismissed as subsumed in the appeal from the judgment. Cozier v Baah


Untimely  

Second Deptartment

The lower court improperly denied one defendant’s unopposed motion for summary judgment as untimely. Even though the motion was made more than 5 months after the Note of Issue was filed, the time for motions for summary judgment had been extended until 1 day after the motion was filed and, therefore, was not untimely. Breuer v Friedlander


Sepulcher  

First

Defendant granted summary judgment on right of sepulcher claim where proof showed that it immediately notified the plaintiff of the death and spoke with her several times, but that plaintiff failed to make arrangements for the remains. Martinez v Jewish Home & Hosp.


Vacate Default   Reasonable Excuse   Meritorious Defense  

First

Although plaintiff showed entitlement to default judgment, lower court providently exercised its discretion in vacating default and granting defendants time to answer based on reasonable excuse that they thought their insurance company was putting in a defense and that they had a potentially meritorious defense. Galindo v Keller


SUM  

First

Plaintiff brought a declaratory judgment action against defendant which issued 2 $25,000 policies, one covering the owner of the offending car and the other covering the driver of the offending car (on another car), claiming that the carrier had to tender both $25,000 policies to trigger his rights to pursue his underinsured policy. The court held that the driver’s separate policy was “excess” to the plaintiff’s underinsured policy under the terms of the contract. Varon v Country-Wide Ins. Co.

IF YOU MUST READ
(5 summaries)

MVA   Attorney Fees  

First

Plaintiff’s mother with joint custody had legal standing to hire counsel to bring lawsuit. Lack of contemporaneous documentation and conflicting affidavits raised an issue of fact as to whether discharge of attorney was for cause and whether attorney is entitled to quantum meruit. Dylan M. v Serour


Directed Verdict   Foreseeability  

First

Directed verdict for defendant at the close of pro se plaintiff’s case was proper where plaintiff failed to provide any evidence that defendant knew or should have known that he was going to be attacked by fellow inmates or that defendant provided inadequate security. Abdush-Shahid v City of New York


MVIAC  

First

The defendant’s motion to reject the referee’s report recommending that an action be allowed against MVIAC properly denied where defendant did not object to the scope of the reference or seek to have the scope expanded. Matter of Tyler v Motor Veh. Acc. Indem. Corp.


MVA   Pileup   Causation  

Second Deptartment

Second car in 3 car pileup not entitled to summary judgment for failing to show that he did not contribute to the accident. There can be more than one cause of an accident. The court does not give the details of the proofs. Swinton v Kamiyama


Premises Liab   Notice   Create Condition  

Second Deptartment

To meet its burden for summary judgment in a premises defect case the defendant must show that it did not create the condition or have actual or constructive notice of the condition. Defendant failed to show that it did not have constructive notice of the condition. The court does not give the details of proof proofs. Johnson v NBO Realty, Inc.

About Matt McMahon

Civil trials and appeals since 1984
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