Premises Liab Slip/Trip Wet Floor Create Condition Notice Spoliation Survelliance Video Strike Answer Negative Inference
Plaintiff’s testimony conflicting with movie theater’s witnesses’ testimony on how plaintiff fell and whether floor by concession stand was wet left issues of fact for a jury and plaintiff’s son’s affidavit stating he notified defendant of condition shortly before mother’s fall raised issue on notice.
Undisputed proof defendant destroyed surveillance video entitled plaintiff to spoliation sanction if jury finds video would have depicted area where she fell but appropriate sanction is adverse inference rather than striking Answer as plaintiff can still prove case by other evidence. May v American Multi-Cinema, Inc.
|
Premises Liab Slip/Trip Stairs Spoliation Negative Inference Survelliance Video
Plaintiff entitled to adverse inference as sanction for destruction of video on proof defendant had obligation to preserve video which was relevant to claim plaintiff reached for missing handrail and to defend against claim she was using phone with both hands while on stairs. Castro v 510 W. 188th St. Assoc., LLC
|
Labor Law §240 Workers Comp Defense Raised For First Time
Corporation that owned building where plaintiff fell from ladder while covering holes on interior walls failed to meet burden of showing plaintiff was a special employee for worker compensation defense without evidence it controlled and directed plaintiff’s work where plaintiff identified supervisor whom he took directions from as employee plaintiff’s employer and building owner failed to show supervisor was acting on behalf of owner company on claim supervisor was employed by both owner and maintenance companies. An officer of a company protected by workers compensation defense is also protected by the defense, but defendant only showed that sole owner of maintenance company was an officer of owner company, not that owner company was protected by workers compensation.
Plaintiff’s motion for summary judgment on Labor Law §240(1) denied on issue of whether he was engaged in repair covered by §240 or uncovered routine maintenance. References to “painting” in plaintiff’s affidavit submitted for first time in reply not considered. Ortega v 669 Meeker Ave., LLC
|
Labor Law §240 Ladder Sole Cause Indemnity Control
Worker entitled to summary judgment on Labor Law §240(1) where A-frame ladder tipped over as he reached for tool on lower level of scaffold above. Worker not sole cause of accident by using A-frame ladder instead of built-in rungs on scaffold that would have required use of a safety harness and both available harnesses were in use. Cross claims for indemnity against moving defendants dismissed where they did not control plaintiff’s work. Melaku v AGA 15th St., LLC
|
Med Mal Motion to Dismiss Continuous Representation
NYCHH’s motion to dismiss on statute of limitations granted as post stroke rehabilitation at hospital was not a continuation of alleged departure of failing to diagnose headache in ER and plaintiff was diagnosed with stroke and received post stroke care from a different hospital before returning to original hospital for rehabilitation. Turcios v New York City Health & Hosps. Corp.
|
Med Mal Accepted Practice Causation Expert Aff Speculation Conclusory
Plastic surgeon who performed medial gastrocnemius flap and split thickness skin graft during procedure to salvage hardware from knee replacement surgery granted summary judgment on expert opinions he did not depart from accepted practice or cause plaintiff’s injuries. Plaintiff’s infectious disease expert raised issue on whether defendant departed by performing surgery in light of infection but offered only speculation and conclusory opinions on causation. Spilbor v Styles
|
Premises Liab Slip/Trip Sidewalk De Minimus Expert Aff
Plaintiff raised issue in opposition to defendants’ showing sidewalk defect plaintiff tripped on was trivial by proof sidewalk was covered by scaffold making it harder to see defect and expert’s opinion expansion joint between sidewalk flags was recessed 1″lower than flags making it more dangerous. Plaintiff’s expert examined area a few months after the accident and after defendants’ expert examined it 3.5-years after the accident confirming eyewitness testimony that area had been repaired before defendants’ experts’ inspection. The Court noted lower court applied a “mechanistic disposition” analysis by placing too much emphasis on height differential. Marks v 79th St. Tenants Corp.
|
Discovery HIPAA
Defendant’s motion to compel discovery of previous injury denied as defendant failed to show back injury described as mild and resolved by surgery years before present accident was relevant to present case that involved shoulder and knee injuries. Jerez v 2141, LLC
|
Labor Law §240 Labor Law §241 Ladder LHWCA Indemnity NYC
Federal law did not preempt Labor Law §§240(1) and 241(6) claims where worker fell while trying to get from tugboat to barge by stepping on tire even though tugboat was a vessel covered by LHWCA. NYC, as “project owner,” was owner for Labor Law purposes even though it did not own tugboat or barge. Defendants’ and plaintiff’s motions for summary judgment on §§ 240 and 241 denied where question of availability of ladder remained.
Plaintiff’s employer granted summary judgment of NYC’s indemnification and contribution claims barred by anti-subrogation rule triggered by broad duty to indemnify since NYC was named additional insured, despite reservation of rights on indemnity. Pastorino v City of New York
|
Labor Law §240 Ladder Safety Devices
Worker who fell while using wet, slippery, ladder entitled to summary judgment on Labor Law §240(1) as he fell from elevated height without proper safety devices and was not required to show ladder was defective. Defendants failed to rebut plaintiff’s account. Millligan v Tutor Perini Corp.
|
MVA Motion to Dismiss Workers Comp Defense Police GML §205-e
Motion to dismiss by Port Washington Police District and officer driving patrol car that struck plaintiff’s police motorcycle while on duty granted as barred by exclusivity provision of Worker’s Compensation which extended to coemployees. McNulty v Port Wash. Police Dist.
|
Duty Causation
Neither lifeguard nor building had duty to anticipate and respond to decedent’s undisclosed medical condition and any inattention by lifeguard could not be a proximate cause where there was no dispute decedent did not drown. Schalman v Aquatic Recreational Mgt., Inc.
|
Premises Liab Elevator Causation Create Condition Notice
Building owner granted summary judgment on proof it did not create condition or have notice of malfunctioning freight elevator door that descended onto plaintiff’s head as he walked through both ends of elevator, using it as a passageway because of a fence blocked regular access, and did not have notice of the condition. Codefendants’ argument that owner caused accident by causing fence to be erected did not raise issue as accident was caused by defective door and not fence. Bortugno v New York State Urban Dev. Corp.
|
Premises Liab Assumption of Risk Slip/Trip Create Condition Notice Open/Obvious Inherently Dangerous Indemnity
Association showed it did not own, occupy, or control track where coach tripped on starting blocks but plaintiff raised issue on proof Association members moved equipment, including starting blocks, on and off the track during event. Defendant failed to show area was open/obvious and not inherently dangerous or that plaintiff assumed risks of his injuries. Issues regarding association’s liability precluded summary judgment against college for contributions last indemnity. Penny v County of Suffolk
|
Premises Liab Slip/Trip Stairs Out of Possession
Out of possession landlord granted summary judgment where tenant’s employee slipped on interior stairs of leased portion of building as it did not have authority to control area by lease, statute, or conduct and plaintiff failed to show a violation of a specific safety statute. The Court does not give the details of the proofs. Aponte v Lee
|
Malicious Prosecution Probable Cause NYC
NYC granted summary judgment of malicious prosecution claim where there was no evidence its employees initiated criminal complaint or acted with malice in providing information to DA and plaintiff’s admissions that she submitted false time logs and lied to her supervisor about teaching a hospitalized student established probable cause for the prosecution. Ryan v City of New York
|
MVA Rear End Premature Motion Renew Reargument
Plaintiff’s motion to renew based on deposition testimony taken after plaintiff’s original motion for summary judgment was denied as premature granted on proof plaintiff’s vehicle was stopped at red light when it was struck in the rear and summary judgment granted. Plaintiff’s motion for reargument properly granted adhering to original decision without showing that court misunderstood any fact or legal principle. Toala v EAN Holdings, LLC
|
Labor Law §240 Falling Object Causation Question of Fact Indemnity
Plaintiff denied summary judgment where he was struck by falling brick in elevator shaft as questions remained on how accident happened and who was cause of brick falling. Demolition contractor denied summary judgment dismissing contractual and common law contribution and indemnity claims of GC and building owner and GC granted conditional summary judgment of contractual indemnity claim against demotion contractor and plaintiff’s employer if jury finds accident was result of their negligence. Madkins v 22 Little W. 12th St., LLC
|
Premises Liab Slip/Trip Snow/Ice Sidewalk Storm in Progress Create Condition Notice Expert Aff
Building granted summary judgment on plaintiff’s testimony it was snowing when she fell and meteorological records and expert opinion that freezing rain, sleet, and snow caused slippery conditions in hours before plaintiff’s fall establishing storm in progress. Plaintiff’s statement ice appeared to be 0.5″-0.75″ thick did not raise issue on whether ice was from prior storm as there was no evidence to support theory. Plaintiff’s argument that defendant failed to show it did not create or exacerbate condition unpreserved and in any event insufficient where there was no evidence defendant made any snow removal effort. DeJesus v Belle Apts. Hous. Dev. Funding Corp.
|
Premises Liab Slip/Trip Snow/Ice Sidewalk Storm in Progress Expert Aff Admissibility
Defendants failed to establish a storm in progress where meteorological reports were unsworn and testimony did not conclusively establish snowstorm remained at time of the accident. Morales v Gross
|
Med Mal Accepted Practice Causation Expert Aff Hearsay
Plaintiff’s expert raised issue of fact on opinion that technique used to change Foley catheter caused damage to decedent’s prostate and urethra and was a departure from accepted practice. Argument that plaintiff’s expert’s opinion was inadmissible as it relied on only hearsay was not properly before the Court on appeal. Viola v South Nassau Communities Hosp.
|
