February 9, 2020 | Vol. 248

MUST READS
(8 summaries)
NOTEWORTHY IF YOU MUST READ

Motion to Dismiss   Special Duty   Governmental Function   Notice of Claim   NYC  

First Department

911 operator’s statement “we are on our way” established special relationship for imposition of duty to come to decedent’s aid and pro se plaintiff showed justifiable reliance by her affidavit detailing additional actions she would have taken absent the assurance. NYC’s motion to dismiss on governmental immunity for discretionary acts denied where question remained of whether delay was caused by affirmative exercise of discretion or unintentional failure to dispatch ambulance. Claims of improper treatment after FDNY arrived not considered where not in Notice of Claim and FDNY never arrived or treated decedent. Xenias v City of New York

Comment: See companion decision in this volume.


Med Mal   Wrongful Death   Statute of Limitations   Raised For First Time  

First Department

Pro se plaintiff’s wrongful death claims based on first responders’ delay in arriving and improper treatment of decedent time-barred where suit started beyond 2-year statute of limitations for wrongful death (EPTL §5-4.1) and 2.5-year limit for medical malpractice (CPLR §214-a) as claims involved specialized medical knowledge falling under medical malpractice not ordinary negligence. Arguments raised for first time on motion to renew/reargue not preserved and in any event unavailing as statute of limitations is not tolled during pendency of petition for Letters of Administration, CPLR §210(c) inapplicable as it applies only to “personal property wrongfully taken after the death and before the issuance of letters,” and EPTL §§ 11-3.2(b) and 11-3.3 are not tolling statutes. Xenias v Mount Sinai Health Sys. Inc.

Comment: See companion decision in this volume.


Note of Issue   Waiver   Untimely   Discovery   IME/DME   Appealable Order  

Second Department

Motion to strike Note of Issue refiled beyond 20-days of filing Note of Issue refiled as purportedly allowed by lower court’s order after it refused to address the issue at post Note of Issue conference was untimely where neither original purportedly timely motion nor court’s order allowing it to be refiled were included in appellate record, nor were they properly referenced by docket number on the e-filing system as permissible under CPLR 2214(c), requiring defendants to meet more stringent standard of unusual and unanticipated circumstances and substantial prejudice, which they did not meet, but appellate court ordered lower court to schedule a further deposition of plaintiff and IME/DME where there was no proof in the record that the physical examination was “waived” as stated in the certificate of readiness. Reardon v Macy


Premises Liab   Slip/Trip   Amend Answer   Statute of Limitations   Prejudice  

First Department

Corporation that owned residential units in cond-op could not amend Answer 5-days after statute of limitations ran to assert it did not own driveway owned by condominium corporation where plaintiff slipped and fell as it had admitted ownership in its original and amended Answers and amendment would be to substantially prejudicial to plaintiff. Jackson v 170 W. End Ave. Owners Corp.

Comment: A cond-op is a hybrid of condominium and co-op where the residential units are typically co-ops with the co-op corporation being a condo owner and the commercial spaces are condominiums.


Construction Liab.   Slip/Trip   Sidewalk   Dangerous Condition   Admissibility   Waive Arb Clause   Premature Motion   Speculation  

Second Department

Electric contractor granted summary judgment on its testimony it did not perform work in area where plaintiff fell for 2-years before accident and deposition was admissible over objection that plaintiff did not have opportunity to cross-examine the witness as plaintiff was aware of date, time, place of deposition set by court order and chose not to attend after defense counsel stated they would proceed with deposition whether or not plaintiff counsel appeared. Plaintiff’s claim a further deposition might show work had been done was mere speculation insufficient to render motion premature. Santiago v City of New York


Labor Law §240   Scaffold   Agent   Control   Safety Devices   Sole Cause   Comparative Fault   Raised For First Time  

First Department

Defendants subject to Labor Law §240(1) as statutory agents of construction site owner where they had authority to supervise and control plaintiff’s work. Plaintiff met burden for summary judgment on §240 where scaffold lacked guardrails or other safety devices and defendants’ claim plaintiff failed to lock scaffold wheels is at best comparative fault and argument that plaintiff was not wearing safety harness or fainted, raised for the first time on appeal, are unavailing as inadequate scaffold was “a more proximate cause.” Ordonez v One City Block, LLC


Vacate Default   Reasonable Excuse   Meritorious Action   Prejudice  

First Department

Suspension and subsequent disbarment of defense counsel, in part for neglecting legal matters, during period where defendants did not respond to discovery resulting in Answer being stricken was a reasonable excuse to vacate order striking Complaint and defendant showed meritorious action by one defendant’s affidavit. Plaintiff failed to show any prejudice. Perez v Table Run Estates, Inc.


Wrongful Death   Duty   Raised For First Time   NYC  

First Department

NYC granted summary judgment of action for wrongful death sounding in negligence instead of claims of statutory violations of NYC and NYS Human Rights Law requiring reasonable accommodation for disabled employees as it did not owe a duty to prevent the sergeant’s suicide. The Court extensively reviews the HRL duties and how NYC did not meet its obligations to the sergeant. Benitez v City of New York

NOTEWORTHY
(21 summaries)
MUST READS IF YOU MUST READ

Premises Liab   Slip/Trip   Wet Floor   Create Condition   Notice   Spoliation   Survelliance Video   Strike Answer   Negative Inference  

Second Department

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  

First Department

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  

Second Department

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  

First Department

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  

First Department

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  

Second Department

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  

First Department

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  

First Department

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  

First Department

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  

First Department

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  

Second Department

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  

First Department

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  

First Department

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  

Second Department

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  

Second Department

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  

First Department

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  

Second Department

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  

First Department

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  

First Department

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  

First Department

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  

Second Department

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.

IF YOU MUST READ
(2 summaries)
MUST READS NOTEWORTHY

Serious Injury   BP  

Second Department

Defendant failed to meet burden for summary judgment on serious injury where it did not address claims of 90/180-day category alleged in BP. Owens-Stephens v PTM Mgt. Corp.


Premises Liab   Dangerous Condition   Create Condition   Notice  

Second Department

Landlord of building where deliveryman was injured while lifting 500lb copier from back of truck to loading dock granted summary judgment on proof condition was not dangerous and it neither created nor had notice of a dangerous condition. Tenant granted summary judgment as well. The Court does not give the details of the proofs. Moreno v Stagg, Terenzi, Confusione & Wabnik, LLP

About Matt McMahon

Civil trials and appeals since 1984
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