January 1, 2019 | Vol. 139

MUST READS
(6 summaries)
NOTEWORTHY IF YOU MUST READ

MVA   Set Aside Verdict   Preclusion   Admissibility   Serious Injury  

Second Deptartment

Verdict finding no serious injury set aside in the interests of justice where defendants’ bio-mechanical engineer, Joseph McGowan, should have been precluded from testifying regarding delta-v forces (change in velocity) and crash simulations because his testimony lacked a proper foundation where he did not calculate delta-v forces of all vehicles involved, the crash tests he used differed from the accident, and the simulations used dummies with different weights than plaintiff. Imran v R. Barany Monuments, Inc.


MVA   Turning Vehicle   Sole Cause  

Second Deptartment

Finding that plaintiffs failed to show that moving defendants whose car they were passengers in as it entered intersection on through road could have avoided the accident if they were not speeding, as claimed by plaintiffs, the court found the speeding claim “inconsequential” and not sufficient to raise an issue of fact. Moving defendants granted summary judgment where co-defendant made a left turn in front of vehicle with only seconds to react, failing to yield the right-of-way. Rohn v Aly


Premises Liab   Control   Intervening Cause   Foreseeability   Wrongful Death  

Second Deptartment

Bar where plaintiff’s decedent and assailants were both patrons granted summary judgment on proof that attack was sudden and unforeseeable and occurred on a public roadway over which bar had no control. Property owners only have duty to prevent harm from intoxicated persons when they have the opportunity to control the intoxicated person, the assault is reasonably foreseeable, and the assault occurs on their property or an area under their control. Covelli v Silver Fist, Ltd.


MVA   Set Aside Verdict   Pain/Suffering   Materially Deviates  

Second Deptartment

Lower court’s reduction of verdict from $150,000/$150,000 past/future pain/suffering to $50,000/$75,000 for nondisplaced wrist fracture and 2 cervical herniations resulting in permanent pain, weakness, and tingling down to hand reversed and verdict reinstated as not materially deviating from reasonable compensation. Garcia v Fernandez


Strike Answer   Discovery   Preclusion   Renew   Reasonable Excuse  

First

NYCHA’s 2018 motion to renew its opposition to 2013 motion that granted conditional preclusion for not providing a specific employee for deposition denied where it failed to comply with the 2013 conditional order which was self-executing or provide reasonable excuse for failing to comply. Appeal from 2015 motion to renew that had been granted modifying 2013 order to give NYCHA another chance to produce the witness dismissed as moot as vacated by the 2018 order. NYCHA’s excuse that its outside counsel and law department were unaware that employee left NYCHA before its 2015 motion was filed was unavailing as the employee left before the motion was submitted and was not reasonable because the information was readily available if NYCHA used due diligence. There was further evidence that NYCHA was trying to avoid producing the witness. Yesenia S. v New York City Hous. Auth.


Venue   Admissibility   Uncertified Records  

First

Venue moved from Bronx to Westchester County based on defendants’ business record affidavits that they did not have a principal place of business in the Bronx and plaintiff resided in Westchester when the action was commenced. Printouts from Secretary of State’s official website were admissible and properly considered despite not being certified. Gibson v U’SAgain Holdings, LLC

NOTEWORTHY
(7 summaries)
MUST READS IF YOU MUST READ

Med Mal   Accepted Practice   Causation   Expert Aff  

Second Deptartment

Plaintiffs’ experts raised issues of fact in opposition to defendants’ prima facie showing for summary judgment opining that patient’s fall from bed could not have happened unless improperly restrained given post-stroke condition where he was noted to be calm and lethargic with no right hand grip or arm or leg movement earlier that day and that increased intracranial hemorrhage and development of midline shift were too extensive to be from original hemorrhage. Salgado v North Shore Univ. Hosp.


Labor Law §200   Labor Law §241   Industrial Code   Control   Agent   Create Condition   Notice   De Minimus   Open/Obvious   Indemnity  

First

NYC failed to show it did not cause or have constructive notice of dangerous condition of metal plates covering openings at construction site that plaintiff tripped on and its arguments that condition was trivial and open/obvious were unavailing although the court did not explain why. Labor law §241(6) claim based on industrial code §23-1.7(e)(2) dismissed because plates were an integral part of the construction and not scattered materials or debris. Neither construction manager nor subcontractor were general contractors or agents of the city. Plaintiff was not a 3rd-party beneficiary of construction manager’s contract and manager didn’t create condition. Contractual Indemnity claims against subcontractor dismissed absent evidence of negligence. Savlas v City of New York


MVA   Rear End   Pileup   Comparative Fault   Foreseeability  

Second Deptartment

A rear end collision does not establish sole negligence on rear vehicle(s) where there is evidence that frontmost vehicle was also negligent. Testimony that NYCTA bus abruptly pulled away from stop entering second car’s lane, causing it to stop without hitting the bus before it was rear-ended by another vehicle pushing it into the bus raised issues of fact on both the bus and second car’s negligence. Plaintiff was a passenger in second car. Conroy v New York City Tr. Auth.


Labor Law §200   Labor Law §241   Industrial Code   Control   Circumstantial Evidence  

First

Plaintiff raised issue of fact on Labor Law §200 and negligence against electrical subcontractor by circumstantial evidence that electrical worker caused lid of gang box plaintiff was accessing to close on his hand. Building owner granted summary judgment on proof that it had no authority to control means & methods of work. Labor Law §241(1) dismissed as gang box was not “unguarded or defective power equipment” under industrial code §23-1.5(c)(3) and was not defective.

Cross-claims for common-law and contractual indemnity and contribution dismissed where co-defendants did not point to a contract and owner was not negligent. Canty v 133 E. 79th St., LLC


Estate   Motion to Dismiss   CPLR 3404   Reasonable Excuse   Meritorious Action  

Second Deptartment

Decedent’s daughter’s failure to provide reasonable excuse for extended delays in seeking substitution as plaintiff and failure to provide proof of meritorious action against remaining defendant resulted in denial of motion for substitution but lower court’s dismissal as abandoned under CPLR §3404 was improper as all proceedings had been stayed pending substitution of decedent’s estate. Medlock v Dr. William O. Benenson Rehabilitation Pavilion


Premises Liab   Slip/Trip   Snow/Ice   Sole Cause  

First

Defendant granted summary judgment where plaintiff chose to walk on top of curbside snow mound rather than use nearby cleared path to gain access to his parked car making plaintiff sole proximate cause of accident. Tzamarot v JP Morgan Chase & Co.


MVA   Turning Vehicle   Sole Cause  

Second Deptartment

Left-turning defendant met burden for summary judgment by his testimony and testimony of 4 eyewitnesses that plaintiff-bicyclist entered intersection against red light establishing sole cause, but plaintiff raised issue in opposition by signed statement and deposition of a 5th non-party witness that she had green light. Napolitano v Sanderson

IF YOU MUST READ
(0 summaries)
MUST READS NOTEWORTHY

About Matt McMahon

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