January 10, 2017 | Vol. 36

MUST READS
(4 summaries)

Discovery   IME/DME   Strike Note of Issue  

First

In the continuing battle over the use of non-attorney watchdogs at physical examinations, the First Department found that the lower court did not improvidently exercise its discretion in ordering the plaintiff to appear for a second physical, after the doctor who performed the first physical prior to the filing of the Note of Issue lost or destroyed his notes and was unable to dictate a report, and in response to a second motion for a protective order after the plaintiff appeared at the physical with a non-attorney IME watchdog, and ordered that plaintiff appear without a non-attorney watchdog. The plaintiff did not timely object to the defendant’s conditions in its notice of physical precluding a non-attorney and that plaintiff did not show special and unusual circumstances requiring the presence of the watchdog. Kattaria v Rosado

Comment: The immediate lesson for plaintiffs is to seek a protective order after receiving a notice of physical with objectionable restrictions. Plaintiffs may also wish to serve a “Notice of Availability for Physical” with their BP setting their own criteria for the physical, including who can attend the physical.


Premises Liab   Slip/Trip   Workers Comp Defense   Motion to Dismiss  

First

Defendant, Metropolitan Opera, was not entitled to dismissal based on documentary evidence on its claim that the plaintiff, Wendy White, a “star” performer was its employee under Workers Compensation Law §2(4) which deems performers employees of the venue unless stipulated by written agreement to be an employee of another company covered under the Workers Compensation Law. Plaintiff was employed by her own corporation which had a per performance contract with the Metropolitan Opera. After the accident in which the plaintiff tripped and fell while walking from the backstage staircase to the stage, the Metropolitan Opera filed a claim with its workers compensation carrier who paid some of the bills without prejudice. The Workers Compensation Board initially issued an order declaring the defendant to be the plaintiff’s employer but canceled that order when the plaintiff objected on the grounds that she was an employee of her own corporation and had filed a claim through her corporation in New Jersey. In addition, plaintiff submitted correspondence from the assembly sponsor of WCL §2(4) contained in the Governor’s Bill Jacket and an affidavit from the Senate sponsor showing that the provision was never intended to apply to “stars” but only to artists who were not in a position to negotiate. White v Metropolitan Opera Assn., Inc.


Labor Law §240   Labor Law §241   Industrial Code   Gravity Risk   Unknown Cause  

First

Defendant was entitled to summary judgment on Labor Law §240(1) claim and plaintiff was entitled to summary judgment on Labor Law §241(6) claim where plaintiff slipped and fell on debris on scaffold. Since plaintiff’s fall was not caused by the failure to provide against the risk of falling off the scaffold, it was not a gravity related risk subject to the protections of Labor Law §240(1). Plaintiff’s testimony that he slipped on an accumulation of debris on the scaffold, in violation of industrial code §23-1.7(e)(2) was not contradicted by the defendant. Plaintiff testified that he saw the accumulation of dust and paint chips on the scaffold after he fell and that the paint and dust was caused by the work he and his coworkers were doing. He “inferred” that he “must have” slipped on the dust and debris. Serrano v Consolidated Edison Co. of N.Y. Inc.

Comment: This is a good example of the difference between circumstantial evidence and a plaintiff not knowing the cause of an accident. By eliminating all other causes, plaintiff could infer from the circumstances of the dust and debris on the scaffold that the dust and debris was the cause of his accident.


Discovery   Privilege  

First

Order granting plaintiff’s motion to compel defendant to produce its carrier’s claims file reversed as the file was created by the liability carrier and, therefore, privileged. Absent a showing that plaintiff had no other way of obtaining the material or a substitute therefor without undue hardship, or that defendant waived the privilege by relying upon the material, a claims file is not subject to disclosure. Veltre v Rainbow Convenience Store, Inc.

NOTEWORTHY
(11 summaries)

Big Apple Pothole   Prior Written Notice   Untimely   NYC  

First

Lower court should have denied City’s motion for summary judgment where production manager of Sanborn Map Co., Inc. responsible for the legend on Big Apple maps, testified that the symbol for raised or uneven portions of sidewalk also applied to a raised manhole cover such as where plaintiff tripped. Production manager’s testimony was competent evidence of business and professional custom and practice and raised a triable issue of fact. Codefendant’s cross motion for summary judgment was properly denied as untimely and an improper vehicle for seeking relief from a non-moving party. Hennessey-Diaz v City of New York


Labor Law §240   Labor Law §241   Safety Devices   Industrial Code   Sole Cause  

First

Plaintiff entitled to summary judgment on Labor Law §§ 240(1) and 241(6) for fall from unprotected platform while installing precast concrete slabs for stadium seating at Madison Square Garden where he was provided with a safety harness without means for it to be properly tied off. Defendant’s claim that they instructed plaintiff to follow a specific subpart of OSHA which required that he use a safety harness for his work did not make plaintiff the sole proximate cause of his injuries since defendants did not rebut plaintiff’s testimony that there was no place to tie the safety harness. Defendants’ witnesses agreed that the only place to tie it was below plaintiff’s feet which was not considered an adequate tie off area. Their further claim that he could have tied it to a steel beam above was rejected since they failed to show that he was ever advised of the availability or instructed to use that tie off point. The industrial code provision relied upon by the plaintiff §23-1.16(b)(safety belts and harnesses) was applicable and provided a non-delegable duty for owners and contractors. Anderson v MSG Holdings, L.P.


Labor Law §200   Ladder   Create Condition   Notice  

First

Defendant was not entitled to summary judgment on Labor Law §200 and common-law negligence claims where plaintiff testified that he fell from ladder which was missing proper footing. Proper question was whether defendant created the condition by giving a defective ladder to the plaintiff or had notice of the defect, not whether the accident arose out of the means and methods of plaintiff’s work. There was conflicting evidence as to whether the defendant provided plaintiff with the ladder and plaintiff’s testimony that it was missing the proper feet was sufficient to show notice since it was an obvious condition. Motion should have been denied. Jaycoxe v VNO Bruckner Plaza, LLC


Premises Liab   § 7-210   Hearsay  

First

Defendants, individual former owners of property who had transferred property to a corporation they owned 10 years before the accident, were entitled to summary judgment on proof of the deed transferring ownership. Plaintiff’s evidence, including hearsay statements of non-parties, failed to rebut the presumption of delivery and acceptance of the deed. Claims that the individual owners of the corporation operated and controlled the premises were insufficient for liability against them absent proof that they did so to the exclusion of their corporation. Washam v O’Hathairne Bros., Inc.


Serious Injury   Expert Aff   Unaffirmed Report  

First

Defendant’s orthopedist’s affirmed report showing normal range of motion, negative tests, and resolved “acute and chronic” dislocation, along with records showing history of shoulder dislocations made out prima facie entitlement to summary judgment but plaintiff raised a triable issue by his orthopedist’s affirmed report showing that the plaintiff sustained a re-dislocation of his shoulder as well as a separation of his AC joint. Plaintiff’s orthopedist adequately addressed the history of prior dislocations and defendant’s expert did not address plaintiff’s separated AC joint and ruptured ligaments. Plaintiff’s expert could rely upon unaffirmed MRI and surgical reports because they were specifically relied upon by the defendant’s expert. Shapiro v Spain Taxi, Inc.


MVA   Bus   Comparative Fault  

First

Plaintiff entitled to summary judgment, and dismissal of affirmative defense of culpable conduct, on proof that defendant’s bus, parked on a hill, spontaneously rolled down the hill after a hissing noise emanated from the brakes and struck the plaintiff’s car in the rear while the plaintiff had been stopped at a red light for 10 to 15 seconds. Fofana v New Jersey Tr. Corp.


Serious Injury   Expert Aff   Treatment Gap   ROM  

First

Plaintiff raised triable issue in opposition to defendant’s prima facie showing of entitlement to summary judgment on serious injury of the cervical and lumbar spine by her radiologist’s report showing herniation in the cervical spine and bulges in the lumbar spine and her neurologist’s report showing significant limitation of ROM and positive test findings on recent examination. Plaintiff’s testimony that her gap in treatment was the result of her insurance company cutting off treatment and that her new insurance company would not cover the treatments adequately explained the gap in treatment. Plaintiff’s testimony regarding her post-accident treatment, confirmed by uncertified medical records, was sufficient to show treatment since the uncertified records were not the only proof submitted by plaintiff. Gomez v Davis


Serious Injury   Expert Aff   BP  

First

Defendant made out prima facie entitlement on serious injury to both cervical and lumbar spine by their neurologist’s opinion that there was no objective evidence of impairment and radiologist’s opinion that the cervical disc bulges and lumbar disc herniations were degenerative. Plaintiff raised a triable issue regarding the cervical spine by his orthopedist’s affidavit showing limitation of ROM and opinion that it was caused by the accident due to plaintiff’s young age and sudden onset of symptoms, providing a “different, yet altogether equally plausible cause” of the injuries. Plaintiff failed to raise an issue on the lumbar spine. His medical expert did not address the findings in the MRI report of degeneration or explain why degeneration was not the cause of the injury. Statement in BP that plaintiff was confined to bed and hospital for no more than 2 weeks made out defendant’s entitlement to summary judgment on 90/180-day category and plaintiff did not raise an issue in response. Fathi v Sodhi


Vacate Default   Service   Reasonable Excuse  

First

Defendants’ motion to vacate default properly denied for failure to show a reasonable excuse for the default. Conclusory statement that they did not receive summons and complaint was insufficient to rebut presumption of service when served on the Secretary of State. Plaintiff’s failure to comply with the additional service requirement of CPLR 3215(g)(4)(i) is not a ground to vacate absent a showing of a reasonable excuse by the defendant. Gourvitch v 92nd & 3rd Rest Corp.


Motion to Dismiss   1983 Action   Intentional  

First

Defendant’s motion to dismiss 4th and 5th causes of action properly granted since they alleged intentional and not negligent causes of action and there was no allegation of negligent hiring, retention, supervision, or training. Cause of action for violation of civil rights also properly dismissed as a municipality can only be held liable under §1983 if it caused the violation through an official policy or custom, which was not alleged. Hussain v City of New York


Discovery   Strike Note of Issue  

First

The lower court erred by not granting defendant’s motion to compel plaintiff to produce information and authorizations regarding insurance policies for all of plaintiff’s registered cars previously ordered by a separate judge on a motion to strike the plaintiff’s Note of Issue. While the issue of venue had subsequently been resolved, it was an abuse of discretion for the lower court to not enforce an extant order. Madia v CBS Corp.

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About Matt McMahon

Civil trials and appeals since 1984

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