January 12, 2021 | Vol. 244

(4 summaries)

Motion to Dismiss   Personal Juridiction   Waiver  

First Department

Defendant’s motion to dismiss for lack of jurisdiction denied in asbestos case where affirmative defense stating, ‘Where applicable, Kohler preserves its right to object to personal jurisdiction of [p]laintiff over Kohler,’ waived the defense as it did not assert defense ‘with specificity.’ Matter of New York City Asbestos Litig.

Notice of Claim   Amend Complaint   NYC  

First Department

Notice of Claim alleging improper maintenance of bus where sewer plate on roadway exploded piercing bus floor and landing on plaintiff’s foot failed to give NYC notice of claim that roadway was defective, first claimed 4-years after accident, as several amended Complaints and BPs before that mentioned only improper maintenance and it was too late to amend the Notice of Claim. Con Ed granted summary judgment where Complaint, although reciting facts of the incident, did not make any allegations of wrongdoing by Con Ed. Guzman v City of New York

Discovery   HIPAA  

First Department

Plaintiff compelled to provide HIPAA authorizations for substance abuse and mental health treatment records as he put his mental health condition in issue by alleging a TBI, cognitive impairments, PTSD, depression, mood swings, loss of sense of self, and anxiety. Del Grosso v Jimmy Jazz Staten Is., LLC

Premises Liab   Slip/Trip   Sidewalk   De Minimus   Notice   Last Inspection  

First Department

Abutting landowner denied summary judgment were photographs it submitted showed raised sidewalk flag consistent with plaintiff’s testimony that flag raised at least .5″ caused her to trip. Violation of administrative code §19-152 requiring sidewalk flags with height differentials of .5″ or more be fixed is one of the factors to consider in determining if defect is trivial. Without measurements, plaintiff’s testimony leaves a question of fact. Defendant’s testimony of no complaints and general inspection practices insufficient to eliminate questions of constructive notice. Trinidad v Catsimatidis

(11 summaries)

Labor Law §240   Labor Law §241   Labor Law §200   Falling Object   Industrial Code   Control  

First Department

Owner, property manager, and plumbing contractor denied summary judgment where they failed to provide any evidence contradicting plaintiff’s testimony he was struck by object dropped by plumber from above who apologized on Labor Law §240(1) falling object claim and plaintiff was not required to prove the exact circumstances. Defendants denied summary judgment on Labor Law §241(6) based on industrial code §23-1.7(a)(1) without proof area was not normally exposed to falling objects. Owner and property manager failed to show they did not exercise supervision or control over either plaintiff‘s or plumbers’ work under Labor Law §200.

GC granted summary judgment on proof it performed work only in certain interior apartments and did no work in basement where plaintiff was injured. Salcedo v Sustainable Energy Options, LLC

Construction Liab.   Slip/Trip   Sidewalk   Espinal   Raised For First Time  

First Department

Contractor granted summary judgment on proof it returned sidewalk and protruding anchor bolts for lightpost to same condition it was in before contractor damaged foundation, showing as a matter of law it did not launch an instrumentality of harm under Espinal. Plaintiff’s claim that absent proof of when pole was removed inferences can be drawn that it was removed when foundation was damaged was not considered where raised for the first time in a reply brief. Price v Turner Constr. Co.

Premises Liab   Question of Fact   Hearsay   Uncertified Records   Expert Aff  

First Department

NYCHA denied summary judgment where its biomedical expert relied on uncertified medical records for infant-plaintiff’s weight and used average weight of an 11-year old in forming opinion that it was physically impossible for her to have fallen through top of window as she described. It was undisputed window guard was improperly installed on the day of the accident and NYCHA’s employees’ testimony did not establish they did not create the unsafe condition. D.A. v New York City Hous. Auth.

Labor Law §200   Labor Law §240   Gravity Risk   Control  

First Department

GC denied summary judgment of Labor Law §200 and common law negligence claims where pipe rolled over plaintiff’s foot while he and coworkers were pushing/pulling plantar they were instructed to insert pipes under to move and foreman pushed it with a bobcat as question of fact remained that GC maintained some control of the means and methods of plaintiff’s work based on onsite superintendent’s testimony that GC directed the planter be moved, controlled use of the machinery, and could stop work for safety concerns or unlicensed bobcat operators, and had a practice of performing a safety task assessment. Defendants granted summary judgment of Labor Law §240(1) as no gravity risk was involved. Lemache v MIP One Wall St. Acquisition, LLC

Premises Liab   Dangerous Condition   Notice   Last Inspection   Spoliation   Survelliance Video  

First Department

Defendants denied summary judgment where their head of security testified photographs of loading dock taken immediately after plaintiff was injured while making a delivery showed an unacceptable condition that should have been remedied, raising issues of fact and defendants failed to show lack of constructive notice without proof of last time area was inspected. Plaintiff granted spoliation sanctions where she notified head of security of accident placing defendants on notice surveillance video capturing accident might be needed for litigation and they did not preserve the video. Ellis v JPMorgan Chase Bank

Med Mal   Accepted Practice   Causation   Expert Aff   Speculation  

First Department

Defendants granted summary judgment on expert opinion that head/neck surgeon comported with accepted practice and was not cause of dental injury that was known risk of procedure. Plaintiff failed to raise issue in opposition without an expert opinion and claim medical records were altered was speculation. Evans v New York & Presbyt. Hosp.

Serious Injury   Preexisting   Degenerative   Causation   Expert Aff  

First Department

MRI report and defendants’ orthopedist’s opinion that lumbar injuries were preexisting chronic conditions not caused by accident made out prima facie entitlement to summary judgment on serious injury. Plaintiff did not raise issue in opposition where his doctors did not address preexisting conditions noted in his records or explain how they could not be cause of his complaints. Xiu F. Wang v Levy

Premises Liab   Slip/Trip   Snow/Ice   Expert Aff  

First Department

Abutting landowner’s failure to submit an expert opinion where meteorological records, plaintiff’s expert’s opinion, and plaintiff’s testimony of conditions raised issues of how and when conditions occurred required denial of defendants’ motion for summary judgment. Batista v Hancock

Vacate Default   Reasonable Excuse   Traverse Hearing   Meritorious Action  

First Department

Plaintiff’s motion to vacate default denied without proof of reasonable excuse for process server’s failure to appear at Traverse hearing, including any details to support claim process server had unexpected medical appointment on date of hearing, or proof of a meritorious action. Cruz-Guzman v 2380-2386 Grand Ave., LLC

Vacate Default   Reargument   Untimely   Prejudice   Reasonable Excuse   Meritorious Action   Renew  

First Department

Appellate Court deemed motion to reargue defendant’s motion for summary judgment that had been granted on default as motion to vacate where plaintiff’s affidavit showed reasonable excuse for default and meritorious action and lower court’s sua sponte denial of defendant’s motion for summary judgment as untimely was not prejudicial to defendants who raised timeliness on their motion for leave to renew as they failed to show motion was timely or that good cause existed for the late submission. Ingram v Association for Metroarea Auticstic Children, Inc.

MVA   Bus   Vicarious Liab  

First Department

After the appellate division’s dismissal of the case against NYCTA, finding no liability, the lower court had no authority to entertain plaintiff’s motion to require NYCTA to pay for the unsatisfied judgment and accrued interest against its employee-bus-driver under Pub. Auth. L. §1212, whose Answer was stricken for failure to comply with discovery, as the employee never asserted cross-claims against NYCTA and the action was terminated by the entry of judgment years before the motion. Cropper v Stewart

(1 summaries)

Assault   Stay Arb   Statute of Limitations   Waiver   Prejudice   Raised For First Time  

First Department

NBC’s motion for a permanent stay of arbitration of assault claim denied where provision in agreement containing arbitration clause specifying that it be “interpreted” under New York law, not that enforcement be governed by New York law, left statute of limitations defense to be determined by arbitrator and claim of waiver by delay first raised in reply was not preserved for appeal. In any event, NBC was a party to consent order allowing separate NJ action to proceed and was not prejudiced where it did not go forward as the statute of limitation defense, if applicable, would protect it from stale claims. Matter of NBC Universal Media, LLC v Strauser

About Matt McMahon

Civil trials and appeals since 1984
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