January 14, 2020 | Vol. 193

(7 summaries)

Vacate Jud   Settlement   CPLR § 5003-a   Interest  

First Department
Judgment of $5 mil portion of $9 mil settlement to be paid by car dealer that owned car that struck plaintiff, reduced to $4 mil for liquidation fund partial settlement, entered under CPLR 5003-a without interest or costs modified to include interest and costs. Dealer’s motion to vacate judgment claiming attorney who entered into agreement 2-days after carrier was placed in conservation did not have authority to settle denied where based only on subsequent attorney’s affirmation, not client’s, and their attorney at time of settlement testified to being aware of conservation and being given express authority to enter into settlement by third-party administrator. Car dealer failed to meet burden of showing its attorney lacked authority or to overcome apparent authority and settlement did not specifically limit payment to be from carrier. $4 mil was not entitled to CPLR §5003-a(f) exclusion for insurance companies in liquidation since only the car dealer was responsible for the payment and interest and costs should have been added to the judgment. Pruss v Infiniti of Manhattan, Inc.

Labor Law §241   Set Aside Verdict   Industrial Code   Jury Charge   Juror Confusion  

Second Department
After jury found NYC violated industrial code §23-4.2(k) prohibiting workers from being in areas where they could be struck by an excavator, but found that the violation was not a substantial factor in plaintiff’s injury where his hand was struck by an excavator, but then proceeded to apportion fault 75%/25% plaintiff/NYC despite instruction not to continue upon finding no causation, the lower court directed jury to reconsider the internally inconsistent verdict telling them to follow the instructions on the verdict sheet instead of including the portion of the Labor Law §241(6) charge regarding defendant’s failure to use due care as a substantial factor plaintiff’s counsel pointed out omitted. Second verdict was identical to first except for apportionment of fault and appellate court found second verdict “unreliable” and the product of juror confusion setting it aside and ordering a new trial. At the new trial the lower court was directed to not instruct, as it incorrectly did, that NYC claimed plaintiff was not entitled to the protections of industrial code §23-4.2(k) because he was authorized to be within the range of the excavator as the court had previously found in the present case that he was entitled to the protection in Torres v City of New York. Torres v City of New York

Workers Comp Defense   Collateral Estoppel   Indemnity  

First Department
Third-party defendant’s motion for summary judgment on Worker’s Compensation defense based on WCB’s finding it was plaintiff’s employer denied where building owner, third-party plaintiff, did not have notice or opportunity to participate in workers compensation hearing. While WCB has the primary responsibility for determining who the employer is, and it’s findings are normally binding, Supreme Court has concurrent jurisdiction to determine the issue where a party contesting the issue of employment did not have notice or opportunity to participate in the hearing as the WCB finding would not be collateral estoppel as to that party. Martinez v 250 W. 43 Owner, LLC

Late Notice of Claim   Renew   Statute of Limitations  

Second Department
One year and 90-day statute of limitations for firefighter’s claim was not tolled from the denial of the motion to serve a late Notice of Claim until the motion to renew, which reversed the denial, and since the statute of limitations had expired by the time of the motion to renew the court was without power to grant leave to file a late Notice of Claim. Matter of Lockwood v City of Yonkers

Comment: Defendant’s appeal from order denying dismissal on statute of limitations denied as academic given the above decision. Lockwood v City of Yonkers.

Labor Law §240   Scaffold   Sole Cause   Recalcitrant Worker  

First Department
Worker who fell from scaffold as it collapsed entitled to summary judgment on Labor Law §240(1) even if instructed not to use scaffolds from other trades as ‘an instruction to avoid an unsafe practice is not a sufficient substitute for providing a worker with a safety device.’ Saavedra v 111 John Realty Corp.

Slip/Trip   Snow/Ice   Sidewalk   NYC  

Second Department
NYC granted summary judgment where plaintiff slipped on snow on sidewalk not cleared by NYC for several days because for city to be liable it must be shown that condition was “different in character from the condition ordinarily and generally existing during the winter season, as to charge the municipality with negligence for failure to remove [the condition] from the sidewalk” and the evidence showed it was a typical winter storm covering a large area and that the surrounding city sidewalks were in a similar condition at the time of plaintiff’s fall. Turcios v De Mesa


First Department
Defendants’ motion to depose prior treating and current treating physicians denied where they failed to show a discrepancy between plaintiff’s testimony and medical records and that their testimony regarding spine and knee conditions would be unrelated to their diagnosis and treatment and that there was no other way to obtain the information. Birro v Port Auth. of N.Y. & N.J.

(19 summaries)

Late Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice   Raised For First Time  

First Department
Petition to serve late Notice of Claim made more than 3-years after medical malpractice claim accrued on discharge of mother and infant denied where medical record did not “evince” that medical staff caused injury and continuing treatment claim first raised on appeal was not considered. Notice of Claim served without leave 14-months after discharge was not “within a reasonable time” after the 90-day period and plaintiff failed to meet its initial burden of showing no prejudice. Matter of J.H. v New York City Health & Hosps. Corp.

Med Mal   Untimely   Note of Issue  

Second Department
Rather than opposing defendants’ motion for summary judgment plaintiffs brought order to show cause to reject motions as untimely which was granted as motion was served more than 60-days after Note of Issue without good cause shown and Kings County requires summary judgment motions be filed within 60-days of Note of Issue. Gonzalez v Pearl

Premises Liab   Slip/Trip   Sidewalk   Prior Written Notice   § 7-210   NYC  

First Department
Plaintiff’s motion for clarification, deemed a motion to vacate prior order dismissing case against NYC on default, after appellate division reversed summary judgment against codefendant abutting landowner finding questions of fact as to whether they were entitled to 1-3 family exception to administrative code §7-210, denied where plaintiff by defaulting admitted that NYC had no prior written notice of defect necessary for liability against NYC. Esponda v Ramos-Ciprian

Premises Liab   Notice   Last Inspection  

Second Department
School failed to make out prima facie entitlement to summary judgment where student’s leg was lacerated by protruding screw from retractable bleacher as she walked by. Facility director’s conclusory affidavit that they outsourced maintenance and inspection of bleachers which did not include name of company or last time bleachers were inspected did not eliminate questions of fact on notice. Kelly v Roy C. Ketcham High Sch.

Med Mal   Accepted Practice   Intervening Cause   Expert Aff   Conclusory  

First Department
Plaintiff’s expert raised issue of fact that doctor deviated from accepted practice by not referring 40-year-old male with complaint of new headaches for 3-weeks, not improving, for rapid neurological assessment, and failed to take a proper headache history. Plaintiff’s expert’s opinion that defendants departed from accepted practice in manner of exam (except history taking) was conclusory without setting forth the standards of accepted practice. Defendant did not contradict significant statements of plaintiff’s expert and failed to show that subsequent treatment by ophthalmologist was intervening cause. Siegal v Adler

Med Mal   Accepted Practice   Causation   Expert Aff   Respondeat Superior  

First Department
OB/GYN failed to make out prima facie entitlement to summary judgment on expert opinion that was based solely on OB/GYN’s testimony that she supervised every stitch of fourth degree laceration from childbirth ignoring plaintiff’s contrary testimony and plaintiff’s expert raised issue on causation by opinion that based on timing of symptoms without infection the anovaginal fistula developed as a result of the negligent repair. OB/GYN’s expert did not address causation. Resident supervised by OB/GYN, and hospital granted summary judgment as she did not exercise her own medical judgment. Plaintiff’s expert raised issue regarding obstetrician’s departure during postpartum care for failure to timely refer patient to colorectal surgeon upon symptom of feces coming out of vagina. Murphy v Drosinos

Premises Liab   Slip/Trip   Snow/Ice   Duty   3rd Party Contractor   § 7-210  

Second Department
Tenant entitled to summary judgment on proof it did not create or exacerbate sidewalk snow condition and did not have an obligation to maintain the sidewalk under the lease. Leitch-Henry v Doe Fund, Inc.

Comment: The Court noted that while a tenant is not normally liable for sidewalk maintenance under §7-210, it can be liable if its lease entirely displaces the landlord’s obligation to maintain the lease, an Espinal exception.

MVA   Discovery   Preclusion   Willful/Contumacious  

Second Department
Lower court providently precluded plaintiff from offering medical evidence necessary to make out prima facie case for failure to comply with 2-so ordered stipulations to provide requested discovery, the last of which had an order of preclusion. Repeated failure to comply with orders without a reasonable explanation is evidence of willful/contumacious refusal to comply. Marino v Armogan

Dogbite   Vicious Propensity   Notice  

Second Department
Building owner denied summary judgment where it relied on plaintiff’s testimony that plaintiff was unaware of dog’s vicious propensities as that did not prima facie establish that dog did not have vicious propensities or that property owner was unaware of vicious propensities. Hunt v Public Adm

Premises Liab   Elevator   Notice   Res Ipsa Loquitor  

First Department
Building granted summary judgment of claim that door to external wheelchair lift opened prematurely causing plaintiff’s decedent to fall out on service records showing it had no notice of any defect with the door and plaintiff failed to show complaints of similar incidents. Res ipsa loquitor did not apply but the Court did not give the reasons. Pui Kum Ng Lee v Chatham Green, Inc.

Premises Liab   Slip/Trip   Wet Floor   Warnings   Espinal  

Second Department
Cleaning company failed to show it did not launch an instrumentality of harm under Espinal by submitting plaintiff’s testimony that she fell 2’ past walking into the room, did not see any substance on the floor until after she fell, and only sign she observed was 20′ away and defendant’s employee’s testimony that he mopped the floor a minute before plaintiff fell and that there were 4-7 signs throughout the room, leaving questions of fact for the jury. Ramsey v Temco Serv. Indus., Inc.

Assault   Security Guard   Respondeat Superior  

First Department
Business whose security guard allegedly attacked plaintiff with a box cutter granted summary judgment where under plaintiff’s version alleging an unprovoked attack the guard would not have been acting within the scope of his employment for the benefit of his employer eliminating vicarious liability and under the defendant’s version the guard was acting in self-defense. Gregory v National Amusements, Inc.

Premises Liab   Negligent Supervision   Dangerous Condition  

Second Department
School granted summary judgment where plaintiff was holding a door talking to her friend when he claimed it closed “really, really, really, really, fast”, severing the tip of his finger based on the custodial engineer’s testimony that he inspected the door twice a week and saw no problems and principal’s testimony that a search of records showed no prior complaints and that the door was in continuous use establishing that it was not defective. Infant-plaintiff’s 50-H testimony that it closed really fast did not raise an issue of fact. E.W. v City of New York

Serious Injury   ROM   Preexisting   Degenerative   Causation   Expert Aff   Conclusory   Appealable Order  

First Department
Defendants allowed to argue grounds for summary judgment argued below but not relied on by the lower court in its decision. Defendants made out entitlement to summary judgment on IME/DME orthopedist’s report of normal ROM in spine and knee and opinion that conditions on MRI were pre-existing and degenerative, supported by defendants’ radiologist. Plaintiff’s physicians failed to address causation issue other than by conclusory statements based on plaintiff’s subjective reporting and uncertified MRI reports, admissible because defendants’ physicians relied on them, which showed degenerative changes. Grate v Rodrigues

Premises Liab   Slip/Trip   Snow/Ice   Storm in Progress  

Second Department
School granted summary judgment where plaintiff slipped and fell on snow/ice in parking lot while bringing his son to school on plaintiff’s and son’s testimony that it was snowing when they left home and record showed 2″ of snow fell within 2-hours before accident. Plaintiff’s claim that it stopped snowing by the time he got to school would not have afforded school a reasonable time for snow removal. Acocal v City of Yonkers

Premises Liab   Slip/Trip   Open/Obvious   Inherently Dangerous  

Second Department
County granted summary judgment where plaintiff tripped and fell on a piece of split rail fence that had fallen on the ground because it was open/obvious and not inherently dangerous. Swinney v Nassau County

Premises Liab   Slip/Trip   Snow/Ice   Create Condition   Notice   Notice of Claim  

First Department
NYCHA granted summary judgment on worker’s testimony that he cleared snow from employee parking lot day before accident, salted 1.5-2 hours before accident, plaintiff’s admission that he saw no black ice before accident, and proof that NYCHA did not create or have notice of condition. Plaintiff’s attorney’s affirmation claiming ice resulted from melting snow piles was not by person with personal knowledge and not supported by record. Theory that ice was a recurring condition not considered as not include in Notice of Claim. Delgado v City of New York

MVA   VTL §1104   Reckless  

Second Department
Defendants’ motion for summary judgment claiming protection under VTL §1104 for operation of emergency vehicle denied where they failed to show prima facie that sheriff did not act with reckless disregard for the safety of others. The court does not give the details of the proofs. Cordero v Nunez

Vacate Default   Appealable Order  

First Department
Plaintiff’s appeal from order denying vacatur of order of dismissal on default dismissed where Notice of Appeal was filed more than 2-years after entry of order and there was no reason to deem it an appeal from the judgment entered shortly before the Notice of Appeal as it was an attempt to get around an untimely appeal from the order. Rivera v Skanska USA Civ. Northeast, Inc.

(2 summaries)

Workers Comp Defense  

First Department
Plaintiff’s motion to strike Worker’s Compensation affirmative defense granted on finding that plaintiff was explicitly excluded as an employee for purposes of Worker’s Compensation and that the “special employee” exception did not apply. The court does not give the details of the proofs. White v Metropolitan Opera Assn., Inc.

Indemnity   Control  

First Department
Owner and general contractor granted summary judgment on contractual indemnity claim against subcontractor where contract specifically provided for indemnification and owner and general contractor did not control means and methods of work and were only vicariously liable. Cross motion to dismiss contractual indemnity claim against other subcontractor denied where there was question of fact as to whether it was alter ego of contractor with indemnity agreement. Gutierrez v 451 Lexington Realty LLC

About Matt McMahon

Civil trials and appeals since 1984
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