January 16, 2024 | Vol. 400

(5 summaries)

Set Aside Verdict   Pain/Suffering   Experts   Speculation  

First Department
Verdict of $1 mil/$2 mil past/future pain/suffering and $2.5 mil future medical expenses providently set aside unless plaintiff stipulated to reduction to $250,000/$450,00 for past/future pain/ suffering and $10,000 for future medical expenses for plaintiff’s shoulder impingement syndrome and fractured wrist with cast and 6-months therapy as verdict reflected jury included plaintiff’s complex regional pain syndrome (CRPS) claim which was against the weight of the evidence where 4-treating doctors and 4-defense experts found no evidence of CRPS in his medical records or on examination. Physiatrist’s finding of CRPS was inconsistent with his evaluations and anesthesiologist who opined plaintiff suffered CRPS from his accident admitted he belatedly added the diagnosis after a conversation with an unidentified person. Award for medical expenses was based on unreliable and speculative evidence. Sinera v Embassy House Eat LLC    

Premises Liab   Open/Obvious   Inherently Dangerous   Duty   Vicarious Liab   Independant Contractor  

Second Department
Building owners failed to establish they could not be vicariously liable for maintenance company’s negligence under the “nondelegable duty exception” to the rule of nonliability for the acts of independent contractors where they owed a nondelegable duty to keep the premises safe and did not prima facie show the accident happened in an area where tenants were not ‘[i]n the habit of passing’ or that the tenant was not a person protected by the nondelegable duty.

Defendants failed to show condition tenant slipped on in hallway was open/obvious and not inherently dangerous. The Court does not give the details of the proofs. Murray v Community House Hous. Dev. Fund Co., Inc.    

Capacity to Sue  

First Department
Defendants’ motion for a hearing to determine if plaintiff needed a guardian ad litem as she was incapable of prosecuting her personal injury claim her brain injury denied where testimony from her 3-EBTs over 11-hours, participation in an on-site inspection, and 4-IME/DMEs showed she was capable of prosecuting her action and protecting her rights. Opinion in her neuropsychologist’s original report that her complex-decision making was impacted by her brain injury and that she needed assistance in this area was not proof a hearing was necessary and both plaintiff’s affidavit and her neuropsychologist’s recent affidavit affirmed she was capable.

Saliently, defendants’ position that plaintiff needed a guardian ad litem contradicted the position they would take at trail, evincing a motive other than protecting plaintiff’s rights. Mironov v Memorial Hosp. for Cancer & Allied Disease    

Premises Liab   § 7-210   Notice   Indemnity  

First Department
Addressing condominium and property manager’s claim that 34 RCNY §2-07(b)(1) requiring owners of manholes and grates to maintain them and surrounding area acted as an exception to administrative code §7-210 liability for abutting landowners, the First Department found that §2-07(b) acts as an exception only for manhole covers and grates embedded in the sidewalk and does not expressly shift liability for uninstalled or unmounted manhole covers and grates. Administrative code criminalizing theft of and transportation of manhole covers did not prevent abutting landowners from taking control of the manhole cover on the sidewalk that plaintiff tripped on. Moving defendants denied summary judgment without proof they lacked constructive notice of the condition but granted summary judgment dismissing indemnity cross claims by Con Ed who removed the manhole cover and did not oppose the motion. Jones v Vornado N.Y. RR One L.L.C.    

MVA   Untimely   Note of Issue   Prejudice   Vicarious Liab   Respondeat Superior   Control   Workers Comp   Question of Fact  

First Department
Auto parts defendants’ motion for summary judgment timely where hard copies were served on all parties by the court deadline despite not being electronically for more than 2-months after the deadline, plaintiff acknowledged the motion was timely, and did not show prejudice from the delay.

Moving defendants denied summary judgment on claim they were not vicariously liable for their delivery driver’s negligence while riding a moped with plaintiff as a passenger when it struck the rear of non-moving defendant’s stopped vehicle on proof the driver worked for them on a full-time fixed schedule, was making a delivery as directed by their supervisor, they provided the driver worker compensation benefits for her injuries, and questions of whether they controlled the method and manner of her work was best left to a jury. Deprospo v Nixon-Cochran    

(21 summaries)

Motion to Dismiss   Personal Juridiction   Service   Hearing  

First Department
Plaintiff’s motion for default judgment denied and defendant’s motion to dismiss for lack of personal jurisdiction granted after a traverse hearing where process server’s affidavit was missing the street number, he could not provide further details, and proof that defendant’s appearance was significantly different from the description in his affidavit, including being 20-years older, 15 pounds heavier, and having 2-different colored eyes, one of which was a prosthetic, which the lower court deemed an identifying feature, rebutting the presumption of proper service from the affidavit of service. Ferrer v Williams    

Premises Liab   Espinal   Causation   Governmental Function   Control   Notice   Raised For First Time   NYC  

First Department
Company that contracted with NYC to provide temporary homeless apartment housing granted summary judgment dismissing plaintiffs’ claim the company’s failure to observe and report a ceiling leak and ensure it was repaired caused the ceiling to fall on the injured-plaintiff where plaintiffs first alleged they were owed a duty as third-party beneficiaries to the contract in their opposition, did not attach a copy of the original contract, and even if they were owed a duty, defendant’s caseworker reported the ceiling leak and there was no proof failure to ensure it was repaired created or exacerbated the condition or that plaintiff detrimentally relied on the company’s contractual duty under Espinal.

NYC granted summary judgment as providing temporary homeless housing is a governmental function and plaintiffs failed to show any non-discretionary act by NYC or that NYC had control over the caseworker or notice of the condition. Maldonado v Young & Booby Realty Corp.    

MVA   Motion to Dismiss   Respondeat Superior   Alter Ego   Loss of Services  

First Department
Defendants pre-Answer motion to dismiss action for infant-passengers’ injuries when vehicle their stepmother was driving was rear-ended by a flatbed truck on documentary evidence and for failure to state a cause of action denied where defendants did not submit proof the stepmother-decedent was not an ” 0ff-the-books employee in a corporation run family farm business” and individual defendant’s affidavit that he did not employ decedent or do business with his brothers was not documentary evidence under CPLR §3211(a)(1). Plaintiff’s alter ego claims dismissed where allegations of total dominion were based solely on information and belief and plaintiff failed to plead facts to support dominion or control.

Father’s claim for loss of consortium of his children dismissed as generally parents cannot claim loss consortium for their children although they may claim loss of services on proof child contributed to household income or paid household expenses. S.M. v Madura    

Premises Liab   Notice   Building Code   Create Condition   Res Ipsa Loquitor   Experts  

First Department
Defendants failed to meet burden for summary judgment dismissing plaintiff’s claim where her foot went through the deck of an apartment as she stepped on it and fell through the hole it created on their claim they inspected the deck before purchasing the building 51-days earlier and that it was inspected by an unidentified inspector as they did not provide the inspection report or any evidence that the defect could not have been discovered by a diligent inspection. Their failure to show lack of actual or constructive notice made issue of whether they created the condition irrelevant.

In any event, plaintiff raised an issue on constructive notice by her expert’s proof of no certificate of occupancy for the building or deck and opinion that it put defendants on notice the deck did not comply with applicable building codes. Plaintiff also raised an issue on res ipsa loquitor because a deck does not normally collapse absent negligence, there was no claim plaintiff contributed to the accident, and defendants had exclusive control of the property which remained empty from the time of their purchase. Rosario v Cao    

Malpractice   Causation   Experts   Appealable Order  

First Department
Hospital’s expert’s opinion that even if delay in performing mitral valve surgery caused patient’s condition to worsen, it did not increase the perioperative complications of air embolism and pulmonary hypertensive crises which most likely caused patient’s heart attack met burden for summary judgment on causation and plaintiff’s expert’s general opinion the delay caused the condition to worsen did not raise an issue where he agreed an air embolism caused the cardiac arrest and he did not address the hospital’s expert’s opinion the delay did not increase the risks. Likewise, hospital’s expert’s opinion that 4-hour delay in installing a distal perfusion catheter (DPC) was not a proximate cause of the patient’s injuries as ‘ischemia of the extremities is a known risk’ of the patient’s treatments, ‘was an unavoidable consequence of the life-saving and longstanding’ treatments, that it takes more than 4-hours for irreversible tissue ischemia to develop, and any tissue damage from a 4-hour delay would have set in earlier showed delay in installing DPC was not a proximate cause of patient’s injuries meeting burden for summary judgment. Plaintiff’s expert’s general opinion that the delay caused the ischemia did not raise an issue on issue of delay in installing DPC where he did not address the defense-expert’s specific opinion regarding the ischemia onset timing but opinion that placement of the DPC in the superficial femoral artery would have allowed greater blood flow and avoided the ischemia raised an issue in opposition to the defense-expert’s opinion that there was no data to show placement other than in the dorsalis pedis artery would provide a better result.

Issue of whether defendant-doctors departed from accepted practice by opting to repair instead of replace the mitral valve twice, to properly de-air the heart, and properly evacuate postop clotting not considered where hospital did not appeal that portion of the order. Matthew v DeRose    

Malpractice   Emotional Harm   Accepted Practice   Causation   Experts   Conclusory   Loss of Services  

First Department
Hospital, emergency physician, and company that provided emergency services failed to show physician did not depart from accepted practice where their expert opined the standard of care was to evaluate the patient, take a medical history, and determine an appropriate disposition and there was conflicting evidence of whether the physician improperly accepted and recorded plaintiff’s self-reported pancreatic cancer as stage IV, contradicted by plaintiff’s testimony that the emergency physician staged his cancer and sent him to hospice. Defendants’ expert’s opinion the alleged departures could not have caused plaintiff’s injuries was conclusory. In any event, plaintiff’s expert raised issues on departure and causation by opinion that accepted practice required the emergency-physician to obtain an oncology consult with any report of pancreatic cancer and that had he done so plaintiff would not have been accepted in hospice care for end-of-life treatment where he suffered emotional harm, addiction, and other injuries believing he had only months to live which also required denial of summary judgment on negligent infliction of emotional harm cause of action.

Defendants denied summary judgment dismissing loss of consortium claim even though husband and wife had not lived together since 1991 where wife testified they continue to provide “practical and emotional support, affection, and companionship” after their separation. Candelario v MJHS Hospice & Palliative Care, Inc.    

MVA   Turning Vehicle   Raised For First Time  

Second Department
Defendants denied summary judgment for failure to eliminate all questions of fact on whether their driver violated VTL §1123(b) by overtaking a vehicle on the right when it was unsafe to do so where that vehicle had stopped to let the vehicle plaintiff was in make a left-hand turn in front of him, dash cam video showed moving-defendants’ driver’s view of the turning vehicle was obscured and he did not stop or reduce his speed while passing the stopped vehicle and striking the vehicle plaintiff was in. Fact that moving-defendants’ driver was traveling within the speed limit irrelevant to the issue of whether he exercised reasonable care.

Non-moving defendants’ objection to dash cam video as inadmissible not considered where raised for the first time on appeal. Rogers v Consolidated Edison Co. of N.Y., Inc.    

MVA   Pedestrian   Turning Vehicle   There to be Seen   Comparative Fault   Emergency Doctrine  

First Department
Plaintiff met burden for summary judgment on her affidavit showing she was crossing the street within the crosswalk in her wheelchair when struck by defendants’ tractor-trailer which was making a left turn from a parking space, establishing defendant violated VTL §1146 duty to ‘exercise due care to avoid colliding with any . . . pedestrian . . . upon any roadway’ regardless of whether she was in or outside the crosswalk. Defendant-driver’s affidavit suggesting he may not have seen the plaintiff because her wheelchair was low did not raise an issue in opposition as it was speculative and he failed to see what was there to be seen whether or not she was in the crosswalk. Plaintiff denied summary judgment dismissing affirmative defense of comparative fault where witnesses and certified police report raised issues of whether she was outside the crosswalk, relevant to comparative fault but not to defendant’s liability. Emergency doctrine defense dismissed without proof defendant-driver perceive or reacted to an emergency. Hockaday v Hessel    

Premises Liab   Notice   Recurring Condition  

Second Department
Property owner failed to meet burden of showing she lacked actual or constructive notice of the stones on walkway to her property that plaintiff slipped on where she testified she had a contractor fix the loose stone issue 2-years before plaintiff’s fall but did not know what repairs were made and discovered 2-loose stones 1-week before plaintiff’s fall which she claimed she removed and submitted plaintiff’s testimony showing the stones on the walkway had been an ongoing problem for years, she complained of them to defendant, and the stones defendant claimed to have removed were not missing on the day of her accident leaving questions on actual and constructive notice and whether it was a recurring condition defendant failed to adequately remedy. Piltie v Ofori    

Labor Law §240   Labor Law §241   MVA   Gravity Risk   Industrial Code   Indemnity   NYC  

First Department
Plaintiff’s Labor Law §240(1) claim dismissed as injury was not caused by a gravity related risk where cable struck by truck snapped and whipped horizontally striking plaintiff. Plaintiff granted summary judgment against NYC and Hunts Point Cooperative on Labor Law §241(6) for violation of industrial code §23-1.29(a) where there was no flag person or barricade to protect the area where he was attaching the cable using a lift when the cable was struck by the truck. Plaintiff denied summary judgment on negligence per se claims against vehicle owner/driver for violation of VTL §§ 1142(a), 1172(a) as he was not a protected person under the statutes since the accident was not caused by the truck going through a stop sign but questions remained on his common law negligence claim.

NYC and Hunts Point denied summary judgment on indemnity claim against Verizon where there was no clear evidence of an indemnity agreement and denied dismissal of contribution and common-law indemnity claims of truck-defendants where questions remained of whether their liability was solely vicarious. Bucci v City of New York    

Labor Law §241   Labor Law §200   Industrial Code   Control  

First Department
Defendants granted summary judgment dismissing plaintiff’s Labor Law §241(6) claim for injuries when he tripped on a protruding metal pedestal based on industrial code §23-1.7(f)(vertical passageways) on proof no vertical passage was required and dismissing plaintiff Labor Law §200 and negligence claim on proof the metal pedestal was part of a sub-contractor’s ongoing work created by the subcontractor’s means and methods of work, not an inherent property defect, and defendants did not exercise control or supervision of the subcontractor’s work. Lindemann v VNO 100 W. 33rd St. LLC    

Labor Law §200   Agent   Create Condition   Last Inspection   Duty   Indemnity  

First Department
Plaintiff denied summary judgment on Labor Law §200 and negligence claims on his inconsistent testimony of whether he tripped on the defective plywood floor protection edge or a mat on top of floor. Plaintiff failed to show as a matter of law that any defect of the plywood edge was visible and existed long enough for the owner, GC, and construction manager to discover and remedy it but those defendants denied summary judgment without proof of the last time the area was inspected/cleaned or that the defect was latent since their daily visual inspections could have discovered it as it was clearly visible. Construction manager owed duty to plaintiff where it’s witness testified he hired the contractor, did regular walkthroughs of the side on the owner’s behalf, and was listed as the owner on subcontracts.

Subcontractor who installed flooring denied summary judgment without proof it did not create the condition or that it performed the work ‘relying upon the plans and specifications’ it was ‘contracted to follow’ where it did not identify the plans/specifications beyond verbal instructions of what tasks was to be performed and where or show the manner in which its employee did the work. Subcontractor was a statutory agent of the owner and GC for §200 and may be liable if it created the condition. Subcontractor denied dismissal of common-law and contractual indemnification claims of GC where questions remained of whether GC’s liability was vicarious only, plaintiff tripped on defect or mat, and indemnity agreement did not violate GOL § 5-322.1(1). Shawmut Woodworking & Supply, Inc. v Cord Contr. Co. Inc.    

Premises Liab   Assault   Out of Possession   Duty  

Second Department
Building owner granted summary judgment dismissing claim of infant who was shot by a stray bullet in tenants’ pizzeria on proof it was an out of possession landowner whose only contractual obligation was to replace damaged plate glass at tenant’s expense, which was not related to the injury producing condition. N.G. v DRF Mgt. Corp.    

MVA   Bicycle   Vicarious Liab   Respondeat Superior  

First Department
Driver of tractor-trailer that struck decedent as he drove his electric bicycle around a double parked vehicle failed to meet burden for summary judgment where he testified he did not know how close decedent’s bicycle was from the passenger side of his tractor-trailer before impact and he saw decedent 3-4 car lengths ahead of him but did not change the manner in which he drove as decedent passed the parked vehicle, leaving questions of whether he failed to yield the right-of-way under VTL §1146. Tractor-trailer owner denied summary judgment where they did not dispute ownership or driver’s permission to operate the tractor-trailer under VTL §388 or show he was acting outside the scope of his employment. Xuezhen Dong v Cruz-Marte    

MVA   Turning Vehicle   Preclusion   Uncertified Records   Admissibility   Hearsay   Comparative Fault   Serious Injury  

Second Department
Plaintiff granted summary judgment on his testimony that defendants’ vehicle struck the rear of his vehicle after he made a left-hand turn from the left turn lane when defendants’ vehicle made a sudden left-hand turn from the through travel lane, establishing defendants violated VTL §§ 1128(a), 1160(b), and 1163(a) and dismissing comparative fault affirmative defense. Defendants failed to raise an issue in opposition by an uncertified police report which was inadmissible hearsay as it was their only proof since they had been precluded from offering testimony for failure to appear for EBTs. Plaintiff failed to meet burden for dismissal of serious injury affirmative defense regardless of defendants’ opposition papers. Ali v Alam    

MVA   There to be Seen   Sole Cause   Speculation  

Second Department
Driver of vehicle in through lane struck by vehicle with plaintiff as a passenger as it made a right turn from a left turn only lane granted summary judgment on certified police report where driver of plaintiff’s vehicle admitted she did not see moving-defendant’s vehicle before changing lanes, establishing she violated VTL §1128(a) for unsafe lane change and that driver of vehicle plaintiff was in was sole proximate cause of the accident. Plaintiff failed to raise an issue in opposition by speculation that moving-defendants may have contributed to or taken actions to avoid the accident. Salama v Piccirillo    

Labor Law §240   Renew   Reasonable Excuse   Pedestrian  

First Department
Defendants’ motion to renew opposition to plaintiff’s summary judgment motion, which had been granted and affirmed on appeal, based on deposition of plaintiff’s foreman providently denied where defendants did not give a valid excuse for not deposing foreman prior to plaintiff’s motion and the parties discussed depositions but defendants made no attempt to depose the foreman when they would’ve learned the foreman was no longer employed by the third-party defendant and the appellate Court had previously found that plaintiff’s motion was not premature because defendants failed to attempt to depose the foreman [reported in Vol. 343]. In any event, the foreman’s testimony would not have changed the result where he was vague as to whether he inspected the room where the plaintiff fell from the ladder which could not be opened because it was blocked by boxes. Castillo v TRM Contr. 626, LLC    

Premises Liab   Stairs   Notice  

First Department
Property owners granted summary judgment on proof neither defendant during monthly or quarterly inspections nor plaintiff during her 3-years of traversing the steps 2-3 times a week, including earlier on the day of her accident, observed any damage or wear and tear, experienced any problems, or received any complaints regarding the stairs, establishing lack of constructive notice as the defect was latent and not discoverable by a reasonable inspection and plaintiff did not argue a reasonable inspection would have discovered the defect. Plaintiff’s vague testimony that she told a handyman the stairs sometime shook was insufficient to raise an issue in opposition. Manson-Frempong v Forbes    

Serious Injury   ROM   Degenerative   Preexisting  

First Department
Plaintiff raised issues of fact on serious injuries to her cervical spine and right shoulder on significant or permanent, consequential categories by her MRIs and findings of limited ROM by her treating doctors after the accident and continuing until recently and her doctors adequately “[ascribed] a different, yet equally plausible explanation for the conditions” from defendant’s evidence of degeneration by opinion the injuries were caused by the accident based on examination, lack of prior symptoms, and observations during surgery. Plaintiff could recover for non-serious injuries if the jury finds she sustained any serious injury but her doctors’ failure to explain why her hip injury was from the accident and not her preexisting condition required dismissal of that claim.

Defendant failed to show why postsurgical scars did not meet significant disfigurement category without expert’s opinion they “were well-healed or otherwise ‘unobjectionable’” or show she did not meet 90/180-day category without medical proof to dispute claim in BP and her testimony and doctor notes indicated she was disabled during that period raised issues of fact. De Diaz v Klausner    

Serious Injury   Experts   ROM   Degenerative  

First Department
Defendants failed to show plaintiff did not injure his spleen but met burden of showing it was not a serious injury under the permanent consequential category on plaintiff’s testimony he treated for the spleen laceration for only 2-months and it healed but significant nonpermanent limitation category remained viable. Plaintiff raised issues on serious injury for knee injury on his sworn treating orthopedist’s report showing limited ROM shortly after the accident and 2-years later, contradicting defendants’ doctors’ findings. Plaintiff’s testimony that he lost 6-months of work and treating physicians’ note clearing him for work nearly 6-months after the accident raised issue on 90/180-day category. Keri v Beye    

Premises Liab   Create Condition   Notice   Last Inspection  

First Department
Restaurant and building owner failed to meet burden for summary judgment dismissing plaintiff’s claim for fall on greasy substance on floor of walk-in freezer without proof they did not create or have actual or constructive notice of the condition, provide evidence of the last time the area was inspected/cleaned, or produce the witness who was present at the time of the accident and could testify to those details. Chalas v Grass Roots Kitchen, LLC    

(1 summaries)

MVA   SUM   Arbitration   Coverage  

Second Department
Carrier granted permanent stay of SUM arbitration where there was no dispute offending vehicle’s carrier paid full limits of its $25,000/$50,000 policy and respondents’ SUM coverage of $25,000/$50,000 did not trigger their SUM coverage. Matter of State Farm Mut. Auto. Ins. Co. v Diaz    

About Matt McMahon

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