January 17, 2023 | Vol. 348

(9 summaries)

Premises Liab   Discovery   IME/DME   Experts   Conclusory  

First Department
Lower court improvidently limited IME/DME to a comprehensive gynecological examination without a pelvic examination where plaintiff sustained injuries to her genital and pelvic area from fall in her apartment shower as the procedures were relevant to plaintiff’s injuries and plaintiff failed to show they would cause her harm. Plaintiff’s OB/GYN’s affidavit gave only a conclusory statement the intrusive examination would trigger her PTSD which was not probative without evidence from a psychiatrist or mental health professional, OB/GYN admitted the examinations were routine and did not cause harm, plaintiff routinely underwent the procedures with her own OB/GYN, and plaintiff never argued there were less intrusive procedures. The Court ordered the examination be conducted by a female doctor. There was 1-dissent. Pettinato v EQR-Rivertower, LLC    

Set Aside Verdict   Admissibility   Hearsay  

First Department
Trial court properly admitted 2002 MRI report without films on MRI facility employee’s affidavit that the films were routinely destroyed and testimony of reading radiologist that report was written as part of his custom and practice in reading films and he was available for cross examination at trial. IME/DME report properly admitted on testimony of examining physician available for cross examination. Carrier’s no-fault file admitted on business record exception but operative and pathology reports from 2002 surgery withing file should not have been admitted where not prepared by carrier who had no relation with the physicians.

Trial court improperly precluded eyewitnesses to testify on severity of impact which would have helped jury assess plaintiff’s injuries. Together, the errors were not harmless and case remanded for new damage trial. Issue of whether award of $140,000/$50,000 past/future pain/suffering and $110,000 future medical expenses materially deviated from reasonable compensation academic. Basden v Liberty Lines Tr., Inc.    

Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice   Loss of Services   Waiver  

First Department
Petition to file late Notice of Claim granted as to infant where medical records noting Erb’s palsy as a result of ‘Brachial plexus injury as birth trauma’ gave actual knowledge to NYCHHC which had the records since plaintiff’s birth and NYCHHC would not be prejudiced by the delay. Lack of reasonable excuse for 7-month delay after COVID extensions not fatal to petition. Leave to file late Notice of Claim for mother’s loss of services claim indistinguishable from infant’s claim and would be granted except that mother waived the claim at oral argument. A.M. v New York City Health & Hosps. Corp.    

Discovery   Preclusion   Good Faith Aff  

Second Department
Plaintiff’s motion to compel defendant to appear for EBT on a date certain or be precluded from offering evidence at trial denied where plaintiff’s good faith affirmation was too general in that it did not detail the “time, place, and nature of the consultation as well as the issues discussed.” Muchnik v Mendez Trucking, Inc.    

Battery   Collateral Estoppel  

Second Department
Plaintiff granted summary judgment where defendant’s guilty plea to third-degree rape was entitled to collateral estoppel as it was based on identical facts to plaintiff’s Complaint for sexual battery when she was a minor and precluded defendant from litigating issue of consent, the lack of which was an element of the third-degree rape charge. Aya R. v Elbaz    

MVA   Motion to Dismiss   Service   Reasonable Excuse  

Second Department
County’s motion to dismiss action for failure to comply with 50H notice granted as 50H hearing is a tool to expand the Notice of Claim and allow the municipality to investigate the claim, and plaintiffs’ motion to extend the time to appear for a 50H hearing denied. Affidavit of mailing raised presumption of receipt and plaintiffs’ failure to respond or offer a sufficient reason or exceptional circumstances for not responding entitled county to dismissal. Infant-representative’s inability to appear insufficient to deny motion where it was not conveyed to the county. A. R. v Urrutia    

Set Aside Verdict   Juror Confusion   Waiver   Pain/Suffering   Materially Deviates  

First Department
Lower court improvidently set aside verdict on juror confusion over verdict sheet where no party objected to verdict sheet until after jury was discharged and juror’ affidavits stating they thought they were supposed to deduct comparative fault, properly not considered by lower court, was the only evidence of juror confusion.

Award of $50,000/$200,000 past/future pain/suffering and a stipulated $37,000 for future surgery did not materially deviate from reasonable compensation where plaintiff was able to resume activities, and was not against the weight of the evidence. Suarez v Ades    

MVA   Highway Design   Governmental Function   Qualified Immunity   Warnings   There to be Seen   Intervening Cause   NYC  

First Department
Defendants’ motions for summary judgment denied for bus/motorcycle accident at intersection where NYC was installing a new pedestrian island and bike path on one side of First Avenue and MTA was installing a bus bubble on the other, the old traffic markings were removed, no new markings, signs, or warnings were installed, bus driver testified he got confused by lack of markings, stopped bus, and plaintiff struck bus while stopped but plaintiff testified bus jerked forward striking him. Questions of fact remained on conflicting stories of which driver struck the other and whether MTA, NYC, and contractor defendants created confusion that contributed to the accident.

NYC not entitled to governmental function immunity as it was engaged in proprietary function of maintaining roadway and not entitled to qualified immunity for highway design without proof it studied the risks involved.

Drivers’ negligence could not be intervening causes where ‘the intervening act is a natural and foreseeable consequence of a circumstance created by defendant’ and MTA, NYC, and contractors actions cannot be said to have merely furnished the occasion for the accident where ‘the risk of harm created by a defendant’s conduct corresponds to that which actually results….’ Floricic v City of New York    

Premises Liab   Workers Comp Defense  

Second Department
Rather than denying defendants’ motion for summary judgment without prejudice to renew where application of workers comp exclusivity clause had not been decided, the lower court should have referred the matter to the WCB which has exclusive jurisdiction for a decision. Lall v Harnick    

(21 summaries)

Premises Liab   Out of Possession   Control   Raised For First Time  

Second Department
Building owner denied summary judgment on claim it was an out of possession owner with no obligation to repair interior floor that caused plaintiff’s injuries where lease required owner to ‘make all structural, exterior walls, floor and roof repairs and replacements to Tenant’s Building’ as the requirement to repair all floors was not limited to structural repairs.

The Court considered plaintiff’s argument even though it was raised for the first time on appeal as it was a purely legal argument appearing on the face of the record and could not be avoided if raised below. Weidner v Basser-Kaufman 228, LLC    

Discovery   Admissibility  

First Department
Lower court providently granted motion to compel defendant to provide bus operators training manual as it may lead to relevant information on bus driver’s standard of care and whether he violated rules even though manual may not be admissible to set a standard higher than ordinary care as admissibility is not dispositive on discovery motions. Gerardo v Breton    

Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice   NYC  

Second Department
Initial 4-month delay in filing Notice of Claim reasonable given plaintiff’s incapacity but petitioner failed to provide a reasonable excuse for additional 9-month delay in seeking leave. Petition denied where police accident report, NYPD investigation documents, and FOIL requests to NYC and DOT did not have facts from which a potentially actionable wrong could be “readily inferred.” Matter of Salazar v City of New York    

Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice  

Second Department
Petition for leave to serve late Notice of Claim or deem late Notice of Claim timely served denied as FOIL request that did not mention plaintiff hitting a fallen tree with his bicycle on a park path did not give county actual knowledge of essential elements and plaintiff failed to offer a reasonable excuse for waiting 5-months to serve the Notice of Claim. Plaintiff showed county would not be prejudiced by delay, but that was not enough to grant petition. Matter of Rios v County of Nassau    

Products Liab   Motion to Dismiss   Amend Complaint   Admissibility   Hearsay   Experts   Unaffirmed Report  

First Department
Motion to dismiss claims of implied warranty by manufacturer and retailer of exercise bands granted where plaintiff alleged injury from worn bands in store he was directed to try but there were no factual allegations in the pleadings of a particular purpose or that defendants knew the particular purpose for which the bands were to be used on the implied warranty of fitness for a particular purpose claim or any factual allegations of how the bands were not fit for their ordinary purposes on the implied warranty of merchantability claim. Conclusory allegations were insufficient. Plaintiff’s expert unsworn report inadmissible. Fiuzzi v Paragon Sporting Goods Co. LLC    

Set Aside Verdict   Pain/Suffering   Materially Deviates   Degenerative  

Second Department
Judgment on verdict awarding $25,025.67, including $1,100 for future pain/suffering and $0 for future medical expenses, affirmed where based on conflicting evidence that jury could, on a fair interpretation of the evidence, infer that plaintiff’s injuries were mostly from prior accidents and degeneration with no future medical expenses. Pecoraro v Tribuzio    

Premises Liab   Unknown Cause   Circumstantial Evidence  

First Department
Store denied summary judgment even though plaintiff could not identify what caused her to fall down stairs as testimony and photographs provided sufficient circumstantial evidence from which it could be inferred that distracting decorations and lack of warnings caused her fall. Yuet Chun Lee v 124-126 Mott Corp.    

MVA   Set Aside Verdict   Directed Verdict   Serious Injury  

Second Department
Motion to set aside verdict and for judgment as a matter of law for 1-plaintiff denied as there was a rational path for jury to find plaintiff sustained a serious injury viewing the evidence in the light most favorable to the nonmoving party. The Court does not give the details of the proofs. Williams v Ncho    

Construction Liab.   Create Condition   Discovery  

Second Department
Plaintiff’s motion to compel defendant to provide 5-years of work orders for area where plaintiff tripped on street depression providently denied where defendant originally responded there were no work orders in the preceding 2-years, and in the 4-years as originally requested in response to plaintiff’s motion. Defendant granted summary judgment on proof it did no work in the area and could not have created the condition that caused plaintiff to fall. Collado v City of New York    

Construction Liab.   Create Condition  

First Department
Architectural contractor deemed a “prime contractor” without a duty to maintain overall safety for the project despite NYC workers referring to it as the GC and granted summary judgment on proof it did not create the condition, a cinder block in the middle of a mechanical room that plaintiff tripped on, where it was not on the job site for 4-months prior to the accident. Celentano v City of New York    

MVA   Motion to Dismiss   Respondeat Superior   Raised For First Time  

Second Department
Employer’s motion to dismiss on claim its employee was driving his own car not in the course of his employment denied as its affidavit was not documentary evidence and its other submissions did not utterly refute plaintiff’s allegations. Additional documents submitted for the first time in reply not considered. Davis v Henry    

Negligent Supervision   Question of Fact   NYC  

First Department
DOE failed to eliminate questions of whether paraprofessional supervising special needs child in fenced-off area of school playground was supervising only special needs child and those interacting with that child, or supervising all of the children in the fenced off area on the issue of adequate supervision. Paraprofessional’s version that accident happened when another student ran into plaintiff conflicted with plaintiff’s version that a student climbed on an apparatus they were not permitted to use and jumped off landing on him, leaving a question of fact. A.M. v New York City Dept. of Educ.    

Labor Law §240   Scaffold   Safety Devices   Experts   Indemnity  

First Department
Plaintiff entitled to summary judgment on Labor Law §240(1) on his testimony he fell through 48″ gap between scaffold plank and building wall, he was not provided with a safety harness, expert opinion that safety harnesses would not have prevented fall as there were no tie off points, and there were no railings on building side of scaffold.

Evidence of scaffold company’s negligence precluded summary judgment dismissing indemnity claim but proof it procured insurance resulted in dismissal of failure to procure insurance claim. Mena v 5 Beekman Prop. Owner LLC    

Malpractice   Accepted Practice   Indemnity   Experts  

Second Department
Doctor failed to meet burden for summary judgment dismissing third-party Complaint on contribution and indemnity where expert did not address plaintiffs’ claim that moving doctor failed to follow hospital guidelines to prevent venous thromboembolism and expert materially misstated record on causation issue. Hackett v Bybordi    

Premises Liab   Dangerous Condition   Causation   Speculation  

Second Department
Health club granted summary judgment where plaintiff claimed he contracted skin infections including MRSA in club’s sauna on proof MRSA can be caused by everyday interactions, the facility was routinely cleaned, and they received no complaints of anyone contracting MRSA or other infections. A jury could not find for plaintiff without speculation. Pecora v Fitness Intl., LLC    

MVA   There to be Seen  

Second Department
Defendant-driver failed to meet burden for summary judgment where he submitted plaintiff’s testimony that she was following 10-people crossing the road and was hit three quarters of the way across, and defendant’s testimony that he saw and yelled at 2-persons crossing the road in front of him then saw plaintiff for a split second before impact, leaving questions of whether he contributed to the accident by failing to see what was there to be seen. Alesi v Meli    

Sidewalk   Prior Written Notice   Notice  

Second Department
Yonkers and its subdivisions granted summary judgment on proof it did not receive required prior written notice of raised sidewalk from tree roots that plaintiff tripped on. Plaintiff failed to show any exception to the prior written notice requirement and claim that defendants had actual or constructive notice of the condition insufficient to satisfy the prior written notice requirement. Parker v City of Yonkers    

Premises Liab   Sidewalk   Create Condition   Experts  

First Department
Property owner met burden for summary judgment on proof plaintiff fell on neighboring property but plaintiff raised issues in opposition with expert’s opinion that moving-defendant created a concrete transition between its property and lower neighboring sidewalk. D’Antignac v City of New York    

Premises Liab   Snow/Ice   Out of Possession   Create Condition   Notice  

Second Department
Landlord and tenant granted summary judgment dismissing plaintiff’s claim for slip and fall on snow in parking lot on proof they neither created nor had actual or constructive notice of the condition. Landlord also entitled to summary judgment on proof it was an out of possession landlord with no duty to remove snow/ice from the parking lot. Shatku v EFG & P, LLC    

Settlement   Waiver   NYC  

First Department
Plaintiffs’ motion to vacate settlement denied where settlement agreement was in writing signed by the attorneys for the parties, plaintiffs’ attorney negotiated the settlement over 5-years of litigation and had apparent authority to enter into the agreement, and plaintiffs’ waived any objection where they first claimed their attorney did not have authority 2-years after the agreement was signed. Servider v City of New York    

Attorney Fees  

Second Department
Original firm that worked on case for more than 2-years providently awarded 60% of fee and firm which argued motion for summary judgment and obtained settlement of full policy awarded 40% of fee considering their respective contributions to the outcome. Boruch v Rommi Realty, LLC    

(1 summaries)

Serious Injury   Causation  

Second Department
Defendants met burden for summary judgment on serious injury by competent medical proof but plaintiff raised issues in opposition on permanent consequential and significant limitation categories. By conceding plaintiff’s injuries were caused by the accident, the burden on causation never shifted to plaintiff. The Court does not give the details of the proofs. Niciforo v Orellana    

About Matt McMahon

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

Comments are closed.