January 18, 2022 | Vol. 296

(5 summaries)

Train   Set Aside Verdict   Experts   Governmental Function   Qualified Immunity   Motion in Limine   Preclusion   Missing Witness Charge  

First Department
Verdict for intoxicated passenger who fell on tracks and was run over by train as it entered station with limited sight distance due to a curve set aside where NYCTA did not call several witnesses due to trial court’s overreaching limitations on their testimony and grant of missing witness charge for failing to call 2 of the witnesses. Plaintiff’s expert’s testimony speed should have been reduced to 15 mph before entering station given limited sight distance was admissible where based on NYCTA’s published charts of stopping distances. NYCTA’s intended witnesses would have testified they conducted an adequate study of speeds entering stations, including the safety considerations and effects of reduced speeds on performance of entire subway system. Based in limine order precluding these witnesses from testifying to any effect on subway system other than the specific subway station and line, and any testimony regarding other subway systems, NYCTA opted not to call these witnesses. First Department found these restrictions unreasonable as testimony regarding industrywide standards for establishing speeds entering stations considering the impact on entire subway system was relevant to question of qualified immunity. NYCTA was not entitled to governmental function immunity as transportation services were traditionally provided by nongovernmental entities and, therefore, are proprietary, not governmental functions. Pedraza v New York City Tr. Auth.    

Train   Collateral Estoppel   Note of Issue   Discovery   Waiver  

First Department
Lower court’s order granting summary judgment to plaintiff who was run over after falling onto tracks on collateral estoppel based on verdict in Pedraza v New York City Tr. Auth. (above), where both sides relied on same witnesses as in Pedraza and speed entering station was the same, reversed as First Department reversed verdict in Pedraza. As in in Pedraza, NYCTA was not entitled to full governmental function immunity as maintaining a transportation system is proprietary, not governmental function and issue of qualified immunity for planning decisions of speed when entering stations based on conflicting expert opinions is question for jury.

Plaintiff could not be said to have waived discovery of defendant’s speed policy by filing Note of Issue as directed by court where it specifically reserved right to that discovery. Martinez v New York City Tr. Auth.    

Set Aside Verdict   Pain/Suffering   Materially Deviates   Prejudice  

Second Department
Verdict of $2mil/$1mil past/future pain/suffering set aside as materially deviating from reasonable compensation for multiple hip fractures of 70-year-old requiring surgery that resulted in foot drop, extensive rehabilitation, subsequent hip replacement, residual leg length difference, pain necessitating medication, inability to walk beyond short distances, and use of crutches unless plaintiff agreed to reduce past/future pain/suffering to $1.3mil/$700,000. $132,000 award of future lost earnings set aside as contrary to weight of evidence where plaintiff testified he earned $33,000 a year prior to accident and intended to “maybe” work until he was 76-77, and attorney asked for $99,000 unless plaintiff agreed to reduce lost earnings to $99,000.

Court noted plaintiff’s counsel’s remarks during summation were Inappropriate and not to be condoned, even though issue was not preserved on appeal, but they were not so pervasive or prejudicial to deprive defendants of fair trial. Fortune v New York City Hous. Auth.    

Pothole Law   Prior Written Notice   Set Aside Verdict   Admissibility   Causation   Waiver   Prejudice   Juror Confusion   NYC  

Second Department
Verdict finding NYC had prior written notice and acknowledged pothole but its negligence was not cause of plaintiff’s fall was not contrary to weight of evidence as jury could accept NYC’s claim slippery/wet road, not pothole, caused plaintiff’s fall and issues of negligence and causation were not so inextricably intertwined as result in an inconsistent verdict. Trial court providently directed jury to reconsider verdict where they apportioned 100% fault to NYC after finding it was not cause of accident.

Trial court properly denied admission of photograph plaintiff identified as fairly/accurately depicting condition on date of accident without proof of when photograph was taken but improperly precluded testimony of photographer to establish date of photograph. Error was harmless as other photographs were admitted and jury found pothole existed.

Plaintiff’s argument verdict should be set aside because of defense counsel’s improper comments during summation was waived where objections were sustained but plaintiff did not request curative instructions or mistrial. Sattar v City of New York    

Premises Liab   Create Condition   Notice   Respondeat Superior   Espinal  

First Department
Rite Aid granted summary judgment where plaintiff tripped on glue trap on floor by greeting card display on proof it did not create or have notice of condition by testimony its employees did not handle glue traps, see them on floor before the accident, receive complaints of them, and testimony of third-party defendant which placed the glue traps that they clipped the traps together in a 3D square, not flat as found after the accident, and placed them in the greeting card drawer, never on the floor under the display which would have been physically impossible, their technician saw no problems with the traps when he last inspected the area 3-days before the accident, and he received no prior complaints. Third-party defendant granted summary judgment of third-party complaint.

The Court noted that Rite Aid could not rely on Espinal to make a claim against the contractor who placed the glue traps as plaintiff made no direct claim against the contractor and Rite Aid could be directly responsible to plaintiff for breach of its nondelegable duty to maintain the premises in a safe condition directly and under respondeat superior for the acts of the contractor. Lanza v B.H.N.V. Realty Corp.    

(18 summaries)

Lead Poisoning   Discovery   Preclusion   Vacate Default   Reasonable Excuse  

Second Department
Defendants’ motion for summary judgment based on preclusive effect of conditional order that required plaintiffs to provide treating-psychiatrist’s records prior to psychiatrist’s EBT where records did not include handwritten notes denied as psychiatrist’s counsel’s explanation handwritten notes were inadvertently not disclosed because they had not been transferred to their EMR system provided a reasonable excuse. Nothing in the records provided, including the inadvertently omitted notes, would justify reversal of First Department’s previous finding of a meritorious action. C.C. v Vargas    

Comment: The previous decision was reported in Vol. 72.

Serious Injury   Set Aside Verdict   Directed Verdict   Waiver   Prejudice   Experts   CPLR § 3101(d)  

Second Department
Plaintiff’s failure to ask for mistrial waived argument to set aside verdict based on improper comments by defense counsel in contravention of court’s order not to mention workers compensation and lower court’s sustaining objections and curative instructions cured any prejudice to plaintiff. Lower court providently denied motion to preclude defendant’s expert’s testimony based on inconsistent statements in his reports as that was matter for cross-examination and failure to include CPLR §3101(d) in record on appeal made argument testimony was outside scope of disclosure unreviewable.

Motion to set aside verdict as again weight of evidence and for judgment as a matter of law denied where there was a rational path for jury to conclude plaintiff did not sustain a serious injury and verdict could be reached on a fair interpretation of the evidence. Shehata v Koruthu    

Premises Liab   Assumption of Risk   Unknown Cause   Speculation   Create Condition   Notice   Last Inspection   Duty   Espinal  

First Department
Wollman Rink denied summary judgment where plaintiff’s skate got caught on uneven carpet covered with ice clumps as it could not be said condition was risk normally assumed by ice skaters and evidence that other skaters saw clumps of ice did not eliminate questions of whether Rink created or had notice of condition without proof of last time area was inspected. Plaintiff’s testimony, submitted by defendant, provided nonspeculative basis to raise issue on causation.

Carpet company did not owe duty to plaintiff where there was no contract between Wollman Rink and carpet company that could form basis for an Espinal exception and, in any event, it did not launch an instrumentality of harm. Samuelsen v Wollman Rink Operations LLC    

Train   Discovery   Notice   Admissibility  

First Department
Order requiring NYCTA to turn over 2-years of unredacted Notices of Claim for incidents of doors closing on passengers attempting to board trains on the specific subway car at the specific subway station was overly restrictive and modified to include all unredacted Notices of Claim for subway cars closing on passengers anywhere in NYC as information may be relevant even if ultimately inadmissible. Limitation of disclosure to 2-prior years instead of 10-years was provident exercise of discretion. Lau v New York City Tr. Auth.    

Labor Law §200   Set Aside Verdict   Directed Verdict   NYC  

Second Department
Motion to set aside verdict and for judgment as a matter of law by plaintiff where he was injured when plug in sewer pipe exploded as he pressure-tested pipe during project to install sewer pipes denied as jury’s verdict finding NYC did not have authority to supervise or control performance of plaintiff’s work for Labor Law §200 or negligence was based on fair interpretation of evidence. General supervisory authority, including right to stop work for safety violations or insist on compliance with safety regulations, insufficient to impose liability based on manner work performed. Abelleira v City of New York    

Labor Law §241   Labor Law §200   Premises Liab   Industrial Code   Create Condition   Notice  

Second Department
Contractor’s motion for summary judgment on Labor Law §241(6) denied as “passageway” under industrial code §23-1.7(d) can include stairway where it is sole means of access to worksite and defendant failed to contradict plaintiff’s testimony workers exclusively used stairs to access basement to get to their worksites, the elevator was only used for delivery of materials, and plaintiff was with his coworkers on stairs at time of the accident. Contractor granted summary judgment of Labor Law §200 on plaintiff’s testimony wet substance on stairs was caused by building maintenance worker spilling liquid from hose of large barrel moments before fall, showing defendant did not create or have actual/constructive notice of condition. Tolk v 11 W. 42 Realty Invs., L.L.C.    

Malpractice   Accepted Practice   Causation   Loss of Chance   Experts  

Second Department
Plaintiffs’ vascular expert’s opinion emergency room doctor departed from accepted practice by cancelling CT angiogram for patient who presented with leg pain, numbness, and no pulse in her foot before she was discharged from hospital because pulse in foot returned since vasospasm can cause arterial occlusion to wax and wane raised issue in opposition and expert was qualified to render opinion as it required knowledge of vascular medicine. Plaintiffs’ expert nonconclusory opinion that vascular doctor who saw plaintiff at hospital departed from accepted practice by discharging patent without determining cause of impaired circulation and refusing to see her the next day because of insurance, and that delay in diagnosis and treatment diminished her chance of a better outcome raised issues in opposition on departure and causation. Vichlenski v Schwartz    

Labor Law §241   Labor Law §200   Premises Liab   Industrial Code   Snow/Ice   Create Condition   Notice   Question of Fact  

First Department
Plaintiff denied summary judgment on Labor Law §241(6) predicated on industrial code §23-1.7(d), §200, and negligence where plaintiff slipped on snow/ice while walking from corner of roof where he was pouring concrete to exit on opposite corner as questions existed based on differing versions of where accident occurred, whether path was made in the snow/ice, and whether plaintiff fell within a path or an area where he did not need to be. Superintendent’s testimony was not incredible as a matter of law where not contradicted by every other piece of evidence and video could be interpreted to show or not show a pathway. Venezia v LTS 711 11th Ave.    

Premises Liab   Wet Floor   Create Condition   Notice   Last Inspection   Indemnity  

First Department
Church granted summary judgment for fall on floor wet from parishioners tracking in rain on employees’ testimony they followed their daily cleaning schedule on day of accident, an employee’s affidavit that she inspected area 20-minutes before plaintiff’s fall and saw no liquid, and plaintiff’s testimony she did not know how long puddle existed. Church employee’s affidavit properly considered even though not listed in response to witness demands as church administrator testified to what witness saw and provided name of witness at EBT. Church had no obligation to continuously mop water tracked in by parishioners or cover entire floor with mats. Mareneck v Bohemian Brethern Presbyt. Church    

Labor Law §200   Scaffold   Open/Obvious   Inherently Dangerous   Sole Cause   Experts   Conclusory   Indemnity   Admissibility  

First Department
Scaffolding contractor granted summary judgment dismissing Labor Law §200 and negligence claims on plaintiff’s testimony scaffold cross brace 14″ above ground was visible and he stepped over it 4-6 times before his foot got caught as he tried to climb over it, establishing condition was open/obvious, not inherently dangerous, and plaintiff’s decision to climb over brace rather than use safer open spaces in scaffold without braces that he was aware of was the sole cause of accident. Plaintiff’s expert failed to raise issue on conclusory opinion citing industry standards. Searching record, Court granted GC summary judgment dismissing §200 and negligence claims as condition was not inherently dangerous.

Scaffolding contractor granted summary judgment of all indemnity claims against it as it was not negligent, but it’s motion for summary judgment on contractual indemnity against plaintiff’s employer denied where indemnity agreement was not properly authenticated and there was no consideration since plaintiff’s employer contracted with GC, not scaffold contractor. Peranzo v WFP Tower D Co. L.P.    

Labor Law §240   Labor Law §200   Industrial Code  

Second Department
Worker who fell into empty swimming pool during construction project denied summary judgment on Labor Law §240(1) where his testimony that he tripped while walking on an adjacent level patio before falling into the swimming pool failed to establish fall was result of lack of safety devices protecting against an elevated risk. Plaintiff’s motion for summary judgment on Labor Law §241(6) denied as he did not show any of the industrial codes cited applied to the facts of the case. Sanchez v 74 Wooster Holding, LLC    

MVA   Rear End   Nonnegligent Explanation   Foreseeability  

First Department
Defendants, owner and driver of tractor-trailer that improperly entered Bronx River Parkway (prohibited to trucks due to low overpasses), denied summary judgment where plaintiffs’ vehicle’s rear ended truck as defendant-driver slowed and stopped to avoid hitting an overpass which jury could find set in motion a foreseeable chain of events that would lead to the accident. Eisen v Katcher    

MVA   Rear End   Nonnegligent Explanation   Feigned Issue  

First Department
Plaintiff granted summary judgment for rear end collision. Defendant-driver’s affidavit raised only a feigned issue where it significantly differed from his testimony which did not mention a sudden stop or erratic driving. Self-serving statement plaintiff made a sudden stop insufficient to raise nonnegligent explanation as driver is required to maintain safe distance under prevailing traffic conditions. Lambert v Bonilla    

Premises Liab   Snow/Ice   Storm in Progress   Experts   Notice   Untimely   Reasonable Excuse  

Second Department
Parking lot owner denied summary judgment where its expert report established a storm in progress but plaintiff’s testimony it submitted raised issue of whether ice she fell on was from a prior storm and whether defendant had constructive notice of the condition.

Lower court providently heard untimely motion where defendant showed good cause for delay. Taormina-Fucci v 100-02 Rockaway Blvd. 26, LLC    

Discovery   Appealable Order  

First Department
NYCTA’s argument to dismiss appeal as it provided additional discovery after lower court’s order requiring parties to consult on outstanding discovery and appear for a remote status conference rejected as Court cannot determine if discovery was adequately provided after order appealed from which must be determined by lower court. Klein v New York City Tr. Auth.    

Premises Liab   Trivial  

Second Department
GC hired to replace tiles in hotel lobby granted summary judgment on testimony and photographs showing height differential between existing and new tiles and exposed cement subflooring that injured-plaintiff claimed caused her to lose balance and fall was .25″ and characteristics of surrounding area did not increase risk. Plaintiff failed to raise an issue in opposition. Dingman v Linchris Hotel Corp.    

Assault   Respondeat Superior  

First Department
Church granted summary judgment of claim security guard threw white powder in plaintiff’s face necessitating tooth extraction where pro se plaintiff failed to allege guard was acting within scope of his duties for the church. Moroshkin v Trinity Church    

MVA   Motion to Dismiss   Statute of Limitations  

Second Department
Motion to dismiss by owner of truck that struck plaintiff-pedestrian granted where action was commenced more than 3-years after accident and plaintiff failed to raise an issue of whether statute of limitations was tolled or inapplicable. St. Rose v Thompson    

(2 summaries)

Premises Liab   Snow/Ice   Storm in Progress   Create Condition   Notice   Last Inspection   NYC  

Second Department
NYC denied summary judgment for fall outside Queens Criminal Court building where its evidence, including climatological data, failed to establish a storm in progress, it failed to show it did not create a dangerous condition by the melting of piled snow, or last time the area was inspected prior to plaintiff’s fall. The Court does not give the details of the proofs. McCullagh v City of New York    

MVA   Pedestrian   Question of Fact  

Second Department
Defendant failed to meet its burden of proof where it submitted testimony of conflicting statements of how accident involving defendant’s vehicle and plaintiff-pedestrian occurred. The Court does not give the details of the proofs. Wiessner v Phillips    

About Matt McMahon

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