January 19, 2021 | Vol. 245

MUST READS
(6 summaries)
NOTEWORTHY IF YOU MUST READ

Premises Liab   Building Security   Directed Verdict   Set Aside Verdict   Foreseeability   Causation   Duty   Pain/Suffering   Materially Deviates   Notice  

First Department

The First Department declined to prohibit plaintiffs from asking for large verdicts in summation (anchoring) requested by multiple defense amici.

Owners/managers of mall where 2 12-year-olds threw shopping cart over 4th floor railing, striking plaintiff on 1st floor, not entitled directed verdict where jury could conclude from evidence that youths previously threw objects from upper floors that the throwing of a shopping cart over the rail was foreseeable and a recurring condition creating a duty to take safety measures. Apportionment of 65%/35%/10% liability against owners/security firm/12-year-olds was supported by evidence that owners had notice of prior incidents, security company had limited responsibility and could not make changes recommended by security expert, and 12-year-olds’ action were not premeditated or intended to inflict serious injury.

Future pain/suffering award of $29mil, reduced to $14.5mil by lower court, materially deviated from reasonable compensation and new trial ordered unless plaintiff stipulates to reduce it to $10mil. Cases relied on by defendants not applicable where plaintiff suffered an extensive organic brain damage which is more than a TBI and she nearly died and had to be revived at scene.

Security company’s contractual indemnity for claims arising from performance of its services limited to its percentage of fault. Hedges v Planned Sec. Serv. Inc.

Comment: The following had been granted permission to file amicus curiae briefs: Business Council of New York State, Lawsuit Reform Alliance of New York, New York Insurance Association, Inc., Building Trades Employers Association, Associated General Contractors of New York State, NFIB Small Business Legal Center, Coalition for Litigation Justice, Inc., American Property Casualty Insurance Association, and National Association of Mutual Insurance Companies, Turner Construction Company, Skanska USA Building Inc., Tishman Construction Corporation, Gilbane Building Company, and the Associated General Contractors of New York State, NYTA, NYC, NYCHA, and the Defense Association of New York, Inc.


MVA   Set Aside Verdict   Pain/Suffering   Materially Deviates  

First Department

Jury award of $100,000/$500,000 past/future pain/suffering for 15-years of future pain/suffering set materially deviated from reasonable compensation and new trial ordered unless defendant stipulated to increase award to $1mil/$2mil past/future pain/suffering for 33.4-years according to life expectancy tables where there was no evidence to justify reduction of life expectancy. Plaintiff’s injuries included herniations at C3-C4, C6-C7, L2-L3 through L4-L5, a Hill-Sachs fracture and torn labrum in left shoulder, requiring lumbar laminectomy and fusion with internal fixation, fusion of 2-cervical discs, and left shoulder arthroscopic repair. Future medical expenses undisturbed as jury could discredit experts’ testimony of future surgeries especially in light of plaintiff’s testimony he was reluctant to have the surgeries. Abreu-DePena v Weber


Serious Injury  

First Department

Plaintiff failed to establish significant disfigurement for serious injury on 2.5″ slightly depressed, faint scar on plaintiff’s forehead that was well healed, not discolored, or raised. Length and permanency of scar is not dispositive as jury may or may not find scar objectionable. Galindo v Hodminson


Med Mal   Workers Comp Defense   Appealable Order  

First Department

Physician and hospital that provided medical service to plaintiff’s decedent on behalf of employer, at employer’s facility, under contract with employer, granted summary judgment under workers compensation exclusivity clause and fact physician was hospital employee of hospital does not change result as services were paid for by decedent’s employer. Appeal from judgment after appeal from summary judgment motion was dismissed was proper as entry of judgment terminated direct appeal from order on summary judgment motion and plaintiff did not delay in appealing judgment. Walsh v Pisano


MVA   Premises Liab   Discovery   Survelliance Video  

Second Department

Petition for pre-action disclosure of video surveillance from train station by person struck by train after falling from train platform granted under CPLR §3102(c) which allows pre-action disclosure by court order “to aid in bringing an action, to preserve information or to aid in arbitration” as surveillance video was sought to identify prospective defendants. Matter of Diaz v Metropolitan Tr. Auth.


Bicycle   Dangerous Condition   Duty   Court of Claims  

Second Department

NYS granted summary judgment on proof catch basin where plaintiff’s bicycle wheel got stuck in gap propelling him over handlebars was built in 1966, prior to the amendment to Highway law §46 in 1970 that placed duty on NYS to maintain drainage ditches and storm sewer facilities, which was to be applied prospectively, including reconstruction of such facilities, and that cleaning of the catch basin and connected pipes was not a reconstruction or rehabilitation that would trigger the state’s duty to maintain the catch basin. Cohen v State of New York

NOTEWORTHY
(31 summaries)
MUST READS IF YOU MUST READ

Vacate Default   Discovery   Motion to Dismiss   Reasonable Excuse   Meritorious Action  

Second Department

Plaintiffs’ claim of law office failure without details of alleged misconduct of an unidentified paralegal who was purportedly terminated insufficient to provide a reasonable excuse for failure to comply with conditional dismissal order based on repeated failures to comply with discovery orders or failure to oppose the motion to dismiss and did not require the court to look at whether there was a meritorious action. Bura v Westfair Corp.


Motion to Dismiss   Statute of Limitations   Amend Complaint  

First Department

General contractor’s motion to dismiss on statute of limitations granted where it was brought into action after statute of limitations and was not united in interest with engineering firm incorrectly originally named as GC by plaintiff on proof the 2-companies had separate employee rolls and EIN numbers even though they shared office space and possibly one principal, shared office space, and possibly a principal, and engineering firm had no connection to the project where plaintiff was injured. Plaintiff could not substitute GC for “John Doe” named defendant where complaint identified John Does as entities that ‘”manufactured, designed, marketed, sold, distributed, provided and/or supplied” electrical components ‘which would not give GC notice it was intended defendant. Seeler v AMA Consulting Engrs., P.C.


Construction Liab.   Set Aside Verdict   Dangerous Condition   Causation  

Second Department

Motion to set aside verdict as inconsistent denied where defendant failed to make motion before jury was discharged and motion to set aside verdict as against weight of the evidence denied where there was logical path for jury to find defendants negligently maintained stack of wood and bracing in roadway and that plaintiff who tripped on bracing when she ran to get her granddaughter who slipped her hand was negligent but not a proximate cause of the accident. Issues of negligence and causation were not so inextricably interwoven that jury’s finding of negligence but no causation for plaintiff was illogical. Cruz-Rivera v National Grid Energy Mgt., LLC


Vacate Default   Personal Juridiction   Service   Reasonable Excuse   Meritorious Defense   Hearsay   Renew   Raised For First Time  

First Department

MTAs conclusory denial of proper service failed to rebut presumption of proper service on its employee from process server’s affidavit or provide a reasonable excuse for employee’s failing to answer, and service at MTA garage was proper service on actual place of business even though driver reported to a different garage since MTA accepted service for its employee whom it would be responsible for under respondeat superior. Argument regarding follow-up mailing not considered where raised for first time on appeal. Although reasonable excuse was not necessary to vacate default under CPLR §317, the bus driver’s unsworn statement was inadmissible hearsay and could not be considered on question of meritorious defense. Defendants’ motion to renew properly denied without explanation of why new facts were not included with original motion. San Lim v MTA Bus Co.


Med Mal   Accepted Practice   Causation   Expert Aff   Public Health §2801-d  

First Department

Hospital and long-term facility met burden for summary judgment of medical malpractice claims by medical records and expert opinions that treatment of multiple conditions was within accepted standards and not a cause of decedent’s injuries and that decedent’s falls were not from any negligence of long-term facility. Plaintiff’s expert, certified in nuclear medicine, failed to raise an issue in opposition where he did not claim to have knowledge necessary to render an opinion of the issues and this was not remedied by the affidavit of a RN. Claims based on PHL §2801-d, including decedent’s falls, survive as not based on malpractice or negligence. Villani v Kings Harbor Multicare Ctr.


Med Mal   Battery   Amend BP   Statute of Limitations   Costs/Disbursements  

First Department

Defendants’ motion to strike plaintiff’s supplemental BP granted only to extent of striking claim for battery not included in the Complaint that is time-barred as additional injuries were either expansions of pleaded injuries or “anticipatable sequellae” and additional liability theories allowable under CPLR §3042(b) where Note of Issue not filed, and BP not previously amended. Plaintiff not required to post security under CPLR §§8501(a) and 8503 where she had a Manhattan residence in addition to her NJ home, owned and operated a NY business and defendants were serving her at NY address from beginning of case. Napolitano v Gustavson


MVA   Reckless  

Second Department

Village and its employee granted summary judgment where employee struck plaintiff’s back while operating a snowplow in reverse at 5-7 mph with its lights and beeping alerts engaged, establishing driver was not reckless as required for liability of drivers engaged in highway work under VTL §1103(b). Kaffash v Village of Great Neck Estates


MVA   Reckless  

Second Department

Snowplow driver employed by NYSDOT granted summary judgment on proof he was driving within speed limit checking for patches of snow/ice near the end of his shift, stepped on the brakes immediately upon seeing the car plaintiff was in skid to the left, and tried to steer to the right to avoid hitting the car establishing that he did not act recklessly under VTL §1103(b). Veralli v O’Connor


Assault   Negligent Hiring   Negligent Supervision   Respondeat Superior   Notice  

First Department

Physician and medical Center granted summary judgment of respondeat superior claim for assault by receptionist at medical facility as assault was outside the scope of receptionist’s duties and of negligent hiring, training, supervision claims where there was no evidence of similar events in the 8-years of receptionist’s employ. Yelp reviews did not raise issues of fact where they did not identify the receptionist and did not allege incidences of violence. Troy v Fagelman


Med Mal   Accepted Practice   Causation   Expert Aff   Speculation   Conclusory  

Second Department

Defendants all met burden for summary judgment on opinions of no departure or causation. Plaintiff’s expert raised issues on accepted practice of initial hospital in but failed to raise issues on causation with conclusory and speculative opinions that failed to address defendant’s expert’s opinion plaintiff’s condition upon presentation to initial hospital was “too far removed” from plaintiff’s condition at second hospital 6-months later, opinion speculative.

Plaintiff’s expert raised issue on accepted practice of gastroenterologist at subsequent hospital but offered only conclusory and speculative opinion on causation. Plaintiff’s expert raised issues on accepted practice and causation of subsequent hospital, surgeon, and subsequent surgeon.

Motion to disqualify one of plaintiff’s experts under ‘advocate-witness rule’ denied as witness acted only as medical expert, not attorney. Zabary v North Shore Hosp. in Plainview


MVA   FOIL   NYC  

First Department

NYPD compelled to disclose traffic accident information in response to FOIL request where blanket denial on claim it would “tip the hand” of the Traffic Violation Bureau’s prosecuting attorney or prevent them from testing witness’ recollection did not meet burden of “particularized justification for withholding” records as the documents would be released to the motorist who is not required to keep them confidential and witness recollection can be tested through cross examination. Matter of Jewish Press, Inc. v New York City Police Dept.

Comment: While not an action by an injured person, it will apply to FOIL requests in accident cases.


Food Poisoning   Causation   Notice   Expert Aff   Raised For First Time   Spoliation  

Second Department

Supermarket failed to meet burden for summary judgment on causation as plaintiff’s testimony it submitted was equivocal presenting only questions of credibility and expert’s opinion that source of plaintiff’s listeria was “not clear” was insufficient to prove lack of causation. Notice argument raised for first time on appeal not considered and in any event would not have applied to all causes of action.

Plaintiff cannot be charged with spoliation as plaintiff is not responsible for culture samples taken, held, and destroyed by hospital as she never had control of them and could not be said to have disposed of them to frustrate discovery. Crosbie v KBC Food Corp.


Labor Law §240   Ladder  

Second Department

Plaintiff’s motion for summary judgment on Labor Law §240(1) against owner of property where he was instructed to dump debris from other property being worked on by same contractor denied and property owner where dumpster was located granted summary judgment of §240 claim as there was no nexus between property order and worker to trigger protections of §240. Plaintiff’s motion for summary judgment on §240 against contractor denied were questions of fact remained. Yong Qiao Zhao v A.T.C. Constr. Group Corp.


Premises Liab   Sole Cause   Question of Fact  

First Department

Defendant denied summary judgment where questions remained of what caused circuit breaker to explode injuring HVAC worker on defendants’ witnesses’ testimony plaintiff didn’t turn circuit breaker off before starting work, but plaintiff testified circuit breaker was off when it exploded. While there is generally no liability for injuries from ordinary and obvious risks of employment, questions remained on whether injury was caused by plaintiff’s failure to do his job right and whether the risks may not have been readily observable even to someone with plaintiff’s experience. Henry v Split Rock Rehabilitation & Health Care Ctr., LLC


Med Mal   Informed Consent   Accepted Practice   Causation   Expert Aff   Speculation   Conclusory  

Second Department

Dentist who performed surgical “mini flap” procedure to remove excess dental cement after placement of crown by codefendant made out prima facie entitlement to summary judgment on accepted practice, causation, and informed consent but plaintiff’s expert raised issues of fact in opposition by opinion mini flap was a departure where less invasive periodontal scaling was appropriate. Opinions were not conclusory or speculative where they relied on and cited to specific portions of the medical records and deposition testimony. Questions of fact remained on whether it was a departure not to inform plaintiff of the alternative treatment and whether a reasonable patient would have chosen the surgical procedure if fully informed. Many v Lossef


Labor Law §241   Labor Law §200   Industrial Code   Control   Create Condition   Notice   Workers Comp Defense   Grave Injury   Indemnity  

First Department

Defendants failed to meet burden for summary judgment on Labor Law §241(6) where they failed to show bathroom plaintiff was demolishing when portion of ceiling fell on his head was not an area without danger of a worker being struck from falling objects § 23-1.8(c) that would require use of a hard hat and continuing inspections for weakened structures §23-3.3(c) but owners granted summary judgment on Labor Law §200 and negligence claims on proof they neither created nor had notice of the conditions and did not control the work. Owners’ failed to meet burden of showing plaintiff did not have a grave injury by competent medical evidence for dismissal under workers compensation of contribution and indemnity claims. Santana v MMF 1212 Assoc L.L.C.


Premises Liab   Slip/Trip   Set Aside Verdict   Comparative Fault   Pain/Suffering   Materially Deviates  

Second Department

Judgment after non-jury trial finding defendant 100% at fault where plaintiff stepped in hole in grassy area between sidewalk and parking lot of apartment complex upheld. Appellate court may make any finding it deems proper in reviewing a nonjury trial and found that trial court properly considered plaintiff’s comparative fault when finding defendant 100% at fault. $295,000 pain/suffering, including $85,000 for future pain/suffering, warranted by facts. Montefusco v Main St. L.I., LLC


Assault   Negligent Supervision   Emotional Harm   Respondeat Superior   Notice  

First Department

Greek Orthodox church and archdiocese granted summary judgment of respondeat superior claim for sexual assault of infant parishioner by temporary parish priest’s infant-son as priest was not, as a matter of law, acting on behalf of employer in introducing son to children and social gathering even if he had knowledge of danger. Negligent supervision and training claims dismissed where there was no evidence defendants had notice of priest’s son’s potential for sexual violence and negligent infliction of emotional distress dismissed without allegations of extreme and outrageous conduct. A.M. v Holy Resurrection Greek Orthodox Church of Brookville


Motion to Dismiss   Personal Juridiction   Service   CPLR §306-b   Prejudice  

First Department

Defendant corporation failed to rebut process server’s affidavit of service on individual who represented he was managing agent authorized to accept service and defendant offered no affidavits showing person was not authorized to receive service or was not served. Even if service was improper, plaintiff would be entitled to extension of time to serve based on good faith efforts at service and moving for extension less than 1-month after defendant’s motion and defendant failed to show prejudice from delay. De La Cruz Beras v Alan Rena Realty Corp.


Causation  

Second Department

Tow truck driver and company granted summary judgment where plaintiff tripped on cable connecting tow truck to her daughter’s car as she returned from house with keys as requested by husband. Tow truck only furnished the occasion for the occurrence and was not as a matter of law a proximate cause of the accident. Glassman v All County Hook Up Towing, Inc.


Premises Liab   Slip/Trip   Sidewalk   Prior Written Notice   Big Apple Pothole   Unknown Cause   NYC  

First Department

NYC denied summary judgment where plaintiff tripped and fell in hole between depressed tree well and sidewalk where line markings on Big Apple map raised issues of prior written notice. Plaintiff’s inconsistencies on cause of fall not grounds for summary judgment where consistent testimony was that hole between sidewalk and tree well contributed to fall. Castro v 243 E. 138th St., LLC


Premises Liab   Slip/Trip   Prior Written Notice   Create Condition   Notice   Out of Possession  

Second Department

Municipal defendants granted summary judgment of claim plaintiff tripped on 1″raised pavement where it met handicap ramp from train station on proof of no prior written notice as required by local statute and they did not immediately create the condition during a renovation 3-years before the accident. LIRR granted summary judgment as an out of possession owner not obligated to maintain or repair area and MTA, sued as parent of LIRR, granted summary judgment as they are separate entities not responsible for each other’s torts.

Contractors granted summary judgment on proof they did not create condition during renovation and received no complaints that would give them notice of the condition in the 3-years before the accident. Green v Incorporated Vil. of Great Neck Plaza


Premises Liab   Slip/Trip   Notice   Last Inspection   Open/Obvious   Inherently Dangerous   Untimely   Prejudice  

First Department

Cemetery failed to meet burden for summary judgment where plaintiff’s foot went in hole with testimony of inspection procedures without identifying when it was last inspected, failed to establish hole was naturally occurring topographical condition, or that it was open/obvious and not inherently dangerous. Ability to see defect is not dispositive on open/obvious and not inherently dangerous argument. Plaintiff’s testimony that he saw hole 1-week before accident would have raised issue on constructive notice.

Lower court providently accepted late opposition where defendants submitted reply and there was no prejudice to defendants. Chrin v Gate of Heaven Cemetery


Premises Liab   Slip/Trip   Open/Obvious   Inherently Dangerous   Optical Confusion   Feigned Issue  

First Department

Defendants granted summary judgment on proof plaintiff tripped when she stepped backwards onto wheel stop while loading a bag in her trunk and photographs taken at the time showed wheel stop darker than lighter parking lot floor establishing it was open/obvious and not inherently dangerous. Plaintiff’s affidavit claiming optical confusion raised only feigned issues where it contradicted her deposition testimony that she did not see or remember the color of the wheel stop and floor or the lighting conditions. Rossi v 88th Garage Corp.


Construction Liab.   Duty   Create Condition   3rd Party Contractor   Espinal  

Second Department

Contractor who lost bid to be GC of project where plaintiff tripped on defective sidewalk bridge granted summary judgment on proof it did not own the premises, construct the sidewalk bridge, or have any duty to maintain the bridge and there were no factual allegations in Complaint to raise issues on Espinal exceptions. Even if allegation that contractor “caused and created” dangerous condition could be deemed allegation of launching an instrumentality of harm, contractor’s affirmative proof it did not construct or maintain the sidewalk bridge shifted burden to plaintiff and plaintiff failed to raise an issue in opposition. Szulinska v Elrob Realty, LLC


Construction Liab.   Duty   3rd Party Contractor   Espinal  

Second Department

Plaintiff raised issue of fact on whether construction manager launched instrumentality of harm under Espinal by allowing excessive concrete to remain on parking lot floor after construction.

Guzman v Jamaica Hosp. Med. Ctr.


Labor Law §240   Falling Object   Question of Fact  

First Department

Plaintiff’s motion for summary judgment on Labor Law §240(1) denied where questions remained on whether fall of door that struck plaintiff was the goal of the demolition work being performed and whether it was an object that required securing. The Court does not give the details of the proofs. Abad v Brookfield Props. OLP Co. LLC


Premises Liab   Slip/Trip   Snow/Ice   Sole Cause  

First Department

Defendants granted summary judgment as plaintiff was sole cause of fall where he walked through snow pile next to sidewalk as a shortcut to get to his car. Anderson v Verizon New York, Inc.


Reargument   Causation   Burden of Proof  

Second Department

Plaintiff raised issue of fact on serious injury for spinal injuries in opposition to defendants’ showing of entitlement to summary judgment. Burden of proving causation or explaining gaps in treatment never shifted to plaintiff where defendants did not meet burden on causation issue. The Court does not give the details of the proofs. Foy v Pieters


Asbestos   Personal Juridiction   Service  

First Department

Service on foreign corporation authorized to do business in New York was complete when served on the Secretary of State under BCL § 306(b) and defendant’s Delaware certificate of incorporation to void when action commenced, did not change result as action was for tortious activities within NYS before corporation was voided. Germain v American Intl. Indus.


Question of Fact  

First Department

Ambulate company’s motion for summary judgment based on documentary evidence showing plaintiff’s scheduled ride was “canceled” denied where plaintiff was able to identify ambulette company and employee that did not properly secure her wheelchair causing her to fall when it came to a sudden stop and testimony of witness writing in ambulette at the same time who witnessed the events raising questions of fact. Questions of credibility were for jury. Patterson v NXK Corp.

IF YOU MUST READ
(2 summaries)
MUST READS NOTEWORTHY

Second Department

Building granted summary judgment on proof it maintained premises in a reasonably safe condition and neither created nor had notice of the condition that caused plaintiff to fall while descending stairs. Plaintiff failed to raise an issue in opposition. The court does not give the details of the proofs. Hernandez v BG Mgt. 2, LLC


Premises Liab   Slip/Trip   Unknown Cause   De Minimus   Open/Obvious   Inherently Dangerous   Causation   NYC  

Second Department

NYC failed to meet burden of showing plaintiff could not identify cause of her fall where her testimony, taken in light most favorable to the nonmoving party, identified the precise location and defect that caused her to fall. NYC also failed to show that condition was open/obvious and not inherently dangerous or trivial, and that defect was not a proximate cause of the accident. The Court does not give the details of the proofs. Stanger v City of New York

About Matt McMahon

Civil trials and appeals since 1984
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