January 2, 2024 | Vol. 398

(4 summaries)

Malpractice   Default Judgment   Untimely   Reasonable Excuse  

Second Department
Defaulting defendants in malpractice action granted summary judgment dismissing action against them on proof plaintiff failed to commence proceedings to enter a default judgment within 1-year of their default under CPLR §3215(c) as dismissal is mandatory not discretionary and plaintiff failed to show ‘sufficient cause’ for the delay without proof of how continuing to litigate against answering defendants hindered her from proceeding against defaulting defendants. Plaintiff need only commence proceedings to enter a default judgment within 1-year, which she did not do in this case. Shields v Cohen    

MVA   Motion to Dismiss   General Release  

Second Department
Defendants’ motion to dismiss based on the general release signed by plaintiff denied where plaintiff’s allegations that a claims rep he had difficulty understanding due to language repeatedly called him and had him sign the release to cover medical expenses without explaining it would bar his lawsuit and he was unrepresented by an attorney left questions of whether it was signed under circumstances indicating unfairness and whether it was ‘fairly and knowingly’ made. Questions of mutual mistake regarding plaintiff’s injuries also remained. Plaintiff’s cross motion to dismiss defense of release denied where plaintiff did not eliminate all questions regarding the validity of the general release. Wei Qiang Huang v Llerena-Salazar    

Premises Liab   Sidewalk   Duty   NYC  

Second Department
NYCTA granted summary judgment on proof it did not perform any work in area between 2-subway grates where plaintiff fell on sidewalk defect and the defect was more than 12″ from the grates, establishing it did not have a duty to maintain the sidewalk under 34 RCNY 2-07(b) which, in any event, NYC agreed it, not NYCTA, owned the grates as part of the NYC subway system and leased them to NYCTA so that NYC would have the nondelegable duty to maintain the area under the RCNY. NYC failed to raise an issue of whether plaintiff’s injuries resulted from NYCTA’s operation, management, and control of the gratings and consequently had a duty to indemnify NYC.

Cross-motions by abutting landowner and NYCTA for sanctions against each other denied. Diaz v City of New York    

Child Victims Act   Motion to Dismiss   Negligent Hiring   Negligent Supervision   Statute of Limitations  

First Department
School’s motion to dismiss Child Victim Act case denied where Complaint adequately pled causes of action for negligent training, retention, supervision, and a nexus between the negligence and plaintiff’s injuries. Greater specificity was not required at the pre-Answer stage of litigation. Allegation of unpermitted sexual contact with a minor fit within Penal Law article 130 to trigger the CPLR §214-g statute of limitations revival. Ark 55 v Archdiocese of N.Y.    

(22 summaries)

Set Aside Verdict   Directed Verdict   Pain/Suffering   Materially Deviates   CPLR § 3101(d)   Preclusion   Jury Charge   Waiver  

Second Department
Trial court’s setting aside verdict unless plaintiff stipulated to reduce jury award of $6 mil for past pain/suffering to $500,000 materially deviated from reasonable compensation was modified by the Court to set aside the verdict unless plaintiff stipulated to reduce the award to $1 mil where decedent who suffered from Parkinson’s disease fractured his hip when he fell out of his wheelchair, required a hip replacement, initially could walk with a walker after his surgery but complained his legs were numb, could no longer walk after 6-7 months, developed dementia, and was wheelchair-bound for 3-years until his death.

Lower court providently denied defendants’ motion to set aside the verdict in the interest of justice as it did not err in precluding the radiologist from testifying to the contents of his report where defendants failed to comply with CPLR §3101(d) and defendants waived their argument regarding the nursing/malpractice charge. Romano v Clove Lakes Health Care & Rehabilitation Ctr., Inc.    

MVA   Serious Injury   Set Aside Verdict   Directed Verdict   Pain/Suffering   ROM   Materially Deviates  

Second Department
Defendants’ motion to set aside verdict finding plaintiff sustained a serious injury under permanent consequential and significant limitation categories, and for judgment as a matter of law, denied where there was a rational basis for the jury’s finding of serious injury which was based on a fair interpretation of the evidence. Award of $634,000/$111,000 for past/future pain/suffering materially deviated from reasonable compensation for past pain/suffering and remanded for a new trial unless plaintiff stipulated to reduce past pain/suffering to $300,000 where she sustained cervical spine injuries with limited ROM requiring treatment including neck injections that did not completely alleviate her symptoms that her doctor testified would be permanent with a poor prognosis for full recovery. Angeles v County of Suffolk    

Premises Liab   Notice of Claim   Untimely   Actual Knowledge   Reasonable Excuse   Prejudice   NYC  

Second Department
Petition to serve late Notice of Claim providently denied where petitioner’s service of a Notice of Claim 94-days after she fell on a greasy substance on the steps leading to the building where she worked was a nullity without leave of court and she failed to offer a reasonable excuse for waiting 3-months to make her motion for leave. NYC did not have actual knowledge of the essential facts where a NYC employee arrived at the scene after the accident, saw the greasy substance, and spoke with petitioner about completing her shift. Petitioner presented a plausible argument that NYC would not be prejudiced by the delay as it would be in the same position if the notice of claim was timely served since the condition was highly transitory and NYC failed to make a particularized evidentiary showing of prejudice but lack of prejudice alone was insufficient to grant the petition. Matter of Simpson v City of New York    

MVA   Pothole Law   Prior Written Notice   Notice of Claim   NYC  

Second Department
NYC granted summary judgment dismissing motorcyclist’s claim for fall when the wheel of his motorcycle went into a pothole on proof it did not have prior written notice of the condition and claim NYC created the pothole, asserted for the first time in the BP, did not raise an issue on the written notice creation exception where it was a new theory not included in the Notice of Claim. Jacobowitz v City of New York    

Asbestos   Motion to Dismiss   Personal Juridiction  

First Department
California company’s motion to dismiss for lack of personal jurisdiction granted where it manufactured fire doors that injured plaintiff in California, it never manufactured products outside of California and therefore did not commit a tortious act within NY under CPLR §302(a)(2), and the evidence did not show sufficient minimal contacts with New York to satisfy due process. Redell-Witte v Algoma Hardwoods, Inc.    

Vacate Default   Serious Injury   Reasonable Excuse   Conclusory  

Second Department
Plaintiff’s motion to vacate default in opposing defendants’ motion for summary judgment on serious injury denied where her attorney’s affirmation claiming law office failure was “vague, conclusory, and unsubstantiated” and he failed to explain the lengthy delay in bringing the motion to vacate. Kyung Aye Yoon v Haktung Lam    

Labor Law §240   Labor Law §241   Labor Law §200  

First Department
Columbia University granted summary judgment dismissing Labor Law §§240(1), 241(6), and 200 claims of worker injured while moving a large computer server rack that fell on his foot during the move as his activity was not covered by these Labor Law provisions. Argument that server was being moved in preparation to gut the room and was ‘necessary and incidental’ to demolition rejected where there was no evidence of ongoing construction at the time plaintiff’s injury. Minholz v Columbia Univ.    

Premises Liab   Workers Comp Defense  

Second Department
Defendant that managed factory where plaintiff slipped on floor granted summary judgment as plaintiff’s testimony that defendant “controlled and directed the manner and details of his work” established he was its “special employee” entitled to the workers compensation exclusivity clause. Rodriguez v 27-11 49th Ave. Realty, LLC    

Premises Liab   Wet Floor   Notice   Last Inspection  

Second Department
Hospital failed to establish it lacked constructive notice of the slippery substance in the corridor where plaintiff slipped in time to correct the condition by evidence the corridor was inspected more than 1-hour before plaintiff’s fall and plaintiff’s testimony submitted by defendant establish there were at least 3-nurses and a doctor in the hallway at the time of her fall. Plaintiff’s testimony that she did not see anything on the floor before her fall did not prove the condition was undiscoverable. Croake v Flushing Hosp. & Med. Ctr.    

Labor Law §241   Industrial Code   Agent  

First Department
Worker who tripped on hose as he pushed a dolly up a ramp granted summary judgment against construction company on Labor Law §241(6) based on industrial code §§ 23-1.7(e)(2)(scattered tools and materials) and 23-2.1(a)(1) on proof ramp was a ‘working area’ routinely used to access equipment/materials, was blocked by piles of construction material and the hose that caused plaintiff to trip, and injury was caused by contractor’s failure to properly store the equipment. Other construction company granted summary judgment on proof it was a separate company and not a construction manager, GC, or owner agent and was not involved in the project. Claim based on industrial code §23-1.5 dismissed as that section is not sufficiently specific for a §241 predicate.

It was clear from the record that plaintiff’s testimony that the ramp was 70′ wide was a typographical error even without relying on the stenographer’s un-notarized affidavit. Castaldo v F.J. Sciame Constr. Co. Inc.    

Assumption of Risk   Premises Liab   Open/Obvious  

Second Department
School district failed to meet burden of showing metal anchor affixed to the stage that was covered by curtains which the middle-school plaintiff tripped on when running to meet her musical cue for a play was not a concealed risk that would take the condition out of assumption of risk or that it was open/obvious under the circumstances on the premises liability claim. Plaintiffs denied summary judgment where they failed to show defendants breached their duty to maintain the premises in a reasonably safe condition as a matter of law. A.G. v Roosevelt Union Free Sch. Dist.    

Labor Law §240   Scaffold   Safety Devices   Sole Cause   Recalcitrant Worker   Indemnity   Control  

First Department
Plaintiffs granted summary judgment on Labor Law §240(1) on proof ladder-scaffold they were on while doing stucco work collapsed, causing them to fall 15′. Building owner failed to raise an issue on sole cause or recalcitrant worker for plaintiffs not wearing fall-arrest safety devices where there were no tie off points plaintiffs were aware of, no proof they refused to obey a direct and immediate instruction to use available safety devices, not stand on the edge of a bathtub, or to use ropes to stabilize the ladder-scaffold.

Owner granted summary judgment against plaintiff’s employer where agreement provided for indemnity to the fullest extent permitted by law and did not violate the GOL §5-322.1 prohibition against indemnity for the indemnitee’s own negligence, owner was not negligent, and it did not control plaintiffs’ work. Owner also granted summary judgment for employer’s failure to procure liability insurance. Lemache v Elk Manhasset LLC    

Premises Liab   Out of Possession   3rd Party Contractor   Espinal   Indemnity  

Second Department
Building owners granted summary judgment dismissing claim of tenant’s employee who was hit on the head by a light fixture that fell when electrical subcontractor’s employee lost his balance while working on the ceiling during a renovation based on their lease and testimony of the plaintiff, property manager, and GC establishing they were an out of possession landlord with no duty to maintain the premises by statute, contract, or course of conduct. GC denied summary judgment where it failed to show as a matter of law that is did not assume a duty under the Espinal exceptions and denied summary judgment on its contractual indemnity claim against the electrical subcontractor where questions remained of whether the subcontractor’s actions triggered the indemnity clause. Skjoldal v Pacific W. Constr. Corp.    

Labor Law §240   Gravity Risk   Feigned Issue  

First Department
Defendants raised question of fact on elevated height risk for Labor Law §240(1) claim where coworker’s testimony contradicted plaintiff’s statement that concrete hose they were pulling was lifted 3′-4′ above rebar they were standing on and plaintiff failed to show whether covering rebar with plywood was ‘impractical and contrary to the very work at hand.’ Plaintiff raised only feigned issue in reply affidavit by claim he was standing 30′-35′ from end of the hose which contradicted his testimony they were pouring concrete on the rebar he was standing on. Erazo v Rockaway Vil. Hous. Dev. Fund Corp.    

MVA   Pedestrian   Sole Cause   Comparative Fault   Admissibility   Uncertified Records   Discovery   Preclusion  

First Department
Plaintiff granted summary judgment on liability and dismissal of comparative fault defense on her testimony showing taxi was sole cause of striking her as she walked in crosswalk with the right-of-way even if she continued to walk after seeing the taxi approach but not yet enter the intersection as she was entitled to anticipate it would yield the right-of-way. Uncertified police report inadmissible on causation where officer did not witness the accident and defendant-driver was precluded from offering testimony to dispute plaintiff’s account because he failed to appear for EBT. Li v Karim    

MVA   Rear End   Bus   Nonnegligent Explanation   Causation   Noseworthy   Experts   Speculation   Conclusory  

Second Department
Defendants granted summary judgment dismissing claim of postal worker who drove into the back of defendants’ bus that had been stopped in a school bus stop on a shoulder area with one quarter of the bus sticking into the roadway and its 4-way flashers and parking brake on as placement of the bus provided only the occasion for the accident and plaintiffs failed to offer a nonnegligent explanation for rear ending the bus. The Noseworthy doctrine applied to give plaintiffs a “lighter burden of persuasion” where the plaintiff-driver could not recall the accident but they provided no evidence to infer the bus-driver was negligent in causing the accident and their expert-engineer’s report was conclusory and speculative. Hayes v County of Suffolk    

MVA   Turning Vehicle   Sole Cause   Feigned Issue  

Second Department
Defendant granted summary judgment dismissing motorcyclist’s claim for injuries when his motorcycle struck her vehicle on her testimony that she put on her turn signal half a block before making a left-hand turn, slowly made the turn, was more than three quarters of the way through her turn when the motorcycle struck her left rear quarter panel, and plaintiff’s testimony that he saw a white car ahead as he approached the intersection but did not remember how the accident occurred, establishing plaintiff was the sole cause of the accident. Williams v Foster    

MVA   Comparative Fault   There to be Seen   Sole Cause  

First Department
Owners and driver of box truck granted summary judgment on parties’ testimony and photographs showing plaintiff was sole cause of accident where she pulled out a parking space and struck the box truck’s rear passenger wheel well, establishing negligence per se for pulling out of a parking space when it was unsafe to do so under VTL §§ 1162, 1163. Her claim that she looked in the rearview mirror and turned her head before pulling out was irrelevant as there was no proof defendant-driver was speeding or otherwise at fault. Plaintiff’s attorney’s affidavit failed to raise an issue that defendant-driver was not keeping a proper lookout where the attorney had no personal knowledge and plaintiff’s testimony that defendant-driver failed to see what was there to be seen did not raise an issue where the proofs showed the box truck was passing her vehicle when she pulled out. Chavis v Zorrilla    

MVA   Bus  

Second Department
MTA Bus Co. granted summary judgment dismissing plaintiff’s claim for falling when the bus suddenly moved after she paid her fare on plaintiff’s and the bus-driver’s testimony establishing that the movement of the bus was not “unusual or violent” or of a “different class than the jerks and jolts commonly experienced in city bus travel. Plaintiff failed to raise an issue in opposition. Magloire v MTA Bus Co.    

Malpractice   Accepted Practice   Experts  

Second Department
Plaintiffs raised an issue in opposition to oral surgeon’s prima facie showing he did not depart from accepted practice by their expert’s opinion that the defendant departed from accepted practice by determining the 3-teeth needed to be extracted rather than treated. Toby v Meneshian    

MVA   Rear End   Nonnegligent Explanation   Comparative Fault   Premature Motion  

Second Department
Injured-plaintiff granted summary judgment on liability and dismissal of comparative fault defense on his affidavit and certified police report establishing his vehicle was stopped for a traffic condition when rear-ended by defendants’ vehicle and defendants failed to offer a nonnegligent explanation. Defendants’ claim motion was premature without depositions rejected where defendant-driver had personal knowledge of the facts. Orlando v Gonzalez    

Premises Liab   Snow/Ice   Last Inspection   Notice  

First Department
Defendants failed to meet burden for summary judgment dismissing plaintiff’s claim for slip and fall on ice on defendants’ driveway without proof of the last time the area was inspected/cleaned and whether it was there long enough for them to discover and remove the ice. Vulej v Meilman    

(1 summaries)

Premises Liab   Construction Liab.   3rd Party Contractor   Espinal   Create Condition   Speculation  

Second Department
Contractor granted summary judgment dismissing Complaint and cross-claims against it where plaintiff slipped on a rock on steps near courtyard that was being renovated by the contractor with a jackhammer on proof it did not affirmatively create the condition to launch an instrumentality of harm under Espinal and plaintiff failed to raise an issue in opposition by speculation that the rock came from the contractor’s possessive work. The Court does not give the details of the proofs. Abney v Meridian Props., LLC    

About Matt McMahon

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