| MUST READS (1 summaries) | |||
| NOTEWORTHY | IF YOU MUST READ | ||
 Lower court improperly denied petitioner’s second petition to serve late Notice of Claim served 1-day beyond the 1-year 90-day statute of limitations as untimely as their first petition tolled the statute of limitations under CPLR §204(a) because they were no longer solely in control of their right to commence the action and the toll continued until they received notice of dismissal of their first petition more than a month later, making the second petition served within the statute of limitations. Matter of Piedra v Arzu ✉ |
| NOTEWORTHY (16 summaries) | |||
| MUST READS | IF YOU MUST READ | ||
 Plaintiff’s motion for default judgment properly denied where plaintiff showed defendant was properly served with the Summons and Notice but not the Complaint she verified and relied on to show proof of the claim, which must be served on defendant for CPLR §3215(f). Gaviola v City of New York ✉ |
| Motion to vacate prior order vacating Note of Issue and dismissing action for failure to comply with conditional order of preclusion to provide proof medical confinement prevented plaintiff from complying with discovery orders to appear for EBT over 3-years providently granted where plaintiff failed to provide a reasonable excuse for noncompliance. The issue of meritorious action moot. Winters v City of New York ✉ |
| Defendant’s motion to dismiss Child Victims Act claim for sexual abuse by counselor in the 1990s denied at the early stage of litigation where the Complaint adequately stated the approximate time and place of the abuse, the position of the abuser, and the specific misconduct, providing sufficient notice of the claim. Plaintiff stated a cause of action for negligence and negligent hiring, retention, and supervision by allegations defendant should have known the abuser presented an unreasonable risk to children and failed to investigate. Failure to investigate and prosecute allegations were not pled as a separate cause of action but part of negligence. Dawson v New York City Hous. Auth. ✉ |
| School district’s motion to dismiss Child Victims Act claims for sexual abuse by third-grade teacher-aide between 1990-1992 on claim it did not have actual or constructive notice of the aide’s propensity for sexual abuse denied where plaintiff testified she took him to her car in front of staff members and drove him to her home where the abuse took place and the supervising third-grade teacher testified it is inappropriate violates school policy to drive students in their personal vehicles or take them to their homes. Kastel v Patchogue-Medford Union Free Sch. Dist. ✉ |
| Defendants’ motion to vacate Note of Issue denied as untimely where brought more than 20-days after it was filed and need for discovery from plaintiff’s primary doctors whom defendants third-partied in on the date the Note of Issue was filed was not unusual or unanticipated circumstances. Third-party defendants’ motion to sever third-party action providently granted as plaintiff would be prejudiced by an undue delay in the determination of the original claim and defendants could show no prejudice. Paulino v Staten Is. Univ. Hosp. ✉ |
| Owners of building where tenant’s employee slipped on debris on stairs granted summary judgment on proof they were out-of-possession landlords with no duty to maintain the rented space and plaintiff-expert’s claimed violation of a building code for failure to have a handrail on the stairs from a loft to the store floor did not apply to the stairs in question, which was a matter of law for the court and not a question of fact for a jury. Bawa v JJ Operating Inc. ✉ |
| Because experts for internist and NP defendants made prima facie showing of no departure for diagnosis and treatment for shortness of breath over 4-months but gave only conclusory opinions that no claimed departure or act or omission was a cause of her injuries and death from a DVT and PE, plaintiff only had to raise an issue on departure. Plaintiff’s expert, board certified in internal, pulmonary, and sleep medicine, raised issues on departure from accepted practice by opinion defendants failed to diagnose and treat the cause of decedent’s shortness of breath by not ordering proper DVT studies and providing proper treatment, which addressed defendants’ experts’ opinions and was not speculative or conclusory. ‘Whether a diagnostic delay affected a patient’s prognosis is typically an issue that should be presented to a jury.’ Chillious v Edouard ✉ |
| Plaintiff’s urology expert who owned medical spa where she received laser treatments was not qualified to opine on defendants’ dermatological conditions and treatments and the lower court providently refused to consider the expert’s supplemental affidavit and a new affidavit from an assistant, filed in reply to plaintiff’s cross-motion, as “[p]laintiff cannot defeat defendants’ prima facie showing of entitlement to summary judgment with submissions in reply. Urologist’s opinions were unsupported and contradicted by the record and did not address all of defendants’ expert’s opinion that plaintiff’s hyperpigmentation was caused by an inflammatory reaction to her condition and not caused laser treatments. Plaintiff’s argument that Expert opinion was unnecessary to raise an issue as to a non-medical staff member’s treatment rejected as the treatment was medical in nature and overseen by the doctor. Gentile v Juva Skin & Laser Ctr. Medispa ✉ |
| Window cleaner who fell while cleaning 11th floor windows showed entitlement to summary judgment on Labor Law §240(1) on proof he was working at an elevated height without proper protection but defendants raised issues of fact on the opinions of their experts, and coworker’s testimony, that plaintiff’s failure to position and use an available rope grab was the sole cause of his injuries. Testimony of plaintiff and coworker that they evaluated whether the rope broke was necessary before the accident and decided it was not would support a conclusion of only comparative negligence, which is not a §240 defense. Window washing contractor denied summary judgment on claim it was not a statutory owner agent where it was the only one who contracted with the owner and its subcontracting the work to plaintiff’s employer demonstrated it had the ability to control plaintiff’s work. Contractor not entitled to WC exclusivity defense on WC finding it was required to pay WC benefits because the subcontractor did not provide WC insurance. Barreto v Board of Mgrs. of 545 W. 110th St. Condominium ✉ |
| Worker who fell from ladder while removing a canvas storefront sign denied summary judgment on Labor Law §240(1) as the activity was routine maintenance not repair and questions of fact remained on plaintiff’s claim that removing the canvas sign was part of a larger project to repair the storefront to replace the roll down metal gate. Pyankaroo v Renali Realty Group 1, LLC ✉ |
| Worker’s testimony that he slipped on oil underneath sand on floor while cleaning up debris from demolition of sheet rock, as instructed by his foreman, granted summary judgment on Labor Law §241(6) as he slipped on a foreign substance that violated industrial code §23-1.7(d). Defendant failed to raise an issue in opposition. Bravo v 609 W 56th St. Prop., LLC ✉ |
| Defendant granted summary judgment on its sole member’s affidavit that it did not own any part of the premises at the time of plaintiff’s accident with an attached copy of a deed showing it purchased an apartment in the building 3-months after the accident. Plaintiff’s claim the uncertified deed was inadmissible rejected where raised for the first time on appeal and it was downloaded from the Automated City Register Information System (ACRIS), which the court may take judicial notice of, and Co-defendant admitted ownership in its Answer, an email, and response to a Notice to Admit, all of which were available on NYSCEF, which the court may also take judicial notice of. Plaintiff and codefendant failed to show that information necessary to oppose the motion was not available to them. Juman v Cape Church Assoc., LLC ✉ |
| Defendant-owner of vehicle that rear-ended plaintiff’s vehicle denied summary judgment on claim driver of her vehicle did not have consent where her affidavit of no consent did not have any documentary evidence, statements, or testimony from the driver or his employer to rebut the VTL §318 presumption of consent and was premature as they had not yet been deposed. Summary judgment in favor of defendant-owner in a separate case involving another vehicle in the same accident, joined for trial, was not law of the case as plaintiff was not a party to that action. Defendant also denied summary judgment against her driver’s employer where questions remained of whether driver was acting within the scope of his employment. Spoto v Matos ✉ |
| Defendants’ motion to dismiss plaintiff’s claims for MVA where plaintiff’s vehicle struck defendants’ vehicle, and for sanctions under CPLR §8003-a and 22 NYCRR 130-1.1, denied. Defendant-driver’s testimony he was stopped for 5-seconds when plaintiff’s vehicle crossed over the double yellow line and struck his vehicle met burden for summary judgment but plaintiff’s affidavit raised issues on how the accident occurred. There were no statements in the police report attributable to plaintiff that could be admissions. Wasilewska v Long Is. Compost Corp. ✉ |
| Abutting landowner granted summary judgment dismissing plaintiff’s claim for fall when she stepped from her car to sidewalk on pleadings, photographs marked by plaintiff, and testimony showing she fell when stepping into a tree well enclosure which is not part of the sidewalk an abutting landowner has a duty to maintain under administrative code §7-210, and not on an uneven concrete flag. Affidavit and testimony from one of defendant’s owners established the tree well was installed and maintained solely by NYC to show it did not create the condition or make special use of the tree well. Cabral v Triangle, LLC ✉ |
| Waterpark granted summary judgment dismissing injured-plaintiff’s claim for slip/fall off concrete peninsula into pool on ground she could not identify the cause of her fall as her expert’s opinions that the peninsula was too narrow for NYS regulations and claim biofilm formation on the peninsula caused her to lose her balance were insufficient to raise an issue of fact. Macdonald v Palace Entertainment, LLC ✉ |
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| MUST READS | NOTEWORTHY | ||