Premises Liab Slip/Trip Out of Possession Control Create Condition Notice Raised For First Time NYC
 NYC’s grant of license to operate fitness center at Park’s location was not a “leasehold interest” and NYC could not claim lack of duty as an out-of-possession owner. Plaintiff fell through open manhole where cover had been pushed aside by snow contractor hired by licensee. Under its license agreement, NYC retained control of the premises, right to inspect and insist on repairs, to hold its own events at location, and to assign its own personnel to the site. NYC’s alternative theory that it did not create the condition or have notice of it was not addressed in its original motion and not considered. Agbosasa v City of New York
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Dental Mal Mistrial Sanctions
 Although the Appellate Division would have found striking the offensive questioning by defense counsel and a curative charge a sufficient sanction, it was not an abuse of discretion for trial court to grant mistrial and sanctions against defense counsel. The Court reduced sanctions to the cost of plaintiff’s experts removing sanctions for plaintiff’s attorneys time. Banks-Dalrymple v Chang
Comment: Defense counsel’s inappropriate questions were to elicit an admission from the plaintiff that her first attorney did not “want to take the case,” suggesting it was a weak case. Parenthetically, the case was retried resulting in a defense verdict. |
Vacate Default CPLR 3404 Reasonable Excuse Meritorious Action Prejudice
On Plaintiff’s third motion to restore case to trial calendar after it had been stricken from calendar for failure to appear, made more than 6-years after first motion to restore was denied, plaintiff failed to meet burden of showing lack of intent to abandon case evident from lengthy hiatus, a reasonable excuse for the extraordinary delay, and that defendant was not prejudiced. Motion denied regardless of whether plaintiff showed a meritorious action as all 4-components must be met to restore pursuant to CPLR 3404. Clausell v Giambalvo
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MVA Premature Motion
In upholding denial of motion for summary judgment as premature where there were conflicting accounts of how accident occurred, little discovery, and no EBT’s had been held, the Second Department sent a strong message to the lower courts to reconsidering denying premature motions for summary judgment “without prejudice” since it only encourages multiple motions and multiple appeals. Corvino v Schineller
Comment: Both sides of the bar should be aware that this may result in a greater tendency to deny premature motions “with prejudice” at least in the Second Department. |
Premises Liab Lead Poisoning Products Liab Duty Notice Open/Obvious Punitive Damages
NYC administrative code §§27-2056.1 – 27-2056.18 and Local Law 1 did not require that landlord remediate lead paint on decorative columns which were movable/removable rather than fixed elements, fixtures, or improvements. Municipal Law §78 expanded landlord’s duty from keeping the “leased” premises in good repair to keeping the “entire dwelling” including common areas and land in good repair but only where it has notice of a dangerous condition. Owner and manager denied summary judgment for failure to show lack of notice of dangerous lead condition on the decorative columns. Interior designer granted summary judgment on products liability claim on proof that it was a casual seller of the decorative columns procured for the owner and did not know that they contained lead paint when purchased and was not required to warn owner and manager of the danger which was obvious. Punitive damage claims dismissed as the negligence was not willful or malicious. Hauerstock v Barclay St. Realty LLC
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Assault Note of Issue Intervening Cause
Driver involved in road rage incident resulting in his grandson-passenger hitting the pro se plaintiff granted summary judgment on negligence claim because he owed no duty to control his passenger even if he had the ability to do so and the passenger was his grandson. Grandfather made out prima facie entitlement for summary judgment on assault by showing that he did not commit an overt act in furtherance of the assault but plaintiff raised an issue as to whether the grandfather’s actions before the assault were an overt action in furtherance of the assault.
Defendants’ motion to strike Note of Issue and compel discovery granted where plaintiff filed a statement with Note of Issue saying that there was outstanding discovery rendering the Certificate of Readiness and Note of Issue a nullity. McKiernan v Vaccaro
Comment: See companion decision denying default judgment under NOTEWORTHY. |
Med Mal Vacate Jud Discovery Preclusion Willful/Contumacious
Motion to vacate judgment dismissing medical malpractice action based on failure to comply with conditional order of preclusion granted where subsequent stipulation purportedly resolved outstanding discovery issues and there was no outstanding order or motion pending for the lower court to dismiss the case and enter judgment despite fact that plaintiffs failure to provide proper discovery was willful. Brown v Montefiore Med. Ctr.
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Negligent Supervision Negligent Hiring
Claims of negligent supervision, negligent hiring, training, and retention where student went home without school’s knowledge and attempted suicide after school had been notified of her diagnosis of anxiety and depression did not require exhaustion of Individuals with Educational Disabilities Act (IDEA). Matter of P.S. v Pleasantville Union Free Sch. Dist.
Comment: IDEA requires free appropriate public education for students with disabilities. If parents disagree with educational decisions, they must pursue their claims through administrative procedures and the need to go through administrative procedures has long been held to not be limited to claims specifically made under the IDEA. Knowing whether a claim falls under IDEA is important because courts do not have subject matter jurisdiction of IDEA claims until after all administrative remedies have been exhausted which may result in denial of the claim altogether. |
Serious Injury Set Aside Verdict Preclusion Admissibility
Judgment on jury verdict finding plaintiff did not sustain a serious injury upheld where there was competing expert opinions and jury’s decision was based on a fair interpretation of the evidence. Jury was entitled to credit defendants neurologist’s and radiologist’s opinions that plaintiff’s cervical disc bulges, radiculopathy, and resultant fusion surgery were from degeneration and not trauma. Lower court should have allowed plaintiff’s treating physician to testify about findings in an exam days before trial that defendants were not aware regarding injuries previously disclosed but it was harmless error. Aquino v Merha
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Premises Liab Slip/Trip Snow/Ice Storm in Progress NYC
NYC not entitled to storm in progress defense where meteorological records showed only a trace amount totaling .04″ falling around time of the accident and there had been a significant snowfall in the days before the accident. Haraburda v City of New York
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Labor Law §240 Labor Law §241 Labor Law §200 Indemnity Agent Industrial Code Untimely Control
Plaintiff granted summary judgment on Labor Law §240(1) against owner and GC where he fell through floor opening to floor below during construction. Subcontractor responsible for covering all floor openings also liable as an agent of the contractor. Owner and subcontractor liable under Labor Law §241(6) on proof that industrial code provisions relied upon by plaintiff were violated and a proximate cause of injuries. Subcontractor’s cross-motion for summary judgment on plaintiff’s Labor Law §200 claim denied as untimely where plaintiff did not address §200 on his motion. Owner and GC’s motions for summary judgment on §200 denied where there was questions of fact on whether they provided a safe place to work and GC maintained control of means and methods of work.
GC granted conditional summary judgment on contractual indemnity against subcontractors subject to finding that subcontractor or persons/entities they hired were partially at fault. Sanchez v 404 Park Partners, LP
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Labor Law §240 Ladder Set Aside Verdict Directed Verdict
Judgment on defense verdict finding ladder provided to injured plaintiff adequately protected him for work being performed upheld and motion for judgment as a matter of law and to set aside verdict as against weight of the evidence denied where jury could have credited injured plaintiff’s deposition and trial testimony that he could not recall whether he was twisting the pipe he was inserting into another pipe at the time of his fall and plaintiffs’ expert testified that his opinion that ladder did not provide adequate protection would have changed if plaintiff was not twisting pipe at time he fell from the ladder. The court reiterated that not every fall from a ladder results in Labor Law §240(1) liability. Loretta v Split Dev. Corp.
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Labor Law §240 Ladder Safety Devices
Homeowner granted summary judgment on Labor Law §240(1) based on plaintiff’s deposition testimony showing that the A-frame ladder was not defective and that he fell because he lost balance. Pacheco v Recio
Comment: The decision does not discuss the 1-2- family home exception which would seem to have applied as well. |
Products Liab Causation Sole Cause Warnings
Swimming instructor at summer camp who dove into water while standing in shallow water he knew to be no more than 14″-20″ deep was the sole proximate cause of his injury that left him quadriplegic and motions for summary judgment by manufacturer, distributor, and company that delivered dock components to camp granted. Moscatiello v Wyde True Value Lbr. & Supply Corp.
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Premises Liab Slip/Trip Snow/Ice Duty
Dunkin’ Donuts store granted summary judgment on plaintiff’s decedent’s testimony that he slipped on black ice outside of Popeye’s Chicken entrance next to Dunkin’ Donuts store. Deposition transcripts suggesting that Dunkin’ Donuts and Popeyes employees sometimes helped each other with snow removal insufficient to raise an issue of fact where there was no proof that Dunkin’ Donuts or Popeyes employees engaged in snow removal on the day of the accident. Unsigned EBT transcripts properly considered since they were certified by stenographer and their accuracy was not challenged. Celestin v 40 Empire Blvd., Inc.
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Assumption of Risk
Ski resort denied summary judgment based on conflicting stories of how infant-plaintiff fell off ski lift. Individual defendants’ unopposed motion for summary judgment granted where there was no proof that they actively participated in any malfeasance. Laura V. v Catamount Dev. Corp.
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MVA Rear End Reargument Nonnegligent Explanation Reasonable Excuse
Motion to reargue opposition to plaintiff’s motion for summary judgment in rear end collision case made by defendants’ new attorney including for the first time affidavit from defendant driver claiming that plaintiff stopped short providently denied where defendant failed to explain why defendant driver’s affidavit was not included with original motion. Lewis v Sorto
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Default Judgment Compel Acceptance Reasonable Excuse Meritorious Defense Prejudice
Pro se plaintiff’s motion for default judgment denied and defendant’s cross-motion to compel acceptance of his Answer served approximately 1-month late granted on proof of law-office failure and meritorious defense, lack of prejudice from the short delay, and public policy in favor of deciding cases on merit. McKiernan v Vaccaro
Comment: See companion decision on Notice of Issue and furtherance of assault cause of action under MUST READS. |
Service CPLR §306-b Reasonable Excuse Untimely Statute of Limitations
Plaintiff’s motion to extend time to serve defendant, made in response to defendant’s motion to dismiss on personal jurisdiction and statute of limitations grounds more than 2-years after filing of the summons and complaint, denied for failing to provide a reasonable excuse for the delay and in the interests of justice and Complaint dismissed. Mussenden v Rapid Processing, LLC
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Pothole Law Create Condition Notice Court of Claims
Court of Claims’ finding that state did not create pothole that wheel of plaintiff’s bicycle went into or have actual or constructive notice of it supported by trial record and plaintiff failed to raise an issue of fact on constructive notice or that inspecting roadway from a vehicle was unreasonable. Rubio v State of New York
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