January 23, 2024 | Vol. 401

(5 summaries)

Premises Liab   Strike Answer   Spoliation   Survelliance Video  

First Department
Lower court providently granted motion striking building owner’s Answer for spoliation where its super came to area where plaintiff tripped on a metal drain plate in its parking garage minutes after the fall, retrieved and watched the surveillance video, but failed to preserve it from being automatically erased 3-days later, replaced the drain plate and intentionally disposed of it 1-year later while the action was pending, and plaintiff sustained severe head trauma including loss of memory of the accident making the surveillance video ‘crucial’ and evincing defendant’s spoliation actions showed ‘some higher degree of culpability.’ Fata v Heskel    

Malpractice   Wrongful Death   Motion to Dismiss  

Second Department
NYCHHC’s motion to dismiss malpractice and wrongful death claims for failure to state a cause of action granted where plaintiff’s decedent was admitted to the hospital on 3/30/20, diagnosed with Covid, and died on 4/9/20 as plaintiffs’ 50H transcripts and Complaint established defendants were entitled to immunity under the Disaster Treatment Protection Act (former PHL §§ 3080-3082) which covered the period of decedent’s admission and death and there were no allegations of “willful or intentional criminal misconduct, gross negligence, reckless misconduct, or intentional infliction of harm” to raise an exception to their immunity. Martinez v NYC Health & Hosps. Corp.    

Malpractice   Motion to Dismiss   Estoppel   Spoliation  

Second Department
Law firm and associate’s motion to dismiss malpractice case on argument it was barred by “judicial estoppel” aka “estoppel against inconsistent positions,” which prohibits a party from taking a position contrary to a position it took in a prior proceeding, denied where plaintiff’s WCB position that he was injured while moving heavy boxes on a loading dock was not necessarily contrary to his position in the lawsuit against the dock owners that he was injured due to a defect on the loading dock.

Plaintiff’s motion for spoliation sanctions for defendants’ failure to preserve their case file providently denied without proof they had an obligation to preserve the file or that it was destroyed with a “culpable state of mind.” McGlynn v Burns & Harris, Esq.    

Motion to Dismiss   Workers Comp Defense  

Second Department
Motion to dismiss on documentary evidence and for failure to state a cause of action by fire departments where plaintiff was a volunteer firefighter when he fell off the back of a fire truck in preparation for a firefighting competition and volunteer firefighter-driver who was driving the truck granted on proof the WCB had found plaintiff was injured ‘in the line of duty’ and awarded him WC benefits under the Volunteer Firefighters’ Benefit Law which is the exclusive remedy for volunteer firefighters injured in the line of duty. Separate fire district granted summary judgment on documentary proof it did not own the property where plaintiff was injured. Knipper v Drill Team of Lindenhurst Fire Dept., Inc.    

Child Victims Act   Negligent Supervision   Motion to Dismiss   Personal Juridiction  

First Department
Connecticut school defendants’ pre-Answer motion to dismiss on personal jurisdiction denied as bringing choir students to NY to perform at Carnegie Hall was a voluntary purposeful activity within NY under CPLR §302(a)(1), which does not have to be a commercial activity and can be based on only 1-transaction, and allegation that choir teacher sexually assaulted plaintiff in a room off the main Carnegie Hall stage ‘arguably connected’ defendants’ failure to supervise their NY activity of authorizing the NY trip but was insufficient to establish they committed wrongdoing in NY under §302(a)(2). Plaintiff’s allegations comported with the minimum contacts requirements for due process. PC-16 Doe v Hill Regional Career High Sch.    

(20 summaries)

Premises Liab   Directed Verdict  

Court of Appeals
Trial court’s directed verdict finding defendant, joint board of conservation district covering creek, acquired ownership of the dams that caused the 14-year-old decedent to drown from ‘hydraulic boil’ from its agreement with a federal agency when the dams needed to be reconstructed, after the jury returned a verdict in favor of the joint board, set aside by the Court of Appeals which found the fact that the dams were permanently affixed to the creek bed alone was insufficient to find ownership ran with the land as found by the Appellate Division, and that neither party submitted sufficient evidence of the federal agency’s intent on ownership in its agreement to warrant a directed verdict. Case remanded. Suzanne P. v Joint Bd. of Directors of Erie-Wyoming County Soil Conservation Dist.    

Malpractice   Wrongful Death   Causation   Experts   Conclusory  

Second Department
Long-term care facility granted summary judgment dismissing claim that decedent choked to death after eating lunch where decedent’s death certificate listed the cause of death as cardio pulmonary arrest due to metastatic thyroid cancer, nurse manager and LPN testified decedent was making noises but no joking gestures before her death, and defendants’ expert opined decedent’s ability to make sounds was inconsistent with a diagnosis of choking. Plaintiff’s experts’ opinions failed to raise an issue in opposition without addressing the defense expert’s specific assertions and were otherwise conclusory and not supported by the record. Weston v Staten Is. Care Ctr., LLC    

Motion to Dismiss   Prior Written Notice   Create Condition   Experts   Admissibility   Notice of Claim   NYC  

First Department
NYC met burden on motion to dismiss for failure to state a cause of action by proof it did not receive prior notice of bollard holder plaintiff tripped on in street but plaintiffs raised an issue by proof NYC installed the holder next to the crosswalk and plaintiff’s expert’s opined it created an immediately dangerous tripping hazard when initially installed. Plaintiff’s expert’s inspection years after the incident admissible where photographs showed the condition remained unchanged.

Plaintiffs abandoned their cross-motion to amend the Notice of Claim which nonetheless adequately allowed NYC to ‘locate the place, fix the time and understand the nature of the accident.’ Casiano v City of New York    

Premises Liab   Wet Floor   Last Inspection   NYC  

First Department
NYC granted summary judgment dismissing plaintiff’s claim for slip and fall on wet floor of main office in school on custodial engineer’s testimony that logbook entry ‘ready to receive staff and students’ on the day of the accident meant the custodial staff followed its general cleaning procedure to inspect each floor and dry any wet spots with a mop before school was opened and continuously thereafter. Plaintiff failed to raise an issue of whether the condition was visible and existed long enough to be remedied where she did not initially see what she slipped on and her argument NYC affirmatively caused or created the condition by not placing mats on the floors was unpreserved and not a purely legal argument apparent on the face of the record. Louis v City of New York    

Malpractice   Accepted Practice   Causation   Experts   Conclusory  

Second Department
Defendants’ expert’s conclusory opinions that “that there were no acts or omissions by the Defendants that were the proximate cause of the injuries alleged” where plaintiff lost all feeling in her leg after a partial then full laminectomy failed to meet burden for summary judgment where their expert did not explain what caused plaintiff’s loss of feeling. Prunty v Mehta    

Malpractice   Accepted Practice   Causation   Experts   Conclusory  

Second Department
Defendants met burden for summary judgment dismissing mother’s action on their expert’s opinion that alleged malpractice did not contribute to her pubis diastasis symphysis (PSD) as 12-hour labor was within acceptable parameters, showed an atraumatic descent and dilation with delivery within a half-hour of full dilation, the infant’s weight would not have caused undue trauma, and PSD can occur spontaneously or from trauma, which did not occur during the delivery, and is not uncommon. Plaintiffs’ expert’s opinion that the midwife departed from accepted practice by failing to instruct the mother to relax between contractions and caused the PSD by prolonged hyperflexion of the mother’s legs during a McRobert’s maneuver failed to raise an issue without defining what constituted a “prolonged” period of hyperflexion and failure to point to portions of the record to support the opinion. Defendants’ expert explained in reply that the McRobert’s maneuver can be used for 2-hours.

Defendants met burden for summary judgment on infant’s action for hip dysplasia and neck torticollis by their expert’s opinion based on the infant’s examination at birth showing the hips were stable without deformity and with full ROM, that the infant had mild developmental hip dysplasia which does not appear until months after birth, and that neck torticollis results from the baby’s position in the womb, not the manner of delivery, can be discovered weeks to months after deliver and that the infant’s clavicles were intact without deformity on the birth examination. Plaintiffs’ expert failed to raise an issue on the conclusory opinion that neck torticollis is caused by forceful stretching of the infant’s neck during delivery and is proof of a traumatic cause of the injury where the record showed no evidence of force to the neck during delivery. Diaz v New York City Health & Hosps. Corp.    

Premises Liab   Elevator   Duty   Notice   Res Ipsa Loquitor   Indemnity   Premature Motion  

First Department
Elevator maintenance company failed to meet burden for summary judgment dismissing plaintiff’s claim for injuries when freight elevator gate fell on him where it provided insufficient evidence that it met its duty to use reasonable care to discover and correct the defective elevator sensor or that the mall owner, not the elevator maintenance company, had exclusive control of the elevator on plaintiff’s res ipsa loquitor claim where its contract was to provide comprehensive servicing and “exclusive control may be shared.”

Owner granted conditional summary judgment on contractual indemnity against elevator maintenance company to the extent owner was not negligent where indemnity agreement was triggered by actual or alleged negligence and the motion was, therefore, not premature. Merrick v Macerich Co.    

Malpractice   Negligent Supervision   Public Health §2801-d   Accepted Practice   Causation   Spoliation   Survelliance Video  

Second Department
Nursing home granted summary judgment dismissing malpractice and PHL §2801-d claims for injuries caused by decedent’s multiple falls after she was admitted to the facility with a history of falls and dementia on their experts’ opinions that all proper fall precautions were implemented and in place during decedent’s falls, additional precautions alleged by plaintiffs were not appropriate nor a cause of her falls, they exercised reasonable care to ensure decedent did not suffer harm, her injuries could not have been prevented by any degree of supervision, and, as to §2801-d, they exercised ‘all care reasonably necessary to prevent and limit the deprivation and injury’ to her and did not violate the federal or state regulations alleged in plaintiff’s BP. Plaintiff’s experts failed to raise issues in opposition with speculative, conclusory opinions that were unsupported by the record and did not address defendant’s experts’ specific opinions.

Plaintiffs denied spoliation sanctions for failure to preserve surveillance video of one of decedent’s fall as defendants were not on notice it might be needed for future litigation where no suit was started or specific claim made before they were automatically overwritten 2-weeks later. Van DeVeerdonk v North Westchester Restorative Therapy & Nursing Ctr.    

Malpractice   Spoliation   Discovery   Willful/Contumacious  

First Department
Plaintiff’s motion for spoliation sanctions against defendant-doctor improvidently granted where hospital, not doctor, was custodian of plaintiff’s medical records, hospital provided a full certified copy of the records and there was no proof the defendant-doctor willfully withheld or destroyed additional documents not included in the records provided by the hospital or that they were crucial to plaintiff’s case where plaintiff was in possession of the doctor’s response to the missing typed note by plaintiff recounting an office visit and the report of the missing bladder scan. Richardson v Garely    

MVA   Raised For First Time   Control   Building Code   Espinal   Create Condition   Experts  

First Department
Plaintiff’s motion for summary judgment for injuries when rolling dumpster at construction site became wedged under trailer as it tried to leave the site, the dumpster struck a portable potty which then struck the security booth plaintiff was in, knocking it over, denied where the driver’s conflicting version of how the accident happened left questions of fact. Plaintiff’s claim driver violated VTL §1162 by moving the tractor-trailer when unsafe not preserved as raised first time on appeal and it was a factual, not a purely legal issue.

GC granted summary judgment on proof it had only general supervisory control and did not control the driver or steel installation subcontractor’s flagmen. GC employee telling driver to move because other vehicles were waiting to make deliveries did not raise an issue in opposition. Site safety manager granted summary judgment on it expert’s opinions that the security booth position did not violate NYC building codes or other applicable industry codes or standards and delivery defendants’ expert’s opinion that the accident was not caused by any unsafe property condition. Plaintiff failed to raise an issue in opposition by his testimony that he complained about the position of the booth without evidence disputing defendants’ experts’ opinions. Steel subcontractor granted summary judgment on proof it did not launch a force or instrument of harm while unloading the truck under Espinal, did not move the rolling dumpster, and telling the driver when it was safe to move his vehicle and enter traffic did not create or exacerbate a dangerous condition. Failing to warn that the trailer may have been too close to the dumpster was not launching an instrument of harm, and there was no proof plaintiff, rather than the driver, relied on the flaggers. Woods v Harris-Camden Terminal Equip. Inc.    

Labor Law §240   Labor Law §241   Ladder   Industrial Code   Causation  

Second Department
Worker who fell from A-frame ladder while installing a sign above a commercial storefront after modifying the metal frame granted summary judgment on Labor Law §240(1) on proof the ladder was defective and a proximate cause of his injuries incurred while altering a structure. Defendants denied summary judgment dismissing Labor Law §241(6) claim without proof they did not violate industrial code §§ 23-1.16(b) and 23-1.21(b)(3)(iv) and (e)(3) or that such violations were not a proximate cause of plaintiff’s injuries. Ochoa v JEM Real Estate Co., LLC    

Labor Law §240   Labor Law §241   Labor Law §200   Gravity Risk   Amend BP   Industrial Code   Prejudice   Control   Notice   Create Condition  

First Department
All parties denied summary judgment on Labor Law §240(1) where 18” drop from rebar mat to plywood form was a sufficient elevation differential but question remained of whether covering rebar mat with planks was ‘impractical and contrary’ to plaintiff’s work of pouring concrete. Defendants denied summary judgment for plaintiff’s failure to allege specific industrial code violations where plaintiff could, and was granted leave to amend the BP to include industrial code §23-1.22(c)(1)(platform covers) and question remained of whether platform was for pedestrian traffic. Plaintiff denied leave to amend BP for other code provisions as patently devoid of merit where insufficiently specific or not applicable.

Owner granted summary judgment dismissing Labor Law §200 and negligence claims on evidence it had no employees at the site to control plaintiff’s work, create or receive notice of a dangerous condition, conduct inspections that would uncover a dangerous condition, and neither §200 nor common-law negligence impose vicarious liability on owners or GCs. Construction manager granted summary dismissing §200 and negligence claims without evidence it created or had actual or constructive notice of a dangerous condition. Marte v Tishman Constr. Corp.    

Premises Liab   Sidewalk   Motion to Dismiss   § 7-210   Premature Motion  

First Department
Abutting landowner’s pre-Answer motion to dismiss on documentary evidence denied where plaintiff adequately stated a cause of action on allegations the accident happened at its property line and that it had actual or constructive notice of the condition for a sufficient time to repair it. Manager’s affidavit that he did not personally receive any complaints regarding the sidewalk was not documentary evidence as it did not conclusively establish a defense where he did not mention or submit records of complaints or sidewalk repairs and the lease that was submitted established it had a nondelegable duty to maintain the sidewalk under administrative code §7-210. Since further discovery was necessary, motion to dismiss was premature. Wright v City of New York    

Premises Liab   3rd Party Contractor   Espinal   Comparative Fault   Raised For First Time  

First Department
Building management company failed to meet burden for summary judgment dismissing claim of office worker who fell on a chair when she got up to adjust lighting sensor that turned lights off in the building where questions remained of whether it owed plaintiff a duty under the detrimental reliance Espinal exception, plaintiff’s pleadings adequately apprised defendant she was invoking the total displacement exception, and defendant raised the exception in its papers precluding any claim of surprise or prejudice. Failing to have repaired the lighting motion sensors could not meet the launch an instrumentality of harm Espinal exception.

Defendant’s argument plaintiff could not use detrimental reliance exception without proof she knew of the contract dismissed where raised for the first time on appeal and plaintiff’s testimony raised issue of fact on her knowledge of the least. Defendant’s request to search the record and grant summary judgment on comparative fault not considered where raised for the first time on appeal. Long v Cushman & Wakefield, Inc.    

Construction Liab.   Pothole Law   NYC  

First Department
Con Ed granted summary judgment on record searcher’s testimony that they repaired excavations on the street where plaintiff fell while exiting a vehicle 7-years before her fall, they were not required to maintain the roadway for 7-years after the repair, and Ed, corrective action reports for cave-ins at the location within 2-years of plaintiff’s fall were directed to NYC DEP, not Con Ed. NYC denied summary judgment on its concession on appeal that it did not meet its burden for summary judgment. Murray v Consolidated Edison of N.Y., Inc.    

Labor Law §200   Labor Law §241   Create Condition   Notice   Industrial Code   Comparative Fault   Indemnity  

First Department
Building owner and GC failed to meet burden for summary judgment dismissing electrician’s Labor Law §200 and negligence claims for fall on grate staircase wet with heavy rain from an open roof without proof they did not create or have actual or constructive notice of the condition and testimony the water would not accumulate on the stairs because of the metal grate system did not conclusively show the grate could not be slippery during heavy rain. Defendants and plaintiff denied summary judgment on Labor Law §241(6) based on industrial code §23-1.7(d)(passageways) where questions remained of whether another staircase was available to plaintiff. Plaintiff granted dismissal of comparative fault defense on proof she was holding onto the handrail as she walked up the steps.

Electrical subcontractor failed to show owner was not intended indemnitee under the broad language of its indemnity agreement but owner denied summary judgment on contractual indemnity without clearly establishing it was an intended indemnitee under the agreement and circumstances. GC denied summary judgment on its contractual indemnity claim where questions remained on its own negligence. Bradley v NYU Langone Hosps.    

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

First Department
Defendants granted summary judgment dismissing Labor Law §§240(1), 241(6) claims of stagehand injured when affixing decorative banners to a structure as her work was not entitled to the protections of those sections and her Labor Law §200 and common one negligence claims dismissed against studios which did not control the means and methods of her work. Andino v Wizards Studios N. Inc.    

MVA   Rear End   Question of Fact  

Second Department
Affidavit of plaintiff-passenger in vehicle that rear-ended moving-defendant’s vehicle that moving-defendant’s vehicle cut in front of the vehicle plaintiff was in and stopped suddenly raised an issue in opposition to that defendant’s affidavit that he was stopped in traffic for 1-minute when rear-ended by the vehicle plaintiff was in. “‘[N]ot every rear-end collision is the exclusive fault of the rearmost driver. The frontmost driver also has the duty not to stop suddenly or slow down without proper signaling so as to avoid a collision.'” Gomez v Pechman    

MVA   Bus   Bicycle   There to be Seen   Comparative Fault  

First Department
Plaintiff granted summary judgment on proof school bus struck her with its protruding mirror as she was riding her bicycle in an adjacent bicycle lane and the bus the driver testified he did not see the cyclist until after she fell, establishing the bus driver failed to see what was there to be seen. Plaintiff denied dismissal of comparative fault defense where issues remained of whether she veered into the bus driver’s lane. Verna v Little Ritchie Bus Serv. Inc.    

MVA   Comparative Fault   Admissibility  

Second Department
Plaintiff granted summary judgment on liability on proof defendants’ driver reversed into plaintiff’s vehicle while making a K U-turn at an intersection and plaintiff did not need to show freedom from comparative fault for summary judgment. Plaintiff denied dismissal of comparative fault defense where questions remained of whether he entered the intersection when it was unsafe to do so under VTL §1142 (a). Plaintiff’s affidavit and affidavit of translator properly considered where in admissible form. Shanyou Liu v Joerg    

(1 summaries)

Pothole Law   Prior Written Notice   Raised For First Time  

Second Department
County granted summary judgment on proof it did not receive prior written notice of pothole where plaintiff tripped. Issue of constructive notice not considered where raised for the first time on appeal. The Court does not give the details of the proofs. Onolfo v County of Nassau    

About Matt McMahon

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