January 24, 2017 | Vol. 38

MUST READS
(5 summaries)

MVA   Duty   Foreseeability   Emergency Doctrine  

First

Revisiting the connection between duty and foreseeability set out in Palsgraf v. L.I.R.R and Pulka v. Edelman, the court explained that foreseeability only defines the scope of the duty once a duty is found to exist. The defendants, taxi driver and owner, granted summary judgment where the driver was knocked unconscious during a robbery and the car rolled on to injure the plaintiff. Defendant’s failure to install a Plexiglas partition or maintain a working CB radio did not breach a duty to plaintiff as the statutes were for the protection of the drivers and not the public at large. Nor was there be a common law-duty to non-passengers even if injuries to non-passengers were foreseeable. On v BKO Express LLC


Late Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice   NYC  

Second Deptartment

The most important factor on a motion for leave to serve a late Notice of Claim is whether the municipality had actual knowledge of the essential facts, i.e. facts which give notice of the legal theories, within 90 days or a reasonable time thereafter. Information given to a police officer is generally not actual knowledge to the municipality. Police report showing that a police vehicle struck a vehicle which then struck the plaintiff’s vehicle in the rear, with no reported injuries, was not actual knowledge because it did not makea connection between petitioner’s injuries and the municipality’s negligence. Plaintiff also failed to show a reasonable excuse for the delay or that NYC would not be prejudiced by the 10-month delay. Matter of D


Wrongful Death   Warnings   Noseworthy  

Second Deptartment

Plaintiff’s decedent drowned at Jones Beach after being pulled away by a rip tide. The Noseworthy doctrine would not apply since the defendants’ knowledge of the events was no greater than that of the claimant. The Court of Claims correctly found no duty to warn against natural, transitory conditions of the ocean floor and that defendant made out prima facie entitlement to summary judgment by proof that it provided adequate general supervision of the park by staffing sufficient experienced, competent lifeguards who followed proper procedures. Seetaram v State of New York


MVA   Emergency Doctrine  

Second Deptartment

While a defendant who causes an accident due to a medical emergency will not be held liable if it is shown that the medical emergency was unforeseeable, defendant failed to submit competent medical proof that the defendant’s medical emergency was unforeseeable. Pitt v Mroz


Sepulcher   Materially Deviates  

Second Deptartment

Next of kin have an absolute right to the immediate possession of the decedent’s body for preservation and burial. The Court of Claim’s award of only $75,000 in damages did not materially deviate from reasonable compensation. Estate of Loughlin v State of New York

Comment: There is no need to show physical injury or zone of harm for purely psychological or emotional damages in a sepulcher case. Recoverable emotional harm can be based on “angst” alone without proof of physical, psychological, or psychiatric treatment.

NOTEWORTHY
(24 summaries)

IME/DME   Video  

Second Deptartment

The lower court properly found that an additional 4-6 hours of neuropsychological examination was sufficient, as opposed to the 7-11 hours requested, but should have denied plaintiff’s cross-motion to videotape the neuropsychological evaluation. Plaintiff failed to show “special and unusual circumstances” justifying the videotaping of the examination. Vargas v City of New York


Labor Law §240   Repair  

First

Question of fact existed regarding whether replacement of a component part of an air conditioner was maintenance, not covered under Labor Law §240(1), or a repair, which would be covered. Plaintiff testified that the component part malfunctioned due to normal wear and tear and that the replacement took only 20 minutes, but also testified that it was not a part which would require routine inspection, adjustment or replacement. Roth v Lenox Terrace Assoc.


Labor Law §200   Labor Law §240   Labor Law §241   Ladder   Homeowner Exception   Control   Create Condition   Notice  

Second Deptartment

Defendant, owner of 16-acre estate where plaintiff was performing renovation work, entitled to the Labor Law exception for 1 & 2 family homes on Labor Law §§ 240(1) and 241(6) claims. Defendant’s proof that it did not have authority to control or direct plaintiff’s work, did not provide the ladder, did not create the uneven, soft ground condition and had only general awareness of the ground conditions, which was insufficient to impute notice of an unsafe condition, entitled defendant to summary judgment on Labor Law §200 and common-law negligence claims. http://www.nycourts.gov/reporter/3dseries/2017/2017_00288.htm


Labor Law §240   Labor Law §241   Roof   Safety Devices  

First

Where use of a safety device defeats the purpose of the work there is no liability under Labor Law §§240(1) & 241(6). Defendant owner’s testimony showed that the roof which collapsed on plaintiff was not that part of the roof which was intended to be demolished at the time of the collapse and, therefore, plaintiff was entitled to summary judgment on his Labor Law §240(1) claim and defendant was not entitled to summary judgment on the Labor Law §241(6) claim. Ragubir v Gibraltar Mgt. Co., Inc.


Premises Liab   Slip/Trip   Sidewalk   § 7-210   NYC  

First

NYC entitled to summary judgment on proof that the defect was on the sidewalk, which would place liability on the adjoining landowner, and not part of the corner pedestrian ramp, which would place liability on NYC under §7-210. Adjoining landowner’s argument that the landing area on top of the ramp is part of the ramp under ADA definitions was rejected as inconsistent with the definitions under §7-210(a). Puello v Georges Units, LLC


Premises Liab   Slip/Trip   Sidewalk   § 7-210   Strike Note of Issue   Untimely   Create Condition   Notice  

First

Defendants’ motions to strike Note of Issue to allow for further discovery in order to move for summary judgment, or to accept the untimely motions for summary judgment, should have been granted as the outstanding key party depositions were good cause for untimeliness. Motions of all defendants except corporate owner of building should have been granted as §7-210 obligates only the owner to maintain the abutting sidewalk. Tenant, former owner, and individual shareholder of current owner were not covered under §7-210 and could not be found negligent absent proof that they affirmatively created the condition. The current owner, however, was properly denied summary judgment. Kellogg v All Sts. Hous. Dev. Fund Co., Inc.


Labor Law §200   Labor Law §241   Industrial Code   Create Condition   Notice  

Second Deptartment

Under Labor Law §200 and common-law negligence a contractor may be liable if the accident results from a dangerous condition at the worksite and the contractor had control over the worksite and either created the condition or had actual or constructive notice. Defendant failed to show that it did not control the work, create the condition, or have notice of the condition. Labor Law §241(6) claim was properly dismissed as the industrial code provision relied upon by the plaintiff §23-1.7(d) (tripping hazard) was not applicable where the plaintiff testified that he did not trip. Keener v Cinalta Constr. Corp.


Med Mal   Accepted Practice   Expert Aff   Speculation  

First

Defendant entitled to summary judgment on proof that it did not depart from accepted practice by placing plaintiff on bed rest in the Trendelenburg position rather than performing a cerclage (cervical stitch), allegedly resulting in a stillbirth. Plaintiff’s expert’s affidavit was speculative opining only that cerclage was a “feasible” alternative that “might” have produced a better result. Literature submitted by the expert also recognized cerclage as a potential alternative but indicated that further studies regarding the risks were required. Jackson v Montefiore Med. Center/The Jack D. Weiler Hosp. of the Albert Einstein Coll. of Medicine


Labor Law §241   Industrial Code  

First

Defendant’s motion for summary judgment on Labor Law §241(6) was properly denied where plaintiff and defendant testified that the storage room that plaintiff, a marble setter, was instructed to clear out by the project supervisor was part of the construction project and there existed a question as to whether the metal studs he tripped over as he was backing out of the room with a wheelbarrow violated industrial code §23-1.7(e)(2)(tripping hazards). Caminito v Douglaston Dev., LLC


Labor Law §240   Safety Devices   Sole Cause  

First

Plaintiff granted summary judgment based on his testimony and affidavit that a plank he was using to bridge the gap between a roof and retaining wall collapsed as he walked across it. Discrepancies pointed out by the defendant were irrelevant to the issue of the plank collapsing and the failure to provide plaintiff with proper protection. Defendant made no claim that plaintiff was the sole cause of the accident and there was no proof that the plaintiff was aware of the availability of safety devices or that he was expected to use them. DeFreitas v Penta Painting & Decorating Corp.


MVA   Emergency Doctrine  

Second Deptartment

One party crossing over a double yellow line into the oncoming traffic is the classic example of the emergency doctrine. Testimony of both parties as well as an affidavit of an eyewitness confirmed that plaintiff crossed over the double yellow line into the defendant’s oncoming lane entitling defendant to summary judgment. Graci v Kingsley


Premises Liab   Slip/Trip   Unknown Cause   Speculation  

Second Deptartment

If plaintiff cannot establish the cause of the accident by personal knowledge or circumstantial evidence, any claim as to the cause would be speculative. Defendant submitted plaintiff’s deposition and an eyewitness affidavit showing that plaintiff could not establish the cause of her fall without speculation. Hoovis v Grand City 99 Cents Store, Inc.


Premises Liab   Slip/Trip   Stairs   Expert Aff   Indemnity  

First

Defendant, building tenant, not entitled to summary judgment where plaintiff slipped on portion of exterior stair used exclusively by the tenant, based on plaintiff’s expert’s affidavit showing defects and building code violations, including handrails and riser/trade deviations, and plaintiff’s testimony identifying the location of the accident on a photograph. Defendant, building owner, was not entitled to summary judgment even though the lease did not provide the right or obligation to maintain non-public areas because proof that the owner had replaced one of the steps on the staircase raised an issue of whether it was in “actual practice” obligated to maintain the non-public staircase. Landowner was not entitled to summary judgment on indemnity at this point without a finding of liability or an insurance policy naming landowner as an additional insured. Rubinstein v 115 Spring St. Owners Corp.


MVA   Rear End   Nonnegligent Explanation   Emergency Doctrine   NYC  

Second Deptartment

Both plaintiff and defendant driver submitted affidavits showing that a car suddenly pulled out from a parking spot in front of the plaintiff and that plaintiff came to a complete stop before being rear ended by the defendant’s street sweeper. Emergency doctrine did not apply to defendant and defendant’s claimed nonnegligent explanation, that given the size and weight of the street sweeper it was unable to stop within the more than 1 car length maintained behind plaintiff’s car, was not sufficient. Comas-Bourne v City of New York


Bicycle   Circumstantial Evidence  

First

Defendant denied summary judgment where plaintiff testified that bicyclist who struck him pointed to messenger bag he was carrying with the word “Supreme” on it and said that he worked “there”, pointing to building where Supreme office was located. Defendant’s claim that none of their employees matched the description given by the plaintiff still left open the possibility that a jury could find that the bicyclist was employed by the defendant. The difference in description goes only to credibility. Cook v Supreme Sys., Inc.


MVA   Motion to Dismiss   Premature Motion   Workers Comp Defense   Judicial Notice  

Second Deptartment

Defendants’ motions to dismiss based on Worker’s Compensation defense and production company’s claim that it had no connection to the production of the movie where plaintiff, a background actress, was struck by an ATVC camera truck during the filming of the movie “The Adjustment Bureau,” should have been denied as premature where defendants failed to produce relevant written agreements necessary to decipher the roles of each of the parties. The appellate court took judicial notice of materials which were not part of the record on appeal from a California case where the connection of the parties to the movie was explored. Curry v Hundreds of Hats, Inc.


MVA   Comparative Fault   There to be Seen  

First

Even though plaintiff pedestrian concededly violated VTL §1112; 34 RCNY 4-04[b][2] by crossing the street, in the crosswalk, but without the right-of-way, defendant was denied summary judgment because taking the evidence in the light most favorable to plaintiff, a question of fact existed as to the relative positions of the parties and whether defendant could have seen plaintiff and avoided the accident. Sylvester v Velez


Serious Injury   ROM  

First

Defendant made out prima facie entitlement to summary judgment by affirmed orthopedist report showing normal ROM, negative test results, and diagnosis of resolved strains/sprains of the cervical and lumbar spine. Plaintiff raised triable issue by affirmed report of physician showing ongoing limited ROM and opinion that injuries were the result of the accident and permanent. Gap in treatment argument was not preserved for review and plaintiff adequately explained gap by insurance company’s refusal to pay for treatment. Encarnacion v Castillo


Premises Liab   Motion to Dismiss   Documentary Evidence  

Second Deptartment

Under CPLR 3211(a)(7) the proper question is whether the plaintiff has a cause of action, not whether the plaintiff has stated a cause of action. Defendants’ motions to dismiss were properly denied as plaintiff has a cause of action and the documentary evidence submitted by defendants does not conclusively establish a defense as a matter of law. The court does not give the details of the proofs. Anzora v 81 Saxon Ave. Corp.


MVA   Notary   Proximate Cause  

First

Affidavit of defendant’s expert, notarized in New Jersey without a certificate of conformity, was properly considered as the document states that it was under oath and the oath giver’s authority can be secured later for nunc pro tunc effect. Conflicting versions of how the accident occurred precluded summary judgment on negligence and proximate cause. The court does not give the details of the proofs. Gyamfi v Citywide Mobile Response Corp.


Emotional Harm   Privacy  

Second Deptartment

Correction officer sued the State for invasion of privacy, and intentional and negligent infliction of emotional harm resulting from her co-worker boyfriend’s phone being confiscated as contraband, being misplaced or stolen, and intimate photos disseminated to fellow staff members. The Court of Claims properly dismissed the invasion of privacy claim as New York does not recognize invasion of privacy claims as a common-law tort, nor can claims of intentional infliction of emotional distress be maintained against the State on public policy grounds. The claims of negligent infliction of emotional distress can only be maintained when it results directly from the alleged negligence. Here, the emotional trauma resulted from dissemination by unknown third parties and not directly by the State. Sawitsky v State of New York


Assault   Vicarious Liab   Discovery   Reasonable Excuse  

First

Defendant employer granted summary judgment on proof that its employee’s assault was not in furtherance of the employer’s interest or condoned, instigated, or authorized on its behalf. Lower court properly denied plaintiff’s motion for summary judgment for defendants’ failure to provide unrestricted medical authorizations by the date of a conditional order of preclusion where there was a reasonable excuse for the delay and a meritorious counterclaim. Singh v Alliance Bldg. Servs., LLC


MVA   Comparative Fault  

Second Deptartment

Plaintiff made out prima facie case for summary judgment on his affidavit that he was stopped for 20-30 seconds before being struck in the rear by the defendant which established both the defendant’s negligence and plaintiff’s lack of comparative fault. Defendants raised an issue of fact by their driver’s affidavit stating that the plaintiff came from behind and cut sharply in front of him causing the accident. Abaev v Reddy Raw, Inc.


MVA   Rear End   Serious Injury  

Second Deptartment

Plaintiff failed to make out a prima facie case for summary judgment on her and defendant’s depositions which had conflicting versions of the accident. Plaintiff testified that she was stopped at a stop sign waiting to exit the parking lot when struck in the rear by the defendant’s vehicle. Defendant testified that plaintiff started to make the right turn, suddenly stopped, and rolled back into defendant’s vehicle. Defendant failed to make out a prima facie case on serious injury by failing to address the 90/180-day category alleged in the BP regardless of the opposition papers. Weisberg v James

IF YOU MUST READ
(3 summaries)

Premises Liab   § 7-210  

Second Deptartment

Defendant granted summary judgment on proof that the sidewalk abutting its property was maintained in a reasonably safe condition and plaintiff failed to raise a triable issue of fact. The court does not give the details of the proofs. Williams v Castronovo


Serious Injury   BP  

Second Deptartment

Defendants failed to meet their burden on issue of serious injury by failing to properly address the plaintiff’s claims of 90/180-day category alleged in the BP regardless of plaintiff’s opposition. The court does not give the details of the proofs. Marte v Gregory


Indemnity   Comparative Fault  

First

Neither third-party plaintiff nor third-party defendant were entitled to summary judgment on indemnification claims as there existed factual issues as to whether plaintiff’s work fell within the scope of the painting subcontractor’s contract and whether the general contractor’s indemnification clause was enforceable to the extent that it provided for indemnification for the general contractor’s own negligence. Fidanza v Bravo Brio Rest. Group, Inc.

About Matt McMahon

Civil trials and appeals since 1984
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