January 24, 2023 | Vol. 349

(4 summaries)

Labor Law §240   Scaffold   Dangerous Condition  

Second Department
Building owner granted summary judgment dismissing Labor Law §240(1) claim of worker who tripped on rug-covered decorative metal fixture permanently attached to the building at the top of temporary stairs leading to an upper scaffold with no handrails, falling to a lower scaffold, as the dangerous condition was unrelated to ‘the risk which brought about the need for the [scaffold and stairs] in the first instance’ and did not interfere or increase the risk of working at an elevated height. Plaintiffs’ cross motion on §240 denied. Krarunzhiy v 91 Cent. Park W. Owners Corp.    

Premises Liab   Building Code   Duty   Notice   Causation   Out of Possession  

First Department
Bar’s proof that storefront window without tempered or safety glass that plaintiff fell through and while dancing on a couch which moved, causing her to fall backwards through the storefront window, met applicable building codes at the time it was installed was insufficient to grant summary judgment as it still owed a common law duty to maintain the premises in a reasonably safe condition under the circumstances and bar owner acknowledged she was aware the storefront was not tempered or safety glass years before when vandals smashed other windows, accepted the then glazier’s recommendation to install safety glass on those windows, and was aware patrons would sometimes dance on the couch plaintiff fell from, raising issues of whether the bar was negligent in not installing safety glass on the storefront window. Given bar owner’s knowledge of the lack of safety glass and that patrons would stand and dance on the couch, it’s failure to install safety class could not be said to merely provide the occasion for the accident.

Building owner granted summary judgment on proof it relinquished sufficient control to be an out of possession landlord with no obligation to maintain the premises as liability was limited to ‘significant structural or design defects that violated a specific statutory safety provision, not alleged by plaintiff. Kitziger v 219 Ave. A. NYC LLC    

Malpractice   Venue   Conclusory   Raised For First Time  

Second Department
Doctor’s conclusory claim in his affidavit that his Kings County office was not his “principal office” was insufficient to establish he did not reside in Kings County on his motion to change venue from Kings to Richmond County and his subsequent affidavit with more detail not considered where raised for the first time in reply. Beli v Lacqua    

Malpractice   Emotional Harm   Discovery   HIPAA   Privilege   Willful/Contumacious  

Second Department
Defendants’ motion to strike the Complaint or alternatively strike claims for emotional and psychiatric harm providently granted to the extent of dismissing the claims of emotional and psychiatric harm where plaintiff repeatedly refused to provide HIPAA authorizations for her psychiatric treatment as she waved any privilege by asserting emotional and psychiatric claims and her willful/contumacious refusal could be inferred from her repeated failure to provide the authorizations in contravention of several orders. Hongyan Sun v Lee    

(13 summaries)

Premises Liab   Sidewalk   Set Aside Verdict   Causation  

Second Department
Plaintiff’s motion to set aside verdict as inconsistent and against weight of evidence where jury found defendant negligent but not a cause of the accident denied on plaintiff’s testimony she did not see the pipe sticking out of the ground she tripped on until 4-days after the accident and abutting tenant’s employee’s testimony the pipes were used to secure a gate when it was closed and it would have been closed at the time plaintiff fell. Jury could reach its verdict on a fair interpretation of the evidence and the issues of negligence and causation were not inextricably interwoven so as to create an inconsistent verdict. Avila v VVFJ Realty, LLC    

Labor Law §240   Safety Devices   Sole Cause   Comparative Fault   Premature Motion  

First Department
Worker who fell in ditch covered by tarp as he walked to a bathroom granted summary judgment on Labor Law §240(1) as there was no dispute the ditch existed and his fall resulted from a lack of safety devices. Defendants failed to raise an issue with testimony and photographs that did not establish the ditch was not present on the day of the accident. Plaintiff’s decision to use a bathroom farther away from where he was working and stepping on the tarp without first inspecting it did not raise an issue on sole proximate cause where the tarp replaced a plank and the accident was the result of the lack of an adequate safety device. At most plaintiff’s actions were comparative negligence not a defense under §240.

Defendants failed to show plaintiff’s motion was premature without specifying what information solely within plaintiff’s knowledge was necessary to oppose the motion and they did not take the opportunity to pursue discovery before the motion. Sotelo v TRM Contr., LP    

Products Liab  

Second Department
Distributor failed to meet burden for summary judgment dismissing claim of delivery driver who fell off truck when wooden crate containing an industrial plumbing valve fell apart causing him to lose balance where it only relied on gaps in plaintiff’s proofs instead of affirmatively showing it had no role in the sale or distribution of the valve. Reed v Watts Water Tech., Inc.    

Assumption of Risk   Warnings   Experts  

Second Department
County granted summary judgment on assumption of risk for 70-year-old who fell off 1928 “Derby Racer” carousel, which spins very quickly, on proof he understood the risks having ridden it at least twice before and county complied with its safety precautions, including checking to make sure plaintiff was properly positioned on the wooden horse, posting appropriate warning signs, and complying with annual inspection requirements. Plaintiffs’ expert’s opinion that county should have warned plaintiff of increased risk because of his height and weight did not raise an issue as plaintiff could assess the risks himself given his familiarity with the ride. Assumption of risk is “a measure of the defendant’s duty of care”… ‘to make the conditions as safe as they appear to be.’ Cannizzaro v County of Westchester    

Labor Law §241   Labor Law §200   Industrial Code   Causation   Question of Fact  

First Department
Worker electrocuted when the tip of his jackhammer contacted an electrical conduit in a concrete column inside an underground parking lot that was supposed to be turned off would have been granted summary judgment on Labor Law §241(6) for violation of industrial code §§ 23-1.13(b)(3) and (4)(requiring electricity be shut off) but there was conflicting evidence that plaintiff was electrocuted by a loose wire that struck his leg. One defendant’s motion for summary judgment dismissing Labor Law §200 and negligence claims against it denied where issues remained of whether its failure to turn off the electricity was a cause of plaintiff’s accident. Ruiz v Roosevelt Terrace Coop., Inc.    

MVA   SUM   Malpractice   Workers Comp   Lien   Sanctions  

Second Department
Defendant-firm that settled plaintiff’s MVA case for full $50,000 of tortfeasor’s policy and paid off workers comp lien leaving plaintiff with no recovery denied summary judgment and sanctions against plaintiff and plaintiff’s new counsel for frivolous action where subsequent firm commenced a SUM case recovering an additional $50,000, as defendants failed to meet burden of showing plaintiff could not have recovered against the tortfeasor personally and that the SUM recovery was the greatest recovery plaintiff could obtain. Chicas v Cassar    

MVA   Discovery   HIPAA   Privilege   Preexisting   Emotional Harm  

First Department
Lower court improvidently denied defendant’s motion to compel plaintiff to provide authorizations for his college and prior medical records where plaintiff alleged exacerbation of preexisting conditions that were asymptomatic before truck plaintiff was standing on as he loaded cargo was struck by defendant’s truck and plaintiff’s parents noted to social worker 1-year after the accident that they noticed a change in their son after a trauma in college. Plaintiff placed his physical and psychological condition in issue by alleging emotional harm and exacerbation of preexisting conditions. Joseph v Edun    

MVA   Comparative Fault   There to be Seen  

First Department
Defendants granted partial summary judgment on issue of decedent’s negligence on uncontroverted evidence she was crossing in the crosswalk against the light when struck by defendants’ oil truck which had a green light, but denied summary judgment dismissing the case on conflicting evidence of whether truck driver was speeding and had an unobstructed view of decedent before entering the intersection. Plaintiff’s cross motion for summary judgment denied. Leathers v Approved Oil Co. of Brooklyn, Inc.    

MVA   Bicycle   Causation  

Second Department
Defendants, driver and owner of vehicle that struck plaintiff on his bicycle after he entered the roadway 5-6 car lengths from defendant’s vehicle, denied summary judgment as fact that plaintiff was riding in the wrong direction did not preclude possibility defendant-driver was partially at fault and they did not show defendant-driver was not negligent or not a cause of the accident. Gonzalez v Gonzales    

Labor Law §241   Industrial Code   Feigned Issue  

Second Department
Defendants’ motion for summary judgment dismissing part of Labor Law §241(6) claim based on industrial code §23-1.7(e)(1)(passageways) granted because area where plaintiff stepped down from ladder onto raised section of concrete floor was not a passageway. Plaintiff’s affidavit claiming construction debris piled on sides of the area where he fell acted as a passageway rejected where it not supported by the record and raised only a feigned issue where it contradicted his EBT. Stewart v Brookfield Off. Props., Inc.    

Labor Law §240   Gravity Risk   Sole Cause   Premature Motion   NYC  

First Department
Plaintiff failed to meet burden for summary judgment on Labor Law §240(1) where he failed to establish his injury was the result of a gravity-related risk under §240, his 50H testimony raised issues on sole proximate cause, and he admitted during his 50H that he did not see what caused the pipe that injured him to start rolling. Where no discovery had been completed other than the 50H hearing, motion was premature. Goncalves v City of New York    

Serious Injury   ROM   Causation   Experts  

Second Department
Defendants failed to meet burden for summary judgment on serious injury where their experts found significant limited ROM in plaintiff’s spine and failed to explain and provide competent medical evidence that the limitations were self-imposed. Defendant also failed to establish plaintiff’s injuries were not caused by the accident. Matveieva v Metropolitan Transp. Auth.    

Serious Injury   Bus   BP   Causation   Experts  

Second Department
Defendants failed to meet burden for summary judgment on serious injury where they failed to address plaintiff’s claim on the 90/180-day category in her BP. Because defendants’ expert did not opine on causation, burden on causation never shifted to plaintiff. Clarke v Doe    

(2 summaries)

Serious Injury   Causation  

Second Department
Defendants met burden for summary judgment on serious injury with competent medical proof but plaintiff raised an issue in opposition on permanent consequential and significant limitation categories. As defendants’ experts conceded the injuries were caused by the accident, the burden on causation never shifted to plaintiff. The Court does not give the details of the proofs. Martinez v New York City Tr. Auth.    

Serious Injury  

Second Department
Defendant failed to meet burden for summary judgment dismissing the action on serious injury where she did not submit competent medical proof that the injuries were not serious injuries. The Court does not give the details of the proofs. Jackson-Daniels v Kabalkina    

About Matt McMahon

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