January 26, 2021 | Vol. 246

MUST READS
(5 summaries)
NOTEWORTHY IF YOU MUST READ

Assault   Battery   Negligent Hiring   Motion to Dismiss   Statute of Limitations   Amend BP  

Second Department

Motion to dismiss on 1-year statute of limitations for intentional tort by employer of defendant-doctor who sexually assaulted plaintiff denied as employer would be responsible under negligence, not assault and battery. Doctor’s similar motion granted as to assault and battery claims but denied as to claims under Victims of Violent Crime Protection Act (NYC Administrative Code of §10-401) with 6-year statute of limitations as assault would constitute a crime. Plaintiff’s motion to amend Complaint against employer to include Violent Crime Protection Act cause of action denied as palpably devoid of merit. Doe v Advantagecare Physicians, P.C.

Comment: Violent Crime Protection Act creates a private cause of action for victims of violent crimes that constitute a misdemeanor or felony regardless of whether there was ever a criminal charge, complaint, or conviction, allowing compensatory and punitive damages, injunctive relief, and attorney fees.


Labor Law §240   Labor Law §241   Labor Law §200   Industrial Code   Control   Sole Cause  

First Department

Defendants denied summary judgment on Labor Law §§240(1) and 241(6) where plaintiff fell while climbing from top of boiler to catwalk after replacing boiler steam valve, considered by some courts as routine maintenance, as it was part of a larger project of removing and replacing portions of boilers leaving question of fact on whether it was covered activity under §§ 240 and 241. Defendants failed to show appropriate safety devices were available, but plaintiff refused to use them or used them improperly for claim of sole proximate cause. Labor Law §200 and negligence claims dismissed where injury resulted from means and methods of work and defendants did not have authority to control plaintiff’s work. Gaston v Trustees of Columbia Univ. in the City of N.Y.


Venue  

Second Department

Nursing home’s motion to change venue from Kings to Nassau County denied where agreement specifying Nassau County venue had illegible signature and affidavit attempting to authenticate signature failed to state affirmant was present when agreement was signed or knew decedent signed it. Andreyeva v Haym Solomon Home for the Aged, LLC


Asbestos   Labor Law §200   Control   Hearsay   Admissibility  

First Department

Port Authority denied summary judgment where issues of fact exist of whether it had ability to control work when plaintiff’s decedent was exposed to asbestos at JFK in the 1970s on proof lease with Pan Am gave Port Authority control over specifications and materials and Pan Am project manager testified Port Authority dictated what materials were to be used or removed.

inadmissible hearsay of some coworkers was admissible to oppose motion where plaintiff could “demonstrate acceptable excuse for [a] failure to meet the strict requirement of tender in admissible form” on facts plaintiff’s decedent died before being deposed and incidents occurred in the 1970s. Also, hearsay evidence was not sole evidence opposing motion. Matter of New York City Asbestos Litig.


False Arrest   Malicious Prosecution   Motion to Dismiss   Service   Reasonable Excuse   Meritorious Action   NYC  

Second Department

NYC’s motion to dismiss for failure to timely serve Complaint after demand under CPLR §3012(b) granted as service of demand by first class mail was sufficient and plaintiffs’ excuse they didn’t receive the demand, without more, was insufficient to provide a reasonable excuse. Court not required to look at meritorious action where reasonable excuse not established. Mezar v Defranco

NOTEWORTHY
(23 summaries)
MUST READS IF YOU MUST READ

Premises Liab   Slip/Trip   Snow/Ice   Stairs   Set Aside Verdict   Jury Charge   Building Code  

Second Department

Verdict finding building 100% at fault reversed and remanded for new trial where lower court improperly charged 1925 NYC building code without proof of when service entrance stairway plaintiff slipped on was built. Coreano v 983 Tenants Corp.

Comment: See companion decision in this volume denying defendant’s motion for summary judgment.


Premises Liab   Slip/Trip   Stairs   Feigned Issue   Expert Aff  

First Department

Affidavit contradicting plaintiff’s initial deposition testimony admissible where plaintiff corrected her testimony after a break in the deposition, rendering the inconsistency a question of fact for a jury and not a feigned issue. Plaintiff’s expert’s reliance on the second version of plaintiff’s fall properly considered where not a feigned issue but claim defective handrail caused fall presented a feigned issue where it directly contradicted plaintiff’s deposition testimony that she was not holding or trying to reach handrail at the time of her accident. Dixon v Sum Realty, Co.


Labor Law §200   Labor Law §241   Control   Industrial Code  

Second Department

Building owner and construction manager granted summary judgment on Labor Law §§200 and 241(6) on proof plaintiff’s slip/fall on discarded plastic covering of tile that became wet from wet saw used to cut tiles was caused by means and methods of plaintiff’s work which they had no control of and industrial code §23-1.7(d)(foreign substances) was inapplicable as both the plastic sheet and water from the wet saw were direct and natural results of plaintiff’s work. Giglio v Turner Constr. Co.


Med Mal   Accepted Practice   Causation   Expert Aff  

Second Department

Plaintiff’s expert raised issues of fact in opposition to defendants’ prima facie showing of entitlement to summary judgment on opinion that defendants departed from accepted practice by not recognizing symptoms of decedent’s subarachnoid hemorrhage, failing to order stat CT scan, not performing lumbar puncture, and ordering Heparin to decedent all of which were proximate cause of decedent’s injuries and death. Summary judgment not appropriate where there are conflicting expert opinions. Agostini v Varughese


Med Mal   Informed Consent   Accepted Practice   Causation   Expert Aff  

First Department

Plaintiff’s expert raised issues of fact countering defendants’ expert’s opinion that 3 mm tear of small intestine must have been undetectable during surgery with opinion it was departure not to visualize any tissue surgeon contacted during the surgery which would have shown even an abrasion, and that imaging studies were indicated at least 1-day before defendants’ experts suggested where plaintiff was in tachycardia and had brown discharge from incision over the night before. Defendants granted summary judgment on informed consent where plaintiff’s expert opined plaintiff should have been advised of the risk of bowel injury but did not state a reasonable practitioner would have so advised and plaintiff stated only that she would have reconsidered the surgery if so advised. Hernandez v Eachempati


Med Mal   Accepted Practice   Causation   Expert Aff  

Second Department

Plaintiff’s experts raised issues in opposition to gastroenterologist/hepatologist showing of entitlement to summary judgment on opinions she departed from accepted practice by relying on a 2009 biopsy, failed to consider decedent’s increased risk for liver cancer by not recommending follow-up screenings and biopsies, failed to inform decedent and his primary care physician of the risks, failed to document decedent’s treatment, and failed to insure decedent continued to treat for liver disease and hepatitis C after she closed her practice all of which caused decedent’s death. Plaintiff’s experts were qualified to give opinions based on experience treating patients with liver disease, liver cancer, and hepatitis C, backed up by citations to medical journals and any lack of expertise goes to weight of evidence. Joynes v Donatelli


Assault   Motion to Dismiss   Governmental Function   Notice of Claim   Special Duty   NYC  

First Department

DOE’s motion to dismiss claim of plaintiff NYPD school safety agent that school administrator allowing known 13-year-old violent student to attend school who along with another 13-year-old student assaulted her granted where neither Complaint nor Notice of Claim pleaded a special duty, fatal to both common-law negligence and GOL §11-106 claims. The court did not decide whether the worker had a right to sue DOE. Nurse v New York City Dept. of Educ.


Premises Liab   Slip/Trip   Snow/Ice   Sidewalk   § 7-210   Out of Possession   Create Condition   Notice   Last Inspection  

Second Department

Restaurant-tenant denied summary judgment even where it had no statutory duty to remove snow/ice under §7-210 as principle testified it was obligated under lease to clear snow/ice from sidewalk and it failed to prove it did create or aggravate the condition by snow removal efforts. Zamora v David Caccavo, LLC

Comment: Out-of-possession building owner had non-delegable duty to maintain sidewalk, including snow removal, under administrative code §7-210 and denied summary judgment where it presented evidence of its and tenant’s general cleaning and inspection practices, but not last time sidewalk was cleaned/inspected. Zamora v David Caccavo, LLC.


Premises Liab   Slip/Trip   Snow/Ice   Create Condition   Notice   Last Inspection  

Second Department

Plaintiff’s testimony that she never saw runoff from snow piles before or on day of accident, that parking lot surface looked clear on day of accident and just before she fell, and defendants’ maintenance worker’s testimony he checked for ice every morning, would have salted any ice patches, would have checked again if temperature dropped below freezing, and that lights that turn on at time of accident were working, established that defendants did not have notice of the condition and were entitled to summary judgment. Zimmer v County of Suffolk

Comment: The Court does not address issue of when lot was last inspected other than worker’s testimony of his custom and practice.


Motion to Dismiss   Amend Complaint   Governmental Function   Notice of Claim   Special Duty   Feigned Issue   NYC  

First Department

NYC’s motion to dismiss granted and plaintiff’s motion to amend Complaint denied where neither Complaint nor Notice of Claim alleged facts showing a special relationship between NYC in providing 911 services and plaintiff’s affidavit claiming his mother-in-law told him she called 911 and was told FDNY was on its way did not cure defect where it conflicted with his 50H testimony. Velez v City of New York


Labor Law §240   Labor Law §241   Labor Law §200   Industrial Code   Control   Sole Cause   Open/Obvious   Inherently Dangerous   Untimely  

Second Department

Defendants granted summary judgment of Labor Law §240(1) claim on proof that plaintiff running from assigned work to help coworkers move a 30′ piece of rebar was not exposed to an elevated risk under §240, of §241(6) claim on proof industrial code provisions relied on by plaintiff either were not specific standards of conduct or were inapplicable, on §200 and negligence where defendants did not have authority to control work and condition was open/obvious and not inherently dangerous. Sole cause of plaintiff’s accident was his decision to engage in a task he was not authorized or instructed to do. Lower court should not have denied plaintiff’s motion for summary judgment as untimely but finding for defendants made issue moot. Reyes v Astoria 31st St. Developers, LLC


Premises Liab   MVA   Expert Aff   Conclusory  

Second Department

Building owner and restaurant tenant granted summary judgment on proof parking lot where plaintiff was struck by car was in reasonably safe condition and not negligently designed. Plaintiff’s expert’s opinion of negligent parking lot desig was conclusory where not supported by industry wide standards or accepted practices. Lorenzo v Garley


MVA   Set Aside Verdict   Turning Vehicle  

Second Department

Plaintiff’s motion to set aside verdict finding driver of car she was in 100% at fault and other car 0% at fault denied where jury could reach verdict on fair interpretation of evidence crediting testimony of driver it found 0% at fault that she made her turn with right of way before being struck by the other vehicle as it made its turn without right way. Hendy v Watts


MVA   Train   There to be Seen   Expert Aff   Speculation  

Second Department

NYCTA granted summary judgment on proof train operator was not negligent where train struck decedent coming into station. Train operators may be liable if they see someone on tracks in time to stop with reasonable care, but plaintiff’s expert’s claim operator should have seen and stopped was speculative. Briceno v Beau Maison Corp.


Assumption of Risk   Premature Motion  

Second Department

Dance school and director granted summary judgment where 16-year-old experienced dance participant hit in head by another dancer doing a high kick on primary assumption of risk as she could comprehend risks involved. Speculation discovery might yield relevant evidence not enough to deem motion premature. Spruck v Pollack


Premises Liab   Slip/Trip   Sidewalk   Prior Written Notice   Big Apple Pothole   Create Condition   Notice   NYC  

Second Department

NYC granted summary judgment where plaintiff fell into subway vent opened when grating with parking meter attached got ripped up as search of city records and Big Apple Pothole maps showed no prior written notice and NYC did not create an immediately dangerous condition when it installed the meter on the grate 9-years before the accident. NYCTA denied summary judgment on claim it had no actual or constructive notice where search limited to 1-year at location of accident and employee’s testimony that grates with parking meters attached can become dislodged failed to eliminate questions of fact on notice. MTA granted summary judgement as it has no part in the operation, management, or control of the transit system. Fiero v City of New York


MVA   Reckless   NYC  

First Department

Defendants granted summary judgment where employee struck car plaintiff was sitting in on proof snowplow driver considered space before driving down street and thought he had at least 1′ from parked cars, establishing he was not reckless as required for liability of drivers engaged in highway work under VTL §1103(b). Onofre v City of New York


Premises Liab   Slip/Trip   Sidewalk   Motion to Dismiss   Duty   Create Condition  

Second Department

Abutting landowner’s motion to dismiss granted on proof it did not create the defect on sidewalk plaintiff tripped on directly or by special use and local village code requiring landowner to keep sidewalk in good repair did not specifically impose a private right of action. Daniel v Khadu


MVA   Bus   Emergency Doctrine   Violent Propensity   Speculation  

First Department

NYCTA granted summary judgment on proof bus driver was presented with emergency not of his own making when pedestrian suddenly walked into his lane and swerving and breaking were reasonable under the circumstances. Plaintiff’s claim pedestrian did not walk far enough into lane to necessitate evasive maneuvers was speculative and bus movement was no more than usual jerks, not extraordinary or violent. Mobley v New York City Tr. Auth.


Sidewalk   Slip/Trip   Unknown Cause  

First Department

NYCHA denied summary judgment where plaintiff was unable to pinpoint exact location of fall on sidewalk but consistently testified she tripped on defect on sidewalk abutting NYCHA’s property, identified general area of fall, and clarified any misidentification. Any inconsistencies are a matter of credibility for the jury. Martinez v City of New York


MVA   Rear End   Nonnegligent Explanation  

Second Department

Defendant’s affidavit stating plaintiff’s vehicle cut in front of him and came to a sudden stop raised nonnegligent explanation in opposition to plaintiff’s prima facie showing of entitlement to summary judgment on plaintiff’s testimony that her car was stopped for 40-seconds before being rear-ended. Flood v Fillas


MVA   Rear End   Nonnegligent Explanation  

Second Department

Defendant-driver’s affidavit stating plaintiff’s vehicle cut in front of him and came to a sudden stop raised a nonnegligent explanation in opposition to plaintiff’s prima facie showing of entitlement to summary judgment on plaintiff’s affidavit that his car was stopped for 3-4 seconds in traffic before being rear-ended. Matzen v Armstrong


Premises Liab   Slip/Trip   Snow/Ice   Stairs   Create Condition   Causation  

Second Department

Building denied summary judgment where it failed to show its efforts to remove snow from service entrance stairway where plaintiff slipped and fell did not create or exacerbate conditions that caused plaintiff to fall. Coreano v 983 Tenants Corp.

Comment: See companion decision in this volume reversing verdict.

IF YOU MUST READ
(2 summaries)
MUST READS NOTEWORTHY

Uninsured   SUM   Stay Arb  

Second Department

Carrier’s petition to permanently stay Um and SUM arbitration where insured was killed by thief who stole his company owned vehicle on claim he was not uninsured because other coverage existed under the policy denied. Mandatory UM endorsement specifically defines uninsured vehicle to include a stolen vehicle and that would apply to SUM claim which requires liberal interpretation in favor of coverage and other coverage would have to be for bodily injury to apply. Matter of Hartford Acc. & Indem. Co. v Dellegrazie


Serious Injury  

Second Department

Plaintiff raised issue on serious injury in opposition to defendant’s showing of entitlement to summary judgment. The Court does not give the details of the proofs. Renelique v Ashley

About Matt McMahon

Civil trials and appeals since 1984
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