| MUST READS (3 summaries) | |||
| NOTEWORTHY | IF YOU MUST READ | ||
 Defendants’ motion to amend their Answer to include collateral estoppel and to dismiss plaintiff’s past/future pain/suffering claims based on a workers comp determination that plaintiff’s injuries had resolved to status quo ante denied as WCL §118-a bars collateral estoppel for WC determinations except as to determinations of employment status. Nunez v CH Hous. Dev. Fund Corp. ✉Comment: WCL §118-a states “With respect to an action for a workers’ compensation claim permissible under this chapter, no finding or decision by the workers’ compensation board, judge or other arbiter shall be given collateral estoppel effect in any other action or proceeding arising out of the same occurrence, other than the determination of the existence of an employer employee relationship,” and is retroactive to 12/30/22. Garcia v Monadnock Constr., Inc. |
| Lower court improvidently denied NYCHA’s CPLR §3126 motion to strike the Complaint or preclude plaintiff from testifying at trial unless she appeared for an IME/DME in NY prior to trial by limiting defendant’s options to conducting the exam virtually or in person in Arizona instead of requiring plaintiff pay the reasonable airfare and accommodations of NYCHA’s doctors should it wish to conduct the exams in person. Jordan v New York City Hous. Auth. ✉ Comment: Lower court providently denied plaintiff’s motion to certify discovery complete to allow Note of Issue pending NYCHA’s CPLR §3126 appeal. Jordan v New York City Hous. Auth. |
 Defendants denied summary judgment dismissing Labor Law §200 and negligence claims for failure to show they lacked notice of a latent unsecured defect of the 4’x5’x0.25” metal sign attached to a parapet wall over a sidewalk shed that fell on plaintiff without evidence of any inspections of the sign and parapet for several years prior the accident. To make out prima facie lack of notice of latent defects or objects capable of deteriorating owners and GCs must show a reasonable inspection under §200. In any event, questions of fact remained of whether a reasonable inspection would have detected the hazard. Garcia v Soho AOA Owner, LLC ✉ |
| NOTEWORTHY (14 summaries) | |||
| MUST READS | IF YOU MUST READ | ||
| Lower court erred in granting defendants’ motion for summary judgment dismissing wrongful death claim when vehicle decedent was driving went off roadway in snowstorm on workers comp exclusivity defense without referring the question of whether decedent was covered by defendants’ policy to the WCB. Guang Qi Lin v Xiaoping Lu ✉ |
| Summary judgment motions by county and foster care services to dismiss Child Victims Act claims of sexual abuse by counselors at the foster care center between 1976-1978 denied as the county had a special duty to plaintiff when it assumed legal custody of her, which includes a duty of supervision, and county and foster care services failed to show they did not have notice of the counselors’ propensity for abuse. Foster care service failed to show it did not knowingly or willfully fail to report suspected child abuse under Soc. Serv. L. §§ 413, 420(2). Brown v Westchester County ✉ |
| Defendants’ motion to dismiss denied and plaintiff’s CPLR §306-b cross-motions for 2-extensions of time to serve the Summons & Complaint providently granted in the interest of justice on proof of a meritorious action. Defendants could not show prejudice from the mere passage of time. Unsuccessful service attempts did not show extreme lack of diligence. Galindo v Doherty ✉ |
| Worker, injured when he and cowoker lost control of pallet jack they were pushing up ramp causing him to fall to the floor, failed to meet burden for Labor Law §240(1) summary judgment where questions remained of whether the pallet jack and ramp were adequate safety devices to protect him from the elevation differential but granted summary judgment on Labor Law §241(6) claim for violation of industrial code §23-1.7(d) on his testimony the ramp was wet, slippery, and covered in frozen water. Plaintiff failed to show industrial code §23-1.7(f) violation. Third-Party defendant, plaintiff’s employer, failed to raise issues of credibility of plaintiff’s testimony as sole witness and waived defenses of comparative fault and assumption of risk by not addressing them in opposition. Medina v 1277 Holdings, LLC ✉ |
| Plaintiff’s testimony that unsecured 6’-10’ ladder fell on him as he was taping floor in preparation for painting made out entitlement to summary judgment on Labor Law §240(1). Defendants failed to show the elevation differential was de minimis, that plaintiff could not identify what struck him, that it was unforeseeable a ladder propped against a wall could topple, or that a worker knocking over the ladder was an intervening cause. Silva v 770 Broadway Owner LLC ✉ |
| City police department and canine officer granted summary judgment dismissing another police officer’s claim for being bitten by canine officer’s dog when plaintiff, who was attending a different training session, walked into a canine explosives detection training program run by Homeland Security with a NYPD instructor as the training program was a governmental function and defendants did not owe a “special duty” to plaintiff as the canine officer did not take control of a known and dangerous safety condition since he was merely a participant in the program. Mahar v McDonald ✉ |
| Plaintiff failed to show defendants had constructive notice of sidewalk defect that caused her to trip and fall where all parties testified they saw no defect in the sidewalk for 4-years before the accident but photographs showing a visible line/crack across the sidewalk left questions of whether it was visible and existed for long enough to be discovered and repaired. Plaintiff’s testimony that she was looking straight ahead and didn’t see the crack left questions on comparative fault. Yanky v 2839 Bainbridge Ave. Assoc. LLC ✉ |
| Defendants granted summary judgment dismissing plaintiff’s claim for slip and fall on snow/ice on ramp to bakery on proof of a storm in progress but denied dismissal of claimed building and administrative code violations without establishing the codes did not apply to the ramp and were not a cause of plaintiff’s fall. Plaintiff’s unpled claims of maintenance code violations not considered where raised for the first time in opposition. Wechsler v Ave. L., LLC ✉ |
| Defendants failed to meet burden for summary judgment dismissing plaintiff’s claim for slip/fall on wet substance on stairs and a shaky handrail in her apartment building where plaintiff testified she did not see water on stairs before her fall but felt it on her hands and pants after, saw drippings from grocery and trash bags 1-2 days earlier, and the handrail shifted when she grabbed it, causing her to fall, without testimony of defendants’ cleaning practice or prior complaints, an alternative theory of the cause of plaintiff’s fall, they did not know what caused the handrail to shift to show they did not create or have actual notice of the condition, and they did not show last inspection to eliminate questions on constructive notice. Henriquez v Appula Mgt. Corp. ✉ |
| Motion to dismiss cause of action for legal malpractice denied where allegations that defendants representing plaintiff against former attorney filed an Amended Complaint deleting most of the factual allegations of malpractice against the former attorney without plaintiff’s knowledge or consent and their negligence caused him to lose his claim against his former attorney and incur the costs of an appeal stated a cause of action for legal malpractice. Fraud claim dismissed without allegation of material misrepresentation or intentional concealment, conflict of interest malpractice claim based on undisclosed relationship with former attorney dismissed as speculative and conclusory, and breach of fiduciary duty claim dismissed as duplicative of legal malpractice claim. Ofman v Richland ✉ |
| Defendants failed to meet burden for summary judgment where plaintiff testified their cement truck struck the rear of his vehicle as he was stopped in traffic. Truck driver’s testimony that plaintiff was making a right hand turn cutting him off and that he struck plaintiff’s left rear side-panel with his right front bumper only raised issues of fact on whether plaintiff entered the intersection first and that defendant failed to see what was there to be seen, as did the parties’ conflicting expert opinions. Legrand v USC-NYCON, LLC ✉ |
| Plaintiff granted summary judgment on liability and dismissal of comparative fault defense on his affidavit that defendants’ vehicle entered intersection against stop sign and struck his bicycle and he did not have enough time to avoid the impact. Assumption of risk inapplicable. Brewster v Riseboro Community Partnership, Inc. ✉ |
| Plaintiffs’ motion for summary judgment on serious injury denied as premature where defendant did not have an opportunity to depose plaintiff or conduct an IME/DME. Injured plaintiff’s affidavit regarding inability to resume his daily activities for the 90/180-day period was not competent medical proof of the injury or disability nor was plaintiff’s self-reported inability a year later in the medical chart. Irvin v Limberis ✉ |
| Plaintiff failed to raise an issue in opposition to defendants’ prima facie showing of no serious injury where her expert did not identify the objective method used to measure ROM. Vazquez v Vazquez ✉ |
| IF YOU MUST READ (0 summaries) | |||
| MUST READS | NOTEWORTHY | ||