Discovery Subpoena CPLR § 3101(d) Preclusion BP Note of Issue IME/DME
 Plaintiff’s motion to quash defendants’ subpoena duces tecum granted and defendants’ motion to preclude plaintiff’s vocational expert from testifying or compel an examination by vocational expert and provide plaintiff’s experts report, notes, and records denied. BP and EBT’s put defendants on notice of claim of permanently inability to work and 3101(d) gave sufficient detail of expert’s anticipated testimony. IME/DME denied since Note of Issue filed and there were no “unusual or unanticipated circumstances” where plaintiff did not assert new theory of liability, new damages, or that injuries have “changed dramatically” and notice was not served on the eve of trial. Alcantara-Pena v Shanahan
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Discovery Privilege
Defendant’s motion to allow a data-mining company access to plaintiff’s devices, social medial and email accounts granted limited to items posted after date of accident pertaining to physical activities such as basketball where plaintiff, former semi-pro basketball player, claiming inability to play basketball from accident. Defendant has right to rebut plaintiff’s prior responses that photographs showing him playing basketball were of games played before accident. Vasquez-Santos v Mathew
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Products Liab Personal Juridiction
 In a major decision evaluating the effects of Daimler AG v Bauman, 571 US 117 (2014) on personal jurisdiction of foreign corporations authorized to do business In New York, the Second Department held that registering to do business in New York does not infer consent to general jurisdiction under Daimler standard which requires activities “so continuous and systematic’ as to render them essentially at home in the forum State,” usually limited to states of incorporation and principal place of business. The substantial in-state activities and business holdings of moving defendants, Ford and Goodyear Tire, did not confer general jurisdiction and plaintiffs did not allege specific jurisdiction such as acts within the state. Aybar v Aybar
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Premises Liab Slip/Trip De Minimus Directed Verdict
NYCTA’s motion for directed verdict should have been granted where protruding bolt from sidewall of staircase was directly under handrail and not above walking surface rendering it trivial. Judgment of $650,000 set aside and case dismissed. Rambarran v New York City Tr. Auth.
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Motion to Dismiss Late Notice of Claim Statute of Limitations Actual Knowledge
NYCHA’s motion to dismiss granted and plaintiffs’ cross motion to deem faxed Notice of Claim timely served denied where affidavit of associate from plaintiffs’ former counsel failed to show that fax was received because it did not contain the number it was faxed to, a copy of the fax, or identify whom he spoke with to confirm that it was received and, in any event, the unrebutted affidavits submitted by defendant show it was not received on the date alleged. Failure to move until after 1-year and 90-days deprived court of jurisdiction to grant leave. Police reports provided directly to NYCHA within 90-days did not give actual knowledge of the claimed negligence of NYCHA. Keeney v New York City Hous. Auth.
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Set Aside Verdict Juror Confusion
Jury sent note that it had a verdict but had a question which trial judge believed did not pertain to the special verdict questions. The first verdict found NYC had notice and was negligent but not a proximate cause. Upon interviewing foreperson regarding the note, in the presence of counsel, the court realized the question did pertain to the verdict question on causation and re-instructed the jury who returned a second verdict finding notice, negligence, and causation. Just prior to damage portion of the trial, the judge providently ordered a mistrial on the ground of jury confusion which was apparent from the trial record. Wright v City of New York
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Premises Liab Slip/Trip Set Aside Verdict
Defense verdict finding movie theater negligent but not proximate cause where plaintiff slipped on popcorn oil set aside as against weight of evidence because the issues of negligence and proximate cause were inextricably interwoven and could not have been reached on a fair interpretation of the evidence. Defendant did not rebut Plaintiff’s and friend’s testimony that she slipped on an oily substance. Mitchell v Quincy Amusements, Inc.
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Premises Liab Elevator Dangerous Condition
Proposals from defendants’ elevator contractor stating that lack of interior gate in manual elevator posed “an extremely dangerous condition” put defendants on notice even though the elevator complied with all applicable rules, regulations, and codes. Plaintiff’s heel got caught between floor landing and moving elevator. Romero v Waterfront N.Y.
Comment: This is consistent with the Court of Appeals ruling in Bradley v HWA 1290 III LLC, reported in Vol. 129, that industry standards can be used to show negligence even when they do not have “force of law.” |
Premises Liab Slip/Trip Snow/Ice Create Condition Out of Possession
Building where hose used by taxi owners to wash taxis came from failed to meet summary judgment burden on question of whether it created condition. Plaintiff taxi driver slipped on ice in road where water pooled and froze from washing taxis. Principle of building owner was also principle of taxi company located in building and could not claim it was an out of possession owner because of its close relationship with the taxi company. There was 1 dissent. Malik v Style Mgt. Co. Inc.
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Med Mal Late Notice of Claim Actual Knowledge Reasonable Excuse Prejudice
Petition to serve late Notice of Claim or deem Notice of Claim served 1-month after infant was diagnosed with cerebral palsy and 14-months after infant was discharged from defendant hospital denied where petitioner failed to show that HHC had actual knowledge of the claims from the hospital records, that HHC was not prejudiced by the delay, or offer a reasonable excuse for the delay. Matter of Jadusingh v New York City Health & Hosps. Corp.
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Premises Liab Slip/Trip Snow/Ice Sidewalk Last Inspection
Plaintiff’s testimony that sidewalk was not salted and her and campus security officer’s testimony that there were patchy areas of ice was sufficient to raise issue of fact in opposition to summary judgment motion. Janitorial supervisor was unable to say when the area was last inspected and, therefore, did not know the condition of the area before the accident. Petersen v Long Is. Univ., N.Y. Educ. Corp.
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Med Mal Strike Answer Discovery Willful/Contumacious Prejudice NYC
Plaintiff’s motion to strike defendants’ Answer for failing to go forward with depositions based on court orders denied where plaintiff withdrew its request for NYC’s witness’s deposition after original order. NYC’s failure to comply with subsequent orders did not rise to willful/contumacious and lower court providently granted NYC 1 more chance to produce for witness where there was no prejudice. Hopkins v City of New York
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Pothole Law Prior Written Notice NYC
NYC granted summary judgment on proof that it did not receive prior written notice of defect where plaintiff stepped off of sidewalk into a water catch basin in the street. Sada v City of New York
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MVA Nonnegligent Explanation
Plaintiff granted summary judgment where unattended tow-truck rolled back hitting plaintiff’s car. Failure to secure unattended car from moving was prima facie proof of negligence and defendant failed to provide nonnegligent explanation. Speculation that driver left tow truck in park and it must’ve slipped out of park rejected without proof of a mechanical defect given that driver was able to drive it after the incident. Franco v City of New York
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MVA Turning Vehicle Bicycle Question of Fact
Bicyclist denied summary judgment on conflicting stories of how fast defendant made a left-hand turn causing bicycle to collide with car. Gillis v Dwyer
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Med Mal Accepted Practice Causation Expert Aff Renew
Pro se plaintiff failed to raise issue of fact in opposition to defendant’s expert’s opinion that Lotrisone was proper treatment for plaintiff’s ear infection and was not the cause of her injuries where she failed to submit an expert’s affidavit in opposition. Motion to renew properly denied. Bethune v Monhian
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False Arrest False Imprisonment Probable Cause NYC
NYC granted summary judgment where officers had probable cause to stop vehicle for broken tail light and to search vehicle based on strong odor of pine or ammonia, indicative of PCP. Sanchez v City of New York
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False Arrest Malicious Prosecution Probable Cause NYC
Plaintiff’s 50-H testimony that he was grabbing 1 of 2 combatants when police arrived and refused to obey officers’ commands to get on the ground after he released the combatant established probable cause for arrest and prosecution entitling defendants to summary judgment. Sloane v City of New York
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Assault Battery Amend Complaint Discovery Preclusion Note of Issue Prejudice Willful/Contumacious
Order granting defendants’ motion for summary judgment on assault/battery causes of action and denying plaintiff’s motion to amend Complaint to add excessive force reversed on defendants’ concession on appeal that these were improperly granted and denied below. Plaintiff’s motion to preclude evidence provided post Note of Issue denied where there was no prejudice and the disclosure was not willful/contumacious. Mordekai v City of New York
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Serious Injury BP
Defendant failed to meet its burden for summary judgment on serious injury where it did not eliminate questions of fact on 90/180-day category alleged in the BP. The court does not give the details of proofs. Luque v Flovictov Cab Corp.
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