January 30, 2024 | Vol. 402

(5 summaries)

Building Security   Duty   Intervening Cause   Foreseeability   Speculation  

First Department
Co-op city defendants granted summary judgment dismissing claim of tenant who was shot 6-times in public vestibule of his building, between the unlocked exterior door and locked door to the lobby, as a landowner’s duty to provide minimal security does not extend to exterior walkways and public vestibules, defendants provided minimal security, and the shooter’s conduct was an unforeseeable intervening cause as the 6-shots showed he targeted the plaintiff to kill him, and there was no evidence of past similar violence in the area to raise an issue on foreseeability or create a duty to provide additional security measures.

Plaintiff’s argument that shooting would have been prevented had defendants not understaffed their private peace officer force rejected as speculation. Abdulfattaah v Riverbay Corp.    

Assault   Emotional Harm   Discovery   HIPAA   Appealable Order  

First Department
Lower court providently limited disclosure of medical records to 3-years and mental health records to 5-years before plaintiff’s alleged sexual assault by a security guard at a hotel in order to protect her from “unreasonable annoyance and embarrassment.” Order requiring in camera review of plaintiff’s psychotherapy notes nonappealable as it did not affect the substantial right of a party and the Court declined to grant leave to appeal as in camera inspection of psychiatric records is ‘advisable in most instances.’ E.D. v Intercontinental Hotels Group    

Child Victims Act   Negligent Hiring   Negligent Supervision   Motion to Dismiss   Notice   Premature Motion  

First Department
Motion to dismiss by children’s aid society that had custody and control of plaintiff when he was sexually abused by an older boy in its group home denied where the Complaint sufficiently alleged causes of action for negligent hiring, retention, supervision, and/or direction of its employees on allegation society had actual and constructive notice of the sexual abuse which continued after it had been apprised of the abuse. Plaintiff’s failure to allege specific facts about notice did not warrant dismissal where he had not yet been provided the society’s records to support the allegations.

Lower court providently denied dismissal of claim of failure to report abuse under Social Services Law §413(1)(a) which provides a private cause of action for failure to report and plaintiff adequately alleged they knew or had reason to suspect the abuse was taking place and allowed it to continue after it had been reported to them. J.K. v City of New York    

Child Victims Act   Motion to Dismiss   Notice   Discovery   Premature Motion  

First Department
New York Athletic Club’s motion to dismiss Child Victims Act case for failure to allege specific facts showing it had notice of the offending priest’s pedophilia denied where plaintiff’s allegation that the club knew or should have known of the priest’s pedophilia at the club was sufficient to put them on notice of the claim at the early stage of litigation and due to the lapse of time and fact plaintiff was 13-years-old at the time of the abuse, the club may be the sole possessor of information on notice. SHC-MG-25 Doe v Archdiocese of N.Y.    

Premises Liab   Snow/Ice   Storm in Progress   Duty   Speculation  

First Department
Landowner granted summary judgment on storm in progress on climatological data and plaintiff’s concession that it was snowing heavily when he fell. Claim defendant violated its own snow/ice removal procedures during the snowstorm did not raise an issue as there can be no liability for “violation of an internal rule imposing a higher standard of care than the one provided by law” absent detrimental reliance which plaintiff did not show. Speculation defendant made condition worse by removing snow did not raise an issue and plaintiff offered no evidence to show ice existed under snow before the storm. Werner v Jag 1st Ave Realty LLC    

(15 summaries)

MVA   Pileup   Default Judgment  

Second Department
Plaintiff failed to meet burden for default judgment against driver of lead vehicle in 5-vehicle pileup where Complaint was verified by attorney and plaintiff’s supporting affidavit that ‘[u]pon information and belief’ the lead vehicle stopped short were insufficient ‘proof of the facts constituting the claim’ under CPLR §3215(f). Knudsen v Green Mach. Landscaping, Inc.    

Premises Liab   Out of Possession   Notice   Last Inspection   Personal Juridiction   Waiver  

First Department
Out of possession landlord denied summary judgment where tenant has duty to make all repairs except to roof, exterior walls, and foundation in lease, leaving questions of fact on whether landlord was responsible for structural repairs to the fire escape permanently affixed to the building and landlord failed to provide evidence of the last time the exterior was inspected to show lack of constructive notice.

Landlord waived issue of lack of personal jurisdiction from late service of Supplemental Summons and Amended Complaint where neither party raised the issue below or on appeal, the landlord appeared in the action and engaged in discovery, and the lower court implicitly treated landlord as a party. Thomas v Triboro Maintenance Corp.    

Premises Liab   Notice of Claim   Untimely   Reasonable Excuse   Prejudice  

First Department
Petition to amend Notice of Claim to correct address of where plaintiff fell on stairs on NYCHA property denied where petitioner failed to explain 10-month delay in bringing petition after NYCHA notified her they did not own the building at the address in the Notice of Claim and NYCHA was prejudiced by not being able to investigate while the conditions were still fresh. There was nothing in the unauthenticated photographs attached to the Notice of Claim to give NYCHA notice of the correct address. Matter of Bautista v New York City Hous. Auth.    

MVA   Comparative Fault   Admissibility   Hearing   Waiver  

Second Department
Plaintiff failed to meet burden for summary judgment dismissing comparative fault defense where she submitted the certified police report containing the defendant-driver’s otherwise inadmissible conflicting version that plaintiff was speeding before being struck by his vehicle as he backed out of a driveway.

Defendant waived his cross-appeal from order granting plaintiff summary judgment on liability where he did not request reversal in his brief. Kang Min Lee v Ke Ping Huang    

Malpractice   Informed Consent   Accepted Practice   Causation   Experts   Admissibility   Raised For First Time  

First Department
Plaintiff’s expert NY emergency physician’s opinion providently considered where submitted in unsworn affirmation and it was limited to issue of informed consent procedures within his expertise, not the septoplasty surgery. Plaintiff’s out-of-state otolaryngology expert’s opinion considered where court providently allowed plaintiff to substitute affidavit with certificate of conformity nunc pro tunc. Plaintiff’s out-of-state handwriting expert’s opinions not considered without affidavit and certificate of conformity.

Defendants granted summary judgment dismissing the malpractice claims where claim the septoplasty was not complete or competent because it did not cure her breathing issue, first raised in opposition, presented a new theory and plaintiff’s otolaryngology expert did not meaningfully address defendants’ expert on causation. Informed consent and forgery claims dismissed regardless of whether digital signatures were result of computer malfunction or forgery where plaintiff conceded she was informed of the risks and did not claim unawareness of risks or alternatives or that she would not have undergone the surgery if fully informed. Breach of contract claim dismissed where plaintiff conceded defendant-doctor only promised to cure the breathing issue if it was caused by her deviated septum and the records showed it was cured by a subsequent surgery on her sinuses and nasal anatomy other than her septum. Khurdayan v Kassir    

Construction Liab.   Create Condition  

First Department
Google maps showing that pothole adjacent to an area where electrical and paving contractors dug up the street to install underground electrical cables existed before they started their work was insufficient to eliminate all questions of fact on whether they created or exacerbated the condition that caused plaintiff to fall as their work was sufficiently close to the pothole to raise an issue of fact. Cosme v City of New York    

Labor Law §240   Scaffold   Amend Complaint  

Second Department
Motion by bricklayer who fell when scaffold collapsed to amend the Complaint to include allegations that principal of GC pierced the corporate veil denied as devoid of merit without allegations the principal “abused the privilege of doing business in the corporate form in such a manner as to cause injury to” plaintiffs and principal granted summary judgment on proof he did not pierce the corporate veil. Kyung Hee Moon v Owadeyah    

Premises Liab   Lead Poisoning   Notice   Indemnity  

First Department
Plaintiffs granted summary judgment against cooperative building for 18-month-old’s lead exposure under Local Law 1 on proof its doormen and super were aware plaintiffs openly moved into the building with a child under 7, mother identified herself as the new subtenant, the doormen routinely observed them coming and going and received packages for them, the super came to the apartment to make repairs and reported the illegal subtenancy of the mother and her children to the cooperative. Defendant’s argument the administrative code §27-2056.15(c) exception for owner occupied residents barred the claim because the shareholder who sublet the apartment to the plaintiffs occupied the apartment by occasionally staying there rejected as her occupation was “fleeting, transient, and serendipitous.”

Cooperative’s contractual indemnity claim against shareholder dismissed as it violated GOL §5-321 prohibition against indemnity for indemnitee’s own negligence. E.S. v Windsor Owners Corp.    

MVA   Reargument   VTL §1104  

First Department
Lower court providently granted reargument and denied plaintiff’s motion for summary judgment where it overlooked a witness’ affidavit that plaintiff caused the accident by driving his ambulance into the intersection without safely slowing down as required by VTL §1104(b)(2), raising conflicting versions of how the accident occurred. Reyes v Perez    

Premises Liab   Assumption of Risk  

Second Department
Hookah lounge’s motion for summary judgment claiming plaintiff assumed the risk of hot coals from the hookah placed on a table in front of her falling on her when struck by other patrons dancing at the birthday party denied as assumption of risk is normally limited to sporting and recreational events to promote activities of enormous social value and hookah smoking does not have the “beneficial aspects of sports.” In any event, defendant failed to show it did not increase the risks of the activity where it’s owner indicated the best location for the hookah would be on the floor, not on a table, and it offered no proof plaintiff was aware of the risks. Gilliard v Manhattan Nuvo LLC    

MVA   Bus   Notice   Last Inspection   Admissibility   Survelliance Video   Discovery   Causation  

Second Department
NYCTA failed to meet burden for summary judgment dismissing claim of passenger who fell on a slippery substance on the floor of the bus while exiting from the rear after everyone was told to exit when the farebox started to smoke as the dispatcher’s testimony about general pre-trip inspections was not evidence of the last time the area was cleaned/inspected prior to plaintiff’s fall. The unauthenticated bus video was inadmissible and plaintiff did not adopt the video in her affidavit where she did not mention the video. Harrington v New York City Tr. Auth.    

Comment: Plaintiff’s motion to compel NYCTA to produce a witness knowledgeable with maintenance of the smoking farebox providently denied as the smoking farebox was not material and necessary as it only provided the occasion and not a proximate cause of her fall. Harrington v New York City Tr. Auth.

Asbestos   Discovery   Note of Issue   Raised For First Time   Premature Motion   Conclusory  

First Department
Defendant sued as “Alfa Romeo USA” denied summary judgment with leave to renew where it claimed for the first time on the motion that the named defendant was nonexistent and its true identity “FCA US LLC” did not exist when plaintiff was exposed to asbestos while working on Alfa Romeos as a mechanic. Plaintiffs showed information necessary to oppose the motion was exclusively in the defendant’s possession where defendant failed to provide responses to the standard NYCAL interrogatories, plaintiffs requested these responses with supporting documents after defendant filed the motion which defendant declined, and plaintiff was entitled to responses even after the Note of Issue as the requests were not speculative where defendant conceded it used the Alfa Romeo USA trade name, accepted service, answered, and conducted discovery without moving to dismiss on claim it was the wrong entity.

In any event, defendant failed to show it had no liability for Alpha Romeo parts and cars with conclusory affidavits. Carboni v Alfa Romeo USA    

Pothole Law   Prior Written Notice   NYC  

First Department
NYC granted summary judgment dismissing claim for plaintiff’s fall on dent in park walkway on records showing all paved surfaces were in “‘acceptable’ condition” in the 2-years before the accident, establishing it did not have prior written notice of the condition. Plaintiff’s claim that a discrepancy in the number of repairs completed in work orders raised an issue on prior written notice rejected where the additional repair was completed 1-year before the accident. Degraffe v City of New York    

MVA   Turning Vehicle  

Second Department
Owner and driver of vehicle with plaintiff as a passenger failed to meet burden for summary judgment where it submitted testimony of both drivers containing conflicting versions of whether the vehicle they collided with at an intersection failed to yield the right-of-way under VTL §§ 1141, 1163(a) by making a sudden left hand turn when it was unsafe to do so or whether the vehicle they struck started its turn when they were 50-60 yards from the intersection. Saviano v TT of Massapequa, Inc.    

MVA   Pileup   Conclusory   Uncertified Records   Raised For First Time  

Second Department
Plaintiff, driver of second vehicle in 5-car pileup, failed to meet burden for summary judgment against owner and driver of rearmost vehicle on her conclusory affidavit that rearmost vehicle’s inability to stop caused the accident based on unidentified sources where she had no knowledge of how the accident occurred and the uncertified police report she submitted was inadmissible. Certified police report submitted for the first time in reply rejected as it was an attempt to correct basic deficiencies in the original motion rather than respond to arguments raised in opposition. Zeldin v Larose    

(1 summaries)

MVA   Bus   Indemnity   Vacate Jud   Respondeat Superior   Emergency Doctrine  

First Department
NYCTA’s motion for summary judgment dismissing claim of injured-party in prior action who took assignment of bus driver’s right to be indemnified by NYCTA after a jury found it vicariously liable for the bus driver striking the plaintiff-bicyclist who was thrown in front of the bus after being struck by an opening cab door granted where NYCTA’s responsibility to indemnify its employees was dependent upon the employee cooperating in the defense which the bus driver failed to do, resulting in his Answer being stricken, and the Appellate Division had previously overturned the judgment against NYCTA on a finding that the bus driver was responding to an emergency situation, extinguishing its obligation to indemnify the bus driver. Cropper v New York City Tr. Auth.    

About Matt McMahon

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