January 31, 2017 | Vol. 39

MUST READS
(4 summaries)

False Arrest   False Imprisonment   Battery   Malicious Prosecution   Amend Answer   Materially Deviates  

Second Deptartment

The trial court properly adrmitted certificate of disposition dismissing criminal charges on false arrest claim, granted plaintiff’s motion to conform the pleadings to the proofs to include the malicious prosecution claim, and denied the defendant’s motion for a directed verdict at the close of plaintiff’s case. The jury awarded $15,000 for false arrest, $75,000 for malicious prosecution, and $500,000 for battery. There was a rational path upon which the jury could overcome the presumption of probable cause from the original indictment and $500,000 did not materially deviate from awards for battery. Gill v City of New York


Med Mal   Statute of Limitations   Continuous Treatement  

Second Deptartment

Plaintiff’s parents commenced action against pediatrician, for failing to take proper tests and provide prophylactic treatment for sickle cell anemia of newborn where child developed bacterial meningitis resulting in severe disabilities, just past the 10-year statute of limitations but within 2 1/2 years of the last treatment by the pediatrician’s group. The pediatrician had left the group 5 years before the commencement of the suit but the Appellate Division found a question of fact as to whether the continuous treatment of the group could be imputed to the pediatrician. Reeder v Health Ins. Plan of Greater N.Y.


Set Aside Verdict   Prejudice   Jury Misconduct   Juror Affidavit  

Second Deptartment

The Second Department upheld the lower court’s denial of plaintiff’s motion to set aside the defense verdict based on the court’s refusal to allow plaintiff to read portions of the deposition of a nonparty witness he could not find, and for juror misconduct based on 2 post verdict juror affidavits, finding that the lower court’s refusal to admit the deposition testimony where diligent efforts to locate the witness were made was harmless error taking the evidence as a whole and that plaintiff did not show that he was prejudiced by the alleged juror misconduct. Collins v 7-11 Corp.


Labor Law §240   Labor Law §241   Industrial Code   De Minimus  

First

Worker removing furniture from a display at convention center was part of overall “demolition” entitled to protection under Labor Law §§240(1), 241(6). Overhead lighting which fell and struck the plaintiff was required to be secured to prevent it from falling and, given its weight, the distance it fell could not be considered de minimus. Industrial code §23-1.8(c)(1)(safety hats) was sufficiently specific for Labor Law §241(6). Summary judgment for defendant reversed. Rutkowski v New York Convention Ctr. Dev. Corp.

NOTEWORTHY
(18 summaries)

Premises Liab   Labor Law   Ladder   Control  

First

Defendant general contractor’s motion for summary judgment granted where contract between the GC and owner specifically excluded painting which was activity plaintiff was engaged in when he fell from a ladder. The GC cannot be responsible for work outside the scope of its contract since it would have no ability to control the work. Ortiz v Igby Huntlaw LLC


MVA   Traffic Signs   Sole Cause   Comparative Fault   Emergency Doctrine  

Second Deptartment

Plaintiff’s testimony that he first saw the defendant’s sanitation truck a second before impact, that sanitation truck had a stop sign before entering the intersection, and that plaintiff had no traffic control device made out entitlement to summary judgment even if there was a question as to whether the sanitation truck stopped at the stop sign. Evidence showed that sanitation truck failed to yield the right-of-way whether or not it stopped at the stop sign. Fuertes v City of New York


Premises Liab   Escalator   Notice   Expert Aff   Speculation   Res Ipsa Loquitor  

First

Defendants, store and elevator maintenance company, did not have notice of any complaints or instances of the escalator malfunctioning in the manner alleged by the plaintiff prior to the plaintiff’s accident where she claimed that the escalator shuttered and stopped causing her to fall, but was able to continue riding the elevator to the next floor. A bare bone print out attached to the plaintiff’s motion was not in admissible form and, in any event, did not have sufficient detail to show if the incidents were similar to that the plaintiff’s complaint. Defendant’s expert opined that the condition alleged by the plaintiff would have resulted in a catastrophic failure of the escalator making it impossible for the plaintiff to continue to the next floor. Plaintiff’s expert’s opinion was conclusory and speculative and res ipsa loquitor did not apply. Torres-Martinez v Macy


Premises Liab   Elevator   Res Ipsa Loquitor  

First

Defendant’s motion for summary judgment was properly denied based on res ipsa loquitur as elevators do not suddenly and abruptly stop absent negligence. Defendant’s claims of vandalism and plaintiff’s comparative fault, were not supported by the record. Galante v New York City Hous. Auth.


Workers Comp Defense   Control  

First

Proof that faculty house server hired from temporary employment agency was under faculty house’s supervision and control, could be hired or fired by them, was provided a uniform by them, and that they set all of the schedules established that server was defendant’s “special employee,” entitling it to summary judgment on Worker’s Compensation defense. Berhe v Trustees of Columbia Univ. in the City of N.Y.


Premises Liab   Sidewalk   Set Aside Verdict  

First

Plaintiff’s claim of an inconsistent verdict was not preserved for appeal and issues of liability and proximate cause were not “inextricably interwoven.” Verdict in favor of defendant was supported by evidence disputing plaintiff’s claim that she fell in a hole on the sidewalk instead of being pushed by a passerby. Brunson v Saint Vincent


False Arrest   Battery   Malicious Prosecution   Probable Cause   1983 Action  

First

An issue of fact as to probable cause precluded summary judgment for both plaintiff and defendant, including the plaintiff’s federal battery and assault claims. An indictment is some evidence of probable cause but after suppression of evidence the indictment was dismissed. The malicious prosecution claims were properly dismissed as there was no evidence of actual malice and excessive force claims for having his handcuffs too tight were properly dismissed for lack of proof of an injury. Burgos-Lugo v City of New York


Duty   Res Ipsa Loquitor   Renew   Control   Negligent Hiring  

Second Deptartment

Defendant manufacturer of steel decking on truck and supplier of steel to manufacturer were both entitled to summary judgment. Manufacturer showed that it did not breach a duty owed to the plaintiff and that res ipsa loquitor did not apply. Supplier showed that it did not perform the work that caused the plaintiff’s injury, metal decking falling from a truck, and that it did not have exclusive possession necessary for res ipsa loquitor. Plaintiff’s motion to renew its opposition against the manufacturer based on an expert report was properly denied as it would not have changed the result. Ciaravino v Bulldog Natl. Logistics, LLC

Comment: In a separate decision, the court affirmed denial of summary judgment to the trucking company and driver for failure to meet their burden of showing that res ipsa loquitor did not apply and eliminating all triable issues. Ciaravino v Bulldog Natl. Logistics, LLC. Transportation broker’s only involvement was arranging for the transport between the trucking company, which was an independent contractor, and should have been granted summary judgment as it had no involvement in the shipping itself and no ability to control the conduct of the shipping company or its driver. Ciaravino v Bulldog Natl. Logistics, LLC.


Asbestos   Unknown Cause  

First

Plaintiff’s proof that defendant’s asbestos containing product was on a ship where he was assigned as a boiler tender firemen properly precluded summary judgment for defendant. Matter of New York City Asbestos Litig.


Premises Liab   Stairs   Wet Floor   Notice  

First

Defendant building owner entitled to summary judgment on proof that plaintiff climbed the stairs she fell on 2 minutes before her accident without noticing the puddle which she slipped on, establishing lack of notice and sufficient time to correct the condition. Rosario v Haber


Premises Liab   Stairs   Notice   Last Inspection   Raised For First Time  

Second Deptartment

Defendant’s failure to offer proof of the last time the stairs which crumbled causing plaintiff to fall were cleaned or inspected was fatal to their motion for summary judgment as a question of constructive notice remains without such inspection. Affidavits submitted by defendant for the first time in a reply could not be relied upon. Gairy v 3900 Harper Ave., LLC


MVA   Turning Vehicle   Causation  

First

Left turning defendant was entitled to summary judgment where codefendant was backing out of intersection in the wrong direction, without looking, relying solely only on his mirror. Argument that turning defendant didn’t have lights on was insufficient since other defendant didn’t look back and lack of lights could not be a cause of the accident. Drummond v Perez


Serious Injury   ROM  

First

Defendant’s motion for summary judgment on serious injury as to all 3 plaintiffs granted on affirmed reports of orthopedist showing normal range of motion, negative tests, and resolved strains/sprains and MRI reports, radiologist report, and medical records showing pre-existing arthritis and degenerative disease for two of the plaintiffs. Plaintiff’s orthopedist’s reports showed limited range of motion after the accident and 2 years later but failed to explain how these were caused by the accident and not the pre-existing conditions. Chiropractor report for 3rd plaintiff showed only minor limitations of range in motion after a short treatment which is insufficient for serious injury. Cattouse v Smith


Legal Mal   Judiciary Law §487  

First

Law firm granted summary judgment in legal malpractice case where plaintiff claimed that firm was negligent in not putting forth available proof in a second motion for summary judgment, costing the client additional fees. The patent infringement claim was eventually resolved in plaintiff’s favor and there was no claim that “but for” the defendant’s negligence a different result would have ensued. Matters as to evidence or strategy do not give rise to malpractice claims even if flawed. The Judiciary Law §487 claim for alleged misrepresentations by the firm in having the plaintiff retain them were also dismissed for lack of proof of intent. Brookwood Cos., Inc. v Alston & Bird LLP


Late Notice of Claim  

First

NYCHA’s motion for summary judgment granted for plaintiff’s failure to serve a Notice of Claim or seek leave to serve a late Notice of Claim within the 1 year and 90-day statute of limitations. Matter of Carpenter v New York City Hous. Auth.


Late Notice of Claim   Reargument   Renew   Appealable Order  

First

While motion to reargue was properly denied, because lower court addressed the issues raised, it was appealable. Motion to renew was properly denied for plaintiff’s failure to show why the affidavits submitted on the motion were not submitted with the original motion. Lower court’s original decision denying leave to serve a late Notice of Claim based on failure to show that HHC had actual knowledge of the essential facts within 90 days or a reasonable time thereafter was proper. Jones v City of New York


Serious Injury   ROM  

First

Defendant’s orthopedist’s opinion that plaintiff did not suffer any injuries from the low impact accident, defendant’s emergency room doctor’s opinion of the same, and indications of bone spur development on MRI and plaintiff’s surgical records entitled defendant to summary judgment on serious injury. Plaintiff’s orthopedist’s opinion was conclusory, did not give recent measurements of range of motion, and failed to explain why evidence of spurring was not cause of the injuries. De La Rosa v Okwan


Serious Injury   ROM  

First

Plaintiff’s chiropractor’s finding of limited range of motion 2 years after the accident failed to reconcile findings of normal range of motion at the time of the accident and, therefore, failed to raise a triable issue in response to defendant’s neurologist’s report showing normal range of motion, negative tests, and resolved injuries. Booth v Milstein

IF YOU MUST READ
(1 summaries)

Indemnity   Duty to Defend   Coverage   Additional Insured  

Second Deptartment

Contractor not entitled to coverage under indemnity clause with subcontractor, who was an individual d/b/a an assumed name, where the subcontractor was the injured party and the insurance contract limited coverage to claims made by “third parties.” There was no reasonable interpretation under which the subcontractor, named insured, could be considered a third party. Concordia Gen. Contr. Co., Inc. v Preferred Mut. Ins. Co.

About Matt McMahon

Civil trials and appeals since 1984

Bookmark the permalink.

Comments are closed