January 31, 2023 | Vol. 350

(7 summaries)

Child Victims Act   Amend Complaint   Prejudice  

Second Department
Lower court providently granted plaintiff’s motion to amend pleadings to prosecute Child Victims Act action under a pseudonym to extent that all filed papers use the pseudonym on an affidavit that she suffered physical and emotional harm and and loss of enjoyment of life and it would cause additional ’emotional stress, embarrassment, and loss of self-esteem’ that may cause her to drop the action if required to publicly disclose her name.

Fact that plaintiff already divulged her identity to the defendants and defendants’ claim of prejudice for not being able to use plaintiff’s name in its investigation rejected as the order only required the pseudonym on filed papers, not defendants’ investigation, and defendants failed to explain why the public needed plaintiff’s name. Roe v Harborfields Cent. Sch. Dist.    

Malpractice   Set Aside Verdict   Respondeat Superior   Accepted Practice   Causation   Experts   Pain/Suffering   Materially Deviates  

First Department
Motion to set aside verdict brought by Orthopedic practice that employed PA denied where jury found on legally sufficient evidence PA departed from accepted practice by not immediately acting on plaintiff’s abnormal blood work, which was a cause of plaintiff’s renal failure, and it was liable under respondeat superior. Defendant-doctor who owned shares in the P.C. but was not responsible for plaintiff’s care even though listed as her attending and did not supervise the PA’s work at that time [10 NYCRR §§ 94.2(a), (f)] could not be vicarious liable for PA and that claim dismissed. Claim that supervising physician would have delayed acting day was speculative and, in any event, the PA could have taken the same actions as the supervising physician.

Past pain/suffering award of $3mil set aside as materially deviating from reasonable compensation unless plaintiff stipulated to reduce award to $500,000 as the award was far outside all of the cases relied upon by both sides. Appleyard v Tigges    

MVA   Venue  

First Department
Defendants failed to meet burden for change of venue from New York to Nassau County as defendants’ certificate of incorporation listed New York County as principal place of business making plaintiff’s choice of venue proper regardless of proof that defendants had no office in New York County when action was commenced. Rule that transitory actions such as MVAs should be tried where the accident occurred, all things being equal, requires discretionary change of venue for convenience of nonparty material witnesses which defendants failed to show. Marte v Lampert    

Settlement   General Release   Motion to Dismiss  

Second Department
Defendants’ motion to dismiss under CPLR §3211(a) in subsequent action against individuals claiming company released in general release in prior action, including all successors or other persons that might be vicariously liable for MVA, was fictitious and individuals were true owners of the vehicle granted even though defendants did not specifically move on §3211(a)(5)(release) as the court may treat the motion as having been made on the correct grounds. A valid release is a complete bar to any subsequent action. O’Hara v Magee    

Dogbite   Vicious Propensity   Notice   Reargument   Appealable Order  

First Department
Dog owner granted summary judgment where his dog ran into a road while fetching a ball, colliding with plaintiff on her bike, as injuries caused by domestic animals are governed by vicious propensity standard that can include non-vicious dangerous propensities which owner is or should be aware of, where there was no proof owner knew or should have known of any propensity for his dog to run into roads, chase bicyclists, or interfere with traffic. Dog’s history of barking, pulling on leash, not following commands when distracted, and stalking other animals irrelevant as it would not give notice of its propensities that caused the accident.

Plaintiff’s appeal from denial of her motion to reargue dismissed as no appeal lies from denial of a motion to reargue. DeCollibus v Schimmel    

Negligent Supervision   Notice of Claim   Actual Knowledge   Statute of Limitations   Reasonable Excuse   Prejudice  

Second Department
Lower court improvidently denied so much of plaintiff’s motion to serve late Notice of Claim or deem late Notice of Claim timely filed nunc pro tunc for bullying incidents that occurred beyond 1-year before late Notice of Claim was served, even though school district had actual knowledge of the incidents, on lower court’s belief such claims were barred by statute of limitations since the student was an infant at the time of the incidents and when the action was commenced and entitled to the infancy toll of CPLR §208. Lack of a reasonable excuse or showing that infancy caused delay insufficient to deny motion. M. S. v Rye Neck Union Free Sch. Dist.    

Lead Poisoning   Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice   Motion to Dismiss  

Second Department
Petition to serve late Notice of Claim 11-months after infant’s lead levels exceeded safety standards providently denied where NYCHA did not gain actual knowledge of essential elements of the claim within 90-days or a reasonable time thereafter as testing for lead levels when the action accrued was done by NYC Department of Health and Mental Hygiene, not NYCHA, and showed no lead violations, there was no proof NYCHA became aware of the essential elements when it moved plaintiff to a different apartment, and NYCHA’s admissions of federal violations during 6-years ending 2-years before infant’s increased blood levels did not show actual knowledge of petitioner’s claim.

Petitioner failed to provide reasonable excuse for 11-month delay where infant’s lead levels were tested once a month and there was no proof the delay was caused by infancy or the petitioner’s preoccupation with the move to a different apartment on the 32nd day of the initial 90-day period. Petitioner also failed to show evidence or a plausible argument that NYCHA was not prejudiced by the delay. Matter of Roman v New York City Hous. Auth.    

Comment: Based on denial of petitioner’s motion to serve late Notice of Claim, NYCHA’s motion to dismiss for failure to serve timely Notice of Claim granted. Roman v New York City Hous. Auth..
(26 summaries)

Premises Liab   Dangerous Condition   Experts   Raised For First Time  

Second Department
School district made out entitlement to summary judgment dismissing claim monkey bars in school playground that infant-plaintiff fell from during recess was dangerous on expert affirmation that wood-chip ground cover met accepted safety standards and was reasonably safe but plaintiff’s expert’s opinion that surface was dangerous because of inadequate depth of wood chips and lack of a rubber mat underneath raised issues of fact in opposition. Credibility issues cannot be determined on summary judgment. Defendant’s argument that plaintiffs expert was not qualified to render an opinion not considered where raised for the first time on appeal. J. H. V. v Locust Val. Cent. Sch. Dist.    

MVA   Motion to Dismiss   Amend Complaint   Capacity to Sue   Attorney Disqualification  

First Department
Lower court erred in dismissing action on grounds that 13-year-old plaintiff who sued in her own name lacked capacity due to infancy and denied plaintiff’s motion to amend Complaint to allow appointment of guardian where defendants only sought disqualification of plaintiffs’ attorney for conflict of interest where they countersued the plaintiff-mother claiming she was negligent in causing the accident. Plaintiffs did not appeal portion of the order that disqualified their attorney. Veloz v Jiddou    

MVA   Strike Answer   CPLR § 3126   Willful/Contumacious   Reasonable Excuse  

Second Department
Plaintiff’s motion to strike defendants’ Answer for repeatedly failing to appear for EBT providently granted to the extent of conditionally striking defendants’ Answer unless they appear for deposition within 30-days as their willful/contumacious conduct can be inferred from their repeated failure to appear. Disappearing or making themselves unavailable did not provide a reasonable excuse for not appearing at their EBTs. DeJesus v Lilly Trans Corp.    

Malpractice   Motion to Dismiss   Statute of Limitations  

Second Department
Motion to dismiss by orthopedic surgeon who performed ORIF on plaintiff’s tibia after which plaintiff developed compartment syndrome denied where plaintiff amended Complaint to add orthopedic surgeon after statute of limitations in response to vascular surgeon who performed decompression fasciotomy impleading orthopedic surgeon as relation-back doctrine applied. There was no dispute causes of action arose out of the same conduct, plaintiff requested transfer to the defendant- Hospital but was admitted through the ER and assigned to the moving-defendant who could not reasonably conclude plaintiff had never intended to sue him where his notes showed he knew plaintiff developed compartment syndrome shortly after the tibial surgery. Plaintiff showed the initial failure to include the orthopedic surgeon was a mistake and she was not required to show it was an excusable mistake. Mignone v Nyack Hosp.    

Malpractice   Informed Consent   Accepted Practice   Causation   Experts  

Second Department
Defendants failed to meet burden for summary judgment on causation without refuting claim the infant-plaintiff’s serious neurological injuries were not directly attributable to being delivered prematurely at 26 weeks. Defendants met burden of showing they did not depart from accepted practice with expert’s opinion that their digital vaginal examination and subsequent inducing of labor was not a departure but plaintiff’s expert raised issues in opposition with conflicting opinions. Plaintiff’s expert’s opinion that infection that necessitated premature deliver was sufficiently advanced and severe to require immediate inducement raised an issue in opposition to defendants’ claim the infection was only discovered after delivery.

Defendants failed to show plaintiff was fully apprised of risks and benefits of immediate inducement despite plaintiff signing consent form. Guinn v New York Methodist Hosp.    

Negligent Supervision   Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice  

Second Department
Accident claim form signed by school principal stating kindergartner ‘ran into a pole while being chased at recess by classmates’ insufficient to give school district actual knowledge of essential elements of claim of inadequate supervision as a school ‘cannot reasonably be expected to continuously supervise and control all movements and activities of students.’ Petitioners also failed to show school district had actual knowledge of any defect of the apparatus or failure to give adequate instructions where the note did not indicate the infant struck his head on a ‘metal joint’ on the apparatus as stated in the proposed Notice of Claim.

Petitioners met initial burden of showing no prejudice and school district failed to make a particularized showing of prejudice, but plaintiff failed to show a reasonable excuse for 3.5-year delay in moving for leave to file late Notice of Claim. Matter of R. M. v Board of Educ. of the Long Beach City Sch. Dist.    

MVA   Reckless  

Second Department
Town and its highway superintendent granted summary judgment on proof superintendent was engaged in highway maintenance entitled to reckless standard of VTL §1103(b), stopped at stop sign, looked to his left but not his right without seeing plaintiff’s vehicle approaching from his right, and looked straight ahead when entering intersection, establishing his actions were not reckless even if negligent. Orellana v Town of Carmel    

Labor Law §240   Labor Law §241   Waiver   Raised For First Time   NYC  

Second Department
NYC’s motion for summary judgment dismissing Labor Law §§ 240(1) and 241(6) claims of library maintainer who fell when A-Frame ladder he propped against door suddenly moved as he descended after replacing several damaged ceiling tiles denied as NYC failed to show plaintiff’s work was routine maintenance, not protected by §§ 240 and 241, and not protected repair. While language of §241 is less broad than §240, the scope of §241 is defined by industrial code §23-1.4(b)(13) giving it a broader application.

Plaintiff abandoned his appeal from denial of his cross motion for summary judgment where he made no direct arguments on the issue in his brief. Claim that lower court should not have dismissed Labor Law §200 claim not considered where raised for first time on appeal. Nooney v Queensborough Pub. Lib.    

Labor Law §240   Gravity Risk   Safety Devices   Premature Motion  

First Department
Worker who fell from roof while cutting beams entitled to summary judgment on Labor Law §240(1) on proof his safety harness and lanyard that was properly affixed to a beam prevented him from hitting the floor but abruptly yanked him back injuring his shoulder and back, establishing the harness and lanyard were inadequate to protect him from the gravity risks of his work. Defendants’ claim issue existed on whether plaintiff hit the floor rejected where there was a §240 violation whether or not he hit the floor. Arias v 139 E. 56th St. Landlord, LLC    

Labor Law §240   Labor Law §241   Labor Law §200   Sole Cause   Recalcitrant Worker   Industrial Code   NYC  

Second Department
NYC granted summary judgment dismissing Labor Law §240(1) claim of construction worker who fell 5′-6′ into excavation pit on proof he was sole cause of his accident where he stepped on a wooden cross brace not intended as a walkway instead of using available ladders he was instructed to use. NYC granted summary judgment dismissing Labor Law §241(6) claim based on industrial code §§ 23-1.22(b)(2) and (4) as wooden cross brace was not a runway or ramp and §§ 23-1.7(f) and 23-4.3 on proof ladders were provided at the excavation site. Labor Law §200 claim dismissed on proof plaintiff’s injuries were result of his sole negligence and not a dangerous condition. Calle v City of New York    

Labor Law §240   Scaffold   Premature Motion  

First Department
Worker granted summary judgment on Labor Law §240(1) on his testimony that scaffold above where he was cleaning collapsed and portions struck him. Without showing what discovery was necessary, and what it would show, motion was not premature. Claim that not all injuries were caused by this accident went solely to damages which remained unresolved and there were no credibility issues on liability as no version of the accident conflicted with plaintiff’s testimony. Sangare v 985 Bruckner Blvd. Hous. Dev. Fund Corp.    

Labor Law §240   Gravity Risk   Safety Devices  

First Department
Plaintiff whose finger was severed when glass/metal door weighing 300 lbs. that he and 2-coworkers were trying dispose of by lifting it into a truck fell on his hand granted summary judgment on Labor Law §240(1) where no hoists or other lifting devices were provided for the task. The force sufficient to sever his finger, whether dropped from 3.5′ or 7′, was the type of gravity risk protected by §240. Foreman’s affidavit claiming door only weighed 100-120 lbs. and could be lifted by 2-workers insufficient to raise an issue where foreman did not witness the accident or provide the basis for his opinions. Taopanta v 1211 6th Ave. Prop. Owner, LLC.    

MVA   Pedestrian   Motion to Dismiss   Graves Amendment   Turning Vehicle   There to be Seen   Premature Motion  

Second Department
Plaintiff-pedestrian granted summary judgment against driver of vehicle that struck him on the sidewalk when driver made a left turn into the entrance of a parking lot on plaintiff’s and defendant-driver’s affidavits that did not dispute vehicle struck plaintiff as he walked on the sidewalk where pedestrians could be expected to be. Driver failed to show he exercised due care in avoiding pedestrians.

Lessor made out entitlement to dismissal under Graves Amendment on its CCO’s affidavit that it leased the vehicle and was in the business of leasing vehicles, but motion to dismiss denied where it failed to address plaintiff’s allegations of negligent maintenance that were supported by factual allegations. Neither motion was premature. Thorpe v AutoZone, Inc.    

Premises Liab   Stairs   Building Code   Experts   Notice  

First Department
Building owner granted summary judgment on its expert’s opinions that the 2-marble steps with a 7″ marble ledge and 1-handrail outside apartment where plaintiff provided IEP services to a child complied with applicable building codes when built in 1911, the stairs were well maintained, and the self-closing door that propelled plaintiff forward when it struck her when she left the apartment had a standard hydraulic door closer that operated safely, and its assistant VPs affidavit that no modifications had been made since they purchased the building in 1920. Plaintiff’s expert’s reliance on inapplicable 1938 building code failed to raise an issue where there was no legal or factual basis to apply it retroactively and opinion that lack of nonskid material on the steps exacerbated the condition rejected where plaintiff testified she did not slip.

As condition was not actionable, notice was irrelevant but super’s testimony that he was unaware of any prior accidents or complaints stairs showed defendant did not have notice of a dangerous condition. Rubin v Trustees of Columbia Univ. in the City of N.Y.    

Premises Liab   Snow/Ice   Create Condition   Notice   Last Inspection   3rd Party Contractor   Espinal   Indemnity  

Second Department
Building owner failed to meet burden for summary judgment where plaintiff slipped on black ice on parking lot outside strip mall where it did not show last time area was inspected, leaving questions of whether and for how long black ice was apparent. Security vendor hired by owner granted summary judgment on proof it owned no duty to plaintiff who was not a party to its contract and plaintiff failed to raise an issue on any Espinal exception. Forbes v Equity One Northeast Portfolio, Inc.    

Comment: Snow/Ice contractor granted summary judgment on proof it owned no duty to plaintiff who was not a party to its contract and plaintiff failed to meet his burden of showing any Espinal exception applied but contractor failed to meet burden for summary judgment dismissing contractual indemnity claim of owner where issues remained on whether it failed to perform some of the services under its contract. Forbes v Equity One Northeast Portfolio, Inc..

Premises Liab   Create Condition   Notice   Appealable Order  

Second Department
Owners of mall where deli worker tripped outside deli on plastic straps from construction work on roadway in front of mall granted summary judgment on proof they did not create or have notice of the condition. Plaintiff testified he did not see the straps or construction debris in front of the deli before his fall.

Estate of one of the deli owners did not properly appeal the lower court order but the Court exercised its authority to search the record and grant summary judgment to the estate. Chiamulera v New Windsor Mall    

Premises Liab   Building Code   Experts   Conclusory  

First Department
NYCHA granted summary judgment on its expert’s opinion that radiator and heating pipes decedent fell against complied with applicable 1938 building code and customary industry standards, was not in disrepair, and NYCHA had no duty to insulate or cover the radiator. Prior complaints that the apartments were overheated by decedent and others insufficient to raise an issue without proof of a violation of any code, regulation, or industry standard or practice. Plaintiff’s expert’s opinion the steam pressure was excessive conclusory where the expert did not provide support for his opinion. Ronda v New York City Hous. Auth.    

Premises Liab   Sole Cause   Causation   Consolidation   Speculation   Amend BP   Prejudice  

Second Department
Where plaintiff tripped on water hose on exterior staircase he had placed on step but could not see as he descended exterior stairs, building owner failed to show plaintiff was sole cause of accident for placing the water hose on the step as there can be more than one cause of an accident and its witness’s testimony that he would have known if the light fixture was not working was conclusory and speculative and did not address or eliminate questions of whether the lighting was inadequate. Claim that plaintiff’s testimony was incredible raised only an issue of credibility to be decided by a jury.

Plaintiff’s cross motion to amend BP denied as it raised a new theory after discovery, would prejudice defendant, and was patently devoid of merit. Reyes v S. Nicolia & Sons Realty Corp.    

Prior Written Notice   Burden of Proof   Create Condition  

Second Department
Village granted summary judgment dismissing claim of plaintiff who tripped on uneven and missing asphalt entrance to Village Park where plaintiff conceded village did not receive required prior written notice. Plaintiff’s claim village failed to show it did not create the condition rejected as the Second Department has recently clarified that once a municipality shows no required prior written notice received, the burden of proving an exception shifts to the plaintiff and plaintiff’s claim that village created the defect when installing the asphalt was speculative and there was no proof village did work in the area that created an immediately dangerous condition or that it created an immediately dangerous condition by its negligence. Wilson v Incorporated Vil. of Freeport    

Premises Liab   Create Condition   Notice   Last Inspection  

First Department
Supermarket failed to meet burden for summary judgment where it proved it did not create or have actual notice of the grapes on the floor of the produce aisle plaintiff slipped on, but failed to show lack of constructive notice without proof its cleaning routine was followed on the day of the accident. Store manager’s testimony that an employee was tasked with cleaning and inspecting the produce aisle throughout the day, and that he would personally walk the aisle during the day, as well as VP’s testimony their cleaning routines were verbal not written and based on common sense were insufficient to show what cleaning/inspection steps were taken prior to plaintiff’s accident. Polanco v 756 Jomo Food Corp.    

MVA   Bus   Pileup   Nonnegligent Explanation   Causation  

Second Department
NYCTA defendants failed to meet burden for summary judgment where they submitted testimony of plaintiff and driver of vehicle he was a passenger in showing their vehicle was struck in the rear by another vehicle and pushed into NYCTA’s bus, raising an nonnegligent explanation issue, and bus driver’s testimony offered a conflicting version of the accident. There can be more than one cause of an accident and questions remained on how the accident occurred, whether the bus was operated negligently, and was a cause of the accident. Houslin v New York City Tr. Auth.    

Dogbite   Vicious Propensity   Question of Fact  

Second Department
Landlords met burden for summary judgment dismissing strict liability claim with proof they neither knew nor should have known of their tenant’s dog’s vicious propensities but plaintiffs raised an issue in opposition by plaintiff-husband’s testimony that he repeatedly complained to the landlords about the “dog’s aggressive behavior and tendency to growl and bare its teeth,” Quintanilla v Schutt    

MVA   Bus   Emergency Doctrine   Survelliance Video   Premature Motion  

First Department
NYCTA and bus driver granted summary judgment under emergency doctrine where authenticated bus video showed a car cut in front of the bus and the only way the bus driver could avoid hitting the car was to quickly apply the brakes. Motion was not premature where the video supported the bus driver’s version of the accident and neither plaintiff who was thrown to the bus floor nor the car driver contradicted the video. Bennett v New York City Tr. Auth.    

MVA   Rear End  

Second Department
Defendants granted summary judgment where EBT testimony of defendant and plaintiff drivers established defendant-driver put on blinker, did not see cars in left lane behind her before moving into left lane, and was in left lane for 5-6 seconds before rear-ended by plaintiff’s vehicle. Plaintiff testified she was in the left lane for less than a minute before rear-ending defendants’ vehicle. Napier v Gleberman    

MVA   Rear End   Nonnegligent Explanation   Comparative Fault   Hearsay   Premature Motion  

First Department
Plaintiff granted summary judgment on his affidavit that defendant’s vehicle rear-ended him and defendant failed to provide a nonnegligent explanation by his affidavit stating plaintiff stopped short when a vehicle cut in front of plaintiff’s vehicle. While lower court should not have considered uncertified police report, error was harmless as plaintiff made out entitlement to summary judgment on his affidavit. Without evidence plaintiff was negligent, comparative fault affirmative defense dismissed. Motion was not premature as information as to why defendant rear-ended plaintiff was solely within defendant’s knowledge. Reyes v Gropper    

Premises Liab   Duty  

Second Department
Owner and tenant of building abutting walkway and ramp with height differential where plaintiff fell granted summary judgment on the parties’ EBT testimony and a survey showing they did not own, occupy, control, or make special use of the area and had no duty to maintain the area in a reasonably safe manner. Misa v Town of Brookhaven    

(2 summaries)

Premises Liab   Vacate Default   Reasonable Excuse   Meritorious Action  

Second Department
Plaintiff’s motion to vacate dismissal under 22 NYCRR 202.27 for default in appearing at several PCs granted where she showed a reasonable excuse by law office failure and a meritorious action. The Court does not give the details of the proofs. Guilfoyl v Watts    

Serious Injury  

Second Department
Defendants’ motions for summary judgment denied where they failed to eliminate all questions of whether injured-plaintiff sustained a serious injury under the 90/180-day category. The Court does not give the details of the proofs. Kirfeld v Dugan    

About Matt McMahon

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