January 4, 2022 | Vol. 294

(2 summaries)

Set Aside Verdict   Jury Charge  

Second Department
$14,705,000 verdict set aside and new trial ordered where trial court failed to instruct jury to restart deliberations from the beginning when replacing 1-juror after damage deliberations had begun, permitted since 2013 amendments to CPLR §4106, as it violated NYS constitutional right to a “six member jury wherein each juror deliberates on all issues.” Trial judge disagreed with plaintiff’s argument that §4106 did not require de novo deliberations, but without such an instruction the jury completed the verdict sheet with the discharged juror’s vote on 4 of 6 questions and the substituted juror’s vote on the remaining 2 questions. As a result, the “six-member jury” did not deliberate on all issues and the jury could not be properly poled.

The Second Department laid out a jury charge for when a juror is replaced under §4106:
  1. that one of its members has been discharged and replaced with an alternate juror as provided by law;
  2. that the parties are entitled to a verdict reached only after full participation of the six jurors who will ultimately return the verdict; and
  3. in order to assure the parties of that right, the jury must start their deliberations on each issue from the beginning, and must set aside and disregard all past deliberations.
The jury must also be given a clean verdict sheet. Caldwell v New York City Tr. Auth.    

Comment: A bill to amend CPLR §4106 to specify that the jury must deliberate on all issues after a substitution was introduced in May of 2021.

Premises Liab   Stairs   GML §205-a-e   Create Condition   Notice  

Second Department
Homeowner granted summary judgment of police officer’s claim of negligence on proof she did not create or have actual/constructive notice of wet stair officer fell on while responding to call that homeowner’s mother was unresponsive. While the officer did not have to show the same degree of “notice” under GML §205-e, specifically he did not have to show actual/constructive notice of the specific defect, he did have to show at least circumstantial evidence that the violation of the statute, ordinance, rule, etc. was caused by negligence and resulted in the accident. Homeowner showed lack of culpable element and officer failed to raise an issue in opposition. Monaco v Russillo    

(9 summaries)

Malpractice   Respondeat Superior  

Second Department
Plaintiff’s emergency medicine expert raised issue on her opinion that emergency room doctors who performed elbow reduction departed from accepted practice by not requesting an orthopedic consultation or consulting a radiologist, attempting a second elbow reduction, and discharging plaintiff with an unstable elbow, all of which contributed to her vascular compromise and below elbow amputation. Plaintiff’s orthopedic expert raised an issue of departure by the orthopedist who referred plaintiff for a vascular consult on his opinion the vascular consult alone was not enough and failure to order an angiogram of the arm was a departure and cause of plaintiff’s injuries and amputation.

Hospital failed to meet burden of showing it was not responsible for attending ER doctors under respondeat superior without rebutting plaintiff’s pleaded allegation that she sought treatment by the hospital, not a specific doctor. As plaintiff did not plead or argue orthopedist was ostensible agent of hospital, hospital not was responsible in respondeat superior for orthopedist. Sessa v Peconic Bay Med. Ctr.    

Workers Comp Defense   Note of Issue   Untimely  

First Department
WCB finding that contractor was plaintiff’s employee barred plaintiff from arguing otherwise in Labor Law §240(1) case and fact contractor’s motion to amend Answer to include defense was made 3-years after action commenced and 2-years after Note of Issue does not change preclusive effect of WCB finding nor does plaintiff’s failure to argue issue or contractor’s argument that it was not plaintiff’s employer at WCB hearing. Chen v 111 Mott LLC    

Sidewalk   Notice of Claim   Untimely   Reasonable Excuse   Prejudice   Raised For First Time  

Second Department
Petitioner’s excuse of misidentification for not timely serving Notice of Claim on NYCHA rejected where raised for first time on appeal and, in any event, misidentification is not a reasonable excuse. Incorrect accident address on untimely Notice of Claim was proof of prejudice to NYCHA. Service of untimely Notice of Claim without leave of court was a nullity. Matter of Thomas v New York City Hous. Auth.    

Labor Law §240   Scaffold   Agent   Sole Cause   Indemnity  

First Department
Plaintiff who fell 30’ while dismantling scaffold granted summary judgment on Labor Law §240(1) where no safety line or place to attach harness was provided. Plaintiff could not be sole cause for not using elevator or stairs to access top of scaffold as no safety device was provided and, in any event, there was no proof he was told to use stairs/elevator and he testified foreman told him to “climb up the scaffolding.” Sub-contractors with authority to control installation/removal of scaffolding were agents or contractors for §240.

Building owner and management company granted summary judgment on contractual indemnity claims against apartment owners where agreement language unambiguous. Badzio v East 68th St. Tenants Corp.    

Labor Law §240   Labor Law §241  

First Department
Defendants granted summary judgment of Labor Law §§240(1) and 241(6) where plaintiff’s work of replacing ballast in light was routine maintenance not protected by §240 and plaintiff was not engaged in construction, excavation, demolition protected by §241. Caban v 1691 Fulton Ave. Hous. Dev. Fund Corp.    

Building Security   Out of Possession   Control   Duty   Renew   Reasonable Excuse  

Second Department
Building owner granted summary judgment on proof it was out of possession owner with no duty to provide security or control patrons of nightclub (tenant) where plaintiff was shot. Ability to reenter and terminate lease for violation of a specific condition did not raise issue of whether landlord retained control of premises.

Renewal was appropriate where landlord introduced new facts that would change result and provided reasonable justification for not initially including them. Ryals v West 21st St. Props., LLC    

Premises Liab   Dangerous Condition   Causation   Question of Fact  

Second Department
Landlord failed to eliminate all questions of whether there was a working smoke detector in apartment where both tenants were injured in kitchen fire as Fire Marshall testified no fire alarm was seen in the apartment, the building super did not know if one had been installed, and one plaintiff testified he did not hear a smoke alarm until after the kitchen was engulfed, even though both tenants testified there was a smoke detector before the fire. Rohan v Kew Realty, LLC    

MVA   Rear End   Comparative Fault   Nonnegligent Explanation   Premature Motion  

First Department
Plaintiffs entitled to summary judgment of comparative fault defense on plaintiff-driver’s affidavit that he was stopped at red light when struck in the rear by defendants’ vehicle and defendant-driver’s claim plaintiff stopped short did not raise an issue as defendants failed to show why their driver failed to keep a proper distance from plaintiffs’ vehicle. Defendant driver’s personal knowledge of accident rendered argument that motion was premature irrelevant. Rodriguez v New York Cross    

Attorney Fees  

First Department
Appellate Division increased percentage awarded to outgoing counsel from 45% to 75% based on its bulk of work, including obtaining summary judgment before comparative fault was removed as an impediment to summary judgment, and incoming firm’s claim outgoing counsel could not obtain a settlement offer was refuted by evidence they obtained an offer they deemed strategically too low to negotiate. Evans v Garcia    

(0 summaries)

About Matt McMahon

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