Labor Law §240 Labor Law §241 Labor Law §200 Control Dangerous Condition Industrial Code Gravity Risk Unknown Cause
Defendants granted summary judgment on Labor Law §§240(1), 241(6), 200 and negligence claims where plaintiff’s foot slipped off bathtub rim while other foot was on the ground when installing tiles in vacated apartment. With one foot still on the ground there was no elevated-related hazard protected by §240. Since plaintiff could not identify any defect or slippery substance on bathtub rim, industrial code §23-1.7(d)(slipping hazard) did not apply. There was no premises defect and defendants did not retain control of plaintiff’s work requiring dismissal of the §200 and negligence claims. Villa v East 85th Realty, LLC
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Med Mal Informed Consent Accepted Practice Causation Expert Aff Conclusory
Plaintiff’s opposition to summary judgment, where dermatologist removed suspected cyst that disappeared before surgery and later turned out to be a lymph node, raised issue on whether surgery was unnecessary, and defendant’s expert’s conclusory opinion of no causation failed to shift burden on that issue. Generic consent form did not establish entitlement to summary judgment of lack of informed consent and defendant’s expert failed to confirm form complied with accepted standards and that a reasonably prudent, fully informed patient would have consented to the surgery. Questions remained on whether defendant informed plaintiff about the procedure, alternatives, and associated risks. Kadanoff v Whitlow
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Labor Law §240 Workers Comp Defense Alter Ego
Separate LLCs that owned and operated nursing home granted summary judgment of Labor Law §240(1) claim under workers compensation exclusivity clause on proof both LLCs and a separate holding company were formed at the same time for the purpose of owning and operating the nursing home as a single joint venture, that the holding company wholly owned the other 2-LLCs, filed taxes for the 3-LLCs under its EIN number, had the same managing-partner, and held itself out as a single entity. The plaintiff failed to raise an issue in opposition. There was 1-dissent. Fuller v KFG Land I, LLC
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Slip/Trip Prior Written Notice Create Condition Dangerous Condition
Village denied summary judgment where it contracted for pavement renovation where plaintiff tripped, but road was not within village limits and its prior written notice law applied only to roads within village limits. Village also failed to eliminate questions of its role in creating the condition. Contractor who completed repavement can be liable where it creates a dangerous condition and failed to meet burden of showing it did not perform any work on the roadway or that it did not create the dangerous condition. Downing v J. Anthony Enters., Inc.
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MVA Pedestrian Turning Vehicle Admissibility Feigned Issue Premature Motion
Plaintiff granted summary judgment on her own affidavit stating she was crossing in crosswalk, with light, when defendant-driver made left turn striking her without yielding right of way. Driver’s affidavit raised only feigned issue where it contradicted his admission in police report. Defendants failed to show additional discovery might lead to relevant evidence or that essential facts to oppose motion were exclusively in plaintiff’s possession. Gooden v EAN Holdings, LLC
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Premises Liab Slip/Trip Snow/Ice Notice Strike Note of Issue Discovery IME/DME
Landlord failed to meet burden for summary judgment as their affidavits claiming they did not have notice of an icy condition or have trouble walking on the driveway at 9 PM the night before the accident did not establish condition was not visible as a matter of law or that it did not exist for sufficient time to be corrected. Defendants cannot meet burden by pointing to gaps in plaintiff’s proofs.
Defendants’ motion to strike Note of Issue and compel plaintiff to appear for neurological IME/DME denied where certificate of readiness was accurate, stating orthopedic IME/DME had been scheduled and discovery was otherwise complete, as neurological exam was demanded after parties signed stipulation at certification conference and defendant had ample opportunity to demand the exam prior to the stipulation. Jablonsky v Nerlich
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Premises Liab Out of Possession Duty Building Code § 7-210
Out of possession building owner granted summary judgment where street vault door fell on linen delivery person’s head as he was leaving tenant-restaurant basement where owner was not required to maintain vault door under lease, superintendent’s occasionally accessing basement for emergencies did not create duty to repair/maintain the door, it was not a structural defect that violated a specific statute. Underside of street vault door it is not part of sidewalk under administrative code §7-210. Matias v West 16th Realty LLC
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Labor Law §200 Premises Liab Control Indemnity
Motions for summary judgment of Labor Law §200 and negligence claims made by defendant/third-party plaintiff-homeowners and third-party defendant-contractor, plaintiff’s employer, granted where plaintiff’s claim that dangerous snow/ice condition caused A-frame ladder he was using to descend from second floor to fall directly contradicted his testimony that there was no snow/ice where he was working on date of accident and homeowners did not control work where they only approved work after it was completed. Mondragon-Moreno v Sporn
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Building Code Notice Foreseeability
Building granted summary judgment on proof it had no notice of prior criminal conduct in building where infant-plaintiff was attacked in vestibule and alleyway, making assault unforeseeable. Calle v Elmhurst Woodside, LLC
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Premises Liab Slip/Trip Snow/Ice 3rd Party Contractor Espinal Indemnity
Snow removal contractor and subcontractor each failed to meet burden for summary judgment without proof their snow removal efforts did not create or worsen condition, launching an instrumentality of harm under Espinal.
Contractor denied summary judgment of breach of contract for failure to procure insurance where insurance excluded snow removal. Subcontracted granted summary judgment of breach of contract for failure to procure insurance on proof it procured insurance. Georges v Resorts World Casino N.Y. City
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Premises Liab Slip/Trip Sidewalk Duty § 7-210 Homeowner Exception Create Condition Premature Motion Speculation NYC
Abutting landowner granted summary judgment where plaintiff tripped on abutting sidewalk under owner-occupied homeowner exception of administrative code §7-210 and she did not create condition directly or through special use. Argument that motion was premature by plaintiff and NYC rejected as mere speculation. Branach v Belvedere VIII, LLC
Comment: Sponsor of condominium whose sidewalk plaintiff tripped on granted summary judgment on proof it sold all units 9-years before accident establishing it owed no duty to plaintiff. Mere speculation that discovery would uncover relevant evidence did not render motion premature. Branach v Belvedere VIII, LLC.
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Ins. L. § 3420(a)(2)
Carrier granted summary judgment dismissing Ins. L. §3420(a)(2) action to recover unsatisfied $10mil judgment even though it could not show it properly cancelled policy for non-payment where accident occurred 17-months past policy expiration date. Under NJ law carrier’s failure to notify insured policy was not being renewed kept it effective for a “reasonable time” after expiration date but more than 1-year past expiration date was not a reasonable time. House v Hartford Cas. Ins. Co.
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Premises Liab Slip/Trip Sidewalk Duty Espinal Amend Answer Indemnity Prejudice
Commercial sub-tenant of retail unit abutting sidewalk where plaintiff tripped denied summary judgement as questions remained of whether it entirely displaced proprietary-lessee’s statutory obligation to maintain sidewalk where it assumed tenant’s responsibilities under main lease creating a duty towards plaintiff, and whether it was contractually obligated to indemnify lessor and building owner. Sub-tenant was not prejudiced by lessor’s motion to amend Answer to assert cross claim for contractual indemnity where original Answer put it on notice of claim it was supposed to be named as additional insured.
Property manager denied summary judgment of contractual indemnity claim by owner on question of whether it entirely displaced owner’s duty to maintain sidewalk. Summary judgment for owner and lessor against sub-tenant for contractual indemnity premature as duty to indemnify depends on extent of liability found. Healy v 169 E. 69th St. Corp.
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MVA VTL §1104 Reckless Causation Turning Vehicle There to be Seen NYC
NYC granted summary judgment on proof officer’s pursuit of plaintiff was not reckless under VTL §1104 and initiation of pursuit was not cause of accident. Defendants, driver, employer, and owner of vehicle that made left turn and struck plaintiff’s decedent’s motorcycle failed to make out prima facie entitlement to summary judgment where questions remained on whether decedent’s motorcycle was so close to intersection to make defendants’ turn safe. Gaudio v City of New York
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MVA Rear End Comparative Fault Admission Feigned Issue
School bus driver granted summary judgment on her affidavit and certified police report showing her bus was stopped when struck in the read by defendants’ school bus and plaintiffs are no longer required to show freedom from comparative fault for summary judgment on liability. Defendant-driver’s affidavit which contradicted admission he made in police report immediately after accident raised only feigned issue. Dolores v Grandpa
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Serious Injury ROM Causation Untimely Raised For First Time
Affirmed reports from plaintiff’s treating physician showing limited ROM 14-months after accident, and another physician who 1-year and 4-years after accident examined plaintiff and MRI films finding the spine and shoulder injuries were caused by the accident raised issues in opposition to defendants’ prima facie showing of entitlement to summary judgment on serious injury. Plaintiff’s argument lower court erred in denying cross-motion for summary judgment on liability made 4-months after deadline not considered where raised for the first time in reply brief. Ramirez v L-T. & L. Enter., Inc.
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Vacate Default
Pro se plaintiff’s motion for summary judgment denied where defendants were previously granted summary judgment on default. Plaintiff must first move to vacate default. Deac v Il Postino, Inc.
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