January 5, 2021 | Vol. 243

(6 summaries)

Labor Law §241   Slip/Trip   Snow/Ice   Industrial Code   NYC  

First Department

Worker who slipped and fell on snow/ice walking from guard booth to staircase at fenced in worksite granted summary judgment on Labor Law §241(6) based on industrial code §23-1.7(d) as outdoor area was a “walkway” based on defendants’ testimony that walkway was used by workers to access worksite and defendants were responsible to remove snow and salt the path. The Court distinguished interior pathways under §23-1.7(e) with outdoor walkways under §23-1.7(d). There was 1-dissent. Potenzo v City of New York

Negligent Hiring   Negligent Supervision   Battery   Respondeat Superior   Causation   Notice   Foreseeability   Punitive Damages  

First Department

Residential home facility granted summary judgment on respondeat superior as burning of nonverbal severely autistic resident with a heated potato masher by residential habilitation assistant(s) was outside scope of employment, but questions remained on negligent hiring where facility did not follow its own rules in checking references and following up on why one of the assistants was let go from his prior job even though it completed the mandatory criminal and abuse registry checks. Court noted that ‘the depth of the inquiry prior to hiring’ depends on the anticipated work and facility’s records reflected potential dangers from residential assistants without prior acts of violence, leaving question of reasonableness of inquiry to jury.

Facility failed to meet burden on negligent retention, training, and supervision claiming they had no notice of violent propensities because of the acknowledgement attacks could be foreseeable without prior acts of violence. It could not meet burden on causation by pointing to gaps in plaintiffs’ proofs.

Assistant claiming she did not participate in assault failed to meet burden for summary judgment where she did not establish what happened as a matter of law as her statement contradicted claim she didn’t know how resident was burned. Punitive damages might be warranted under facts. Sandoval v Leake & Watts Servs., Inc.

Wrongful Death   Pain/Suffering   Motion to Dismiss   Capacity to Sue   Bankruptcy  

Second Department

Defendants’ motions to dismiss granted to extent of dismissing wrongful death action where plaintiff-administrator was sole distributee and failed to list the lawsuit in his bankruptcy stripping him of capacity to sue for wrongful death which is a property right of distributees. Motions to dismiss pain/suffering claims for lack of capacity denied as claim is personal to estate on behalf of the decedent, not the distributees. Vinogradov v Bay Plaza Apts Co., LLC

Uninsured   Stay Arb   Vacate Default   Reasonable Excuse   Meritorious Action  

First Department

Counsel’s claim to be unaware of NY County rules as proffered law office failure for not opposing motion to stay arbitration on assumption court would first decide venue question where counsel timely served demand to change venue did not provide reasonable excuse for default since requirement to file motion to change venue was in state statutes and not local rules. Plaintiff demonstrated meritorious action, but it could not overcome lack of reasonable excuse. Matter of American Reliable Ins. Co. v Delmonte

Labor Law §241   Labor Law §200   Set Aside Verdict   Pain/Suffering   Materially Deviates   Waiver  

First Department

Argument that building owner should not have been included in same apportionment question as contractor on verdict sheet unpreserved where counsel representing both affirmatively suggested they be put together with a slash between their names. 90%/10% owner-contractor/plaintiff apportionment of liability on Labor Law §§ 241(6), 200 and negligence claims not against weight of evidence where plaintiff would not have seen drain hole behind threshold he stepped over when entering mechanical room. Lumping owner/contractor liability together, owner conceded that contractor’s notice of condition was evidence of its notice and verdict on §200 and negligence upheld.

$1mil/$750,000 past/future pain/suffering did not materially deviate from reasonable compensation for ankle injury resulting in complex regional pain syndrome. $99,000 future medical expenses supported by life-care plan that jury proportionately reduced by its calculation of life-expectancy and $705,370/$1mil past/future lost earnings were established with reasonable certainty based on contemporaneous hours worked rather than previous full time work more than a decade earlier. McCullough v One Bryant Park

Comment: Verdict amounts were obtained from the lower court decision.

Med Mal   Severance   Note of Issue   Discovery   Prejudice  

Second Department

Motion to sever third-party action by anesthesiologist group implead by defendant 8-months after Note of Issue granted to avoid further delay in 6-year old action and avoid prejudice to third-party defendant who did not have adequate opportunity to conduct discovery. Tank v Westchester County Health Care Corp.

(17 summaries)

Labor Law §240   Labor Law §241   Labor Law §200   Control   Dangerous Condition   Industrial Code   Gravity Risk   Unknown Cause  

Second Department

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

Med Mal   Informed Consent   Accepted Practice   Causation   Expert Aff   Conclusory  

Second Department

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

Labor Law §240   Workers Comp Defense   Alter Ego  

First Department

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

Slip/Trip   Prior Written Notice   Create Condition   Dangerous Condition  

Second Department

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.

MVA   Pedestrian   Turning Vehicle   Admissibility   Feigned Issue   Premature Motion  

Second Department

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

Premises Liab   Slip/Trip   Snow/Ice   Notice   Strike Note of Issue   Discovery   IME/DME  

Second Department

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

Premises Liab   Out of Possession   Duty   Building Code   § 7-210  

First Department

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

Labor Law §200   Premises Liab   Control   Indemnity  

Second Department

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

Building Code   Notice   Foreseeability  

Second Department

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

Premises Liab   Slip/Trip   Snow/Ice   3rd Party Contractor   Espinal   Indemnity  

Second Department

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

Premises Liab   Slip/Trip   Sidewalk   Duty   § 7-210   Homeowner Exception   Create Condition   Premature Motion   Speculation   NYC  

Second Department

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.

Ins. L. § 3420(a)(2)  

Second Department

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.

Premises Liab   Slip/Trip   Sidewalk   Duty   Espinal   Amend Answer   Indemnity   Prejudice  

First Department

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.

MVA   VTL §1104   Reckless   Causation   Turning Vehicle   There to be Seen   NYC  

Second Department

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

MVA   Rear End   Comparative Fault   Admission   Feigned Issue  

Second Department

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

Serious Injury   ROM   Causation   Untimely   Raised For First Time  

Second Department

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.

Vacate Default  

Second Department

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.

(0 summaries)

About Matt McMahon

Civil trials and appeals since 1984
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