January 8, 2019 | Vol. 140

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MUST READS
(4 summaries)
NOTEWORTHY IF YOU MUST READ

Settlement  

First

Case marked settled at conference attended by unidentified per diem attorney for plaintiff restored to active trial calendar where none settlement terms were recorded by the court or further “recorded, memorialized, or filed with the County Clerk,” and lacked the necessary formalities for it to be deemed a binding settlement made in “Open Court.” Grant v Almonte

Comment: It is good practice to make sure that the court notes at least the amount of the settlement and preferably the attorneys’ names on its records before leaving court.

Premises Liab   Slip/Trip   Stairs   Vacate Jud   Jury Charge   Law of the Case   Preclusion  

First

Judgment on $529,964 general verdict for plaintiff’s fall on last step vacated and remanded for new trial because it could have been based on incorrectly charged theories. There was insufficient evidence to support riser height as a separate theory although jury could consider it as part of optical confusion theory. Plaintiff’s expert should not have been allowed to testify on height of handrail where plaintiff was equivocal about using it that day and she did not try to grab it during fall. Prior order finding building code not applicable to the staircase precluded only use of that building code, not plaintiff’s optical illusion theory. Lower court’s answer to jury note asking whether stairs were up to code incorrectly stated there was no evidence that it was or wasn’t violated instead of instructing that code was inapplicable. Landau v Balbona Rest. Corp.


Labor Law §240   Scaffold  

First

Fact that one end of scaffold dropped causing everything on scaffold to fall onto plaintiff was prima facie evidence Labor Law §240(1) violation and plaintiff did not have to prove a specific defect. Kind v 1177 Ave. of the Ams. Acquisitions, LLC


MVA   Rear End   Workers Comp Defense   Statute of Limitations   Amend Complaint   Amend Answer   Respondeat Superior   Serious Injury   Untimely   Uncertified Records  

First

One plaintiff-passenger in 1st car granted leave to amend Complaint to add claim against driver’s employer after statute of limitations under relation-back theory [CPLR 203(f)] because claim arose from same occurrence, employer was united in interest with employee-driver, and employer knew or should have known it would have been included absent mistake. Respondeat superior makes out unity of interest and notice. “Mistake” doesn’t have to be an “excusable” mistake.

Cross-motion to amend Answer to include workers’ comp. defense by Defendant-employer in consolidated cases by all passengers in 1st car granted, even though it could have been raised initially, since disputed employment status made amendment not devoid of merit.

Summary judgment on serious injury denied to 2-plaintiffs where motion was untimely and there was no timely serious injury motion filed and uncertified records not authenticated under CPLR 4518. Also denied on liability but granted on comparative fault where only evidence was absence of plaintiffs’ fault.

Summary judgment granted 3rd car on proof it hit 2nd car after 2nd care rebounded from hitting 1st car and did not push it back into 1st car. Ramirez v Elias-Tejada

NOTEWORTHY
(2 summaries)
MUST READS IF YOU MUST READ

Premises Liab   Slip/Trip   Open/Obvious   Warnings  

First

Apple orchard granted summary judgment were sloping, rocky condition of road plaintiff slipped on was open/obvious and inherent in the nature of an apple orchard that a person should have anticipated, and defendant had posted signs warning of the risk. Mangiafridda v Masker Fruit Farms, Inc.


Labor Law §240   Scaffold   Question of Fact  

First

Plaintiff denied summary judgment where he testified that scaffold shook causing his foot to get caught in gap between scaffold and wall, but foreman testified that plaintiff stated he was injured lifting equipment without mentioning scaffold when he reported it day after accident. Guerrero v 115 Cent. Park W. Corp.

IF YOU MUST READ
(1 summaries)
MUST READS NOTEWORTHY

Personal Juridiction  

First

Defendant, managing member of LLC with an Arizona website that sells holistic supplies on the Internet not subject to New York jurisdiction where plaintiff failed to show that defendant purposefully transacts business in New York or that there was a connection between defendant’s transactions and the defamatory statement. Concotilli v Brown

About Matt McMahon

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