| MUST READS (5 summaries) | |||
| NOTEWORTHY | IF YOU MUST READ | ||
 Veterans group that paid rent for unemployed veterans granted summary judgment dismissing claim of estate of veteran who was attacked by veteran he shared 2-bedroom apartment with under separate leases as defendant had no duty to control the assailant’s conduct or to protect the decedent where it did not have the authority or ability to control the assailant’s actions. A duty to control the acts of the third party may arise “where there is a relationship either between defendant and a third-person tortfeasor that encompasses defendant’s actual control of the third person’s actions, or between defendant and plaintiff that requires defendant to protect plaintiff from the conduct of others.” Duncan v Black Veterans for Social Justice, Inc. ✉ |
| Defendant’s motion to renew motion for summary judgment after lower court granted permission to amend its Answer to include a probable cause defense denied as amendment was not “new facts” where the facts were known and available at the time defendant made the original motion which was denied for failure to assert a probable cause defense. Nunez v Yonkers Racing Corp. ✉ Comment: Related decision denied second motion to renew renewal where affidavits did not add additional facts that would change the outcome, provide reason why the affidavits were not submitted with the original motion, and successive motions for the same relief are disfavored. Nunez v Yonkers Racing Corp. |
| Sanitation worker’s petition to serve late Notice of Claim 4-months after he tripped and fell on sidewalk granted where line of duty report prepared by sanitation supervisor shortly after the accident listed the location of the accident and plaintiff’s description that he fell in a hole on the sidewalk “due to the depth difference,” giving NYC actual knowledge of the essential elements of the claim within 90-days and concomitantly meeting plaintiff’s burden of showing NYC would not be prejudiced by the late Notice Claim. NYC failed to submit particularized evidence of prejudice to its ability to defend on the merits. Lack of a reasonable excuse for delay in filing Notice of Claim insufficient to deny petition. Matter of Brown v City of New York ✉ |
| Claimant’s motion for leave to serve late Claim denied where state police accident report stating electric scooter rider struck [state police] vehicle that was stopped at a red light protruding into crosswalk did not give state actual knowledge of the essential elements of the Claim which alleged substantially different acts of negligence and claimant failed to provide a reasonable excuse for not serving a timely Claim. Her prior attorney’s failure to properly investigate was not a reasonable excuse and she did not explain the several month gap before hiring her new attorney. Dominguez v State of New York ✉ |
| Village granted summary judgment dismissing claim of pedestrian who tripped and fell on a curbstone/step on public sidewalk on proof it did not have prior written notice of the condition shifting burden to show it created the condition to plaintiff which plaintiff failed to meet. Abutting landowner granted summary judgment on proof he did not create the condition or make special use of the curbstone/curb on proof his use was “the normal intended use of the public way” and he did not derive a special benefit different from the public. Morales v Village of Ossining ✉ |
| NOTEWORTHY (16 summaries) | |||
| MUST READS | IF YOU MUST READ | ||
| County granted summary judgment dismissing claim of motorcyclist who crashed due to debris on roadway where the Notice of Claim described the location of the accident only as “on, in and around” a specified road and a photograph attached to the Notice of Claim did not give it enough information to investigate the claim. Bourque v County of Dutchess ✉ |
| Motion for judgment as a matter of law or to set aside verdict finding laboratory that negligently reported plaintiff’s drug test as positive, causing his probation to be extended by 11 weeks, denied where there was a rational path for the jury to reach its verdict. Award materially deviated from reasonable compensation and was set aside unless plaintiff stipulated to reduce $535,000 award to $100,000. Landon v Kroll Lab. Specialists, Inc. ✉ |
| Defendants met burden for summary judgment dismissing so much of malpractice claim for decedent’s initial admission to hospital and discharge 6-days later on expert’s opinion that they did not depart from accepted practice during that admission, which included a hernia repair surgery, by discharging him after 6-days and that the treatment was not a proximate cause of decedent’s death the following day from aspiration pneumonia when decedent vomited during a second surgery to address an infection. Plaintiffs’ expert raised issues in opposition by opinions that defendants departed from accepted practice by prematurely discharging decedent without recognizing signs of infection, including rapid heart rate and high WBC or instructing decedent to limit his diet and those departure proximately caused the need for the second surgery that resulted in decedent’s death. Balgobind v Long Is. Jewish Med. Ctr. ✉ |
| NYC met burden for summary judgment dismissing plaintiff’s claim for fall in a pothole on affidavits of searchers showing it had no prior written notice of the defect. Plaintiff failed to raise an issue in opposition by testimony of a NYC DEP claims specialist and work order purportedly showing it had notice of the defect and need for repair from an inspection several weeks before plaintiff’s fall where the witness testified he was not familiar with that type of work order and only that it was ‘possible’ someone inspected the area weeks before the accident. DEP engineer averred that the inspection was 11-days before plaintiff’s fall and NYC has 15-days to cure defect under administrative code § 7-201(c)(2). Williams v New York City Dept. of Transp. ✉ Comment: This decision recalled, vacated, and replaced the Court’s prior decision, reported in Vol. 5/16/23, on reargument with the same result. |
| Plaintiff’s made out prima facie entitlement to summary judgment on Labor Law §240(1) on worker’s testimony he fell in hole in work platform when plywood placed over the hole shifted under his foot because it was not nailed down and was not marked with the word “hole.” Defendants raised issues of fact on sole proximate cause by witnesses showing it was plaintiff’s job to safely secure the coverings over the holes, he personally placed the plywood over the hole he fell in without nailing it down or marking it as “hole” as required by the safety protocol, and he did not use the available fall safety system that included appropriate tie off points. Gamez v New Line Structures & Dev., LLC ✉ |
| Owner and driver of vehicle that struck infant-plaintiff on a bicycle granted summary judgment on proof vehicle was traveling at 15-20 mph, had only 2 seconds to react when the bicycle attempted to cross the street midblock coming out from a parked van, establishing the infant was the sole proximate cause of the injury for failing to yield the right of way under VTL §1143 which applies to bicyclists under VTL §1231. Lower court erred in not considering defendant-driver’s EBT testimony submitted for the first time on defendants’ reply where it was referenced and cited to in defense counsel’s original affirmation and plaintiff did not claim prejudice. A.B. v Waring ✉ |
| Plaintiff granted summary judgment on Labor Law §240(1) on his testimony that his supervisor instructed him to carry heavy rolls of tar paper down from a roof, he could not use an available pulley to raise/lower heavy materials, and that he was injured when he had to drop the tar paper rolk to keep from falling and grab the ladder which was not an adequate safety device to lower the rolls of tar paper. Correa v 455 Ocean Assoc., LLC ✉ |
| Hotel granted summary judgment dismissing claim of guest who was assaulted when an intruder attempted to enter the window of his ground-floor room on proof the incident was unforeseeable as it had no prior notice of the same or similar incidents at the hotel. Plaintiff’s proof of prior criminal activity at the hotel did not raise issues of fact of where they were not the same or similar to his incident. King v Diplomat Hospitality Group, LLC ✉ |
| Plaintiff granted summary judgment on her affidavit that defendants’ vehicle struck the rear of her vehicle near Baltimore, Md. Her affidavit notarized outside of NY without a CPLR 2309(c) certificate of conformity was not a fatal flaw as the defect can be ignored where it does not prejudice a substantial right (CPLR 2001). Defendants failed to show plaintiff was speeding or failed to maintain a proper lookout. The Court does not give the details of the proofs. Willingham v LeJarde ✉ |
| Building owner and management company granted summary judgment dismissing plaintiff’s claim for being struck by freight elevator doors on proof the elevator was not defective and they lacked actual or constructive notice of any defect. Elevator maintenance company granted summary judgment on proof it lacked actual or constructive notice of any defect and “did not fail to use reasonable care to correct a condition of which it should have been aware.” Plaintiff’s expert’s unfounded, conclusory, speculative opinions did not raise an issue of fact in opposition. The Court does not give the details of the proofs. Xholi v 150 E. 42 Holdings, LLC ✉ |
| Defendants failed to meet burden for summary judgment where plaintiff slipped and fell on snow/ice on subway staircase by describing only their general cleaning principles without proof of the last time the staircase had been inspected/cleaned, leaving questions of whether they had constructive notice of the condition. Plaintiffs cross-motion for discovery granted. Islam v City of New York ✉ |
| NYC granted summary judgment dismissing claim of plaintiff who stepped in hole in outdoor basketball court as plaintiff voluntarily assumed the risk of suboptimal conditions which were open/obvious. Balgley v City of New York ✉ |
| Plaintiff’s experts failed to raise an issue in opposition to defendants’ prima facie showing of entitlement to summary judgment on serious injury without addressing the defendants’ experts’ opinions that plaintiff’s spine, shoulder, and knee injuries were degenerative and pre-existing or that the hernia was identified 3-years before and was not caused by the accident. Dinardo v Yeshiva Kehilath Yakov, Inc. ✉ |
| Delivery person injured while she was sorting packages in the rear of her double parked box truck when it was rear-ended by a truck as it tried to avoid hitting a tractor-trailer granted summary judgment dismissing all affirmative defenses of comparative fault. Castillo v Unique Roofing of N.Y., Inc. ✉ |
| Passenger injured when bus he was in rear ended another vehicle granted summary judgment on his affidavit and the certified police report establishing the bus driver failed to maintain a safe distance from the vehicle it struck. Defendant’s affidavit raised only a feigned issue in opposition where it contradicted his statements in the police report. Newkirk v Safe Coach Bus, Inc. ✉ |
| City granted summary judgment for trip and fall on raised portion of sidewalk on proof it did not have prior written notice of the defect and plaintiff and codefendant failed to meet burden of showing city created the condition, an exception to a prior written notice requirement. O’Connor v City of Long Beach ✉ |
| IF YOU MUST READ (2 summaries) | |||
| MUST READS | NOTEWORTHY | ||
| Dentists met burden for summary judgment dismissing malpractice claim for premature extraction of patient’s wisdom teeth on expert opinions that they did not depart from accepted practice and any departures did not cause plaintiff’s injuries. Plaintiff’s expert raised issues in opposition by conflicting opinions. Defendants failed to meet burden for summary judgment dismissing lack of informed consent claim. The Court does not give the details of the proofs. Cujcuj v Jayadevan ✉ |
| Defendants met burden for summary judgment on serious injury and plaintiff’s expert failed to raise an issue on whether her spine, shoulder, and knee injuries were degenerative or preexisting by conclusory opinion addressing the issue. The Court does not give the details of the proofs. Tamar v Allstate Dismantling Corp. ✉ |