July 12, 2016 | Vol. 10

MUST READS
(3 summaries)

Special Duty   Discretionary Actions   Police   EMS   Governmental Immunity  

First

Police and EMT responded to call to aid bipolar person. After entering the ambulance, the person ran into a building, up to the roof, and started down the fire escape. Defendants were escorting him down the fire escape when he fell. Plaintiff failed to show that police and EMT owed him a “special duty,” other than that owed to the general public. Decisions of police officers and EMT are discretionary and protected by governmental immunity. Kinsey v City of New York


False Arrest   Search Warrant   Probable Cause   Assault   Strip Search   4th Amendment  

First

Proof that police relied on a confidential informant who purchased marijuana on three separate occasions in the week prior to the issuance of a warrant provided probable cause for the search warrant. Evidence showing that 37 bags of marijuana were recovered from plaintiff’s bedrooms during the search provided probable cause for the arrest. Probable cause is a complete defense to false arrest, false imprisonment and malicious prosecution. Having failed to show a collateral objective, probable cause is a defense to abuse of process. Court, however, found triable issues of fact regarding assault and battery claims for strip search during the arrest. A strip search for misdemeanors or other minor offenses violates the fourth amendment unless there is proof that the arrestee concealing weapons or contraband, which was not present in the case. Shields v City of New York


De Minimus   Increased Risk   Contractor Liab   Espinal   Expert Aff  

First

Christmas tree shops, the shopping center where it was located, and the manufacturer of the shopping cart corral where plaintiff tripped and fell were all entitled to summary judgment. Specifications and photographs showed that the metal bar across the opening of the shopping cart corral was between 1/8” and 1/4″ above the pavement, was visible with its metallic color sharply contrasting the black asphalt parking lot, and lighted by ambient light and multiple lampposts at night. Plaintiff could not say that she looked at the bar before tripping on it and her estimation that it was more than 1’ above the ground was only a guess and not probative. Based on the “physically insignificant” height of the bar, third-party defendant manufacturer did not launch an instrumentality of harm under Espinal.Myles v Spring Val. Marketplace, LLC

NOTEWORTHY
(11 summaries)

Labor Law §240   Labor Law §241   Labor Law §200   Gravity Risk   Industrial Code  

First

Plaintiff should not have been granted summary judgment on 240(1) claim because there were issues of fact regarding whether accident was result of gravity or usual and ordinary dangers of the worksite. Plaintiff was standing on a motorized wheelbarrow on top of a hill, talking to a coworker, when the wheelbarrow slid down the hill causing plaintiff’s injuries. Several claims based on violations of the industrial code were dismissed as not being specific or applicable, but several others created questions of fact. Ankers v Horizon Group, LLC


Labor Law §240   Labor Law §241   Prime Contractor   Privity   Venue  

First

Defendant, which showed that it was not the owner, general contractor, or statutory agent of the owner or general contractor, but at most a prime contractor, could not be liable under Labor Law for injuries to employees of other contractors without privity. Since the case was dismissed against the defendants whose principal places of business were the basis for venue in the Bronx, venue was properly changed to Richmond. Villanueva v 80-81 & First Assoc.


Bicycle   Parked Vehicle   Proximate Cause  

First

Defendant’s truck was illegally parked in a no standing zone (34 RCNY 4-08(a)(3)) when plaintiff swerved toward a bus to avoid the UPS truck, and jumped from his bicycle to avoid being slammed into the UPS truck as the bicycle was dragged by the bus. A jury could reasonably conclude that the accident was a foreseeable consequence of the illegal parking and summary judgment on proximate cause was denied. Santana v MTA Bus Co.


MVA   Cut Off   Sudden Stop   Accident Report  

First

Defendant, driver of car which allegedly cut off bus causing it to suddenly stop, resulting in plaintiff’s decedent falling, was properly denied summary judgment on his testimony that he was driving the vehicle, was in the area at or near the time of the accident, and that his version was substantially consistent with the bus driver’s version. Because it was not the only evidence relied upon by Supreme Court it was proper to consider the unauthenticated accident report prepared by the bus driver which listed the defendant’s license number or one or close to it. Brickman v New York City Tr. Auth.


Premises Liab   Stairs   Notice  

Second Deptartment

Plaintiff fell after stepping on top step which crumbled in building owned by his parents. Plaintiff claimed that stair was constructed of untreated wood which had deteriorated. Defendant showed that it had no notice of the deteriorating condition and plaintiff failed to raise an issue of fact in response. There was no claim that defendant created the condition. Monastiriotis v Monastiriotis


Innocent Plaintiff   Comparative Fault   Venue   Pileup  

First

Plaintiff argued that since he was stopped at light when he was struck in the rear in a multi-car pile up, he should be granted summary judgment even if questions of fact exist as to which of the defendants, or both, were negligent. The Court rejected the argument explaining that an “innocent plaintiff,” is only entitled to partial summary judgment on the issue of comparative fault. Defendant’s testimony, submitted by the plaintiff, raise an issue as to whether one of the cars was stopped at the time it was hit and then propelled into the plaintiff. Change of venue from Bronx of Richmond was proper based on plaintiff’s EBT testimony that he moved from the Bronx shortly after the accident.

Plaintiff failed to show documentary evidence supporting claim on motion that his move was temporary. Motion was proper, even if late, because it was based on false statements in the complaint and defendants moved shortly after plaintiff’s deposition. Oluwatayo v Dulinayan


False Arrest   Malicious Prosecution   Malice   Probable Cause  

First

Summary judgment in favor of defendants upheld where defendant did not induce authorities to arrest the plaintiff but merely provided police with information and cooperated with them. There is no evidence that the arrest and prosecution for theft and drug possession was due to an improper motive and the grand jury indictment raises a presumption of probable cause which plaintiff did not rebut. Patrick v United Parcel Serv., Inc.


Turning Vehicle   There to be Seen  

First

Plaintiff entitled to summary judgment on proof that defendant vehicle traveling in the opposite direction made a sudden left turn across her vehicle, showing that defendant did not ensure that it was safe to turn and failed to see that which was there to be seen. Defendant failed to raise an issue of fact as to claim that plaintiff could have avoided the accident. Abboud v Pawelec


Assumption of Risk   Skiing   Inherent Risks   Reckless  

First

Defendant skier was not entitled to summary judgment where he skied into a crowd of people at the base of the beginner slope at 20 to 30 km/h with little control. Reckless, intentional, or so negligent as to create an unreasonably increased risk, are not part of the inherent risks in a sport which are assumed by a participant. Horowitz v Chen


Competency   Capacity to Sue  

First

Defendant’s motion to stay trial, for additional discovery, for leave to amend answer to add lack of capacity as a defense, and for appointment of a guardian ad litem was properly denied. A person of unsound mind, but not judicially declared incompetent, has the capacity to sue and defendant failed to present evidence that plaintiff was incapable of protecting his rights. Rivera v New York City Tr. Auth.


Conditional Order   Strike Answer   Discovery  

First

Lower court providently exercised its discretion in issuing conditional order striking third-party defendant’s answer for repeated failures to comply with discovery. Fitzgerald v City of New York

IF YOU MUST READ
(0 summaries)

About Matt McMahon

Civil trials and appeals since 1984
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