July 12, 2021 | Vol. 270

(3 summaries)

Settlement   General Release  

First Department
Acknowledging the overwhelming role of emails today, the First Department removes requirement for counsel’s name to be retyped in email for binding settlement, overturning its prior precedents, finding $400,000 underinsured settlement in emails binding without counsels’ names retyped, rejecting injured counsel’s attempt to renege on settlement in favor of $975,000 arbitration decision rendered prior to but received after the email agreement. The Court found the amount was the only material term and the required release was ministerial, not material. A request to execute with speed to avoid injured party reneging did not alter offer/acceptance/consideration analysis and mutual mistake inapplicable where either party could have easily checked status of the decision. Matter of Philadelphia Ins. Indem. Co. v Kendall    

Comment: Since the Second Department followed the First Department’s previous rule, the applicability of the new rule in the Second Department is unclear.

Set Aside Verdict   Serious Injury   Preclusion   Admissibility   Experts   Untimely   Prejudice  

Second Department
Verdict of no serious injury set aside and remanded for new trial before different judge where trial court erred in striking testimony of IME doctor offered by plaintiff and “excessively inject[ed} herself in the questioning of the plaintiff’s treating neurologist in a manner designed to cast doubt on the foundation of his opinions. The trial court’s excessive questioning was not preserved for appeal but nonetheless required reversal. The motion to strike IME doctor’s testimony after close of evidence was untimely and prejudicial and any defects in his testimony went solely to credibility, not admissibility. Troyano v Burris    

MVA   Workers Comp Defense   Graves Amendment   Grave Injury   There to be Seen  

Second Department
Plaintiff’s co-worker granted summary judgment on worker comp exclusivity clause on proof they were co-workers in course of their employ at time of accident and plaintiff-passenger received WC benefits. Lessor of vehicle to plaintiff’s employer granted summary judgment on Graves Amendment where proof showed it was in business of leasing, accident happened during lease period, and it did not contribute to accident through negligent maintenance.

Plaintiff’s motion for summary judgment against other vehicle owner and driver denied where that drive had right-of-way and plaintiff failed to show driver did not use reasonable care to avoid the accident. Lower court, however, erred in searching record and granting other driver/owner summary judgement where evidence did not establish as a matter of law driver was free from negligence. Co-worker’s cross motion to dismiss cross-claims by other vehicle denied as they could recover against co-worker if plaintiff suffered a grave injury. Caputo v Brown    

(8 summaries)

Premises Liab   Stairs   Create Condition   Notice   Untimely   Building Code   Experts  

First Department
Lower court properly refused to consider affidavit of plaintiff’s notice-witness not disclosed or produced until after defendants moved for summary judgment. Defendants met burden on testimony showing they did not create or have actual or constructive notice of crack on edge of stair, but plaintiff’s expert and photographs raised issues of whether condition violated building code and existed for years prior to the accident. Martinez v 560-568 Audubon Realty LLC    

Set Aside Verdict   Pain/Suffering   Materially Deviates   Serious Injury  

Second Department
Plaintiff’s motion for additur or to set aside verdict as against weight of evidence where jury found permanent consequential limitation and awarded $50,000/$58,900 past/future pain/suffering and $26,100/$165,000 past/future medical expenses for 4/38 years and no future lost earnings denied as jury could reject testimony by plaintiff and his expert of a TBI and find only soft tissue wrist injury and insignificant head injury on proof plaintiff returned to high stress security job that included responding to active shooter and biological weapons attacks within three days. Awards did not materially deviate from reasonable compensation. Mehmeti v Miller    

Malpractice   Notice of Claim   Actual Knowledge   Prejudice   Reasonable Excuse   Renew  

Second Department
Petition to deem late Notice of Claim timely served nunc pro tunc granted where independent review of records suggested petitioner’s leg injury was potentially caused by positioning during surgery and operative report noted hospital employees positioned petitioner, even though surgery was performed by independent attending. Petitioner met burden of showing no prejudice and defendants failed to put forth particularized indicia of prejudice. Reasonable excuse for delay was not necessary where actual knowledge and lack of prejudice shown. Matter of Duke v Westchester Med. Ctr.    

Premises Liab   Prior Written Notice   Duty   Create Condition  

Second Department
Society that requested tree well installation a decade before plaintiff’s fall granted summary judgment as it had no duty since it did not own, occupy, control, or make special use of the area. Abutting landowners granted summary judgment on proof they did not create or make special use of the area and there was no alleged violation of a statute creating a duty and civil right of action. Village granted summary judgment on proof it did not have the required prior written notice as the tree well was part of the sidewalk, it did not create an immediately dangerous condition when the tree well was installed, and it did not make a special use of the area. O’Brien v Village of Babylon    

Assumption of Risk   Warnings  

Second Department
Experienced ice skater assumed risk of uneven ice surface where she skated backwards several times around prominent orange cone placed by defendant to warn of condition caused when expansion joint under peer periodically buckled. Goulet v Pier 2 Roller Ring at Brooklyn Bridge Park    

Premises Liab   Create Condition   Open/Obvious   Inherently Dangerous   NYC  

Second Department
Landowners failed to meet burden for summary judgment where plaintiff tripped on decorative fence they installed between curb and public sidewalk abutting their property as surrounding circumstances, including lighting conditions and color of fence, left questions of whether condition was open/obvious and not inherently dangerous. Plaintiff’s motion for summary judgment against landowners and NYC denied as questions remained of whether either was negligent in maintaining area in a safe condition. Rosenman v Siwiec    

Premises Liab   Duty   Open/Obvious   Inherently Dangerous  

Second Department
Rope strung between two planters separating outdoor seating area from sidewalk was an open/obvious condition that was not inherently dangerous entitling restaurant to summary judgment. Morrissette v Kismat Indian Rest., Inc.    

Premises Liab   Stairs   Wet Floor   Notice   Last Inspection  

Second Department
Building owner failed to meet burden for summary judgment as testimony of general cleaning procedures and assumption of when a security guard would have inspected based on those procedures was insufficient to establish lack of constructive notice. Roland v Jackson Terrace Apts.    

(0 summaries)

About Matt McMahon

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