July 14, 2020 | Vol. 219

(3 summaries)

CPLR 3404   Reasonable Excuse   Meritorious Action   Prejudice  

Second Department
Plaintiff’s motion to restore action to trial calendar 15-months after stricken for failure to appear denied. Counsel’s belief that interlocutory appeal stayed case did not excuse delay in moving to restore and plaintiff’s minimal activity during delay failed to rebut presumption of abandonment under CPLR §3404. Patriarca v Oreckinto

Med Mal   Late Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice  

Second Department
Motion to serve late Notice of Claim in brain-injury birth case denied. Late Notice of Claim served 4.5-years after birth without leave of court was a nullity. Action commenced 5-years after birth and motion for leave to serve late Notice of Claim 9.5-years after birth without giving excuse for the delay failed to provide reasonable excuse. Medical records did not evince malpractice, necessary to provide actual knowledge within 90-days, and plaintiff failed to establish NYCHHC was not prejudiced by the delay. W.Z. v New York City Health & Hosps. Corp.

Products Liab   Motion to Dismiss   CPLR § 3126   Discovery   Willful/Contumacious   Reasonable Excuse   Untimely  

Second Department
Defendants’ motion to dismiss products liability case granted under CPLR §3126 for plaintiff’s failure to provide discovery as required by conditional order to produce within 15-days or case dismissed even though provided several months later, before dismissal granted. Plaintiff’s failure to provide full and proper responses to discovery demands and a supplemental BP found willful/contumacious from the inadequacy of the responses and the repeated failures to provide responses and comply with court orders over an extended period of time. The conditional order became absolute when not timely complied with. Plaintiff’s counsel’s excuse that they could not contact the plaintiff did not provide a reasonable excuse. Cobo v Pennwalt Corp. Stokes Div.

(8 summaries)

MVA   VTL §1104   Reckless  

Second Department
Police officer and police department denied summary judgment where question remained on whether straddling double yellow line while passing cars without engaging lights/siren met reckless standard under VTL §1104 for officer responding to emergency. Rodriguez-Garcia v Southampton Police Dept.

Premises Liab   Slip/Trip   Wet Floor   Create Condition   Notice   Assumption of Risk   Last Inspection   Recurring Condition   Open/Obvious   Discovery  

Second Department
School denied summary judgment for plaintiff’s slip on wet floor from leaking roof while playing basketball. School showed it did not create the condition or have actual notice but failed to prove it was not a recurring condition. Absent proof of last cleaning/inspection school failed to eliminate question of constructive notice. Primary assumption of risk, not decided by lower court, properly before appellate court where defendant moved on that ground and it was fully argued in motion papers. Assumption of risk did not apply since the leaking roof was not open/obvious and it created a risk beyond those inherent in basketball. Asprou v Hellenic Orthodox Community of Astoria

Comment: In companion decision Court upheld denial of plaintiff’s motion to compel additional witnesses for failure to show witness provided by school was inadequate. Further discovery demands abandoned or palpably improper as they sought irrelevant information or were overbroad.Asprou v Hellenic Orthodox Community of Astoria

Premises Liab   Slip/Trip   Sidewalk   Question of Fact  

First Department
Abutting landowner denied summary on questions of fact of whether Con Ed or landowner owned the sidewalk vault and grate plaintiff tripped on. Owner’s affidavit stating vault and grate installed before they purchased building and that they were never told they were responsible for it countered by proof predecessor purchased and installed the non-conforming grate and required to maintain it. Predecessor’s installation also raised question of whether landowner made special use of grate where the power supplied by the transformers in the vault were only for its use. Saez v Sapir Realty Mgt. Corp.

Premises Liab   Building Code   Expert Aff   Conclusory  

First Department
NYCHA failed to show building code didn’t not fall within exception to grandfather rule where its director of Capital Projects Administration failed to show alterations did not equal or exceed 30% of building’s value. Defendant’s expert’s opinion that the pipe which injured plaintiff did not require installation because it did not carry a fluid exceeding 250° was conclusory. E. B.-W. v New York City Hous. Auth.

Comment: The Court noted that its prior decision in Ebron v New York City Hous. Auth., reported in Vol. 186 does not require a different result.

Directed Verdict   Set Aside Verdict  

Second Department
$255,525 judgment entered after jury verdict and reduction of pain/suffering award by court affirmed. Cosmetic laser center’s motion for directed verdict and to set aside as against weight of evidence denied where there was a rational path for the jury’s verdict based on a fair interpretation of the evidence. Plaintiff’s treating dermatologist opined that failure to test portion of skin given plaintiff’s complexion was negligent and proximately caused her injuries. Salas v Bellair Laser Ctr., Inc.

Vacate Default   Reasonable Excuse   Meritorious Action   Serious Injury   Degenerative   Expert Aff   Conclusory   Reargument   Renew   Appealable Order  

First Department
The court properly denied motion to renew/reargue order entered on default and further denied motion to vacate default under CPLR §5015 where plaintiff’s attorney failed to explain why he believed motion was adjourned, failing to show a reasonable excuse for the delay in making the motion to vacate until 3-months after dismissal based on law office failure. Plaintiff failed to include opposition papers, including medical affirmations, with her motion to renew/reargue. Court would have denied motion to vacate if considered as plaintiff failed to produce medical evidence connecting injury to accident other than medical provider’s conclusory statement that did not address pre-existing degeneration in plaintiff’s MRI report. Luciano v Felix

Vacate Default   Reasonable Excuse   Meritorious Action   Motion to Dismiss   Personal Juridiction  

Second Department
Plaintiff’s motion to vacate default in opposing motion to dismiss on personal jurisdiction grounds denied where motion delayed for almost a year after dismissal and plaintiff’s counsel’s conclusory and unsubstantiated claims paralegal who left firm and computer problems caused delay did not provide a reasonable excuse of law office failure. Plaintiff’s actions demonstrated initial default was part of a pattern of ‘repeated neglect.’ Issue of meritorious defense moot absent reasonable excuse. Chowdhury v Weldon

Med Mal   Causation   Expert Aff  

Second Department
Podiatrist and podiatry practice denied summary judgment where their expert failed to provide proof plaintiff did not suffer damage to her medial nerve during the plantar fasciotomy. Coller v Habib

(2 summaries)

SUM   Stay Arb   Untimely  

Second Department
Petition to permanently stay arbitration of SUM claim remanded for consideration on the merits where fact that original demand for arbitration was sent to wrong address and carrier proved non-receipt of demand made its petition timely under 20-day rule. Matter of Travelers Personal Ins. Co. v Dratch

Serious Injury   Causation  

Second Department
Defendants failed to make prima facie showing that plaintiff’s left shoulder injury was not a serious injury or caused by the accident requiring denial of summary judgment. The court does not give the details of the proofs. Celiz v Careride Paratransit, LLC

About Matt McMahon

Civil trials and appeals since 1984
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