MVA Damage Trial Set Aside Verdict Reasonable Excuse Admissibility Speculation
 Judgment on jury damage trial set aside and new trial ordered as to 1-plaintiff where trial court denied 1-day continuance for IME orthopedist unable to testify within court’s schedule due to unexpected death in family. Testimony was relevant even though defendant’s radiologist testified because it was based on examination, not just MRI, and gave opinion of no future treatment not given by radiologist. Defendant not entitled to continuance for radiologist’s testimony as to 2nd plaintiff due to defendant’s lack of diligence where they knew radiologist would be unavailable before court’s scheduled vacation, but didn’t raise issue.
Plaintiff’s medical records containing reports of other doctors properly admitted on testimony they were created in ordinary course of business for diagnosis and treatment and doctor allowed to use them for opinions where MRI was in evidence and “the doctors’ reports did not ‘form[] the principal basis’ for plaintiffs’ expert’s opinion on the ‘crucial issues of the existence and severity of plaintiff’s injuries.’”
Future medical expenses not speculative where doctor opined to likely future surgeries, physical therapy, and medication and estimated costs. Freeman v Shtogaj
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Assumption of Risk Notice Foreseeability Conclusory
 Defendants failed to make out prima facie entitlement to summary judgment on assumption of risk where plaintiff’s testimony, submitted by defendant, established that 2 unruly ice skaters caused 3 other skaters to fall over 20-minute period before she was knocked down by 1 of them, raising issues of whether defendants had sufficient notice of reckless conduct. A person assumes the ordinary risks inherent in an activity, not reckless or intentional conduct. Andriienko v Compass Group USA, Inc.
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Premises Liab Negligent Supervision Slip/Trip Set Aside Verdict Circumstantial Evidence Jury Charge Mistrial
Judgment on jury verdict finding school not negligent where plaintiff slipped and fell during afterschool dance upheld where trial court properly instructed jury on negligence. Plaintiff not entitled to circumstantial evidence charge where she did not solely rely on circumstantial evidence to prove her case. Court’s decision not to grant mistrial after jurors assured court they did not overhear judge’s comment during sidebar did not prejudice plaintiff. C.B. v Valley Stream Cent. High Sch. Dist.
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Premises Liab Slip/Trip Wet Floor Set Aside Verdict Circumstantial Evidence Jury Charge
Judgment on jury verdict finding NYCTA not negligent where plaintiff slipped and fell on wet/sticky substance on subway train floor upheld where trial court properly refused to give circumstantial evidence charge because plaintiff did not solely rely on circumstantial evidence to prove her case. Washington v New York City Tr. Auth.
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Building Security Foreseeability
Defendant failed to eliminate all questions of fact on foreseeability that plaintiff who was waiting in line at McDonald’s store would be attacked when he tried to stop 2-girls fighting behind him on proof of 15 prior violent incidents. Property owner has duty to provide adequate security including controlling conduct of others when it has the opportunity to do so and is reasonably aware of the need. Whittingham v McDonald
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Labor Law §240 Scaffold Safety Devices
Plaintiff granted summary judgment on Labor Law §240(1) where he fell from scaffold without siderails as it tipped, and he was not provided with any safety devices to prevent him from falling. Camacho v Ironclad Artists Inc.
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Premises Liab Slip/Trip Unaffirmed Report Expert Aff Speculation
Contractor entitled to summary judgment on proof that excavation it did for Verizon was not at location where plaintiff tripped and fell. Plaintiff failed to raise issue of fact by submission of unaffirmed engineer’s report relying on unauthenticated Google photographs showing excavation at area where plaintiff fell that was “similar” to excavation defendant performed at other location. Expert’s opinion not based on admissible evidence and speculative. Chtchannikova v City of New York
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Premises Liab Assumption of Risk Open/Obvious
Defendant failed to meet burden for summary judgment on assumption of risk for player who fell on accumulation of dust on indoor basketball court where it did not show that accumulation of dust was inherent risk of basketball or that condition was open/obvious. Samuels v Town Sports Intl., LLC
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Negligent Supervision
School district granted summary judgment where kindergartner was pushed into wall by other kindergartner as they were lining up outside of class because incident happened so suddenly that no degree of supervision could have prevented it. M.P. v Central Islip Union Free Sch. Dist.
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Vacate Default Reasonable Excuse Meritorious Action
Plaintiff’s motion to vacate default in opposing defendants’ motion for summary judgment on serious injury, after lower court denied second request for adjournment of summary judgment motion, denied where plaintiff’s attorney’s claim of reasonable excuse was conclusory and did not contain the name of the expert or details of reasonable efforts to contact plaintiff or expert and failed to show a meritorious action. Harrison v Toyloy
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Premises Liab Slip/Trip Vacate Default Reasonable Excuse Meritorious Action Renew
Plaintiff’s motion to vacate order granting summary judgment on default denied where plaintiff offered only conclusory excuse of law office failure. Motion to renew denied as in default there was no argument to renew. Wright v Brooklyn Renaissance Funding Co., LLC
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Strike Answer CPLR 3404 Willful/Contumacious
Plaintiff’s motion to review and vacate under CPLR 3404 prior order denying plaintiff’s motion to strike NYCHA’s Answer for delaying depositions denied absent proof conduct was willful/contumacious where plaintiff ignored case for 4-years and failed to comply with 2-court orders and made motion to strike Answer in response to NYCHA’s request for adjournment of deposition. Rector v City of New York
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Premises Liab Slip/Trip Snow/Ice 3rd Party Contractor Espinal
Snow removal contractor granted summary judgment where plaintiff slipped and fell on ice in parking lot on proof its limited service contract did not wholly displace owner’s maintenance responsibilities under Espinal. Burger v Brickman Group Ltd., LLC
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Question of Fact
Plaintiff’s testimony that she felt “stuck” when stepping off elliptical and maintenance worker’s testimony that plaintiff struck worker’s outstretched leg next to elliptical causing her to lose balance and fall raised issue of fact on defendant’s negligence. Ausch-Alteras v Equinox – 85th St., Inc.
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Estate Appealable Order
Action and appeal dismissed where defendant died months before action was commenced making action, motion to dismiss, and order allowing substitution of estate nullities. Neither lower court nor appellate court had capacity to hear motions or appeal. Franco v Ketterer
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Premises Liab Slip/Trip Snow/Ice Create Condition Notice
Church where plaintiff slipped and fell on ice on walkway granted summary judgment on proof it did not create the condition or have actual or constructive notice of it. The court does not give the details of the proofs. Hartung v Diocese of Rockville Ctr., N.Y.
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