July 16, 2024 | Vol. 426


MUST READS
(3 summaries)
NOTEWORTHYIF YOU MUST READ

Child Victims Act   Motion to Dismiss   Personal Juridiction   Capacity to Sue   Statute of Limitations  

Second Department
In an exhaustive review of the nature of the United Methodist Church, the Second Department found that it is a religious denomination, not a jural entity, which lacks the capacity to sue or be sued and dismissed plaintiff’s Child Victims Act claim against it for sexual abuse between 1983-1986 by an employee of a local Methodist church. Motion to dismiss on statute of limitations by the church’s General Council on Finance and Administration, one of several jural entities that manage the churches, denied where the Amended Complaint adding it as a party was filed 10-days before the revival window as extended by the Covid tolls.

Since the issue of whether the United Methodist Church is a jural entity did not involve a religious dispute, determination of this issue did not violate the First Amendment. Chestnut v United Methodist Church    



Child Victims Act   Negligent Hiring   Negligent Supervision   Duty  

Second Department
School district granted summary judgment dismissing plaintiff’s Child Victim Act claim for sexual abuse while he was a resident at a boarding school in the 1990s on proof the district owed no duty to plaintiff as he was not within the district’s physical custody or orbit of control while at the boarding school and it had no statutory duty.

County granted summary judgment on judicial immunity for plaintiff’s placement in the boarding school which was required by a court order. County did not assume a special duty to plaintiff based on its Soc. Serv. L. obligations and did not voluntarily assume a special duty or take control of a dangerous condition. Negligent hiring, retention, supervision claims against county dismissed since abuser was not its employee. Davila v Orange County    



CPLR § 3126   Discovery   Preclusion   Willful/Contumacious   Experts  

Second Department
Defendants’ motions to strike Complaint for plaintiff’s failure to comply with a conditional order of preclusion requiring him to provide digital photographs with intact metadata denied as plaintiff substantially complied with the order, defendants’ claim the metadata had been altered/manufactured was not supported by the record, plaintiff’s expert opined there was no evidence the metadata was manipulated by plaintiff’s attorney, and the original photographs and email were available for defendants’ review. Defendants could not show plaintiff willfully/contumaciously failed to comply with the conditional order. White v Bical Dev., Inc.    

NOTEWORTHY
(11 summaries)
MUST READSIF YOU MUST READ





Premises Liab   Vacate Default   Reasonable Excuse   Service  

Second Department
Property owners’ motion to vacate order granting plaintiffs’ motion for default judgment and judgment of $75,000 after inquest denied where service of the plaintiffs’ motions were properly served by mail to the property address under CPLR §2103(c) as the defendants were not represented and did not designate an address for service, and defendants failed to offer a reasonable excuse for failing to timely serve an Answer or oppose plaintiffs’ motions. Nico v Olajitan    


MVA   Discovery   Note of Issue   Untimely   90 Day Notice   Reasonable Excuse  

Second Department
Plaintiff’s motion to restore the action to the active calendar after it had been marked ‘inactive’ for not filing the Note of Issue by the time specified in a PC order granted without need to show a reason for the delay as restoration is automatic where there is no 90-day notice or order dismissing the Complaint under 22 NYCRR 202.27. As a pre Note of Issue action cannot be marked off under CPLR §3404, there is no limit on when it can be restored. Rosario v Scudieri    


MVA   Discovery   Note of Issue   Preclusion   HIPAA   IME/DME   Willful/Contumacious  

Second Department
Defendants’ motion to preclude plaintiff from offering damage evidence or to strike the Note of Issue and require plaintiff to provide HIPAA authorizations and an additional IME/DME for injuries defendants claimed were sustained in a subsequent accident discovered by an ‘ISO ClaimSearch’ denied where plaintiff provided a HIPAA authorization for his subsequent accident claim file to show he made no injury claims. Defendants did not meet their burden of clearly showing plaintiff’s actions were willful/contumacious or that their failure to timely move to strike the Note of Issue was due to unusual or unanticipated circumstances. Plenty v New York City Tr. Auth.    

Comment: Same result in a case involving a different plaintiff from the same accident. Samaroo v New York City Tr. Auth..

Malpractice   Amend Complaint   Statute of Limitations   Accepted Practice   Causation   Experts  

Second Department
Plaintiff’s motion to amend the Complaint to add 3-additional doctors after the statute of limitations denied as plaintiff failed to show they were aware the action had been timely started and knew or should have known it would have included them absent mistake for the relation back doctrine where they treated the patient days or weeks before his stroke and the Complaint had been amended twice without adding these doctors.

Defendants met burden for summary judgment on their experts’ affidavits that defendants treatment over 26-days did not depart from accepted practice and was not a cause of the patient’s stroke, but plaintiffs’ expert’s opinions that the hospital where the patient was admitted for exacerbation of congestive heart failure within this time frame departed from accepted practice and was a cause of the stroke by not starting anticoagulation therapy and ordering further echo studies for 4-days after an echo failed to rule out a left ventricle thrombus raised an issue in opposition as to that hospital. Kunwar v Northwell Health    



Malpractice   Informed Consent   Accepted Practice   Causation   Experts  

Second Department
Defendants granted summary judgment dismissing malpractice claim of failure to timely identify that a Hem-o-Lok clip permanently affixed during a prostatectomy dislodged into plaintiff’s bladder causing his pain and difficulty urinating on their experts’ opinions that the repeated cystoscopies and dilations they performed were within accepted practice, more extensive surgery would have exacerbated the condition, plaintiff’s symptoms were known risks of a prostatectomy unrelated to the clips, and the 4-day delay in removing the clip did not cause any injury. Plaintiffs’ expert failed to raise an issue in opposition without addressing defendants’ experts’ specific assertions on causation and that major surgery was inappropriate.

Informed consent claim dismissed on medical records, signed consent forms, and defendants’ experts’ opinion that a reasonable person would have consented to the cystoscopy and dilation procedures as they were the only practical procedure to relieve plaintiff’s symptoms and plaintiff requested a cystoscopy and dilation to relieve his symptoms 5-months later. Fairchild v Lerner    



Labor Law §240   Labor Law §241   Labor Law §200   Amend Complaint   Statute of Limitations  

Second Department
Plaintiff’s motion to amend the Complaint after the statute of limitations to add a construction company that was a GC and lessee of a part of the property denied as it were not united in interest with the defendant-owner for the relation back doctrine to apply where they had different available defenses to the Labor Law §§ 240(1), 241(6), and 200 claims. Rowe v 4601 Second Ave, LLC    

Comment: Appeal from denial of construction company’s motion to dismiss, motion for summary judgment, and order granting plaintiff leave to amend dismissed as academic. Rowe v 4601 Second Ave, LLC ; Rowe v 4601 Second Ave, LLC ; and Rowe v 4601 Second Ave, LLC .

Premises Liab   Create Condition   Notice   NYC  

Second Department
NYC DOE denied summary judgment where plaintiff’s testimony that she fell in school hallway when her foot got stuck on a “sticky” substance and she felt a wax-like sticky substance on her shoe and fingers after her fall left questions of whether defendants created the condition by negligent wax application over the summer break or had notice of the condition. Castellano v City of New York    


MVA   Bicycle   There to be Seen   Causation   Comparative Fault  

Second Department
Plaintiff granted summary judgment on liability and dismissal of comparative fault defense on proof driver of access-a-ride opened driver’s side door into moving traffic lane when unsafe to do so, failing to see what was there to be seen, in violation of VTL §1214 and plaintiff was not a fault for his electric bicycle colliding with the open door. De La Luz Alfaro v Access-A-Ride    


MVA   Turning Vehicle   Comparative Fault   Experts  

Second Department
Plaintiff granted summary judgment on liability against defendant-driver who made a left-hand turn directly in front of plaintiff from opposing traffic on plaintiff’s testimony he entered the intersection with a green light, saw defendant’s car only 1-second before impact, and tried to avoid the collision by braking and turning to his right. Plaintiff met burden for dismissal of comparative fault defense, but defendant raised an issue on his expert’s opinion. Hansraj v Epstein    


Assumption of Risk  

Second Department
Defendant failed to meet burden for summary judgment dismissing plaintiff’s claim for injury during flag football game on conflicting versions of whether defendant tackled plaintiff while plaintiff was in the air catching the ball, which defendant conceded was not allowed in flag football, or whether they got tangled together as they each jumped for the ball, leaving questions of fact on assumption of risk. Schroeder v D’Alessio    


MVA   Pileup   Rear End   Premature Motion  

Second Department
Driver of lead vehicle in 3-vehicle collision granted summary judgment dismissing Complaint and cross-claims of rear-most vehicle on lead-driver’s affidavit and certified police report showing she was stopped for 1-minute when struck in the rear by plaintiffs’ vehicle that had been struck in the rear by the rear-most vehicle. Affirmation of attorney for rear-most vehicle failed to raise an issue in opposition as it was not based on personal knowledge, they did not submit any affidavit from their driver claiming the lead vehicle stopped short, and plaintiffs did not oppose the motion.

Motion was not premature where the injured-plaintiff’s affidavit described the accident. Sroor v Marziano-Fontana    


IF YOU MUST READ
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About Matt McMahon

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