July 17, 2018 | Vol. 115

MUST READS
(7 summaries)
NOTEWORTHY IF YOU MUST READ

Premises Liab   Med Mal   Consolidation  

Second Deptartment

Lower court providently exercised discretion in denying real estate defendants’ motion to join slip/trip action involving that injured plaintiff’s foot with subsequent malpractice action regarding treatment of the foot because legal theories were not the same, actions were at widely divergent stages with discovery complete and Note of Issue filed in slip/trip case and little discovery in malpractice case, and there was a high risk of jury confusion. The medical malpractice defendants joined in opposing the motion. Cromwell v CRP 482 Riverdale Ave., LLC


Med Mal   Late Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice  

Second Deptartment

Petitioner’s hospital records including biopsy report showing her cancerous tumor had not been completely excised and physician’s note that she was advised it was completely excised showed hospital’s actual knowledge of the claim of malpractice. Extensive treatment during the 5-6-month delay in filing the Notice of Claim provided a reasonable excuse although its absence would not necessarily require denial of the petition, and plaintiff met her initial burden of showing that HHC was not prejudiced by the delay and HHC failed to meet its shifted burden of showing prejudice from the delay. Matter of Leon v New York City Health & Hosps. Corp.


MVA   Bus   Serious Injury   Set Aside Verdict   Pain/Suffering   Materially Deviates  

Second Deptartment

Plaintiff raised issue of fact on serious injury in opposition to defendant’s prima facie showing of entitlement to summary judgment and defendants failed to meet its burden for summary judgment on liability where bus driver testified that plaintiff was seated in the back of the bus when she initially drove off but 72-year-old plaintiff testified that she had not taken even a step when bus driver took off fast enough to throw her to the back of the bus landing on the floor with her leg underneath her. Case proceeded to trial and jury found for the plaintiff and awarded her $500,000/$1 million past/future pain/suffering for multiple cervical and lumbar bulging discs with S1 radiculopathy, torn lateral and medial menisci that may require knee replacement, and post-concussion syndrome, the effects of which will be permanent. Future damages were for 10 years and court found the award did not materially deviate from reasonable compensation. Castillo v MTA Bus Co.


Dogbite   Vicious Propensity  

Second Deptartment

Defendants’ testimony that they were not aware of prior bites or aggressive behavior of their dog made out entitlement to summary judgment and non-party affidavits submitted by plaintiffs were properly ignored. The affidavit of the plaintiffs’ son was rejected because they had not noticed him as a witness prior to the Note of Issue and the affidavits of defendants’ neighbors did not have a proper jurat or other indication that it was sworn. Lillo-Arouca v Masoud


Venue   Prejudice  

Second Deptartment

Plaintiff, a former Nassau County District Court judge bringing the wrongful death action as administrator of his wife’s estate, sought to recuse the assigned justice after several justices recused themselves due to a familiarity with plaintiff and his political campaigns. Plaintiff also sought to move venue from Nassau to Queens County claiming that any Nassau jury could be improperly influenced by the defendants’ extensive advertising that claimed they provided excellent care. Both motions were providently denied where plaintiff did not provide proof of actual prejudice as opposed to a feeling or fear of prejudice. Levine v North Shore Long Is. Jewish Healthcare Sys., Inc.


Premises Liab   Notice  

Second Deptartment

Lower court should not have granted summary judgment on lack of actual or constructive notice which was not included in the defendants’ motions as plaintiff did not have an opportunity to address the issue below and it would be inherently unfair to require a party to address every possible ground for summary judgment. Defendants’ photographic evidence did not establish that plaintiff arrived after defendants’ awning and structure fell or that she fabricated the claim. Singletary v Alhalal Rest., Inc.


Premises Liab   Espinal   Open/Obvious   Inherently Dangerous   Notice   Warnings  

First

Building owner and mechanical company denied summary judgment. Mechanical company removed an outdated oil tank exposing existing metal plate with a circular hole several feet from equipment that plaintiff, an operating engineer, was working on. Plaintiff’s foot went into hole when he stepped back to get a tool, hitting his head on the concrete floor. Defendants showed that the hole was open/obvious, and that plaintiff knew about it months before the accident but failed to show that it was not inherently dangerous. Proximity of hole to equipment requiring service raised an issue of whether it was inherently dangerous and whether it required warnings even where plaintiff was aware of it. Majority found that exposing the hole by removing the tank raised an issue of whether mechanical company launched an instrumentality of harm under Espinal and made a previously safe condition unsafe. Exposing the metal plate was not the work contracted for but the result of removing the tank which was the work contracted for. There were 2 dissenters. Farrugia v 1440 Broadway Assoc.

NOTEWORTHY
(14 summaries)
MUST READS IF YOU MUST READ

Premises Liab   GML §205-e  

Second Deptartment

General contractor granted summary judgment on police officer’s claim he fell on construction debris while chasing suspects through construction area in violation of several administrative code provisions based on testimony of construction manager that area was inspected and free from any dangerous condition before the incident and plaintiff was unable to describe the debris which he admitted he did not see. Defendant showed that administrative code provisions relating to streets and sidewalks relied upon by the plaintiff were not applicable since construction area was closed to the public during the construction. Palladino v Monadnock Constr., Inc.


CPLR §306-b   Motion to Dismiss   Personal Juridiction   Reasonable Excuse   Statute of Limitations  

Second Deptartment

Plaintiff’s law firm’s failure to realize that process server’s attempt to serve Con Ed in Valhalla was not successful and that instructions to serve Con Ed in NYC were ignored for 5 months, 2 months past 120-days for service, did not show “good cause” and plaintiff’s lack of diligence in commencing the action until 10-days before statute of limitations and delay in attempting second service without good cause made the lower court’s grant of the defendants’ cross motion to dismiss for lack of personal jurisdiction and under CPLR §306-b a provident exercise of discretion. Rodriguez v Consolidated Edison Co. of N.Y., Inc.


Motion to Dismiss   Personal Juridiction   CPLR §306-b   Raised For First Time  

Second Deptartment

Plaintiff’s personal delivery of Summons and Complaint to person who would not identify herself and refused to accept service did not give personal jurisdiction against LLC which must be served on a member or person authorized to accept service. CPLR 306-b requires that Complaint be dismissed without prejudice if not served within 120-days and plaintiff’s request for an extension was not considered as it was made for the first time on appeal. Pinzon v IKEA N.Y., LLC


Discovery   No-Fault   Admissibility  

Second Deptartment

Defendants entitled to authorizations for no-fault records even though plaintiff was not making a claim for special damages because the no-fault records could lead to admissible evidence on serious injury and plaintiff’s injuries, even if the no-fault records themselves might eventually be deemed inadmissible. Cajamarca v Osatuk


Med Mal   Accepted Practice   Causation   Expert Aff   Raised For First Time  

Second Deptartment

Idiopathic manipulative physician and his practice made out entitlement to summary judgment by expert’s opinions that physician did not depart from accepted practice by not ordering certain tests and referring plaintiff for vascular consult, and was not cause of plaintiff’s stroke 2 days after she was seen by him, but plaintiffs’ expert raised issues of fact that given history of Doppler study and plaintiff’s symptoms, accepted practice required that physician order the tests and vascular consult and that those steps would likely have avoided the stroke. These defendants’ claim that plaintiffs’ claim that the tests and consult should have been ordered on an emergency basis was raised for the first time in opposition was rejected since the short period during which plaintiff claimed these defendants should have ordered the testing consult was consistent with the claim that they should have been ordered on an emergency basis. Schwartzberg v Huntington Hosp.


Premises Liab   Set Aside Verdict  

Second Deptartment

Lower court’s order granting plaintiff’s motion to set aside defense verdict where plaintiff claimed a sink in defendants’ building spontaneously fell causing her injuries reversed and verdict reinstated. Defendants’ expert’s testimony and re-creation provided a rational basis for jury to conclude that sink could not have spontaneously fell as claimed by plaintiff. Issues of credibility are for the jury. Harewood v Holmes


Premises Liab   Slip/Trip   Stairs   Unknown Cause   Notice  

Second Deptartment

Homeowner entitled to summary judgment where plaintiff was unable to identify what caused her to fall on defendant’s front steps and defendant established that he did not have actual or constructive notice of a defective condition and that the lighting was adequate. Burke v Umbaca


Premises Liab   Slip/Trip   Snow/Ice   Unknown Cause   Create Condition   Notice  

Second Deptartment

Preschool granted summary judgment on plaintiff’s claim that she fell on ice while exiting rear of preschool on director’s testimony that she entered rear entrance 90 minutes before accident and did not see ice and plaintiff did not see the ice before she fell eliminating question of constructive notice. General icy conditions in winter does not give constructive notice and plaintiff did not claim that defendants created the condition. Plaintiff sufficiently identified ice as the cause of her fall. Bombino-Munroe v Church of St. Bernard


Vacate Default   Note of Issue   Reasonable Excuse   Meritorious Action  

Second Deptartment

Lower court providently vacated plaintiff’s default and order dismissing action under CPLR §3216 for failure to timely file Note of Issue on proof of a reasonable excuse and meritorious action. What constitutes a reasonable excuse lies within the discretion of the trial court. The court did not give the details of the reasonable excuse or meritorious action. Levy v Berman Motorcars


Premises Liab   Slip/Trip   Control   Espinal  

Second Deptartment

Company that managed parking garage for hospital granted summary judgment where plaintiff tripped on excess concrete on floor he could not see due to inadequate lighting on proof that company did not have exclusive possession of parking garage and had no obligation to maintain or repair lights or concrete. It did not own, occupy, control, or make special use of the garage that caused the injury. Plaintiff and hospital failed to raise an issue in opposition. Guzman v Jamaica Hosp. Med. Ctr.

Comment: The same result could have likely been reached by an Espinal analysis showing that the management company was a third-party contractor, did not launch a force or instrumentality of harm, there was no detrimental reliance, and the management company did not completely displace the hospital’s responsibilities.


Premises Liab   Slip/Trip   Sidewalk   § 7-210   Law of the Case  

Second Deptartment

Homeowner granted summary judgment on 1-3 family exception to administrative code §7-210 by showing that building was a single-family house, owner occupied, used exclusively for residential premises purposes and plaintiff failed to show that homeowner created the condition, or the condition was created by a special use benefiting the homeowner required for liability under common law. Gerendash v City of New York

Comment: The co-owner who had died during the case and was represented by the public administrator subsequently moved for summary judgment which was granted on law of the case. While the Appellate Division found that law of the case did not apply, it upheld the grant of summary judgment. Gerendash v City of New York.


Premises Liab   Slip/Trip   Sidewalk   § 7-210   Law of the Case  

Second Deptartment

Homeowner granted summary judgment on 1-3 family exception to administrative code §7-210 by showing that building was single-family house, owner occupied, used exclusively for residential purposes and plaintiff failed to show that homeowner created the condition, or that condition was created by a special use benefiting homeowner necessary for liability under common law. Gerendash v City of New York

Comment: The co-owner who died during the case and was represented by the public administrator subsequently moved for summary judgment which was granted on “law of the case.” While the Appellate Division found that law of the case did not apply, it upheld the grant of summary judgment. Gerendash v City of New York.


Premises Liab   Workers Comp Defense  

Second Deptartment

Plaintiff’s employer granted summary judgment based on the exclusivity of workers compensation where plaintiff was injured at work, on the employer’s property, and applied for and was found eligible for Worker’s Compensation benefits. Dumervil v Port Auth. of N.Y. & N.J.


Premises Liab   Slip/Trip   Sidewalk   Snow/Ice   § 7-210   Create Condition   Last Inspection  

Second Deptartment

Church’s motion for summary judgment denied where testimony of its custodian, and its expert’s opinions, did not have specific details of last time sidewalk was inspected or what snow/ice conditions were like within a reasonable time before the accident, failing to meet its burden of showing that it neither created the condition nor had notice. Muhammad v St. Rose of Limas R.C. Church

IF YOU MUST READ
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MUST READS NOTEWORTHY

About Matt McMahon

Civil trials and appeals since 1984
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