July 18, 2023 | Vol. 374

(4 summaries)

Premises Liab   HIPAA   Causation  

Second Department
In a case of first impression, the Second Department held that while the Court of Appeals’ never addressed whether Arons authorizations were permissible for issues of causation unrelated to medical treatment, Arons involved 3 malpractice cases where the ex parte interviews sought were related to medical treatment whereas the Arons authorizations sought by the defendants in the present case, to clarify inconsistencies between plaintiff’s BP and deposition testimony that she fell due to defective paver blocks and a statement given to the physicians assistant defendants sought to interview that plaintiff said she tripped over a tree branch falling onto her arm, were outside the scope of Arons as they were not related to medical treatment.

The Court found the First Department case of Rucinski v More Restoration Co. Inc. which denied an Arons authorization based on causation not related to medical treatment instructive but not directly on point where it sought a deposition, not an interview. Yan v Kalikow Mgt., Inc.    

Comment: The First Department case was reported in Vol. 41.

Labor Law §241   Labor Law §200   Appealable Order   Set Aside Verdict   Industrial Code   Notice   Raised For First Time   Admissibility   NYC  

Second Department
Order denying plaintiff’s cross-motion for summary judgment on Labor Law §241(6) based on industrial code §§ 23-1.7(d) and 23-3.3(e) and Labor Law §200 was not appealable from judgment after jury trial on these claims as it did not affect the judgment. Although defendants did not raise appealability, the Court addressed the issue as it was jurisdictional. Defendants granted summary judgment dismissing claims based on industrial code §§23-1.7(e)(1) and (e)(2)(tripping hazards) where plaintiff testified he “slipped” and claimed it was a passageway, not a working area, and §23-2.1(b)(debris disposal) which is not sufficiently specific. Specificity issue raised by defendants for the first time on appeal considered as “it involves a question of law that appears on the face of the record and could not have been avoided if brought to the [Supreme] [C]ourt’s attention at the proper juncture.”

Judgment on defense verdict after trial affirmed where there was a valid line of reasoning for jury to find no violation of industrial code §23-1.7(d)(slipping hazard) by plaintiff slipping on a slippery substance on a staircase where the jury could reasonable interpret plaintiff’s testimony that he made 5-10 prior trips on the stairs to show the slippery substance was not present for a sufficient time for defendants to discover and correct it, even though defendants are not required to have actual or constructive notice of a slippery condition under §241, as the proof must show that “someone within the chain of the construction project was negligent in not exercising reasonable care, or acting within a reasonable time, to prevent or remediate the hazard, and that [a] plaintiff’s slipping, falling[,] and subsequent injury proximately resulted from such negligence.”

Jury could reasonably find no violation of industrial code §23-3.3(e)(removal of materials during demolition) where materials were moved within, not away from the school building. Trial court providently redacted photographs and, in any event, the redactions were harmless as they would not have substantially impacted the result. Dyszkiewicz v City of New York    

Motion to Dismiss   Statute of Limitations   CPLR §205   Sanctions  

Second Department
Lower court erred in dismissing action brought after initial action was dismissed for failure to appear at a conference under 22 NYCRR 202.27 and for failure to provide effective authorizations for certain medical records as the CPLR §205(a) 6-month period to recommence was applicable where the lower court’s ground for dismissal of the original Complaint were insufficient to demonstrate a general pattern of delay or neglect to prosecute and its conclusory statements did not meet the §205(a) requirement that the court detail the specific conduct constituting neglect. Crudele v Price    

Comment: Lower court improvidently granted sanctions against plaintiff’s attorney for frivolous action of bringing a second action outside statute of limitations as CPLR §205(a) rendered the second action timely. Crudele v Price. See related decisions below.

Vacate Default   CPLR 3404   Reasonable Excuse   Raised For First Time   Appealable Order  

Second Department
Plaintiff’s motion to restore action to active trial calendar after it had been dismissed for plaintiff’s failure to appear at a conference under 22 NYCRR 202.27 and failure to provide effective authorizations for certain medical records providently denied where plaintiff provided insufficient detail of excuse that a miscommunication within plaintiff’s counsel’s office resulted in appearance not being diaried to constitute law office failure.

Plaintiff’s claim that order of dismissal granted on oral argument was never entered as the transcript was not “so ordered,” raised for the first time in a footnote in plaintiff’s brief on appeal, rejected as the record of dismissal was clear and the failure to so order the transcript did not relieve the plaintiff of the burden to show a reasonable excuse for not appearing. Crudele v Price    

Comment: See related decisions above.
(9 summaries)

Assault   Battery   Attorney Disqualification  

Second Department
Defendant’s brother was disqualified from being his attorney in an assault/battery case where plaintiff/wife alleged the brother/attorney was the only nonparty witness to her husband’s physical abuse and as such was “likely to be a witness on a significant issue of fact.” Disqualification also appropriate to avoid the appearance of impropriety. Alnoukari v Nokari    

Set Aside Verdict   Motion in Limine   NYC  

Second Department
Plaintiff’s motion to set aside as against the weight of the evidence the verdict finding that the hallway floor the plaintiff teacher slipped on and noticed her dress was wet was unsafe but that DOE was not negligent denied where teacher testified she saw a custodian pushing a yellow mop bucket into a closet with the mop handle protruding from the bucket but jury could reach the verdict on a fair interpretation of the evidence. Lower court providently denied plaintiff’s motion to strike a defense witnesses’ testimony for late disclosure as untimely where the ground for that motion was known prior to trial and should have been brought by a motion in limine prior to the trial. Motion to set aside verdict in interest of justice denied where lower court providently allowed photographs in evidence where there was no evidence of willful/contumacious conduct and introduction of hearsay testimony was harmless. Heller v City of New York    

Pothole Law   Prior Written Notice   Labor Law §240   Labor Law §241   Labor Law §200   Uncertified Records   Discovery   Admissibility   Raised For First Time   NYC  

First Department
Plaintiff, employed by Verizon subsidiary Empire City Subway, opposed NYC’s motion for summary judgment for lack of prior written notice arguing action was for construction injuries when a backhoe pushed a steel plate covering the trench they were digging to lay underground cables and crushed his foot, not a defective road condition. The attached uncertified copies of the controlling franchise agreement between Verizon and NYC and a NYC letter and audit report to show NYC’s status as an owner for Labor Law §§ 240(1), 241(6), and 200 were admissible because NYC failed to respond to plaintiff’s demands for certified copies.

NYC argued for the first time in reply that there was no nexus between it and the construction, relying on its record searcher’s testimony that the work permit for the project expired days before the accident without any work being done. Searcher’s testimony was speculative where he did not know if any emergency or renewal permit had been issued and was unfamiliar with the emergency permit process or if emergency work could be done before an emergency permit was issued. NYC failed to meet its burden by pointing to gaps in plaintiff’s proofs. There were 2-dissenters. Powell v City of New York    

Labor Law §200   Premises Liab   Notice   Question of Fact  

Second Department
Defendants failed to meet burden for summary judgment dismissing plaintiffs’ Labor Law §200 and negligence claims for fall when worker stepped onto a greased rebar dowel while retrieving a pipe where plaintiffs alleged both a dangerous premises condition and defects in the means and methods of work and defendants failed to eliminate all questions of fact on whether the greased rebar dowel and its placement was a dangerous condition, whether they had actual or constructive notice of the condition, and whether climbing the platform to obtain ice was an inherent risk of plaintiff’s work. Serpas v Port Auth. of N.Y. & N.J.    

Child Victims Act   Motion to Dismiss   Amend Complaint   Statute of Limitations   Prejudice  

Second Department
Plaintiff’s motion to amend Child Victims Act Amended Complaint for sexual abuse, after the Amended Complaint was dismissed for failure to allege that acts committed by high school employee met definition of sexual acts under the CVA, providently granted where the second Amended Complaint made specific allegations of conduct meeting the CVA definition of sexual acts, was not devoid of merit, and school district was not prejudiced or surprised by the new allegations. New allegations timely as they related back to the original Complaint which gave defendants notice of the occurrences. LCVAWCP-Doe v Collins    

Premises Liab   Open/Obvious   Inherently Dangerous   Trivial  

Second Department
Defendants granted summary judgment dismissing plaintiff’s claim for trip and fall on metal bolt protruding from top of wheel stop in parking lot which was open/obvious, not inherently dangerous, and trivial. Issue of trivial defect “does not turn on ‘whether a defect is capable of catching a pedestrian’s shoe. Instead, the relevant questions are whether the defect was difficult for a pedestrian to see or to identify as a hazard or difficult to pass over safely on foot in light of the surrounding circumstances.’” Since the bolt was not on a walking surface, it was trivial. Mayorga v Kokkoris    

Premises Liab   Out of Possession   Building Code   Spoliation   Untimely  

Second Department
Building owner granted summary judgment dismissing plaintiff’s claim that security gate of tenant’s store where she worked fell on her on proof that lease showed tenant had exclusive possession and responsibility to maintain the premises, including the security gate, establishing owner was an out of possession landlord with no duty by contract or course of conduct to maintain the gate. The only statutory violation alleged by plaintiff was inapplicable because it provided only a general duty to maintain premises. Plaintiff’s cross motion for spoliation sanctions denied as untimely based on a stipulation. Jin Hee Son v Zafiara Realty, Inc.    

MVA   Bicycle   Premature Motion  

Second Department
Defendant made out prima facie entitlement to summary judgment on his affidavit that he was stopped at a red light for 1-minute in between 2-vehicles when he felt plaintiff’s bicycle strike the side of his vehicle. Plaintiff’s affidavit that he was riding his bicycle on the double yellow line, saw vehicles stopped at the light he was approaching, turned his head to see where his friends were, and a few seconds later felt the collision with defendant’s vehicle which had not been there seconds before failed to raise an issue of fact. Motion was not premature without proof that discovery might lead to relevant information or information necessary to oppose the motion was exclusively withing defendant’s knowledge or control. Oliinyk v Yusupov    

Serious Injury   BP   Preexisting  

Second Department
Defendant failed to meet burden for summary judgment on serious injury without eliminating questions of fact on 90/180-day category and exacerbation of pre-existing spinal injuries alleged in the BP. Weber v Kalisky    

(0 summaries)

About Matt McMahon

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