July 19, 2022 | Vol. 322

New York Torts Weekly logo

(2 summaries)

Malpractice   Set Aside Verdict   Mistrial   Willful/Contumacious  

Second Department
While defense counsel’s misrepresentation that a printed enlargement he used during summation was plaintiffs’ expert’s verbatim response to a 2-prong question with only colloquy removed, discovered incorrect during deliberation, was “at a minimum, inexcusably careless’” it was not fraud on the court as it was an isolated incident and there was no clear and convincing evidence of a willful attempt to hinder a fair trial. Plaintiffs were not deprived of a fair trial where the court suspended deliberations to give a curative instruction explaining the exhibit was not as represented by defense counsel, had the actual testimony read-back, and reminded the jury that summations are not evidence. Plaintiffs’ motion to set aside the defense verdict or grant a mistrial and for a declaration that the misrepresentation was a fraud on the court denied. Bhim v Platz    

Assault   Motion to Dismiss   Workers Comp Defense   Amend Complaint  

Second Department
Lower court improvidently granted Panera franchisees’ motion to dismiss negligence claim of employee who was assaulted when she returned to pick up her brother, also employed at the restaurant, after her shift as the WCB has primary jurisdiction for determining entitlement to workers comp benefits and the court should have referred the question to the WCB where the issue was pending.

Plaintiff’s cross motion to amend the Complaint to include gender discrimination and hostile work environment claims providently denied as devoid of merit. Chin v Doherty Enters.    

(10 summaries)

Malpractice   Accepted Practice   Causation   Experts  

Second Department
Affidavit of expert for plastic surgeon and his practice failed to meet burden of showing no departure from accepted practice for not diagnosing plaintiff’s ischemic stroke where plaintiff complained of excruciating headache and vision loss in recovery room after plastic surgery and for not referring plaintiff to a Level 1 Primary Stroke Center. Defendants made out prima facie entitlement for summary judgment on causation with neurology expert’s opinion of no causation for failing to refer plaintiff to a Level I Primary Stroke Center but plaintiff raised an issue in opposition. The Court does not give the details of plaintiff’s proofs. Anthony v Freedman    

Labor Law §240   Labor Law §241   Labor Law §200   Gravity Risk   Industrial Code   Control   Court of Claims  

Second Department
Motion for summary judgment dismissing Labor Law §240(1) claim denied where plaintiff was tossed around in elevated basket of boom lift that was struck by a car carrier tractor-trailer because she was subjected to a gravity risk even though she did not fall from the boom lift. Defendants failed to show they lacked control of the manner in which traffic control devices were arranged in the work zone for dismissal of Labor Law §200 claim.

Defendants granted summary judgment dismissing Labor Law §241(6) claim based on industrial code §23-1.29(a) on proof they complied with requirement that the “work area shall be so fenced or barricaded as to direct such public vehicular traffic away from such area.” Johnsen v State of New York    

Premises Liab   Spoliation   Survelliance Video   Create Condition   Notice  

Second Department
Plaintiff’s motion for spoliation sanctions for failure of supermarket defendants to preserve 1 hour pre-accident video, having saved 2-minutes and 45-seconds, denied without proof additional video was intentionally or negligently destroyed or deprived plaintiff of proving her case. Defendants granted summary judgment on proof they did not create or have actual or constructive notice of the condition for enough time to correct the condition. Milazzo v Best Mkt.    

Premises Liab   Spoliation   Premature Motion  

Second Department
Defendants had duty to preserve 3-hour pre and 1- hour post-accident video where plaintiff’s attorney sent spoliation letter the day after plaintiff slipped in defendants’ store demanding those videos be preserved, but plaintiff’s motion for spoliation sanctions because defendants saved only 35-minutes of video starting 12-seconds before the accident providently denied absent proof that loss of the additional video prevented plaintiff from proving her case but plaintiff granted leave to renew after completion of discovery. Phelps-Vachier v Genovese Drug Stores, Inc.    

Premises Liab   Espinal   Create Condition  

Second Department
Company that managed hospital parking lot under contract with NYCHCC granted summary judgment where plaintiff tripped on uneven pavement in lot on proof it “did not own, occupy, control, or make special use of the subject parking lot,” did not create the dangerous condition, owed no duty to the plaintiff who was not a party to its agreement, did not launch a force or instrument of harm under Espinal, and its contract was not so comprehensive as to displace NYCHHC’s duty to safely maintain the premises under Espinal. Rodriguez v Propark Exec. Mgt. Co., LLC    

Premises Liab   Open/Obvious   Inherently Dangerous  

Second Department
Plaintiff’s testimony that she saw the 3′-4′ tall A-frame sign on the sidewalk as she entered and left the restaurant before she tripped on it and that she lived across the street and saw the sign every time she walked down the street established that the condition was open/obvious and not inherently dangerous entitling property owner and restaurant defendants to summary judgment. Sonera v 147-16 Hillside Ave. Corp.    

Sidewalk   Prior Written Notice  

Second Department
Town’s failure to include most of plaintiff’s opposition papers in its appendix could have resulted in dismissal of its appeal for inhibiting the Court’s ability to make an informed decision, but the original papers were sufficient for review on the merits. Town met burden of showing lack of prior written notice of raised portion of sidewalk plaintiff tripped on but plaintiff raised an issue of whether the town received a prior compliant. Liriano v Asillo    

MVA   Rear End   Turning Vehicle   Nonnegligent Explanation   Premature Motion  

Second Department
Plaintiff’s motion for summary judgment granted on proof plaintiff slowed to 5 mph with his turn signal on while attempting to make a right hand turn when he was struck in the rear by defendants’ vehicle. Defendant-driver’s claim plaintiff stopped short was in and of itself insufficient to raise a nonnegligent explanation. Gil v Manhattan Beer Distribs., LLC    

Serious Injury   ROM   Causation   Experts  

Second Department
Defendants failed to meet burden for summary judgment on serious injury where their experts found significant limitation in ROM in injured-plaintiff’s cervical and lumbar spine and failed to show the injuries were not caused by the accident. Doubleday v Ferdous    

Assault   Security Guard   Vacate Default   Reasonable Excuse   Meritorious Action   NYC  

Second Department
Pro se plaintiff’s motion to vacate order granting defendants summary judgment of claims that public library security guard assaulted him denied as plaintiff failed to provide a reasonable excuse for failing to oppose the motion and the court did not need to look at the issue of meritorious action. Garry v Brooklyn Pub. Lib.    

(1 summaries)

Malpractice   Vacate Jud   Vacate Default   Reasonable Excuse   Conclusory  

Second Department
Plaintiffs’ motion to vacate judgment entered on plaintiffs’ failure to oppose defendants’ motion for summary judgment denied where claim of law office failure was conclusory and unsubstantiated. Without showing a reasonable excuse, court did not need to address issue of meritorious opposition to motion. The Court does not give the details of the proofs. Giotis v Besser    

About Matt McMahon

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

Comments are closed.