| MUST READS (2 summaries) | |||
| NOTEWORTHY | IF YOU MUST READ | ||
 Owner and driver of car with plaintiff as passenger made successive motions for summary judgment on serious injury and liability. The second motion on liability did not violate the general disfavor of multiple summary judgment motions since the issue of serious injury is a threshold issue that goes to damages and moving-defendants showed sufficient cause where the deposition of the other driver who admitted he swerved into moving-defendants’ vehicle was taken after the first motion was made and confirmed the testimony of the moving-driver, establishing codefendant was the sole cause of the accident. Priester v Phanor ✉ |
 Defendant which lent plaintiff a ladder denied summary judgment dismissing plaintiff’s claim that the defective ladder caused him to fall on argument it was a ‘gratuitous bailment’ with only a duty to warn of known defects ‘not obvious or readily discernible’ where questions remained of whether defendant had notice of the defective condition or that it stood to benefit from loaning the ladder which would be a ‘mutual benefit bailment’ with the added duty to make it ‘reasonably safe for its intended purpose.’ Portillo v Equinox Holdings, Inc. ✉ |
| NOTEWORTHY (12 summaries) | |||
| MUST READS | IF YOU MUST READ | ||
| Building owner and manager where plaintiff slipped on ice on abutting sidewalk granted summary judgment as plaintiff’s testimony that ice formed after freezing rain/snow 3-days earlier was speculative on climatological data he submitted showing significant warming in the interim, including 21-hours before the accident, and plaintiff did not offer expert opinion to interpret the data. Defense verdict finding tenant-deli owners were negligent but not a substantial factor in causing plaintiff’s injuries was not insufficient or against the weight of the evidence. Plaintiff waived claim of inconsistent verdict by not raising it before the jury was disbanded. Motion to strike the Answers of one of the deli owners and its employees for failing to appear pursuant to a subpoena served on their attorney providently denied where the trial court gave the appropriate missing witness charge, and to strike the deli’s Answer or give a missing witness charge for spoliation of the outdoor security camera footage where plaintiff failed to show the camera was in a position to capture the accident. Alburquerque v Bedford Park Deli, Inc. ✉ |
| Abutting landowner’s appeal to vacate $250,000 judgment entered on default after inquest denied upon plaintiff’s testimony, medical records, and defendant’s medical expert’s analysis of her records showing injuries to her knee and shoulder. Lower court providently did not credit defendant’s medical expert’s conclusion the injuries were pre-existing and degenerative where plaintiff testified she did not have pre-existing injuries to those areas and the expert never examined plaintiff or all of her records, including her PT records. Davis v Blake GFG, LLC ✉ |
| Deceased defendant’s former attorney’s motion to dismiss for failure to timely substitute a representative under CPLR §1021 denied as the attorney had no capacity to bring the motion after the client’s death and the court lacked jurisdiction to hear the motion. Plaintiff’s cross-motion to substitute the decedent’s daughter as the representative for the decedent denied with leave to renew on proof of service of notice to persons interested in the estate. Fazilov v Acosta ✉ |
| Petition to deem late Notice of Claim timely served nunc pro tunc for infant-plaintiff’s trip on elevated screw on Coney Island boardwalk denied where conclusory claim that NYC was aware of widespread disrepair on the boardwalk did not give actual knowledge of the essential facts within 90-days or a reasonable time thereafter, petitioner failed to show a reasonable excuse for the delay based on infancy without showing a nexus between the infancy and delay, and failed to provide evidence or a plausible argument that NYC was not prejudiced by the more than 1-year delay in serving the late Notice of Claim. Matter of F.Z. v City of New York ✉ |
| Motion to dismiss for lack of personal jurisdiction by manufacturer of sling that ripped while hoisting a 20,000 lb HVAC, causing the HVAC to fall 30-stories, granted where sling was manufactured in Alabama, sold to customer in Connecticut which later sold it to a customer in NY without the manufacturer’s knowledge, and the manufacturer did at most 0.1% of its business in NY. The manufacturer could not have reasonably expected the sling to end up in NY and lacked minimal contacts with NY. Pyle v 260-261 Madison Ave. LLC ✉ |
| Residential school facility’s motion to dismiss plaintiff’s claim of sexual abuse by a priest at its facility in 1985-1986, for failure to name the priest or plead specific facts of how the facility knew or should have known of the abuse, denied at this early stage of litigation where plaintiff alleged the facility knew or should have known of the priest’s proclivities and the specific facts at this point were solely within the knowledge of the defendants. M.O. v Archdiocese of N.Y. ✉ |
| Plaintiff’s second motion for default judgment after being granted leave to amend the Complaint to substitute a named defendant for a John Doe denied where the plaintiff relied on an affidavit of service completed more than a year before the original default motion, which the Appellate Division previously found defective, and plaintiff merely had the affidavit re-sworn instead of re-serving the Amended Complaint on all parties. Plaintiff’s motion for $10,000 sanctions against the added party for frivolous interference denied without evidence of what the interference was or that plaintiff was prejudiced. Matter of Petre v Lucia ✉ Comment: The Court’s prior decision was reported in Vol. 312. |
| Motion to strike Answer of codefendant-owner of building where injured-plaintiff slipped while getting out of her shower by past owners of the property, or to preclude the owner from introducing evidence not provided in discovery, or compel them to provide discovery providently denied where owner responded that the past owners and past non-party management companies were in possession of the requested records and provided a Jackson affidavit from one of the past management companies showing it assumed all records from the past owner, was not in possession of any requested photos, videos, or documents, and provided the files and emails in its possession. Where plaintiffs and past owners conceded the codefendant-owner did not generate and was not in possession of the requested discovery, their belief the past-management companies did not turn over their entire file was irrelevant. Pettinato v EQR-Rivertower, LLC ✉ |
| NYC and detectives who pursued vehicle stolen a few days earlier granted summary judgment dismissing claim of plaintiff struck by stolen vehicle during chase as detectives were not negligent or reckless under VTL §1104 during the chase. The Court does not give the details of the proofs. Sua sponte grant of summary judgment to owner of stolen vehicle properly before the Court as a nonfinal order that necessarily affects the final judgment appealed from and claim of leaving it unattended was too remote from the accident to be a cause. Plaintiff’s argument that appeal from judgment brought up review of sua sponte order granting of summary judgment rejected as there is no appeal from a sua sponte order. Guzman v City of New York ✉ |
| Plaintiff granted summary judgment on Labor Law §240(1) where he fell from permanently affixed internal ladder that collapsed for no apparent reason as he was descending, establishing a §240 elevation risk and that the unsecured ladder caused his injuries. Double hearsay testimony of plaintiff’s employer and limited nonhearsay evidence insufficient to raise an issue on whether plaintiff was engaged in a §240 activity at the time or whether he was the sole cause of the accident. Defendants’ motion for summary judgment on contractual indemnity against employer denied where issues remained on the defendants’ negligence. Defendants denied summary judgment dismissing Labor Law §200 and common law negligence claims where questions remained of whether they had control of the worksite and either created the dangerous condition or failed to remedy it while having actual or constructive notice where plaintiff described the condition as rusty and old, leaving the question of whether it could have been discovered on a reasonable inspection. Valentin v Stathakos ✉ |
| Worker carrying a long metal beam who slipped on a large plastic sheet when he tried to avoid a ladder in a passageway and the beam hit the ladder contributing to his fall granted summary judgment on Labor Law §241(6) predicated on industrial codes §§ 23-1.7(d), and 23-1.7(e)(1) and (2). The Court of Appeals has previously held that plastic sheeting is a “foreign substance” under §23-1.7(d) and the plastic and rock underneath it fit within the definition of debris for §§ 23-1.7(e)(1) and (2) as they were not integral or inherent to the work of moving and erecting a sidewalk bridge and there was no proof the work could not have been accomplished by complying with these provisions. NYC failed to raise an issue on credibility where it claimed plaintiff’s failure to mention specific facts in accident reports and medical records as his subsequent more detailed testimony was not inconsistent with the statements and they relied on hearsay reports without proof statements were attributable to plaintiff who spoke only Portuguese and there was no affidavit establishing the statements were made to someone who spoke Portuguese. NYC granted summary judgment dismissing Labor Law § 200 and negligence claims based on means and methods of plaintiff’s work on proof it did not have supervisory control of the work and neither a privilege to override hazardous means and methods of have representatives on site infer actual supervisory control. Claims based on a dangerous condition remained on questions of whether NYC had actual or constructive notice of the condition. Lourenco v City of New York ✉ |
| Worker granted summary judgment on Labor Law §240(1) on proof his foot fell through a 12” square ‘patch’ in an interstitial space exposed to the floor below when large mechanical equipment had been removed, exposing him to a gravity risk, and he was not provided with adequate §240 safety devices such as a harness, safety line, and tie off point. Defendants’ argument of no liability for an unforeseeable collapse of a permanent structure rejected as plaintiff need only show it exposed him to an elevation risk and his employer testified he sent plaintiff to prevent a risk of falling in the interstitial space to the floor below. Ciaurella v Trustees of Columbia Univ. in the City of N.Y. ✉ |
| IF YOU MUST READ (3 summaries) | |||
| MUST READS | NOTEWORTHY | ||
| NYCHHC granted summary judgment dismissing claim it failed to properly treat plaintiff’s pressure ulcers while at its facility on its expert’s opinion they did not depart from accepted practice. Plaintiff failed to raise an issue in opposition by his expert’s affidavit that was speculative and conclusory. The Court does not give the details of the proofs. Rybek v New York City Health & Hosps. Corp. ✉ |
| Carrier granted permanent stay of UM arbitration claim of spouse who was passenger in vehicle that lost control and struck a parked vehicle as Ins. L. §3420(g)(1) provides a presumptive exclusion for injuries to spouses absent an express provision of coverage and the insurance contract specifically provided there was no coverage ‘[t]o any insured for bodily injury to the spouse of that insured. Matter of Government Employees Ins. Co. v Avila ✉ |
| Carrier granted permanent stay of arbitration of SUM claim made by passenger in insured vehicle where there was no dispute the passenger settled his underlying case without notifying the carrier or obtaining its permission in violation of the insurance contract. Matter of New S. Ins. Co. v Gordon ✉ |