July 23, 2019 | Vol. 168 - New York Torts Weekly

MUST READS (3 summaries)
	NOTEWORTHY	IF YOU MUST READ

MVA Emergency Doctrine Jury Charge Set Aside Verdict

Second Department

Judgment in favor of truck driver on defense verdict affirmed where lower court providently gave emergency doctrine charge which should be given whenever reasonable view of evidence shows emergency when viewed in light most favorable to requesting party. Defendant testified he had to pull onto shoulder to avoid hitting plaintiff’s vehicle when she darted out from a gas station before she collided with the truck on shoulder. Figgiani v Crociata

MVA Feigned Issue

First Department

Tractor-trailer granted summary judgment on photographs and driver’s testimony that tractor-trailer was completely within lane plaintiff attempted to enter without making certain it was safe in violation of VTL §1128[a]. Plaintiff’s testimony that both vehicles were entering the lane at the same had no evidentiary value where she “‘relied solely on [her] own testimony, uncorroborated by any other witnesses or evidence,’ and her testimony belied ‘common sense.'” There was 1 dissent. Castro v Hatim

Premises Liab MVA Create Condition Hearsay

Second Department

Landowners may be liable where they ‘alter[s] the natural surface of the land so as to collect water thereon and then discharges it upon the land of another at a place or location other than where it would naturally flow and in larger quantities than would normally exist.’ Abutting landowner granted summary judgment on proof it did not construct berm which diverted water onto road causing plaintiff to lose control of car and that berm was present when it purchased the property. Photographs did not suggest berm was created by defendant and hearsay statements were insufficient to raise an issue. Tomei v Town of Riverhead

NOTEWORTHY (7 summaries)
	MUST READS	IF YOU MUST READ

Estate Notice of Claim Amend Complaint

Second Department

Decedent’s mother’s motion to amend complaint after she substituted as administratrix and individually to include derivative claim of loss of services denied where it was not mentioned in Notices of Claim. Leave granted to amend Complaint to include wrongful death claim. Conn v Tutor Perini Corp.

Med Mal Informed Consent Accepted Practice Causation Expert Aff Speculation Conclusory

Second Department

Defendants’ board certified ENT expert made out entitlement to summary judgment comparing pre and post sinus surgery CT scans showing no damage during surgery, establishing no departure from accepted practice or causation. Plaintiff’s expert did not raise issue of fact where opinions were speculative and conclusory, not addressing findings of defendants’ expert. Lack of causation of plaintiff’s loss of smell from surgery warranted summary judgment dismissing informed consent claim. Gilmore v Mihail

Premises Liab Construction Liab. De Minimus Open/Obvious Inherently Dangerous Assumption of Risk

Second Department

Utility, contractor, and county failed to meet burden for summary judgment where jogger had to move to the side of road with excavation work and tripped on raised edge of depression being restored. Testimony and photographs submitted by defendants showed defect to be 4’x8′ by at least 1″ deep leaving issues of whether it was physically insignificant or its characteristics and surrounding circumstances increased the risks posed. Orange perimeter markings did not eliminate questions where plaintiff was distracted by oncoming traffic and it was not enough to show defect was open/obvious without showing that it was not inherently dangerous. Assumption of risk did not apply. Karpel v National Grid Generation, LLC

Premises Liab Slip/Trip Stairs Open/Obvious Inherently Dangerous Amend BP

Second Department

Building owner and tenant failed to eliminate all questions of fact on whether single step plaintiff fell from was open/obvious and not inherently dangerous where testimony and photographs submitted by defendants left question of whether thin metal strip at edge of stair gave sufficient visual cue of elevation change. Plaintiff’s cross-motion to amend BP to include building code violations for the first time denied as patently devoid of merit. Mongelli v Emart Dept. Stores, Inc.

MVA VTL §1104 Reckless

Second Department

Police officer and municipality granted summary judgment where officer struck plaintiff’s vehicle while driving in reverse with lights and sirens on while responding to what he thought was a domestic assault under VTL §1104 which permits police officer to disregard rules for direction of travel. Officer’s actions were not reckless. McGough v City of Long Beach

Premises Liab Slip/Trip Snow/Ice Sidewalk

Second Department

Building owner and other defendants failed to submit evidence in admissible form sufficient to meet burden for summary judgment on claim that plaintiff did not fall on sidewalk adjacent to owner’s property. The court does not give the details of the proofs. Garcia v Grayco Corp. of Upstate N.Y.

Uninsured Stay Arb

Second Department

GEICO met its burden of showing vehicle plaintiff identified as hit/run vehicle was insured but plaintiff raised issue on proof that vehicle was being repaired and couldn’t have been involved in accident. Permanent stay denied and matter remitted for fact finding hearing. Matter of Government Empls. Ins. Co. v Williams

IF YOU MUST READ (1 summaries)
	MUST READS	NOTEWORTHY

Serious Injury

Second Department

Defendant made out prima facie entitlement to summary judgment on serious injury but plaintiff raised an issue of fact in opposition. The court does not give the details of the proofs. Burton v Walcott

July 23, 2019 | Vol. 168

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