July 24, 2018 | Vol. 116

MUST READS
(8 summaries)
NOTEWORTHY IF YOU MUST READ

Premises Liab   Slip/Trip   Snow/Ice   Sidewalk   Storm in Progress   Create Condition   Notice  

First

NYCHA not entitled to storm in progress defense where climatological records showed trace amount of freezing rain stopped hours before plaintiff fell and there was no appreciable accumulation but plaintiff failed to raise issue of fact on questions of NYCHA’S creation of the ice by piling snow onto a fence a week before it allegedly melted and re-froze where temperature did not rise above freezing, and only to 34° an hour before the accident. NYCHA superintendent testified that area was inspected 3 times, including 1 hour before accident, and that no ice was visible. Plaintiff was unable to estimate distance from where she fell to fence where snow was piled, did not see ice before she fell, and could not describe color or thickness of the ice failing to raise an issue on constructive or actual notice. Williams v New York City Hous. Auth.


Set Aside Verdict   Directed Verdict   Res Ipsa Loquitor  

Second Deptartment

Plaintiff’s reliance on res ipsa loquitor at trial misplaced absent proof that pizza trays being delivered were exclusively within the control of the defendant’s employee. Res ipsa loquitor allows plaintiffs to prove their case by circumstantial evidence where the direct act of negligence cannot be proved. Since circumstantial evidence permits but does not require a jury to find negligence, summary judgment or a directed verdict is granted in only the rarest of circumstances where there is no rational path for a jury to find otherwise. There was a rational path for the jury’s verdict which was reached on a fair interpretation of the evidence. Barril v McClure


Premises Liab   Slip/Trip   Sidewalk   Prior Written Notice   Governmental Function   Intervening Cause   Foreseeability   De Minimus  

Second Deptartment

Since Nassau County leased the premises to a Children’s Museum, it was acting in a proprietary not governmental function and was not entitled to the protection of the prior written notice ordinance. Defendants’ claim that infant-plaintiff’ walking onto broken sidewalk was a superseding cause rejected as it was foreseeable that she would follow the crowds. The size of the defect, it’s irregular surface, and fact that it was difficult to see due to caulking defeated defendants’ claim that the defect was trivial. French v Long Is. Children


Premises Liab   Arbitration  

Second Deptartment

Defendants’ motion to stay action for injuries sustained at indoor trampoline facility and compel binding arbitration pursuant to an agreement signed by the infant-plaintiff’s father more than 1 year before the accident denied. The agreement stated that all disputes must be brought within 1 year “of the agreement,” and the infant-plaintiff’s accident occurred beyond that 1 year. The terms of the agreement were not “clear, explicit, and unequivocal” necessary to surrender the right to resort to the courts. Giffone v Berlerro Group, LLC


MVA   Bus   Rear End   Question of Fact  

Second Deptartment

Plaintiff made out prima facie entitlement to summary judgment on testimony that she was a passenger in a parked vehicle struck in the rear by defendants’ bus. Defendants raised issue of fact in opposition by bus driver’s affidavit that she observed that plaintiff’s car was unoccupied at the time of the accident. Hamdamova v New Dawn Tr., LLC


Labor Law §240   Workers Comp Defense   Control  

Second Deptartment

In Labor Law §240(1) case property owner failed to meet its burden of showing it was alter ego of plaintiff’s employer where it did not show that it controlled the day to day operations of the employer company or that the 2 companies operated as a single integrated entity. It is not enough to show some relation between the 2 companies. Sanchez v 3180 Riverdale Realty, LLC


Set Aside Verdict   Pain/Suffering   Wrongful Death   Materially Deviates   Noseworthy   Comparative Fault  

Second Deptartment

Defendant’s motion to set aside verdict or alternatively reduce damages granted to extent of reducing award for 1-second pre-impact terror from $250,000 to $50,000, reducing award for 11-20 minutes of minimally conscious pain/suffering from $1,250,000 to $400,000, and leaving jury’s award of $170,000 for economic damages undisturbed. Appellate court found awards materially deviated from reasonable compensation to the extent reduced by the lower court. Vatalaro v County of Suffolk

Comment: In a companion decision it was found that jury’s decision was based on a fair interpretation of the evidence and that the lower court properly gave a Noseworthy charge despite fact that plaintiff could call eyewitnesses because eyewitnesses could not testify to decedent’s perspective which was an issue on comparative fault. This placed plaintiff on an unequal footing. Vatalaro v County of Suffolk.


Vacate Arb   Confirm Arb  

Second Deptartment

$600,000 arbitration award confirmed, and respondent/defendant’s motion to vacate denied, where arbitrator refused to allow live testimony of expert witnesses but held off decision to try and settle matter and give respondent an opportunity to seek court order vacating binding hi/lo arbitration agreement. Petitioner/defendant never submitted motion to vacate arbitration agreement or various expert reports when case didn’t settle, failing to meet burden by clear and convincing evidence that the award “violates a strong public policy, is totally irrational, or exceeds a specifically enumerated limitation on the arbitrator’s powers.” Matter of Verille v Jeanette

NOTEWORTHY
(15 summaries)
MUST READS IF YOU MUST READ

Med Mal   Motion to Dismiss   Default Judgment   Reargument   Appealable Order  

Second Deptartment

Plaintiff’s appeal from order granting defendants’ unopposed motion to dismiss for failure to provide discovery and order denying plaintiff’s motion to reargue dismissed as no appeal lies from an order granted on default or from denial of a motion to reargue. Alvarez v Jawaid

Comment: Rather than appealing an order granted on default an aggrieved party should move to vacate the default and, if necessary, appeal the denial of the motion to vacate.


Labor Law §240   Ladder   Agent  

Second Deptartment

Plaintiff, employee of a subcontractor performing asbestos removal work as part of a larger school project to replace windows and doors throughout high school, granted summary judgment on Labor Law §240(1) on his testimony that the ladder he was on moved for no apparent reason causing him to fall. General contractor was an agent for owner as it had authority to control the work resulting in injury even if it chose not to exercise that authority. Cabrera v Arrow Steel Window Corp.


Vacate Default   Personal Juridiction   Reasonable Excuse  

Second Deptartment

LLC’s motion to vacate default resulting in $150,000 judgment denied where service properly made on Secretary of State even though service address was a boarded-up building. Defendant’s failure to issue change of address to the Secretary of State does not provide a reasonable excuse for defaulting. Defendant’s mere denial of receipt of Summons and Complaint is insufficient under CPLR 317 where neither return receipt nor Summons and Complaint was ever returned. Evans v City of Mt. Vernon


Labor Law §240   Ladder   Indemnity  

Second Deptartment

Plaintiff not entitled to summary judgment on Labor Law §240(1) where he testified that he fell from ladder during construction work but admitted that he told doctor at hospital that he tripped and fell on sidewalk. Although plaintiff explained why he gave 2 versions, it is for a jury not the court to decide which is believable.

Third party plaintiff not entitled to summary judgment on contractual indemnity where contract was entered into after plaintiff’s accident and contract did not clearly state it was intended to be retroactive, but third-party defendant not entitled to summary judgment on indemnity as it failed to show that it was not intended to be retroactive. Zalewski v MH Residential 1, LLC


MVA   Snow/Ice   Prior Written Notice   Create Condition   Emergency Doctrine   Speculation   Conclusory  

Second Deptartment

Suffolk County denied summary judgment on prior written notice where it’s snow removal efforts resulting in an unreasonably high pile of snow at corner, obstructing drivers, raised issue on the exception to the prior written notice ordinance where municipality creates an immediate danger by its snow removal efforts. Driver of other car entering intersection who could not see plaintiff’s car granted summary judgment on emergency doctrine based on her testimony that she was presented with a sudden emergency. Plaintiff’s claims that driver was speeding rejected as plaintiff testified she never saw other car and plaintiff’s expert’s opinions were speculative and conclusory. Manzella v County of Suffolk


Premises Liab   Unknown Cause   Circumstantial Evidence   Notice  

Second Deptartment

Defendant made out entitlement to summary judgment on proof that plaintiff could not identify cause of her fall as she walked into bank entranceway but plaintiff’s affidavit that after standing up she touched the back of her coat which was wet, and climatological data showing that it had been snowing at the time of the accident, raised issue of whether patrons had tracked in snow from outside that was not cleaned up by the bank. Matadin v Bank of Am. Corp.


Dram Shop  

Second Deptartment

Winery granted summary judgment on testimony of its owner and 4 employees that they were present on day of plaintiff’s assault and didn’t recall seeing or being informed of any intoxicated patrons. Dram Shop Act (GOL §11-101) requires showing that a visibly intoxicated person was served alcohol. Plaintiff who was assaulted by another female tour patron after they returned to their hotel failed to raise an issue of fact in opposition. Giordano v Zepp


Negligent Supervision   Causation  

Second Deptartment

School district made out entitlement to summary judgment on proof that infant-plaintiff told his teacher that he did not feel well during viewing of drunk driving video and got permission to go to restroom but never told teacher that he was nauseous or dizzy. After going to restroom, he walked about 30′ before he fainted and fell to the ground. Schools are charged with duty to provide adequate supervision but are not insurers of the safety of the children. Where, as in this case, the accident happened in so short a span of time that no degree of supervision could have prevented it, summary judgment is appropriate for the school. Hurley v Brewster Cent. Sch. Dist.


Premises Liab   Prior Written Notice   NYC  

Second Deptartment

NYC granted summary judgment on proof that it did not have prior written notice of road defect that caused plaintiff’s motorcycle to go airborne and that it did not create the condition by doing work which immediately made the area dangerous. At most plaintiff’s proofs showed that environmental effects created the condition over time which was not sufficient to overcome prior written notice requirement. Liverpool v City of New York


Premises Liab   Slip/Trip   Stairs   Reargument   Renew   Appealable Order   Reasonable Excuse  

Second Deptartment

Plaintiff’s motion to reargue and renew opposition to defendants’ successful motion for summary judgment denied. No appeal lies from denial of a motion to reargue and plaintiff failed to show good cause for not having included additional facts at the time of the original motion. Braxton v Plaza Hous. Dev. Fund Co., Inc.


Premises Liab   Slip/Trip   Stairs   Notice  

Second Deptartment

Owner of 2-family home where plaintiff rented upstairs apartment failed to meet burden for summary judgment because it did not show it lacked constructive notice of defective conditions such as loose top step, loose screws on landing and stairs, and inadequate lighting regardless of plaintiff’s opposition. Bennett v Alleyne


Premises Liab   Construction Liab.   3rd Party Contractor   Dangerous Condition   Create Condition   Indemnity  

Second Deptartment

Contractor that did concrete patching around trench drain 3-years before plaintiff’s accident granted summary judgment against plaintiff, and defendants’ claims for indemnity, on proof that it was a third-party contractor and did not create or exacerbate a dangerous condition which did not exist at the time it did the patching work. Duncan v 112 Atl. Realty, LLC


Premises Liab   Assumption of Risk  

Second Deptartment

Town entitled to summary judgment where infant-plaintiff was injured by submerged jagged rock at town beach because it was “a naturally occurring phenomenon, inherent in the nature of the landscape” that the town could not reasonably be expected to correct. The appellate court found lower court’s application of primary assumption of risk misplaced but affirmed on the naturally occurring phenomenon doctrine. Mugnai v Town of Oyster Bay


Construction Liab.   Workers Comp Defense  

Second Deptartment

Worker’s case for injuries sustained on construction site dismissed based on exclusivity of workers compensation benefits. A worker can have more than 1 employer including where acting as a special employee temporarily assigned and the temporary employer has, inter alia, control of employee’s work. Flanagan v Kajima USA, Inc.


Discovery  

Second Deptartment

Lower court’s grant of protective order limiting scope of plaintiff’s deposition to damages from assault, battery, fondling, and forcible touching for which summary judgment had been granted on res judicata from plea to criminal counts, was not improvident exercise of discretion as these were the only issues left relevant in the case. Morrow v Gallagher

IF YOU MUST READ
(0 summaries)
MUST READS NOTEWORTHY

About Matt McMahon

Civil trials and appeals since 1984
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