July 25, 2017 | Vol. 64

MUST READS
(3 summaries)
NOTEWORTHY IF YOU MUST READ

Premises Liab   Open/Obvious   Inherently Dangerous   De Minimus   Expert Aff  

Second Deptartment

Old Westbury Gardens denied summary judgment where its submissions, including deposition testimony, expert affidavit, and photographs of the plaintiff lying on the walkway where she fell, failed to show that the alleged raised brick was trivial, physically insignificant and did not increase the risks posed, because there was no picture of the brick that caused the plaintiff to trip. Defendant also did not establish that the condition was open/obvious and “inherent to the nature of the property and could be reasonably anticipated by those using it.” Chojnacki v Old Westbury Gardens, Inc.

Comment: The “inherent to the nature of the property and could be reasonably anticipated by those using it,” maxim is uniquely found in the Second Department starting around 2002 (with one exception in the Fourth Department and one in a Bronx County decision). It provides an eloquent maxim that is easy to apply in cases where the alleged defective condition is inherent in nature, such as topography or naturally occurring features. It is not as clear, however, whether it is truly part of the definition of a property owner’s duty to maintain its premises in a reasonably safe condition or a sub species of assumption of risk. It should be carefully analyzed when being applied to man-made features, such as in this case, or to an individual feature on property as opposed to the general naturally occurring conditions, where it may be over applied.


Labor Law §241   Labor Law §240   Labor Law §200   Industrial Code   Control  

First

Defendants’ denied summary judgment on Labor Law §241(6) claim where workers travelling from one side of bridge to the other after dismantling a scaffold were injured when the boom truck they were in struck an overhead sign and gantry because the boom was raised up to 60 degrees. Industrial code §23-8.2(d)(3) (mobile crane travel) which proves that a mobile crane may not travel with the boom raised so high that it “may” bounce back over the cab, raised a question of fact even though there was no proof that the boom bounced back over the cab. There were 2 dissents on this point.

Labor Law §240 claim was dismissed because the injury was not the result of an elevated risk contemplated under the statute, and the Labor Law §200 and negligence claims were dismissed as the defendants had only supervisory control. James v Alpha Painting & Constr. Co., Inc.


Premises Liab   Stairs   Create Condition   Notice   Res Ipsa Loquitor   Hearsay   Admissibility  

Second Deptartment

Homeowner denied summary judgment where plaintiff raised issue of fact in opposition to homeowner’s showing that rotted condition and rusted nails underneath step which popped up when plaintiff stepped on it was latent and homeowner neither created the condition nor had notice of same, by relying on res ipsa loquitor. Exclusive control for res ipsa loquitor does not require rigid application but only that it was “probably” the negligence of the defendant as opposed to others. Proof that the step was on private property in an area not open to the public raised an inference from which a jury may find that it was within the exclusive control of the homeowner. Res ipsa loquitor is merely a rule of circumstantial evidence from which a jury may infer negligence. Statement of homeowner’s son regarding actual notice proffered by plaintiff as an excited utterance was inadmissible hearsay. Marinaro v Reynolds

NOTEWORTHY
(10 summaries)
MUST READS IF YOU MUST READ

Legal Mal   Labor Law §240   Ladder  

Second Deptartment

Law firm’s motion for summary judgment on legal malpractice claim alleging that firm failed to pursue Labor Law §240(1) claim against Dormitory Authority denied, but negligence and breach of contract claims dismissed as duplicative of the legal malpractice claim. Law firm’s argument that plaintiff would not have succeeded on his Labor Law §240(1) claim because he was engaged in routine maintenance while changing the ballast of the light fixture, which would not be covered under Labor Law §240, as opposed to a repair which would be covered under that section, did not eliminate all questions of fact. Plaintiff’s deposition, submitted by defendant on its motion, showed that he was in the process of “disconnecting, splicing, cleaning, and assessing the internal electrical wires in order to fix a light fixture” when the ladder fell, raising a question of whether it was a repair or routine maintenance. Ferrigno v Jaghab, Jaghab & Jaghab, P.C.


Dogbite   Vicious Propensity   Governmental Function   Special Duty  

Second Deptartment

City was required to maintain a dog shelter by statute and was exercising a governmental function and did not create a special duty where brother of volunteer was bit by a pit bull while visiting the shelter. There is no cause of action in New York for negligence for dog bites and city established by testimony of shelter worker that it did not know and should not have known of dog’s vicious propensity. Abrahams v City of Mount Vernon


Premises Liab   Slip/Trip   Snow/Ice   Storm in Progress   Independant Contractor   Espinal  

Second Deptartment

Home Depot denied summary judgment on the Complaint and on its cross-motion against its snow removal contractor where proof showed that the snow stopped 12 hours before plaintiff’s fall and 10 hours after the temperature dropped below freezing. Home Depot failed to show that it did not have an adequate opportunity to correct the condition after the cessation of the storm and that it did not directly or by its contractor make efforts to remove the snow which may have created or exacerbated the condition. Snow removal contractor granted summary judgment on third-party complaint by showing that it did not have a duty of reasonable care outside of its contract to Home Depot, that it had no duty of care to the plaintiff, and that no Espinal exception applied. Morris v Home Depot USA


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

Second Deptartment

Property owners’ motion for summary judgment granted on proof that there was a storm in progress and that their snow removal efforts did not create or exacerbate the condition. Plaintiff failed to raise a question of fact that defendants created or exacerbated the condition during the storm in progress or that the slippery condition existed prior to the storm in progress. Bradshaw v PEL 300 Assoc.


MVA   Set Aside Verdict  

Second Deptartment

Plaintiff’s motion to set aside verdict finding defendant not negligent denied as it could be supported by a fair interpretation of the evidence taken in the light most favorable to the defendant. Defendant testified that he was backing up his box truck but stopped when he saw the plaintiff’s vehicle approaching and was stopped when the plaintiff struck the box truck while trying to go around him. Kirkland v Ranchers Best Wholesale Meats, Inc.


MVA   Emergency Doctrine   Spoliation   Estoppel   Raised For First Time   BP   Serious Injury  

Second Deptartment

Vehicle owner and repair shop denied summary judgment based on emergency doctrine where they did not establish as a matter of law that the claimed brake failure which caused them to go through a stop sign was sudden and unexpected. Plaintiff’s claims that defendants should be estopped from raising the emergency doctrine because they discarded the alleged failed brake lines after the accident were not considered as it was raised for the first time on appeal and defendant did not have an opportunity to explain their motives in discarding the brake lines below. Vehicle owner failed to adequately address plaintiff’s claims in the BP of serious injury. D


MVA   Rear End   Nonnegligent Explanation  

Second Deptartment

Injured passenger in car rear ended by defendant was denied summary judgment where defendant’s testimony raised issue of fact on nonnegligent explanation that driver of car plaintiff was a passenger in stopped suddenly in intersection without giving turn signal in violation of VTL §1163. Ortiz v Welna


MVA   Rear End   Pileup   Nonnegligent Explanation  

Second Deptartment

Testimony of drivers of first and second car established defendant’s (second car) entitlement to summary judgment confirming that the defendant’s vehicle was stopped 4’ behind the plaintiff’s car when it was struck in the rear and propelled into the plaintiff’s car by a nonparty third car, demonstrating a nonnegligent explanation. In opposition, plaintiff submitted the affidavit of the third car driver which raised an issue of fact as to whether the defendant’s car struck the plaintiff’s car before the third car struck the defendant’s car. Hasan Sharif Williams v Sala


Premises Liab   Slip/Trip   De Minimus  

Second Deptartment

Church entitled to summary judgment where plaintiff tripped and fell on a damaged piece of tile with a depression of no more than 1/8”. There is no set measurement for a defect to be trivial but where photographs and plaintiff’s description show the defect to be no more than 1/8″ and the surrounding circumstances did not create a trap or increased risk, the defect is trivial and non-actionable. Kavanagh v Archdiocese of the City of N.Y.


Legal Mal   Sanctions  

Second Deptartment

Both plaintiff and defendant failed to meet their initial burdens for summary judgment on issues of legal malpractice, which include: exercise of reasonable skill and knowledge; proximate cause; of ascertainable damages, and that plaintiff would have prevailed, or not been damaged, but for the malpractice. The lower court improvidently exercised its discretion in refusing to consider the merits of plaintiff’s cross motion, deeming it a successive cross motion, put properly denied the cross motion finding a question of fact. Plaintiff failed to show that defendant’s conduct was frivolous warranting sanctions. Burbige v Siben & Ferber

IF YOU MUST READ
(2 summaries)
MUST READS NOTEWORTHY

Serious Injury   Expert Aff  

Second Deptartment

Plaintiff raised a triable issue of fact by competent medical evidence that her brain injury constituted a serious injury under permanent consequential or significant limitation categories and that it was caused by the accident, in response to defendant’s showing of entitlement to summary judgment on serious injury by competent medical proof. The court does not give the details of the proofs. Pendleton v Bizzoco


Serious Injury   BP   Expert Aff  

Second Deptartment

Defendants failed to meet their initial burden for summary judgment by adequately addressing allegations in the BP on 90/180, consequential, or significant limitation categories for plaintiff’s claim of a head injury. The court does not give the details of the proofs. Adams v Dura Cab Corp.

About Matt McMahon

Civil trials and appeals since 1984

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