July 25, 2023 | Vol. 375

(4 summaries)

Motion to Dismiss   Note of Issue   90 Day Notice   Discovery   CPLR § 3126   Willful/Contumacious   Good Faith Aff  

Second Department
Certification order requiring Note of Issue be filed by a certain date insufficient for dismissal on CPLR §3216 where it did not specify the negligent conduct constituting failure to prosecute as required by the 2015 amendment to §3216 for orders and 90-day notices. Motion to dismiss under CPLR §§ 3126 and 3042 granted against 1-plaintiff where her repeated failure to comply with discovery orders, stipulations, and demands for a BP can be deemed willful/contumacious. Defense counsels’ affirmations adequately set forth good faith efforts to resolve discovery issues before the motion. Morales v Valeo    

Highway Design   Wrongful Death   Motion to Dismiss   Notice of Claim   Prejudice   Court of Claims  

Second Department
State’s motion to dismiss for failure to include any factual allegations other than the time and place of decedent’s accident in the Claim granted as the court lacked subject matter jurisdiction without sufficient factual allegations to show the “nature” of the claim under Court of Claims Act §11(b). Fact that state was not prejudiced in its ability to investigate where factual details were in the Notice of Intention to File a Claim irrelevant as the court cannot dispense with the jurisdiction pleading requirement of §11(b). Sardegna v State of New York    

Malpractice   Wrongful Death   Motion to Dismiss   Capacity to Sue   Estate   Statute of Limitations   CPLR §205(a)   Court of Claims  

Second Department
State’s motion to dismiss Claim filed before claimant was appointed administratrix of decedent’s estate granted for lack of capacity to sue under Court of Claims Act §§ 10(2) and (3) which require the formal appointment of an executor or administrator to bring a Claim. Claimant’s motion to refile the Claim under CPLR §205(a) 6-month extension denied because claimant lacked capacity to file the initial Claim. Court of Claims has no discretion to consider request to file late Claim after the statute of limitations. Francis v State of New York    

MVA   Bus   Set Aside Verdict   Pain/Suffering   Materially Deviates  

Second Department
Jury award after damage trial of $600,000/$1,500,000 past/future pain/suffering, $525,000 future lost earnings, and $1,800,000 future medical expenses, reduced by trial court to $600,000/$1,200,000 past/future pain/suffering, $396,000 future lost earnings, and $700,000 future medical expenses did not materially deviate from reasonable compensation where plaintiff had cervical and lumbar spinal injections and cervical fusion which helped but did not eliminate pain and limited ROM, she was unable to return to work, and her surgeon testified she would need future surgery and treatment.

Trial court properly used the NYC minimum wage at the time of the motion to set aside to determine the lost earning and the future medical expenses was based on plaintiff’s uncontroverted evidence of future care and its cost. Petit v Archer    

(8 summaries)

Malpractice   Motion to Dismiss   Estate  

Second Department
Motion to dismiss by 2-doctors for failure to timely substitute spouse’s estate for 1-year and 8-months after spouse died granted only to extent of dismissing derivative claim as the injured-plaintiff was not ‘the party for whom substitution should have been made,’ under CPLR §1021. Nwasike v Wagner    

MVA   Directed Verdict   Strike Answer   Subpoena   Service   Preclusion   Notice  

Second Department
Judgement on directed verdict at close of plaintiff’s case affirmed where trial court properly denied plaintiff’s application to strike 1-defendant’s Answer for not appearing at trial after she served his attorney as the subpoena was invalid where not served on the defendant or his attorney in NY. Trial court providently precluded plaintiff from calling 2-non-party witnesses who were not previously disclosed and were unavailable on the day of trial. Smith v Usman    

Construction Liab.   3rd Party Contractor   Espinal   CPLR § 3126   Strike Answer   Good Faith Aff   Willful/Contumacious   Reargument   Appealable Order  

Second Department
Independent contractor granted summary judgment dismissing plaintiff’s claim for fall when he stepped in an uncovered hole around a utility pole on proof it did no work in the area prior to plaintiff’s fall, plaintiff failed to meet his burden of proving an Espinal exception, and no Espinal exception was raised in the pleadings. Appeal from denial of motion to reargue dismissed as no appeal lies from denial of motion to reargue.

Correspondence attached to plaintiff’s motion to strike defendants’ Answers sufficient to meet good faith affirmation requirement of 22 NYCRR §202.7(c) but motion denied for failure to make a clear showing defendants’ failure to respond to discovery was willful or contumacious. Farmer v Gazebo Contr., Inc.    

Child Victims Act   Motion to Dismiss   Negligent Hiring   Negligent Supervision   Court of Claims  

Second Department
State’s motion to dismiss Child Victims Act action for failure to satisfy the “nature” and “when” pleading requirements of Court of Claims Act §11(b) denied where the Claim provided a sufficient description of how claimant was sexually abused in foster parents’ home 2-3 days a week to 3-4 times a year from when she was 4nto 12 years old, the names of the foster parents and her abusers , and how the state was negligent in failing to protect her in order to allow state to investigate the claims. Fletcher v State of New York    

Labor Law §240   Labor Law §241   Labor Law §200   Gravity Risk   Safety Devices   Recalcitrant Worker   Hearsay   Industrial Code   Create Condition   Notice  

Second Department
Laborer who fell through plywood covering beams of gutted floor entitled to summary judgment on Labor Law §240(1) on proof his presence on the site was related to the renovation, he was exposed to an elevated risk, and there were no safety devices to protect him from the elevated risk. Building owner failed to raise issues on recalcitrant worker without proof plaintiff was instructed not to go to the building in order to get his tools to work on an adjacent building or to get them from someplace else. Statement in uncertified hospital records not considered as it was hearsay and the only evidence contradicting plaintiff’s version of how the accident occurred.

Owner granted summary judgment dismissing Labor Law §241(6) claim based on industrial code §§ 23-3.3(k)(1)(i) and (l)(demolition) as plaintiff was not involved in demolition. Owner denied summary judgment of Labor Law §200 claim where plaintiff claimed a premises defect and owner failed to show it did not create or have notice of the defect. Estrella v ZRHLE Holdings, LLC    

MVA   Pedestrian   Sole Cause   Preclusion   Renew   Reasonable Excuse   Premature Motion  

Second Department
Plaintiff’s motion to renew her opposition to defendant’s CPLR §3126 motion to preclude her from giving any testimony at trial for failure to appear at EBT providently denied where she did not offer a reasonable excuse for not submitting her affidavit on the original motion and fact in the additional document submitted would not have changed the result. Ok Sun Chong v Scheelje    

Comment: Defendant’s subsequent motion for summary judgment granted on proof plaintiff-pedestrian was sole cause of accident where she crossed the street outside of the crosswalk in violation of VTL §1152(a) and plaintiff failed to raise an issue in opposition. Hope or speculation that discovery may uncover evidence to oppose motion did not make motion premature. Ok Sun Chong v Scheelje.

MVA   Bus   Duty   Vicarious Liab   Uncertified Records   Admissibility  

Second Department
While uncertified police report relied upon by plaintiff was inadmissible, plaintiff met burden for summary judgment against bus driver on proof bus struck the rear bumper of her parked car but failed to meet burden against transit defendants where they denied ownership, operation, or control of the bus or employment of the bus driver in their Answer and plaintiff put forth no proof to establish their duty as a matter of law. Lawrence v Sparks    

MVA   Bus   Rear End   Speculation  

Second Department
Bus company and driver granted summary judgment on driver’s testimony plaintiff’s vehicle rear ended his bus. Plaintiff’s claim bus reversed into her vehicle was mere speculation where she conceded she did not see the bus reversed into her vehicle. Labbee v Willemsen-Fernandez    

(2 summaries)

Arbitration   Uninsured   Waiver  

Second Department
Permanent stay of uninsured arbitration granted where insured settled with driver and owner of 1-vehicle in 5-vehicle accident without obtaining his carrier’s prior consent as required by his policy. Matter of Travelers Home & Mar. Ins. Co. v Delgado    

Arbitration   Uninsured   Hearing  

Second Department
Lower court did not deviate from Court’s prior remittitur by denying claimants’ motion for a framed issue hearing where the remittitur did not require a framed issue hearing. Permanent stay of arbitration granted on proof offending vehicle was insured. Matter of Country-Wide Ins. Co. v Hills    

About Matt McMahon

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