Motion to Dismiss Note of Issue 90 Day Notice Discovery CPLR § 3126 Willful/Contumacious Good Faith Aff
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 ✉
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Highway Design Wrongful Death Motion to Dismiss Notice of Claim Prejudice Court of Claims
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 ✉
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Malpractice Wrongful Death Motion to Dismiss Capacity to Sue Estate Statute of Limitations CPLR §205(a) Court of Claims
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 ✉
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MVA Bus Set Aside Verdict Pain/Suffering Materially Deviates
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 ✉
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Malpractice Motion to Dismiss Estate
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 ✉
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MVA Directed Verdict Strike Answer Subpoena Service Preclusion Notice
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 ✉
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Construction Liab. 3rd Party Contractor Espinal CPLR § 3126 Strike Answer Good Faith Aff Willful/Contumacious Reargument Appealable Order
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. ✉
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Child Victims Act Motion to Dismiss Negligent Hiring Negligent Supervision Court of Claims
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 ✉
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Labor Law §240 Labor Law §241 Labor Law §200 Gravity Risk Safety Devices Recalcitrant Worker Hearsay Industrial Code Create Condition Notice
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 ✉
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MVA Pedestrian Sole Cause Preclusion Renew Reasonable Excuse Premature Motion
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
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 ✉
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MVA Bus Rear End Speculation
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 ✉
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