July 27, 2021 | Vol. 272

(3 summaries)

MVA   Bicycle   Set Aside Verdict   Turning Vehicle   Jury Charge   NYC  

Second Department
Trial court erred in refusing to charge VTL §1163(b) that requires turning vehicle to continuously signal turn during at least 100′ before the turn where driver of NYC truck was stopped at red light and did not signal until just before the turn then ran over plaintiff-bicyclist. Instruction “that, [c]ontrary to what you might have heard during the trial [defendant ] was, however, not required to signal at least 100 feet before turning his vehicle,” was error since VTL §1163(d) was inapplicable as it only applied to vehicles moving from parking spots. Violation of VTL §1163(b) would be negligence per se as it set a standard of care. Case remanded for new trial. Moore v City of New York    

Snow/Ice   Storm in Progress   Uncertified Records   NYC  

Second Department
NYC failed to meet burden for summary judgment on storm in progress as pages of climatological data submitted did not state observations were “taken under the direction of the United States weather bureau” as required by CPLR §4528 and data conflicted with plaintiff’s testimony of light snow 6-hours before accident. Beaton v City of New York    

Malpractice   Motion to Dismiss   Notice of Claim   Actual Knowledge   Prejudice   Reasonable Excuse  

Second Department
Defendants’ motion to dismiss for failure to timely serve Notice of Claim denied and plaintiff’s cross motion to deem late Notice of Claim timely served nunc pro tunc granted where hospital records indicated delay in performing C-section after signs of fetal distress caused infant’s brain damage giving defendants actual knowledge of essential elements within 90-days and establishing no substantial prejudice from untimely Notice of Claim. Actual knowledge and lack of substantial prejudice eliminated need to show reasonable excuse for delay. Rodriguez v Westchester Med. Ctr. (WMC)    

(6 summaries)

MVA   Rear End   Police   Comparative Fault   NYC  

Second Department
Plaintiff’s motion for summary judgment dismissing affirmative defenses including comparative fault based on his testimony he was stopped at light when rear ended twice denied on police officer’s affidavit that he chased car that first hit plaintiff for 3-miles with lights and sirens on and plaintiff failed to move over as police vehicle approached as required by VTL §1144(a). Atkins v City of New York    

Premises Liab   Negligent Supervision   Negligent Hiring   Assault   Motion to Dismiss  

Second Department
Private school’s motion to dismiss claim it failed to “provide a safe and secure environment” in 1972 when plaintiff was sexually assaulted by one of its educators granted as duplicative of negligent supervision and retention causes of action and fact assault occurred at educator’s apartment could not support a safe and secure environment claim. Steven B. v Westchester Day Sch.    

Comment: The same result and reasoning applied in 2-additional cases involving different students assaulted by the same educator between 1972-1974. Michael R. v Westchester Day Sch., and Lawrence K. v Westchester Day Sch..

Labor Law §241   Labor Law §200   Labor Law §240   Motion to Dismiss   Res Judicata   Collateral Estoppel   Control  

Second Department
Motion to dismiss on res judicata and collateral estoppel by parent company where case against its wholly owned subsidiary that owned building where worker was struck by forklift during construction denied for lack of proof of privity. Affidavit of parent company stating previously dismissed entity was its wholly owned subsidiary and the “special purpose entity” to act as fee owner failed to establish privity where its construction manager testified parent company was not the sole owner of the subsidiary and the parent company rented the forklift that injured plaintiff.

Company that managed work site granted summary judgment on proof it had no authority to control or supervise the work. Bravo v Atlas Capital Group, LLC    

Malpractice   Informed Consent   Set Aside Verdict   Accepted Practice   Jury Charge   Experts  

Second Department
Plaintiff’s motion to set aside defense verdict denied as jury could reach verdict that doctor did not depart from accepted practice in irrigating ear wax resulting in perforated ear drum that required surgery, or fail to obtain informed consent, on fair interpretation of competing experts. Trial court properly declined to charge violation of education law prohibiting practice by unlicensed individuals who are required to be licensed as facts did not support that claim. Deblasi v Medina    

Malpractice   Informed Consent   Accepted Practice   Experts  

Second Department
Conflicting expert opinions of whether defendant departed from accepted practice during hip replacement surgery precluded summary judgment, but defendant granted summary judgment on informed consent on proof defendant informed plaintiff of risks, benefits, and alternatives of the surgery. Lack of certificate of conformity for plaintiff’s expert’s affidavit under CPLR §2309(c) was not fatal defect as it did not prejudice a substantial right of defendants. Williams v Light    

Premises Liab   Duty  

Second Department
Motion to reargue appellate decision denying summary judgment for LLC that owned property where plaintiff fell from porch railing gave way and its sole member granted and decision modified to dismiss case against LLC member, individually, as he never occupied the premises and there was no proof sufficient to pierce the corporate veil. Hayden v 334 Dune Rd., LLC    

Comment: The original decision was reported in Vol 238.
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About Matt McMahon

Civil trials and appeals since 1984
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