July 30, 2019 | Vol. 169

MUST READS
(3 summaries)
NOTEWORTHY IF YOU MUST READ

Labor Law §240   Scaffold   Comparative Fault   Sole Cause   Conclusory  

Second Department

Supervisor’s conclusory affidavit, made 2.5 years after plaintiff fell when scaffold platform collapsed, stating that there were no clips at the location and his conclusory statement that had clips been used the platform would have been secure did not raise issue on claim that plaintiff was sole proximate cause of the accident. Scaffold collapse without apparent reason entitled plaintiff to summary judgment on Labor Law §240(1). Cruz v Roman Catholic Church of St. Gerard Magella in Borough of Queens in the City of N.Y.


Emotional Harm   Late Notice of Claim   Raised For First Time   Actual Knowledge   Reasonable Excuse   Prejudice  

Second Department

Petition to serve late Notices of Claim for emotional harm caused by FDNY fire drills in building by 3 of the petitioners denied where they failed to submit proposed Notice of Claim with petition. Fourth petitioner denied leave where proposed Notice of Claim did not include “the time when, the place where, and the manner in which her claim arose, the items of damages or injuries, or the total amount claimed.” Fifth petitioner denied leave where no excuse offered for not timely serving Notice of Claim and argument that FDNY had actual knowledge based on participation in the event was not supported by documentary evidence, and failure to make plausible argument that FDNY was not prejudiced by delay. Affidavits and NYPD report submitted for first time in reply not considered. Matter of Brown v City of New York


Discovery   Amend Notice of Claim  

Second Department

Portion of order compelling pre-action discovery which sua sponte granted petitioner leave to amend Notice of Claim, not yet served but due within a week, was an improvident exercise of discretion where the relief granted was not similar to any relief requested in the petition and respondents NYCTA and MTA would be prejudiced by allowing an amendment beyond the time for a timely served Notice of Claim that neither the respondents nor the court had seen. Matter of Velez v City of New York

NOTEWORTHY
(8 summaries)
MUST READS IF YOU MUST READ

MVA   Set Aside Verdict   Pain/Suffering   Materially Deviates  

Second Department

Plaintiff’s motion to set aside award of $162,500/$67,500 for past/future pain/suffering for 40 years as inadequate denied where award did not materially deviate from reasonable compensation for fractured fibula requiring ORIF and 2nd surgery to correct headaches caused by anesthesia, with good recovery within 1-year. Jury found 55%/45% plaintiff/defendant negligence. Diaz v Dadabo


Dogbite   Notice   Vicious Propensity   Uncertified Records  

Second Department

Plaintiff raised issue in opposition by proof that dog was kept at least in part as a guard dog, bit infant’s face without provocation, would not let go until its mouth was pried open, and lacerations to infant’s face required emergency surgery and left multiple scars. Uncertified medical records admissible on motion where they were not the only proof relied on. I.A. v Mejia


Serious Injury   Causation   Expert Aff   Conclusory  

Second Department

Moving defendant and cross moving defendant who adopted “facts, legal arguments, . . . and exhibits” of moving defendant granted summary judgment on serious injury on proof that scar requiring 3-stitches measured 1.3 cm x 2 mm which their expert opined was flat, blended well into the skin, and was cosmetically acceptable establishing it was not significant disfigurement. Plaintiff failed to raise issue of fact by her expert’s affirmed report stating that injuries were caused by accident without addressing defendants’ expert’s opinion that spine and knee injuries were degenerative. Mnatcakanova v Elliot


Workers Comp Defense   Indemnity  

Second Department

Plaintiff’s employer granted summary judgment against building owner and tenant on contractual indemnity claim on proof it did not enter into any contract with them and defendants failed to show that contract containing indemnity agreement between employer and general contractor was intended to benefit owner/tenant. Certificate of Insurance was not a hold harmless agreement. Chong Fu Huang v 57-63 Greene Realty, LLC


MVA   Pedestrian   Discovery   CPLR § 3126  

Second Department

Defendant’s motion for protective order denied and plaintiff’s motion to compel defendant to provide authorization for cell phone records for a 3-hour period on date of accident granted where defendant denied any involvement in the accident. Plaintiff showed the records were reasonably calculated to lead to discovery information related to the action and necessary for trial preparation. Mendives v Curcio


MVA   Bus   Question of Fact  

Second Department

NYCTA failed to meet burden for summary judgment on claim that stop was not unusual and violent with plaintiff’s and bus driver’s testimony that bus took off from bus stop, was traveling 15 mph, and driver stepped on brake to avoid car that cut in front of bus. Brown v New York City Tr. Auth.


False Arrest   Malicious Prosecution   Spoliation   Sanctions   NYC  

Second Department

Plaintiff failed to show defendants “intentionally or negligently” disposed of NYPD investigative file compromising his ability to prove his case. Spoliation sanctions denied. Williams v City of New York


Serious Injury   ROM   Expert Aff  

Second Department

Defendants’ and plaintiff’s experts found significant limited cervical and lumbar ROM and defendants’ expert’s opinion that these were not caused by accident was not entitled to greater weight than plaintiff’s expert opinion that they were caused by the accident. Frangiamore v Wayne Noel Drywall, Inc.

IF YOU MUST READ
(1 summaries)
MUST READS NOTEWORTHY

Serious Injury  

Second Department

Defendants failed to eliminate all questions of fact on issue of serious injury under 90/180 day category. The court does not give the details of proofs. Jung Han v Dragonetti Landscaping

About Matt McMahon

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