Child Victims Act Motion to Dismiss Emotional Harm
In a thorough review of intentional infliction of emotional distress (IIED), the Court found that the lower court erred in dismissing the claim because it was based on the same facts as the negligence causes of action under the Child Victims for of sexual abuse, negligent hiring, retention, and supervision noting that the Court of Appeals decision relied on for the proposition that IIED cannot coexist with a traditional tort was dicta, the Court of Appeals subsequently recognized it was a distinct cause of action, and the CPLR encourages alternative pleadings.
The Complaint adequately pled the stringent requirement of extreme and outrageous conduct for IIED by allegations the defendant-church knowingly permitted a child molester to coach its prestigious youth basketball team, the coach was allowed to have repeated inappropriate sexual contact with the teen alone in a locker room over 2-years, turned a blind eye to the abuse, and had a position of dominance over the teen which, if credited, would establish their conduct went “beyond all possible bounds of decency and is atrocious and utterly intolerable in a civilized society.” Brown v Riverside Church in the City of N.Y. ✉
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Amend Complaint Statute of Limitations Waiver
Under an unusual set of circumstances, the plaintiffs’ motion to amend the Complaint to add an individual it had previously sued but discontinued against without prejudice based on his attorney’s misrepresentation that he had no connection to the company which left open the door of the dumpster that blew open in a storm and struck plaintiffs’ vehicle, even though he was its CEO and actively managed the construction site, was granted with no opposition and to add the company which had not been previously sued under the relation back doctrine after the statute of limitations expired granted where plaintiffs raised questions of fact on unity of interest and whether the company knew or should have known they would have been included originally absent mistake. The Court noted that had the CEO not waived any objection to being added back, the motion would have failed as the party being related to must be an active party at the time the doctrine. Bisono v Mist Enters., Inc. ✉
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Premises Liab Attorney Disqualification Set Aside Verdict Directed Verdict Notice Causation Materially Deviates Raised For First Time
Defendant’s post-verdict motion to disqualify the plaintiff’s attorney claiming that some of her medical bills were paid from the attorney’s IOLA account providently denied on proof the attorney did not finance any of her medical treatment and did not violate Rule 1.7. Argument that the attorney violate Rule 3.7 not considered where raised for the first time on appeal.
Motion to set aside verdict as against the weight of the evidence, for judgment as a matter of law, and to reduce jury award of $600,000/$750,000 for past/future pain/ suffering as materially deviating from reasonable compensation and $180,000/$400,000 for past/future lost earnings granted only to the extent of reducing the lost earnings to $175,000/$390,000 on plaintiff’s concession those were the amounts proven. The jury could reasonably infer from the testimony of plaintiff and her daughter that the bathroom ceiling that fell on plaintiff while taking a shower had leaked for years, they often reported the leaks to the super, the landlord placed a basis above the drop ceiling without fixing the leak, the leaks continued despite the landlord’s notice of the condition, and the landlord did not remedy it. The jury could credit plaintiff’s treating doctor’s opinion that the injuries to her knee and shoulders were caused by the accident and plaintiff showed her lost earnings with reasonable certainty by her testimony and W-2 forms. Buckham v 322 Equity, LLC ✉
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Malpractice Wrongful Death Notice of Claim Statute of Limitations Renew
Motion to serve late Notice of Claim against NYCHHC and hospital denied where statute of limitation had expired before motion and wrongful death claim was not expressly asserted in the Complaint without alleging their were distributes who suffered pecuniary loss. Motion to renew providently denied where court previously had the Complaint and claim letters and they would not change the result. Axisa v New York City Health & Hosps. Corp. ✉
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MVA Notice of Claim Actual Knowledge Reasonable Excuse Prejudice NYC
Petition for leave to serve late Notice of Claim for injuries to passenger-son when vehicle was rearended by a NYC sanitation truck denied without proof NYC had actual knowledge of the essential facts as generally knowledge to a police or fire department cannot be imputed to a municipality, a reasonable excuse for not timely serving the Notice of Claim, or evidence or a plausible argument that NYC would not be substantially prejudiced by the delay. Jeudy v City of New York ✉
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Premises Liab Wet Floor Workers Comp Defense
Frozen food processing plant granted summary judgment dismissing worker’s claim for slip and fall on water on floor on proof they “controlled and directed the manner, details, and ultimate result of the plaintiff’s work” who worked for a staffing agency, establishing she was their special employee entitling them to the worker compensation exclusivity defense. Miolan v Milmar Food Group, LLC ✉
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Construction Liab. Motion to Dismiss Workers Comp Defense Indemnity
Contractor’s motion to dismiss action by worker injured during construction at home granted as barred by workers comp exclusivity clause granted on documentary evidence of WCB finding that contractor was plaintiff’s employer, which contractor had denied, conclusively establishing contractor’s entitlement to workers comp defense. Homeowner’s cross claims against contractor for contractual indemnity converted to third-party claims. Olivera-Perez v B.A.M. Bldrs., Inc. ✉
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Malpractice Wrongful Death Accepted Practice Loss of Chance Experts
Plaintiff’s experts raised issue of fact in opposition to summary judgment motion of defendants, emergency room physician, surgical team physician assistant, and hospital with opinions they departed from accepted practice by failing to recognize and aggressively treat decedent’s acute renal failure, including not monitoring his urine output or seeing he had no output for over 10-hours, for failing to provide aggressive fluid resuscitation for acute pancreatitis, failing to recognize hyperkalemia, acidosis, and hypocalcemia, lack of timely management to prevent cardiac arrhythmia, and that the PA additionally departed by not notifying her supervising attending of decedent’s condition for 4-hours, all of which diminished the chance of survival for the 40-year-old decedent who died after multiple heart attacks that started 12-hours after admission to the ER.
Plaintiff’s experts failed to raise an issue as to the gastroenterologist without addressing his expert’s opinion of no departure. Plaintiff did not appeal grant of summary judgment for the PA’s supervising attending. Starre v Dean ✉
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MVA Question of Fact Note of Issue
Grant of summary judgment to plaintiff before discovery on his affidavit and police report showing his vehicle was hit by defendants’ box truck as it backed out of parked position reversed and motion denied as police report noted the box truck was moving slowly while plaintiff’s vehicle was moving fast and the report and plaintiff’s affidavit were consistent that plaintiff spun out of control after the contact, leaving questions of plaintiff’s negligence. Motion to strike Note of Issue granted in light of denial of summary judgment. Olivo v Rent A Unit NY, Inc. ✉
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Premises Liab Default Judgment 3rd Party Contractor Espinal
Plaintiff met burden for default judgment against contractor who did work on ceiling/roof in apartment that fell on plaintiff where she verified the Complaint and alleged the contractor was hired to do the repairs, launched an instrumentality of harm by negligently installing a hazardous condition, and that she was injured when the ceiling/roof collapsed on her. Davis v Graham ✉
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MVA Bicycle Comparative Fault There to be Seen Uncertified Records
Plaintiff granted summary judgment on his affidavit that defendant’s stopped, double-parked vehicle reversed into him in violation of VTL §1211(a) while he was approaching the vehicle on his bicycle. Defendant failed to submit an affidavit to raise an issue in opposition. The lower court providently declined to consider an uncertified police report. Plaintiff failed to meet burden for dismissal of comparative fault defense as questions remained of whether he exercised reasonable care to avoid the accident by seeing what was there to be seen. Dieubon v Moore ✉
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MVA
Defendant-driver in middle lane struck by plaintiff’s vehicle as it pulled from a parking lane granted summary judgment on proof the plaintiff’s vehicle struck the middle of the passenger side of defendant’s vehicle. Sheppard v Arora ✉
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MVA Rear End Nonnegligent Explanation
Owner and driver of minibus with plaintiff as a passenger failed to meet burden for summary judgment where accounts by plaintiff and defendant-driver of vehicle that rear ended the minibus stating the minibus was changing from the middle to right lane and immediately came to a hard stop conflicted with the minibus driver’s claim he was in the right lane the whole time. Timmons v Logan Bus Co., Inc. ✉
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Premises Liab Sidewalk § 7-210 Causation
Defendant denied summary judgment where it showed the hole plaintiff tripped on between its building and codefendant’s building did not abut its property as it touched its sidewalk flag but was wholly on the adjacent property’s sidewalk flag but failed to show it maintained the sidewalk on its side of the hole in a reasonably safe condition or that failure to do so was not a cause of plaintiff’s accident. Wilson v A. Primus Realty, LLC ✉
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Premises Liab Create Condition Causation Admissibility
Plaintiff granted summary judgment for fall while descending boat ramp on his and defendant’s principal’s testimony and video establishing defendant created the dangerous condition that caused plaintiff’s fall. The Court does not give the details of the proofs.
The motion court was not required to deem defendant’s counterstatement of material facts as admitted. Cuminale v 160-55 Crossbay Blvd., LLC ✉
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MVA
Defendants failed to meet burden for summary judgment dismissing plaintiff’s claim for collision in intersection where plaintiff’s and defendant-driver’s testimony and witness’ affidavit had conflicting versions of how the accident happened. Tenezaca v Davidov ✉
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