July 31, 2018 | Vol. 117

MUST READS
(7 summaries)
NOTEWORTHY IF YOU MUST READ

Med Mal   Motion to Dismiss   Judiciary Law §487   Punitive Damages   Speculation  

First

Plaintiff failed to allege deceit and related damages in her Judiciary Law §487 action claiming that defendant law firm told her medical malpractice action was active when it had been dismissed for failure to comply with 3 discovery orders. Plaintiff’s claim that lower court would have vacated default had plaintiff been informed earlier was speculation. Separate punitive damage claim improper as they are an element of total damages and complaint did not allege intentional and malicious treatment sufficient to warrant punitive damages. Jean v Chinitz


Highway Design   Prior Written Notice   Sole Cause   There to be Seen  

Second Deptartment

Town and county denied summary judgment where car plaintiffs-passengers were in “crept” into intersection on town road after stopping at stop sign because traffic on intersecting county road was hidden by trestle when it was struck by truck traveling on county road that entered intersection not controlled by stop sign. Town showed that it did not own or control intersection but failed to show it could not be found negligent in design and planning of town road as it approached the intersection. Driver of plaintiffs’ car was negligent for not yielding the right of way after stopping but defendants failed to show truck driver did not contribute to accident, precluding summary judgment on sole cause. Town not entitled to prior written notice on claim that it negligently designed and planned the road leading to the intersection but claims of passive negligence dismissed for lack of prior written notice. Miller v County of Suffolk


Vacate Default   Reasonable Excuse   Meritorious Action  

Second Deptartment

Building owners and management companies’ motion to vacate default judgment denied where each were LLCs properly served by service on the Secretary of State. Denials of receipt of the Summons and Complaint does not raise issue of fact when service was on Secretary of State. One defendant’s failure to correct address with Secretary of State is not reasonable excuse for default in answering. Vacating default under CPLR 317 also denied where proposed Answer lacked specific details, was verified by attorney, and no additional facts or experts’ opinions were offered to establish a meritorious defense. The follow-up mailing under CPLR 3215(g)(4) not required as that applies to service on corporations, not LLCs. Jian Hua Tan v AB Capstone Dev., LLC


Med Mal   Lien  

First

DSS granted summary judgment on $4.8 million claim against hospital for care of infant hospitalized for 7 years from hospital’s malpractice where $6 million settlement of underlying malpractice case obligated hospital to pay for any Medicaid lien. Hospital’s argument that DSS waived claim by not asserting it during proceeding to wind up infant’s trust after infant died was rejected as hospital had not billed Medicaid at that time. Parties agreed that stipulation of settlement clearly indicated on its face that DSS was an intended third-party beneficiary. Commissioner of the Dept. of Social Servs. of the City of N.Y. v New York-Presbyterian Hosp.


Premises Liab   Amend Complaint   Notice  

Second Deptartment

Owner of property where tree fell on plaintiff granted summary judgment on defendant’s proof that she lacked actual or constructive notice of any defect in the tree and plaintiff failed to raise issue of fact in opposition. To raise issue of fact plaintiff would have had to show that a reasonable inspection would have revealed the dangerous condition. Pagan v Jordan


Labor Law §240   Ladder   Safety Devices   Indemnity  

First

Kitchen ventilator attached to ceiling beam that fell, causing plaintiff to fall, was not safety device under Labor Law §240(1) because it was the object he was working on as part of the demolition project and not intended to protect him from elevated risks, but the 8’ ladder he was using was inadequate for attaching a 60 lb derrick rig needed to remove ventilator, entitling him to summary judgment on Labor Law §240(1). Landlord granted conditional summary judgment on contractual indemnity where lease clearly required indemnity for all injuries “caused” by tenant, which did not require a finding of negligence. Hong-Bao Ren v Gioia St. Marks, LLC


Defamation   CPLR § 3126   Willful/Contumacious  

Second Deptartment

Lower court did not abuse its discretion in dismissing action for failure to comply with discovery orders where BP and response to discovery, served 1 year after demand, was inadequate, plaintiff failed to comply with 2 subsequent discovery orders, and ignored other discovery demands evincing willful/contumacious disregard of court’s orders. Westervelt v Westervelt

NOTEWORTHY
(17 summaries)
MUST READS IF YOU MUST READ

Premises Liab   Slip/Trip   Stairs   Notice   Last Inspection  

Second Deptartment

Building owner and manager denied summary judgment where plaintiff slipped on urine descending staircase, grabbed onto handrail that dropped 4-5” causing him to lose balance and fall. Defendants’ employees testified to routinely inspecting area but failed to show last time area was inspected necessary to eliminate question of constructive notice. Quinones v Starret City, Inc.


MVA   Dram Shop   Personal Juridiction   Motion to Dismiss  

Second Deptartment

Nightclub and its employees’ motion to dismiss action involving accident where plaintiff-passenger exited a car driven by person claimed to have been served alcohol while visibly intoxicated in the New Jersey nightclub struck the plaintiff while still in New Jersey. Plaintiff failed to raise issue as to whether these defendants transacted business in New York related to the cause of the accident under CPLR 302(a)(1). The nightclub’s advertising on websites and social media did not meet standard for regularly soliciting business or engaging in a persistent course of conduct in New York under CPLR 302(a)(3)(i). Abad v Lorenzo


Med Mal   Informed Consent   Respondeat Superior  

Second Deptartment

Hospital granted summary judgment on proof that care was provided by private attending physician and hospital’s employees merely carried out attending’s orders which were not clearly contraindicated, there were no independent acts of negligence by hospital’s employees, nor a claim that hospital held attending out as an employee. Hospital could only be found liable if it knew or should have known that attending was acting without informed consent. Cynamon v Mount Sinai Hosp.


Labor Law §240   Scaffold   Sole Cause   Comparative Fault  

Second Deptartment

Worker who fell when plank on scaffold he was constructing fell granted summary judgment on Labor Law §240(1) for defendant’s failure to provide adequate safety devices to protect worker at an elevated height. Defendants’ claim that plaintiff was sole cause because he failed to use safety harness rejected absent proof that he was told where safety harness was and that he was required to use it. Defendants’ claim that plaintiff’s negligence in constructing the scaffold made him sole cause also rejected as comparative fault is not a defense to Labor Law §240(1). Kusayev v Sussex Apts. Assoc., LLC


Premises Liab   Set Aside Verdict  

Second Deptartment

Plaintiff’s motion to set aside verdict finding hospital negligent for manner in which employee transported x-ray machine, but not the proximate cause of plaintiff’s injuries, denied where plaintiff testified that his legs flew in the air after being struck in the back by the machine, but hospital’s employee testified that machine was stationary and never touched plaintiff. Defendant’s expert engineer testified that the accident could not have happened as claimed by plaintiff. Issues of liability and damages were not so inextricably intertwined that finding of negligence would be impossible without finding of causation. Verdict was based on fair interpretation of the evidence. McKenzie v Southside Hosp.


Med Mal   Estate   Motion to Dismiss   Prejudice   Meritorious Action  

Second Deptartment

Petition to substitute plaintiff’s husband as administrator of wife’s estate should have been granted and defendant’s motion to dismiss for failure to timely substitute denied, where husband applied for letters 2 years after wife’s death and letters were not issued until a month after defendants moved by order to show cause to dismiss. Petitioner moved for substitution 7 days after letters were issued. Defendants failed to show lack of due diligence or prejudice where all discovery was complete and case revolved mostly around medical records in defendants’ possession. Petitioner also showed a meritorious action. Tokar v Weissberg


Premises Liab   Late Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice   Raised For First Time   NYC  

Second Deptartment

Petition to serve late Notice of Claim on MTA where petitioner tripped on subway tile and served NYC with Notice of Claim within 90-days denied. Petitioner failed to show MTA had actual knowledge within 90-days or reasonable time thereafter. Police report gave notice that petitioner fell and was injured but did not provide essential facts to alert MTA of the claim. Petitioner failed to give reasonable excuse for not timely serving Notice of Claim or to give proof or a reasonable argument that MTA was not prejudiced by delay. Claim that Notice of Claim was served on MTA 15-days after 90-day period not considered as it was first raised in opposition. Matter of Akopyan v Metropolitan Tr. Auth.


Negligent Supervision   Negligent Hiring   Late Notice of Claim   Actual Knowledge   Prejudice  

Second Deptartment

Petition to serve late Notice of Claim made one month after 90-day period, and second petition to serve late Notice of Claim to include claim of negligent hiring and training necessary to curb the type of bullying plaintiffs’ daughter was subjected to at school brought a month later, granted where school had actual knowledge of acts complained of when they occurred and from their own documentation. Defendants ability to reconstruct circumstances from their documentation met petitioners’ initial burden of showing no prejudice. Defendants failed to raise issue of fact in opposition. Failure to state a cause of action can only be ground to deny petition to serve late Notice of Claim where claim is patently devoid of merit. Matter of Edge v Beacon City Sch. Dist.


MVA   Set Aside Verdict   Preexisting   Degenerative  

Second Deptartment

Plaintiff’s motion to set aside damage verdict finding that accident was not a cause of plaintiff’s injuries denied where there was conflicting expert proof regarding pre-existing degeneration. It is up to jury to decide who to believe and their decision was based on a fair interpretation of the evidence. Calpo-Rivera v Brady


Dogbite   Vicious Propensity  

Second Deptartment

Plaintiff’s claim of common law negligence for dog bite dismissed as New York does not recognize negligence cause of action in dog bite cases. Defendants’ proof that they were not aware of any vicious propensities of their dog who bit plaintiff in their house was sufficient for summary judgment and plaintiff failed to raise issue of fact in opposition. Cintorrino v Rowsell


Serious Injury   Preexisting   Degenerative   Expert Aff  

Second Deptartment

Plaintiff failed to raise issue in opposition to defendant’s prima facie entitlement to summary judgment on serious injury where plaintiff’s doctor failed to address defendant’s examining radiologist’s finding that MRI taken only showed pre-existing degenerative conditions. Cavitolo v Broser


Serious Injury   BP  

Second Deptartment

Defendants failed to meet burden on serious injury where they did not address plaintiff’s allegations of 90/180-day category in BP. Bardales v Monell


MVA   Rear End   Sole Cause   Nonnegligent Explanation  

Second Deptartment

Defendant made out prima facie entitlement to summary judgment on her affidavit that she came to a gradual stop at intersection with her turn light on, was stopped for 35 seconds before being struck in the rear by plaintiff’s vehicle traveling in the same direction but plaintiff raised issue of fact by her affidavit stating that defendant came to a sudden stop and failed to put on her turn signal. Martinez v Allen


MVA   Bicycle   Sole Cause  

Second Deptartment

Owner and driver of motor vehicle that struck plaintiff bicyclist in middle of intersection controlled by stop signs denied summary judgment on claim that plaintiff’s entering intersection without stopping, conceded by plaintiff, was sole proximate cause of accident where deposition testimony of both parties submitted by the defendant contained conflicting versions of how accident occurred. Lindner v Guzman


MVA   Rear End   Comparative Fault   Nonnegligent Explanation   Premature Motion  

Second Deptartment

Plaintiff’s motion for summary judgment prior to discovery granted on his affidavit that he was stopped in traffic for 5 to 10 seconds when struck in the rear by car behind him which was propelled into him when it was struck in the rear by car behind that car. Plaintiff is no longer required to show freedom from comparative fault and defendants failed to raise issue of fact in opposition. Motion was not premature since defendants failed to show what evidence might be obtained through discovery that was not within their knowledge. Tsyganash v Auto Mall Fleet Mgt., Inc.


MVA   Bus   Sole Cause  

Second Deptartment

Bus owner and driver’s motion for summary judgment claiming that truck it collided with was sole cause of accident denied where depositions submitted by moving defendants showed conflicting statements regarding how accident occurred, including who entered the lane first. Charlery v Allied Tr. Corp.


Default Judgment   Appealable Order  

Second Deptartment

Defendants’ Notice of Appeal served 19 months after plaintiff served order granting leave to enter default judgment with Notice of Entry was dismissed as untimely. Notice of Appeal must be served within 30-days of service of the order with Notice of Entry. Rantinella v Tomas

IF YOU MUST READ
(1 summaries)
MUST READS NOTEWORTHY

Serious Injury   Causation  

Second Deptartment

Defendant met its burden of proof for summary judgment on serious injury by competent medical evidence but plaintiff raised issue of fact in opposition and provided an explanation for the gap in treatment by her doctor’s affirmed report. Since defendant failed to address causation, burden never shifted to plaintiff. The court does not give the details of the proofs. Chiu Yuan Hu v Frenzel

About Matt McMahon

Civil trials and appeals since 1984
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