July 5, 2017 | Vol. 61

MUST READS
(6 summaries)
NOTEWORTHY IF YOU MUST READ

Premises Liab   Personal Juridiction   Motion to Dismiss  

Second Deptartment

Action against franchisee of Homewood Suites by Hilton dismissed for lack of personal jurisdiction where proof showed that franchisee and managing company were Virginia corporations which did not own property or conduct business in New York. The fact that other properties licensed by Homewood Suites existed in New York did not constitute property of the defendants in the state and a mere website presence that New York residents can access is not sufficient absent a close nexus between the internet transactions and the alleged claims. Plaintiff slipped in shower at hotel in Virginia. Leuthner v Homewood Suites by Hilton


Premises Liab   Directed Verdict   Subpoena   Discovery  

First

Directed verdicts for defendant NYC and third-party contractor at end of plaintiff’s case reversed and remanded for a new trial. Plaintiff fell into a sinkhole caused by the failure to properly fill in and repave the area after a water main break. The trial court precluded the plaintiff from introducing photographs of the sinkhole taken 2 weeks after the accident finding they did not fairly and accurately depict the hole on the day, NYC specifications included in the third-party contract on the grounds that it constituted internal rules imposing a standard of care higher than reasonable care, and quashed a subpoena to NYC’s on-site inspector and third-party contractor’s principal. Without this evidence the plaintiff could not prove his case and it was error to preclude the photographs which plaintiff identified as fairly and accurately representing the hole on the date of the accident at his deposition, and which he could further describe as to what was and was not accurate at trial, and to preclude the specifications as NYC did not show that they imposed a higher standard than reasonable care and it was not the internal rules of the contractor Quashing the subpoenas was error and taken together it deprived the plaintiff of a fair trial. The court noted that there is no requirement in the CPLR that a party provide a list of trial witnesses or depose a witness to call them at trial. Gonzalez v City of New York


Consent to Change Attorne  

Second Deptartment

Plaintiff’s motion to vacate a stipulation of discontinuance he signed pro se before a consent to change attorney form was signed, or a court order relieving counsel was entered, granted as until the consent to change attorney form or court order was executed, the original attorney continued to represent him and he could not act pro se. Garafalo v Mayoka


Med Mal   Expert Aff   Renew  

Second Deptartment

The lower court providently exercised its discretion, in the interests of justice and favoring determination on the merits, by granting plaintiff’s motion to renew her opposition to the defendants’ motion for summary judgment, which had been granted, producing evidence that she had been treated for 3rd degree burns to her breasts 3 weeks after the claimed malpractice of the radiology doctors and group in administering too high of a dose of radiation, and upon renewal denying the motion for summary judgment. Pastore v Schwartz


Premises Liab   Res Ipsa Loquitor   Unknown Cause  

Second Deptartment

Escalator maintenance company granted summary judgment and summary judgment for Port Authority reversed where plaintiff raised issue of fact under res ipsa loquitor by showing that the escalator, which suddenly started in the opposite direction while plaintiff was walking up the stopped escalator, could only be started and the direction reversed by a specific key that was only in the possession of the Port Authority and that she saw a Port Authority employee at the top of the stairs within 30 seconds, identified by a identification tag, who said that he was going to lock the escalator. A plaintiff can use res ipsa loquitor to raise a triable issue when the exact cause is unknown. Ramjohn v Port Auth. of N.Y. & N.J.


Premises Liab   Slip/Trip   Open/Obvious   Inherently Dangerous  

Second Deptartment

Owner and manager of condominium where plaintiff tripped on exposed tree root next to the condominium she was renting granted summary judgment as the condition was open/obvious and inherent or incidental to the nature of the property and known to the plaintiff. There was no duty to warn. Commender v Strathmore Ct. Home Owners Assn.

NOTEWORTHY
(15 summaries)
MUST READS IF YOU MUST READ

Labor Law §200   Labor Law §241   Labor Law §240   Independant Contractor   Control  

Second Deptartment

Defendants and third-party defendants in 2 actions granted summary judgment on Labor Law §200 and common-law negligence where plaintiff, working for an independent contractor who was hired to remove fly ash from a silo at a power plant, slipped while descending ladder. The claim went to the means and methods of work and defendants showed that they did not have control of the work being performed. Labor Law §240 and §241 did not apply as the worker was not involved in construction, demolition, or repair but the routine maintenance of removal of the fly ash. Kearney v Dynegy, Inc.


Premises Liab   Storm in Progress   Notice  

Second Deptartment

7-11 store granted summary judgment where plaintiff slipped on slush tracked in by customers during a storm. Defendant had placed mats, wet floor cones, and mopped the floor often during the storm, including 15 minutes before the plaintiff’s accident, and does not have a duty to continuously remedy conditions tracked in by customers during a storm. The fact that there was a storm did not give the defendant constructive notice of the particular danger which caused the plaintiffs accident. O’Sullivan v 7-Eleven, Inc.


MVA   Independant Contractor   Estoppel   NYC  

Second Deptartment

NYC granted summary judgment against car passenger upon proof that the car was owned and operated by an independent contractor for which NYC was not liable. Plaintiff’s claim that NYC should be equitably estopped from asserting that they did not own or operate the car based on their DKI to the ownership/operation paragraph in the Complaint could not create reasonable reliance that they were the owners/operators. Hill v City of New York


MVA   Bicycle   Turning Vehicle   Rear End   Comparative Fault   There to be Seen  

Second Deptartment

Plaintiff granted summary judgment where defendants’ vehicle made a right turn and struck the plaintiff’s bicycle in the rear while it was in the bike lane ahead of the vehicle, showing a clear violation of VTL §1163 (a) (turns), and failing to see what was there to be seen. Proof also showed that there was no comparative fault. Harth v Reyes


Dangerous Condition   Sole Cause   Notice   Expert Aff  

First

Defendant which owned and rented truck that plaintiff was using to unload a pallet jack with an 800 lb load that got caught in a gap between the truck and lift, causing him to fall when he freed it, denied summary judgment based on plaintiff’s expert’s opinion that the gap was created over a long period of time based on plaintiff’s description of the gap, a photograph identified as fairly and accurately depicting the defect, and an inspection of the truck 1 year after the accident, raising issue of constructive notice. Defendant failed to show that the defect was an ordinary and obvious hazard of plaintiff’s employment necessary to show sole proximate cause. Rosada v Mendon Truck Rentals, Inc.


Premises Liab   Sidewalk   § 7-210   Prior Written Notice  

First

Adjoining landowner’s motion for summary judgment denied where plaintiff tripped on a cement mound surrounding a street sign on an easement which had been granted to NYC. Adjoining landowner’s claim that the mound was part of the sign installed by NYC did not relieve the landowner of the obligation under administrative code §7-210 to maintain the adjoining sidewalk in a reasonably safe condition. NYC granted summary judgment on landowner’s claim by showing that it did not have prior written notice of the defect. Bronfman v East Midtown Plaza Hous. Co., Inc.


MVA   Rear End   Nonnegligent Explanation   Comparative Fault   Premature Motion   Renew  

Second Deptartment

Plaintiff granted summary judgment on proof that he was slowing down to stop at a red light when he was struck in the rear by the defendant. Defendant’s explanation that the plaintiff stopped suddenly for the light turning yellow to red, that car between them had to pull out of the way, and that he slid into plaintiff because the road was wet, did not provide a nonnegligent explanation since he was required to anticipate that a car would stop suddenly approaching a light. Motion to renew properly denied as new facts would not have changed the result. Mosquera v Roach


Independant Contractor   Dangerous Condition  

Second Deptartment

Manufacturer granted summary judgment on proof that it used an independent transporter to transport and supervise the unloading of its products where plaintiff, store employee, was injured while unloading one of the manufacturer’s products. Plaintiff failed to raise a triable issue in opposition to the manufacturer’s showing that it did not create a hazardous condition by its packaging material and that it did not have control over the independent contractor. Pena v AEP Indus., Inc.


MVA   Pileup   Rear End  

First

Drivers of first and second car in 3 car pileup granted summary judgment of third driver’s claims, and each other’s cross-claims, as the first and second car never collided with each other and the third car rear-ended the first car. Third driver’s attempt to raise a question of fact by testimony that he observed damage to the rear of his car after the accident, which was not there before, did not defeat summary judgment on liability by the first car against the third car since there was no claim that the first car struck the third car. Conrey v Tellone


MVA   Question of Fact  

Second Deptartment

Defendant’s cross motion for summary judgment denied where plaintiff, hit by a red minivan pulling out of a driveway, went back in the evening to identify the van and take down the license plate. Defendant failed to definitively show that it was not his van that was involved in the accident. It is not enough to point to gaps in the plaintiff’s proofs. Feldberg v Skorupa


MVA   Emergency Doctrine   Irregularity  

Second Deptartment

Truck driver and company granted summary judgment where car in which infant plaintiff was a passenger crossed into the oncoming lane and the truck driver had only seconds to react before the collision. The court had the authority to ignore defendant’s failure to include pleadings with the motion and the plaintiff could not show prejudice by failure to include them. Wade v Knight Transp., Inc.


Serious Injury   Set Aside Verdict  

Second Deptartment

Plaintiff’s motion to set aside verdict finding that she did not sustain a serious injury as against the weight of the evidence denied. Where there are opinions of conflicting experts, it is a question of fact for the jury who may credit either expert. Madtes v Scher


Set Aside Verdict  

Second Deptartment

Plaintiff’s motion to set aside a portion of verdict which found defendant who was driving the car that plaintiff was a passenger in not negligent, while finding the other driver 100% at fault, denied as there was a reasonable interpretation of the evidence from which the jury could draw that conclusion. Pierre v Andre


Ins. L. § 3420(a)(2)  

Second Deptartment

Carrier granted summary judgment of injured plaintiff’s Ins. L. §3420 claim to collect unsatisfied portion of judgment against insured where policy was properly canceled hours before the accident for nonpayment of premium and the language of the policy was not subject to interpretation as being divisible so that premium paid for old $1 million policy would extend for full year instead of portion of year which premium paid for $2 million policy. Garcia v Government Empls. Ins. Co.


Renew   Untimely  

Second Deptartment

Third-party defendant’s motion to renew its prior motion for summary judgment based on transcripts of new testimony denied as the original motion was denied as untimely and the new facts would not change the determination that the original motion was untimely. Hodzic v M. Cary, Inc.

IF YOU MUST READ
(4 summaries)
MUST READS NOTEWORTHY

Med Mal   Accepted Practice   Causation   Expert Aff   Conclusory   Speculation  

Second Deptartment

Defendants granted summary judgment on their experts’ opinions that they did not depart from accepted practice and any departures were not cause of the injuries and plaintiff failed to raise a question of fact in opposition. Plaintiff’s expert’s opinion was conclusory, speculative and not based on the record. The court does not give the details of the facts or opinions. Giacinto v Shapiro


Defamation   Motion to Dismiss  

Second Deptartment

Motion to dismiss case against customer who posted negative Yelp review granted because the review, read as a whole, would be understood by reader to be the opinion of a disgruntled customer. Crescendo Designs, Ltd. v Reses


Legal Mal  

Second Deptartment

Law firm’s motion for summary judgment on legal malpractice claim denied where defendant failed to show that plaintiff was unable to prove at least one of the elements of legal malpractice. The court does not give the details of the claims or the proofs. Seidman v Einig & Bush, LLP


Serious Injury  

Second Deptartment

Plaintiff raised a triable issue of fact by competent medical proof in opposition to the defendant’s prima facie showing of entitlement to summary judgment on serious injury. The court does not give the details of the proofs. Kwang Suk Back v Finegan

About Matt McMahon

Civil trials and appeals since 1984
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