July 5, 2023 | Vol. 372

(5 summaries)

Spoliation   IME/DME  

Second Department
The Second Department adopted the reasoning of the First Department, holding that failure to submit to an IME/DME prior to having surgery cannot be the subject of a spoliation motion as plaintiffs must be free to choose their medical treatment on the advice of their doctors. The defendants had served a “DEMAND FOR PRE-SURGICAL INDEPENDENT MEDICAL EXAMINATIONS” with their Answer. Plaintiff underwent surgery on his spine prior to starting the suit and 5-months after the defendants’ demand without attending an IME/DME. Fadeau v Corona Indus. Corp.    

Comment: The holding in the First Department case of Gilliam v Uni was reported in Vol 291.

MVA   Amend Answer   Graves Amendment   Prejudice  

First Department
Individual defendant who rented 4-7 cars 59 times within 9-months through the peer-to-peer sharing service Turo granted leave to amend his Answer to include a Graves Amendment defense as it was not devoid of merit and the Graves Amendment explicitly applied to individuals as well as corporations. Plaintiff and codefendant were not significantly prejudiced in the preparation of their cases by the 10-month delay in seeking to amend the Answer after the moving defendant’s deposition. Ventura v Lubman    

Premises Liab   Sidewalk   Motion to Dismiss   Estate   Amend Complaint  

Second Department
Motion to dismiss case against abutting landowners for slip and fall on sidewalk, brought by estates of abutting homeowners who died before the accident, granted as a lawsuit against a deceased person is a nullity and plaintiff’s motion to amend the Complaint to substitute the proposed executors denied as the homeowners were never parties to the case so the estates could not be retroactively substituted by an amendment. Hussain v Chain    

MVIAC   Bicycle   Uninsured  

Second Department
Petition to file claim against MVIAC denied on proof petitioner was operating an electric bicycle without pedals capable of going 30 mph which fits the VTL §125 definition of a “motor vehicle” and no claim can be made against MVIAC by the driver of an uninsured motor vehicle. Matter of Jackson v Motor Veh. Acc. Indem. Corp.    

Child Victims Act   Motion to Dismiss   Negligent Hiring   Negligent Supervision   Court of Claims  

Second Department
State’s motion to dismiss Child Victims Act action for sexual assault at a state-certified boarding school for failure to satisfy the “nature” and “when” pleading requirements of Court of Claims Act §11(b) denied where the Claim provided a sufficient description of how claimant was sexually abused by a named counselor 3-4 days a week in his room and how the state was negligent in failing to protect him to allow the state to investigate the claims, and plaintiff was not required to allege evidentiary facts. Allegation that the abuse occurred in 1992 and 1993 was sufficient for a CVA claim without specifying the exact dates of the abuse. Davila v State of New York    

(10 summaries)

Child Victims Act   Motion to Dismiss  

Second Department
In denying defendant’s motion to dismiss CVA case alleging abuse of the plaintiff when he was 4 by the defendant when he was 14, The Second Department reiterated that the CVA language extending the statute of limitations for ‘conduct which would constitute a sexual offense as defined in’ Penal Law § 30.00(1) defines the conduct and not whether the defendant would have been subject to criminal prosecution due to defendant’s infancy.

The CVA does not violate the US or NY constitutional due process protections as the “‘lapse of time has not invested a party with title to real or personal property'” and it “was a reasonable response to remedy the injustice to [child sexual assault survivors] caused by application of the relevant statute of limitations.” Potential damage to defendant’s reputation by the revival of the sexual assault claim is not, in and of itself, a constitutionally protected liberty interest. Schearer v Fitzgerald    

Comment: The Second Department first held an infancy defense does not bar a CVA claim in Anyonymous v Castagnola, reported in Vol. 341.

False Arrest   Note of Issue   Discovery   Vacate Default   CPLR 3404   90 Day Notice  

Second Department
Lower court improvidently denied plaintiff’s motion to restore action to the active trial calendar and dismissed the Complaint for false arrest against his police officer girlfriend where the original Note of Issue which was vacated for outstanding discovery without prejudice to restore on stipulation was not subject to the 1-year time limit to restore under CPLR §3404. Plaintiff’s second Note of Issue without the stipulation was rejected and his original motion to restore was marked off the calendar for failure to appear on the return date but without an order dismissing the action for failure to appear under 22 NYCRR §202.27 or service of a 90-day notice, plaintiff’s motion to restore should have been granted. Carrero v Pena    

Vacate Default   Reasonable Excuse   Prejudice  

First Department
Plaintiff’s motion to vacate order dismissing action for failure to provide medical records for more than 1-year after the inquest where the records had been subpoenaed and were in the subpoenaed record form at the time of the inquest but not available to the court, and the court withheld decision until plaintiff provided the records, improvidently denied as the case management system used by plaintiff’s counsel that did not provide reminders was the type of law office failure that should not penalize the client and defendants were not prejudiced since they defaulted. Case remanded. Rosario v General Behr Corp.    

MVA   Set Aside Verdict   Causation   Degenerative   Preexisting   Experts   Admissibility  

Second Department
The jury could reach its verdict finding the MVAA was not a cause of plaintiff’s injuries on a reasonable interpretation of the evidence, including defendants’ experts’ testimony that plaintiff’s injuries were degenerative and imaging studies before and after the accident were identical. Trial court providently admitted cervical CT scan without a CPLR §§ 3122-a or 4532-a foundation where defendants laid a business record foundation through the testimony of the custodian of the films. Thomas v Hudson Group HG Retail, LLC    

Inquest   Causation   Pain/Suffering   Appealable Order  

First Department
Lower court had no authority to sua sponte dismiss action for failure to show causation at inquest where the lower court did not put plaintiff on notice that causation was at issue where it stated during the inquest that liability had been established by the default and focused solely on damages. “A court’s power to dismiss a complaint, sua sponte, ‘should be used sparingly and only in extraordinary circumstances.'” An order dismissing a case sua sponte is not appealable, but the Court granted leave to appeal due to the extraordinary nature of the dismissal. Anonymous v Anonymous    

Labor Law §240   Labor Law §241   Safety Devices   Industrial Code  

Second Department
Owner and GC failed to meet burden for summary judgment dismissing the Labor Law §240(1) claim of a worker who fell off roof of his employer’s van while securing materials from a renovation project as his work was “ancillary” to the alteration of the structure being renovated and protected by §240 and they failed to show that climbing on the roof of the van was unnecessary for the task or that no §240 safety device would have prevented the fall. Plaintiff raised an issue of fact on whether a §240 safety device would have prevented the fall, but denied summary judgment where questions remained of whether climbing on the roof of the van was necessary for the task he was assigned.

Labor Law §241(6) claim based on industrial code §23-1.7(f)(vertical passages) dismissed as the roof of the van “was not a working level above ground requiring a stairway, ramp, or runway under that section.” Ramones v 425 County Rd., LLC    

MVA   Bus   There to be Seen   Emergency Doctrine  

Second Department
NYCTA and bus driver denied summary judgment where questions remained of whether the bus driver failed to use reasonable care to avoid contacting a vehicle that merged into the same lane as the bus was merging into from a bus stop and whether the bus driver was faced with an emergency not of his own making. The bus came to a sudden stop causing plaintiff to strike the rail on the seat in front of her on the bus. Blake v New York City Tr. Auth.    

Premises Liab   Dogbite   Notice   Vicious Propensity  

Second Department
Pet friendly hotel made out prima facie entitlement to summary judgment on proof it neither knew nor should have known of the vicious propensities of its guest’s dog that bit plaintiff in the lobby as the only cause of action for a dog bite is strict liability. Kennedy v Brooklyn Hospitality, LLC    

Premises Liab   Sidewalk   § 7-210   Admission   Question of Fact   NYC  

Second Department
Abutting landowners denied summary judgment where plaintiff testified she tripped on the sidewalk outside their home contradicting the EMT testimony and report stating plaintiff said she tripped on the curb, which abutting landowners are not responsible for under administrative code §7-210. Sprinceana v City of New York    

MVA   Sole Cause   Question of Fact  

Second Department
Defendants, owners and driver of truck that struck taxi door as plaintiff opened it, failed to eliminate all questions of fact on sole proximate cause where it submitted plaintiff’s EBT and public hearing testimony that conflicted with the truck drivers’ account of how the accident occurred. The Court does not give the details of the proofs. Greene v Peets    

(1 summaries)

Serious Injury   Causation  

Second Department
Plaintiff failed to meet burden of proof on his cross-motion for summary judgment on serious injury where he failed to eliminate all questions of whether he sustained a fracture to his knee as a result of the accident. The Court does not give the details of the proofs. Ceri-Felix v Remy    

About Matt McMahon

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

Comments are closed.