July 6, 2021 | Vol. 269

(4 summaries)

Set Aside Verdict   Pain/Suffering   Materially Deviates  

Second Department
Trial court erred in reducing past/future pain/suffering from $5mil/$36mil to $625,000/$1mil and future medical expenses from $5mil to $680,000 without offering plaintiff a new trial. Appellate Division increased past/future pain/suffering awards to $750,000l/$1.5 mil where plaintiff’s injuries included herniated C6-C7 with successful spinal fusion that will require future fusion at C5-C6, successful arthroscopic knee surgery for medial/lateral meniscus tears and partial tear of LCL that will develop arthritis and require future knee replacement, and inability to engage in usual activities, and ordered a new trial if plaintiff did not stipulate to modified award. Nieva-Silvera v Katz    

Assault   Amend Complaint   Prejudice  

First Department
Child Victim Act plaintiff allowed to proceed under pseudonym based on attorney’s affirmation and recitation during oral argument of potential embarrassment, economic harm, stigma, and social isolation from professional peers where defendants had no reason to dispute accounts and failed to show prejudice. Argumentof no chilling effect since suit already commenced rejected as plaintiff could be dissuaded from continuing action and similar potential plaintiffs could be deterred from pursuing suits if not allowed to use a pseudonym. Argument that relief could not be granted solely on attorney’s representations rejected where recitations were detailed and use of pseudonym would better meet public’s need to know than sealing records. Doe v Yeshiva Univ.    

Note of Issue   Amend BP   Labor Law §241   Labor Law §200   Industrial Code   Control   Vicarious Liab  

Second Department
After denial of motion to amend BP to include claim construction company was vicariously liable for plaintiff’s hearing loss while using construction equipment, plaintiff amended BP as a matter of right when the Note of Issue was stricken for further discovery. But defendant granted summary judgment on proof industrial codes relied on for Labor Law §241(6) were either inapplicable or lacked sufficient specificity, and defendant did not have authority to supervise/control plaintiff’s work under Labor Law §200 and common law negligence where injury was caused by means/methods of work. General supervisory authority is insufficient. Kauffman v Turner Constr. Co.    

Serious Injury   Set Aside Verdict   Jury Charge   Preexisting  

Second Department
Defense verdict on serious injury set aside where trial court erred in not charging pre-existing injury, PJI 2:282, which was in BP and had a factual basis to support charge. Law v Dillon    

(8 summaries)

Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice  

Second Department
Plaintiff’s motion to deem late Notice of Claim against village timely served nunc pro tunc granted where catastrophic injuries that left him unable to communicate provided a reasonable excuse for the 5-month delay and lack of actual knowledge by the village within 90-days insufficient to deny motion as the paving roller was continuously preserved pursuant to a court order and the village made no particularized showing of prejudice. Matter of Davis v Incorporated Vil. of Laurel Hollow    

MVA   Police   VTL §1104   There to be Seen   Reckless  

Second Department
Police officer not entitled to reckless standard of VTL §1104 as failing to see stanchion officer struck while driving through a circular driveway, even during an emergency, was not an enumerated protected activity under §1104. Holliday v City of New Rochelle    

Labor Law §240   Labor Law §241   Industrial Code   Sole Cause  

First Department
Undisputed proof that worker was injured by improperly hoisted or secured load of 2000-3000 lb. rebar entitled plaintiff to summary judgment on Labor Law §240(1) and on §241(6) based on industrial codes §§ 23-8.1 (e)(3) and (4)(load handling) where no spreader bars were used and the load was not boxed. Since plaintiff was following foreman’s directions, he could not be the sole cause. Hayek v Metropolitan Transp. Auth.    

3rd Party Contractor   Respondeat Superior   Unknown Cause  

Second Department
Carpet installation defendant that subcontracted installation to codefendant failed to eliminate questions of fact on whether subcontractor was a independent contractor or employee where it required subcontractor’s workers to wear its logo T-shirts and refer to themselves as moving-defendant’s employees or be fired, and provided the carpet, glue, and layout to the subcontractor. Testimony of Plaintiff and eyewitness were sufficient to identify raised carpet as cause of accident. Fiscina v Boro Rug & Carpet Warehouse Corp.    

Note of Issue   Amend BP   Preclusion   Discovery   Untimely   Reasonable Excuse   IME/DME   Prejudice  

First Department
Plaintiff’s motion to amend BP to expand on TBI injuries, including recent diagnosis of early onset Alzheimer’s, granted as it did not add new injuries and diagnosis 1-year after Note of Issue provided reasonable excuse for not amending sooner. Defendant’s motion to strike Note of Issue and preclude plaintiff from introducing evidence of Alzheimer’s at trial denied as it was not prejudiced, but defendant allowed to have additional IMEs and EBT limited to Alzheimer disease. Samuelsen v Wollman Rink Operations LLC    

Products Liab   Motion to Dismiss   Forum non conveniens  

First Department
Defendant’s motion to dismiss on forum non conveniens granted on proof accident occurred in Ohio where all witnesses resided, and plaintiff failed to rebut evidence he was an Ohio resident at all relevant times. Alston v Divine Bros. Co.    

Premises Liab   Sidewalk   Duty   Create Condition  

Second Department
Abutting landowner granted summary judgment where plaintiff tripped on metal object embedded in grass strip between curb and sidewalk on proof he did not create condition by a special use and local ordinance did not create a homeowner duty to pedestrians. Lamorte v Iadevaia    

MVA   Pedestrian   Comparative Fault  

Second Department
Plaintiff’s testimony he was crossing in crosswalk, with light, after looking for traffic when defendants’ vehicle struck him with too little time to avoid being hit entitled plaintiff to dismissal of comparative fault defense. Kwok King Ng v West    

(1 summaries)

Uninsured   Arbitration   Raised For First Time   Waiver  

Second Department
Police Department’s motion to vacate arbitration award in favor of police officer who was rear ended by an uninsured vehicle on ground police vehicle was not covered under UM/SUM policy depriving arbitrator of authority to render award, raised for first time in cross motion to police officer’s motion to confirm award 2-years after demand for arbitration, denied and plaintiff’s motion to confirm arbitration award granted as arbitrator was only tasked with issues of serious injury and amount of damages. Participation in arbitration without raising issue of coverage precluded Police Department from contesting award on that ground. Matter of City of Newburgh v Leach    

About Matt McMahon

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