July 9, 2019 | Vol. 166

MUST READS
(4 summaries)
NOTEWORTHY IF YOU MUST READ

Building Security   Notice   Foreseeability   Hearsay   Comparative Fault  

Second Department

Plaintiffs granted summary judgment for 18-year-old’s murder at Howard Johnson hotel where hotel failed to provide minimal security on proof assault was foreseeable based on prior criminal incidents including gunpoint robbery, assault with clothing iron, masked individual attempting to gain entry, large parties with unruly and intoxicated guests, thefts, prostitution, drug use and sales, and logbook entry reciting that cops took weapons from kids stating that hotel should stop renting to kids, and that it was “just another night at the HOJO!” Defendant did not object to admission of logbook entries as hearsay. Hotel principal testified contracted security did not show up and they do not try to get substitute security. Plaintiff did not have to prove freedom from comparative fault for summary judgment. Davis v Commack Hotel, LLC


MVA   Bus   Duty  

First

NYCTA denied summary judgment where issues of whether it breached common carrier duty to provide safe place to board bus by stopping 7′-8′ from bus stop with pothole in path of passengers boarding bus. Fact that 10 passengers boarded bus without incident did not entitle NYCTA to summary judgment. Defay v City of New York


MVA   Bus   Amend Complaint   Statute of Limitations  

Second Department

Plaintiff’s motion to amend Complaint to include MTA Bus Co. as party after statute of limitations expired denied as relation-back doctrine does not apply between MTA Bus Co., which is a subsidiary of MTA, and MTA. Watkins-Bey v MTA Bus Co.


Wrongful Death   Estate   Capacity to Sue  

Second Department

While advocate-witness rule generally precludes an attorney expected to be a witness from acting as attorney, where the attorney is a litigant and there would be substantial hardship to the estate in removing the attorney, the rule does not bar attorney from representing estate. Attorney-son of decedent and distributee was unable to obtain independent counsel and removing him from representing estate would create a substantial hardship to the estate. Greenberg v Grace Plaza Nursing & Rehabilitation Ctr.

NOTEWORTHY
(6 summaries)
MUST READS IF YOU MUST READ

Premises Liab   Slip/Trip   Stairs   Amend Notice of Claim  

Second Department

Plaintiff’s motion to amend Notice of Claim to add claims that plaintiff’s foot got caught in a hole/gap and that stairs were negligently designed and installed denied. ‘A Notice of Claim may be amended only to correct good faith and nonprejudicial technical mistakes, omissions, or defects, not to substantively change the nature of the claim or the theory of liability.’ The proposed amendment would substantively change the theory of liability. Ryabchenko v New York City Tr. Auth.


Premises Liab   Slip/Trip   Snow/Ice   Create Condition   Notice   Last Inspection  

First

Defendant did not make out prima facie entitlement to summary judgment where its president and supervisor did not have personal knowledge to establish that it did not create or exacerbate the condition by its snow removal efforts 2-days before plaintiff slipped on black ice in parking lot, or what the condition was after the work was done. Logbook entries were too general where they did not refer to the accident site and supervisor did not know if he inspected the area after the work. Ray v Apple Sq. LLC


Med Mal   Foreign Object   Accepted Practice   Causation   Emotional Harm   Expert Aff   Reargument  

First Department

Plaintiffs denied summary judgment on liability where they showed a departure from accepted medical practice by leaving a portion of surgical needle in infant’s chest during surgery but conflicting expert opinions on whether that caused plaintiff’s injuries raised issues of fact. On reargument of grant of summary judgment on claim of emotional harm from infant having to undergo second procedure to remove needle, the lower court providently found it had erred and that questions of fact existed based on conflicting expert opinions. Debose, Premeire v Lacour-Gayet


Premises Liab   Slip/Trip   Wet Floor   Notice   Last Inspection   Survelliance Video  

Second Department

Store granted summary judgment on employees’ testimony and surveillance video showing they did not have constructive notice of the blue liquid on the floor plaintiff slipped on. Falco-Averett v Wal-Mart Stores, Inc.


Workers Comp Defense  

First Department

Defendant entitled to dismissal on workers comp exclusivity clause where workers comp Board found defendant to be plaintiff’s employer and plaintiff’s submission of paychecks by a different named company on the motion did not change the conclusive effect of the workers comp board’s finding. Samper v 352 Broadway LLC


Med Mal   Vacate Default   Reasonable Excuse   Meritorious Action  

Second Department

Plaintiff’s motion to vacate judgment entered on failure to appear at compliance conference pursuant to 22 NYCRR 202.27 denied where “law office failure” excuse was too general and part of a pattern willful default and neglect. Hayes v Akhter

IF YOU MUST READ
(2 summaries)
MUST READS NOTEWORTHY

Serious Injury  

Second Department

Plaintiff raised issues of fact in opposition to defendants’ showing of entitlement to summary judgment on serious injury and on causation. The court does not give the details of the proofs. Lawrence v Scolaro


Serious Injury  

Second Department

Defendants failed to submit competent medical proof to show that plaintiff did not sustain a serious injury or that her injuries were not caused by the accident. The court does not give the details of the proofs. Hernandez v Pagan Corp.

About Matt McMahon

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