| MUST READS (5 summaries) | |||
| NOTEWORTHY | IF YOU MUST READ | ||
 School district granted summary judgment dismissing so much of Child Victim’s Act claim for sexual abuse by teacher after plaintiff turned 17 as the CVA only revives claims based on acts that would violate Penal Law §130, including where plaintiff is unable to consent due to being under 17.Plaintiff raised issues on negligent supervision for conduct before she turned 17 all of which took place after school and outside school property on her affidavit that the teacher paid her special attention and complimented her appearance in front of school staff and made arrangements during school hours on school grounds. Fain v Berry ✉ |
 Supermarket denied summary judgment dismissing shopper’s claim when she was struck by a u-boat cart with 1,000 lbs of beverages stacked so high as to block the Pepsi delivery person’s forward view as it had a nondelegable duty to keep the premises safe and can be vicariously liable for the Pepsi delivery person’s negligence which made the area unsafe.The delivery person’s negligence did not just furnish the occasion for the accident and was not an intervening cause as it could be foreseen, the supermarket had no safety measures for the deliveries it authorized throughout the day, its assistant store manager testified had he seen the cart stacked so high he would have told him not to do it, and the delivery man testified he checked in with the grocery manager before each delivery. Poidomani v Shop-Rite Supermarkets, Inc. ✉ |
| Lower court improvidently required plaintiff to provide a Jackson affidavit identifying which of 19-prior accidents with a person with his name involved him and to provide authorizations for those records. A Jackson affidavit if for documents claimed to be missing, not a demand for information and authorizations which would essentially be impermissible interrogatories as plaintiff had served a BP. Plaintiff waived any objection to providing authorizations for the 2-prior accidents he voluntarily conceded were his where he did not timely object to providing them. Defendants were entitled to authorization for the prior accident unrestricted by date but limited to only body parts in controversy in the current suit and plaintiff’s allegations of “general anxiety, depression, and mental anguish” did not put his entire mental health in issue and defendants did not show that ‘the interests of justice significantly outweigh the need for confidentiality. DiMaggio v Port Auth. of N.Y. & N.J. ✉ |
| Motion to dismiss plaintiff’s claims of piercing the corporate veils against tractor-trailer company, its successor companies, and sole shareholder denied where plaintiff adequately pled that the sole shareholder dominated company that employed plaintiff and engaged in abuse of the corporate process to perpetrate an injustice on the plaintiff and defendants’ documentary evidence did not utterly refute plaintiff’s allegations. Defendants failed to show the claims for injuries brought against moving defendants in a separate action after the negligence statute of limitations, counting from the date of accident, were barred by the statute of limitations when counted from the subsequent abusive corporate transactions. Murphy v Jewell ✉ |
| Defendants denied summary judgment dismissing worker’s Labor Law §240(1) claim for injuries when a 3,500 lb. stone broke while being hoisted to be removed and replaced and swung sideways pinning his hand to the wall where there was a reasonable inference that the stone moved in a pendulum fashion rather than just laterally that would support a claim of a gravity related risk. Rivera v 95th & Third LLC ✉ |
| NOTEWORTHY (17 summaries) | |||
| MUST READS | IF YOU MUST READ | ||
| Trial court erred in denying county’s motion for judgment as a matter of law setting aside liability verdict and $170,000 jury award for plaintiff’s slip and fall on painted pool depth marker as there was no dispute the county did not receive required prior written notion of the defect and the defect did not fit within the immediate creation of a dangerous condition exception to prior written notice. Plaintiff’s expert’s testified there was a better way to apply sand to the painted surface but admitted the surface would deteriorate over time and have to be repainted every few years. As such, there was no rational path for the jury to find liability. McConnell v County of Nassau ✉ |
| Defendants’ motion to amend their Answers to include judicial estoppel defense for plaintiff’s failure to disclose the action in his bankruptcy proceeding granted and the action dismissed as his failure to disclose was a representation that no such action existed which was inconsistent with his position in the personal injury action. ‘The doctrine of judicial estoppel may bar a party from pursuing claims which were not listed in a previous bankruptcy proceeding.’ Cussick v R.L. Baxter Bldg. Corp. ✉ |
| Plaintiff’s motion to vacate default in opposing elevator company’s motion for summary judgment and to deny the motion granted where there was no dispute the lower court’s granting summary judgment as unopposed because it did not receive the opposition and reply papers served by the parties provided a reasonable excuse and plaintiff raised an issue of constructive notice that the elevator floor was raised 2” above the building floor. Charles v Nouveau El. Indus., Inc. ✉ |
| Petiiton for leave to serve a late Notice of Claim providently granted where petitioner served a late Notice of Claim 2-days after the 90-day period, filed the petition less than 1-week later, and received inpatient and rehab treatment for 2-months after the accident, providing a reasonable excuse for the minimal delay. Respondents were aware of the accident which was witnessed by the train conductor and investigated by a NYPD transit officer giving them ample opportunity to investigate. Matter of Talavera v New York City Tr. Auth. ✉ |
| Repeal of EDTPA legislation granting healthcare workers immunity for Covid care was not retroactive but nursing home’s motion to dismiss claim for decedent contracting SARS-CoV-2 and COVID-19 denied where they failed to show the 3-requirements for immunity, “the services were arranged for or provided pursuant to a COVID-19 emergency rule or otherwise in accordance with applicable law, the act or omission was impacted by decisions or activities that were in response to or as a result of the COVID-19 outbreak and in support of the State’s directives, and the services were arranged or provided in good faith,” were met. Damon v Clove Lakes Healthcare & Rehabilitation Ctr., Inc. ✉ |
| Lower court improperly relied on federal summary judgment standards, where a moving party can meet its burden by showing a lack of evidence on the other side, in finding defendants met their burden of proof. School failed to meet burden for summary judgment dismissing negligent supervision, hiring, and retention claims under the Child Victims Act for sexual abuse by elementary school teacher given the frequency of the abuse over an entire school year, in the same classroom, during school time, leaving questions of whether they should have known of the abuse or that their supervision of the teacher and the plaintiff was negligent. Sayegh v City of Yonkers ✉ |
| Plaintiff’s motion to compel defendants to allow access to photograph the interior of building where he fell from the roof to establish it was a 3-family home denied, and defendants granted a protective order, where defendants did not raise the homeowner exception to Labor Law §§ 240(1) or 241(6) making the information sought irrelevant. Espinoza v Tejeda ✉ |
| Plaintiff granted summary judgment on Labor Law §240(1) on his and coworker’s testimony they lost control of the stone they were removing from a chimney which shifted forward and down 2′ causing plaintiff to slip and fall on dust on the scaffold they were on as the weight of the stone was significant enough to present a §240 elevation risk. Plaintiff could not be sole cause where there was lack of adequate safety devices to hoist the stone. Defendants’ claim plaintiff raised only feigned evidence based on inconsistencies between his 50H and deposition testimony rejected as “the result of a forced reading of vague questions and answers in the 50-h transcript,” the coworker supported plaintiff’s deposition testimony, and defendants offered no other witness accounts. Colon v New York City Dept. of Educ. ✉ |
| Bathroom renovation contractor granted summary judgment dismissing granite worker’s Labor Law §§ 241(6) and 200 claims on proof it was not present when the plaintiff stepped on plywood covering a roughed out drain area where a tub would be installed that cracked, causing his leg to fall through the ceiling, did not control the granite work, and it was not a GC as the 2-contractors were independent primary contractors individually hired by the homeowner. Renovation contractor denied summary judgment dismissing common-law negligence claim where questions remained on whether it ‘created an unreasonable risk of harm that was the proximate cause of the . . . plaintiff’s injuries,’ where it admitted was not safe to stand on the plywood. Delaluz v Walsh ✉ |
| Worker who fell from unsecured temporary staircase granted summary judgment on Labor Law §240(1) on proof the staircase was inadequate to protect him from a gravity risk, including defendants’ safety-inspectors’ admission that the staircase failed to provide safe access from a platform to the floor. Reports that the staircase didn’t move did not raise an issue in opposition and any misuse by plaintiff was merely comparative fault, not a §240 defense. Cuomo v Port Auth. of N.Y. & N.J. ✉ |
| Property manager had contractual duty to maintain hallway where plaintiff slipped on grease and failed to meet burden of showing it lacked constructive notice of the condition without proof of the last time the hallway was cleaned/inspected. Building owner granted summary judgment where plaintiff conceded it had relinquished control to the management company and owed no duty to plaintiff. Guzman v 787 Holdings, LLC ✉ |
| Purported owners of shopping mall where plaintiff slipped on abutting sidewalk granted summary judgment on its officer’s affidavit and a tax record showing it did not own, manage, or control the property at the time of the accident and the admission in codefendant’s Answer that it was the owner at the time of the accident. Unsworn draft of officer’s affidavit used in settlement discussions that did not expressly deny ownership was inadmissible. Lower court erred in using tax report to deny motion, which in any event showed moving defendant was not the owner, where plaintiff did not raise this issue below and the Court declined to consider it where raised for the first time on appeal. Moving defendants could not be liable for “indirect ownership interest” in LLC that owned the property at time of accident as they were only a minority member of the LLC and not direct members. Moving management company granted summary judgment on proof it did not become the manager of the property until 2-years after the accident. Diaz v Brooks Shopping Ctrs. LLC ✉ |
| Abutting landowners granted summary judgment dismissing plaintiff’s claim for trip and fall on sidewalk on proof they had no statutory duty to maintain the sidewalk and they did not create the condition or cause its existence through special use. Homeowner filling some cracks in the sidewalk did not raise an issue on creation of the condition by negligent repairs. Village granted summary judgment on proof it did not receive required prior written notice and notice to village agency or clerk not designated to receive notice was not notice to the village. La Fleur v Janowitz ✉ |
| Defendant’s motion to dismiss plaintiff’s Complaint that was filed 1-day before the statute of limitations on claim it did not own the building where plaintiff fell through a broken trapdoor at the restaurant where he worked as plaintiff alleged the wrong address of the building, denied and plaintiff’s cross motion to amend the Complaint to allege the correct address granted. The Amended Complaint was not time-barred where it did not add new defendants or new theories of liability and defendant had sufficient notice of the accident. Defendant’s claim it was an out of possession owner rejected where it’s lease failed to utterly refute plaintiff’s allegation it had a duty to maintain the premises. Parapi v 470 W. 23 Assoc., LLC ✉ |
| NYCHA failed to meet burden of showing it did not create or have actual or construction notice of wet floor in hallway where plaintiff fell where plaintiff did not see water on the floor but her pants were wet after her fall and her husband testified he heard a splash as they walked down the hall and he made previous complaints about water on the hallway floor. Medical evidence did not preclude possibility that plaintiff’s injuries were caused by the accident rather than her preexisting disability condition. Taylor v New York City Hous. Auth. ✉ |
| Plaintiff granted summary judgment against Chamber of Commerce that rented golf cart which volunteer left running while loading supplies at a carnival when a tent being loaded depressed the go pedal causing the car to crash through plaintiff’s vendor tent as it was reasonably foreseeable that the tent would be loaded into the cart and the only legal conclusion to be drawn was that it was negligent to leave the cart on. Sughra v County of Suffolk ✉ |
| In the context of an aspiring model’s claims of sexual abuse and “sexual performance” against the product seller and her modeling agency at photoshoots when she was 16-17 years old, the First Department rejected defendants’ argument the CVA did not apply for alleged acts in Mexico as the CVA was intended to provide relief for NY residents wherever the acts took place. Her allegations that she was “unclothed” during the photoshoots sufficiently plead the Penal Law §263.05 “sexual performance” CVA predicate as it may infer that genitalia, required under the federal Dost test but not the CVA, was involved in a lewd exhibition and the question is whether the conduct fits within §263.05, not whether the defendant could be criminally prosecuted. The Court rejected defendants’ argument that the CVA revival of the statute of limitations did not apply as §263.05 only applied to persons under 16 at the time of the photoshoots since the CVA specifically applies to acts against “a child less than eighteen years of age” and, as it revives only civil actions, its applicability is triggered by the conduct and not criminal liability. Claims for negligent supervision against the seller dismissed as allegations it assumed a duty to supervise plaintiff due to her youth were insufficient to show it took her within their custody and control, necessary to create a duty to supervise her. Claim it knew or should have known the photoshoot would produce lewd photographs was insufficient without pleading some facts of how it acquired that knowledge or knowledge of the propensities of the actors or photographers. Claim that makeup artist touched plaintiff for sexual gratification insufficient for respondeat superior as it alleged a personal motivation not in furtherance of the seller’s business. Defendants denied dismissal of plaintiff’s Civil Rights Law § 50 claim that photographs were distributed without plaintiff’s consent where they didn’t address that issue. Doe v Wilhelmina Models, Inc. ✉ Comment: This Decision and Order recalled and vacated the previous order of the Court reported in Vol. 407. |
| IF YOU MUST READ (2 summaries) | |||
| MUST READS | NOTEWORTHY | ||
| Defendants failed to meet their burden for summary judgment dismissing negligence claims for MVA where there were conflicting versions of how the accident occurred or establish lack of serious injury without competent medical proof that decedent’s spinal injuries were not serious or caused by the accident. The Court does not give the details of the proofs. Motion for summary judgment dismissing wrongful death claim not considered where not addressed by the order appealed from and, therefore, still pending. Waters v Saha ✉ |
| Supermarket granted summary judgment dismissing plaintiff’s claim for trip and fall on floor mat as he entered the store on proof it did not create or have actual or constructive notice of the condition. Plaintiff failed to raise an issue in opposition by expert’s conclusory opinion the mat violated industry standards. The Court does not give the details of the proofs. Martin v Mannix Family Mkt. @ Forest & Richmond Ave, LLC ✉ |