June 13, 2017 | Vol. 58

MUST READS
(10 summaries)
NOTEWORTHY IF YOU MUST READ

Premises Liab   Slip/Trip   Prior Written Notice   Big Apple Pothole   Set Aside Verdict   NYC  

First

Lower court’s grant of NYC’s motion to set aside verdict and dismiss complaint on ground that the Big Apple pothole map did not give prior written notice of the defect which caused the plaintiff to trip and fall reversed. While notice of a defect in one area cannot be notice of a defect in another area, the “X” marked on the Big Apple pothole map represented a broken or uneven curb and, therefore, there was a logical path upon which jury could find that NYC had prior written notice even though it was not at the exact location of the plaintiff’s fall. There was one dissent. Foley v City of New York


Premises Liab   Slip/Trip   Workers Comp Defense  

Second Deptartment

Church granted summary judgment against Eucharist volunteer who tripped on exposed extension cord on her way to administer communion based on the Worker’s Compensation defense. The church maintained a Worker’s Compensation policy covering volunteers and put in a claim for the volunteer. The volunteer did not respond to the claim or appeal the WCB’s determination that she was covered under the policy. Issues of whether a person is covered under a Worker’s Compensation policy are directed first to the WCB and cannot be collaterally attacked. Plaintiff could only have disputed the finding by direct appeal from the WCB decision. Aprile-Sci v St. Raymond of Penyafort R.C. Church


Med Mal   CPLR § 3126   90 Day Notice   Reasonable Excuse   Meritorious Action  

Second Deptartment

Plaintiff’s medical malpractice action properly dismissed for failure to prosecute where plaintiff’s attorney signed a compliance conference order requiring that Note of Issue be filed on a specific day more than 8 months later and stating that failure to file the Note of Issue, or motion to extend, may serve as a ground to dismiss. This language had the same effect as a 90-day notice. CPLR 3126 was amended in January 2015 but the compliance conference order in this case predated that amendment and was not considered. Stroll v Long Is. Jewish Med. Ctr.


Premises Liab   CPLR § 3126   Notice  

Second Deptartment

Defendants moved for summary judgment about 1 month after a certification order directing plaintiff to file Note of Issue within 90 days or the action will be dismissed without further order of the court. The motion for summary judgment was fully submitted about 5 months after the certification order. Rather than decide the summary judgment motion, the court dismissed the action based on the 90-day notice in the certification order and the Appellate Division reversed. Under the January 2015 changes to CPLR 3126, a 90-day notice must specify the conduct constituting neglect and must give notice to the parties before dismissing the action, neither of which were done here. The case was remanded to the court for determination of the summary judgment motion. Rhodehouse v CVS Pharmacy, Inc.


Premises Liab   Slip/Trip   Control   Question of Fact  

First

Grocery store denied summary judgment where lease provided that grocery store was responsible for maintaining “appurtenances” to the premises. Even though the lease did not specifically state defendant was required to maintain the parking lot where the plaintiff fell, the word appurtenances raised a triable issue of fact as to whether that included the parking lot. Fontecchio v Bronx 656 Food Corp.


Set Aside Verdict   Mistrial  

Second Deptartment

The lower court improvidently exercised its discretion in granting a mistrial on the grounds of juror confusion after it had re-instructed the jury when the jury returned an internally inconsistent verdict finding that the plaintiff was negligent but that her negligence was not a substantial factor but apportioned 25% fault to the plaintiff. The jury returned a new verdict identical to the first except not apportioning fault after which the lower court granted the mistrial. When a jury returns an inconsistent verdict, the court has the discretion to re-instruct the jury or grant a new trial. Even where the court reconstructs the jury it may still grant a new trial if it appears that there was jury confusion. The jury’s second verdict in this case showed no signs of jury confusion and, in fact, appeared to confirm the initial findings of the jury. Verdict was reinstated. Sabarese v Board of Educ. of the Tuxedo Union Free Sch. Dist.


Med Mal   Statute of Limitations   Foreign Object  

Second Deptartment

A capsule camera swallowed to perform an internal examination of plaintiff’s digestive system and intended to be eliminated through the normal digestive process was not a “foreign object” for which the malpractice statute of limitations is tolled. Capsule the plaintiff swallowed lodged in plaintiff’s intestine and showed up on CAT scans in 2009 and 2011 and had to be surgically removed. All claims for malpractice were time barred. Leace v Kohlroser


Labor Law §240   Labor Law §241   Labor Law §200   MVA   Industrial Code   Amend BP  

First

Construction worker directing traffic around a 5-8’ trench dug to install new sewer lines to defendant owner’s adjacent property granted summary judgment on Labor Law §240(1) and §241(6) where truck being driven by codefendant hit him knocking him into the trench. Building owner granted summary judgment on Labor Law §200 and common law negligence on proof that it’s representative only monitored the progress and safety of the building and not the trench area. Plaintiff properly granted leave to amend the BP, even though the Note of Issue had been filed, to include specific industrial code provisions. Gjeka v Iron Horse Transp., Inc.


Food Poisoning   Dangerous Condition  

First

Plaintiff’s claims for injuries sustained while choking on a 1” bone in a flounder filet at defendant’s restaurant dismissed under the “reasonable expectation” doctrine because it was not a harmful substance which a consumer “would not ordinarily anticipate.” Amiano v Greenwich Vil. Fish Co., Inc.


Labor Law §240   Labor Law §241   Directed Verdict   Set Aside Verdict   Pain/Suffering   Materially Deviates   Indemnity  

Second Deptartment

Lower court denied summary judgment on Labor Law §240(1) claim of 33-year-old construction worker injured when he fell from ladder placed on uneven, unsettled dirt based on attorney affirmation raising fact that plaintiff was an undocumented worker who used a co-worker’s name to get health insurance after the accident as issue of credibility. Owner brought third-party action against general contractor employer for contractual indemnity. Parent company of owner was dismissed and plaintiff settled with owner’s “sister” company which signed contract with general contractor prior to trial.

After a jury trial where plaintiff called 3 witnesses on liability and defendants called no witnesses, the jury found that defendant violated only Labor Law §241(6) and apportioned 25% fault against plaintiff and awarded $100,000/$375,000 past/future pain and suffering, $700,000/$1,515,000 past/future medical expenses, and $150,000/$160,000 past/future lost earnings. The lower court reduced the $700,000 past medical expense to $250,000, the $1,515,000 future medical expenses to $600,000 and granted judgment in favor of the owner and against the general contractor on the contractual indemnity claim.

The Appellate court modified the judgment to grant plaintiff summary judgment on Labor Law §240(1) and deleting the apportionment of fault finding that the “credibility” issues raised by the attorney’s affirmation did not create an issue of fact, and set aside the damage awards as materially deviating from reasonable compensation unless the parties stipulate to increase past pain and suffering from $100,000 to $1,000,000 and future pain and suffering from $375,000 to $2,500,000, and to reduce future medical expenses from $589,838 (after 50B adjustment) to $250,000.

Judgment against general contractor was dismissed as the agreement named the owner’s “sister” company as the owner. Cano v Mid-Valley Oil Co., Inc.

NOTEWORTHY
(20 summaries)
MUST READS IF YOU MUST READ

Labor Law §240   Ladder   1-2 Family Exception  

Second Deptartment

Homeowner granted summary judgment on Labor Law §240(1) claim by showing that she did not control the roofing work being conducted when plaintiff fell off the ladder and that the work being performed pertained to the residential use of the home, and that it was a 2-family residence where the defendant lived. The fact that homeowner provided the ladder to the plaintiff did not deprive her of the homeowner exemption. Nicholas v Phillips


Premises Liab   Stairs   Building Code   Last Inspection   Expert Aff  

First

Building owner and management company’s motion for summary judgment granted only to the extent of dismissing claims under the 1938 building code and Mult. Dwel. L. §52 as the stairs leading to the roof which collapsed while plaintiff was on them did not constitute an exit to a public area. Manager’s testimony that he inspected the property 2 to 3 times a day did not eliminate a triable issue on constructive notice as he did not indicate that he inspected the stairs or the last time that they were inspected. Plaintiff’s expert engineer rebutted defendants’ claim that the defect was latent and would not have been discoverable on a reasonable inspection. Niu v Sasha Realty LLC


Premises Liab   Slip/Trip   Wet Floor   Spoliation   Strike Answer   Negative Inference  

Second Deptartment

Bank’s employee’s affidavit stating that she made a search for surveillance video showing the plaintiff’s fall on a wet floor at an ATM vestibule raised a triable issue of fact regarding spoliation and the lower court properly granted plaintiff’s motion to strike the defendant’s Answer for spoliation only to the extent of granting a negative inference charge if the jury finds the bank’s witness incredible. Lilavois v JP Morgan Chase & Co.


Labor Law §240   Labor Law §241   Labor Law §200   Noseworthy   Industrial Code  

First

Defendants granted summary judgment where evidence showed that plaintiff suffered a seizure and fell to the scaffold he was working on. Plaintiff failed to show that he suffered amnesia because of the accident by clear and convincing evidence and Plaintiff was otherwise on equal footing with the defendants and not entitled to the Noseworthy doctrine. Plaintiff failed to show that his fall was due to any elevated risk or any of the industrial code provisions cited. Varona v Brooks Shopping Ctrs. LLC


Premises Liab   Prior Written Notice   Set Aside Verdict   Directed Verdict   NYC  

First

Judgment on plaintiff’s verdict reversed where there was no proof that NYC had prior written notice that the curb where plaintiff tripped was obstructed by vegetation. Ramirez v City of New York


Discovery   BP   Notice of Claim  

Second Deptartment

In reversing the lower court’s denial of the defendant’s motion to strike portions of the plaintiff’s BP raising new theories of liability not alleged in the Notice of Claim which the lower court had referred to a JHO/referee pursuant to CPLR 3104, the Appellate Division clarifies that a BP is not a discovery device but plays a traditional and limited role in expanding the pleadings so that the defendant is not taken by surprise. Remedies for Bills of Particulars are in article 39 not article 31 of the CPLR and CPLR 3104 which permits a referee to supervise discovery does not apply to a Bill of Particulars. Flores v New York City Hous. Auth.

Comment: While plaintiffs are required to provide BPs as part of the marked pleadings at trial, the Bill of Particulars is not listed as a pleading under CPLR 3011. It has often been viewed as a quasi-pleading and this decision clarifies that it is not part of discovery.


Labor Law §240   Falling Object   Gravity Risk   Sole Cause  

First

Defendants’ motion for summary judgment denied and plaintiff’s motion for summary judgment granted on Labor Law §240(1) claim where wooden plank fell from scaffold as it was being moved and struck the plaintiff. It presented its own gravity related risk covered under the statute. Claim that workers knew to disassemble scaffold before moving it was unsupported by evidence that the plaintiff was specifically instructed to do so and, therefore, could not be shown to be the sole proximate cause. Gonzalez v City of New York


Labor Law §200   Control   Create Condition  

Second Deptartment

Sheet rock subcontractor granted summary judgment on Labor Law §200 and common law negligence claims by showing that it did not control the area where the plaintiff, an employee of the general contractor, was working on a ladder when someone pulled electrical cords that got tangled with the ladder causing him to fall from the second floor to the first floor and proof that none of the sheet rock subcontractor’s employees pulled the electrical cords which caused the incident. Sledge v S.M.S. Gen. Contrs., Inc.


Med Mal   Personal Juridiction   Untimely   Waiver  

First

Doctor’s affirmative defense of personal jurisdiction dismissed where doctor did not timely move pursuant to CPLR 3211(e) after putting in Answer. Clermont v Abdelrehim


MVA   Set Aside Verdict   Directed Verdict  

Second Deptartment

Lower court’s grant of plaintiff’s motion to set aside defendant’s verdict finding that the accident was not a substantial factor in causing the plaintiff’s injuries reversed and verdict reinstated. There was sufficient admissible evidence including photographs, and expert testimony from which the jury could logically conclude that the accident was minor and did not cause the plaintiff’s injuries which were degenerative as contended by the defendants. Frank v Gengler


MVA   Rear End   Nonnegligent Explanation  

First

Lower court’s grant of summary judgment to defendant whose truck came to a dead stop when it hit an underpass too low for the truck to fit, and was rear ended by plaintiff, reversed. Where the sudden stop was instantaneous and caused by the defendant’s negligence in not heeding signs and ordinances regarding overpass height it cannot be used as a defense. Baez-Pena v MM Truck & Body Repair, Inc.


MVA   Emergency Doctrine  

First

Defendant granted summary judgment on proof that plaintiff’s car which skid in heavy snow crossed into his lane just 1/2 a car length in front of him giving him insufficient time to react. Plaintiff failed to show that accident was due to defendant’s driving unreasonably under the conditions where defendant reduced his speed because of the snow and had good forward visibility. Barriga v Ditmore


Assumption of Risk  

Second Deptartment

Plaintiff who elected to use rented ice skates larger than the size she requested assumed the risk of falling. While assumption of risk does not apply to “unassumed, concealed, or unreasonably increased” risks, plaintiff was aware that the skates were not her size. Summary judgment for defendant. Lee-Csoke v Mid-Hudson Civic Ctr., Inc.


Premises Liab   Slip/Trip   Stairs   De Minimus   Notice  

Second Deptartment

NYCTA failed to meet its initial burden of showing that the alleged defect on the stairs was trivial. To meet that burden the defendant must show that the height differential is physically insignificant and that the surrounding circumstances do not increase the risk. Photographs and testimony submitted by NYCTA failed to meet that burden and there was no need to consider the plaintiff’s opposition. Burrell v New York City Tr. Auth.


Premises Liab   Slip/Trip   Stairs   Open/Obvious   Inherently Dangerous  

Second Deptartment

HOA’s motion for summary judgment denied where plaintiff’s testimony showed that she could not see the single step up on the walkway where she tripped and fell and defendant’s expert did not show as a matter of law that a handrail provided a sufficient visual cue for persons using the stair, failing to make out their prima facie case for summary judgment. Ross v Bretton Woods Home Owners Assn., Inc.


Premises Liab   Slip/Trip   Note of Issue   Premature Motion  

First

Defendants’ motion for summary judgment denied as there existed questions of fact regarding whether defendant’s work in the area caused the uneven roadway surface which caused the plaintiff to trip and fall. Verizon granted summary judgment on proof that its subsidiary, Empire, placed the plate on the roadway and that Verizon did not control the work. Since plaintiff filed a Note of Issue, he could not claim that further discovery was necessary. Frederickson v City of New York


MVA   Rear End   Nonnegligent Explanation  

Second Deptartment

Third-party defendant’s motion for summary judgment and plaintiffs’ cross motion for summary judgment denied. Plaintiffs, passengers in third-party defendant’s car, and third-party defendant claimed that they were stopped at a red light for 10-15 seconds when struck in the rear by the defendant’s vehicle. Defendant claimed that his vehicle was struck in the rear by the third-party defendant and that he told them they could leave the scene without filing a police report because there was little or no damage. Defendant’s affidavit raised a triable issue of fact in opposition to the third-party defendant’s and plaintiffs’ motions for summary judgment. Pilgrim v Vishwanathan


MVA   Hearsay  

First

Plaintiff’s motion for summary judgment denied where eyewitnesses were unable to identify the driver. Amended police report was inadmissible hearsay since officer did not witness the accident and summons issued to the individual defendant was inadmissible. Jenkins v Maggies Paratransit Corp.


Defamation   Appealable Order  

Second Deptartment

Plaintiff’s appeal dismissed as plaintiff failed to submit all documents on the appeal which were before the Supreme Court when deciding the motion as indicated by the documents reviewed in the courts lower court’s decision. Ciafone v Jobs for NY, Inc.


Irregularity   Prejudice  

Second Deptartment

Lower court’s exercise of discretion in denying defendant’s application to correct the fact that it filed an affidavit of service of its motion for summary judgment in the motion support office instead of the clerk’s office was reversed as it was a procedural irregularity not a jurisdictional defect and there was no prejudice to the plaintiff. Motion for summary judgment remanded for reconsideration. Buist v Bromley Co., LLC

IF YOU MUST READ
(2 summaries)
MUST READS NOTEWORTHY

Stay Arb   Waiver  

First

Carrier’s motion to permanently stay arbitration should have been granted where the insured waived the right of arbitration by electing to litigate instead of arbitrate. Carrier’s participation in the arbitration did not waive its objection and even if an arbitration award had been made it would have been subject to vacatur. Matter of Allstate Ins. Co. v Howell


Serious Injury  

Second Deptartment

Plaintiff raised a triable issue of fact regarding whether his lumbar spine injury met the permanent consequential and significant limitation of use categories for serious injury. The court does not give the details of the proofs. Henry v McGeachy

About Matt McMahon

Civil trials and appeals since 1984
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