June 13, 2023 | Vol. 369

(5 summaries)

Premises Liab   Burden of Proof   Create Condition   Pothole Law   Prior Written Notice   NYC  

Second Department
The Second Department affirmed denial of NYC’s motion for summary judgment where plaintiff was injured by portions of overhead sidewalk that fell on train platform, finding burden of proving exception to prior written notice never shifted to plaintiff under its Smith v New York City framework as NYC never argued that it lacked prior written notice of the condition. NYC failed to meet burden for summary judgment where it attached street opening permits for tree pits on the sidewalk without evidence its contractor did not cause or create the condition that caused plaintiff’s injuries. Morejon v New York City Tr. Auth.    

Comment: Smith v New York City was reported in Vol. 322.


First Department
Lower court providently denied defendant’s motion for discretionary change of venue from Bronx to Warren County where vague descriptions of proposed testimony in affidavits by law enforcement and an EMT involved in the search and rescue of the decedent were insufficient to show their testimony was material/relevant on liability/damages. Affidavits of 3 employees involved in the search showed relevant testimony on material issues of the condition and maintenance of defendant’s dock and facilities but “the convenience of employee witnesses is ‘not a weighty factor.'” Plaintiff submitted 6-affidavits of Bronx firefighters who were with decedent on the trip who affirmed they would be inconvenienced by travel to Warren County.

Failure to provide the full addresses of the Warren County defendants was not inherently fatal to the application where they all affirmed they resided in Warren County. Barresi v Halls Boat, LLC    

MVA   Vicarious Liab  

Second Department
Owners of box van involved in accident with plaintiff failed to meet burden for summary judgment on claim their driver did not have permission to operate the vas as the uncontroverted testimony and affidavit of the manager was insufficient to rebut the presumption of ownership under VTL §388(1) and they did not submit evidence showing the van was stolen. The presumption can only be overcome by “substantial evidence” such as proof the vehicle was stolen. Rodriguez v Morales    

Lead Poisoning   Directed Verdict   Set Aside Verdict   Notice   Pain/Suffering   Materially Deviates  

Second Department
Lower court providently granted directed verdict at end of plaintiff’s case to owners of building in Nassau County where babysitter watched infant-plaintiff as there was no rational path for jury to find owner had actual or constructive notice of unabated lead paint before being notified by the county under common-law and plaintiff failed to raise an issue on notice or causation against those defendants. Plaintiff’s motion for additur where jury awarded $10,000/$15,000 past/future pain and suffering for lead poisoning against owner of building where the infant-plaintiff lived providently denied as it did not materially deviate from reasonable compensation. Lanza v Delbalso    

Serious Injury   Emotional Harm  

Second Department
Defendants failed to meet burden for summary judgment on serious injury where their medical evidence did not address allegations that injured plaintiffs “suffered, inter alia, from posttraumatic stress disorder and postconcussion syndrome as a result of the accident.” Salcedo v MTA-New York City Tr.    

(19 summaries)

Assault   Motion to Dismiss   Statute of Limitations   Sanctions  

Second Department
Pro se plaintiff’s action for assault couched in terms of negligence and gross negligence dismissed where commenced beyond 1-year statute of limitations as New York does not recognize a cause of action for “negligent assault.” The Court directed plaintiff to show cause before the appellate court why an order pursuant to 22 NYCRR §130-1.1(c)(1) granting sanctions, including reasonable attorney fees, should not be entered for making meritless arguments on appeal. Thomasson v Demarco    

Comment: The pro se plaintiff is an attorney.

Malpractice   Wrongful Death   Discovery  

Second Department
Nurse practitioner (NP) defendant failed to show special circumstances to warrant continuing the action against a physician assistant (PA) defendant, in opposition to the plaintiff’s CPLR §3217(b) motion to voluntarily discontinue against the PA, as claim of prejudice by not knowing what treatment the PA rendered due to plaintiff’s failure to respond to demands was belied by NP’s failure to pursue discovery in the 10-months prior to the motion, lack of a cross-motion to compel plaintiff to comply with discovery, and lack of proof that the records of the medical center which employed the PA would not show what treatment she provided. Zayas v Schenker    

Premises Liab   Renew   Reasonable Excuse   Unknown Cause   Experts   Dangerous Condition   Building Code  

Second Department
Lower court providently granted plaintiff’s motion to renew opposition to defendant’s motion for summary judgment as plaintiff’s expert’s affidavit submitted in admissible form presented new facts that would change the determination even though it was rejected as inadmissible on the prior motion and plaintiff provided reasonable justification for not originally including it in admissible form. On renewal, defendant’s motion for summary judgment denied where it did not show plaintiff could not identify the cause of his fall and plaintiff’s expert’s opinion that the lack of a handrail on one side of the stairs constituted a deviation from “good and accepted practice,” raised an issue on dangerous condition. Shvyetsov v 1900 Newkirk Ave., LLC    

Premises Liab   Duty   Control   Foreseeability   Causation  

First Department
Not-for-profit organization that sponsored dances for its members granted summary judgment where the defendant-member fell on the plaintiff-member while dancing near her, injuring her ankle, where there was no allegations of a special relation between the NPO and either the plaintiff or defendant-member that would give rise to a duty to control the defendant-member. NPO met burden of showing the incident was unforeseeable where the defendant-member had attended many dances without incident, plaintiff described the dances as ‘really, really, very nice,’ and there were no similar prior incidents. Plaintiff failed to raise an issue on causation as the incident was unforeseeable. Bindler v Lenox Hill Neighborhood House, Inc.    

Premises Liab   Stairs   Wet Floor   Dangerous Condition   Create Condition   Indemnity  

Second Department
Fact that an exterior stair becomes wet with rain is insufficient to establish a dangerous condition but owner of building where plaintiff slipped and fell on landing of exterior stairs wet from falling rain failed to meet burden for summary judgment without proof a dangerous condition did not exist where the BP alleged the owner created a dangerous condition by constructing the staircase without proper edging. Absent proof it was not negligent, owner’s motion for summary judgment on common-law indemnity against contractor who built the stairs also denied. Bennett v DA Assoc., LLC    

Assault   Building Security   Notice   Intervening Cause  

First Department
Defendant which owned/maintained building where plaintiff was attacked in his girlfriend’s apartment failed to meet burden for summary judgment where plaintiff and his girlfriend had notified defendant that assailant had threatened them and that he should not be allowed in the building without the police but they allowed the assailant into the building, escorted him to the apartment, and left him unattended at the apartment door. Questions remained of whether the attack was caused by their allowing him into the building and leaving him at the apartment door or whether plaintiff’s action of opening the apartment door for the assailant was an intervening cause. Maldonado v Ruppert Hous. Co., Inc.    

Premises Liab   Open/Obvious   Inherently Dangerous   Question of Fact  

Second Department
Homeowners failed to meet burden of showing flowerpot on the landing by their front steps that plaintiff tripped on was open/obvious and not inherently dangerous where plaintiff testified the white flowerpot was next to a white column and she tripped over it while stepping back when the homeowner opened the screen door as they spoke. “A condition that is ordinarily apparent to a person making reasonable use of his or her senses may be rendered a trap for the unwary where the condition is obscured or the plaintiff is distracted.” Evans v Fields    

Labor Law §200   Labor Law §241   Snow/Ice   Notice   Industrial Code  

First Department
Dormitory Authority failed to meet burden for summary judgment dismissing Labor Law §200 and common-law negligence claims where its project manager generally arrived on the worksite at 7:30 AM, leaving questions of whether they had actual or constructive notice of the large thick sheet of ice between buildings that plaintiff slipped on. The ice was not an inherent risk of plaintiff’s work which was limited to indoor work and not snow/ice mediation.

Labor Law §241(6) claim based on industrial code §23-1.7(d)(slipping hazards) dismissed as the fall was in an open area and not a walkway/pathway under that code. Ponce v City of New York    

MVA   Comparative Fault   There to be Seen  

Second Department
Plaintiff established entitlement to summary judgment and dismissal of comparative fault defense on proof he was traveling under the speed limit as he approached the intersection and saw defendants’ vehicle cross in front of him, speeding and not stopping at the stop sign, and plaintiff had only a second before striking defendants vehicle. Defendants raised an issue on comparative fault by their drivers’ affidavit that he stopped at the stop sign and proceeded through the intersection at 10-mph and the front of his vehicle was through the intersection when plaintiff struck their rear quarter panel with enough force to cause it to use spin around and roll over. Ki Hong Park v Giunta    

Serious Injury   ROM   Causation   Experts  

First Department
Defendants met burden for summary judgment on their radiologist’s opinion that the degenerative changes and osteophytes on plaintiff’s CT scans they reviewed showed only degenerative conditions not related to the accident, their orthopedist’s findings of no loss of ROM, tenderness, or other positive findings in the cervical/lumbar spine, and plaintiff’s testimony of subsequent accidents. Plaintiff failed to raise an issue on causation where his experts did not to address the degenerative conditions and osteophytes noted on the CT scan reports or explain why they were not the cause of his injuries, and he did not present admissible evidence of contemporaneous loss of ROM.

Without raising an issue on causation, plaintiff’s 90/180-day claim dismissed. Ledesma v Rodriguez    

Premises Liab   Stairs   Unknown Cause   Question of Fact  

Second Department
Homeowner failed to meet burden for summary judgment on claim plaintiff could not identify the cause of her fall where plaintiff testified she was trying to grab onto something as she fell and there were no handrails on the landing or the steps she fell from. A question of fact remained on proximate cause for lack of handrails even if plaintiff initially lost her balance from a misstep. Jean-Charles v Carey    

Premises Liab   Trivial  

Second Department
Defendants granted summary judgment on proof height differential between curb and sidewalk within their premises was less than 1″ and plaintiff tripped during daytime hours on a clear day with no obstructions or crowds blocking her view of the area, establishing the defect was trivial. Haber v CVS Pharmacy, Inc.    

Negligent Hiring   Negligent Supervision   Motion to Dismiss   Punitive Damages   Raised For First Time  

First Department
Construction company failed to meet burden for summary judgment dismissing punitive damage claim for negligent hiring/supervision/retention where it relied solely on codefendant’s argument that the allegations were insufficient to support the claim against codefendant, not that the allegations were insufficient to support the punitive damage claim against moving defendant, and there are instances where an employer may be responsible for punitive damages for its employee.

Argument that allegations were insufficient to support a punitive damage claim against moving defendant not considered where raised for the first time on appeal. Davis v Melifont Constr. Corp.    

Premises Liab   Snow/Ice   § 7-210   Homeowner Exception   Create Condition  

Second Department
Homeowner granted summary judgment for slip and fall on accumulated ice on abutting sidewalk on proof it was a single-family home used exclusively for residential purposes under the 1-3 family home exception of administrative code §7-210 and homeowner did not create or aggravate the condition on proof that neither he nor anyone on his behalf attempted to remove snow/ice before plaintiff’s fall. Davila v Parada    

False Arrest   Malicious Prosecution   Emotional Harm   Judiciary Law §487   Motion to Dismiss   Outrageous Conduct  

Second Department
Motion to dismiss false arrest and malicious prosecution claims against defendant-attorneys who represented defendant-wife in her divorce granted as allegations that wife provided information she knew to be false to police and district attorney pursuant to a planned strategy with her attorneys, even if true, did not state a causes of action without allegations that the attorney-defendants “affirmatively induced” the police and district attorney or took part in the arrest and prosecution to the point of overcoming their free will.

Intentional infliction claim dismissed as alleged actions of defendant-attorneys were not extreme and outrageous. Jud. Law §487 claim dismissed where the alleged material misstatements were not pled with specificity and the testimony of one of the defendant-attorneys as a witness in a criminal case against plaintiff cannot be the basis of a §487 claim, even if false. Tueme v Lezama    

Res Ipsa Loquitor  

First Department
Plaintiff’s motion for summary judgment on res ipsa loquitor, where she was injured when handle of cable row exercise machine she was using disconnected, denied as questions remained of whether the handle and its attachments were within the exclusive control of the defendants. Kamara v L.A. Fitness Intl., LLC    

Premises Liab   Wet Floor   Out of Possession   NYC  

Second Department
NYC as owner of warehouse at JFK and Port Authority as lessee granted summary judgment dismissing claim of plaintiff who slipped on wet floor in warehouse that had been sublet to Delta Air Lines on proof NYC and Port Authority were out of possession owners/lessees with no duty to maintain the premises by statute, contract, or course of conduct. Voltaire v City of New York    

MVA   Rear End   Renew   Emergency Doctrine  

First Department
Plaintiff’s EBT submitted on his motion to renew his motion for summary judgment and to strike the emergency doctrine defense insufficient to offer new facts that would change the determination where it was consistent with the affidavit he submitted on the original motion. Questions of fact remained of whether defendant rear-ended plaintiff because of negligence or because of too little time to respond to an emergency. Romero v Valdez    

Discovery   BP  

Second Department
Lower court providently ordered plaintiff to provide a supplemental BP without objections including the specific location of the accident within the defendant’s school where the original BP only provided the address of the school. J.S. v Educational Alliance, Inc.    

(2 summaries)

Malpractice   Accepted Practice   Causation   Experts   Speculation  

Second Department
Emergency room physician and hospital granted summary judgment dismissing malpractice claim of patient who presented at ER with symptoms of a stroke on expert’s affirmation that the physician did not depart from accepted practice and any alleged departures were not a proximate cause of the patient’s injuries. Plaintiffs’ expert’s opinions, unsupported by the record, were speculative and failed to raise an issue in opposition. The Court does not give the details of the proofs. McHale v Sweet    

Serious Injury   BP  

Second Department
Defendants failed to meet burden for summary judgment on serious injury without eliminating all issues on the 90/180-day category alleged in the BP. The Court does not give the details of the proofs. Pickering v Basar    

About Matt McMahon

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