June 15, 2021 | Vol. 266

(5 summaries)

Vacate Default   90 Day Notice   Note of Issue  

First Department
Plaintiff’s motion to vacate order dismissing action for failure to file Note of Issue by date set in conditional order granted where conditional order, and CC order, did not provide required 90-days notice, failed to specify the negligent conduct demonstrating pattern of delay, and was not signed by the parties. Flecha v Neira    

Appealable Order   Untimely   Dangerous Condition   Causation  

First Department
Timeliness of Notice of Appeal is calculated from service of Order with Notice of Entry, not when order was entered in NYSCEF. Plaintiff denied summary judgment on questions of whether defect was dangerous condition or caused accident. Lara v Tuck-It-Away at 135th St., Inc.    

Premises Liab   Dram Shop   Unknown Cause   Speculation   Noseworthy  

Second Department
Defendants granted summary judgment where plaintiff’s decedent was found dead in the basement of defendants’ restaurant and toxicology report showed he was intoxicated as plaintiffs could not identify cause of decedent’s fall without speculation even accepting existence of stair defects. Noseworthy doctrine was inapplicable as defendants’ knowledge of cause of decedent’s fall was no greater than plaintiffs.’ Atehortua v Jaramillo    

Assault   Malpractice   Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice   NYC  

First Department
Inmate’s attorney’s affirmation failed to meet burden for late Notice of Claim, brought 9/10-months after accrual of claims against NYC/HHC, as it did not provide firsthand account of assault, evidence records of incident existed or that their content would show actual knowledge to NYC within 90 days or a reasonable time thereafter, and did not identify any NYC employee present during assault or who was aware of the dangers. Failure to submit medical records to show actual knowledge of malpractice claim resulted in prejudice to HHC by delay. Counsel’s conclusory statement delay was caused by inmate’s inability to obtain counsel while at Riker’s Island did not provide a reasonable excuse. Matter of Figueroa v City of New York    

Preclusion   IME/DME   90 Day Notice   Notice   Renew   Reargument  

First Department
On plaintiff’s failure to appear for IME on date contained in conditional order of preclusion, the order became self-executing warranting summary judgment for defendants. Plaintiff’s claimed new fact for renewal, that she left US shortly before the IME date, was not new as she was aware of scheduled IME date when she left and when she opposed the motion. Failure to file Note of Issue within time of CPLR §3216 notice would have required dismissal in any event. Ramirez v 2917 Grand Concourse    

(17 summaries)

Labor Law §240   Labor Law §200   Premises Liab   Gravity Risk   Control   Last Inspection  

First Department
Elevator worker granted summary judgment on Labor Law §240(1) where he pulled shoulder and back out lowering 500 lb. steel bedplate down interior stairs with coworkers since he was not provided with hoisting equipment and defendants refused to allow workers to bring materials through building lobby to shaft rigged with hoisting equipment. Defendants’ argument coworkers’ testimony contradicted plaintiff’s testimony rejected where it did not contradict fact plaintiff was injured while lowering a heavy bedplate down a flight of stairs.

Defendants denied summary judgment on Labor Law §200 and negligence claims on testimony defendants required workers to use interior staircase instead of safer route through lobby to existing hoisting equipment, and defendants provided no evidence of last time area was clean/inspected to eliminate questions on notice of debris on the stairs. Agli v 21 E. 90 Apts. Corp.    

Labor Law §240   Labor Law §241   Labor Law §200   Industrial Code   Create Condition   Notice   Spoliation  

Second Department
Plaintiffs failed to meet burden for summary judgment on Labor Law §240(1) where injured-plaintiff fell while descending from mechanical room to fixed ladder where defendants’ employees’ testimony, submitted by plaintiffs, raised issue of sole clause by plaintiff’s statement that he stepped on cardboard he covered hole with and fell to the floor. Defendants granted summary judgment of Labor Law §241(6) claim as industrial code provisions relied on by plaintiff were either not applicable or not sufficiently specific, but defendants denied summary judgment of Labor Law §200 and negligence claims without proof they did not create or have constructive notice of the condition.

Plaintiffs denied spoliation sanction where they did not show alteration of ladder was relevant to claims. Cain v Ameresco, Inc.    

Assault   Negligent Supervision   Notice   Violent Propensity   Foreseeability   Control  

First Department
Hospital whose nurse requested plaintiffs, police officers, remove one handcuff from inmate/patient whose both arms were handcuffed to gurney because of history of violence and drug use and asked officers to step out of the room, denied summary judgment for inmate/patient’s attack of officers with telephone base that was not near inmate when officers left room as questions remained of whether defendant should have known patient could harm himself or others with the telephone and whether hospital resumed custody and control of patient by nurse asking officers to leave the room. Diliberto v New York Presbyt. Hosp.-WeilL Cornell Campus    

Assumption of Risk   Duty  

Second Department
Shooting range and defendant-shooter who accidentally shot plaintiff during high-speed competitive shooting contest granted summary judgment on primary assumption of risk as plaintiff, experienced shooter who competed in numerous high-speed shooting contests, assumed risks inherent in activity and was aware of risk of being accidentally shot, relieving defendants of any duty. Makabali v Chilelli    

Assumption of Risk   Conclusory  

First Department
Defendant, operator of sightseeing boat, granted summary judgment on primary assumption of risk where plaintiff fell after standing up while boat was traveling through choppy waters as the risk of falling into the water from wake and choppy waves is an inherent risk of boating and plaintiff’s conclusory statements, without expert support, failed to show the risks were increased. Paulino v Braun    

Assault   Building Security   Causation  

First Department
Building granted summary judgment on testimony of plaintiff and witnesses establishing front and side door locks were working properly on date of the accident, the area was calm and not dangerous, and plaintiff could not identify hooded/masked assailant and did not see if he left the building after the assault. Even if plaintiff had raised issue on locks, she failed to raise issue on whether assailant was an intruder who got into the building because of a lack of security. Astupina v West Farms Sq. Hous. Dev. Fund Corp.    

Labor Law §241   Labor Law §200   Industrial Code   Control  

Second Department
Building owner denied summary judgment on Labor Law §241(6) based on industrial code §23-1.8(c)(4) (protective clothing) where worker was burned by corrosive chemicals while power washing building where it failed to show activity was not part of larger construction or demolition project under protection of §241. Owner granted summary judgment of Labor Law §200 and negligence claims based on proof it did not have authority to control means/methods of work. Llamas v Yu Yu Chen    

Labor Law §240   Labor Law §200   Premises Liab   1-2 Family Exception   Create Condition   Notice  

Second Department
Single-family homeowner granted summary judgment of Labor Law §240(1) under 1-2 family home exception claim where worker fell from ladder when brick column he used to move to garage roof collapsed but denied summary judgment of Labor Law §200 claim based on hazardous condition without proof condition did not exist long enough for it to be discovered and corrected. Mowla v Baozhu Wu    

Premises Liab   Notice   Res Ipsa Loquitor  

First Department
Building owner and management company failed to meet burden for summary judgment where plaintiff’s testimony and emails showed she had notified management company and carpenter doing renovation work on apartment above that her ceiling was “falling apart,” building super’s and carpenter’s testimony and emails noted they observed multiple 1′ cracks in her ceiling that landlord failed to distinguish from portion of ceiling that fell on plaintiff. Defendants also failed to show res ipsa loquitor inapplicable as ceilings do not normally fall absent negligence and fact that both plaintiff and defendants had control of the ceiling did not preclude the doctrine. Wenzel v All City Remodeling, Inc.    

MVA   Comparative Fault   Causation   Renew  

Second Department
Plaintiffs’ motion to renew motion for summary judgment providently granted where Court of Appeals decision eliminated need to show lack of comparative fault, but summary judgment denied where defendants raised issue of whether their vehicle entered roadway from driveway before being struck by plaintiff’s vehicle, and whether plaintiff-driver was negligent and caused the accident. Jo v Gore    

Premises Liab   Wet Floor   Stairs   Duty   Warnings   Open/Obvious   Comparative Fault  

Second Department
Defendant failed to meet burden for summary judgment on argument it was not required to warn plaintiff of wet floor/stairs because condition was open/obvious as plaintiff saw super mopping which did not eliminate duty to maintain premises in a safe condition and questions remained of whether plaintiff saw super mopping or just cleaning. Defendant’s claim of comparative fault unavailing as plaintiff does not have to prove freedom from comparative fault to defeat motion for summary judgment. Lopez v 1355 Morris Ave, LLC    

Serious Injury   ROM   Preexisting   Degenerative  

First Department
Plaintiff raised issues in opposition to defendants’ showing of no serious injury by affirmation of physician signed 1-day after accident finding limited ROM, certified medical records, operative and MRI reports admissible to show contemporaneous treatment, and physician’s affirmed report of continued significant limited ROM attributed to the accident given lack of pre-existing injuries in plaintiff’s records. Plaintiff’s physician offered a “different, yet altogether plausible, cause of the injuries.” 90/180-day category dismissed on plaintiff’s testimony she was not confined to bed/home for any period. Marcelo v Fabius    

MVA   Pedestrian   Comparative Fault   Speculation  

First Department
Plaintiff granted summary judgment against defendants and dismissal of comparative fault defense on her statement and testimony that she looked each way before crossing in crosswalk with light in her favor and could not avoid being hit by defendants’ vehicle, supported by an eyewitness’s affidavit. Defendants’ claim plaintiff was not in crosswalk was speculation where driver admitted he did not see plaintiff until after impact. Maimone v Hughie    

Premises Liab   Sidewalk   § 7-210   Homeowner Exception  

First Department
Owner/resident of single-family granted summary judgment under homeowner exception of administrative code §7-210 on plaintiff’s testimony she fell on sidewalk but not any portion of driveway and no special use contributed to the condition. Bowe v Valentine    

Premises Liab   Sidewalk   Create Condition  

Second Department
Homeowners whose landscaper placed 2-barrels on their sidewalk, abutting perpendicular village concrete walkway through grassy area, denied summary judgment as plaintiff raised issue of whether placement of barrels was a special use and diverted plaintiff to the uneven defect where the sidewalk and walkway met. Donaghy v Liddy    

MVA   Question of Fact  

First Department
Testimony and photographs submitted by plaintiff failed to meet burden for summary judgment where questions remained of whether defendant’s vehicle traveling on road controlled by stop sign properly entered intersection and had right-of-way at time of accident with plaintiff’s vehicle traveling on road without a traffic control. Grant v Joyce    

MVA   Emergency Doctrine  

Second Department
Plaintiff and defendant both denied summary judgment on questions of whether defendant’s car, with plaintiff passenger, struck guard rail because of negligence or an emergency situation not of defendant’s making as a result of tire blowout. The Court does not give the details of the proofs. Ortiz v Zurita    

(1 summaries)

Uninsured   Bicycle   Arbitration  

Second Department
After framed issue hearing, carrier granted permanent stay of arbitration of uninsured claim by bicyclist struck by corporate vehicle with no insurance on proof corporate-driver’s insurance for his personal vehicle was required to cover the loss. Matter of State Farm Mut. Auto. Ins. Co. v Rodriguez    

About Matt McMahon

Civil trials and appeals since 1984
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