June 16, 2020 | Vol. 215

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Labor Law §240   Labor Law §241   Labor Law §200   Untimely   NYC  

First Department
NYC’s motion for summary judgment more than 60-days after Note of Issue was timely where case originally assigned to different part for more than 60-days after Note of Issue and timely under that part’s rules. Bridge inspection is not activity covered under Labor Law §§ 240(1) and 241(6). Labor Law §200 and negligence claims barred where injury caused by method of gaining access to work and moving defendants did not have control over those means and methods. Various indemnity, contribution, insurance, and subrogation issues addressed as part of the decision. Astrakan v City of New York

Comment: This case highlights the importance of checking part rules as soon as a Note of Issue is filed. While Judge Guzman used to be the only Bronx judge limiting summary judgment motions to 60-day after NOI, five Bronx judges now have that limitation. Judges, Gonzalez, Guzman, Tapia, Barbato, Capella.

Settlement   Sanctions   Costs/Disbursements  

Second Department
Defendants moved for hearing to determine costs for plaintiff’s for frivolous conduct under 22 NYCRR 130-1.1(d) as ordered by the First Department in a decision entered after the parties signed a settlement stipulation and their request for withdrawal of the appeal was denied. The motion for the hearing denied as the stipulation expressly waived all appeals and costs and defendants did not move to vacate the stipulation, attempting to receive the benefit of both the stipulation and the Court’s subsequent order. Bermejo v New York City Health & Hosps. Corp.

Attorney Fees   Capacity to Sue   Question of Fact  

First Department
Outgoing attorney retained to represent incapacitated person as trial counsel before guardian appointed compelled to provide discovery and his motion for fee hearing denied. So-ordered fee stipulation that did not waive claims or defenses regarding fees or expenses and provided for a hearing on these issues did not preclude question of whether outgoing attorney was fired for cause. Matter of Verdugo v Schwartz Goldstone & Campisi, LLP

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Labor Law §240   Labor Law §241   Labor Law §200   Falling Object   Safety Devices   Comparative Fault   Create Condition   Notice   Control   Indemnity  

First Department
Scaffold worker standing on ground struck by metal baluste dislodged by subcontractor from third floor entitled to summary judgment on Labor Law §240(1) against general contractor where no overhead protection provided. Claim that plaintiff was not allowed in the area would at most be comparative fault, not a defense under §240. Plaintiff granted summary judgment on Labor Law §200 and negligence against subcontractor who dislodged baluste where there was no dispute they dislodged it, establishing they created dangerous condition and had notice. Question of fact remained on §200 and negligence claims against general contractor where subcontractor testified general contractor instructed them to cut the baluste.

Employer denied summary judgment on contractual indemnity claim for question of whether plaintiff was permitted in area which could show their negligence. Hewitt v NY 70th St. LLC

Premises Liab   Res Ipsa Loquitor   Spoliation   Preclusion   Renew   Speculation   NYC  

Second Department
Plaintiff’s motion for summary judgment on res ipsa loquitor against NYC, owner of sewer treatment plant he was working on when overhead light fell on him, denied as presence of contractors meant NYC did not have exclusive control of light fixture. Motions for spoliation sanctions, including precluding NYC from offering any evidence on liability, made by electrical contractor and subcontractor denied where NYC preserved bent pipe but not light where there were photographs of light, all other light fixtures were available, and movants failed to show light fixture was crucial evidence as opposed to bent pipe. Cantey v City of New York

Comment: Renewal motion academic given above decision. Subcontractor’s motion for summary judgment against NYC on contractual indemnity granted as NYC’s claim that subcontractor’s employee struck the light fixture was mere speculation.Cantey v City of New York.

Premises Liab   Slip/Trip   Stairs   Fireman Rule   GML §205-e   Duty  

Second Department
Mortgage companies and their servicers granted summary judgment of police officer’s suit where he was injured on stairs after entering property to execute a parole arrest warrant as defendants did not own, occupy, operate, or control the property at the time of the incident rendering village code provisions relied on by plaintiff to satisfied GML §205-e inapplicable. Court noted that ‘The “firefighter’s rule,” which “bars recovery in negligence for injuries sustained by a firefighter [or a police officer] in the line of duty” … was abolished by General Obligations Law § 11-106, except as to actions against municipal employers and fellow police officers….” There could be no liability under GOL §11-1106 since defendants owed no duty to plaintiff. Maher v White

Asbestos   Causation   Burden of Proof   Hearsay   Renew  

First Department
Greenhouse manufacturer’s motion for summary judgment denied where it failed to “unequivocally” prove that plaintiff’s decedent’s mesothelioma could not have been contributed to by its products. Plaintiff’s identification of 3-items in the greenhouse that could have contributed to the mesothelioma would have required denial if defendant had met its burden. Defendant could not meet its burden by merely pointing to gaps in plaintiff’s proofs. Evidence on causation, while hearsay, properly considered as it was not the only proof in opposition. Plaintiff’s subsequent motion to renew should have been granted in the interest of justice based on decedent’s brother’s affidavit linking the mesothelioma to defendant’s products had the motion not been denied. Fischer v American Biltrite, Inc.

MVA   Directed Verdict   Set Aside Verdict  

Second Department
Plaintiff’s motion for directed verdict and to set aside verdict as against the weight of the evidence denied where there was a rational path for jury’s verdict and jury could find defendants free of negligence on fair interpretation of the evidence that their truck entered intersection with green light and was nearly through intersection when plaintiff drove his mobility scooter into the truck where it got stuck on a storage compartment near the rear wheel and was dragged for 20′-25′. Pizzo v Rios


First Department
Transit authorities’ motion to change venue from Bronx to New York County where one of their offices is located granted as plaintiff did not respond to timely served demand to change venue as a matter of right, forfeiting right to choose venue, and plaintiff did not dispute that Bronx was improper venue. NYC’s belated affirmation requesting venue be changed to Kings County based on location of accident not considered where no defendant other than transit authorities moved to change venue and moving defendants followed the procedures for changing venue to county they designated. Richardson v City of New York

Premises Liab   Slip/Trip   Out of Possession   Premature Motion   NYC  

Second Department
Defendants granted summary judgment on proof they were out of possession owners and under the lease expressly not obligated to maintain or repair freezer system where plaintiff slipped on ice from leaking pipe in freezer. Motion was not premature. Mallet v City of New York

Med Mal   Vacate Default   Meritorious Action  

Second Department
Pro se plaintiff’s motion to vacate judgment entered on default for failing to appear at 2 post Note of Issue conferences denied where plaintiff did not show meritorious action. Shah v Uh

Serious Injury   Preexisting   Degenerative   Causation   Expert Aff  

First Department
Defendants granted summary judgment on serious injury based on orthopedic surgeon’s report that plaintiff’s own MRI demonstrated preexisting degenerative changes not caused by accident. Defendants’ expert’s failure to compare ROM to normal ROM not fatal to motion where he found no objective evidence of injury using diagnostic tests on recent examination. Plaintiff’s experts failed to address degenerative condition in plaintiff’s records or her prior MVA with cervical injuries, offering no explanation as to why these could not be the source of her complaints. Monahan v Reyes

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About Matt McMahon

Civil trials and appeals since 1984
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