| MUST READS (4 summaries) | |||
| NOTEWORTHY | IF YOU MUST READ | ||
 Plaintiff’s motion to set aside verdict for jury misconduct based on jurors’ affidavits denied as constituting a probe into the jury’s deliberative process which cannot be used to impeach the verdicts, based on a connection between the trial justice’s law clerk and defense counsel’s firm denied where trial justice insulated the law clerk from actions involving the firm and there was no evidence of actual bias or impropriety, and on apportionment of fault where the verdict was supported by a fair interpretation of the evidence.Past lost earnings award of $53,625, reduced by the trial court to $1,712.50, and $0 for future pain/suffering, lost earning, and medical expenses were not against the weight of the evidence. Past pain/suffering award of $53,625 materially deviated from reasonable compensation and set aside unless defendants stipulate to increase the award to $200,000.00. Plazas v Sherlock ✉ Comment: Plaintiff’s cross-motion for summary judgment denied on conflicting versions of the accident in the EBTs he submitted. Plazas v Sherlock. |
 Defendant’s motion in limine to preclude plaintiff’s medical expert from testifying on serious injury providently granted where he examined plaintiff once, 12-years after the accident, and relied on medical records, including ones translated from Polish, that plaintiff did not present in admissible form at trial.The evidentiary ruling was ‘directly appealable before any trial order or judgment’ where it led to dismissal for plaintiff’s inability to show a serious injury as it was the functional equivalent of a grant of summary judgment. Jozwik v Monir ✉ |
| Plaintiff granted spoliation sanction of adverse inference charge at trial on tour manager’s testimony he was aware litigation was a real possibility and their employees reviewed videos of the 6-bus cameras, deleting 4 of them which plaintiff showed were deleted through negligence if not intent. The deleted videos were potentially relevant where they might show the driver’s negligence or other relevant conditions. Defendant’s employees did not have the right to decide what videos were relevant or should be destroyed. Defendant failed to show no incident report was prepared where there was conflicting testimony and it did not provide an affidavit of its efforts to locate a report. Defendant’s demands for discovery and a subpoena for plaintiff’s wife providently denied as information sought was irrelevant where plaintiff withdrew claim for diminished enjoyment of life, which is a component of pain/suffering, and were otherwise overbroad. Ferrer v Go N.Y. Tours Inc. ✉ |
| Motion to dismiss claim against NYCTA and taxi service which provided access-a-ride to blind plaintiff who fell in a hole where the taxi left him off denied where Complaint adequately pled an agency theory, rather than respondeat superior, that the driver acted on behalf of moving defendants with their express, implied, or apparent authority. Claims of negligent supervision, hiring, retention, and training dismissed where plaintiff did not plead facts sufficient to show moving defendants had notice of the driver’s propensity for the negligent conduct. Bailey v City of New York ✉ |
| NOTEWORTHY (18 summaries) | |||
| MUST READS | IF YOU MUST READ | ||
| Past/future pain/suffering verdict of $500,000/$500,000 set aside as materially deviating from reasonable compensation unless plaintiff stipulates to reduce award to $400,000/$400,000 for aggravation of plaintiff’s age-related, pre-existing degenerative spine without surgery that required 2-years of PT, where his pain is relieved by Tylenol and he has a 10-year life expectancy. Lower court providently granted summary judgment dismissing culpable conduct defense where there was no rational path for jury to find sleeping under the sagging ceiling was negligent as plaintiff had no reason to believe it would collapse. Defendant’s request for a missing witness charge for plaintiff relying solely on an IME doctor’s testimony denied where the treating doctors’ records were in evidence and their testimony would have been cumulative. Defendant objected to fire code charge as there was no fire and waived the objection that the fire code was enacted after the building was built on appeal as “a specific objection placed on an untenable ground waives all other valid grounds which might have been but were not raised.” Brown v Voda Realty LLC ✉ |
| Plaintiff’s post-trial motion to amend the pleadings to conform to the proofs and to set aside the verdict finding defendant-dermatologist did not depart from accepted practice denied as the verdict was not against the weight of the evidence where the jury could reach its verdict on a fair interpretation of the conflicting experts’ testimony and the court providently exercised its discretion in denying leave to amend the pleadings. Dominge v Dannenberg ✉ |
| Plaintiff’s motion to deem Notices of Claim in Labor Law case served 6-months after the accident timely served nunc pro tunc denied as plaintiff’s claim he was unaware of the potential case against the municipal defendants was not a reasonable excuse, he failed to provide any excuse for the 7-month delay in making the motion, did not show defendants had actual knowledge of the essential facts within 90-days, or provide some evidence or a plausible argument they were not prejudiced by the delay. Charlot v City of New York ✉ |
| Plaintiff’s unopposed motion for default judgment denied where service was made by affix and mail and process server’s previous attempts to serve were all on weekdays during working or transit to work hours and there was no proof process server made genuine inquiry into defendant’s whereabouts or place of employment. Ramirez v Escobar ✉ |
| School granted summary judgment dismissing negligent supervision claim for first grader’s fall from slide in school playground during recess on proof it provided adequate supervision by at least 2-monitors for 30-children during recess and that the alleged negligence was not a cause of the infant’s fall. Plaintiff failed to raise issues in opposition. Acosta v Yonkers Pub. Schs. ✉ |
| In Child Victims Act case, defendant met burden for summary judgment dismissing negligent hiring, retention, and supervision claims of sexual assault by employees of residential summer camp in 1970 on proof it lacked actual or constructive notice of the employee’s propensity for the conduct but plaintiff raised issues on constructive notice by the frequency and nature of the abuse and his affidavit that he told a named employee in the infirmary of the first assault which continued. Defendant’s claim that notice to the employee could not be imputed to it based on the adverse interest exception was without merit. Hammill v Salesians of Don Bosco ✉ |
| Abutting landowner granted summary judgment on proof sidewalk defect plaintiff tripped on was trivial as a matter of law where there was only a quarter of an inch height differential. Garcia v Saint Spyridon Greek Orthodox Church ✉ |
| Bus company that farmed out school bus trip to a separate nonparty bus company which was an independent contractor granted summary judgment dismissing the MVA action against the referring bus company on proof it did not own, operate, or control the bus, it did not employ the bus driver, and did not have any relationship with the codefendant bus company that owned the bus. None of the exceptions to nonliability for independent contractors, negligent hiring, instructing, or supervising; inherently dangerous work; or a specific nondelegable duty were present. Motion was not premature where nonmoving-defendants had knowledge of facts which were largely undisputed. Morand v Coachman Luxury Transp., Inc. ✉ |
| Carpenter granted summary judgment on Labor Law §241(6) on proof he tripped on a concrete colored nail sticking 1/2″ above the concrete floor as it was a ‘sharp projection’ in violation of industrial code §23-1 .7(e)(2)(tripping hazards) and dismissal of comparative fault defense where there was no evidence plaintiff was negligent. Demolition company failed to meet burden for dismissal of indemnity cross-claims against it on speculative argument the nail could have been placed by plaintiff’s employer after the demolition and there was no evidence to dispute testimony of plaintiff’s employer’s foreman that they did not use that type of nail. Employer’s attempt to reinstate plaintiff’s Labor Law §200 claim denied where no party opposed defendants’ motion to dismiss the claim. Defendants granted conditional summary judgment on indemnity claims against demolition company and plaintiff’s employer as indemnity agreement did not have a negligence trigger. Gervasi v FSP 787 Seventh LLC ✉ |
| Plaintiff who slipped and fell 4′-5′ on moist rung while descending metal ladder attached to man lift failed to meet burden for summary judgment against lessee on Labor Law §240(1) where questions remained of whether he was provided with adequate safety devices to prevent his fall or that there was an enumerated safety device that could have prevented his fall. Questions remained as to whether the construction manager had authority to control plaintiff’s employer’s compliance with safety requirements in order to be a statutory agent of the lessee. Hartigan v Gilbane Bldg. Co. ✉ |
| Abutting landowner met burden for summary judgment on proof it did not owe plaintiff a duty under administrative code §7-210 as plaintiff fell on a sidewalk defect located on the neighboring property but plaintiff raised an issue in opposition by a surveyor’s affidavit that the defect was located at least in part outside moving-defendant’s property. Castillo v West Harlem Group Assistance, Inc. ✉ |
| Plaintiff met burden for summary judgment on liability and dismissing comparative fault affirmative defense on his testimony he looked both ways before crossing in crosswalk with the WALK signal in his favor when he was struck by NYC’s school bus. Defendants failed to raise an issue on the bus driver’s statement in the uncertified police report, which was hearsay, and the driver’s affidavit which only confirmed he made the statement in the report without stating the statement was true and without addressing the part of the report that cited him for failing to yield the right-of-way to a pedestrian. Motion was not premature as defendants had 5-years to try to locate the bus driver for an EBT and could have provided an affidavit on personal knowledge after locating him. Traorey v City of New York ✉ |
| Abutting landowner granted summary judgment dismissing plaintiff’s claim for trip and fall on raised concrete sidewalk flag on photographs with measurements of height differential between the slabs and plaintiff’s testimony that she had walked on the sidewalk many times without tripping or noticing any defect and nothing impaired her view of the sidewalk, establishing as a matter of law that the defect was trivial given the insignificant height differential and surrounding circumstances. Clarke v 90 S. Park Owners, Inc. ✉ |
| Plaintiff granted summary judgment against condominium on his testimony he tripped on raised sidewalk flag, photographs taken more than a year before the accident which were admissible as he testified they fairly and accurately depicted the condition on the date of the accident, and proof the condo had notice of the condition for a significant period of time. Plaintiff failed to show remaining defendants were owners with a duty to maintain the sidewalk under administrative code §7-210. Richard v 1550 Realty LLC ✉ |
| Defendant granted summary judgment on her affidavit admitting she owned the small champagne colored Honda SUV plaintiff claimed rear ended him but both she and the vehicle were at her home in NJ at the time of the accident and on the police report where plaintiff had identified the hit and run vehicle as a black Chrysler minivan. Plaintiff’s affidavit claiming he obtained the license plate at the time of the accident did not raise an issue in opposition his affidavit did not describe the vehicle, explain how he got the license plate, or put forth any facts to support his claim. Motion not premature as plaintiff had personal knowledge of the relevant facts. Tejada v Gassaway ✉ |
| Plaintiff granted summary judgment on liability and dismissing comparative fault defense on his affidavit that the was stopped, waiting to parallel park, when defendants’ truck drove around him and struck the front driver’s side of his vehicle when it cut back too soon. Motion was not premature where defendants had knowledge of the relevant facts. Hogan v Townsend ✉ |
| Lower court erred in finding that proof of repairs made in the area surrounding the defect plaintiff tripped on in a crosswalk as recent as 5-months before the accident raised an issue of whether they created the defect as it was not proof they created an immediately dangerous condition. Smith v City of New York ✉ |
| Defendant who attended a comedy show at codefendants’ comedy club granted summary judgment on proof he was not negligent when he stumbled over a chair while walking to his seat and his hand accidentally came into contact with plaintiff’s hand as he tried to break his fall. Caferri v Levittown Props., LLC ✉ |
| IF YOU MUST READ (3 summaries) | |||
| MUST READS | NOTEWORTHY | ||
| Owner and driver of vehicle that struck plaintiff’s vehicle met burden for summary judgment on proof their driver was not negligent but plaintiff raised an issue in opposition. The Court does not give the details of the proofs. Alterisio v Rodriguez ✉ |
| Landowner denied summary judgment dismissing claim for trip and fall on abutting walkway where it failed to show the condition was not inherently dangerous or trivial even if it showed it was open/obvious. The burden of proof never shifted to plaintiff. The Court does not give the details of the proofs. Bilancione v Garden Homes Mgt. Corp. ✉ |
| Plaintiff denied summary judgment on liability and dismissing comparative fault affirmative defense where there were conflicting versions of how the accident occurred, leaving questions on fault and comparative fault. The Court does not give the details of the proofs. Corredor v Alnamer ✉ |