June 20, 2017 | Vol. 59

MUST READS
(8 summaries)
NOTEWORTHY IF YOU MUST READ

Negligent Supervision   Negligent Hiring   Vacate Default   Late Notice of Claim   Actual Knowledge   Reasonable Excuse   Meritorious Action  

Second Deptartment

The lower court improvidently exercised its discretion in denying the plaintiff’s motion to vacate its default in opposing the defendant’s motion to dismiss for failure to serve a timely Notice of Claim because plaintiffs could not show a potentially meritorious opposition to the motion. The disabled plaintiff, a mostly nonverbal 18-year-old girl, was sexually abused by a school bus attendant while being transported from school to the residential facility where she lived. Plaintiffs served a Notice of Claim 2 days after the 90th day after the last act of sexual abuse but claimed that the cause of action accrued when they were notified of the abuse 6 days later. The lower court found the cause of action accrued as of the last date of abuse and refused to vacate the default. The Appellate Division reversed finding that the school district which investigated the incident within days of the last abuse and reported it to police who arrested the assailant who confessed to the abuse had actual notice of the essential elements within 90 days, that there was no prejudice from the 2 day delay in serving the Notice of Claim, and given the disabled plaintiff’s low cognitive ability, discretion required that plaintiffs’ application to serve a late Notice of Claim or deem it timely served be granted. K.A. v Wappingers Cent. Sch. Dist.


Negligent Supervision   Set Aside Verdict   Comparative Fault   Dangerous Condition   Notice   Materially Deviates  

Second Deptartment

Jury found parochial school 100% at fault for incident where eighth grader tasked with another student to close a sliding parking lot gate without adult supervision hung on the gate as it closed and a wheel mechanism severed the tips of his middle and ring fingers and awarded him $450,000/$150,000 for past/future pain and suffering. Testimony that student was never warned of any dangers, given any instructions on how to close the gate, or supervised by an adult, that 3 other children had been injured by the gate, and that an inexpensive safety device would have prevented the accident, gave the jury a logical path to find the school 100% at fault and the student 0% at fault. The prior accidents were properly admitted on both dangerous condition and notice upon proof that no changes to the gate were made before the plaintiff’s accident. Objection to plaintiff’s psychiatrist’s testimony, to the extent it was inadmissible because of an undisclosed condition, was not preserved for appeal as the lower court gave an appropriate corrective charge at the request of the defendant who did not object to the corrective charge. The damage award did not materially deviate from reasonable compensation. Martin v Our Lady of Wisdom Regional Sch.


Med Mal   Late Notice of Claim   Continuous Treatement  

First

NYCHHC granted motion to dismiss all claims for malpractice prior to plaintiff’s second visit to the hospital, 1.5 years after his first visit, for failure to serve a timely Notice of Claim finding that plaintiff’s election to treat exclusively with a chiropractor whom he believed was a physician during that period broke the chain of continuous treatment even though there was evidence that the hospital anticipated future treatment. Jianfeng Jiang v Xue Chao Wei


Premises Liab   Set Aside Verdict   Open/Obvious   Inherently Dangerous   Pain/Suffering   Materially Deviates  

First

The jury could find that slime oozing from a trashcan on a subway platform that caused a nonparty to slip, hit and knock plaintiff down, even if open/obvious, was inherently dangerous or a trap for the unwary. Award of $700,000 for 5 years of past pain/suffering, although high, did not materially deviate from reasonable compensation given extensive evidence of mental anguish and loss of enjoyment of life, but award of $2 million for 15 years of future pain and suffering materially deviated to the extent that a new trial was ordered unless plaintiff stipulated to reduce the award to $1 million consistent with similar awards where a total knee replacement would be needed in the future and the fact that plaintiff was still able to travel and take photographs to some extent. Sermoneta v New York City Tr. Auth.


Set Aside Verdict   Pain/Suffering   Materially Deviates  

Second Deptartment

The Appellate Division modified the lower court’s denial of the plaintiff’s motion to set aside the verdict as inadequate for past and pain/suffering, past lost earnings, and the award of $0 for loss of services by setting aside the verdict unless the parties stipulated to increase past pain and suffering from $15,000 to $75,000, where plaintiff suffered a broken heel requiring an ORIF, and increase past lost earnings to $298,280 consistent with the unrebutted testimony of plaintiff’s economist. Gorman v Mathew


Med Mal   Frye   Law of the Case  

Second Deptartment

Trial court’s holding of a sua sponte Frye hearing just prior to trial where all but one 1 defendant had been dismissed was a pretense to overrule a prior denial of summary judgment to the defendant doctor violating the law of the case doctrine which holds that one justice of a concurrent jurisdiction cannot overrule the judgment of another justice of the same jurisdiction. Complaint was reinstated and remanded for trial. Aguilar v Feygin


Privilege   Discovery   Asbestos  

First

Manufacture’s motion to vacate a special master’s recommendation that it had waived attorney-client privilege of both a redacted and unredacted copy of their counsel’s memorandum from the 1980s granted only to the extent of finding that they had not waived the privilege to the unredacted copy which was inadvertently disclosed and which they continuously objected to. Defendant failed to meet its burden of showing that it did not waive privilege as to the redacted version which it routinely provided in discovery. Matter of New York CityAsbestos Litig.

Comment: A good reminder that privileged items inadvertently disclosed are still entitled to the privilege and should be returned with or without a request.


Serious Injury   ROM   Preexisting   Expert Aff  

First

Defendant’s motion for summary judgment on serious injury granted on plaintiff’s testimony that she did not seek treatment for her cervical spine for 8 months after the accident, which was too remote to establish causation. Defendants’ orthopedist, neurologist, and emergency room specialist and MRI showing pre-existing conditions provided competent medical proof that plaintiff did not sustain a serious injury. Moore-Brown v Sofi Hacking Corp.

NOTEWORTHY
(23 summaries)
MUST READS IF YOU MUST READ

Premises Liab   Pothole Law   Prior Written Notice   Question of Fact   NYC  

Second Deptartment

NYC denied summary judgment where it’s motion papers showed that it had acknowledged a pothole in the general vicinity where the accident occurred and questions regarding the precise location raised questions of fact for the jury. Apartment complex owner also denied summary judgment where evidence showed that the accident occurred outside the entrance gate to the apartment complex on a dead-end street with no sidewalks that was used by the apartment complex and its tenants as a parking lot, walkway, and for its garbage dumpsters. Llanos v Stark


Med Mal   Accepted Practice   Causation   Informed Consent   Expert Aff  

First

Hospital moved for summary judgment claiming that nurse practitioner at school clinic did not depart from accepted practice by not referring the infant plaintiff for a blood clot work up when she presented with shortness of breath, chest pain, history of cardiac problems, and history of using a hormonal contraceptive device prescribed by the nurse practitioner which increased the risk of blood clots, and that any departures could not be a cause of her pulmonary embolus and resulting significant brain damage because she came under the care of her pediatrician the same day and was seen at a hospital emergency room over the 7 days before she suffered her arrest. Plaintiff’s expert opined that the nurse practitioner departed from accepted practice by not immediately removing the contraceptive device which would have gradually reduced the risk of blood clots and referring her for a thromboembolism work up and that had this been done she would not have suffered the pulmonary embolus, raising questions of fact on departure and causation. Since the infant plaintiff’s mother conceded that they had received a fact sheet with the risks of the contraceptive device including blood clots, and reviewed them with the nurse practitioner, plaintiffs’ claim of lack of informed consent was dismissed. There were 2 dissents. Adams v Pilarte


Premises Liab   De Minimus   Workers Comp Defense   Control   General Release  

First

Defendant’s motion for summary judgment denied where it failed to show that it was not involved in the construction of the concrete floor that plaintiff tripped on in dim lighting, and evidence showed that the 4” x 30”x 18” concrete mound was not trivial, that the Worker’s Comp. defense was inapplicable, and that a general release signed by the plaintiff releasing a co-defendant who showed they had no involvement with the area, was not absolutely clear that it released this defendant. Kearney v Capelli Enters.


Premises Liab   Stairs   Notice   Last Inspection   Speculation  

Second Deptartment

Building owner denied summary judgment where it showed only general cleaning practices rather than specific cleaning or inspection of the area where the plaintiff fell. Argument that the water could have been deposited seconds or minutes before the accident was speculative and defendant cannot make out a case for summary judgment by pointing to gaps in the plaintiff’s proofs. Lebron v 142 S 9, LLC


Products Liab   Design Defect   Warnings  

First

Manufacturer of meat cutting saw failed to meet its initial burden for summary judgment by its contention that its warnings were adequate because even with adequate warnings a product and its foreseeable misuse may be so dangerous that a jury can conclude that the utility did not outweigh marketing it. Plaintiff’s admission that he ignored warnings eliminated any claim that inadequate warnings were the cause of the accident. Servicer of the bandsaw was granted summary judgment where there was no proof of negligence or a connection between the servicing of the saw and the plaintiff’s injuries. Medina v Biro Mfg. Co.


MVA   Set Aside Verdict   Emergency Doctrine  

Second Deptartment

Defendant’s testimony that he hit a patch of black ice causing him to cross into the plaintiff’s oncoming lane, along with meteorological evidence that there had been no precipitation for 10 days, was sufficient to warrant giving the emergency doctrine charge and there was a logical basis for the jury to apply the emergency doctrine in finding the defendant not negligent. Plaintiff’s testimony that there were no ice patches raised only a question of fact which was determined by the jury. Youssef v Siringo


Premises Liab   Stairs   Slip/Trip   Set Aside Verdict  

First

Trial court improperly set aside verdict which found NYCTA negligent in not providing adequate lighting for exterior covered stairway where plaintiff fell while descending. Testimony that plaintiff had used the unlighted stairs several times prior to the accident without incident provided a reasonable basis for the jury to find that the plaintiff was not negligent. Sanchez v New York City Tr. Auth.


Med Mal   Set Aside Verdict   Materially Deviates  

Second Deptartment

Defendant’s motion to set aside damage verdict of $350,000/$250,000 for past/future pain and suffering denied as it did not materially deviate from reasonable compensation. Past awards are not binding, but a guide for the courts to follow. Scaccia v Bieniewicz


Labor Law §200   Labor Law §241   Control   Industrial Code  

First

Defendant granted summary judgment on Labor Law §200 and negligence claims as the cement carrying hose which burst causing plaintiff’s injuries arose from the means and methods of work which the defendant did not control. General supervisory control is not sufficient. Summary judgment granted on Labor Law §241(6) claims as one industrial code provision claimed was not sufficiently specific to impose liability and the other was inapplicable. Willis v Plaza Constr. Corp.


Wrongful Death   Amend Complaint   Labor Law §240   Workers Comp Defense   Spoliation  

Second Deptartment

Plaintiff sought leave to amend the complaint to add plaintiff’s decedent’s employer as a party for failing to preserve the aerial lift truck plaintiff’s decedent was using when he came in contact with a powerline and was electrocuted, which it had agreed to do, when the truck was allegedly vandalized in the employer’s lot and the dead man switch was removed. Plaintiff’s argument that the Worker’s Comp. defense should not apply because of the employer’s alleged intentional destruction of the property was unpersuasive and claims of spoliation, fraud, and impairment of right to sue are not cognizable torts. The proposed amendments met the test of palpably devoid of merit and leave was denied. LaLima v Consolidated Edison Co. of N.Y., Inc.


Premises Liab   Slip/Trip   Unsigned Transcript  

First

Cooking oil recovery company granted summary judgment on affidavit and testimony showing that it had not picked up cooking oil from any of the restaurants in co-defendants’ building for more than a year before the plaintiff slipped on an oil slick outside of the building while riding her bicycle and plaintiff failed to submit any factual response that would raise a question of fact. Unsigned transcripts were properly before the court “because the deponents were served with notices to execute more than 60 days before Tri-State moved for summary judgment, every transcript was certified by a reporter, and neither plaintiff nor co-defendants challenged the accuracy of the testimony.” Safier v Saggio Rest. Inc.


Premises Liab   Motion to Dismiss   Default Judgment   Res Judicata   Collateral Estoppel   Prejudice  

Second Deptartment

Plaintiff’s motion for default judgment denied where Answer was only 2 days late and there was no proof of prejudice or willfulness. Building owner’s motion to dismiss as barred by res judicata and/or collateral estoppel denied based on a prior housing court decision awarding attorney’s fees and damages for failure to pay rent which did not constitute res judicata since there is no mandatory counterclaim provision under the “transactional approach” adopted by New York which states that all claims which can be brought in an action will be barred by res judicata if not asserted in the original action. Collateral estoppel also did not apply as there was no identity of issues where plaintiff’s claims were for personal injuries from bed bug bites. Wax v 716 Realty, LLC


MVA   Punitive Damages   Discovery   Respondeat Superior   Sanctions  

First

Given defendant’s admission that the driver of the van was acting within the scope of his employment, the negligent entrustment cause of action should have been dismissed and, even though the court noted defendant’s discovery abuse, sanctions were not appropriate. Plaintiffs’ argument that their claim for punitive damages raised an exception to the respondeat superior bar to the negligent entrustment claim was not persuasive as they failed to plead punitive damages or facts sufficient to justify punitive damages. De La Cruz v Dalmida


MVA   Rear End   Nonnegligent Explanation  

Second Deptartment

Defendant, the lead vehicle which was rear ended by a car in which plaintiffs were passengers, granted summary judgment where driver of car that rear ended the defendant testified that the defendant’s car was stopped when he struck it and that he did not see the car until the accident. Rear car driver’s claim that defendant’s car stopped suddenly for no apparent reason did not raise a triable issue of fact since he did not see the stopped vehicle until he hit it. Gonzalez v Alvarez


MVA   Motion to Dismiss   Respondeat Superior  

Second Deptartment

Courier company’s motion to dismiss for failure to state a cause of action granted where its purported employee’s action of banging on a cab resulting in the cab driver swerving to hit the bike courier but hitting the plaintiff could not, as a matter of law, be considered within the furtherance of the employer’s business. Green v Himon


MVA   Question of Fact  

Second Deptartment

Defendant denied summary judgment on his claim that his vehicle was not involved in the accident where he submitted the police report and deposition testimony which had his license plate listed as the vehicle which left the scene and a description of the vehicle given at the time by the plaintiffs which matched defendant’s vehicle. For summary judgment, defendant must eliminate all triable questions of fact and cannot just point to gaps in the plaintiff’s proofs. Gillies v Crawford


Premises Liab   Open/Obvious   Inherently Dangerous  

Second Deptartment

Restaurant which used small rocks as part of its landscaping met its initial burden for summary judgment where plaintiff slipped on 1 of 2-3 small rocks in the mall’s parking lot by showing that the condition was open and obvious and not inherently dangerous. Lawrence v Darden Rests., Inc.


MVA   Bus   Feigned Issue   50-H  

First

NYCTA granted summary judgment on testimony that bus was pulling out from stop, going 3-4 mph, when a truck cut it off causing the driver to step on the brakes. Plaintiff failed to put forth “objective proof” that the stop was extraordinary or violent. Plaintiff’s affidavit contradicting her 50-h testimony created only feigned issues of fact. Patterson v New York City Tr. Auth.


Premises Liab   Slip/Trip   Snow/Ice   Raised For First Time   Expert Aff  

First

Plaintiff raised an issue of fact by its meteorological expert’s affidavit opining that the icy condition plaintiff slipped on existed for 45 hours prior to her fall and defendant’s submission of an expert’s affidavit in reply was not considered as it raised a new theory for summary judgment in reply and the plaintiff did not have an opportunity to respond. George v New York City Hous. Auth.


Strike Note of Issue   Waiver  

First

Con Edison’s motion to strike the Note of Issue denied where they had stipulated at a compliance conference that all discovery was complete waving their right to strike the Note of Issue. Behljulhevic v City of New York


Discovery   CPLR § 3126   Willful/Contumacious  

Second Deptartment

Plaintiff’s motion to strike defendant’s Answer denied where defendant had complied with the so ordered stipulations, to extend the stay of the action pending completion of discovery, at the time plaintiff made her motion and there was no evidence of willful and contumacious behavior. Mew v Civitano


Serious Injury   ROM   Expert Aff  

Second Deptartment

Defendants’ grant of summary judgment on serious injury grounds reversed where defendants’ experts’ found significant limitations of ROM in shoulder and cervical and lumbar spine. Kang v Guillen


Personal Juridiction   Service  

First

Defendant’s motion to confirm special referee’s report that personal jurisdiction was not obtained granted and pro se plaintiff’s motion to reject the report denied where defendant testified he did not live at the apartment where the summons and complaint was served and his testimony was backed up by the testimony of the building doorman. Jia Wang v Zhao

IF YOU MUST READ
(0 summaries)
MUST READS NOTEWORTHY

About Matt McMahon

Civil trials and appeals since 1984

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