June 20, 2023 | Vol. 370

(5 summaries)

Res Ipsa Loquitor   Causation  

Second Department
Injured-plaintiff’s proof that her tire came off causing her to crash into a snowbank 2-miles after she left defendants’ service center where they rotated the tires was a ‘rare’ and ‘exceptional’ example of circumstantial proof so convincing and defendants’ response so weak as to make the inference of negligence under res ipsa loquitor inescapable. Plaintiffs only required to show defendants’ exclusive control at the time of the negligence, when they reattached the tire, and that their negligence was the likely cause of the accident. Bicchetti v Atlantic Toyota    

Settlement   Indemnity  

Second Department
GC-defendant granted summary judgment for contractual indemnity to recoup from plaintiff’s employer the 50% of $3,900,000 settlement it paid under agreement to pay settlement 50/50 with plaintiff’s employer where the indemnity agreement providing indemnity ‘to the fullest extent permitted by law’ did not violate GOL §5-322.1 as it did not require indemnity or the GC’s own negligence. Feliz v Citnalta Constr. Corp.    

Products Liab   Design Defect   Experts   Conclusory  

First Department
Houseware importer/distributor which distributed potholder to Texas company that sold it to plaintiff who was severely injured when it caught fire failed to meet burden for summary judgment where its expert’s opinion that the potholder was reasonably safe for its intended purpose and not defective was conclusory without specifying the tests he performed and stated it was manufactured within industry standards despite stating there were no specific or required flammability tests for potholders. Plaintiff’s expert raised an issue in opposition, opining the stitching and filling were polyester which increased its flammability and should have been treated with technically and economically feasible flame retardant and was, therefore, not designed and manufactured to industry standards.

Texas company that sold the potholder to plaintiff granted summary judgment under Texas law as plaintiff was a Texas resident who purchased the potholder in Texas from a Texas company, making Texas law applicable. Salinas v World Houseware Producing Co. Ltd.    

Comment: Prior Appellate Division decision reversing summary judgment for defendants reported in Vol. 134.

Serious Injury   Causation   Experts  

Second Department
Plaintiff met burden for summary judgment on issue of serious injury by affirmation of dentist that plaintiff sustained a fractured tooth as a result of the accident. Maniscalco v Thomas    

Malpractice   Causation   Accepted Practice   Experts   Conclusory   Raised For First Time  

Second Department
Defendants’ expert’s conclusory opinion that ‘[n]or is there evidence that anything Dr. Alzoobaee did or did not do was the proximate cause of or a substantial factor in the plaintiff’s subsequent injuries’ was insufficient to establish lack of causation and lower court improperly considered expert affirmation submitted by defendants in reply to satisfy their burden on causation. Plaintiff’s expert raised an issue on departure from accepted practice by opinion that defendants should have ordered diagnostic tests when ultrasound was negative for testicular cancer and scheduled follow-up appointments in response to plaintiff’s complaint of testicular pain. Since defendants failed to meet their burden on causation, plaintiff was not required to address that issue. Lopresti v Alzoobaee    

(11 summaries)

Premises Liab   Vacate Default   Motion to Dismiss   Personal Juridiction   Service  

Second Department
Defendants’ motion to vacate $100,000 judgment entered after inquest on default granted where their sworn denial of receipt of the Summons and Complaint, with specific facts, was sufficient to rebut the presumption of proper service afforded the process servers’ affidavit, requiring an evidentiary hearing on service and defendants’ motion to dismiss. Aikens v Kouchnerova    

Premises Liab   Sidewalk   § 7-210   Notice   Last Inspection   Duty   Indemnity  

First Department
Building owner denied summary judgment for plaintiff’s slip and fall on an oily substance on the abutting sidewalk from a street vendor’s cart where tenant’s manager’s testimony of general sidewalk maintenance was insufficient to eliminate question of constructive notice. Tenant granted summary judgment where its maintenance requirements under the lease were not so comprehensive and exclusive to have replaced the owner’s duty under administrative code §7-210 and, therefore, it had no duty to plaintiff. Management company denied summary judgment where questions remained of whether its obligations for sidewalk maintenance entirely displaced the owner’s duty.

Building owner and management company denied summary judgment on common law indemnity/contribution claims and contractual indemnity claims against tenant where there was no proof tenant was negligent and questions remained of owner/management companies’ negligence. Heredia v C.S. Realty Assoc. LLC    

Malpractice   Accepted Practice   Experts   Speculation   Conclusory  

Second Department
Pediatric practice granted summary judgment on expert’s opinion that infant-plaintiff’s adolescent idiopathic scoliosis could not be diagnosed until 1-year after the plaintiff stopped treating at their office. Plaintiff’s expert’s opinions speculative and conclusory without addressing the specific assertion of defendants’ expert that the condition was not observable until after the patient left the practice. Lagatta v Rivera    

Malpractice   Accepted Practice   Experts   Conclusory  

Second Department
Emergency medicine physician and NYCHHC met burden for summary judgment with expert opinion that diagnosis of degenerative spine disease when decedent presented with back pain radiating to his right leg, without diagnosing or treating his cardiac condition that resulted in a fatal heart attack when he was still in the ER the next morning, was not a departure from accepted practice. Plaintiff’s expert raised an issue in opposition by opinion that defendants failed to observe symptoms of myocardial infarction and a large scar from a prior cardiac surgery and departed from accepted practice by not performing a cardiac workup. Plaintiff’s expert’s opinions were not vague or conclusory. Kielb v Bascara    

Premises Liab   Wet Floor   Create Condition   Open/Obvious   Question of Fact  

Second Department
Landlord failed to meet burden for summary judgment on testimony of its employee that lobby where plaintiff fell had been mopped with a soap-like substance 1-hour before and plaintiff’s testimony that after she slipped and fell she noticed the floor was wet and smelled like a cleaning liquid, leaving a question of whether the defendants created the dangerous condition. Defendant failed to show the condition was readily observable by a reasonable use of the senses. Buestan v Tiff Real Prop., Inc.    

Premises Liab   Experts   Speculation  

First Department
Store established that the box with a vanity mirror which fell from an 8′ shelf onto plaintiff was not improperly placed on its testimony it was placed 2″ from the edge, could have been placed by a customer, and its expert’s affidavit that there was a 1″ cap down the middle of the shelf that would prevent boxes being pushed onto it from the adjoining aisle as claimed by plaintiff, but failed to address plaintiff’s testimony and affidavit that the shelf shook before the box fell and she noticed an employee stocking merchandise on the other side of the shelf unit. Plaintiff’s expert opined the 1″ cap would not have stopped boxes on the other side from falling onto the vanity mirror box and causing it to topple.

Plaintiff’s testimony on causation was not speculative where jurors could find proximate cause based on logical inferences. Ovalles-Sosa v Khoudari    

Premises Liab   Snow/Ice   Notice   Last Inspection  

Second Department
Owner’s motion for summary judgment denied without proof of last time the outdoor parking lot was inspected prior to plaintiff’s slip and fall on black ice and questions remained on whether the condition existed long enough for defendant to have discovered and corrected it. Edwards v Genting N.Y., LLC    

MVA   Comparative Fault   Causation  

Second Department
Sua sponte grant of summary judgment for plaintiff who was a passenger in defendants’ vehicle on plaintiff’s cross-motion for summary judgment dismissing affirmative defenses including comparative fault reversed where plaintiff conceded that her lack of comparative fault did not establish defendant’s fault. McBrearty v McBrearty    

MVA   Pedestrian   Attorney Fees   Sanctions  

Second Department
Law firm which took case from original attorney 1-year after the accident, placed it in suit, but was substituted by original firm within 1-month of placing it in suit providently granted attorney fee of $1,500 on $70,000 settlement at arbitration reached by substitute attorney based on the relative contributions of each firm. Lower court providently denied moving firm’s request for §130-1.1 sanctions where there was no proof substitute firm engaged in frivolous conduct. Reyes-Lopez v Mendez    

MVA   Respondeat Superior  

Second Department
Auto body shop failed to meet burden for summary judgment on claim its employee was acting outside the scope of his employment precluding respondeat superior while driving vehicle with plaintiff as a passenger without proof he was not “traveling for purposes necessary or incidental to his employment at the time of the accident.” The Court does not give the details of the proofs. Cobena v Antonioli    

Premises Liab   Wet Floor   Warnings  

Second Department
Supermarket failed to eliminate all questions of fact on whether it provided warnings or whether it’s warnings were adequate to apprise plaintiff of dangerous conditions in the restroom where he slipped and fell which had been recently mopped. The Court does not give the details of the proofs. Darginsky v Food Parade, Inc.    

(2 summaries)

Serious Injury   Causation  

Second Department
Plaintiff raised issues on whether she sustained serious injuries under permanent consequential and significant limitation categories in response to defendant’s prima facie showing of no serious injury. Where defendants did not meet burden on causation, the burden never shifted to plaintiff to show causation or explain any gap in treatment. The Court does not give the details of the proofs. Washington v Parron-Amaro    

Serious Injury  

Second Department
Plaintiffs raised issues on whether they sustained serious injuries under permanent consequential and significant limitation categories in response to defendant’s prima facie showing of no serious injury. The Court did not need to address defendant’s claim of no serious injury under 90/180-day category. The Court does not give the details of the proofs. Rodriguez v Collaguazo    

About Matt McMahon

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

Comments are closed.