June 21, 2022 | Vol. 318

(2 summaries)

Premises Liab   Duty   § 7-210   Storm in Progress  

First Department
NYCTA denied summary judgment where it, not abutting landowners, had duty to maintain area where plaintiff fell near top of subway staircase that served primarily for ingress/egress by a single carrier, was constantly/notoriously used by passengers, and could not be considered a common thoroughfare where its location was not practically accessible to passersby. Abutting landowners granted summary judgment under storm in progress where precipitation ended around 11pm and plaintiff fell at 4:30am. St. Germain v Seaman    

Comment: From lower court decision, NYCTA proved storm in progress but denied summary judgment where plaintiff claimed she fell on hardened ice under the snow.

Malpractice   Accepted Practice   Causation   Respondeat Superior   Experts  

Second Department
Hospital met burden for summary judgment on expert’s opinions the residents did not depart from accepted practice or cause decedent’s death and acted under the supervision of decedent’s private attending whose order were not contraindicated, eliminating respondeat superior. Plaintiff’s expert OB/GYN raised issues of whether hospital should have order complete records which showed decedent’s risk factors for cervical cancer that private attending diagnosed as benign, should have palpated the lesion during a required cervical exam at admission, and whether a gynecological oncology consult should have been ordered when the obstruction prevented the vaginal delivery and the private attending described the growth as the size of a “goddamn grapefruit” raising issues of whether the private attending’s plan to wait 4-weeks after delivery to remove the growth was contraindicated in light of the importance timely diagnosing cervical cancer.

Plaintiff’s board certified OB/GYN expert had sufficient skill, training, education, knowledge, or experience to opine on decedent’s cause of death. Pezulich v Grecco    

(7 summaries)

Renew   Discovery   Labor Law §240   Labor Law §241   Labor Law §200   Agent   Control   Indemnity  

First Department
Plaintiff’s motion to renew providently granted, even though she previously claimed discovery was complete, based on further discovery defendants deemed necessary and finding of liability against several defendants before plaintiff’s cross-motion. Plaintiff granted summary judgment against safety consultant on Labor Law §§ 240(1) and 241(6) as it was an owner agent where it had authority to supervise the work and its employee had safety concerns but did not stop the pouring of the concrete into the defective form which collapsed killing plaintiff’s decedent. Fact that it supervised the injury-producing work established liability under Labor Law §200 as well.

Safety consultant denied dismissal of NYC’s common-law indemnification, contribution, and apportionment claims as NYC was only passively liable but common-law indemnity claims of other defendants previously found negligent dismissed. Codefendant’s contribution and apportionment claims allowed to proceed. Winkler v Halmar Intl., LLC    

Comment: See companion decision reported in Vol. 317.

Labor Law §240   Ladder   Sole Cause   Feigned Issue  

First Department
Plaintiff who fell from unsecured A-Frame ladder when it suddenly shifted granted summary judgment on Labor Law §240(1). Defendants’ claim an extension ladder or other devices were available did not raise sole proximate cause issue without proof plaintiff knew he was expected to use them. Safety director’s supplemental affidavit claiming he instructed plaintiff to use the extension ladder raised only a feigned issue as it contradicted his earlier testimony and fact ladder was in place when plaintiff arrived meant his failure to secure the ladder was at most comparative fault, not a defense under §240. Daly v Metropolitan Transp. Auth.    

Labor Law §240   Labor Law §200   Sole Cause   Comparative Fault   Control   Indemnity  

First Department
Plaintiff’s fall from elevated height insufficient for Labor Law §240(1) summary judgment where issues remained of whether his boss told him to work on ground level and not use stilts and whether that order was superseded by a person plaintiff claimed was the boss’s assistant where the boss did not remember that person or giving him any authority. Plaintiff’s “normal and logical response” to the stilts becoming unstable should have been to request new ones, raising an issue of sole proximate cause on plaintiff’s different versions of asking for new stilts. Use of defective stilts would be comparative fault, not sole cause, where no adequate safety device was provided. Labor Law §200 and negligence claims against owner dismissed where neither plaintiff nor his employer initially opposed dismissal and owner did not control means and methods of plaintiff’s work.

Owner granted summary judgment on contractual indemnity against plaintiff’s employer where employer’s indemnity agreement with GC did not contain a negligence trigger and owner was not negligent. Gonzalez v DOLP 205 Props. II, LLC    

Malpractice   Accepted Practice   Causation   Loss of Chance   Experts   Conclusory   Speculation  

First Department
Where plaintiff’s local doctor was aware she was taking Gentamicin, she reported her nausea and vomiting to him, and there were no signs of acute renal failure, first hospital and its doctors’ alleged departures could not be a proximate cause of her damages. Plaintiff’s expert failed to raise an issue in opposition to second hospital and doctor’s showing of entitlement to summary judgment with conclusory opinion that they deprived plaintiff of a chance to avoid further acute renal injury where lab results at that hospital were inconclusive, her symptoms resolved with fluid treatment, there was no proof first hospital or doctors would have stopped the Gentamicin they prescribed for a deadly bacterial infection if informed of her nausea/vomiting, and the first hospital did not change the treatment after learning of the visit to the second hospital. Gill v Calfee    

Premises Liab   Duty  

Court of Appeals
Tenant of property adjoining street where steel beam fell on plaintiff’s foot from forklift that hit a road defect granted summary judgment on proof it neither owned nor made special use of the roadway. Beck v City of Niagara Falls    

Comment: Appeal from Fourth Department Order Beck v City of Niagara Falls heard under §500.11 rules.

Assault   Battery   Set Aside Verdict   Admissibility  

Second Department
Verdict finding defendant did not assault or batter plaintiff during altercation was reached on fair interpretation of evidence where parties gave conflicting versions of the altercation. Trial court providently denied plaintiff’s request to admit a video. The Court does not give the details of the video. Hall v Bouklis    

Renew   Reasonable Excuse  

First Department
Plaintiff denied renewal of opposition to motion to sever action involving accident that occurred 4-months after initial accident as plaintiff failed to provide reasonable justification for not including doctor’s report showing second accident aggravated initial injuries that predated the motion to sever. Acevedo v Nurmamatov    

(2 summaries)


Second Department
Carrier failed to show rear passenger who exited vehicle but remained next to it while original driver exited and new driver entered and started to drive away was not “occupying” the vehicle under the SUM endorsement that was consistent with Ins. L. §3420(f)(3). Progressive Advanced Ins. Co. v Talmadge    

Comment: Appeal by second driver from order granting first driver summary judgment dismissed as appellant was not aggrieved by that order. Talmadge v Holden

Workers Comp   Lien   Malpractice  

First Department
Workers comp carrier can recoup lien from proceeds of legal malpractice case for failure to timely commence underlying tort action as it is an indirect recovery from the third-party tortfeasor. Continental Indem. Co. v Redzematovic    

About Matt McMahon

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