Asbestos Pain/Suffering Wrongful Death Materially Deviates Admissibility
 First Department further reduced jury award of $25/$17/$18 million for decedent’s pain/suffering, son’s/daughter’s loss of guidance, reduced by trial court to $10/$9/$10 million, to $4/$1/$1 million noting that the $4 million for pain/suffering was “significant and exceeds amounts set in some of our precedents” but justified given decedent’s symptoms and pain/suffering.
Plaintiff allowed to refresh recollection with list of manufactures of products he was exposed to prepared by his attorney in response to interrogatory. Plaintiff’s expert established decedent exposed to sufficient asbestos dust from defendant’s products to cause mesothelioma and defendant’s expert precluded from showing experiment regarding degree of exposure not performed under conditions sufficiently similar to plaintiff-decedent’s exposure. Johns-Manville providently left off verdict sheet where defendant failed to show plaintiff exposed to their products. Matter of Murphy-Clagett v A.O. Smith Corp.
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FELA Duty Foreseeability Causation
Metro-North’s motion for summary judgment dismissing assistant conductor’s FELA claim that Metro-North was negligent in failing to prevent passenger from assaulting her as she attempted to collect fare denied. Under FELA proof of elements of negligence are “substantially relaxed” and “negligence is liberally construed” with a jury being allowed to draw greater inferences then in a common law case and summary judgment can only be granted if the only conclusion is that employer’s negligence could not have played any part in the injury. Stephney v MTA Metro-N. R.R.
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Premises Liab Slip/Trip Snow/Ice Storm in Progress Notice
 Strong gusty winds sufficient to blow freshly fallen snow over property as shown by climatological data, meteorologist, and deposition testimony placed accident within time of a storm in progress even though snow stopped falling at least 6-hours earlier. Property owners did not have constructive notice of ice on driveway. Wroblewski v Williams
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Med Mal CPLR § 2104 Settlement
Defendant’s motion to enforce purported settlement agreement evidenced by emails between counsel denied where plaintiff’s language “consider it settled” in response to $290,000 offer was followed by language discussing an OSC defendant brought in Surrogate Court to recoup $838,218 for services rendered, not provided to plaintiff’s counsel by that time, showing that the emails did not contain all material terms of purported settlement. Teixeira v Woodhaven Ctr. of Care
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Med Mal Accepted Practice Causation BP Amend BP Expert Aff Raised For First Time Reargument
 Doctor granted summary judgment on expert’s opinion of no departure from accepted practice or causation and plaintiffs failed to raise issue of fact in opposition where their expert raised failure to diagnose and treat decedent’s congestive heart failure for first time in opposition as opposed to failure to diagnose and treat a-fib or flutter as pleaded in BP. Plaintiffs never moved to amend BP and claim they were misled by court during oral argument into believing it was not necessary did not excuse failure to move to amend. Argument that judge improperly decided motion where he was not present during oral argument, under Judiciary Law §21, rejected because it was a purely legal question. Marti v Rana
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Discovery HIPAA Privilege
Defendants’ motion to compel plaintiff to provide HIPAA authorization for pharmacy including “Alcohol/Drug Treatment/Mental Health Information/HIV-Related Information” denied. HIV records protected under Public Health law §2785(1) and only allowed for a compelling need. Defendants failed to show alcohol/drug treatment/mental health information records were relevant on plaintiff’s ability to recover from injuries including loss of enjoyment of life. Nesbitt v Advanced Serv. Solutions
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Labor Law §240 Ladder Sole Cause
Plaintiff granted summary judgment on §240(1) where A-frame ladder collapsed underneath him and fact that supervisor instructed him to use the ladder eliminated questions on sole proximate cause. Vucetic v NYU Langone Med. Ctr.
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Premises Liab Slip/Trip Wet Floor Stairs Duty Notice
Charter school granted summary judgment for student’s slip and fall on stairs wet with water tracked in by students from rain within 10-minutes of accident on proof it did not have actual or constructive notice of condition within a reasonable time to correct it and it had no duty to cover all floors and stairs with mats or constantly mop all moisture tracked in from the outside. General knowledge that students tracked in water from rain in the past was not sufficient to establish constructive notice by a recurring condition. Jones v Icahn Assoc. Corp.
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Premises Liab Duty Feigned Issue
City worker injured when liquid drain declogger he was using spurted out of drain causing significant burns failed to show cafe that leased area for concession had possession or control of drain and pipes owned and operated by city or that they did anything to clog the drain. Plaintiff’s affidavit raised only feigned issues as it contradicted his testimony. Troy v Grosso
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Med Mal Informed Consent Accepted Practice Causation
Neurosurgeon who performed microvascular decompression denied summary judgment where plaintiff’s decedent complained of headaches postoperatively and died 8-days post-op. Defendants made out prima facie case for summary judgment on post-op CT scans showing no bleeding, autopsy report listing hypertension as cause of cerebral infarction leading to death, and affidavit of neurosurgeon that procedure was performed within accepted practice and death was caused by sudden catastrophic event unrelated to surgery. Plaintiff’s expert raised issues of fact by opinion that surgery should not have been performed weighing risks and benefits, contesting autopsy report and opining that hemorrhage resulted from surgeon’s manipulation of posterior fossa veins and vascular sinuses causing venous thrombosis and cerebellar infarction, that bleeding in the cerebellum was a recognized complication of the surgery resulting from performing surgery against accepted practice, and that postoperative care deviated from accepted practice where headache symptoms should have triggered an immediate CT scan, MRI, or ER referral. Lampe v Neurological Surgery, P.C.
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Labor Law §240 Labor Law §241 Labor Law §200 Safety Devices Agent Control
Plaintiff granted summary judgment under Labor Law §240(1) against owner and general contractor on proof they provided no safety devices to prevent him from falling off roof during construction of supermarket but managing agent for property was not an “owner or agent” for purposes of §§240(1) & 241(6) where it managed the property not the construction work. Principal’s statement that he, “may have been able to stop work at the job site” was too equivocal to raise issue of fact. Tenant, who hired contractor, denied summary judgment where its witness was aware of both the lease and construction contract but had no knowledge of the terms. Disclosure of occurrence witness after Note of Issue did not require preclusion of witness’ affidavit where defendants had opportunity to depose witness before conclusion of the motion. Reyes v Bruckner Plaza Shopping Ctr. LLC
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Labor Law §241 Labor Law §200 Labor Law §240 Industrial Code
General contractor for asbestos removal project denied summary judgment where subcontractor’s employee supervising removal of asbestos from ceiling was injured when long light fixture fell on him. Industrial codes §23-3.3(b)(3)(falling building parts)and §23-3.3(c)(continuing inspections for hazards created by progress of demotion) sufficiently specific to form a basis for Labor Law §241(6) claim. Labor Law §200 claim dismissed on proof that defendant did not create the dangerous condition or have notice of it. Mendez v Vardaris Tech, Inc.
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MVA Set Aside Verdict Serious Injury
Verdict finding plaintiff did not sustain serious injury upheld based on conflicting expert testimony regarding whether knee injury requiring arthroscopic surgery and cervical injuries were caused by accident or degenerative. Verdict could be reached on a fair interpretation of evidence and jury was free to accept defendants’ experts’ testimony over plaintiff’s. Canale v Khananayev
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Assault Battery 1983 Action Question of Fact NYC
Police officers’ testimony that plaintiff was intoxicated, belligerent, and resisted arrest made out prima facie case for summary judgment but plaintiff’s, her husband’s, and security supervisor’s testimony that plaintiff was sitting in a chair not resisting arrest when police assaulted her raised issue of fact in opposition. Testimony that plaintiff was taken to hospital after arrest and left with a splint and 2-days later seen by orthopedist who diagnosed fractured wrist from handcuffs showed a compensable injury. Elias v City of New York
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Labor Law §241 Labor Law §200 Industrial Code Control Workers Comp Defense Alter Ego 3rd Party Contractor Espinal
Building owner and managers denied summary judgment on Labor Law §200 and negligence where laborer injured when vertical elevator door being operated by plaintiff’s foreman, employed by a different company, struck him on their representative’s testimony that they could direct work which also precluded summary judgment on their indemnification claims. Building owner and managers granted on Labor Law §241(6) where industrial code §23-7.1 was not sufficiently specific for §241(6) predicate.
Company hired to operate elevators granted summary judgment on proof it was not operating elevator at time of accident, as a 3rd-party contractor it owed no duty to plaintiff, and it did not meet any of the Espinal exceptions. Foreman’s employer failed to show it was alter ego of plaintiff’s employer on proof that the companies were formed for different purposes with separate workforces. Robles v Taconic Mgt. Co., LLC
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MVA Question of Fact Sole Cause VTL §1104 NYC
NYC and driver of FDNY ambulance failed to eliminate all questions of fact on whether codefendant drove through interception against red light and was sole proximate cause of accident and whether ambulance entered intersection with the light. NYC not entitled to reckless standard of VTL §1104 absent proof that ambulance had siren and displayed at least 1-red light. Wynter v City of New York
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Vacate Default Service
Defendant failed to rebut presumption of proper service from process server’s affidavit where affidavit of individual served raised only minor inconsistencies regarding her appearance in process server’s affidavit which was insufficient to require a hearing or grant motion to vacate default. Rodriguez v 60 Graham, LLC
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MVA
Motorcyclist who entered intersection with no traffic device when he collided with car that entered intersection against stop sign granted summary judgment. Even believing defendant drivers’ affidavit that she stopped at stop sign, she still failed to yield the right-of-way. Butt v Lockwood
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Premises Liab Slip/Trip Snow/Ice Notice Last Inspection
Defendant owner’s failure to state he had not received complaints of snow/ice or when area was last inspected failed to eliminate questions of fact on constructive notice even where owner was working on property on day of accident. Vazquez v Jerome Gas Corp.
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Premises Liab Slip/Trip Wet Floor Create Condition Notice Speculation
Defendants granted summary judgment on proof they did not create wet condition plaintiff slipped on or have notice of same based on inspection schedule showing floor was inspected every 15-minutes including 2-minutes before plaintiff’s fall and manager saw no liquid on floor. Claim that defendant created condition by allowing an ice cube to fall on floor was speculative where plaintiff did not see any liquid before his fall and had no idea how long liquid was on the floor or how it got there. Gagliardi v Compass Group, USA, Inc.
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Med Mal Vacate Default Motion to Dismiss Personal Juridiction CPLR §306-b Raised For First Time
Doctor’s motion to vacate default, after traverse hearing on service, and to dismiss for lack of jurisdiction after service was found improper at hearing granted and plaintiff’s cross-motion to extend time to serve under CPLR 306-b denied. Plaintiff failed to show process server could not be compelled to attend hearing and court providently found affidavit of process server did not meet burden for establishing personal jurisdiction. Plaintiff’s extreme lack of diligence in timely serving Summons & Complaint after an unopposed motion to extend time to serve was granted, and fact that statute of limitations had expired 1-year before defendant received notice of the claim showed prejudice to defendant. Affidavit of service made while motion pending not considered where it was submitted for first time in reply. Williams v St. John
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Asbestos Directed Verdict Burden of Proof Causation
Defendant’s motion for judgment notwithstanding verdict granted where plaintiff failed to prove decedent was exposed to sufficient level of asbestos to cause her illness. Matter of New York City Asbestos Litig.
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Construction Liab. Create Condition Circumstantial Evidence Negligence per se
Contractor’s motion for summary judgment on claim it did not perform any electrical work at the premises, where fire marshal testified fire was caused by electrical wiring, denied on plaintiffs’ testimony that they saw contractor’s workers performing electrical work in that area during and before project. Negligence per se claims dismissed where plaintiffs alleged only violation of local laws and not state statute. Rivera v 203 Chestnut Realty Corp.
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Discovery Reargument
Manufacturer’s motion to reargue denial of its motion for protective order alleging trade-secrets denied where manufacturer only sought to restate its original arguments and not point out facts or law misunderstood by original court. Manufacturer failed to make even a minimal showing that items for disclosure were protected trade-secrets. Williams v Abiomed, Inc.
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Assumption of Risk Open/Obvious Feigned Issue
Defendants granted summary judgment where plaintiff voluntarily participated in obstacle course and testified she was aware there were no mats under rope obstacle and she could be hurt participating in event. Assumption of risk is not limited to permanent facilities. Plaintiff’s affidavit presented feigned issues of fact designed to avoid summary judgment. Ramos v Michael Epstein Sports Prods., Inc.
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Serious Injury ROM Preexisting Degenerative Causation Expert Aff Conclusory
Defendants’ orthopedist’s and neurologist’s reports showing normal ROM, resolved injuries without residual effects, and radiologist’s report showing degenerative changes on MRI consistent with pre-existing degeneration made out prima facie entitlement to summary judgment on serious injury. Plaintiff’s unaffirmed medical records showed evidence of pre-existing degeneration which expert who examined him 4-years after accident did not refute. Plaintiff’s expert’s conclusory opinions on causation of shoulder injury did not raise issue of fact. Diakite v PSAJA Corp.
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Premises Liab Slip/Trip Unknown Cause De Minimus
Plaintiff’s deposition testimony, submitted by defendant on its motion for summary judgment, raised issues of fact on whether plaintiff could identify cause of her fall which she identified as a wavy floor where her foot got caught causing her to twist and sustain injuries. Defendant failed to meet its burden for showing that defect was trivial as a matter of law. Kozik v Sherland & Farrington, Inc.
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Negligent Supervision Causation
School district granted summary judgment where 4th-grader’s fall and fractured wrist after being knocked down by a student running into the gym as he waited with his arm outstretched could not have been prevented by any degree of supervision because it was inadvertent and unanticipated. Jackson v Brentwood Union Free Sch. Dist.
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MVA Hearsay Premature Motion
Plaintiff driving into intersection without traffic device entitled to summary judgment on her affidavit and defendant driver’s admission in uncertified police report that she entered intersection without stopping at stop sign failing to yield the right-of-way admissible on summary judgment motion. Defendants failed to show what discovery was necessary to oppose motion. Harrinarain v Sisters of St. Joseph
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MVA Bus Question of Fact Comparative Fault Sole Cause
Plaintiff’s motion for partial summary judgment denied on conflicting accounts of how accident happened including bus driver’s testimony that plaintiff tried to squeeze in narrow space between bus and parked cars raising question of fact on liability, not just comparative fault, including whether plaintiff was sole cause of the accident. Savall v New York City Tr. Auth.
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Med Mal Amend Complaint Punitive Damages
Plaintiff’s motion to amend complaint to add punitive damages denied as palpably devoid of merit where record did not show “high degree of moral culpability or constituted willful or wanton negligence or recklessness.” Gioio v Ching Fu Lin
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MVA Rear End Nonnegligent Explanation
Plaintiffs granted partial summary judgment on proof they were stopped or stopping in stop-and-go traffic when they were hit in rear by defendants’ vehicle, including summary judgment dismissing counterclaim against plaintiff driver. Claim that plaintiff stopped short was not non-negligent explanation sufficient to raise a question of fact. Lower court providently entertained successive motions for summary judgment based on new evidence and judicial economy. Elihu v Nicoleau
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MVA Emergency Doctrine
Driver of vehicle plaintiff was in when it was struck by nonparty vehicle that crossed over double yellow line due to intoxication granted summary judgment as a driver is not expected to anticipate another driver crossing over a double yellow line into its path and defendant was faced with an emergency situation. MacMonigle v Delbuono
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Graves Amendment Motion to Dismiss
Vehicle owner’s motion to dismiss on documentary evidence establishing it was a commercial lessor of vehicles subject to the Graves Amendment denied as lease submitted on motion did not name the defendant or its purported affiliate as a lessor or assignee and the affidavit of the affiliate’s employee is not “documentary evidence” under CPLR 3211(a)(1). Bou v Llamoza
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MVA Question of Fact There to be Seen
Motion to dismiss crossclaims by 2-defendants denied where there were conflicting stories of how accident happened. Richardson v Cablevision Sys. Corp.
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Statute of Limitations
NYCTA & MTA granted summary judgment where action for bus striking pedestrian was commenced more than 60-days after the 1-year and 90-day statute of limitations. Gaston v Metropolitan Transp. Auth.
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