| MUST READS (5 summaries) | |||
| NOTEWORTHY | IF YOU MUST READ | ||
 In a case of first impression, the Second Department found that a municipality supervising child visitation, a governmental function, may assume a special duty to the child. The county failed show it did not owe a special duty where the supervised visitation with the biological mother in a playground could not begin until the county employee, who could intervene if he believed anything was inappropriate or dangerous, was present establishing the mother did not have unfettered control over the child and the employee was acting in loco parens to the same extent as school supervising children in a playground. The county’s argument that it’s employee’s actions were discretionary because of state guidelines to provide ‘the least restrictive level of supervision necessary for children in foster care’ was raised for the first time on appeal and, in any event, it failed to show its employee was exercising discretion when not observing the child climbing up the slide where he did not see the child climbing up the slide before the accident. Questions remained of whether the employee’s lack of supervision was a proximate cause of the accident on testimony the child was engaged in the activity or 4-5 minutes or 10-15 minutes before the accident. P.D. v County of Suffolk ✉ |
 Law firm’s motion to dismiss legal malpractice claim for failure to enforce personal injury judgment as time barred denied where retainer agreement did not unambiguously state representation terminated on entry of judgment or that representation did not include enforcement of judgment and Complaint pled facts to show continuous representation. Law firm also denied dismissal of claim it failed to name former deed owner which had an unsatisfied mortgage on the property as a defendant.Bus. L. §349 claim dismissed as law firm made no statements on its website or retainer agreement promising to enforce judgments that could rise to the level of a consumer-oriented misrepresentation or deceptive practice. Payne v Rosenberg, Minc, Falkoff & Wolfe, LLP ✉ |
| It was error for lower court to deny defendant’s motion to vacate unopposed motion for default judgment and $2,128,623.80 judgment after inquest without a hearing to determine whether service was proper where defendant’s non-conclusory affidavit set forth sufficient facts to raise issues rebutting the affidavit of service where it denied he employed anyone by the name or description claimed to have been served at a time when his office was closed and no one was present. Personal jurisdiction can be raised at any time and must be decided before the issue of whether a default may be vacated under CPLR §§ 317 or 5015(a).
Harrison v Schottenstein ✉ |
| Defendant bike rider who collided with plaintiff bike rider as they rode on designated bike trail granted summary judgment on assumption of risk which applies to recreational activities at designated venues. Shapiro v Anderson ✉ |
| Defendants granted summary judgment dismissing plaintiff’s claim for injury to her shoulder from a flu vaccine as the National Childhood Vaccine Injury Act of 1986 requires all claims in excess of $1,000 must be filed under the NCVIA and shoulder injuries from the administration of a vaccine are included in act’s Vaccine Injury Table. Santana v Patel ✉ |
| NOTEWORTHY (13 summaries) | |||
| MUST READS | IF YOU MUST READ | ||
| Internist’s motion to dismiss for lack of personal jurisdiction denied and plaintiff’s CPLR §306-b cross motion to extend time to serve providently granted in the interest of justice where the action was timely commenced, plaintiff made diligent efforts to serve within 120-days, believed the service which was later found defective was proper, and showed a meritorious action and lack of prejudice to moving defendant by the delay. Hall v L&A Operational, LLC ✉ Comment: From the lower court decision, the original affidavit of service by suitable age and discretion at the internist’s place of business was defective where it was at the wrong address and he no longer worked at the facility at the time of service. |
| Plaintiff failed to meet burden for spoliation sanctions of striking building owners’ Answer or an adverse inference charge for destruction of the heater he was repairing when it exploded, throwing a metal fragment into his eye, where it was discarded 2-months after the accident with the plaintiff’s help and plaintiff demanded the owners settle the matter 1-month after it was discarded and his attorney sent a preservation letter 9-days later. Plaintiff failed to show defendants were aware of the possibility of litigation or the evidentiary value of the heater before it was discarded. Jihuan Xiao v Lifeng Jiang ✉ |
| Homeowners association and management company that owned and operated parking lot where plaintiff’s decedent slipped on snow/ice failed to meet burden for summary judgment on claim plaintiff could not identify the cause of decedent’s fall without speculation based on hearsay statements decedent made to plaintiff and a nonparty witness after his fall as hearsay may be considered on a motion for summary judgment if it is not the only evidence and testimony submitted by defendants included plaintiff’s and the nonparty witness’s observations of the snow accumulations from the night before and photographs taken immediately after the accident, leaving questions of fact. Separate management company granted summary judgment on proof it had no connection to the property at the time of the accident. Gardell v Arden Ave. Homeowners Assn. ✉ |
| Plaintiff’s expert raised issues of fact by specifically describing departures for anesthesiologist’s failure to document the depth at which the endotracheal tube (ETT) was placed and that it was not inflated so as to alert future providers; a surgeon’s failure to ensure regular recording of its depth and settings and to order a chest X-ray after it migrated 5 cm where there was a 10-hour gap in checking the findings; and a second surgeon’s failure to record the ETT metrics every 4-hours. Plaintiff’s expert anesthesiologist was qualified to render an opinion based on his familiarity with the applicable standards of medical care for ETT intubation and management in a critical care setting at the time of the incident. Hospital, anesthesiology practice, respiratory therapist, and physician’s assistant granted summary judgment as plaintiff’s expert did not explain how they departed from accepted practice by failing to follow the treating doctors’ orders and only claim against hospital was for alleged negligence of the RT and PA. Maikish v Good Samaritan Hosp. Med. Ctr. ✉ |
| Defendants granted summary judgment dismissing injured-plaintiff’s claim for injury while transferring a patient from bed to wheelchair during her clinical certified nurse assistant training under the supervision of a RN on the opinions of their expert RN and CNA clinical program coordinator that the RN supervisor did not depart from except practice and was not a cause of the plaintiff’s injuries. Plaintiff’s failed to raise an issue in opposition by their orthopedic expert’s opinion of departure without showing the orthopedist was qualified to render an opinion on the standards of care for a RN supervising students in a clinical setting. Gruberg v TenBroeck Ctr. for Rehabilitation & Nursing ✉ |
| Defendants granted summary judgment dismissing plaintiff’s claim for fall from bed 1-day after knee replacement surgery on expert’s opinion defendants complied with accepted standards in assessing and implementing fall risk procedures. Plaintiffs failed to raise an issue in opposition by their expert’s opinion which did not address the standards of care and whose opinion that defendants negligently failed to set the bed rail to its lowest position was contradicted by the record that repeatedly showed it was said to the lowest position. Schlager v Hospital for Special Surgery ✉ |
| Commercial window washer who fell to the ground while washing exterior windows granted summary judgment on Labor Law §240(1) for failure to provide adequate safety devices to protect from falling. Plaintiff assembled and used his harness attached to 2-ropes throughout his work and his admission that he forgot to tie a figure-8 knot at the end of the rope did not raise an issue on claim he was the sole cause of the accident as it was at most comparative fault, not a defense to §240, and defendants failed to show he intentionally disregarded the safety instruction to raise an issue on recalcitrant worker. Loaiza v Museum of Arts & Design ✉ |
| Owner/operator of tractor trailer parked on highway shoulder granted summary judgment dismissing claim for death of decedent who rear ended the tractor trailer on proof the tractor trailer had the required rear impact bar, was legally parked on the shoulder, under a streetlight, with parking lights and hazard flasher on and decedent was driving 72 mph while intoxicated, did not apply the brakes in the 8-seconds before impact, and there were no skid marks, establishing decedent was the sole cause of the accident. County and police granted summary judgment on proof they did not assume a special duty to decedent through promises or actions. Krehl v Siberio ✉ |
| Plaintiff granted summary judgment on Labor Law §240(1) on his testimony the unsecured ladder moved and fell causing him to fall. Defendants failed to raise an issue in opposition. Paiba v 56-11 94th St. Co., LLC ✉ |
| Plaintiff granted summary judgment on Labor Law §240(1) on proof the injured-plaintiff required safety devices to protect him from falling from an elevated height while working on a pitched roof that had sustained water damage and collapsed, causing him to fall 15′-18′. Sanchez v Congregation of Emanuel of Westchester ✉ |
| Roofing subcontractor denied summary judgment where owner’s representative contradicted subcontractor’s denial that it installed wood form of roof protection that fell on plaintiff as she walked on sidewalk, subcontract terms required subcontractor to install the form, and no other contractor would have installed it. Subcontractor failed to show it installed the form according to the specifications. Subcontractor denied dismissal of cross claims for indemnity where indemnification was triggered by subcontractor’s work. Choudhury v Terrace on the Park, LLC ✉ |
| Village that owned playground where infant-plaintiff was injured when she fell on spikes at the base of a fence on a retaining wall failed to meet burden for summary judgment without proof the condition was open/obvious and not inherently dangerous or that it did not have actual or constructive notice of the defect without proof of the last time the area was inspected or proof the condition did not exist long enough for it to be discovered and corrected. S.S. v Village of Sleepy Hollow ✉ |
| Landscaping company that performed snow/ice removal for plaintiff’s employer in parking lot where she fell on ice between 2-parked cars after stepping over a 2′-3′ amount of snow piled on a median between a neighboring parking lot granted summary judgment on proof it did not launch an instrumentality of harm on proof it did not pile the snow on or against the median. Plaintiff failed to raise an issue in opposition. Gatanas v Community Servs. Support Corp. ✉ |
| IF YOU MUST READ (2 summaries) | |||
| MUST READS | NOTEWORTHY | ||
| Defendants granted summary judgment dismissing legal malpractice claim on expert’s opinion defendants prosecuted plaintiff’s medical malpractice claim within applicable standards of care and their decisions were reasonable and strategic. Plaintiff failed to raise an issue on causation where she could not show she would have received a higher verdict than the $1.3 million settlement defendants negotiated. The Court does not give the details of the proofs. Bei Yang v Pagan Law Firm, P.C. ✉ |
| Defendants failed to meet burden for summary judgment dismissing plaintiff’s claim for trip and fall on defective curb without proof the condition was open/obvious and not inherently dangerous. Owner failed to show it was an out of possession owner with no contractual duty to maintain the curb where it failed to submit a copy of the lease. The Court does not give the details of the proofs. Kean-Chong v MBA-Vernon Blvd., LLC ✉ |