June 27, 2017 | Vol. 60

MUST READS
(6 summaries)
NOTEWORTHY IF YOU MUST READ

Legal Mal   Vacate Jud   Sanctions   Attorney Fees   Reasonable Excuse  

Second Deptartment

Lower court’s award to defendant of $17,831.61 in attorney fees after dismissal of case for failure to provide discovery responses required in several orders, upheld. Plaintiff failed to give a reasonable excuse for violating the conditional order. 150 Centreville, LLC v Lin Assoc. Architects, P.C.


Med Mal   CPLR § 3126   Vacate Jud   Reasonable Excuse   Meritorious Action   Expert Aff  

Second Deptartment

The lower court’s denial of the plaintiff’s motion to vacate judgment entered after neither plaintiff nor her attorney appeared for a compliance conference affirmed where plaintiff did not provide an expert affirmation opining on departure or causation, relying solely on certified copies of the medical records. Even if plaintiff could show a reasonable excuse, she could not show a meritorious action without an expert affirmation. The medical records do not show either departure or causation on their own. Gallery v Messerschmitt


MVA   Amend Complaint   Statute of Limitations   Personal Juridiction  

Second Deptartment

An amendment to Complaint correcting the name of the defendant initially sued was not barred by statute of limitations as a so ordered stipulation allowing the amendment had the effect of correcting it nunc pro tunc. Addition of 1 principal of the corporate entities, also included in the so ordered stipulation, was not barred by statute of limitations because that party appeared before the statute of limitations even though he was not yet a party. Addition of the other principal of the corporate entities was barred by the statute of limitations even though it was included in the so ordered stipulation, where she was not added until after the statute of limitations ran. The so ordered stipulation of appearing parties did not waive the statute of limitations defense. Jaramillo v Asconcio


Negligent Supervision   Supplemental BP   Amend BP   Compel Acceptance  

Second Deptartment

After the matter had been remitted to the trial court by the Appellate Division which reversed the trial court’s grant of summary judgment for the defendant, the plaintiff filed a “supplemental” BP alleging posttraumatic stress disorder and the costs of future psychotherapy for the assault on school property. The trial court granted the defendant’s motion to strike the supplemental BP finding that it alleged new injuries and would, therefore, be an amended BP requiring leave of court, and denied the plaintiff’s motion to compel acceptance. The Appellate Division found that the supplemental BP did not add “new injuries” which were different or separate from the emotional injuries originally alleged finding it to be a supplemental BP which can be provided at any time up to 30 days before trial. Khosrova v Hampton Bays Union Free Sch. Dist.


False Arrest   Malicious Prosecution   CPLR §3124   Discovery  

First

Defendant’s motion to compel discovery of Facebook information and photographs based on public portions of Facebook identifying the plaintiff by picture and names containing variations of the name “Moe” which he denied ever using at his deposition granted as defendants made prima facie showing that it would likely lead to relevant information. Plaintiff could move for protective order for portions of the Facebook account on grounds other than relevance. Flowers v City of New York


Serious Injury   ROM   Expert Aff  

First

Fact that hospital performed an x-ray on the plaintiff’s shoulder was proof that she complained of pain in the shoulder in the emergency room and plaintiff raised an issue of fact in opposition to the defendants’ prima facie showing of entitlement to summary judgment by her treating orthopedist’s opinion finding limited ROM in the shoulder, that he observed tears of the rotator cuff and glenoid labrum during surgery, and that based on his review of the records, MRI, and his observation during surgery, his opinion that the tears were caused by the accident and not the normal age-related degeneration which is present. Barreras v Vargas

NOTEWORTHY
(17 summaries)
MUST READS IF YOU MUST READ

Negligent Supervision   Late Notice of Claim   Reasonable Excuse   Actual Knowledge   Prejudice  

Second Deptartment

Petitioner’s motion for leave to serve the late Notice of Claim denied where medical claim form submitted by plaintiff shortly after the accident stated that the infant lacerated his eyebrow and fractured his wrist when he fell from a pull-up bar which did not provide notice of the essential elements of the cause of action because it was not the type of accident that can only happen with negligence. Plaintiff failed to offer a reasonable excuse for the delay and his attorney’s conclusory statement that the defendant would not be prejudiced did not constitute evidence or a plausible argument why the municipality was not prejudiced by the delay. Matter of D.M. v Center Moriches Union Free Sch. Dist.


Premises Liab   Wet Floor   Notice   Create Condition   Circumstantial Evidence  

Second Deptartment

Building granted summary judgment on plaintiff’s testimony that she was the only one in the laundry room and didn’t see any water on the floor when she put her clothes in the dryer, that no washing machines were, on and that none were on when she returned 30 minutes later, slipped and saw a puddle after she fell. The testimony showed that defendant did not create the condition or have notice. Adamson v Radford Mgt. Assoc., LLC


Labor Law §241   Industrial Code   Amend BP   Prejudice  

Second Deptartment

Plaintiff’s cross motion to amend the BP to allege industrial code §23-1.5(c)(3) (safeguards) granted where plaintiff testified in detail as to how the grinder he was using got stuck in plywood and cut him as he tried to remove it and defendants were not prejudiced by the amendment. Building owners’ motion for summary judgment denied where they did not show that the industrial code provision did not apply or was not a proximate cause of the entry. Tuapante v LG-39, LLC


Premises Liab   Wet Floor   Workers Comp Defense   Circumstantial Evidence  

First

Plaintiff’s affidavit stating that no one from the school supervised the person who mopped the floor or controlled his schedule, and that they did not provide equipment or a uniform raised a triable issue as to whether he was a special employee of the school. Plaintiff’s testimony that she saw the floor wet after she fell and a nearby janitor’s cart with warning signs attached gave a non-speculative explanation for defendant’s negligence. Cartagena v Access Staffing, LLC


Premises Liab   Dangerous Condition   Building Code  

Second Deptartment

Building owner granted summary judgment where plaintiff fell through an open trap door in a deli because the trapdoor was only dangerous if left in the open position, even if it had been installed without a permit. Curran v 201 W. 87th St., L.P.


MVA   Governmental Immunity  

Second Deptartment

Municipal defendants granted summary judgment against plaintiff and co-defendant’s cross-claims, based on governmental immunity for claims that they failed to provide adequate supervision of a motorcycle charitable event where the plaintiff motorcyclist crashed into the co-defendant’s car. Farrago v County of Suffolk


Premises Liab   Labor Law §240   Ladder  

Second Deptartment

Building owner denied summary judgment on Labor Law §240(1) claim where Verizon worker replacing old cables fell from extension ladder, for failing to eliminate all triable issues of fact including why the Verizon worker was removing the cables in response to defendant’s argument that it did not request or have knowledge of the work being done, and whether the work being performed was a repair or routine maintenance. Barone v 1116 Ave. H Realty, LLC


Premises Liab   Late Notice of Claim   Actual Knowledge   Prejudice  

First

Plaintiff’s motion for leave to serve late Notice of Claim granted where plaintiff was in the hospital and a nursing home for 30 days after the accident, Notice of Claim was served 22 days after the 90-day period, well within the 1 year and 90-day statute of limitations, and defendant’s actions in repairing the defect the day after plaintiff fell and erasing surveillance video in the normal course of business overcame claims of prejudice since the same prejudice would’ve existed if the Notice of Claim was timely filed. Camins v New York City Hous. Auth.Camins v New York City Hous. Auth.


Premises Liab   Sidewalk   Snow/Ice   Create Condition   Prior Written Notice   Big Apple Pothole   NYC  

Second Deptartment

NYCTA granted summary judgment on proof that it was not conducting any construction on the elevated train above the sidewalk where the plaintiff fell on ice patches and did not create the condition. There is no duty to warn of dangerous conditions on property not owned or controlled by NYCTA. NYC granted summary judgment on proof that it did not receive prior written notice of the condition, including Big Apple pothole maps submitted by the City. Puzhayeva v City of New York


Serious Injury   ROM   BP   Expert Aff   Speculation  

First

Defendant granted summary judgment on serious injury based on orthopedist findings that there was no loss of ROM, strains and sprains had resolved, and there was no evidence of injuries caused by the accident. Plaintiff’s treating physician failed to raise an issue of fact finding only a 5° limitation of ROM in the lumbar spine, normal ROM in the cervical spine, followed by limitations in ROM a month later, which she did not explain, rendering her opinion speculative, and that she relied on measurements in un-affirmed medical records. Cabrera v Apple Provisions, Inc.


Serious Injury   Preexisting   BP   Expert Aff  

First

Defendants granted summary judgment on serious injury based on orthopedist’s finding of resolved strains and sprains, pre-existing degeneration in plaintiff’s spine found in her medical records, and on BP response that she was confined to bed and home for only 5 weeks on the 90/180-day claim. Plaintiff’s orthopedist did not compare finding of ROM to normal ROM, found tears in the plaintiff’s knee, but no limitations, and did not address pre-existing degeneration. Fernandez v Hernandez


Question of Fact  

Second Deptartment

Seventh graders denied summary judgment where teacher raised issues of fact as to whether the one student crashing into the teacher in a hallway was the result of horseplay and violation of school rules. Van Buren v Lacerra


Premises Liab   Late Notice of Claim   Reasonable Excuse   Actual Knowledge   Prejudice  

Second Deptartment

Petitioner’s motion for leave to serve late Notice of Claim 76 days after the expiration of the 90 days denied as it was too late to show that the municipality had notice of the essential elements of the cause of action within 90 days or a reasonable time thereafter. Plaintiff failed to offer a reasonable excuse for the delay or evidence or a plausible argument why the municipality was not prejudiced by the delay. Matter of Ronness v City of New York


Legal Mal   Statute of Limitations   Continuous Representation  

First

Law firm denied summary judgment on legal malpractice claim for failing to file a timely Notice of Claim. Cause of action started to accrue at the time that the Notice of Claim was not filed and there was a question as to whether it was tolled, under continuous representation, where attorney brought the case with him to a new firm but no one notified the plaintiff that he had left the new firm and was no longer representing the plaintiff. Cordero v Koval Retjig & Dean PLLC


Premises Liab   Snow/Ice   Conclusory   Expert Aff  

Second Deptartment

Ice rink granted summary judgment were plaintiff rented ice skates that were too long and slipped after taking 2-3 steps on the ice. It was the first-time plaintiff had gone ice-skating. There was no proof that the ice condition was more dangerous than a normal ice rink and defendant submitted proof that the length of the skates was not a cause of the accident. Plaintiff’s expert’s affidavit was conclusory and unsupported. Telchman v RCPI Landmark Props., LLC


Serious Injury   BP   ROM   Expert Aff  

Second Deptartment

Defendants failed to produce competent medical proof showing lack of serious injury where their expert found significant limited ROM in the spine and they failed to address plaintiff’s claims under the 90/180-day category alleged in the BP. Sook Houng v Beers


Attorney Disqualification  

Second Deptartment

Order disqualifying defendant law firm from representing the defendant reversed where plaintiff failed to show that the testimony of any attorney at the firm was “necessary” for plaintiff to make out her case. Luciano v Kennedy

IF YOU MUST READ
(2 summaries)
MUST READS NOTEWORTHY

Defamation   Amend Answer  

First

Defendant’s motion to amend his Answer to include counterclaims of defamation was made within the 6-month grace period after standalone claim not attached Answer was dismissed but was denied because the amendment did not plead the defamatory statements with sufficient particularity. Rubin v Napoli Bern Ripka Shkolnik, LLP


Premises Liab   Slip/Trip   Notice   Create Condition  

Second Deptartment

Building owner denied summary judgment where it failed to eliminate issue of constructive notice and did not show that cause of the fall could not be identified without speculation. The court does not give the details of the accident or proofs. Andersen v El Triunfo Laundromat Corp.

About Matt McMahon

Civil trials and appeals since 1984
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