June 27, 2023 | Vol. 371

(4 summaries)

Asbestos   Motion to Dismiss  

First Department
Lower court providently denied boiler company’s motion to dismiss for failure to state a cause of action for successor liability on claim the “standard form complaint” for asbestos cases under the a case management order (CMO) did not allege specific facts to show successor liability as the court had the authority to enter a CMO that was not in strict compliance with the CPLR as long as it met with due process and the standard form complaint adequately put the boiler company on notice of the successor liability claims. Moving defendant failed to conclusively refute all claims of successor liability by documentary evidence where there were discrepancies between what the documents showed and how defendant represented them, and questions of fact remained on whether the successor corporation was formed as a fraudulent attempt to extinguish the original company’s liability given their closely held nature. Matter of Barlotta v A.O. Smith Water Prods. Co.    

Building Security   Notice of Claim   BP  

Second Department
NYCHA’s cross-motion to strike BP allegations of failure to protect tenants from criminal activities/intrusions, remove known criminals from its premises, install security cameras, and for permitting the sale of drugs on its premises resulting in decedent being shot granted where the Notice of Claim alleged damages ‘resulting from negligence in providing adequate security to part of the… complex’ but the only theory it identified was inadequate lighting which did not give NYCHA sufficient notice to investigate the new theories raised for the first time in the BP. Mosley v City of New York    

Premises Liab   Vacate Default   Reasonable Excuse   Meritorious Defense  

First Department
Defendant’s motion to vacate default judgment on its claim it did not receive notice of the action under CPLR §317 because the address with the Secretary of State was outdated denied where its most recent biennial statements listed the same address and were verified by its managing member, raising an inference of a “deliberate attempt to avoid such notice.” In any event, its superintendent’s affidavit that he would inspect the building and remedy any defects daily was too vague to show a meritorious defense. Davis v Blev Realty LLC    

Premises Liab   Snow/Ice   Out of Possession  

Second Department
Owner of property where plaintiff slipped on ice in parking lot leased to plaintiff’s employer granted summary judgment on proof it was an out of possession landlord with no duty to maintain the parking lot by statute, contract, or course of conduct. Limited duty to repair does not defeat summary judgment where it did not impose a duty to repair/maintain the accident location. Patterson v H.E.H., LLC    

(17 summaries)

Motion to Dismiss   Personal Juridiction   Appealable Order  

Second Department
Appeal from grant of defendants’ unopposed motion to dismiss for lack of personal jurisdiction dismissed as no appeal lies from an order granted on default. Depalma v Zherka    

Labor Law §240   Labor Law §200   Note of Issue   Untimely   Reasonable Excuse   Create Condition   Notice  

Second Department
Plaintiff showed “good cause” for delay in filing motion for summary judgment where he was ordered to file the Note of Issue over his objection due to outstanding discovery including party EBTs, court set out post Note of Issue discovery schedule, and motion was brought 2-months after contractor’s deposition. Rather than remand, the Court granted plaintiff summary judgment on Labor Law §240(1) for fall from inadequate ladder.

Defendants failed to show good cause for not timely cross-moving for summary judgment but in the interest of judicial economy the Court granted them summary judgment dismissing Labor Law §200 and negligence claims on proof they did not create or have actual or constructive notice of the dangerous condition. The Court does not give the details of the proofs. Panfilow v 66 E. 83rd St. Owners Corp.    

Malpractice   Motion to Dismiss   Statute of Limitations   Continuous Treatement  

First Department
NYCHHC’s motion to dismiss malpractice claim on statute of limitations granted where the Summons/Complaint was served beyond 1-year and 90-days from last treatment for low-sodium condition caused by hypertension medication as subsequent visits for hypertension did not relate to the low-sodium condition that required her hospitalization. Pinkney v New York City Health & Hosps. Corp.    

Malpractice   Amend Complaint   Statute of Limitations  

Second Department
Plaintiffs’ motion to amend the Complaint to add physician assistant (PA) who treated the injured-plaintiff at defendants’ medical office denied where plaintiffs conceded they were aware of the proposed-defendant at all times, the motion was brought after the statute of limitations, and they failed to show the PA who had left the practice before they started the suit had actual or constructive notice of the lawsuit within the statute of limitations necessary to establish the PA knew that but for a mistake she would’ve been included in the lawsuit under the relation back doctrine. Dixon v Jones    

Second Department
Plaintiff’s summary judgment motion on negligence per se claim for prescribing methylphenidate in violation of PHL §3332 which governs the official forms used for written or electronic prescriptions denied and on searching the record the Court granted defendants summary judgment dismissing the negligence per se claim as §3332 does not include a private cause of action or impose a specific duty on the defendants and was not intended to protect a particular class of people. Omre v Dorfman    

Labor Law §240   Labor Law §241   1-2 Family Exception   Premature Motion  

First Department
LLC property owner met burden for summary judgment dismissing Labor Law §§ 240(1), 241(6) claims on its sole member’s affidavit that it intended to use the property solely for residential purposes, but summary judgment was premature where plaintiff showed the owner did similar projects for commercial purposes and the LLC member had not yet been deposed. Plaintiff met burden of showing essential facts necessary to oppose the motion might exist but could not be stated as they were solely within the knowledge of the defendant. Rivera v Matiz Architecture, PLLC    

MVA   Rear End   Survelliance Video   Admissibility   Sole Cause  

Second Department
Lower court improperly found video of accident inadmissible where plaintiff did not object to it on defendants’ motion for summary judgment. Access-A-Ride vehicle owner and driver granted summary judgment where parties’ testimony and video showed codefendant’s vehicle rear ended their vehicle causing it to contact 2-parked cars, establishing co-defendant was the sole proximate cause of the accident. Codefendant did not oppose the motion. Espinosa v Covington    

Labor Law §240   Ladder  

First Department
Worker injured when extension ladder he was using collapsed granted summary judgment on Labor Law §240(1) where he was going to remove and replace an improperly installed HVAC drain. Defendants failed to raise an issue on repair versus routine maintenance without refuting plaintiff’s description of the work. Absence of a work ticket did not raise an issue where they were only issued after the work was done and plaintiff fell before doing the work. Lack of a work ticket for the subsequent repair by a different worker did not raise an issue on plaintiff’s credibility. Manfredonia v 750 Astor LLC    

Labor Law §240   Labor Law §241   Stairs   Gravity Risk   Industrial Code   Causation   Indemnity  

Second Department
Construction worker who tripped on gap between top step and staircase landing failed to meet burden for summary judgment on Labor Law §240(1) which protects ‘such specific gravity-related accidents as falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured,’ as his trip and fall did not result from an elevated-or gravity related risk under §240. Since the gap was not large enough for a person to fall through, industrial code §23-1.7(b)(1)(i)(hazardous openings) was inapplicable but plaintiff granted summary judgment against GC on Labor Law §241(6) under §23-1.7(e)(1)(tripping hazards) where plaintiff showed gap caused his fall.

Plaintiff’s employer failed to meet burden for summary judgment dismissing GC’s contractual indemnity claim where questions remained of whether the accident was the result of work “performed by or contracted through” the employer. GC failed to meet burden for summary judgment on its contractual indemnity claims against the stair subcontractor where questions remained of whether the GC was negligent and who was responsible for providing coverings for the gaps during construction. Castro v Wythe Gardens, LLC    

Labor Law §200   Labor Law §241   Scaffold   Industrial Code   Warnings   Indemnity  

First Department
GC failed to meet burden for summary judgment dismissing Labor Law §200 and negligence claims where issues remained of whether it had notice of dangerous conditions on the scaffold where plaintiff was injured and scaffolding company failed to eliminate questions of whether it created the dangerous condition by installing a scaffold with low clearance. GC’s representative’s testimony he was ‘pretty sure’ low clearance warnings were posted was contradicted by plaintiff’s testimony that he did not recall seeing any warnings. GC and Electrical company failed to meet burden for summary judgment dismissing Labor Law §241(6) claim on § 23-1.30(illumination) where there was conflicting testimony regarding the lighting conditions.

GC granted conditional summary judgment against plaintiff’s employer where agreement was triggered by employer’s work and GC was not the sole cause of the accident. Electrical and scaffold contractors denied summary judgment dismissing GC’s contractual indemnity claims and GC denied summary judgment against them where questions of fact remained. McKinney v Empire State Dev. Corp.    

Labor Law §240   Ladder   Sole Cause  

Second Department
Worker granted summary judgment on Labor Law §240(1) on his testimony that he jumped from 15th rung of extension ladder as it tilted while he was hammering a nail to install siding, landing on plank 3′ below, and after he fell he saw one of the nails that were supposed to secure the ladder missing. Defendants failed to raise an issue on sole proximate cause by claims that the plaintiff leaned to the side and jumped off the ladder. Acevedo v PSM Long Is. Corp.    

Labor Law §200   Labor Law §241   Notice   Last Inspection   Industrial Code  

First Department
Plaintiff’s equivocal testimony that hallway where he was doing compound work ‘seemed’ clean was insufficient for owner and GC to meet burden for summary judgment dismissing Labor Law §§ 200, 241(6) and negligence claims where worker fell on scattered debris 2-hours later 30’-40’ down the hallway where supplies were stored and defendants offered no evidence of when the area was last cleaned/inspected. In any event, plaintiff raised an issue of whether the GC’s employees adequately cleaned the area by his testimony and photographs showing the debris. Based on the owner’s nondelegable duty to maintain the premises in a safe condition, it could be vicariously liable for failure of GC employees to properly clean the hallway, but plaintiff’s motion of summary judgment denied where questions of actual or constructive notice remained. Cavedo v Flushing Commons Prop. Owner, LLC    

Dangerous Condition   Bicycle   Speculation   Waiver  

First Department
Oil delivery company granted summary judgment dismissing claim of bicyclist who fell over oil hose running from delivery truck to building on oil company’s proof it did not deliver oil to the building on the date of the incident. Building property manager testified the oil company was the sole provider of oil to the building but commercial tenant’s had to provide their own oil and plaintiff’s claim it was the defendant oil company’s hose he fell on was mere speculation. Plaintiff abandoned challenge to dismissal against the oil company without addressing it on appeal. Napolitano v 536 Ninth LLC    

Dogbite   Notice   Vicious Propensity   Amend BP   Untimely   Note of Issue   Reasonable Excuse  

Second Department
Adjoining landowner granted summary judgment dismissing infant’s claim for being bitten by a dog in their shared driveway on proof the property manager was not aware a dog was regularly harbored at the property or had vicious propensities. Plaintiffs failed to raise an issue by the mother’s testimony that she saw the dog on the property for 2-months before the incident as it did not prove the adjoining landlord had notice of the dog’s existence and violent propensity.

Plaintiffs’ motion to amend the BP providently denied where they did not provide a reasonable excuse for waiting to bring the motion until after they served their opposition to defendants motion, 2-years after the incident, and months after the Note of Issue was filed. J.D. v Golden Brick Dev. JP, LLC    

Premises Liab   Default Judgment  

First Department
Plaintiff’s motion for default judgment granted on allegations in Complaint, verified by plaintiff, that she slipped and fell on a dangerous condition on the sidewalk in front of defendants’ building and was seriously injured which was sufficient to show a viable cause of action. Rosenstein v Permanent Mission of the Republic of Sierra Leone to the United Nations & the Republic of Sierra Leone    

Serious Injury   BP  

Second Department
Defendants met burden for summary judgment on serious injury under 90/180-day category on proof the infant plaintiff missed only 2-days of school during the 180-days after the accident and resumed normal activities after 6-weeks. N.B. v Jameson    

MVA   Burden of Proof  

Second Department
Defendants’ motion for summary judgment dismissing taxi passenger’s claim that defendants’ truck struck the taxicab and left the scene of the accident denied were questions of fact remained of whether the truck was involved in the accident taking the evidence in the light most favorable to the plaintiff. Plaintiff’s burden of proof at trial has no bearing on defendant’s burden of proof on a motion for summary judgment. Duran v Commercial Mexicana Internacional, Inc.    

(2 summaries)

Premises Liab   § 7-210   Question of Fact  

Second Department
Building owners denied summary judgment for fall on abutting sidewalk where questions remained on the precise location of the accident and defendants’ duty under administrative code §7-210. The Court does not give the details of the proofs. Augustin v CS 87 Estates, LLC    

Serious Injury   Causation  

Second Department
Defendant failed to meet burden for summary judgment on serious injury without competent medical evidence that plaintiff’s spinal injuries did not meet the serious injury threshold or were not caused by the accident and the burden on causation never shifted to plaintiff. The Court does not give the details of the proofs. Wickman v Kastavis    

About Matt McMahon

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