June 28, 2016 | Vol. 8

MUST READS
(5 summaries)

Labor Law §240   Control  

Second Deptartment

Plaintiff’s decedent was injured when he fell from a makeshift ladder constructed by the homeowner of the one family house and was granted summary judgment on his labor Law §240(1) claim because the one and two family homeowner exemption does not apply where the homeowner directs, controls or supervises the methods and manner of work. Defendant was an officer of the codefendant general contractor, was involved in the construction himself, assembled the ladder consisting of pieces of wood nailed and screwed together, placed it and instructed workers to use it, and coordinated the subcontractors and workers, and was 8’ to 10’ from the plaintiff’s decedent at the time of the accident performing work. Ramirez v I.G.C. Wall Sys., Inc.


False Imprisonment   Malicious Prosecution   Amend Answer   Statute of Limitations  

Second Deptartment

Lower court’s grant of defendant’s motion to amend its answer to include a statute of limitation defense upheld on finding that the amendment was within the discretion of the court and that the opposing party must show not just lateness but prejudice which could have been avoided if the defense had been timely asserted. Upon grant of amendment, court properly granted motion to dismiss for defendants on statute of limitations which was one year from plaintiff’s release from confinement. Coleman v Worster

Comment: The decision would appear to be a deviation from CPLR R 3211(e) which declares that failure to raise a statute of limitations defense by motion prior to answer, or in answer, constitutes a waiver of the defense. Under the court’s reasoning in this case there could never be a waiver of the defense of statute of limitations because the only prejudice to plaintiff by defendant not timely asserting the defense would be the denial of the waiver.


Med Mal   Notice of Claim   Wrongful Death  

Second Deptartment

Lower court’s dismissal of action for failure to serve a timely, insufficient notice of claim in wrongful death medical malpractice action was reversed. 90-day time to serve notice of claim for wrongful death starts upon the appointment of the administrator/executor and notice of claim does not have to set forth causes of action or theories of liability. It need only apprise the municipality with sufficient detail to allow it to investigate the claim. http://www.nycourts.gov/reporter/3dseries/2016/2016_04929.htm


Attorney Fees   Aggrieved Party  

First

Plaintiff’s subsequent counsel filed an appeal, on behalf of the plaintiff, from denial of its motion to receive 100% of the contingency fee in the underlying personal injury action. Plaintiff is not aggrieved by the denial of the motion since she will pay the contingency fee to former or present counsel or both and has no interest in the allocation. Since present counsel failed to file a notice of appeal on its own behalf, and is not a party to the appeal, it cannot be granted relief. Friedman v Velasquez


Elevator   Owner   Workers Comp Defense  

First

Plaintiff who was employed by building manager was barred from claiming against manager or owner because they functioned as one company and were both considered employers of the plaintiff for workers comp defense. Former owner of building cannot be held liable because the property was conveyed more than 3 months before accident giving the new owner reasonable time to discover/correct any alleged condition. Privette v Precision El.

NOTEWORTHY
(31 summaries)

Materially Deviates   Set Aside Verdict   Labor Law §241   Slip/Trip   Industrial Code  

First

Jury verdict in favor of plaintiff, finding defendant 65% and plaintiff 35% at fault and awarding total damages, including past and future lost earnings of $536,000, in the amount of $1,361,000 was set aside by lower court unless the parties agreed to single payment of $125,000, was partially reinstated by the Appellate Division to $770,000. Plaintiff sustained an avulsion fracture of the fifth metatarsal when he stepped on electrical conduit debris at the construction site. The debris constituted a violation of 12 NYCRR §23-1.7(e)(2) (tripping hazard). He required an open reduction, internal fixation and subsequent surgery to remove the hardware as well as multiple treatments to assist healing which was delayed by his pre-existing Type I diabetes. His lost earnings claims were dismissed as the evidence showed he had been advertising for work and was working on his own after the accident. Lombardi v Structure Tone, Inc.


Subsequent Repairs   Discovery  

First

Order requiring NYCTA to provide post-accident records of service, maintenance and repairs to bus door which allegedly malfunctioned causing plaintiff’s injury affirmed. Cochin v Metropolitan Tr. Auth.


Labor Law §241   Ladder   Feigned Issue  

First

Testimony of plaintiff and market owner that ladder plaintiff was using to install the pipes for an overhead refrigeration unit wobbled causing him to fall established entitlement to summary judgment on §240(1) claim. Plaintiff’s affidavit did not contradict his prior testimony where he did not state that the ladder wobbled, because it did not offer a different reason for falling. Unsigned worker compensation form prepared by plaintiff’s employer stating that plaintiff fell when wrench he was using slipped causing him to lose his balance did not contradict plaintiff’s testimony that the ladder wobbled causing him to drop his wrench. Defendant’s contention that plaintiff must prove that the ladder was defective was incorrect. All plaintiff had to show was that he was not provided with adequate safety devices to prevent the ladder from slipping or him from falling. Hill v City of New York


Snow/Ice   Storm in Progress   NYC  

Second Deptartment

City cannot be held liable under the storm in progress rule for snow/ice conditions during a storm in progress or for a reasonable time thereafter. Reasonable time is defined as the period during which the municipality should have noticed the condition and, in the exercise of reasonable care, have corrected it. The court found, as a matter of law, that the period from the end of the snowfall in the afternoon to the time of the plaintiff’s fall on the next morning was not reasonably sufficient time to clear the accident site. Montes v City of New York

Comment: In a related appeal, homeowner’s motion to dismiss on collateral estoppel made more than 120 days after note of issue, treated as a motion for summary judgment, was denied for failure to show good cause for the lateness of the motion. Montes v City of New York.


Snow/Ice   Conclusory   Expert Aff  

First

Defendant, NYCHA, met its burden of proof by showing that the plaintiff’s slip and fall happened within one hour of the end of snowfall at 7 AM. Property owners have a 4 hour window from the end of the storm in order to clear snow. Plaintiff failed to raise an issue of fact regarding creation of a dangerous condition because her meteorologist’s affidavit did not show how the meteorologist was qualified to give opinions regarding the chemical properties of the salt used, or the method or data used to form his opinion that the previously cleared sidewalk was improperly salted. Rivas v New York City Hous. Auth.


Graves Amendment   Spoliation   Errata Sheet  

First

Defendant lessor of truck which struck and killed plaintiff’s decedent should have been granted summary judgment on the graves amendment and testimony of its mechanic that they had regularly maintained and inspected the truck and brakes, including two months before the accident, finding no defect. Mechanic’s change to his deposition to clarify that a damaged part which was discarded and replaced was not a component of the brake system, was timely and accompanied by statement showing the reasons for the change, and refuted plaintiff’s argument that they were entitled to spoliation sanction for discarding brake parts. Reifsnyder v Penske Truck Leasing Corp.


Wrongful Death   Fire  

First

Court reinstated claim for failure to install smoke detectors, but not fire safety notices, because defendant failed to meet its initial burden by showing that the apartments where the fire started and where the plaintiff’s decedent died were equipped with operational smoke detectors at the commencement of their tenancies, as required by administrative code §27-2045. Nonparty witness testified that no alarm sounded during the fire. Plaintiff’s expert’s opinion that she would have responded to the fire differently if fire safety notices were posted lacked factual basis. Mero v Vuksanovic


Sidewalk   Slip/Trip   § 7-210   Premature Motion  

First

Defendant, abutting landowner’s motion for summary judgment in case where plaintiff tripped on a raised piece of concrete remaining from a phone booth removed a year earlier was properly denied as premature since corporate president had yet to be deposed and record suggested question of whether defendant had constructive notice of the condition. Baghban v City of New York


Notice   Stairs   Slip/Trip   Last Inspection  

First

Defendant failed to meet its initial burden by showing its general cleaning routines and not what it did on the day of the accident, including the last time the staircase that plaintiff fell on as he was returning from smoking a cigarette was inspected and maintained. Even if defendant had met its initial burden, plaintiff raised an issue of fact based on his testimony that he told an usher prying to going outside at intermission that the area was wet and he slipped 15 minutes later. Sada v August Wilson Theater


Personal Juridiction   Traverse Hearing   CPLR §306-b   Extend Time to Serve   Statute of Limitations  

Second Deptartment

Lower court properly dismissed action for lack of jurisdiction after hearing but improvidently denied plaintiff’s motion to extend the time to serve the summons and complaint by 120 days (CPLR §306-b), even though statute of limitations had expired when plaintiff moved for relief. Defendant had actual notice within 120 days of commencement of the action, which was within the statute of limitations, plaintiff demonstrated meritorious cause of action, and there was no prejudice to defendant from the delay in service. Jhang v Nassau Univ. Med. Ctr.


Motion to Dismiss   Negligent Hiring   Negligent Supervision  

First

Motion to dismiss goes solely to sufficiency of pleadings and plaintiff’s complaint made out a cause of action for negligent hiring, supervision and credentialing. Defendant’s unsubstantiated claims that they had no knowledge of the Doctor’s sexual propensities does not change the sufficiency of the pleadings and plaintiff should be permitted discovery of relevant information. Motion to dismiss was not converted to motion for summary judgment. Hooker v Magill


Med Mal   Accepted Practice   Consultant   Expert Aff  

Second Deptartment

Defendant’s expert affirmations made prima facie case for summary judgment by showing that plaintiff’s lower leg, severely damaged in a motorcycle accident, was not infected in the 17 days before they sought an infectious disease consult and, therefore, that they did not depart from accepted practice. Plaintiff’s expert affirmation, however, raised a question of fact as to whether leg was infected during the 17 day delay and whether that delay was a departure from accepted practice. Summary judgment is not appropriate where there are conflicting medical expert opinions. Elmes v Yelon


Med Mal   Accepted Practice   Expert Aff  

First

Defendants entitled to summary judgment on showing that plaintiff’s grand mall seizure was caused by an undetected seizure disorder which the doctors had no reason to suspect and proof that the seizure could not be the result of benzodiazepine withdrawal. Plaintiff failed to raise an issue of fact. Pianoforte v City of New York


Med Mal   Ostensible Agency   Proximate Cause   Expert Aff  

Second Deptartment

Hospital’s motion for summary judgment on its claim that doctors were not employees properly denied on plaintiff’s claim that hospital may be vicariously liable for doctors under apparent or ostensible agency. For ostensible agency, plaintiff must prove words or actions by the hospital creating a belief in the patient that the agent (doctors) had authority to act on hospital’s behalf and plaintiff must reasonably rely on the appearance of authority based on misleading words or conduct of the hospital, not the doctor. Plaintiff also raised a question of fact to rebut defendant’s showing that injury was caused during procedure conducted by doctors and not after care had been transferred to hospital staff by his conflicting expert affirmation. Keesler v Small


Directed Verdict   CPLR §4401   Ladder  

Second Deptartment

Trial court’s denial of motion for directed verdict at the close of evidence pursuant to CPLR R 4401, allowing the case to go to verdict with the jury finding defendant 55% and plaintiff 45% at fault with a stipulation of damages in the amount of $1,552,974.26, was reversed and directed verdict granted defendant. Plaintiff claimed that a porter in his apartment building had asked him to climb a ladder to inspect an AC vent and promised to hold the ladder. Plaintiff fell when he took his first step down from the ladder and the porter was not holding it. Porter claimed that he never asked the plaintiff to climb the ladder and never held the ladder. Court found that looking at the evidence in the light most favorable to the plaintiff there was no rational basis that upon which the jury could find for the plaintiff who they found was a volunteer and owed no duty. Barnes v Sam Burt Houses, Inc.


Workers Comp Defense   Discovery  

Second Deptartment

Defendant failed to make out its prima facie entitlement to dismissal based on workers comp defense on motion made before EBT’s because its papers did not establish that defendant controlled and directed the manner and details of the plaintiff’s work, that plaintiff’s actual employer had permanently assigned her to the defendant on a full-time basis or that her general employer had hired her to meet the defendant’s specified employee needs and failed to identify any of the defendant’s employees who supervised the plaintiff. Bostick v Penske Truck Leasing Co., L.P.


Sole Cause   Pedestrian  

Second Deptartment

Defendants should have been granted summary judgment upon evidence that infant plaintiff darted out into the street, other than in an intersection, into the path of the defendant’s bus, that the father plaintiff father ran after him and pushed him out of the way. Defendant’s proof established that the infant and father were the sole proximate cause of the accident. Ali v Paul


Rear End   Comparative Fault   Sole Cause   Nonnegligent Explanation  

Second Deptartment

Deposition testimony of plaintiff and defendant gave different versions of the facts but under either version the defendant was the sole proximate cause of the rear end collision. Plaintiff showed that he was free from comparative fault and defendant failed to give a nonnegligent explanation for the accident. Bowen v Farrell


Premises Liab   Dangerous Condition   Notice  

Second Deptartment

Plaintiff home health aide was injured when he jumped from apartment balcony after he found balcony door to apartment he used minutes before, and multiple times before, locked. His client, the defendant, was in his bedroom on the other side of the apartment and unable to come to the door and no one else was in the apartment. Defendant had no notice of the condition since the door had never locked in that fashion before and plaintiff failed to show that the door was a defective condition. Ghviniashvili v Jaroslawicz


Rear End   Nonnegligent Explanation  

Second Deptartment

Defendant overcame plaintiff’s prima facie showing in rear end collision by driver’s affidavit that an unidentified vehicle struck his vehicle in the rear causing him to strike the plaintiff’s vehicle. Lutz v Defabio


Strike Note of Issue   Discovery  

First

By not scheduling an IME within the time set forth in the preliminary and compliance conference orders, defendant waived an IME and its motion to strike the note of issue was denied. Lower court granted additional EBT and plaintiff had provided defendant with an authorization to obtain medical records between the two surgeries, which provided reasonable disclosure. Alvarez v Feola


Slip/Trip   Wet Floor   Notice  

Second Deptartment

Walmart showed by video surveillance and employee affidavits that they had inspected the area minutes before the accident and did not see any visible water on the floor. Plaintiff’s testified that she too did not see visible water on the floor minutes before her accident. Denial of Walmart’s motion for summary judgment was reversed and summary judgment granted. Parietti v Wal-Mart Stores, Inc.


Legal Mal   Proximate Cause  

Second Deptartment

Summary judgment for plaintiff on his legal malpractice claim that attorney failed to give timely notice of his intention to cancel contract, resulting in loss of his down payment, reversed because his own submissions showed triable issues of fact as to whether he complied with contract provisions necessary to cancel, precluding a finding of proximate cause. Defendant, on its cross-motion for summary judgment, failed to establish that it did not breach duty of care and that its alleged breach was not a proximate cause of plaintiff’s damages. Jorge v Hector Atilio Marichal, P.C.


Costs/Disbursements  

Second Deptartment

Court properly granted plaintiff’s motion to correct costs on judgment in favor of defendant, after verdict, by deleting costs for interlocutory appeal which was decided against County defendant, with costs to plaintiff. Party is not entitled to recoup costs for unsuccessful appeal even if they prevail on action. Miller v County of Suffolk


Discovery   Strike Note of Issue   BP  

Second Deptartment

Plaintiff served a supplemental BP with the note of issue alleging continuing special damages and disabilities. Defendant failed to conduct the IMEs within the time provided in a compliance conference order or to move to strike the note of issue within 20 days. Nevertheless, the court appointed JHO supervising discovery ordered the plaintiff to appear for IMEs by defendant’s orthopedist and neuropsychiatrist and the court correctly refused to vacate that order. The plaintiff’s service of a supplemental bill of particulars with the note of issue required additional pretrial proceedings to prevent substantial prejudice to the defendants. Arroyo v Lacuesta


Serious Injury   Expert Aff   Admissable Form   Treatment Gap  

First

Defendant met its initial burden with orthopedic expert’s report showing no significant limitations and negative clinical results, resolved shoulder strain, ankle sprain and right knee injury as well as a normal radiologist finding on knee MRI, with no injuries causally related to the accident. Plaintiffs orthopedic surgeon’s affirmation, concerning a recent examination did not address those injuries. It stated only that he performed arthroscopic surgery on the knee two years prior without any opinion as to causation or limitations. An un-affirmed report found a torn meniscus during the surgery, but did not give an opinion as to limitations or causation. Plaintiff also failed to explain why he stopped treatment nine months after the accident even though continued treatment would have been covered by Medicaid if no-fault had denied payment. Green v Domino’s Pizza, LLC


U-Turn   Serious Injury   Premature Motion  

First

Plaintiff was entitled to summary judgment on liability where defendant admitted that he made an illegal U-turn. Plaintiff was able to rely upon unauthenticated police report because defendant relied on the same. Lower court’s grant of summary judgment on serious injury and order for an immediate damage trial, was modified to deny summary judgment as premature since discovery had not been completed. Defendant had a right to question the plaintiff at deposition and to conduct an IME. Cruz v Skeritt


Discovery   Vacate Default   Conditional Order  

First

Lower court properly granted plaintiff’s motion to vacate order dismissing complaint for failure to appear for scheduled deposition by giving plaintiff a conditional order to appear for EBT within two months on an agreed-upon date or action is dismissed. Raidy J.G. v City of New York


Serious Injury   Expert Aff  

First

Summary judgment on serious injury for defendant reversed where defendant’s IME doctor did not examine plaintiff until three years after the accident and gave no opinion regarding her condition during the first 180 days after the accident. Nor did defendant offer evidence disputing causal relationship between accident and injury. Seepersaud v L&M Bus Corp.


Serious Injury   Expert Aff   ROM  

Second Deptartment

Plaintiff’s claims of serious injury were reinstated on appeal where the court found the defendant did not meet its initial burden because it did not adequately address plaintiff’s claim in the BP regarding the 90/180 day criteria and because defendant’s expert found a significant limitation of ROM of the plaintiff’s left thumb. Tagliarino v Staab


Spoliation   Discovery  

First

Court upheld lower court’s denial of defendant’s motion to strike plaintiff’s back injury claims on the ground that plaintiff refused to appear for an IME before having back surgery where the so ordered stipulation provided for only one IME to take place after plaintiff’s surgery. Arias v MSC Express Inc.

IF YOU MUST READ
(1 summaries)

Discovery   Sanctions   Notice to Admit  

First

Lower court properly exercised its discretion in denying defendant’s discovery motions to dismiss, preclude, compel, deem notice to admit admitted, and for sanctions. The court does not give the details of the discovery demands or notice to admit. Estate of Mojica v Harlem Riv. Park Houses, Inc.

About Matt McMahon

Civil trials and appeals since 1984

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