June 28, 2022 | Vol. 319

(5 summaries)

MVA   Default Judgment   Compel Acceptance   Reasonable Excuse  

Second Department
Lower court improvidently denied plaintiff’s motion for default judgment and granted cross-motion by city and its driver to compel acceptance of an Answer as defendants’ claim of law office failure for mistakenly thinking the case had been settled was not a detailed and credible explanation for the 7-month delay in answering. Dawkins v Isole    

1983 Action

In a 9/3 decision, SCOTUS declared that failure to provide Miranda warnings cannot be the basis for a 1983 action as Miranda warnings are prophylactic rules to protect the constitutional right against self-incrimination (5th Amendment), not a constitutional right and the burdens of protecting it under a 1983 action outweigh the costs. The proper remedy is to preclude any un-Mirandized statement. The Court noted that violations of the right against self-incrimination by forceful compulsion while in custody can be the basis of a 1983 action.

The dissent points to the history of the Court recognizing the Miranda warnings as a constitutional issue and otherwise a federal right that can be the basis of a 1983 action. Without the possibility of civil redress, the dissent notes there will be little protection against violations. Vega v Tekoh    

Malpractice   Capacity to Sue  

First Department
Doctors granted summary judgment dismissing claim of infant-plaintiff born with spina bifida for failure to ensure mother was on birth control and monitored for pregnancy while receiving valproic acid for epilepsy as there is no cause of action for preconception negligence which sounds in “wrongful life.” Z.L. v Mount Sinai Hosp.    

MVA   VTL §1104   Reckless  

First Department
NYC and officer met burden for summary judgment dismissing MVA action on proof they were entitled to reckless standard of VTL §1104 as the NYPD vehicle was responding to an emergency and not reckless where they were traveling at a safe speed and discontinued the chase before the car they had been chasing struck plaintiffs’ vehicle. Plaintiffs’ raised issues of fact on whether the NYPD defendants ignored grave risks likely to harm others, the reckless standard, on conflicting proof that the NYPD vehicle was driving up to 100 mph right behind the vehicle they were chasing through a residential area, never broke off the chase, and failed to follow police procedures to call headquarters to alert them about the chase. NYC’s and Plaintiff’s motions for summary judgment denied. Handelsman v Llewellyn    

Labor Law §200   Labor Law §240   Labor Law §241   1-2 Family Exception   Control   Create Condition   Notice  

Second Department
Owner of single family home entitled to 1-2 family home exception to Labor Law §§ 240(1) and 241(6) where worker was injured when roof of detached garage on adjacent separate lot with separate address collapsed because the garage acted as an “extension of the dwelling” and homeowner did not direct the work. Homeowner granted summary judgment of Labor Law §200 and negligence claims on proof she did not create the structural roof defect or have notice of the defect because it was latent and would not be discovered on a reasonable inspection as well as proof that plaintiff undertook to repair the dangerous condition that caused his injury. Rendon v Callaghan    

(14 summaries)

Default Judgment   Vacate Default   Reasonable Excuse   Meritorious Defense  

Second Department
Defendant’s motion to vacate default and for leave to serve a late Answer denied where its conclusory and unsubstantiated claims of delays by insurance carrier did not provide a reasonable excuse for not answering and are not generally sufficient for a reasonable excuse. Absent a reasonable excuse, court did not need to look at issue of meritorious defense. Ahmed v Essex Terrace, Inc.    

Malpractice   Accepted Practice   Respondeat Superior  

Second Department
Plaintiff’s expert raised issues of fact on opinion that moving defendant-doctor who examined fetal-monitor strips without recommending any treatment changes departed from accepted practice by not formally evaluating plaintiff after she was admitted to hospital for decreased fetal movement, not considering infection or hypoxia or scheduling immediate testing, relying on tests performed by unsupervised, low-level residents instead of performing them himself, and allowing these residents to care for the plaintiff-mother who subsequently required an emergency C-section where the infant was born with severe brain damage from lack of oxygen prior to delivery and later died.

Grant of hospital’s motion for summary judgment dismissing vicarious liability claims for moving doctors’ actions reversed as it was granted solely on lower court’s finding of no departure. Dear-Noel v Alvarez    

MVA   Vacate Default   Note of Issue   90 Day Notice   Reasonable Excuse   NYC  

Second Department
Lower court improvidently denied plaintiffs’ unopposed motion to vacate default, restore action to active calendar, and consolidate it with other pending action involving the same accident where plaintiff counsel’s detailed and credible explanation of law office failure in not appearing at a PC and being unable to move to vacate until the order of dismissal was entered 1.5 years later provided a reasonable excuse, plaintiffs proved their motion to restore and consolidate were meritorious, CPLR §3404 did not apply as Note of Issue was not filed, and there was no 90-day notice. Santiago v City of New York    

Vacate Default   Reasonable Excuse   Meritorious Action  

First Department
Fact that plaintiffs’ counsel was unaware of COVID changes for compliance conferences provided reasonable excuse by law office failure for not submitting stipulations before the conference. Complaint, BP, and plaintiff’s testimony provided proof of a meritorious action. Willner v S Norsel Realties LLC    

Malpractice   Motion to Dismiss   Statute of Limitations  

Second Department
Cause of action against hospital brought more than 2.5-years but less than 3-years after decedent’s death time barred as the allegations questioned the “performance of functions that are ‘an integral part of the process of rendering medical treatment’ and diagnosis to a patient, such as taking a medical history,” making the claim sound in malpractice despite it being labeled as negligence. McNally v Montefiore Nyack Hosp.    

Premises Liab   Workers Comp Defense   Control  

First Department
Building managing agent failed to meet burden for summary judgment on workers comp defense where management agreement expired years before the accident and extension did not take effect until after the accident. Managing director’s affidavit insufficient where she did not work for the company at the time of the accident, had no personal knowledge of the company’s relationship with plaintiff, and did not refer to any other documents showing that plaintiff was its special employee. Allegation that management company was actively negligent sufficient to raise issue of its liability and it did submit evidence to disbute it was in complete control of the building. Filippidis v Multi-Pak Corp.    

MVA   Bus   Rear End   Causation  

Second Department
County and its bus driver denied summary judgment on plaintiff’s testimony that bus driver was looking for something under his seat for 10-15 seconds, only saw stopped van in front of bus when he looked up, and came to a sudden stop causing codefendant to rear end the bus which conflicted with the bus driver’s testimony that the van stopped short in front of the bus. Their can be multiple causes of a rear end collision. Caldwell v Town of Huntington    

Labor Law §240   Scaffold   Hearsay   Admission   Sole Cause  

First Department
Plaintiff granted summary judgment under Labor Law §240(1) on his testimony and expert’s opinion that he fell through an unguarded side of a scaffold and was injured while he and a coworker tried to move the scaffold along the building exterior. Testimony of plaintiff’s employer that coworker said plaintiff was in a rush and might have jumped from the scaffold was inadmissible hearsay and plaintiff’s statement to employer was too vague to constitute an admission against interest on sole cause claim.

Project owner granted summary judgment on its claim for contractual indemnity against GC where agreement language covered negligence by GC or its subcontractors, including plaintiff’s employer, and there was no proof project owner was negligent. Corleto v Henry Restoration Ltd.    

Premises Liab   Create Condition   Notice  

First Department
Hunts Point Market and sanitation company granted summary judgment on proof they did not create or have notice of fruit and vegetable residue on ramp that plaintiff slipped on and sanitation company had cleaned the ramp an hour before the accident. Plaintiff’s prior observations of residue on the ramp showed only a general awareness of residue and not constructive notice of what plaintiff fell on. Torres v Sanitation Salvage Corp.    

Serious Injury   BP  

Second Department
Defendant failed to meet its burden for summary judgment on serious injury where it did not address plaintiff’s allegations under the 90/180-day category alleged in the BP. Castro-Villatoro v Batista    

Motion to Dismiss   Waiver   Prejudice   Sanctions  

First Department
Helicopter ride companies’ motion to dismiss based on forum selection clause denied as they waived the clause by participating in the litigation for 3-years and plaintiff would be prejudiced by enforcement of the clause where they expended significant time/expense and may have been induced to believe the clause would not be enforced.

Plaintiffs’ cross-motion for sanctions denied as defendants’ motion to dismiss was not completely without merit in law and misquote in motion papers, even if intentional, was not a material factual misstatement. Cadigan v Liberty Helicopters, Inc.    

MVA   Discovery   Note of Issue   Preclusion   Willful/Contumacious  

Second Department
Fact that defendants learned of plaintiff’s subsequent accident after Note of Issue was filed provided the unusual and unanticipated circumstances necessary for post Note of Issue motion to compel plaintiff to appear for further EBTs and IME/DMEs. Motion to preclude providently denied where there was no evidence plaintiff’s conduct was willful/contumacious. Lewis v City of New York    

False Arrest   Assault   Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice   Conclusory   NYC  

Second Department
Petition for leave to serve late Notice of Claim or deem late Notice of Claim timely served nunc pro tunc denied as conclusory allegations that reports exist showing NYC had actual knowledge within 90-days, and failing to attach reports for the court’s review, did not establish actual knowledge and petitioner failed to provide a reasonable excuse for 7- month delay in seeking leave or a plausible argument that NYC would not be prejudiced by the delay. Parker v City of New York    

Premises Liab   Create Condition   Notice  

Second Department
Bowling alley granted summary judgment of proof it did not create or have notice of splintered area of floor plaintiff’s sock or shoe got caught on and that defect was latent where it was inspected by defendant’s employee and another bowler prior to the accident and neither of them noticed the defect. Nelson v AMF Bowling Ctrs., Inc.    

(4 summaries)


Second Department
Motion to compel arbitration on high/low maxing out at 50% of policy granted as plaintiff’s counsel’s unilateral mistake as to the full policy limits he had twice been notified of was the result of inadvertence and not the product of the carrier’s fraudulent inducement. Maynard v Smith    

Vacate Default   Service   Reasonable Excuse  

Second Department
Third-party defendant’s motion to vacate default in answering denied where it failed to show it did not personally receive notice of the action in time to defend under CPLR §317 or provide a reasonable excuse for its delay in answering or moving to vacate under CPLR §5015(a)(1). The Court does not give the details of the proofs. Beltran v New York City Hous. Auth.    

Labor Law §200   Labor Law §240   Labor Law §241   Discovery   Premature Motion  

Second Department
Defendants’ motions for summary judgment denied without prejudice to renew after completion of discovery as depositions had not been completed and plaintiff was entitled to discovery that might lead to relevant information. The Court does not give the details of the proofs. Arias v Allen J. Reyen, Inc.    

Serious Injury  

Second Department
Defendants met burden for summary judgment on serious injury by competent medical evidence that neither plaintiff sustained a serious injury and plaintiffs failed to raise an issue in opposition. The Court does not give the details of the proofs. Monvil v Perlman    

About Matt McMahon

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