June 30, 2020 | Vol. 217

(4 summaries)

Untimely   Reasonable Excuse   Raised For First Time  

Second Department
Plaintiff’s motion to adjourn defendants’ motions for summary judgment to allow plaintiff to submit opposition denied under DCM rules requiring adjournment requests be made 2-days before return date except under exigent circumstances and plaintiff failed to provide exigent circumstances where their letter requests only detailed efforts made day before and day of the return date. Plaintiff’s attorney’s claim that mother of attorney preparing opposition died before return date necessitating adjournment did not provide exigent circumstances where raised for first time on the motion and the attorney was not identified nor an affidavit of the circumstances provided. Miglionico v Homeowners

Premises Liab   Lead Poisoning   Notice  

First Department
Local Law 1 provides notice of lead condition for buildings built before 1960 where there is peeling paint and landlord knows that child 6-or-under resides in apartment. Plaintiffs did not have to prove complaints to make out notice. Plaintiffs proved as a matter of law that landlord did not act reasonably to abate lead from time of presumptive notice and defendants’ argument they acted reasonably after actual notice did not make their actions reasonable. Defendants’ medical expert’s opinion that injuries, including brain damage and cognitive impairments, were not caused by lead poisoning raised issue of fact precluding summary judgment for plaintiffs. S.T. v 1727-29 LLC

MVA   CPLR §306-b   Personal Juridiction  

Second Department
Plaintiffs granted extension of time to serve under CPLR 306-b under booth “good cause” and “interest of justice” standards where court dismissed case for lack of personal jurisdiction after parties signed stipulation adjourning defendants’ time to Answer with a waiver of personal jurisdiction defenses, signed by their carrier, as the delay was caused by circumstances beyond plaintiffs’ control. Poyser v JCF Trucking Corp.

Med Mal   Set Aside Verdict   Pain/Suffering   Materially Deviates  

Second Department
Verdict of $1.5/$1.0 million for past/future pain/suffering where small intestine perforated during endoscopy, reduced by lower court to $550,000/$100,000, modified to reinstate $1.5 million past pain/suffering as it did not materially deviate from reasonable compensation and increase future pain/suffering to $1 million on plaintiff’s expert’s testimony that she has an increased risk of bowel obstruction, hernias, and bacterial overgrowth in the small intestine and a 7.5″ permanent scar. Garzon v Batash

(16 summaries)

Med Mal   Late Notice of Claim   Statute of Limitations   Actual Knowledge   Reasonable Excuse   Expert Aff  

First Department
Petition to serve late Notice of Claim for failure to refer plaintiff for diagnostic testing resulting in 4-month delay in breast- cancer diagnosis denied were HHC did not have actual notice of essential facts within 90-days or a reasonable time thereafter as medical records did not alert defendant that there was malpractice and plaintiff failed to submit doctor’s affirmation claiming records would have alerted defendants to malpractice. Without actual knowledge, plaintiff cannot show HHC would not be prejudiced by delay. Plaintiff failed to give reasonable explanation for failing to timely serve Notice of Claim until petition was made 5-months after she was diagnosed. Matter of Atkinson v New York City Health & Hosps. Corp.

Labor Law §200   Premises Liab   Create Condition   Notice  

Second Department
Owners of facility under construction failed to make out prima facie entitlement to summary judgment on Labor Law §200 and negligence claims where worker slipped in mud in large excavation while removing forms from concrete blocks as presence of mud was premises defect requiring proof they did not create condition or have actual or constructive notice. Unsigned EBT’s should have been considered by lower court where there was no objection. Modugno v Bovis Lend Lease Interiors, Inc.

Premises Liab   Slip/Trip   Snow/Ice   3rd Party Contractor   Espinal   Duty  

Second Department
Company hired by school for administrative services granted summary judgment where school’s employee slipped on ice on school property on proof that company had no duty under contract to maintain property in a safe condition and, therefore, did not fit within Espinal exception when 3rd-party contractor displaces duty to maintain property as claimed by plaintiff. Thayer v Community Servs. for the Mentally Retarded, Inc.

Labor Law §241   Labor Law §240   Industrial Code  

First Department
Reinstating plaintiff’s claim under Labor Law §241(6) the Court found that industrial code §23-1.7(e)(2)(debris) applies to plywood slabs as well as loose debris in passageway where wheel of dumpster cracked causing dumpster to fall on plaintiff. Defendants failed to eliminate questions of fact on §§ 23-1.28(b)(hand-propelled vehicles) and 23-1.5(c)(unsafe equipment) without proof that dumpster was not defective. Plaintiff’s claim that §23-2.1(a) applied rejected as accident not caused by method of material storage and Labor Law §240(1) claim abandoned where plaintiff did not oppose on original motion. Sancino v Metropolitan Transp. Auth.

Premises Liab   Slip/Trip   Snow/Ice   Sidewalk   § 7-210   Duty   Create Condition  

Second Department
Parking garage failed to eliminate questions of fact on whether plaintiff slipped on public street, its driveway apron, or adjoining sidewalk or that their snow removal efforts did not create or exacerbate the condition even where they proved they did not owe a statutory duty to remove the snow from the sidewalk. Gibbs v Husain

Discovery   IME/DME   Note of Issue  

First Department
Motion to compel IME/DME 14-months after Note of Issue providently denied were defendant offered no excuse for the delay and had violated 3-prior court orders to designate and complete IME/DME. Shulman v ZFX, Inc.

Premises Liab   Slip/Trip   Sidewalk   Prior Written Notice   Create Condition  

Second Department
Village denied summary judgment for trip on sidewalk defect near tree well where it proved it lacked prior written notice but failed to prove it did not create the condition as was alleged in the Complaint and BP. Nigro v Village of Mamaroneck

Premises Liab   Dangerous Condition   Open/Obvious   Inherently Dangerous  

Second Department
Store defendants failed to show pallet plaintiff tripped on that partially blocked entrance to stock room was reasonably safe where employee testified that pallets were not allowed to partially block an entrance. Open/obvious only goes to duty to warn and defendants failed to show it was not inherently dangerous. Defendants failed to show a lack of constructive notice. Holmes v Macy

Negligent Supervision   Causation   Intervening Cause   Foreseeability  

Second Department
Golf club granted summary judgment where 7-year-old was hit in the face with golf club swung by another participant in a Junior Golf Day chipping clinic as they were leaving the area on proof that they adequately supervised the children and the incident occurred in such a short span of time that no degree of supervision could have prevented it. Plaintiff failed to show that only allowing children to have clubs while working with an instructor was an industry-standard or that incident was foreseeable without proof that defendant had specific knowledge of the danger at that time. Carpaneto v Middle Bay Golf Club

Premises Liab   Out of Possession   Create Condition  

Second Department
Building owner denied summary judgment where unattached file cabinet fell on tenant’s worker as questions remained on its status as an out of possession owner and whether it created the condition. Tardif v Hauppauge Off. Park Assoc., LLC

Products Liab   Defect   Causation  

First Department
Manufacture of meat grinder plaintiff was cleaning as part of his supermarket job when it unexpectedly turned on injuring him entitled to summary judgment on proof that machine was manufactured to safety standards and that automatic shut off was modified to bypass safety feature after it left manufacturer. Defective foot pedal not manufactured by defendant was not a cause of injury since accident could not have occurred unless automatic shut off had been bypassed. Mercedes v 248 JD Food Corp.

Premises Liab   Unknown Cause   Noseworthy  

First Department
Intoxicated plaintiff unable to identify cause of his fall after a day of drinking during SantaCon not entitled to Noseworthy doctrine without expert medical proof establishing by clear and convincing evident that memory lapse was from injury. Defendant granted summary judgment as plaintiff was unable to identify cause of fall which was at least as likely caused by his intoxication as any defect on premises. Visone v Third & Twenty Eight LLC

Negligent Supervision   Causation   Intervening Cause   Raised For First Time  

Second Department
School district granted summary judgment where kindergartner fell off slide on proof that they provided adequate supervision and accident occurred so quickly that no degree of supervision would have prevented fall. Plaintiff’s only opposition on motion was that defendant failed to make out prima facie case and argument on appeal that they should have barred infant from using slide not considered. J.F. v Brentwood Union Free Sch. Dist.

MVA   Comparative Fault  

Second Department
Plaintiff granted summary judgment where defendant driver pulled vehicle out of parking space when it was not safe to do so, hitting plaintiff’s vehicle in violation of VTL §§ 1162 and 1143. Plaintiff’s testimony that she was driving 15-20 mph, saw defendants’ vehicle in the parking space that was then suddenly on top of her, hitting her eliminated questions of comparative fault. Candelario v Gold

Serious Injury   BP  

Second Department
In failing to address plaintiff’s claim of serious injury under 90/180-day category defendant failed to make out prima facie entitlement to summary judgment on serious injury. Moina v Daddario

Serious Injury   BP  

Second Department
In failing to address plaintiff’s claim of serious injury under 90/180-day category defendant failed to make out prima facie entitlement to summary judgment on serious injury. Hye Shin Hwang v Hee Jin Lim

(2 summaries)

SUM   Stay Arb   Untimely   Service  

Second Department
Carrier’s petition to temporarily stay SUM arbitration to complete discovery dismissed where filed beyond 20-days and where served by 1st class mail not certified or registered mail RRR. Matter of State Farm Ins. Co. v Reid

Vacate Default   Settlement  

First Department
Plaintiff’s motion to restore consolidated actions to trial calendar denied on proof that a global settlement by plaintiff’s attorney in these cases and others resolved all claims involving the defendant from the incident. The court does not give the details of the proofs. Braithwaite v Greenhouse

About Matt McMahon

Civil trials and appeals since 1984
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