Vacate Default Notice Reasonable Excuse Prejudice Meritorious Action
 Plaintiff’s proof that she did not have notice of advanced trial date, that her expert witness was unavailable on the date for a religious holiday, and that she had made advance plans to travel out of state on that date provided reasonable excuse for not going forward with trial on that date, that there would be no prejudice from 24-hour delay requested, and plaintiff’s affidavit of merit and verified Complaint showed meritorious action so that dismissal under 22 NYCRR 202.27 was unwarranted. Berenguer v St. Barnabas Hosp.
|
Set Aside Verdict Untimely Materially Deviates
 Plaintiff’s motion to set aside verdict and for additur made beyond 15-days denied as untimely under CPLR 4405 and plaintiff failed to preserve issue of inconsistency by not objecting prior to jury being disbanded. On appeal from judgment Second Department found $20,000/$0 past/future pain/suffering materially deviated from reasonable compensation for permanent consequential limitation of shoulder and spine of 38-year-old and ordered new trial unless defendants stipulated to increase awards to $50,000/$50,000. Defendants’ motion to set aside verdict as against weight and for judgment as a matter of law denied where there was a rational path for jury to find serious injury. Rozmarin v Sookhoo
|
Labor Law §241 Industrial Code
By 3/2 the First Department found that industrial code §23-9.9(a) requiring power buggies be operated by a designated employee was sufficiently specific to deny defendants’ motion for summary judgment on Labor Law §241(6) and upon searching the record granted plaintiff summary judgment where there was no dispute that person operating power buggy that struck plaintiff was not trained or “designated” to operate it when he turned it on while “horse playing.” Toussaint v Port Auth. of N.Y. & N.J.
|
Med Mal Accepted Practice Causation Expert Aff
Defendants made out entitlement to summary judgment on expert surgeon’s opinion that bariatric surgery was performed within accepted practices and the complications were well known common risks fully addressed in consent signed by plaintiff. Plaintiff’s expert’s claim that procedure was not performed correctly was not supported by the record and allegation of remaining obstruction was contradicted by diagnostic tests. Gallardo v Ude
|
Labor Law §240 Ladder
Plaintiff’s fall from A-frame ladder was during maintenance not repair and not covered under Labor Law §240(1) where leak he was attempting to fix was caused by spill in apartment above and not leaky pipe as plaintiff thought. Colon v Third Ave. Open MRI, Inc.
|
3rd Party Contractor Espinal Duty
Company that ran training program at plaintiff’s employer’s location where plaintiff’s foot got tangled in extension cords did not launch instrumentality of harm by failing to straighten out extension cords as it did not have an obligation to come to plaintiff’s aid. Summary judgment for defendant. Espeleta v Synergy Resources, Inc.
|
Premises Liab Slip/Trip Sidewalk Amend Complaint Motion to Dismiss Personal Juridiction Statute of Limitations
Defendants’ motion to dismiss for lack of personal jurisdiction made 4-years after plaintiff’s unopposed motion to add adjoining land owner’s estate in place of deceased landowner was granted and after statute of limitations expired, denied as court had jurisdiction to permit amendment as only the action against the deceased landowner was a nullity and estate Answered and participated in discovery. Pensabene v City of New York
|
Premises Liab Slip/Trip Stairs Unknown Cause Dangerous Condition
Plaintiff’s attempt to change location of staircase she claimed she fell on in supplemental BP insufficient to raise issue of fact in opposition to defendants’ showing no defect on the stairs identified in the original pleadings and testified to by plaintiff, including plaintiff’s EBT testimony that there was no debris or wet substances. Plaintiff’s expert’s opinion did not conflict with defendants’ expert’s opinion because it was of a different staircase. Foley v Chateau Rive Equities, LLC
|
MVA Premises Liab Causation Sole Cause
Plumbing supply company where codefendant injured plaintiff who he did not see while backing into loading dock granted summary judgment on proof that sole cause of accident was truck driver’s failure to see plaintiff and design and maintenance of parking lot merely furnished occasion for accident and was not a cause. Liquori v Brown
|
Labor Law §240 Scaffold Safety Devices Indemnity
Scaffold plaintiff was directed to use lacked railings to prevent his fall and he was given no other safety devices establishing violation of Labor Law §240(1) against building owner who was entitled to contractual indemnity against plaintiff’s employer under unequivocal contract indemnifying them for all accidents and owner was only vicariously liable. Martinez-Gonzalez v 56 W. 75th St., LLC
|
Med Mal Accepted Practice Causation Expert Aff
Plaintiff’s experts raised issue of fact in opposition to initial hospital and emergency room physician’s experts’ showing of entitlement to summary judgment on whether moving defendants failed to have a neurosurgical consultation within 2-hours of positive brain CT scan and caused a delay in treatment for an aneurysm by not speaking directly with neurosurgeon at hospital they transferred patient to against family’s wishes to have her transferred to larger hospital, and by not sending the CT scans with the patient. The neurosurgeon at the hospital they sent the patient to had a delay in getting to the hospital and starting the surgery during which it was realized the patient had an aneurysm that likely ruptured and had to be transferred to the hospital the family originally requested. Gachette v Leak
|
Med Mal Renew Expert Aff Prejudice
Plaintiff’s motion to renew opposition to defendants’ motion for summary judgment granted based on supplemental expert submissions correcting deficiencies in original submissions due to inadvertent oversights and lack of prejudice to defendants. Conflicting expert opinions preclude summary judgment. Robinson v Nelson
|
Negligent Supervision Causation
While defendant home healthcare agency could be liable for abandonment of care where its attendant did not show for morning shift, defendant showed its attendant’s absence was not a proximate cause of the 87-year-old decedent’s fall and subsequent death on proof that decedent was never deemed a fall risk and did not require assistance for transfers from/to bed/chair, and was fully able to ambulate independently with a cane. Ward v New Century Home Care, Inc.
|
MVA Rear End Nonnegligent Explanation Hearsay
Plaintiff whose car was rear-ended a full minute after it stalled on highway granted summary judgment on showing defendant was following car in front of him too closely to see plaintiff’s stopped car in time to stop as the car in front of defendant slowly changed lanes 5-car lengths before plaintiff’s car. Statement and findings of fault in police report inadmissible hearsay where police officer did not witness accident and could not identify statement declarant. Bloechle v Heritage Catering, Ltd.
|
Med Mal Subpoena Discovery
Plaintiff put decedent’s employment history in issue by raising claim of lost earnings warranting denial of motion to quash subpoena for decedent’s employment records. Gaynor v Mount Sinai Beth Israel Med. Ctr.
|
Independant Contractor Notice
Defendant failed to show it had no notice of subcontractor’s use of chemical paint strippers, the fumes of which injured plaintiff, a cleaner in the building and there was evidence that defendant had supervisors on the site who oversaw subcontractor’s work and had duty to warn building owner of dangerous/hazardous conditions. Arias v Recife Realty Co., N.V.
|
Dangerous Condition Duty Causation Warnings Open/Obvious
Even if company was negligent for entrusting plaintiff’s employer with the truck, plaintiff’s testimony that he never saw his employer act negligently and that there was nothing wrong with the truck when a ring on his finger got caught in a spike from a metal grate on a step he was descending severing his finger demonstrated that any negligence only provided the occasion for the highly unusual accident and was not a cause of it. It was and an open/obvious condition that defendants did not have to warn against. Deschamps v Timberwolf Tree & Tile Serv.
|
Premises Liab Slip/Trip Snow/Ice Notice Last Inspection
Condominium failed to meet burden for summary judgment where testimony of superintendent showed only general inspection practices and not last time area where plaintiff fell on patches of ice was inspected or cleaned leaving question of fact on constructive notice. Lauture v Board of Mgrs. at Vista at Kingsgate, Section II
|
Med Mal Accepted Practice Causation Expert Aff Speculation
Defendants’ experts showed infant-plaintiff presented with symptoms of appendicitis requiring appendectomy under accepted practices and that subsequent infection was not caused by appendectomy. Plaintiffs’ experts failed to address defendants’ experts’ review of medical records showing no causal connection offering only speculation on causation. Summary judgment for defendants. Altagracia S. v Cowels
|
Med Mal Certificate of Merit Amend Complaint Prejudice
Hospital’s failure to supervise plaintiff who eloped and was subsequently injured sounded in medical malpractice involving assessment of supervisory and treatment needs, requiring a certificate of merit. Plaintiff’s cross motion to amend Complaint to include causes of action for medical malpractice granted as not devoid of merit and there was no prejudice to the defendants. Jeter v New York Presbyt. Hosp.
|
Med Mal Accepted Practice Causation Expert Aff
Defendants made out prima facie entitlement to summary judgment on expert’s opinion that decubitus ulcers formed during extensive hospitalization were unavoidable due to plaintiff’s decedent’s medical condition and necessary life-saving procedures and plaintiff’s expert’s opinion failed to raise an issue of fact where expert failed to show familiarity with standards of care in geriatric medicine and wound care. Korszun v Winthrop Univ. Hosp.
|
Premises Liab Create Condition Notice Question of Fact
Plaintiff and his father’s testimony that they complained to apartment owner about window not closing properly, submitted on defendant’s motion, raised questions of fact on actual notice even if defendant established it did not create the dangerous condition. Caban v Kem Realty, LLC
|
Serious Injury ROM Causation Preexisting Expert Aff
Conflicting opinions of defendants’ own experts on whether shoulder injury was pre-existing and the existence of limited ROM required denial of summary judgment on serious injury for shoulder and plaintiff raised issue of fact in opposition by first orthopedic surgeon’s affirmation addressing degenerative changes based on review of MRIs, examination, and visualization during surgery and limitations after surgery. Defendants met burden of showing normal ROM for lumbar injuries and plaintiff’s experts did not address the lumbar injuries. Curet v Kuhlor
|
Negligent Supervision Premises Liab Consolidation
There were insufficient common questions of law and fact between assaults due to negligent supervision claim and later injury from defective door to warrant consolidation. Betancourt v City of New York
|
MVA Pedestrian Turning Vehicle Comparative Fault
Pedestrian’s affidavit that she was crossing in crosswalk with walk sign and looked both ways before crossing when defendant struck her while making a left turn established entitlement to summary judgment for defendant’s failure to yield right of way and that there was no comparative fault. Wray v Galella
|
MVA Emergency Doctrine Causation
Tow truck that stopped in front of disabled vehicle on highway did not violate VTL where it was responding to an emergency situation and plaintiff’s own testimony that he swerved from middle to right lane to avoid hitting disabled truck, striking a vehicle in the right lane and the corner of the disabled truck without ever seeing the stopped tow truck established that the tow truck could not be a proximate cause of the accident. Carr v Cali
|
Premises Liab Slip/Trip Wet Floor Duty Notice
Defendants granted summary judgment where plaintiff slipped on small spot of water in building lobby during ongoing rainstorm on proof that defendants placed sufficient mats and they did not have a duty to provide a constant remedy for water tracked in during rainstorm. Plaintiff’s testimony that she did not see water before fall established lack of constructive notice. Polanco v Newmark & Co. Real Estate, Inc.
|
Pothole Law Prior Written Notice Big Apple Pothole Notice NYC
NYC granted summary judgment on proof it had no prior written notice of hole or ditch or ice accumulation in the hole or ditch. Neither actual nor constructive notice can substitute for prior written notice standard under pothole law and Big Apple Pothole map showing extended raised or uneven sidewalk did not show a hole or ditch. De Zapata v City of New York
|
Premises Liab Slip/Trip Create Condition Notice Last Inspection Speculation
Restaurant manager’s testimony that he received no complaints of slippery substances on floor where plaintiff fell and saw none when he inspected floor in the morning and again 10-minutes before plaintiff’s fall, and fact that neither plaintiff nor defendant’s employees saw any slippery substance before the fall established defendants did not create a dangerous condition or have notice of one in sufficient time to correct it. Plaintiff’s claim that water/vinegar solution used to clean floor at night may have caused the fall was speculative. Valenta v Spring St. Natural
|
Premises Liab Duty Create Condition
Water company granted summary judgment of plaintiff’s claim that he fell from his bicycle when wheel got caught in pothole around water valve owned by defendant on proof that water company did not own the road, create or contribute to the condition, or make special use of the road establishing it had no duty to the plaintiff. Flom v United Water N.Y., Inc.
|
Premises Liab Slip/Trip Snow/Ice Foreseeability
Defendants’ motion for summary judgment denied where they failed to show it was unforeseeable that airport worker would leave vehicle to go to another vehicle in “safety area” where he fell on ice and whether 2-hour delay after snowfall was reasonable under the circumstances. Castillo-Moran v Port Auth. of N.Y. & N.J.
|
Premises Liab Slip/Trip Sidewalk Snow/Ice Storm in Progress Speculation
NYCTA and adjoining landowner granted summary judgment were plaintiff slipped on ice a few steps after leaving stairs from train station on plaintiff’s 50-H and EBT testimony and climatological data showing storm in progress at time of the accident. Plaintiff’s argument that she fell on ice that existed before storm was speculative and unsupported by any proof. Allen v New York City Tr. Auth.
|
Assault False Arrest 1983 Action Emotional Harm NYC
Plaintiff’s claims of false arrest, imprisonment, assault, excessive force, and violation of constitutional rights dismissed where plaintiff fled undercover police officer trying to enter building for patrol of potential drug dealers, climbed to the roof, crossed several roofs, and claimed he hung from rain gutter for 15-20 minutes before falling while officer watched him and didn’t help. Negligence claims dismissed where officer was performing governmental function and there was no special duty to come to plaintiff’s rescue and the officer’s unsuccessful attempt to grab plaintiff’s wrist before he fled up the stairs was not an arrest or imprisonment. Emotional harm not available against NYC, and plaintiff’s claim that officer watched him and refused to help for 15-20 minutes was incredible as a matter of law where in his position he would not have been able to see the officer. Price v City of New York
|
Assault Set Aside Verdict NYC
Verdict finding police officer did not use excessive force when he reached in plaintiff’s car to switch transmission into park after plaintiff drove away from officer when stopped for traffic violation was not utterly irrational and could be reached on a valid line of reasoning nor did evidence weigh so heavily in favor of plaintiff that jury could not have interpreted the evidence fairly. Plaintiff failed to prove claim that officer’s testimony was incredible as a matter of law because it was contrary to “recognized realities.” Ahmad v City of New York
|
Vacate Default Meritorious Defense Appealable Order
Defendant’s appeal from order granting default dismissed as order entered on default is not appealable. While defendant’s affidavit showed it did not receive Summons/Complaint served on Secretary of State within time to defend under CPLR 317, conclusory and hearsay assertions were insufficient to establish a potentially meritorious defense required under that statute which also precluded vacating the default under CPLR §5015(a)(1). Wise v Classon Vil., L.P.
|
Med Mal Motion to Dismiss CPLR § 3126 Preclusion
Lower court providently exercised discretion in resolving defendant’s motion to dismiss with grant of conditional order of preclusion instead of dismissing case. Rachimi v Sacher
|
MVA Comparative Fault
Order denying plaintiff summary judgment where defendant’s vehicle leaving parking space ran over plaintiff’s foot because plaintiff failed to prove freedom from comparative fault reversed as it is no longer necessary to show freedom from comparative fault for partial summary judgment. Heard v Schade
|
Motion to Dismiss Notice of Claim Emotional Harm
Plaintiff’s failure to list emotional and psychological harm in her Notice of Claim required dismissal of the complaint where it was her only claim. Vila v NYC Hous. Auth.
|
