June 6, 2017 | Vol. 57

MUST READS
(7 summaries)
NOTEWORTHY IF YOU MUST READ

Discovery   Outrageous Conduct   Emotional Harm  

Second Deptartment

Petition to obtain pre-action discovery of the names of individuals who provided schools with photographs of the infant petitioner’s partially naked body and identified the photograph as pertaining to her, causing her to have to withdraw from 1 high school under threat of expulsion, granted where the request stated sufficient facts to show that a cause of action could exist against the individuals whose identities were sought. Where the facts alleged state a viable cause of action, protection of the individual’s affairs is no longer the primary concern. Petitioner’s request was limited to the identity of individuals necessary to frame a complaint. Matter of Leff v Our Lady of Mercy Academy


Late Notice of Claim   Notice of Claim   Wrongful Death   Actual Knowledge   Prejudice   Reasonable Excuse   Renew  

Second Deptartment

Petitioner’s motion to renew should have been granted based on a letter from the County attaching work order summary reports after the petition had been denied. On a wrongful death claim it must be shown that the municipality had actual knowledge of the essential facts within 90 days of the appointment of the administrator. The County acquired notice of the essential elements of the case prior to the appointment of the administrator where it conducted an investigation, photographed the roadway, took a statement from the driver of the dump truck that plaintiff’s decedent fell from after hitting a roadway bump, and prepared a case report that detailed the nature of the incident and the alleged cause of the accident. In addition, the County’s road maintenance department repaired pot holes on the road where the accident occurred, and completed resurfacing the road just after the representative was appointed. The County failed to show any specifics sufficient to infer prejudice by the delay in seeking leave. The motion to renew, and the petition to serve the Notice of Claim regarding the village and town were properly denied as they did not acquire actual knowledge within 90 days or a reasonable time thereafter. Matter of Kerner v County of Nassau


Premises Liab   Assault  

Second Deptartment

Homeowners, whose 16-year-old son threw a party, granted summary judgment where a party guest assaulted the plaintiff who was seated in his car outside of the defendant’s residence. A host can only be liable under common law for injuries on the host’s property or a location controlled by the host where they had the opportunity to control the guest and knowledge of the need to do so. Homeowners also granted summary judgment on Gen. Obl. L §11-100 on their testimony that they did not serve minors alcohol or help the minors procure alcohol. Salgado v Paccio


Default Judgment   Compel Acceptance   Reasonable Excuse   Meritorious Action  

Second Deptartment

Plaintiff’s motion for default judgment and inquest should have been granted, and defendant’s cross motion to compel acceptance of its answer denied, where affidavit of defendant’s claims representative stated that they had retained an attorney to represent defendant after the plaintiff had moved for default judgment which did not provide a reasonable excuse for the delay. Absent reasonable excuse, the court did not look at defendant’s claim of meritorious action. Defendant served an Amended Answer to include the defaulting defendant after plaintiff brought the motion for default judgment and plaintiff justifiably rejected the Amended Answer. Medas v Rochpark Realty, LLC


Premises Liab   Sidewalk   § 7-210  

Second Deptartment

Homeowner who also owned unimproved lot adjacent to her home granted summary judgment based on the homeowner exception of administrative code §7-210 where the plaintiff slipped and fell on the sidewalk in front of the unimproved lot. §7-210 is more concerned with ownership and use of the property than the technical designation. For all practical purposes, the unimproved lot was used as a lawn by the defendant and entitled to the homeowner exception. Johnson v Manley


Ins. L. § 3420(a)(2)   Default Judgment   Compel Acceptance   Meritorious Action  

Second Deptartment

Lower court should have granted plaintiff’s motion under Ins. L. 3420 to enforce a money judgment in an underlying MVA case where carrier defaulted in answering complaint and motion for default as the carrier failed to offer a reasonable excuse for the default. Affidavit from paralegal manager that claim was assigned to the New York office and was not responded to due to “clerical error” was conclusory and not substantiated by explanation or evidence. Plaintiff’s attorney’s affirmation regarding the merits of the insurance law §3420 action was sufficient as he had personal knowledge of the judgment, service of the summons and complaint, default, and service of the motion. Clarke v Liberty Mut. Fire Ins. Co.


Premises Liab   Sidewalk   Prior Written Notice   Pothole Law   NYC  

First

Complaint dismissed where plaintiff failed to show that NYC had prior written notice of the 2” signpost sticking up from the sidewalk near where she exited a bus, the city produced evidence that the sign was in good repair 2 years before the accident, the only complaint they received was a 311 call within the 15 day grace period under administrative code §7-201, and that they repaired it within the grace period, but after the accident. The court did not rule on whether the 311 call could suffice for prior written notice under the statute. Brown v City of New York

NOTEWORTHY
(26 summaries)
MUST READS IF YOU MUST READ

MVA   Punitive Damages   Negligent Hiring   Respondeat Superior   Motion to Dismiss  

Second Deptartment

Defendant’s motion to dismiss plaintiff’s claims of punitive damages and negligent hiring denied. Complaint alleged sufficient facts to warrant punitive damages and while a negligent hiring claim cannot normally stand where the defendant has conceded that respondeat superior applies, it can be pursued under allegations of gross negligence in hiring, retention, and supervision. Gipe v DBT Xpress, LLC


Notice of Claim   Create Condition   Statute of Limitations  

First

Motion to amend Notice of Claim after expiration of statute of limitations to add theory that NYC created the defect which caused the plaintiff to fall denied as an amendment is not allowed to add a new theory and the original Notice of Claim alleging a failure to repair the sidewalk did not give actual knowledge of the new theory. Aleksandrova v City of New York


Premises Liab   Building Code   Set Aside Verdict  

Second Deptartment

Trial court providently exercised its discretion in precluding the plaintiff’s engineer from testifying regarding building codes because there was no proof as to when the building and interior stairs within the apartment was built or modified. Trial court allowed the engineer to testify that the stairs were not safe, but jury returned a verdict in favor of the defendant which was upheld. Williams v Perez


Labor Law §240   Labor Law §241   Labor Law §200   Industrial Code  

Second Deptartment

Summary judgment on Labor Law §240(1) claim granted against tile worker who slipped on rosin paper covering pool steps he was working on as the accident was not caused by the direct application of gravity. Labor Law §241(6) claim based on industrial code §23-1.7(d) (slipping hazards) dismissed as the rosin paper was an integral part of the work being performed by the plaintiff, and Labor Law §200 and common law negligence claims dismissed on plaintiff’s deposition testimony showing that the defendants lacked control over the injury producing work. Lopez v Edge 11211, LLC


Late Notice of Claim   Med Mal   Informed Consent   Statute of Limitations  

Second Deptartment

Court of Claims erred in denying that portion of petition which sought leave to serve a late Notice of Claim for medical malpractice claim, after granting leave to serve late Notice of Claim for wrongful death and negligence claims, where plaintiff’s decedent slipped at defendant Hospital sustaining a head injury which led to his death. The statute of limitations was tolled while plaintiff was unconscious from the time of his fall until his death and was still viable when the original petition was commenced. It was also tolled during the pendency of the petition and still viable when plaintiff made its motion to renew. Petition on informed consent properly denied as the doctor’s affirmation submitted in support did not address that issue. Kealos v State of New York


Med Mal   Expert Aff   Accepted Practice   Causation  

Second Deptartment

Defendant made out prima facie entitlement to summary judgment on his expert’s affirmation showing that he did not depart from accepted practice by instructing the plaintiff who had significant cardiac history, including bypass and stents, to stop aspirin for a few days before a colonoscopy, and that defendant’s instructions were not a proximate cause of the plaintiff’s heart attack where he was found to have 100% occlusion of the stent. Plaintiff failed to raise a question of fact by submitting an illegibly signed and redacted affidavit and failed to explain why the expert’s name was hidden and failed to submit an in camera copy of the unredacted affidavit. Colletti v Deutsch


Med Mal   Expert Aff   Accepted Practice   Causation  

Second Deptartment

Plaintiff raised triable issues of fact in opposition to hospital’s motion for summary judgment by his expert’s opinion that the nonparty doctor employed by the hospital departed from accepted practice by discharging the plaintiff who had elevated troponin levels, among other factors, who should have been referred for cardiac catheterization and that such failure was the proximate cause of the injuries. Vidito v Hugelmeyer


MVA   Bus   Respondeat Superior  

Second Deptartment

MTA and NYCTA granted summary judgment on proof that they did not own the bus where plaintiff was thrown to the ground as it violently left a bus stop. Bus was owned by MTA Bus Company, a subsidiary of MTA, and MTA is not vicariously responsible for its subsidiary or their drivers. MTA Bus Company was not named in the suit but the bus driver was. Brunson v City of New York


Labor Law §240   Ladder   Indemnity  

First

Plaintiff granted summary judgment on Labor Law §240(1) claim where the ladder he was climbing to take measurements in preparation for roof repairs broke causing him to fall. Work was covered under Labor Law. Building owner’s cross motion for summary judgment on common law indemnity against roofing contractor who subcontracted job to plaintiff’s employer denied where there was no proof that roofing contractor controlled or supervised the work. Ortiz-Cruz v Evers


Investigation   Ladder   Reargument  

Second Deptartment

Acknowledging that it had erred in denying defendant’s motion and plaintiff’s cross motion for summary judgment on the grounds that plaintiff and 1 defendant failed to attach copies of pleadings to the motion and that other defendant’s affirmation in support lacked a jurat, the lower court granted the motion to reargue and on reargument granted the plaintiff’s motion for summary judgment on his Labor Law §240(1) claim on plaintiff’s testimony that the unsecured ladder shifted as he climbed, causing him to fall, and denied defendants’ motions. Affirmed Alvarez v Vingsan L.P.


Premises Liab   Sidewalk   De Minimus   Speculation  

First

Defendant granted summary judgment on proof that height differential of alleged defect was less than ½” and there were no surrounding circumstances that made it more dangerous such as jagged edges, or rough or irregular surface. Plaintiff’s estimation that it was 2-4″ high was speculative without a measurement. McCullough v Riverbay Corp.


Premises Liab   Dangerous Condition   Create Condition   Notice   Last Inspection  

Second Deptartment

Premises owner, store owner, and supplier of cooking oil pallet that fell while being removed from an upper shelf with a forklift injuring plaintiff denied summary judgment for failure to show that they did not create or have notice of the condition. Questions of fact existed as to whether the building owner and store owner created a dangerous condition by removing the pallet during normal business hours without warning customers to stay clear. Oil supplier’s witness testified to general inspection rules but had no knowledge of the wrapping used or how this pallet was inspected. Taub v JMDH Real Estate of Garden City Warehouse, LLC


MVA   Emergency Doctrine  

Second Deptartment

Driver of oncoming car entitled to summary judgment where collision occurred between plaintiff and co-defendant in opposite lane propelling plaintiff into oncoming car driver’s lane. Emergency doctrine inapplicable since driver of oncoming car had only seconds to react and had the right-of-way. Victor v Daley


MVA   Causation  

Second Deptartment

Highway construction company granted summary judgment against plaintiff’s claim that closing off the left lane of the roadway was a cause of the rear end collision which caused his injuries where it was shown that all of the vehicles involved were driving in the right lane. The only conclusion could be that closing off the left lane was not a proximate cause of the accident. Faust v Gerde


Statute of Limitations   CPLR §205  

Second Deptartment

Plaintiff’s action commenced within 6 months of original action being dismissed for failure to prosecute, reciting specific grounds constituting a general pattern of delay, dismissed as barred by statute of limitations since the 6-month saving clause of CPLR 205 does not apply where the case was dismissed for failure to prosecute. Familio v Hersh


MVA   Rear End   Nonnegligent Explanation  

First

Plaintiff, who all parties testified was stopped when he was rear ended, granted summary judgment. Claim that plaintiff’s turn signal was not on was irrelevant and defendant failed to show that he maintained sufficient distance behind the plaintiff in order to stop. Chame v Kronen


Premises Liab   Sidewalk   § 7-210   Reargument  

Second Deptartment

Plaintiff’s motion to reargue defendant’s motion for summary judgment based on the homeowner exception of §7-210, originally granted by the lower court, should have been denied as there was no showing that the court misapprehended or overlooked any matter of fact or law. Bigun v Ahmed


Premises Liab   Duty  

Second Deptartment

Owners of 1 of 8 subdivided lots failed to meet their initial burden for summary judgment where they claimed that they did not own, manage, or control the lot containing the entrance to the parking lot but failed to submit a copy of the “Common Driveway Easement” referred to in the deed to its lot. Without the easement the court cannot determine what, if any, duty the moving defendants had in regards to the entranceway which crossed over the sidewalk where the plaintiff was injured. Turano v Two Hillside Ave. Realty Corp.


Premises Liab   Elevator   Motion to Dismiss   Untimely  

Second Deptartment

The lower court improperly found the defendant’s motion to dismiss or for summary judgment untimely where the stipulated deadline fell on a weekend and the motion was filed on the next Monday. Defendant’s motion to dismiss on documentary evidence denied as the elevator logs produced on the motion did not “utterly refute” the plaintiff’s allegations and summary judgment denied for failure to make a prima facie case that the elevator operated properly, was not defective, and that defendants lacked actual or constructive notice. Cavaliere v 1515 Broadway Fee Owner, LLC


Med Mal   Default Judgment  

First

After the Appellate Division had reversed the lower court’s decision dismissing the action for failure to timely substitute a representative for the deceased plaintiff, the plaintiff failed to appear for 2 conferences after which the action was dismissed under 22 NYCRR § 202.27(b) and affirmed by the Appellate Division. Wynter v Our Lady of Mercy Med. Ctr.

Comment: With a 1991 index number, this was a very old case.


Legal Mal   Accepted Practice   Causation   Intervening Cause  

Second Deptartment

Lawyer’s motion for summary judgment arguing that any lack of skill or knowledge commonly possessed by attorneys could not be the cause of plaintiff’s damages because a third person took advantage of defendant’s lack of skill and knowledge to cause the damage failed to make out a prima facie case on causation. Plaintiff’s cross motion for summary judgment denied for failing to show that defendant lacked the skill or knowledge commonly possessed by attorneys. Ragunandan v Donado


Legal Mal   Motion to Dismiss  

First

Law firm’s motion to dismiss on documentary evidence and failure to state of cause of action granted where proof showed that law firm filed motion in underlying personal injury action timely. Plaintiffs were pro se in the legal malpractice action. Oparaji v Yablon


Serious Injury   BP  

Second Deptartment

Defendant failed to meet its initial burden on serious injury where it’s expert did not address claims of TMJ in the BP or adequately address claims of 90/180 days in the BP. Bowen v Wilson


Serious Injury   Expert Aff   ROM   Conclusory  

Second Deptartment

Defendants failed to meet their initial burden on serious injury as their examining physician noted significant loss of ROM in the plaintiff’s shoulder and lumbar spine and failed to adequately explain his belief that the limitations were self-imposed. Protonentis v Battaglia


Untimely   Note of Issue  

First

Third-party defendant’s motion to dismiss third-party complaint properly denied as untimely where it was filed more than 120 days after Note of Issue. Rivera v Columbia Hicks Assoc., LLC


Malicious Prosecution   False Arrest   Motion to Dismiss  

Second Deptartment

Motion to dismiss with evidentiary materials submitted by both sides but not converted to motion for summary judgment addresses whether plaintiff has a viable cause of action not whether one was pled. There was sufficient support for plaintiff’s causes of action of malicious prosecution and false arrest where defendant allegedly induced the police to arrest the plaintiff based on false information. DeMarzo v DeMarzo

Comment: Companion decision. DeMarzo v DeMarzo

IF YOU MUST READ
(1 summaries)
MUST READS NOTEWORTHY

Legal Mal  

Second Deptartment

Complaint brought by corporation pro se dismissed as a corporation or LLC can only appear by an attorney, and claim by individual plaintiff against defendant law firm dismissed as there was no proof that the defendant law firm represented or was in privity with the plaintiff. DeMartino v Golden

About Matt McMahon

Civil trials and appeals since 1984

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