June 7, 2016 | Vol. 5

MUST READS
(4 summaries)

Directed Verdict   Opening   Motion in Limine   Notice of Claim  

First

Defendant submitted motions in limine seeking to preclude five of eight causes of action and for a directed verdict on opening statements. The trial court gave the plaintiff to the next day to submit written opposition after which opening statements were made and the court granted the motion for directed verdict on opening. The Appellate Division upheld the directed verdict on opening as to the negligence and negligent battery claims because they were fatally inconsistent with the claim that the defendant police officer used excessive force in handcuffing the plaintiff. The opening, however, made no factual admissions there were fatal to their intentional battery claim. To the extent that defendants trial day motions in limine sought to dismiss claims pursuant to CPLR § 3211(a)(1) based on inadequacy of the notice of claim, the motion did not provide plaintiff with notice or a fair opportunity to respond. The notice of claim gave sufficient notice of the time, place and nature of the intentional battery even though it did not use the word intentional or give the specific legal theory. It did not, however, give adequate notice of claims for false imprisonment, negligent hiring, retention and training, and intentional infliction of emotional distress which were deemed abandoned. Vaynshelbaum v City of New York

Comment: Motions for directed verdict on opening are more common in criminal cases than in civil cases but as this case shows, there is still room for them in civil cases with mutually exclusive theories. This is a good case to keep in your trial bag to stop motions in limine being used to dismiss causes of action or defenses.


Labor Law §240   Labor Law §241   Set Aside Verdict   1-2 Family Exception  

First

The appellate court reversed the lower court’s denial of defendant’s motion to set aside verdict and direct verdict in favor of defendant where plaintiff’s decedent fell from the roof of the defendant’s house while working on the roof and died. Determination of whether house fits within one or two family exception hinges upon “site and purpose” test based on the homeowner’s intentions at the time of injury. House was a two-family residential home with a basement apartment were a family friend lived and three upper floors which defendant shared with an adult child and two grandchildren. Defendants did not receive any rent. While there were three families in the home, two of which were related, this was insufficient to raise and question of fact as to whether it was a three family home. Plaintiff failed to show that the top floor which he claimed was an apartment contained anything other than two bedrooms occupied by defendant’s grandchildren. Del Carnen Diaz v Bocheciamp


Legal Mal   Feigned Issue   Continuous Representation  

Court of Appeals

The Court of Appeals modified the Appellate Division’s order denying latest motion for summary judgment and reinstating defendant’s affirmative defenses of statute of limitations and comparative negligence, finding that the attorney’s affidavit did not “flatly contradict” his prior deposition testimony and should have been considered. Plaintiff failed to meet its burden of showing that the statute of limitation defense failed as a matter of law. Triable issues of fact as to continuous representation in light of a significant gap between the alleged malpractice and later communication, changed nature of the alleged legal representation, absence of any clear delineation of the period of representation and defendant’s affidavits disclaiming any mutual understanding of legal representation after 2005. Red Zone LLC v. Cadwalader, Wickersham & Taft


Severance   Damage Trial   Labor Law §240  

First

Court properly granted severance of damage claims after summary judgment was granted under labor Law § 240(1) on the ground that plaintiffs would be unduly prejudiced by consolidated damage trials from potential juror confusion or comparison of their claims. Toscani v One Bryant Park, LLC

NOTEWORTHY
(31 summaries)

Late Notice of Claim   Leave of Court  

First

Lower court erred in denying plaintiff’s motion to deem a late filed notice of claim timely filed nunc pro tunc. The lack of a reasonable excuse for the delay or nexus between the delay and plaintiff’s infancy is not fatal to the motion. Defendants received actual knowledge of the essential facts constituting the negligent supervision claim within 90 days or a reasonable time thereafter based on an occurrence report created within five days of the infant incident and plaintiff’s testimony at a 50H hearing that she and the mother spoke with the principal about the incident one day before the occurrence report. Defendants failed to show that they would be substantially prejudiced by the delay. Defendant did not show that any necessary witness is unavailable because of the delay or that they are unable to obtain information from the New York City investigation. Hosking v City of New York

Comment: While it often seems like a crapshoot over whether the court will grant leave to file a late notice of claim, by far the most important element to show, as was done in this case, is that the municipality received notice of the essential facts within 90 days or a reasonable time thereafter.


Raised For First Time   MTA Bus Co   Notice of Claim   Reply  

Second Deptartment

Lower court properly denied dismissal of claim against MTA bus company under public authorities Law § 1276(2) which does not apply to MTA bus company. Court properly declined to consider argument regarding public authorities Law § 1276(1) which was raised for the first time in reply papers. New York City transit Authority should have been granted dismissal because the undisputed evidence showed they did not own or operate the bus involved in the accident. Frost v New York City Tr. Auth.


Ladder   Slippery   Unknown Cause   CPLR § 3126  

Second Deptartment

Defendant made out a prima facie case for summary judgment on the grounds that the plaintiff did not know what caused him to fall. Lower court properly denied summary judgment, however, based on testimony of a nonparty witness who raised a triable issue of whether the alleged slimy substance caused the ladder to move and the plaintiff to fall. Defendant’s separate motion to dismiss the complaint for failure to comply with court ordered discovery was properly denied as plaintiff’s actions were not willful and contumacious. Giordano v Giordano


Med Mal   Vicarious Liab  

First

Nyack hospital entitled to summary judgment where it established that codefendant doctors were not hospital employees or contractors for whom they may be liable. Plaintiff’s claim that nursing staff failed to timely notify the physician of a change in decedent’s condition on a particular date was belied by the fact that the nurse’s note was entered before the codefendant doctors note after he saw her. McDowell v TatarMcDowell v Tatar


Additional EBT   Designated Witness   Discovery  

Second Deptartment

Plaintiff failed to show that the witness produced for deposition by the City had insufficient knowledge or was otherwise inadequate or that there was substantial likelihood that the witness sought by the plaintiff for an additional deposition had information which was material and necessary for prosecution. Motion denied. Walker v City of New York


Med Mal   Wrongful Death   Informed Consent   Expert Aff   Conclusory  

Second Deptartment

Lower court denied summary judgment for defendant finding their expert affidavit conclusory and unsupported by the record. The Appellate Division reversed finding that defendant’s met their initial burden through their expert’s affidavit which addressed each specific departure alleged in the complaint and bill of particulars showing that there was no departure and no causation. The court found that the plaintiff’s expert’s affidavit was conclusory and unsupported by the record. Appellate Division also found for the defendant on informed consent based on a signed consent form for the aortic valve replacement surgery which stated that the patient had been informed about the procedure, alternatives, reasonably foreseeable risks and benefits. Schuck v Stony Brook Surgical Assoc.


Med Mal   Wrongful Death   Psychiatrist   Social Worker   Suicide   Expert Aff  

Second Deptartment

Plaintiff’s decedent was seen by his social worker at a clinic, expressing increasing ideations of suicide with specific plans to hang or shoot himself. After consultation with a psychiatrist at the clinic, the social worker called 911 to have police the patient to the hospital with written notes and prescription. No one from the clinic called the hospital to alert them that they were sending a potentially suicidal patient and the psychiatrist at the hospital was not given any paperwork. Upon hospital psychiatrist’s evaluation the plaintiff’s decedent did not exhibit any plans for suicide and he was discharged and committed suicide two days later. The clinic social worker and clinic move for summary judgment upon a social worker expert’s affidavit claiming that there was no departure from good and accepted social worker care and that there was no requirement that the social worker contact the hospital to alert them of the transfer or to follow up the day after the transfer. The clinic psychiatrist, however, testified that the social worker was the one to call the hospital to alert them. Given the conflicting testimony, there were triable issues of fact and summary judgment was properly denied. Johnson v Nassau Univ. Med. Ctr.

Comment: Grant of summary judgment in favor of the clinic psychiatrist was also reversed by the appellate court based on the plaintiff’s expert’s affirmation. Johnson v Nassau Univ. Med. Ctr.


Stairs   Handrail   Open/Obvious   Inherently Dangerous  

Second Deptartment

Defendant relied upon plaintiff’s testimony seeking summary judgment on its claim that the stairway leading to the basement in the plaintiff’s apartment building was open and obvious and not inherently dangerous. Plaintiff’s testimony, however, was that the stairs were so narrow that her feet could not fit on them and that she had to turn her feet sideways while walking downstairs. On the day of the accident she did not turn her feet sideways and her sneaker got court on a stair. When she began to fall, she reached for handrail but was unable to grab it because it was “squeezed” against the wall. The evidence submitted by the defendant failed to make out there prima facie case. Rigatti v Geba


Slip/Trip   Wet Floor   Rain  

First

Defendant entitled to summary judgment when plaintiff slipped and fell on terra-cotta tiled upper landing of a four step stairway which were wet from light rain. Wetness on a walking surface due to rain is not a dangerous condition. Plaintiff’s expert failed to raise triable issue of fact as to whether the tiles were interior tiles improperly used for outdoor services and there could be no claim of lack of handrail where the plaintiff testified that he never tried to hold on to anything because it happened too quickly. Greco v Pisaniello


Health Whistleblower   Nonjury Trial  

Second Deptartment

Award of $455,502.35 was upheld after nonjury trial for retaliation for complaints made by plaintiff profusionist who was required to implement rapid infusion which required him to administered medications which were beyond the scope of his license and training in violation of 8 NYCRR § 29.1(b)(10). Award included lost wages and attorney fees. Court properly found that reinstatement was not an option because the plaintiff is not currently certified and it would take a year for him to become recertified. Galbraith v Westchester County Health Care Corp.


Labor Law §240   Raised For First Time   Scaffold  

Second Deptartment

Plaintiff should have been granted summary judgment under labor law § 240(1) upon showing that he fell from scaffold after siding he was applying to a roof touched an overhead power line causing him to fall and there were no safety rails. Question of fact existed on labor Law § 240(2) of whether scaffold was more than 20’ from ground. Plaintiff raised industrial code provisions for labor law § 241(6) for first time on appeal and they were not considered. Plaintiff did not move for summary judgment under labor Law § 200. Defendant failed to raise a question of fact on labor law works § 240(1). Viera v WFJ Realty Corp.


Sole Cause   Pedestrian   Late Filing  

Second Deptartment

Defendant’s evidence showing that infant plaintiff was between parked cars facing the sidewalk when his little brother pushed him causing him to take several steps backward into the rear of a minivan established that the infant plaintiff was the sole proximate cause of the accident. Lower court’s finding that motion was untimely was unfounded. Absent a shorter time in a preliminary conference order or part rules, a party has 120 days to file a motion for summary judgment after note of issue. CPLR §3212(a). Boereau v Scott


Assumption of Risk   Weightlifting  

First

Equinox was entitled to summary judgment by showing that the plaintiff was an experienced weightlifter who understood the techniques involved and risks of the sport from publications and personal training sessions, including the 230 to 240 lbs of weight set by the personal trainer for a single benchpress and had done reps of benchpresses of 220 pounds early in the same training system and had lifted more weight in the past. Voluntary assumption of risk. Butt v Equinox 63rd St., Inc.


Battery   Assumption of Risk   Reckless   Intentional   Kickball  

Second Deptartment

Defendant was not entitled to summary judgment on the battery claim because she failed to eliminate questions of fact regarding bodily contact between the infant plaintiff and infant defendant. Question of fact existed whether the infant defendant intentionally pushed the infant plaintiff to the ground during a game of kickball. Reckless or intentional conduct during a sporting event is not part of the risks assumed by to participation. Dimisa v Oceanside Union Free Sch. Dist.


Negligent Supervision   School Playground   Slide  

Second Deptartment

Seven-year-old student hurried on to slide on her knees to avoid being tagged by a friend and fell off when she tried to straighten out her legs as she came down the slide. She had been repeatedly instructed regarding the rules of the playground and use of the slide including riders were only allowed to go down the slide on their bottoms. She had previously been observed using the slide improperly and made to sit by the playground gate with other students who failed to follow the playground rules. Schools are not insurers of safety. They must adequately supervise students for foreseeable injuries related to a lack of adequate supervision. Defendant’s proof that there were 2 school monitors for group of 40 to 42 children showed adequate supervision and plaintiff’s argument that the infant should have received individualized supervision or barred from the slide was unpersuasive. All that showed was that the accident could not reasonably have been prevented by more intense supervision. Simonides v Eastchester Union Free Sch. Dist.


Open/Obvious   Inherently Dangerous   Stairs   Optical Confusion  

Second Deptartment

Defendant failed to meet its initial burden of showing that the single step riser where plaintiff fell was open and obvious and not inherently dangerous. Specifically, defendant’s submissions established that the plaintiff was unfamiliar with the premises and an issue existed of whether the plaintiff could reasonably perceive a change in elevation between the single step riser and the platform or whether the area created optical confusion. Matheis v Hunt Country Furniture, Inc.


Sudden Jerk   Unusual/Violent   Access-a-Ride  

First

Disabled woman in wheelchair was placed in an access-a-ride van by a driver who was the only one responsible for securing her wheelchair. Driver went over bump which caused plaintiff’s health aide to lift off her seat, another passage to fall from her seat and lifted the plaintiff off her seat causing her injuries. Plaintiff refused to use the seatbelt. Home health aide was properly granted summary judgment since she had no authority to restrain the patient without her consent. Driver was properly denied summary judgment since there was an issue of fact as to whether the movement of the van was “unusual and violent” rather than part of the normal jerks and jolts of city bus travel. Branda v MV Pub. Transp., Inc.


Independant Contractor   Inflatable Rides   Indemnity  

Second Deptartment

Five plaintiffs injured when inflatable rides at a soccer club event went airborne and hit them sued the school district, the soccer club and the inflatable ride company in separate suits which were consolidated. Motions for summary judgment by the school district and soccer club on plaintiff’s claims and cross-claims for identity indemnity were denied by the lower court and reversed by the Appellate Division. Employer of Independent contractor may not be held liable for the independent contractor’s negligent acts unless it has a nondelegable duty to keep the premises safe. The soccer club, as licensee, did not have a nondelegable duty. The school district showed that it did not create the dangerous condition or have actual or constructive notice of it and plaintiff failed to raise a question of fact in opposition. Contractual indemnity claim by ride company against soccer club was dismissed as the contract did not show a clear intent for the soccer club to assume liability for the negligent acts of the ride company. Stanton v Oceanside Union Free Sch. Dist.


Crosswalk   Pedestrian   Turning Vehicle   Admission   Feigned Issue  

Second Deptartment

Plaintiff was entitled to summary judgment upon showing by her affidavit and defendant’s admission in an uncertified police report that she did not see the plaintiff crossing the street as she made the turn. Plaintiff established that the defendant was the sole proximate cause of the accident and that she was free from comparative fault. Defendant’s affidavit contradicted her prior admission and was deemed a feigned attempt to defeat summary judgment. Lesaldo v Dabas


School Bus   Violent Propensity   Assault   Foreseeability  

First

Summary judgment appropriate in school bus assault where there was no evidence to suggest that the defendant had prior knowledge of any propensity or inclination of violence of the assaulting child. Assault could not have been anticipated or foreseeable. I.R. v Leake & Watts Servs., Inc.


U-Turn   Passenger   Last Clear Chance   Cell Phone  

Second Deptartment

The Appellate Division reversed the lower court’s grant of summary judgment for defendant who was driving in the opposite direction of the car in which plaintiff was a passenger. The car plaintiff was in tried to make a U-turn and was hit by the other car. While a driver can anticipate that others will obey the traffic laws, he still has a duty to avoid colliding with other vehicles. Questions of fact as to whether moving defendant could have taken actions to avoid the accident and whether he was using his cell phone remained precluding summary judgment. Twizer v Lavi


Legal Mal   Strategy  

First

Legal malpractice case against lawyer in divorce action based on claims that attorney did not put forth expert opinions to rebut a court property evaluation, submit additional evidence, move to reconsider, and appeal, properly dismissed. The attorney’s decisions regarding evidence were strategic and reasonable and plaintiff failed to adequately plead or show that a different result would have resulted from any of the actions claimed. Sitomer v Goldweber Epstein, LLP


Hippa   Discovery  

First

By suing defendant for alleged negligence in violation of privacy and confidentiality rights in regard to an involuntary admission to hospital emergency psychiatric ward, plaintiff waived the privilege as to her mental health records. Appellate Division modified the lower court order to require authorizations for four years instead of nine years of records. Jones v FEGS-WeCARE/Human Resources, NYC


Uninsured   Anti-Stacking   Occupying Vehicle   Priority Clause  

Second Deptartment

Petitioner was in his taxicab when he was struck in the rear by an unidentified vehicle. He got out of the car to look at the damage and was hit by the unidentified vehicle as it fled. He made a claim against his American Transit uninsured policy for the first accident and against Geico, insurer of his private vehicle, for the second accident claiming that he was not “occupying” the taxicab at the time of the second accident. Based on his testimony that he’d gotten out of the cab to assess damages and was going to return to the cab, the Appellate Division found that he was occupying the taxicab at the time of the second accident and the priority and anti-stacking provisions of the Geico policy applied. Remitted to the lower court to determine what the limits were of the American Transit policy which were not included in the record. Matter of Government Empls. Ins. Co. v Nakhla


Vacate Default   Reasonable Excuse  

First

Lower court correctly exercised its discretion in vacating a default judgment against architects alleged to have negligently designed a mansion in Southhampton where they relied upon ongoing settlement discussions and plaintiff never told them that they intended to seek a default judgment. Plaintiff could not show any prejudice from a relatively short delay. Defendants also showed a potentially meritorious defense. Gluck v McDonough


Municipal Duty   Ultrahazardous   Notice  

Second Deptartment

Appellate court granted summary judgment to municipality upon proof that playing baseball on a beach does not rise to the level of “ultrahazardous and criminal.” Municipal’s duty is to maintain beach in a reasonably safe condition and to prevent ultrahazardous and criminal activity of which it has knowledge. Foreman v Town of Oyster Bay


Discovery   Hippa   Prior Accidents  

Second Deptartment

Lower court properly exercised its discretion in finding that defendant had unusual and unanticipated circumstances warranting limited discovery of HIPAA authorizations for an accident eight years prior especially in light of the substantial prejudice to defendant without the records. Morales v Sid Farber Enters., LLC


Summary Jury Trial   Mistrial   Set Aside Verdict  

First

Motion for a mistrial made after verdict in summary jury trial was deemed a motion to set aside the verdict as against the weight of the evidence which was denied by the lower court. The summary jury trials prohibit appeals and, therefore, the appeal was dismissed. Rodriguez v Baranek


Fraud   Pleading Specificity  

First

Plaintiff’s fraud claims were dismissed for not pleading with the requisite particularity under CPLR § 3016 (B). Allegations did not establish justifiable reliance because plaintiff was a sophisticated investor, nor the requisite scienter. MP Cool Invs. Ltd. v Forkosh


Vacate Arb   No-Fault  

First

Appellate court reversed the lower court’s denial of the motion to vacate a master arbitrator’s award finding that it was arbitrary because it irrationally ignored law which the carrier had presented showing that the no-fault policy was void ab initio because respondent’s assignor failed to attend a scheduled IME. Respondent waived objections regarding improper service by not moving to dismiss the petition on those grounds. Matter of Global Liberty Ins. Co. v Professional Chiropractic Care, P.C.


CPLR Art. 75   Stay Arb   Uninsured  

Second Deptartment

Respondent, insured under supplemental uninsured policy, raised a question of fact as to whether offending vehicle was covered under the policy. Lower court should have granted only a temporary stay until a hearing could be conducted to determine the issue. Matter of Allstate Ins. Co. v Martinez

IF YOU MUST READ
(7 summaries)

Med Mal   Accepted Practice   Causation  

Second Deptartment

Defendant made out its prima facie entitlement to summary judgment in this medical malpractice, wrongful death suit for treatment after an assault by showing that there was no from departure good and accepted medical practice and even if there was, it was not a proximate cause of the decedent’s injuries. Plaintiff failed to raise a triable issue of fact. The court does not give the details of the proofs provided. Wong v New York City Health & Hosps. Corp.


Med Mal   Wrongful Death   Vacate Default   Reargument   Appealable Order  

Second Deptartment

Lower court properly treated motion as one to reargue since it requested the same relief as prior motion to vacate judgment for default in appearing at a court ordered conference which had been previously denied in action for medical malpractice and wrongful death. Denial of a motion for reargument is not appealable. Plaintiff appeared prose. Einheber v Sagalovich


Serious Injury  

Second Deptartment

The Appellate Division reversed the lower court’s grant of summary judgment to defendant finding that defendant failed to meet its initial burden by not adequately addressing plaintiffs claim of 90/180 days in the bill of particulars. It was unnecessary to determine if plaintiff’s opposition was sufficient to raise a triable issue of fact. Parker v MTA Bus Co.


Serious Injury  

Second Deptartment

Appellate court found that defendant failed to meet its initial burden by failing to adequately address the 90/180 day category in the bill of particulars. Summary judgment reversed. DiDomenico v Kocur


Serious Injury  

Second Deptartment

Defendant met its initial burden for summary judgment by competent medical evidence showing that lumbar spine injury did not meet threshold. Plaintiff, however, raise triable issue as to whether her injuries met the permanent consequential and significant limitation thresholds. The court did not give any details in the decision as to the medical proofs. Mason v St. Denis


Serious Injury   Causation  

Second Deptartment

Appellate court reversed the lower court’s grant of summary judgment to defendant and third-party defendant finding that the plaintiff’s opposition raised triable issues of fact on both permanent consequential and significant limitation of the cervical and lumbar spine and causation of those injuries. The court does not give any details medical proof’s in the decision. Ricks v Fisher


Conspiracy   Tortious Interference   Misrepresentation  

First

There is no civil cause of action for tortiously conspiring. Plaintiff could pursue tortious interference with contracts but complaint failed to state a cause of action for fraudulent misrepresentation because it failed to allege specific detrimental reliance by plaintiff on the alleged misrepresentation. Capin & Assoc., Inc. v 599 W. 188th St. Inc.

About Matt McMahon

Civil trials and appeals since 1984
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