Late Notice of Claim Leave of Court
 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
 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.
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Ladder Slippery Unknown Cause CPLR § 3126
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
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Med Mal Vicarious Liab
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
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Additional EBT Designated Witness Discovery
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
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Med Mal Wrongful Death Informed Consent Expert Aff Conclusory
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.
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Med Mal Wrongful Death Psychiatrist Social Worker Suicide Expert Aff
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
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
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Slip/Trip Wet Floor Rain
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
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Health Whistleblower Nonjury Trial
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.
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Labor Law §240 Raised For First Time Scaffold
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.
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Sole Cause Pedestrian Late Filing
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
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Assumption of Risk Weightlifting
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.
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Battery Assumption of Risk Reckless Intentional Kickball
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.
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Negligent Supervision School Playground Slide
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.
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Open/Obvious Inherently Dangerous Stairs Optical Confusion
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.
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Sudden Jerk Unusual/Violent Access-a-Ride
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.
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Independant Contractor Inflatable Rides Indemnity
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.
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Crosswalk Pedestrian Turning Vehicle Admission Feigned Issue
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
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School Bus Violent Propensity Assault Foreseeability
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.
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U-Turn Passenger Last Clear Chance Cell Phone
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
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Legal Mal Strategy
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
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Hippa Discovery
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
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Uninsured Anti-Stacking Occupying Vehicle Priority Clause
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
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Vacate Default Reasonable Excuse
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
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Municipal Duty Ultrahazardous Notice
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
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Discovery Hippa Prior Accidents
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
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Summary Jury Trial Mistrial Set Aside Verdict
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
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Fraud Pleading Specificity
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
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Vacate Arb No-Fault
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.
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CPLR Art. 75 Stay Arb Uninsured
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
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