June 7, 2022 | Vol. 316

(8 summaries)

Products Liab   Design Defect   Warnings   Open/Obvious   Causation  

First Department
The First Department disagreed with the Second Department that its prior caselaw rejected design defect claims for lack of interlocks and declined to adopt the Second Department’s precedents that banned such claims in finding defendants failed to meet burden for summary judgment dismissing design defect claim where plaintiff’s thumb was severed when the hand-held router he was using kicked back after it hit a knot in wood flooring he was cutting as they only pointed to gaps in plaintiff’s proofs.

Defendants denied summary judgment of “generalized” failure-to-warn claim where plaintiff had knowledge of risks of cutting tools other than the router which he did not use before the day of the accident, and used once before on the day of the accident, leaving for the jury questions of whether plaintiff had sufficient knowledge of the specific hazards of the router to make warnings unnecessary and whether the dangers were open and obvious. Claim of inadequate warnings in the product manual dismissed as plaintiff never read the manual.

Trademark-licensor defendants granted summary judgment as they were not in the chain of manufacturing, selling, or distribution, plaintiff did not oppose the motion, and his attorney affirmed it was stipulated that Home Depot was the exclusive retailer of the router. Vasquez v Ridge Tool Pattern Co.    

MVA   Train   Notice of Claim  

Second Department
Motion by plaintiff, who slipped on platform and was struck by train, to amend his Notice of Claim to include allegations of failing to take emergency action when notified a person was on the tracks and negligently operating the train at a high rate of speed, brought 2-years after the original Notice of Claim, denied as a Notice of Claim can only be amended to correct mistakes, not to add new allegations. Plaintiff-rescuer in consolidated action who was also hit by train had alleged failure to take emergency action, speeding, and negligent operation of the train. Macareno v New York City Tr. Auth.    

Products Liab   Motion to Dismiss   Personal Juridiction  

First Department
Motion to dismiss for lack of personal jurisdiction by New Jersey manufacture of talcum powder plaintiffs claim caused her peritoneal mesothelioma denied on proof manufacturer had a New York office for marketing its product during 5 of the 33 years she used the powder, manufacturer derived substantial revenue nationally and internationally, and plaintiff used the product in NY on layovers as a flight attendant meeting the 2-prong test of CPLR §302(a)(1) that defendant transacted business within the state and plaintiffs’ claim arose from that transaction of business. The nexus test requires only a ‘relationship among the defendant, the forum and the litigation’ and not a strict causal relationship. By conducting business in NY, the defendant could foresee having to litigate here, meeting the constitutional due process test. Jurisdiction is based on the defendant’s contacts with NY and is not limited to the certificate of incorporation.

Appeal was timely considering COVID tolling provision and the defense was not waived where raised in manufacturer’s first responsive pleading. English v Avon Prods., Inc.    

MVA   Motion to Dismiss   Statute of Limitations   NYC  

First Department
Lower court improvidently made sua sponte determination that moving defendant was united in interest with 2-codefendants and ruled action timely under relation back doctrine even though no party argued they were united in interest as “[i]t was unfair to the litigants, who expected the court to decide on rationales they advanced, not on arguments that their adversaries never made and that might have been rebutted if raised before the court.” Appellate Court found separate LLC-defendant plaintiff claimed was united in interest with moving defendant, not united and granted that defendant dismissal where its managing member testified they were separate companies with different owners. Bertrand v TKO Transp. LLC    

Malpractice   Duty  

Second Department
Home health care agency met burden for summary judgment on certificate of incorporation showing it did not exist at time of decedent’s injuries but motion denied as it failed to eliminate issues of whether it merged with or was a continuation of its predecessor and liable for the predecessor’s acts. Samoleski v Revival Home Health Care Agency    

Labor Law §241   Labor Law §200   Set Aside Verdict   Hearsay   Admissibility  

Second Department
Motion to set aside defense verdict finding no violation of Labor Law §§241(6) or 200 on claimed error in excluding GC incident report containing coworker’s version of accident that identified what caused plaintiff to fall denied as a statement in a business record made by someone outside of the business is inadmissible and the coworker was not affiliated with the GC. Plaintiff’s testimony that the coworker was his apprentice and their supervisor was a fellow employee established that the coworker was under no duty to provide the information. Neither the supervisor nor coworker testified at trial. DeBenedetto v Kingswood Partners, LLC    

Premises Liab   Wet Floor   Out of Possession   Control   NYC  

Second Department
NYC and HRA granted summary judgment of slip/fall on wet hallway floor in half of building it owned but ceded all control of to NPO, plaintiff’s employer, under a “Sponsorship Agreement” that did not convey a real estate interest but required the NPO to provide all custodial and maintenance services as “control” is the cornerstone of duty to maintain premises in a safe condition. Where NYC and HRA did not maintain offices in the building or direct/control NPO’s maintenance it was an out-of-possession owner with no duty to maintain the hallway. HRA’s biannual inspections did amount to control where limited to physical building defects and condition of the boiler. Santiago v City of New York    

Premises Liab   Wet Floor   Open/Obvious   Warnings   Inherently Dangerous   Workers Comp Defense   Alter Ego  

Second Department
Building complex owners failed to meet burden for summary judgment where porter working for third-party-defendant slipped on feces on floor of break room when he went to clock out as the feces was not an inherent job risk even though his duties included occasionally mopping up flood water that could include feces since he worked in a different building, had finished his shift, and was not engaged in cleaning at the time of his fall. Defendants also failed to show the condition was both open/obvious and not inherently dangerous where plaintiff testified it was the feces hidden beneath the accumulated water that caused his fall.

Owners failed to show their companies and plaintiff’s employer operated as a single integrated entity or that one controlled the other for the owners to be deemed alter egos of plaintiff’s employer for the workers comp exclusivity defense. Defendants also failed to show that one of the owner corporations was plaintiff’s special employer at the time of the accident. Everett v CMI Servs. Corp.    

(21 summaries)

Amend Complaint   Statute of Limitations   Estoppel  

First Department
Plaintiffs’ motion to amend the Complaint to add 2-parties it had sued in a separate action but discontinued years earlier denied where the proposed parties were not related to the present defendants. Plaintiffs could not show they justifiably relied on 1 of the proposed defendant’s counsel’s identification of the neighboring building as the site of the accident when discontinuing the original case where the court gave them an opportunity at that time to inspect the property to determine the accident site and they only discontinued that case after the inspection. Wolin v Tri Star Constr. Corp.    

False Arrest   Malicious Prosecution   1983 Action   Set Aside Verdict   Directed Verdict   Probable Cause   Qualified Immunity   NYC  

First Department
Verdict finding detective falsely arrested plaintiff who was detained for 17-months before charges were dismissed when victim could not be located, and that other detective failed to intervene in the false arrest, set aside and defendants granted judgment as a matter of law as there was no rational path for jury to reach the verdict where the victim identified the plaintiff as the shooter from a photo array and plaintiff testified a man named “Chicken” was his best friend which corroborated victim’s identification of plaintiff as an associate of “Chicken,” establishing probable cause. Video footage of the incident did not show the shooter’s face clear enough to exclude the plaintiff and provide a basis to discredit probable cause.

The detective’s actions were also privileged under qualified immunity where objectively reasonable and he reasonably believed they did not violate plaintiff’s established statutory or constitutional rights. Jones v City of New York    

Comment: Claim for attorney fees under 42 USC § 1988 dismissed as plaintiff was no longer the prevailing party. Jones v City of New York

MVA   Bus   Set Aside Verdict  

Second Department
Plaintiff’s motion to set aside defense verdict denied as finding that bus driver was not negligent in accident where plaintiff and bus collided in intersection could be reached on a fair interpretation of the evidence, including defense expert’s unrebutted testimony. Desinor v Nassau County    

MVA   Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice   NYC  

Second Department
Where police report stated no injuries and no property damage greater than $1000 to the sanitation truck or petitioner’s vehicle, neither NYC nor any of its employees, including the truck driver, had actual knowledge within 90-days that petitioner suffered a serious injury from the accident. Lack of actual knowledge and petitioner’s failure to offer a reasonable excuse for waiting 4-months after the accident to move for leave to file a late Notice of Claim required denial of leave. NYC’s failure to make a particularized showing of prejudice insufficient to grant leave. Matter of Grandberry v City of New York    

Premises Liab   Sidewalk   Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice  

Second Department
Petition for leave to serve late Notice of Claim on County or deem late Notice of Claim timely served nunc pro tunc denied where actual knowledge of police department where the uneven sidewalk plaintiff tripped on was located was not actual knowledge to the County and the contents of the police report could not be determined since it was not attached to the petition. Petitioner also failed to provide a reasonable excuse or show County was not prejudiced by 1-year delay in bringing petition. Matter of Wieman-Gibson v County of Suffolk    

False Arrest   Malicious Prosecution   1983 Action   Vacate Default   Reasonable Excuse   Waiver   Raised For First Time   Statute of Limitations   Notice of Claim   NYC  

First Department
Plaintiff’s failure to bring motion to vacate unopposed order of dismissal for late service of Complaint for more than 1-year after service of the order with Notice of Entry excusable given law office failure and inadvertence and NYC’s Answer waiving personal jurisdiction by not raising it as a defense provided a reasonable excuse for not seeking an extension of time to serve NYC.

Plaintiff’s false arrest and malicious prosecution claims, however, were time barred where he never filed a Notice of Claim and the statute of limitations expired before the motion to vacate. Plaintiff’s 1983 action was not time barred but the Complaint failed to allege sufficient facts to identify a violation of a policy or custom to support the state or federal claims. The officers were not properly served and did not answer or waive personal jurisdiction.

Plaintiff did not raise NYC’s waiver below but Court considered it because “it appears on the face of the record, involves no new facts, and could not have been avoided if it had been timely raised.” Peralta v City of New York    

Premises Liab   Open/Obvious   Inherently Dangerous  

Second Department
Apple orchard granted summary judgment where injured-plaintiff slipped on hay, grass, or straw while walking in the orchard as the condition was open/obvious and not inherently dangerous and inherent in the nature of an apple orchard that patrons would anticipate. Defense attorney’s affirmation with attached EBT testimony sufficient for summary judgment. Flores v Harvest Moon Farm & Orchard    

Discovery   HIPAA  

First Department
Defendant failed to show plaintiff’s heart or vision conditions contributed to the accident or how claim her health was impaired by accident required authorizations for her cardiologist, internist, and ophthalmologist where loss of enjoyment of life claim had been withdrawn. Morillo v 623-631 W. 207th St., LLC    

Labor Law §240   Safety Devices  

First Department
Worker who injured his arm when trying to lift 400 lb. elevator platform that tipped over from a pallet too small to keep it steady while moving the pallet from the front to the liftgate of a flatbed granted summary judgment on Labor Law §240(1) as the pallet was insufficient to protect plaintiff from the force it could generate even over 4″-5″. Schoendorf v 589 Fifth TIC I LLC    

Premises Liab   Workers Comp Defense   Alter Ego  

Second Department
Landowner’s proof of shared address and liability insurance policy with plaintiff’s employer insufficient to show it was alter ego of plaintiff’s employer as entities had different purposes, bank account, tax returns, and WC policies and there was no proof of shared offices or identical owners. Landowner failed to show it controlled manner/details/results of plaintiff’s work and that plaintiff knew and consented to a special employment relationship. Motion for summary judgment on workers comp exclusivity clause denied. Mauro v Zorn Realties, Inc.    

Malpractice   Accepted Practice   Causation   Experts  

Second Department
Moving defendants met burden from summary judgment on decedent’s medical records and opinions of radiology and interventional cardiology experts that they did not depart from accepted practice and their treatment was not a cause of decedent’s cardiomyopathy that led to his death but plaintiff’s pulmonary, cardiology, and radiology experts raised triable issues in opposition. Plaintiff’s pulmonary and cardiology experts established an adequate foundation for their opinions based on their clinical experience even though not board certified in radiology. Hiltz v DiLorenzo    

Labor Law §241   Labor Law §240   Labor Law §200   Industrial Code   Amend BP   Causation   Notice  

First Department
Electrician’s motion to amend BP to include industrial code §23-3.3(c)(hand demolition) denied without proof hand-removal of electrical equipment from walls had any causal relationship with floor which collapsed. Plaintiff’s motion for summary judgment on Labor Law §§ 240(1) and 200 denied where photos submitted by plaintiff left issues of foreseeability of floor collapse. Bernardez v 70 Franklin Place LLC    

Premises Liab   Sidewalk   Errata Sheet   Admissibility   Duty   § 7-210   Create Condition   Notice  

First Department
Defendant’s rejection of plaintiff’s errata sheet did not make it inadmissible where reasons for minor changes were sufficient and consistent with other portions of plaintiff’s testimony.

Building owner denied summary judgment where it had a nondelegable duty under administrative code §7-210 to maintain cellar doors on sidewalk where plaintiff slipped and fell, it failed to show area was reasonably safe, and plaintiff’s testimony and expert affidavit it submitted showed cellar doors were slippery, not flush with sidewalk, sloped downward, and should have been repaired. Lease with tenant-defendant was not so comprehensive and exclusive to relieve owner of duty to maintain cellar doors as it only required general sidewalk maintenance and care for entrance doors.

Tenant denied summary judgment even though it did not create the condition where plaintiff testified he saw others fall on the cellar doors before the date of his accident raising issues of notice to tenant and owner. Owner’s cross-claims against tenant dismissed as abandoned where owner did not oppose tenant’s motion below or on appeal. Hernandez v NY Prepaid Wireless LLC    

Premises Liab   Create Condition   Notice  

Second Department
Plaintiff’s testimony she did not see flowers in plastic container outside supermarket 15-minutes before she slipped on them established supermarket did not create or have notice of the condition entitling it to summary judgment. Loper v Stop & Shop Supermarket Co., LLC    

Premises Liab   Prior Written Notice   Create Condition   NYC  

First Department
NYC granted summary judgment where plaintiff tripped on gap between road and hydrant gate box cover at CCNY as NYC had no prior written notice of the defect and plaintiff failed to meet burden of showing it was created by an act of negligence or roadwork by NYC that created an immediately apparent dangerous condition. NYC showed non-NYC entities embedded boxes that looked like the one plaintiff identified and an extensive record search produced no records of NYC working on the box within 4-years before the accident. Dunn v City of New York    

Dogbite   Vacate Default   Reasonable Excuse   Meritorious Action   Motion to Dismiss   Out of Possession   Notice   Vicious Propensity  

Second Department
Proof that a different judge had ordered consolidation of cases against 2-defendants for the same incident and ordered that the scheduled inquest against the first defendant be held in abeyance until the trial of the second defendant provided a reasonable excuse for not appearing at the scheduled inquest where the case was dismissed for non-appearance. Plaintiff appeared at all prior court dates, moved to vacate 2-days after the dismissal, and the court found a meritorious action.

Second defendant’s motion to dismiss for failure to state a cause of action denied where Complaint set forth elements of strict liability for a dog bite and defendant’s claim to be an out-of-possession owner with no notice of the dog’s vicious propensities were merely affirmative defenses. Davis v 574 Lafa Corp.    

Labor Law §241   Labor Law §200   Notice   Industrial Code   Question of Fact  

Second Department
Fish market failed to meet burden for summary judgment dismissing Labor Law §200 and negligence claim of HVAC mechanic who slipped on ice in alleyway while replacing ice machine compressor as questions remained of whether it had actual or constructive notice of the condition. Market’s own submissions raised issues of whether plaintiff was engaged in a Labor Law §241(1) protected activity when he slipped. Plaintiff denied summary judgment on §241(1) based on industrial code §23-1.7(d)(slipping hazard) on questions of whether ice was present. Miller v R.L.T. Props., Ltd.    

Premises Liab   Sidewalk   § 7-210   Homeowner Exception   Create Condition   Premature Motion  

Second Department
Landowners of 1-of-2 properties abutting sidewalk where plaintiff fell met burden for summary judgment on homeowner exception to administrative code §7-210 on their affidavits showing it was a 2-family home used exclusively for residential purposes and on common-law negligence in that they did not create the condition or make special use of that portion of the sidewalk. Hope or speculation that discovery might uncover information to oppose a motion does not make the motion premature. Martin v Newton    

Premises Liab   Battery   Duty   Foreseeability  

Second Department
Bar where plaintiff was stabbed several times in patio area by other patron during an altercation granted summary judgment on deposition testimony of plaintiff and assailant and video showing assault was unforeseeable as premises owner does not have a duty to protect persons from unforeseeable, unexpected assaults. The Court does not give the details of the proofs. Forgione v Quiet Man Pub, Ltd.    

Premises Liab   Vacate Default   Reasonable Excuse   Meritorious Action   Prejudice  

First Department
Plaintiff’s motion to vacate dismissal after failure to appear at 2-conferences granted where due to inadvertent law office failure, there was no pattern of delay, Complaint and BP showed meritorious action, and defendants were not prejudiced and strong public policy favors deciding cases on merits. Hamilton v Basketball City N.Y. LLC    

Premises Liab   Open/Obvious   Inherently Dangerous   NYC  

Second Department
NYC granted summary judgment where plaintiff fell when she stepped over a sidewalk side-wall onto a concrete slab as the concrete slab was open/obvious and not inherently dangerous. The Court does not give the details of the proofs. Johnson v NYC Dept. of Parks & Recreation    

(2 summaries)

Serious Injury   Degenerative   Experts  

Second Department
Defendants met burden for summary judgment on serious injury by competent medical evidence showing plaintiffs spinal and shoulder injuries were degenerative and plaintiff’s expert failed to raise an issue in opposition without addressing the defendants’ radiologist’s findings. The Court does not give the details of the proofs. Amirova v JND Trans, Inc.    

MVA   Rear End   Nonnegligent Explanation  

Second Department
Plaintiff met burden for summary judgment by her affidavit that she was stopped at a red light when struck in the rear but lower court correctly found defendant’s affidavit raised an issue in opposition. The Court does not give the details of the proofs. Garcia v Cotzomi    

About Matt McMahon

Civil trials and appeals since 1984. Retired partner McMahon | McCarthy.
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