June 9, 2020 | Vol. 214

(3 summaries)

Reargument   Amend Complaint   Statute of Limitations  

Second Department
Motion to reargue by hospital and its employee granted and on reargument motion to dismiss on statute of limitations granted and plaintiffs’ cross motion to amend Complaint to include negligence and various claims regarding the failure to investigate her fitness as a mother before reporting to NYC ACS denied. Reargument motion properly decided by different judge where original judge retired, and original decision was not law of the case. Statute of limitations accrued on date mother was reported as unfit and ACS’s custody of child after that was effect of original negligence not a continuing wrong as it was not a series of distinct independent wrongs. Williams v Georgopoulos

Discovery   CPLR §3124  

Second Department
Nurse attached and injured by psychiatric patient entitled to ask defendant doctors non-privileged questions regarding non-party patient who did not waive privilege. It was improper for defendants to refuse to appear for deposition on assumption there were no non-privileged questions that could be asked. They should have appeared and objected to any question they believed privileged. Jayne v Smith

Med Mal   Settlement   Lien  

First Department
Defendant’s appeal of lower court’s refusal to sign OSC challenging previous order granting DSS $4.8 million judgment against defendant hospital under stipulation dismissed as no appeal lies from refusal to sign an ex parte OSC since it does not decide a motion on notice, and the Court refused to deem the appeal a request for leave to appeal or consider it in the interest of justice as the issue was clearly decided on the prior appeal. Chi Young Lee v Osorio

Comment: The original appeal was reported in Vol. 117.

(7 summaries)

MVA   Rear End   Pileup   Comparative Fault  

First Department
Passenger in first car denied summary judgment against third car based on third car driver’s affidavit that she saw the first and second cars collide and was at a full stop when her car was rear ended by the fourth car raising an issue of fact. Fact that plaintiff was an innocent passenger does not prove negligence of stopped vehicle behind. Campbell v Mincello

Labor Law §200   Labor Law §241   Premises Liab   Dangerous Condition   Create Condition   Notice   Causation   Indemnity  

First Department
Electrician injured when accumulated water and oil fell from non-waterproof planks that defendants placed but did not later inspect or warn plaintiff about causing his fall entitled to summary judgment on Labor Law §200 and negligence as defendants had notice of and created dangerous condition and failed to show that anyone else, including plaintiff, was a cause the accident. Labor Law §241(6) claim based on industrial code §§23-1.8(a) and (c)(3) dismissed as they could not be a cause of the accident which was not caused by eyewear or clothing.

Cross-claim for failure to procure insurance dismissed on proof proper endorsements were obtained as to one co-defendant but not to other who did not appeal that portion of decision. Indemnity claim by negligent defendants against nonnegligent defendants dismissed where contract provided for indemnity only where moving defendant was not negligent. Langer v MTA Capital Constr. Co.

Strike Answer   Preclusion   Discovery   Willful/Contumacious   Admissibility   Subsequent Repairs   Negligent Hiring  

First Department
Plaintiff’s motion to strike defendants’ Answer denied where noncompliance with 8-discovery orders was not willful/contumacious or result of bad faith as substantial discovery was provided, albeit piecemeal. Alleged discovery abuses while motion pending or thereafter not considered as not part of record before lower court. Plaintiff’s request for unredacted accident report to include subsequent remedial measures properly denied as not admissible and it did not fall within recognized exceptions. Demand for employee personnel files denied absent claim of negligent hiring. Appeal from denial of reargument dismissed as no appeal lies from a denial of reargument. Parkinson v Fedex Corp.

Labor Law §240   Gravity Risk   Safety Devices   Causation   Comparative Fault  

First Department
Plaintiff struck by ceiling that was not braced or shored during demolition granted summary judgment on Labor Law §240(1) where collapse was not result of demolition work and no safety devices were provided even if plaintiff was tugging on ceiling to remove sprinkler head which would at most be comparative fault, not a defense under §240. Sinchi v HWA 1290 III LLC

Premises Liab   Vacate Default   Renew   Reargument   Reasonable Excuse   Appealable Order  

Second Department
Defendant’s motion to renew motion to vacate order granting default judgment denied where defendant failed to offer reasonable excuse for not including additional information in its affidavit or coworker’s affidavit on original motion and, in any event, failed to show that new facts would have changed the result. Vega v Gambino


First Department
Defendant entering intersection with no stop sign entitled to summary judgment where vehicle plaintiff was in entered intersection going through stop sign when driver’s view of intersection was obstructed. Defendant was entitled to assume other drive would obey VTL and yield right of way. Lugo v Daytona Auto Sales, Inc.

MVA   Rear End   Pileup   Nonnegligent Explanation  

Second Department
Defendants’ motions for summary judgment denied where testimony submitted in support showed multiple versions of how accident occurred, failing to eliminate all questions of fact. Vehicle struck in rear and propelled into car in front can provide a nonnegligent explanation, but defendants failed to meet their burden. Weiss v Arunsi

(0 summaries)

About Matt McMahon

Civil trials and appeals since 1984
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