March 1, 2022 | Vol. 302

(4 summaries)

Labor Law §240   Labor Law §200   Homeowner Exception   Assumption of Risk  

Second Department
Trusts that owned single-family townhome where elevator mechanic was injured when elevator he was working on dropped to ground floor entitled to Labor Law §240(1) homeowner exception and granted summary judgment. They were also granted summary judgment of Labor Law §200 and negligence claims as “[n]o responsibility rests upon an owner of real property to one hurt through a dangerous condition which he [or she] has undertaken to fix.” Soto v Justin Hochberg 2014 Irrevocable Trust    

Discovery   Child Victims Act  

Second Department
Archdiocese granted protective order striking plaintiff’s supplemental D&I and interrogatories in Child Victims Act case as they were overbroad and burdensome, sought irrelevant or confidential information, and failed to specify many of the documents sought with reasonable particularity. It is not the function of the court to correct palpably improper demands which should be struck in their entirety. Fox v Roman Catholic Archdiocese of N.Y.    

Premises Liab   Snow/Ice   Storm in Progress   Open/Obvious   Untimely   Note of Issue   Reasonable Excuse  

Second Department
Lower court improvidently granted defendant’s motion to extend time for summary judgment brought 7-months after Note of Issue granting it summary judgment where paralegal’s affidavit stating delay was caused by difficulty in finding a principal of defendant for deposition but did not to show how that principal’s testimony was necessary for summary judgment argument that there was a storm in progress or the condition was open/obvious. Without good cause for delay, the motion should have been denied regardless of the merits. Navarro v Damac Realty, LLC    

Construction Liab.   Directed Verdict   Duty   3rd Party Contractor   Espinal   Notice  

Second Department
GC and subcontractor which raised floor in bank printer room resulting in height differential with adjacent room that plaintiff tripped on properly granted directed verdict at end of plaintiff’s case as there was no rational path for jury to find for her where GC and subcontractor did not owe her a duty as independent contractors and plaintiff failed to prove the pleaded Espinal exceptions. “A builder or contractor is justified in relying upon the plans and specifications which he [or she] has contracted to follow unless they are so apparently defective that an ordinary builder of ordinary prudence would be put upon notice that the work was dangerous and likely to cause injury” and plaintiff failed to show the bank’s plans and specification, which did not include raising the floor in the printer room, would have altered a prudent contractor not to perform the work. Defendants’ actual or constructive notice of height differential did not launch an instrumentality of harm and GC’s contract did not displace bank’s obligations to maintain the premises under Espinal. Plaintiff, bank employee, was not a third-party beneficiary to the contractors’ contracts. Hodzic v M. Cary, Inc.    

(18 summaries)

Firefighter Rule   Amend Complaint   GML §205-a-e   NYC  

Second Department
NYC granted summary judgment where police officer was injured when fellow officer accidentally raised security barrier while plaintiff was entering a secure work area, causing his vehicle to collide with the barrier, as entry into a protected area allowed only by police credentials is a specific police function triggering the firefighter rule. Plaintiff’s motion to amend complaint to include GML §205-e cause of action denied where it did not allege a violation of the predicate statutes/regulations. Citation to statutes/regulations alone is insufficient. Spence v City of New York    

Labor Law §240   Labor Law §241   Labor Law §200   Feigned Issue   Notice   Industrial Code  

Second Department
Plaintiff’s testimony coworkers were passing him 500-600 lb. beam from scaffold above without safety devices caused him to slip on water, ice, and debris required denial of building owners’ and plaintiff’s motions for summary judgment on Labor Law §240(1) as questions remained of whether method of passing beam caused worker to slip. Plaintiff’s first mention of the beam on the second day of his EBT, where he did not mention it on the first day, was not a feigned issue. Defendants failed to show industrial code §23-1.7(d) (slipping hazards) was not applicable on Labor Law §241(6) claim or that they lacked constructive notice of the water, ice, and debris on Labor Law §200 and negligence claims. Toalongo v Almarwa Ctr., Inc.    

Malpractice   Wrongful Death   Accepted Practice   Causation   Experts   Speculation  

Second Department
Initial hospital and emergency room attending that saw decedent who made complaint of bilateral leg swelling and sent her home with diagnosis of peripheral vascular disease made out prima facie entitlement to summary judgment where decedent went to another ER 9-days later with the same complaint, was diagnosed with multiple DVTs after an ultrasound, and died from cardiopulmonary arrest from pulmonary emboli. Plaintiffs’ pulmonary expert’s opinion that moving-defendants departed from accepted practice by not taking a proper history, not performing a proper work up, not ruling out DVT, misdiagnosing decedent’s condition, and failing to timely start treatment, all of which allowed the DVTs to progress and result in cardiopulmonary arrest raised issues in opposition. “Whether a diagnostic delay affected a patient’s prognosis is typically an issue that should be presented to a jury.” Ivey v Mbaidjol    

Labor Law §240   Labor Law §241   Scaffold   Recalcitrant Worker   Sole Cause   Experts   Discovery   Feigned Issue  

First Department
Plaintiff’s unrebutted testimony that heavy chipping gun he was using caused the unlevel, unsecured pipe-scaffold with uneven boards on the platform to move back and forth resulting in his falling from loss of balance established his entitlement to summary judgment on Labor Law §240(1). Defendants’ recalcitrant worker argument based on foreman’s testimony that safety rails were available and plaintiff instructed to use them was irrelevant as the unlevel, unsecured scaffold with uneven boards violated §240 and sole proximate cause and a §240 violation cannot coexist.

Foreman’s affidavit properly considered even though not disclosed as a witness in response to plaintiff’s demands as plaintiff was aware of who his foreman was and the statement and affidavit were provided 4-months before Note of Issue and before 2-discovery conference eliminating any claim of surprise or prejudice. Plaintiff’s expert’s change of opinion from first report stating safety rails would’ve prevented fall to second report stating safety rails alone would not have prevented fall could be considered a feigned issue but irrelevant where liability was established by plaintiff’s testimony. Quiroz v Memorial Hosp. for Cancer & Allied Diseases    

MVA   Turning Vehicle   Pedestrian   Set Aside Verdict   There to be Seen  

Second Department
Verdict finding defendants not negligent on testimony that defendant-driver was making a left-hand turn and did not see pedestrian who was in crosswalk with light in her favor set aside as it could not be reached on any fair interpretation of the evidence. Defendant-driver had duty to yield right-of-way to pedestrians in crosswalk and claim driver entered crosswalk before plaintiff was speculative and conclusory where he did not see her before impact. Lieb v Jacobson    

MVA   Rear End   Nonnegligent Explanation   Graves Amendment  

First Department
Plaintiff granted summary judgment where she was rear-ended by defendants’ vehicle and argument that plaintiff stopped short did not raise a nonnegligent explanation without proof defendant-driver maintained a proper distance. Vehicle lessor granted summary judgment under the Graves Amendment on search of record showing it was in business of leasing vehicles and was not responsible for maintaining the vehicle and plaintiff did not claim anything was wrong with the vehicle. Kalair v Fajerman    

MVA   Vacate Default   Reasonable Excuse   Meritorious Action   Court of Claims  

Second Department
Claimant’s motion to vacate dismissal for default in not appearing at compliance conference granted on showing of a reasonable excuse and meritorious action. Verified claim and claimant’s affidavit sufficient to show snowplow was operated in conscious “disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow” for VTL §1103(b) and medical reports demonstrated a serious injury. Cox v New York State Thruway Auth.    

Premises Liab   Snow/Ice   Sidewalk   Create Condition   Notice  

Second Department
Defendants failed to meet burden for summary judgment where they did not have actual or constructive notice of ice on sidewalk where plaintiff slipped and fell but failed to show as a matter of law that downspouts from the building, which plaintiff alleged directed water onto the sidewalk in a supplemental BP served 4-months before defendants’ motion, did not create or exacerbate the condition and that they did not have constructive notice of the defective downspouts where defendant-management company’s property manager testified that no one complained of the downspouts but maintenance workers would check for “ponding” on the sidewalks after a snow event. Messina v Morton Vil. Realty, Inc.    

Malpractice   Accepted Practice   Causation   Experts   Conclusory   Speculation  

Second Department
OB/GYN who assisted in surgery to remove uterine fibroids that caused plaintiff second-degree burns from a cauterization device granted summary judgment on experts’ opinion OB/GYN did not depart from accepted practice or cause plaintiff’s injuries. Plaintiff’s expert, a neurologist/psychiatrist, failed to raise issues in opposition without specifying his training or expertise in gynecology or surgery or how he became familiar with the applicable standards of care and his opinions were speculative and conclusory where they did not address the specific opinions of defendant’s expert. Pettway v Vorobyeva    

Labor Law §240   Labor Law §200   Homeowner Exception   Control   Premature Motion  

First Department
Defendants entitled to summary judgment for plaintiff’s fall from ladder on Labor Law §240(1) homeowner exception where work was on a single-family home not used for commercial purposes and defendants did not direct work. Plaintiff’s claim defendants intended to use the house solely for commercial purposes was purely speculative. Defendants granted summary judgment on Labor Law §200 and negligence claims as they did not control plaintiff’s work. Plaintiff’s argument motion was premature rejected as speculative. Ramirez v Hansum    

Premises Liab   Notice   Last Inspection  

First Department
Defendants failed to meet burden for summary judgment with testimony of periodic maintenance checks of hotel bathrooms by witness who was not employed at time of plaintiff’s accident when sink dislodged from wall, and without testimony of last time the bathroom was inspected. The Court noted it was was unclear from the record if the bathrooms were being inspected at all at the time of plaintiff’s accident. Nestenborg v Standard Intl. Mgt., LLC    

MVA   Turning Vehicle   Appealable Order  

Second Department
Plaintiff granted summary judgment against driver and owner of garbage truck that made left-hand turn causing collision with vehicle plaintiff’s decedent was a passenger in as making a left-hand turn when it’s unsafe to do so is a violation of VTL. Those defendants’ motion for summary judgment denied and remaining defendants’ appeal dismissed as they were not aggrieved by lower court order. Bunch v Gwood    

MVA   Rear End   Nonnegligent Explanation   VTL §1104   NYC  

First Department
Defendant, driver of vehicle with plaintiff as passenger, granted summary judgment where he was slowing down for construction in left lane of expressway when police vehicle chasing a speeding truck in middle lane switched into left lane and admittedly did not see codefendant’s car before striking it or the lane closures ahead even though police-driver was aware of the ongoing construction. Moving defendant proved he was not negligent and claim by NYC and police officers that moving defendant stopped short did not raise an issue as stopping short alone is insufficient to show a nonnegligent explanation. Issue of applicability of VTL §1104 reckless standard was irrelevant to moving defendant’s culpability. Grant v City of New York    

MVA   Nonnegligent Explanation   Preclusion   Hearsay  

First Department
Plaintiff granted summary judgment on her testimony defendant truck struck her in the rear. Defendants failed to raise issue on nonnegligent explanation where defendant-driver was precluded from submitting an affidavit for failure to complete his deposition and affidavit of truck company employee detailing driver’s version of the accident, as well as driver’s accident report attached to her affidavit, were inadmissible hearsay and not admissible under business record exception. Patton v Genito    

MVA   Turning Vehicle   Causation   There to be Seen  

Second Department
Defendant’s motion for summary judgment denied where it provided plaintiff’s EBT which raised issues of whether defendant’s vehicle was speeding as it approached intersection where plaintiff was making a left-hand turn, was so close to the intersection to be an immediate hazard, and plaintiff made 2-stops at stop sign before starting the turn. Shuofang Yang v Sanacore    

Premises Liab   Snow/Ice   Sidewalk   Vacate Default   Feigned Issue   Unknown Cause   Sole Cause  

First Department
Order granting plaintiff’s motion to vacate default in opposing defendant’s motion for summary judgment, and denying defendant’s motion, reversed where plaintiff’s affidavit that she slipped on ice on sidewalk was a feigned issue as it contradicted her prior testimony that she didn’t know what caused her to fall and her decision to walk outside of shoveled path was sole proximate cause of her fall. Polanco v Durgaj    

Premises Liab   Notice   Raised For First Time   Preclusion  

First Department
Defendant granted summary judgment where plaintiff tripped on base of broken pedestrian stop sign in crosswalk as testimony of defendant and plaintiff established it was broken within 24-hours of plaintiff’s fall which was insufficient time for defendant to have discovered and repaired it under the circumstances. Lower court providently ignored affidavit of notice-witness plaintiff had not disclosed prior to opposition and, in any event, the affidavit would not have raised an issue in opposition. Samon v Roosevelt Is. Operating Corp.    

Premises Liab   Duty   Premature Motion  

First Department
Building tenant granted summary judgment of construction worker’s claims on codefendant’s affidavit stating it was the owner and had contracted for the work and moving defendant’s affidavit and copy of lease showing work had not been completed at time of accident and tenant was not to take possession until after work was complete. Plaintiff’s claim that motion was premature rejected where information to oppose motion was entirely within possession of codefendant, not moving defendant. Ochoa v 3475 Third Ave. Hous. Dev. Fund Corp.    

(1 summaries)

Malpractice   Public Health §2801-d   Motion to Dismiss   Statute of Limitations  

Second Department
Defendants’ motion to dismiss claims of gross negligence and violation of PHL §2801-d, added in amended Complaint long after 3-year statute of limitations past, denied where plaintiffs, administrators for original plaintiff and her husband, raised an issue on applicability of relation back doctrine. The Court does not give the details of the proofs. Craig v Rutland Nursing Home    

About Matt McMahon

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

Comments are closed.