March 10, 2020 | Vol. 201

(5 summaries)

Products Liab   Motion to Dismiss   Statute of Limitations   Amend Complaint  

First Department
Retailer’s motion to dismiss Complaint alleging products liability, negligence, and negligent infliction of emotional harm granted where timely filed case against manufacturer of refrigerator that caught fire causing plaintiff’s injuries was removed to federal court, plaintiff’s motion in federal court to amend Complaint to include retailer and remand to state court was granted, plaintiff filed amended Complaint shortly thereafter but did not file supplemental summons for several weeks which marked the commencement of the action against the retailer and was barred by statute of limitations. Plaintiff failed to show that retailer and manufacturer were wholly united in interest necessary for relation back doctrine, why it did not originally include retailer, and court rejected plaintiff’s claim that federal court order overrode state statute of limitations. Durstenberg v Electrolux Home Prods., Inc.

MVA   Turning Vehicle   Set Aside Verdict   Pain/Suffering   Materially Deviates   Speculation  

First Department
$10.5 million judgment for decedent’s pain/suffering on verdict set aside unless plaintiff stipulated to reduce pain/suffering to $3 million as it materially deviated from reasonable compensation. Finding of 100% fault was based on legally sufficient evidence and not against weight of evidence where decedent-pedestrian was struck while crossing street with right of way by defendant’s van while making a left-hand turn. Claim that decedent may have been outside crosswalk speculative since driver did not see pedestrian until after she was struck which cannot establish position before pedestrian was struck. Martinez v Premium Laundry Corp.

Labor Law §240   Vacate Jud   Pain/Suffering  

Second Department
Lower court properly granted plaintiff summary judgment on Labor Law §240(1) where unsecured Q-decking he was walking on gave way causing him to fall 10’. Appellate court reviewing non-jury trial can make any finding on damages and increased award of $75,000 past pain/suffering to $400,000 for spinal fracture requiring fusion and intercranial hemorrhage and awarded $68,801.79 stipulated by parties as past medical expenses, leaving intact trial court’s award of $46,000 for past lost earnings and $250,000 future pain/suffering. Xiaoen Xie v Park Place Estate, LLC

Med Mal   Discovery   Privilege  

First Department
Plaintiff’s demand for hospital deposition regarding general credentialing procedures denied as privileged under Ed. Law § 6527(3) and Pub. Health Law § 2805-m for quality assurance procedures. First Department declined to carve out exception to privilege for “general” information about credentialing procedures. Bamberg-Taylor v Strauch

Premises Liab   Slip/Trip   Wet Floor   Unknown Cause   Circumstantial Evidence   Open/Obvious   Inherently Dangerous   Warnings   Comparative Fault  

First Department
Lower court improperly dismissed action where plaintiff fell when exiting bath/shower that had no curtain rod because of broken brackets that landlord and manager failed to replace based on plaintiff’s testimony that he did not see water before stepping out of shower on theory that he could not describe cause of his fall because a jury could conclude that absence of shower curtain, the purpose of which was to keep water from accumulating on floor, led to floor being wet. The lower court also incorrectly concluded that condition was open/obvious and not inherently dangerous both of which are necessary for summary judgment. Open/obvious condition that was inherently dangerous goes only to duty to provide warnings and plaintiff’s comparative fault. Matos v Azure Holdings II, L.P.

(21 summaries)

MVA   Set Aside Verdict   Directed Verdict   Pain/Suffering   Materially Deviates  

Second Department
Verdict of $24,000/$334,000 past/future pain/suffering set aside as materially deviating from reasonable compensation unless defendant stipulated to increase past pain/suffering to $100,000 and plaintiff stipulated to decrease future pain/suffering to $200,000 for plaintiff’s fractured thumb with ORIF and surgery to remove pins, 4-months physical therapy, and some residuals. There was valid line of reasoning and permissible inferences for jury’s finding of negligence of both plaintiff and defendant where plaintiff testified he came to near stop at intersection before making left-hand turn with bicycle but that plaintiff was not a cause of the accident and the verdict could be reached on a fair interpretation of the evidence. Glynn v Altobelli

Duty   Accepted Practice   Causation   Informed Consent   Negligent Hiring  

First Department
Laser hair removal business’ motion for summary judgment based on expert’s affidavit of no departures from accepted practice denied where plaintiff raised issue of fact by photographs and her testimony regarding harm caused by defendants’ negligence which was sufficient since action sounded in negligence, not medical malpractice, and did not require the specialized knowledge of an expert. Informed consent dismissed as not based on medical treatments and negligent hiring claims dismissed absent proof employee acted outside scope of employment. Berkowitz v Equinox One Park Ave., Inc.

Premises Liab   Slip/Trip   Stairs   Set Aside Verdict   Directed Verdict   Pain/Suffering   Materially Deviates  

Second Department
Judgment on verdict awarding $400,000/$200,000 past/future pain/suffering affirmed and motion to set aside verdict as matter of law and against weight of evidence denied where there was valid line of reasoning and permissible inferences for jury’s verdict which could be reached on fair interpretation of evidence, including finding that plaintiff was negligent in descending stairs that were covered by leaves, but her negligence was not a cause of the accident. Pain/suffering award did not materially deviate from reasonable compensation. Brennan v Gormley

Premises Liab   Slip/Trip   Stairs   Dangerous Condition   Expert Aff   Speculation  

First Department
Defendants granted summary judgment where plaintiff slipped on worn tread of marble stairs as worn marble tread without more is not actionable dangerous condition and plaintiff abandoned claims of failure to prevent moisture on stairs. Plaintiffs expert’s opinion on inadequate slip resistance speculative where coefficients of friction used were not shown to be accepted industry standards and opinion on causation was speculative. DeCarbo v Omonia Realty Corp.


First Department
Defendants’ demand for plaintiff’s cell phone records based on claim he was holding cell phone prior to trip and fall and that it was found near accident denied as insufficient to meet threshold requirement of “reasonably calculated to yield information that is ‘material and necessary.’” Dani v 551 W. 21st St. Owner LLC

Med Mal   Accepted Practice   Causation   Expert Aff  

Second Department
Doctors and hospital granted summary judgment on opinions of internist with subspecialty in nuclear cardiology and cardiovascular disease and emergency medicine specialist that they did not depart from accepted practice and were not a cause of decedent’s injuries and death where decedent who suffered hypertension since he was a teenager stopped taking hypertensive medication 6-months before presenting to ER where he was diagnosed and treated for hypertensive crisis, discharged when stabilized, returned with symptoms of an allergic reaction and subsequently discharged with instructions to discontinue hypertensive medication suspected to have caused allergic reaction and to follow-up with primary physician. Plaintiff’s expert, an internist with a subspecialty in cardiovascular disease but no specialty in emergency medicine failed to raise issue in opposition with opinion based in part on misstatements of fact, claims rebutted by the medical records, and where he failed to address opinions of defendants’ experts. Messeroux v Maimonides Med. Ctr.

Premises Liab   Slip/Trip   Snow/Ice   Storm in Progress   Preexisting   Expert Aff   Speculation   Raised For First Time  

First Department
Abutting landowner denied summary judgment where fresh snow accumulated at 7:30 AM on plaintiff’s proof that ice he slipped on was dirty and trod upon and present for several days. Defendant’s expert’s opinion that because temperature hovered around freezing for 6-days before accident any ice would have melted and disappeared was speculative and could not be considered on defendant’s motion since the data and opinion was raised for the first time in reply, but could be considered in opposition to plaintiff’s cross motion. Ruland v 130 FG, LLC

Premises Liab   Slip/Trip   Snow/Ice   Stairs   Storm in Progress   Admissibility   Renew  

First Department
Landlord granted summary judgment where plaintiff slipped and fell on snow on front steps at 8 AM on proof it snowed till 11 PM night before and in trace amounts till 2:30 AM establishing there was insufficient time for landlord to remove snow. Plaintiff’s argument that weather data was not submitted in admissible form on original motion did not prevent court from granting renewal to “defeat substantial fairness.” Plaintiff’s claim that defendant’s removal efforts exacerbated condition rejected as photograph relied on was too unclear to raise an issue. Ross v Lewis

Premises Liab   Assumption of Risk   Open/Obvious   NYC  

First Department
NYC granted summary judgment where plaintiff who had sledded down designated sledding hill in public park many times before and was aware of hay bales in front of park benches assumed risk of crashing into park bench even if she did not foresee exact manner of accident and she failed to show that hay bales, which were open/obvious, increased the risk. Reyes v City of New York

Sepulcher   Emotional Harm   Gross Negligence   Duty  

Second Department
Home healthcare providers granted summary judgment dismissing plaintiffs’ right of sepulcher, negligent infliction of emotional harm, and gross negligence claims. While failure to timely notify next of kin of demise of loved one delaying immediate possession and sacred rights of burial, defendants never had possession of decedent’s body or knowledge she died. Plaintiffs failed to show defendants owed them any duty, as opposed to a duty owed decedent, that could be the basis for claims of negligent infliction of emotional harm or gross negligence from failure to contact emergency numbers after decedent did not respond to healthcare worker’s knocking at door or phone calls. Fox v Mark

Pothole Law   Slip/Trip   Prior Written Notice   Create Condition   Expert Aff   Speculation   NYC  

First Department
NYC granted summary judgment on proof it did not have prior written notice of pothole that caused plaintiff to trip and fall. Plaintiff failed to show repair performed months before accident created an immediately dangerous condition and his expert’s opinion that the repair departed from accepted practice was speculative. Dalmasi v City of New York

Premises Liab   Slip/Trip   Wet Floor   3rd Party Contractor   Espinal   Hearsay   Question of Fact  

First Department
Food vendor’s motion for summary judgment claiming it owed no duty to plaintiff as 3rd party contractor at U.S. Open denied even though it showed it did not fully displace USTA’s duty to maintain area and that plaintiff did not rely on its promise to maintain area under Espinal, but failed to prima facie show it did not create or exacerbate wet carpet condition that caused plaintiff to fall where it’s witness noted that blowers were operating in the area, it could not identify cause of the condition without hearsay, and there was conflicting information regarding the cause leaving a question of fact. Salomon v United States Tennis Assn.

Premises Liab   Slip/Trip   Wet Floor   Notice   Causation  

First Department
Plaintiff’s motion for summary judgment denied where she failed to show that landlord had actual or constructive notice of wet floor condition. Proof that she had warned landlord about broken door lock before accident and claim it violated Multiple Dwelling law §78 irrelevant where there was no proof it had anything to do with her fall. Zaiter v Southern Blvd. Partners, III

Serious Injury   Set Aside Verdict   Hearsay  

Second Department
Plaintiff’s motion to set aside damage only verdict finding she did not sustain a serious injury on claim she fractured her tooth, which would constitute a serious injury, when she hit steering wheel denied as jury could find on a fair interpretation of the evidence that she did not fracture her tooth in the accident based on her failure to call her oral surgeon, preclusion of her statement that she fractured her tooth from hearsay statement of uncalled oral surgeon, and remaining witnesses could only base observations on her oral history without objective proof. Sarnelli v City of New York

Serious Injury   Preexisting   Degenerative   ROM   Expert Aff  

First Department
Plaintiff’s expert raised issue of fact on serious injuries for spine, shoulder, and knee injuries showing restricted ROM shortly after accident and recently and on opinion they were causally related to the accident, but not on ankle injury which showed only 8% reduction in ROM. Plaintiff’s expert was not required to rebut defendants’ experts’ claim that these were pre-existing degenerative conditions not related to the accident where plaintiff’s medical records did not contain notations of pre-existing degenerative conditions and defendants’ orthopedist did not specify any pre-existing degenerative conditions. If plaintiff proves serious injury at trial he can recover for all injuries related to the accident including ones that did not meet serious injury threshold. Defendant sua sponte granted summary judgment on 90/180-day category where plaintiff testified he only missed “days” of work. Gordon v Hernandez

Premises Liab   Slip/Trip   Stairs   Wet Floor   Create Condition   Notice   Recurring Condition   Last Inspection  

First Department
NYCHA granted summary judgment on proof it did not create condition of urine on stairway where plaintiff fell or have actual or constructive notice of it, that it followed its inspection and cleaning schedule establishing area was clean and dry before the accident. Plaintiff’s grandmother’s affidavit that it was a recurring condition and had been present for 2-3 days before accident establish at best general awareness of the problem but not existence of the same puddle plaintiff slipped on and defendant showed by its cleaning schedule that it did not routinely ignore the condition. Julia D. v New York City Hous. Auth.

Premises Liab   Slip/Trip   Wet Floor   Create Condition   Notice   Last Inspection   Raised For First Time  

Second Department
Defendants’ failure to submit evidence of last time floor plaintiff slipped on was cleaned or inspected left question of fact on constructive notice. Porter’s supplemental affidavit submitted for first time in reply and argument that defect was trivial raised for first time on appeal not considered. Bonilla v Southside United Hous. Dev. Fund Corp.

Serious Injury   ROM   Expert Aff   Conclusory  

First Department
Defendants granted summary judgment on 90/180-day category based on affirmed orthopedic report showing normal ROM without pain, tenderness or spasms and plaintiff’s medical records showing only minor limitations of ROM establishing absence of serious injury that would prevent her from engaging in usual activities. Plaintiff testified she was only confined for several weeks. Her doctor’s statement that she was “disabled” from job as mail carrier was conclusory where it did not indicate what activities she could not do or why and was inconsistent with his earlier note that she could perform ADLs as tolerated. Subjective complaints of pain and inability to work insufficient without objective proof. Abreu v Miller

False Arrest   Malicious Prosecution   1983 Action   Probable Cause   NYC  

Second Department
NYC granted summary judgment of false arrest, malicious prosecution, and 1983 action claims based on police officer’s testimony that he observed plaintiff’s hands in area of mail chute of mailbox, plaintiff walked away as officers approached, and after stopping plaintiff discovered a box with a sticky substance covered in mail hanging by a shoestring from the mail chute, establishing probable cause which is a defense to plaintiff’s claims even where criminal charges were later dismissed. Burns v City of New York

False Arrest   Malicious Prosecution   1983 Action   Probable Cause   Conclusory  

Second Department
False arrest claim dismissed where officer only issued a ticket to plaintiff and did not place her in custody. Defendants granted summary judgment on malicious prosecution and 1983 claims where officer asked for license and registration of woman in van in municipal employee parking spot with Pennsylvania plates and computer search showed she had a suspended license and van was unregistered giving probable cause for arrest. Plaintiff’s conclusory and vague claims of constitutional violations insufficient to raise a question of fact on 1983 action. Smith v Village of Freeport Police Dept.

Estate   Reasonable Excuse   Prejudice  

First Department
Guardian’s motion to substitute herself as plaintiff as administrator after her ward died granted where she showed reasonable excuse for delay and defendant failed to show prejudice. Mercer v Hebrew Home for the Aged at Riverdale

(3 summaries)

Labor Law §241   Labor Law §200   Amend Complaint   Reasonable Excuse   Workers Comp Defense   Grave Injury  

Second Department
Plaintiff’s motion to amend Complaint to include Labor Law §§241(6) and 200 denied as patently devoid of merit and for failure to give reasonable excuse for not moving sooner where he had knowledge of facts for Labor Law claims from the beginning. The court does not give the details of why the claim was devoid of merit McIntosh v Ronit Realty, LLC

Comment: In a separate decision, third-party defendant-employer’s motion for summary judgment on workers comp defense granted where third-party plaintiff failed to show there was any contract requiring contribution or indemnification, plaintiff was acting in course of his employment when he slipped on floor in warehouse where he was going to remove oil tank, and he did not suffer a grave injury. McIntosh v Ronit Realty, LLC

Stay Arb   Uninsured  

First Department
Carrier’s petition to permanently stay uninsured arbitration denied after hearing where it failed to prove prima facie that car which struck plaintiff’s car was owned and insured by proposed additional respondent who had filed a missing or stolen police report on day of accident and carrier failed to prove that he owned either a Chey or Subaru matching the varying descriptions of the vehicle. Matter of Global Liberty Ins. Co. v Perez

Vacate Arb   No-Fault   IME/DME  

First Department
Master arbitrator’s award irrationally ignored fact that no-fault policy was void ab initio for respondent’s assignor’s failure to appear at IME. Matter of Global Liberty Ins. Co. of N.Y. v Capital Chiropractic, P.C.

About Matt McMahon

Civil trials and appeals since 1984
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