Assault Directed Verdict Set Aside Verdict Pain/Suffering Materially Deviates Punitive Damages Admissibility Amend BP Appealable Order
 Plaintiff’s cross motion to amend BP to add Penal Law §130.35 forcible rape granted and psychologist’s motion for summary judgment denied where he failed to prove rape did not occur. Psychologist’s motion for directed verdict at end of plaintiff’s case providently denied where there was rational path for jurors to find against defendant and motion to set aside verdict of $250,000/$200,000 past/future pain/suffering and $500,000 punitive damages as against weight of evidence denied where jury could reach verdict on fair interpretation of evidence. Trial court’s admission of 2 taped telephone conversations including inaudible portions, arranged by police, proper where defendant acknowledged his voice and both parties testified to contents of conversations including inaudible portions. Issue went to weight not admissibility. Pain/suffering award did not materially deviate from reasonable compensation and punitive damage award was appropriate given heinous nature of defendant’s actions including breach of fiduciary relationship. Feldman v Knack
Comment: Appeal from order granting plaintiff’s cross motion to amend BP and denying defendant’s motion for summary judgment dismissed as subsumed by judgment appealed from. Feldman v Knack. |
Premises Liab Settlement Dangerous Condition Expert Aff
While motion for summary judgment was pending in action where infant-plaintiff’s foot got caught in gap between 2 platforms of play apparatus, the parties reached a settlement and the motion was denied without prejudice to renew if compromise order was not approved. Judge did not approve compromise order after which defendants renewed motion which was denied. Second Department reversed and granted summary judgment on defendants’ expert opinion that apparatus met all applicable standards and did not present a dangerous condition. Plaintiff failed to raise an issue in opposition. Valenzuela v Metro Motel, LLC
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Settlement CPLR § 2104
Settlement at mediation where attorney representing plaintiff was hired by attorney of record for plaintiff, represented that someone from attorney of record’s firm contacted plaintiff who gave authority to settle for $150,000, and plaintiff was aware and had agreed to mediation, was binding on plaintiff under CPLR §2104 despite later claim that he did not consent. Plaintiff failed to show that agreement was result of fraud, duress, or overreaching or that its terms were unconscionable. Amerally v Liberty King Produce, Inc.
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Med Mal Late Notice of Claim Actual Knowledge Reasonable Excuse Prejudice 50-H
Municipal hospital was aware that infant-plaintiff, whose glucose was not measured at birth, had seizure due to glucose imbalance day after birth. Child’s injuries were not readily apparent for 3-years when plaintiff served an initial Notice of Claim without leave of court which was amended after 50-H hearing. Plaintiff’s motion to deem late Notice of Claim timely served granted and defendants’ cross-motion to dismiss denied where defendants’ medical record showed it had actual notice of the glucose imbalance and failure to test glucose at birth immediately after birth, that delays in serving Notice of Claim were directly related to child’s infancy since her injuries could not be determined until years after birth and defendants delays and failure to provide full medical records, and defendant was not prejudiced by the delay. While late Notice of Claim without leave of court may not provide actual knowledge, a 50-H hearing conducted pursuant to a late Notice of Claim without leave of court, may provide such notice of the essential elements. Feduniak v New York City Health & Hosps. Corp. (Queens Hosp. Center)
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Premises Liab Duty Dangerous Condition Open/Obvious Inherently Dangerous Comparative Fault Warnings
Landowner denied summary judgment where plaintiff fell in 3’ hole in grassy area near fence post being installed because there remained questions of whether it was open/obvious, and defendant offered no proof that it was not inherently dangerous. Open/obvious goes to comparative fault and warnings and does not relieve owner of duty to maintain property in reasonably safe condition. Kastin v Ohr Moshe Torah Inst., Inc.
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MVA Late Notice of Claim Actual Knowledge Reasonable Excuse Prejudice Raised For First Time
Notice of Claim served on driver employed by correct municipality within 90-days was not proper service on municipality he worked for absent proof that he gave it to supervisor with duty to investigate. Neither that Notice of Claim, a Notice of Claim served on the wrong municipality, the police report which did not mention personal injuries, nor the carrier’s notice containing the correct municipality’s name provided actual notice of plaintiff’s personal injury claim within 90-days. Plaintiff failed to show or give a plausible argument that defendant was not prejudiced by their inability to investigate and obtain a timely medical evaluation. Plaintiff’s excuses offered for first time in reply were not considered. Matter of Harding v Yonkers Cent. Sch. Dist.
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Labor Law §240 Labor Law §241 Labor Law §200 1-2 Family Exception Control Raised For First Time
Conflicting testimony on whether homeowner directed or controlled tree cutting work that resulted in something falling on plaintiff. knocking him off ladder precluded summary judgment under 1-2 family exception which applies only if owner does not direct or control work where plaintiff testified that homeowner told him where and how to cut tree branch and participated in the work and defendant testified that he told plaintiff what branch to cut and then left. Claim that removal of branch was not covered under Labor Law §§240 & 241 not timely raised or considered by the court. Summary judgment on Labor Law §200 and negligence claims denied for conflicting evidence on control of means and methods of work. Rajkumar v Lal
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MVA Directed Verdict Set Aside Verdict Jury Charge Comparative Fault
In pedestrian knockdown case jury found 60%/40% against plaintiff/defendant even though no one requested a charge on comparative fault, and none was given. Neither side objected to verdict sheet lines for apportionment of fault and there was a rational path for jury to apportion fault and their verdict was not against the weight of the evidence. Yankovitch v Fessel
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Labor Law §240 Ladder Safety Devices
 Worker who had to move from ladder to stand on display cases in certain areas while installing light fixtures granted summary judgment on Labor Law §240(1), whether or not ladder shook before he fell, because it was unsecured and not an adequate safety device for work he was performing. Plaintiff could not be sole cause where standing on display cases was a necessary part of his work. Nieto v CLDN NY LLC
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Premises Liab Stairs Speculation Unknown Cause Create Condition Notice
Son’s testimony that he was walking 3-steps behind his mother when he saw her leg crumble on a particular step and that he returned shortly after accident and observed a chunk of step missing provided nonspeculative basis to establish causation. Defendant failed to otherwise prove it did not create condition or have notice of it. Rivera v 2732 Bainbridge Assoc., L.L.C.
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Premises Liab Slip/Trip Sidewalk Last Inspection Notice
Abutting landowner failed to meet burden of showing it did not have constructive notice of defect plaintiff tripped on where it failed to show last time area was inspected prior to the accident. Ariza v Number One Star Mgt. Corp.
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Venue Untimely
Defendants failed to meet burden of showing that Kings County was improper venue when action was commenced where 1 defendant’s driver’s license listed Kings County as residence and his vehicle registration listed Richmond County as residence, failing to conclusively establish Kings as improper venue. Court had power to entertain motion to change venue beyond time set forth in CPLR §511(a). If Kings had been found an improper venue, plaintiff would have forfeited right to choose venue. Demirovic v Performance Food Group, Inc.
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Labor Law §240 Duty
Plaintiff’s opening splice box on wall and rewiring telephone wires was routine maintenance and not a building alteration sufficient to bring him within protections of Labor Law §240(1) where ladder fell on him. Spencer v 322 Partners, L.L.C.
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Med Mal Wrongful Death Accepted Practice Causation Expert Aff Speculation Conclusory
Nursing home met burden for summary judgment by expert opinion that it did not depart from accepted practice and its actions were not cause of decedent’s death where autopsy conducted 3-days after death identified aspiration pneumonia. Plaintiff’s expert’s opinions were speculative and conclusory. Lowe v Japal
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MVA Respondeat Superior Renew Reasonable Excuse
Defendant’s motion to renew previously denied cross-motion for summary judgment based on a deposition of codefendant, its employee driver who defaulted, taken after denial of original cross-motion denied where it failed to offer reasonable excuse for making original cross-motion without first taking the deposition of the codefendant. Caronia v Peluso
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MVA Emergency Doctrine Foreseeability
Plaintiffs’ motions for summary judgment denied where defendant who crossed over double yellow line and struck plaintiffs’ car raised issue of whether ice was foreseeable and codefendants’ vehicle that was following plaintiff where driver testified that he lost control while trying to avoid hitting plaintiffs’ spinning car and had no reason to foresee patch of ice. Gute v Grease Kleeners, Inc.
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MVA Foreseeability Emergency Doctrine
Defendant who crossed over double yellow line, struck another vehicle, and spun until he hit plaintiff’s vehicle denied summary judgment on claim that he was faced with an unforeseen medical emergency where he claimed he had a diabetic seizure and lost control of his car. Defendant failed to show that a diabetic seizure was unforeseeable where he suffered from diabetes. Ghaffar v Foster
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Serious Injury Expert Aff
Plaintiff’s plastic surgeon’s report and affidavit identifying slight nasal fracture observed during nasal endoscopy was sufficient to raise issue on serious injury in opposition to defendant’s prima facie showing of no serious injury. Seidel v Rabassa
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Serious Injury ROM Preclusion Expert Aff
Reports of orthopedist, neurologist, and radiologist establishing that plaintiff’s ROM in spine, wrist, and knees were normal, any strains/sprains had resolved, and lack of evidence of an acute injury established entitlement to summary judgment on serious injury. Plaintiff’s affirmed physician’s report failed to raise issue of fact where doctor examined plaintiff only once 4-years after accident and failed to address prior accident. Plaintiff also failed to address 4-year gap in treatment or explain why she stopped treating 3-6 months after accident despite insurance and consistent treatment with primary doctor. Bogle v Paredes
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Labor Law §241 Labor Law §200 Create Condition Notice Raised For First Time
Landowners’ motion for summary judgment on Labor Law §241(6) based on industrial code §23-1.7(e) (tripping hazard in passageway) denied where Servpro worker cleaning debris from basement stepped in uncovered drain hole exiting basement and defendants failed to show industrial code provision didn’t apply. Defendants’ claim that worker was engaged in “routine maintenance” not covered under Labor Law raised for the first time on appeal and not considered. Owners granted summary judgment on Labor Law §200 and negligence claims on proof that they neither created the condition nor had notice of it. Lundy v Austein
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Premises Liab Slip/Trip 3rd Party Contractor Espinal Hearsay
Plaintiff’s proof that backup generator contractor launched instrumentality of harm by placing pallets around outside generator plaintiff was checking when he stepped on one that crumbled, causing him to fall, was inadmissible hearsay statement of contractor’s employee repeating hearsay statement from another employee and not considered. Guerrero v Commander Elec., Inc.
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Premises Liab Foreseeability Intervening Cause
Architect’s motion for summary judgment granted on issues of size of boiler breaching system and connections but denied on claim of improper ports and covers it acknowledged as improper and advised dormitory authority and HVAC contractor to change, but which were not changed for 8-months between warning and time angle bracket dislodged due to excess vibration and fell on plaintiff’s head. Question of fact remained on architect’s claim that negligence of dormitory authority and HVAC contractor was an intervening cause as to whether their failure was reasonably foreseeable in the normal course of business. Demetro v Dormitory Auth. of the State of N.Y.
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Premises Liab Snow/Ice Causation Storm in Progress Feigned Issue
Oil deliveryman’s testimony that it was snowing heavily when he chose to walk up hilly snow covered lawn and over rock wall to connect hose, returning twice before he fell when his foot sank as he stepped down from the wall after putting the heavy hose on his shoulder and pushing himself forward to avoid being pulled back onto the wall established that it was the weight of the hose that caused his fall and not a dangerous condition of the property. Even if there was a dangerous condition, his testimony established storm-in-progress defense and his later statement that it was flurries contradicted his deposition testimony creating a feigned issue. Haxhia v Varanelli
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Premises Liab Slip/Trip Stairs Create Condition Notice
Video of staircase for ½ hour between bank opening and plaintiff’s fall showing customers using stairs without incident and plaintiff’s testimony that he went up and down stairs several times in the 15 minutes before fall without seeing any liquid established that defendant did not create the condition or have notice of if for sufficient period to correct it. Plaintiff’s claim that he saw woman coming down stairs with a mop that may have created the condition was not supported by the video and there was evidence that the worker was only responsible for mopping area by ATM machines. Fernandez v JPMorgan Chase Bank, NA
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Premises Liab Slip/Trip Snow/Ice Storm in Progress
Landowner and hotel failed to meet initial burden for summary judgment on their proof that 7″ of snow fell day before plaintiff slipped in hotel parking lot 12 hours after precipitation stopped and temperature remained below freezing and plaintiff’s testimony, submitted by defendants, that walkway was clear but parking lot icy. Casey-Bernstein v Leach & Powers, LLC
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Premises Liab Slip/Trip Snow/Ice Storm in Progress Create Condition Notice
Defendants failed to meet initial burden for summary judgment where they submitted plaintiffs’ testimony that it was not snowing at time of accident and defendants’ workers had cleared all snow from parking lot except where their car was parked ½ hour before accident. Defendants’ submission raised question of whether a storm was in progress and failed to show that they did not create or exacerbate a dangerous condition by their snow removal efforts. Yeung v Selfhelp (KIV) Assoc., L.P.
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Premises Liab Slip/Trip Wet Floor Circumstantial Evidence 3rd Party Contractor Negligent Hiring Open/Obvious
Testimony of plaintiff and coworker that there was a mop in office kitchen with white tile floor, they did not see that floor was wet until after plaintiff fell, and plaintiff’s testimony that floor was dry 10 minutes before she fell provided a nonspeculative basis for a jury to find creation of condition and causal connection based on circumstantial evidence. Employee’s testimony that she had not yet mopped floor raised issue of credibility and testimony of plaintiff and coworker that they did not observe floor as wet raised issue of whether it was open/obvious.
Building owner granted summary judgment where it did not control cleaning company’s employees and there was no proof that it had notice of a propensity of the employee for this conduct for a negligent retention claim and prior complaints of failure to vacuum, dust or clean were not sufficiently specific to give such notice. Burgdoerfer v CLK/HP 90 Merrick LLC
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Premises Liab Create Condition
Tenant failed to meet burden for summary judgment where evidence it submitted raised issue of whether its employee created condition of wires that plaintiff tripped on. Kurre v ACJ Realty, LLC
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Premises Liab Slip/Trip Stairs Question of Fact
Plaintiff’s testimony that she saw upright cup of ice cream on stairs 3-hours before she slipped on melted ice cream and photograph of tipped over ice cream cup taken moments after fall raised issue of fact in opposition to superintendent’s testimony that he observed regular cleaning schedule and did not see a cup of ice cream on stairs. Cruz v Perspolis Realty LLC
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Premises Liab Slip/Trip Sidewalk Amend Complaint
In consolidated action against restaurant and building owner where plaintiff tripped on open cellar door in sidewalk, amendment of Complaint to correct inadvertent allegation that plaintiff fell in parking lot in response to motion for summary judgment properly granted where there was no prejudice to defendant, and it was not palpably improper. Copy of proposed pleading was annexed and changes were properly identified. Yu Tian Li v Louie & Chan Rest.
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Premises Liab Slip/Trip Snow/Ice Wet Floor Create Condition Notice
Bank failed to meet initial burden with submission of plaintiff’s testimony that it was snowing out and he slipped immediately after entering bank and observed dirty water on floor after he fell. Bank failed to show it did not create condition or have notice of it and cannot meet its burden by pointing to gaps in plaintiff’s proofs. Seedat v Capital One Bank
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Serious Injury ROM Preexisting Expert Aff
Defendants made out prima facie entitlement to summary judgment on physicians’ reports showing normal range of motion and preexisting condition, but plaintiff’s affirmed physician’s report raised issue of fact where it identified significant loss of ROM, acknowledged preexisting condition, and opined that accident severely aggravated preexisting condition to the point that it required surgery for an acute meniscal tear. Munoz v Robinson
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MVA Rear End Question of Fact
Defendant raised issue of fact by certified copy of police report raising questions as to how accident occurred in opposition to plaintiff’s prima facie showing of entitlement to summary judgment by her statement that she was rear-ended. The court does not give the details of the proofs. Adam v Catania
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