March 13, 2018 | Vol. 97

MUST READS
(5 summaries)
NOTEWORTHY IF YOU MUST READ

Labor Law §240   Labor Law §241   Scaffold   Hearsay   Admissibility   Raised For First Time  

First

In a case where court found plaintiff entitled to summary judgment on Labor Law §240(1) when he tripped and fell backwards off of scaffold without railings, toe board, cross bracing, or a place for the worker to tie off his safety harness, the First Department went through the applicability of several exceptions to hearsay despite finding that it was improperly raised for the first time on appeal. The court found that the business records exception did not apply because defendant did not include the incident report; present sense exception did not apply because plaintiff’s statement that he fell while climbing the scaffold was not corroborated by independent evidence; a lack of evidence of plaintiff’s state of mind at the time of a statement made excited utterance inapplicable; and the admission against interest exception would not apply because plaintiff was available to testify, there was no evidence that plaintiff was aware that the statement was against his interests, and the surrounding circumstances did not support its trustworthiness or reliability. The height of the scaffold left issues of fact in opposition to defendant’s motion for summary judgment on Labor Law §241(6). Gomes v Pearson Capital Partners LLC


Labor Law §241   Labor Law §200   Industrial Code   Collateral Estoppel   Control   Notice   Court of Claims  

Second Deptartment

NY Supreme Court’s order (see Marl v Liro Engrs., Inc. under Noteworthy) dismissing Labor Law §241(6) claims of 4 workers employed by general contractor on Thruway Authority highway project because industrial code provision was non-specific was entitled to collateral estoppel in Court of Claims case against Thruway Authority where there was identity of issues. Labor Law §200 and negligence claims did not have identity of issues because NYSTA was an owner exercising a proprietary function and claimants raised issues regarding whether NYSTA had authority to control the work, whether a dangerous condition existed, and whether NYSTA had notice of the conditions. Grasso v New York State Thruway Auth.


Premises Liab   Notice   Res Ipsa Loquitor  

First

Handyman employed by defendant’s managing agent granted summary judgment when landing of stairs in the basement collapsed causing him to fall 20’ based on photographs showing stairs covered in rust, lack of an inspection program, and fact that stairs had not been inspected in 27 years, establishing that building owner had constructive notice of condition. The court also noticed that stairs do not normally collapse absent negligence and that plaintiff did not contribute to the condition. Conklin v 500-512 Seventh Ave., LP, LLC


Labor Law §240   Labor Law §241   Industrial Code   Expert Aff   Speculation  

First

Plasterer scraping ceiling when the unsecured ladder he was standing on moved causing him to fall entitled to summary judgment on Labor Law §240(1) against condominium and its managing agent. Test of whether an entity is an agent for the owner under Labor Law §§240(1), 241(6), is not whether it controlled the work but whether it had the authority to supervise the work. Defendants granted summary judgment on Labor Law §241(6) based on plaintiff’s testimony establishing that neither of the industrial code provisions relied upon by plaintiff were violated. The plaintiff statement that he “slipped” on the ladder did not contradict his testimony in that he slipped after the ladder moved. Defendants’ experts’ opinions that no force could have acted on the ladder to cause it to move was speculative. Merino v Continental Towers Condominium


Venue  

Second Deptartment

Change of venue from Kings to Rockland County denied where plaintiff cross moved to keep venue in Kings based on affirmation treating doctor in Manhattan that he intended to testify and traveling to Rockland County would greatly inconvenience him. Defendant failed to submit proof that his witnesses would be inconvenienced by traveling to Kings County. Oster v Bluming

Comment: This would appear to give plaintiffs a relatively easy way of keeping venue in a plaintiff friendly venue but informs defendants on how to properly oppose.

NOTEWORTHY
(11 summaries)
MUST READS IF YOU MUST READ

Premises Liab   3rd Party Contractor   Res Ipsa Loquitor   Circumstantial Evidence   Notice  

First

Plaintiff who was struck on the top of her head by a hot metal washer falling through the ceiling of an elevator raised an issue of fact on circumstantial evidence that elevator company was working on an elevator several floors up and adjacent to the one she was in where such a washer was used, and no other work was being done by any other contractor. Failure to specifically plead res ipsa loquitor did not bar its application but issues of fact as to whether it applied remained. Dormitory authority granted summary judgment on proof that it had no notice of the condition. Ocasio v Dormitory Auth. of the State of N.Y.


Labor Law §241   Labor Law §200   Industrial Code   Amend BP  

Second Deptartment

Environmental consultant and engineer subcontractors granted summary judgment on Labor Law §200 and negligence on proof that they did not have authority to control the work of the general contractor’s employees who were injured when exposed to toxic substances while excavating and transporting material from a landfill for environmental testing as part of a highway project. Neither industrial code 12-1.4(b)(air contamination) nor OSHA were predicates for liability under Labor Law §241(6) and lower court properly denied plaintiff’s cross motion to amend the BP to include industrial cod 23-1.7(g) (air contamination) which was inapplicable because it referred to unventilated confined areas. Marl v Liro Engrs., Inc.

Comment: Companion decision to Grasso v New York State Thruway Auth. Under Must Reads above.


Labor Law §240   Labor Law §241   Safety Devices   Sole Cause   Industrial Code  

First

Questions of fact existed whether plaintiff could have or should have tied his lanyard to an available lifeline precluding summary judgment for plaintiff on Labor Law §240(1). Plaintiff’s testimony showed that the alleged violation of the industrial code was not a factor in his accident entitling defendants to summary judgment on Labor Law §241(6). Colon v Metropolitan Transp. Auth.


Med Mal   Accepted Practice   Causation   Expert Aff  

First

Plaintiff raised issues of fact in opposition to defendant’s prima facie showing of entitlement to summary judgment by her expert’s opinions that defendant departed from accepted practice by discontinuing tyrosine kinase inhibitors for plaintiff’s decedent’s chronic myeloid leukemia and not starting a corticosteroid regimen before the decedent’s liver function became severely impaired. Carino v Patel


Personal Juridiction   Motion to Dismiss   Service  

Second Deptartment

Lower court improperly conducted hearing on foreign service and dismissed 3rd party complaint for improper service where affidavit of service was prima facie proof of service and 3rd party defendant failed to make out prima facie entitlement to hearing that would shift burden to defendant/3rd party plaintiff. Mileski v MSC Indus. Direct Co., Inc.


MVA   Bus  

Second Deptartment

Defendants failed to meet burden of proof for summary judgment where plaintiff testified that she was thrown to the floor and from the front to the middle of the bus which creates a question of fact if stop was “unusual and violent.” Gani v New York City Tr. Auth.

Comment: A plaintiff’s bald statement that a stop was unusual and violent would not be sufficient but facts showing that it was unusual and violent, as in this case, are sufficient.


Premises Liab   Notice   Unsigned Transcript   Admission   Feigned Issue  

First

Restaurant granted summary judgment where plaintiff did not see wet substance on steps of ride at Chucky cheese that she slipped on and admitted that someone could have spilled something moments before she fell. Her affidavit claiming that she reached for a handrail that was not there contradicted her testimony at deposition raising only a feigned issue. Unsworn deposition could be used on proof that it was sent to plaintiff’s attorney for plaintiff’s review and not returned and certified transcript could be used as admission especially where there was no dispute as to its accuracy. Luna v CEC Entertainment, Inc.


Premises Liab   Create Condition   Speculation   Unknown Cause  

Second Deptartment

Former commercial tenant of warehouse where plaintiff was injured when 1 of 3 steel beams leaning against wall fell, granted summary judgment on proof that it did not create the condition and plaintiff failed to raise issue on what caused beam to fall or how it was related to former tenant’s placement of the beams without speculation. Schonbrun v Marjep Realty Corp.


MVA   Comparative Fault   Sole Cause   There to be Seen  

Second Deptartment

Defendant failed to establish that plaintiff’s negligence in pulling out from parking space was sole proximate cause of accident and that defendant was not at fault for failing to see what was there to be seen and avoid collision. Inesta v Florio


MVA   Bicycle   Turning Vehicle   Comparative Fault  

First

Bicyclist established that truck turning left failed to yield the right-of-way but failed to establish that he was free from comparative fault in not avoiding the accident and, therefore, not entitled to summary judgment. Bermeo v Time Warner Entertainment Co., L.P.


Venue  

First

Defendant’s motion to change venue from New York County, which was an improper venue at the time of commencement, granted and plaintiff’s cross motion to change venue to Bronx county without proof of inconvenience of witnesses was denied. Carr v Trans Am. Express, Inc.

IF YOU MUST READ
(2 summaries)
MUST READS NOTEWORTHY

Med Mal   Accepted Practice   Untimely  

Second Deptartment

Two defendants granted summary judgment on expert’s opinion of no departure and plaintiff failed to raise an issue in opposition. One defendant denied summary judgment where motion was untimely, and he failed to make a prima facie showing for summary judgment. The court does not give the details of the facts. Burger v Das


Serious Injury   Question of Fact  

Second Deptartment

Upon a grant of reargument, the Second Department adhered to its prior decision (NYTW Vol. 65) reversing a grant of summary judgment on serious injury where defendants failed to make out a prima facie case and upheld the lower court’s denial of summary judgment on liability where defendants failed to eliminate all questions of fact. The court does not give the details of the facts. Cervantes v McDermott

About Matt McMahon

Civil trials and appeals since 1984
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