March 14, 2023 | Vol. 356

(4 summaries)

Emotional Harm   Outrageous Conduct   Causation   Notice  

First Department
The First Department adopted the rule in the other 3-departments that “extreme and outrageous conduct” is no longer a required element for negligent infliction of emotional harm clarifying that emotional harm, even without physical injury, is compensable when it is ‘a direct, rather than a consequential, result of [a] breach [of duty]’ and there is ‘some guarantee of genuineness’ of the emotional harm.

The Court found the humiliation, embarrassment, feelings of violation, paranoia, fear the videos could be posted online, the victims could be identified, and that there were other videos of the 14-plaintiffs, women who were surreptitiously videoed using the bathroom through a peephole between the men’s and ladies rooms, was unquestionably genuine psychological trauma and could be found to be the direct result of the defendant-building-owner’s negligence where multiple complaints of the peephole had been made to the building for several months before the camera was discovered. Defendants’ motion for summary judgment denied. Brown v New York Design Ctr., Inc.    

Comment: New York General Business Law §395-B prohibits the use of 2-way mirrors or other devices for surreptitiously observing the interior of “any fitting room, restroom, toilet, bathroom, washroom, shower, or any room assigned to guests or patrons in a motel, hotel or inn.”

Child Victims Act   Negligent Supervision   Warnings   Motion to Dismiss   Duty   Control   Foreseeability   Notice  

Second Department
School’s motion to dismiss Child Victims Act case for failure to state a cause of action denied as allegations school knew or should have known of child molestation propensity of priest whom principle sent plaintiff to for disciple was sufficient to state a cause of action for negligent supervision, which does not have to be pled with specificity. Allegation that defendants released plaintiff into a known and foreseeably hazardous situation was sufficient to raise an issue that the duty to supervise extended beyond school grounds, even where the priest was not their employee.

Negligent failure to warn claim was not duplicative of negligent supervision claim but since the priest was not school’s employee, negligent training claim dismissed. Sullivan v St. Ephrem R.C. Parish Church    

Renew   Strike Answer   CPLR § 3126   Discovery  

First Department
Claim that defendant failed to fully comply with so ordered stipulation which resolved plaintiff’s original motion to strike defendant’s Answer was an insufficient basis for a motion to renew and, in any event, defendant provided all of the demanded records within its possession and an affidavit of its search efforts. Patterson v Beth Abraham Nursing Home    

Motion to Dismiss   Statute of Limitations   Renew  

Second Department
Plaintiff’s motion to renew opposition to defendant’s motion to dismiss on statute of limitations properly granted and motion to dismiss denied based on Second Department’s ruling shortly after the lower court’s grant of defendant’s motion to dismiss that governor’s COVID extensions constituted tolls not suspensions. Adding the 228-days the statutes of limitations were tolled, the action was timely commenced. McLaughlin v Snowlift, Inc.    

(13 summaries)

Premises Liab   Sidewalk   Vacate Default   Reasonable Excuse   Prejudice   Unknown Cause   Trivial   Notice  

First Department
Plaintiff’s motion to vacate default providently granted where her counsel’s inadvertent calendaring of oral argument was excusable law office failure for not appearing at oral argument, there was no proof of dilatory conduct, plaintiff quickly moved to vacate the default, and plaintiff had timely filed opposition to the motion for summary judgment. Summary judgment denied where submissions showed plaintiff consistently identified the cause of her fall on the sidewalk and photographs raised issues of whether the defect was trivial and whether defendant had constructive notice of the defect. Blanco v Quality Gas Corp.    

Malpractice   Informed Consent   CPLR §306-b   Experts   Causation   Conclusory   Speculation   Vicarious Liab   Consolidation  

First Department
Plaintiff’s CPLR §306-b motion to extend time to serve hospital in the interest of justice denied where she made no attempt at service after being granted permission to add hospital and waited 7-months after defendants moved for summary judgment on grounds claim against hospital was abandoned before seeking extension. Plaintiff’s motion to consolidate case with her other case denied where the cases involved different procedures, time periods, medical records, and witnesses and were at vastly different stages of discovery so that consolidation would not serve judicial economy or the interest of justice.

Vicarious liability claim on ostensible agency dismissed where plaintiff was referred to the specific doctor who performed the procedure even though she was admitted through the ER. Informed consent claim dismissed where medical records clearly contradicted plaintiff’s statement that she was not advised of the risks and non-surgical alternatives. Defendants failed to meet burden for summary judgment dismissing plaintiff’s CRPS claim where their expert’s opinion was conclusory and not supported by the record. Krembs v NYU Langone Hosps.    

Negligent Supervision   Negligent Hiring   Assault   Motion to Dismiss   Court of Claims  

Second Department
Allegations in Claim that plaintiff was sexually assaulted by psychiatric center’s employee over a specified 3-month period sufficiently pleaded when the claim arose under Court of Claims Act §11(b) as “absolute exactness” is not required and it was sufficient to allow the State you promptly investigate the Claim. D. G. v State of New York    

Malpractice   Accepted Practice   Causation   Experts   Speculation   Conclusory  

First Department
Defendants met burden for summary judgment where records and their expert’s opinion established plaintiff’s hemorrhaging during an abortion was result of uterine atony, not a departure from accepted practice. Plaintiff’s expert’s opinion that defendants departed from accepted practice by not timely recognizing and suturing cervical bleeding did not raise an issue where it was refuted by the record, conclusory, speculative, and did not address defendants’ expert’s opinion it was from uterine atony. Connor v Gluck    

Malpractice   Amend Complaint   Punitive Damages  

Second Department
Plaintiffs’ motion to amend the Complaint to add a punitive damage claim providently denied as devoid of merit where the allegations did not demonstrate “a high degree of moral culpability or constituted willful or wanton negligence or recklessness.” Buccigrossi v Glatman    

Note of Issue   Discovery  

First Department
Defendant’s motion to strike the Note of Issue denied where the Certificate of Readiness correctly stated there was no outstanding discovery. Defendant’s claim discovery might become necessary because a third-party-defendant indicated it would appear after defaulting was insufficient to strike the Note of Issue and delay plaintiff’s resolution of his claim. Tatis v Triborough Constr. Servs., Inc.    

Vacate Jud   Estate   Capacity to Sue   Reasonable Excuse   Meritorious Action   Prejudice  

First Department
Pro se defendant’s motion to vacate judgment because no representative was appointed for 10-years after plaintiff died providently denied where plaintiff’s excuse for the delay was reasonable, the judgment was proof of a meritorious action, and defendant was not prejudiced given his failures to discharge the judgment in bankruptcy. Strum v Bressler    

Labor Law §240  

Second Department
GC granted summary judgment dismissing Labor Law §240(1) claim of worker injured when he stepped back into a hole in concrete basement floor of home under construction that was cut for installation of an ejector pump as it was not the result of an elevation-related hazard protected by §240. The Court does not give the details of the proofs. Balfe v Graham    

Comment: From lower court decision, the hole was only 2′ deep and the duct which plaintiff claimed shifted causing him to move backwards was between 12-20 pounds and did not need to be secured.

Labor Law §240   Ladder   Sole Cause   Question of Fact  

First Department
Plaintiff’s cross-motion for summary judgment denied where foreman’s testimony refuted plaintiff’s version that he fell from an unsecured extension ladder while demolishing a platform and raised an issue of whether plaintiff was the sole cause of his accident due to intoxication. Hernandez v 46-24 28th St., LLC    

Premises Liab   Sole Cause  

Second Department
Landlord failed to meet its burden for summary judgment even though plaintiff testified she lost her balance while stepping out of the shower in her apartment because her knee buckled as there can be more than one proximate cause of an accident and she further testified the vanity she grabbed to gain her balance moved 5″causing her to further lose her balance and fall and the super testified a properly installed vanity should not move away from the wall under normal use. Moe-Salley v Highbridge House Ogden, LLC    

Premises Liab   Stairs   Snow/Ice   Out of Possession  

Second Department
Owners of 2-family home where plaintiffs slipped on icy stairs failed to meet burden for summary judgment on claim they were out of possession owners where they did not submit any lease and the deposition testimony they submitted raised issues of whether they were responsible for maintaining the property and snow removal and had done so in the past. Defendants could not meet their burden by pointing to gaps in plaintiffs’ proofs. Maharaj v Kreidenweis    

MVA   There to be Seen   Sole Cause  

Second Department
Driver of vehicle struck by vehicle plaintiff was a passenger in when it changed lanes granted summary judgment as vehicle changing lanes was negligent per se for unsafe lane change, VTL §1128(a), and failing to see what was there to be seen, making it the sole proximate cause of accident. Guido v Dagnese    

MVA   Serious Injury   Discovery   IME/DME   Premature Motion  

Second Department
Plaintiff’s motion for summary judgment on liability and serious injury providently denied as premature where no depositions or IME/DMEs had been held. The Court does not give the details of the proofs. Cruz v Fanoush    

(2 summaries)

MVA   Sole Cause   Emergency Doctrine   Survelliance Video  

First Department
Dashcam video which plaintiff conceded told “the entire story” showed the non-moving defendant was the sole cause of the accident with no negligence by the moving defendants who had only seconds to react under the emergency doctrine. The Court does not give the details of the proofs. Calderon v Calise    

Serious Injury   Causation  

Second Department
Defendants failed to meet burden for showing plaintiff’s shoulder injury was not serious under significant disfigurement category or that it was not caused by the accident. The Court does not give the details of the proofs. Robinson v Peluso    

About Matt McMahon

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

Comments are closed.