March 15, 2022 | Vol. 304

(6 summaries)

Malpractice   Motion to Dismiss   Statute of Limitations  

First Department
Radiologist’s motion to dismiss malpractice action on statute of limitations granted as CPLR §214-a (Laverne’s Law), that provides discovery rule for cancer or malignant tumors, was effective for causes of action accruing on or after July 31, 2015, 14-months after accrual of plaintiff’s cause of action. Revival portion of Laverne’s Law applies to causes of action barred by statute of limitations within 10-months before enactment of §214-a (3/31/17-1/31/18) not applicable as plaintiff’s cause of action was time-barred 4-months before revival date. Ford v Lee    

Comment: There is a 7-year statute of repose for the §241-a discovery rule.

Malpractice   Amend Answer   Comparative Fault   Untimely   Note of Issue   Reasonable Excuse   Prejudice  

First Department
Defendants’ motion to amend their Answers to include culpable conduct and comparative fault defenses based on plaintiff’s weight and smoking history granted with defendants ordered to appear for additional EBTs within 60-day and provide proper verifications. Defendants not required to provide a certificate of merit but only show the defenses are not palpably insufficient or devoid of merit and comparative fault for smoking is not per se meritless. Failure to include proposed Amended Answers was technical error corrected in reply and improper verifications were technical errors that could be corrected. Defendants did not have to show a reasonable excuse for delay in making motion to amend as delay was not unreasonable, and motion was brought before Note of Issue. Johnson v Montefiore Med. Ctr.    

MVA   VTL §1104   Reckless   Speculation  

Second Department
Village Police Department denied summary judgment on claim reckless standard of VTL §1104(e) applied as plaintiff’s claim police vehicle went through a red light was found to be speculative, leaving none of the enumerated activities of §1104(b) that would trigger the reckless standard. Defendants failed to show police officer did not contribute to the accident by ordinary negligence. Cooney v Port Chester Police Dept.    

Labor Law §240   Labor Law §241   Unknown Cause   Noseworthy   Speculation   Indemnity  

First Department
Building owner granted summary judgment dismissing Labor Law §§240(1) and 241(6) claims where decedent fell off extension ladder during renovation and decedent’s employer granted summary judgment dismissing common law and contractual contribution and indemnity claims as there were no witnesses, direct, or circumstantial evidence to show how decedent fell and it was just as likely he mis-stepped as that he fell from a defective or improperly secured ladder. Because defendants’ knowledge of the cause of the fall was no greater than plaintiff’s, Noseworthy doctrine inapplicable.

Employer denied summary judgment of breach of contract to procure insurance claim without submitting a copy of the policy and a question remained of whether the contract dated before the accident but executed 2-years later applied. Public Adm’r of Queens County v 124 Ridge LLC    

Vacate Default   Discovery   CPLR § 3126   Willful/Contumacious   HIPAA  

Second Department
Electrician’s motion to vacate order dismissing case on CPLR §3126(3) for failure to comply with discovery orders to provide authorizations, including authorizations for workers comp records involving 25-prior accidents where plaintiff only testified to one prior accident, which warned of sanctions including dismissal for failure to comply, denied as repeated failure to comply with court orders over 1.5-years was willful/contumacious justifying dismissal. Patrick v Lend Lease (US) Constr. LMB, Inc.    

Premises Liab   Snow/Ice   3rd Party Contractor   Duty   Espinal  

Second Department
Parking lot management company granted summary judgment on proof it did not owe plaintiff a duty of care as a third-party contractor without having to eliminate Espinal exceptions as plaintiff did not expressly plead any Espinal exceptions in the Complaint or BP. Bushneva v City of New York    

(16 summaries)

Malpractice   Note of Issue   90 Day Notice   Appealable Order  

Second Department
Lower court had no authority to sua sponte dismiss action for failure to file Note of Issue where a valid 90-day notice was not served and failure to comply with discovery order did not constitute extraordinary circumstances warranting dismissal. Appeal from sua sponte order was deemed a motion for leave to appeal, leave granted, and order reversed. Moreau v Cayton    

Labor Law §240   Labor Law §240   Ladder   1-2 Family Exception  

Second Department
Owners of house with 2-story barn they used at times as an art studio granted summary judgment dismissing house painter’s Labor Law §§240(1) and 241(6) claims of fall from ladder when painting barn exterior on 1-2 family exception to §§240, 241 on proof contracted work was for owners’ residential use of the premises and they did not direct or control the work. Bates v Porter    

Premises Liab   Snow/Ice   Out of Possession   Experts   Conclusory   Indemnity  

First Department
Property owner granted summary judgment on proof it was an out of possession owner with only a right of reentry and its engineering and meteorological experts demonstrated the snow/ice was not caused by a structural drainage issue but by the natural accumulation of snow/ice that was not removed. Plaintiff’s expert’s opinions should have been considered where CV inadvertently omitted was subsequently provided by letter but it did not raise an issue where it was conclusory and vague without foundation for the opinions, such as an inspection.

Owner’s motion for summary judgment against tenant for failure to procure insurance granted and not moot as owner was self-insured and entitled to recover defense costs. Brown v Shurgard Stor. Ctrs. LLC    

Premises Liab   Duty   Open/Obvious   Building Code   Unknown Cause   NYC  

Second Department
NYC and Mets defendants granted summary judgment where decedent used barricaded stationary escalator to exit after seventh inning and fell 50’ over escalator handrail on proof escalator was barricaded and attendees instructed by announcements and security officers to use ramps to exit, the escalator was in good working order and did not violate any applicable codes or industry standards, fact it was not moving was open/obvious and a stationary escalator is not inherently dangerous, and plaintiff could not identify what caused the fall. This also established that defendants met their nondelegable duty to provide safe ingress/egress for premises open to the public. Questions of whether barricade had been moved were insufficient to raise an issue in opposition. Narainasami v City of New York    

Set Aside Verdict   Notice  

Second Department
Town’s motion to set aside verdict and for judgment as a matter of law granted where plaintiff was hit by pole for street name sign that fell on her as there was no rational path for jury to find rust on pole alone was sufficient to give town constructive notice of the defect even though there was sufficient evidence to show the pole fell because of deterioration and rusting over time. McNeill v Town of Islip    

MVA   Vacate Default   Preclusion   Untimely   Reasonable Excuse  

First Department
Plaintiff failed to specify any CPLR §5015 grounds to vacate prior discovery orders or for a protective order or to provide a reasonable excuse for not moving to vacate the orders within a reasonable time. Lower court’s grant of limited preclusion for noncompliance was a provident exercise of discretion. Singh v Genovese    

Malpractice   Informed Consent   Directed Verdict   Set Aside Verdict   Accepted Practice   Waiver   Raised For First Time  

Second Department
OB/GYN’s motion for directed verdict at close of plaintiffs’ case granted where plaintiffs’ expert did not testify to any deviation from accepted practice during surgery to remove fibroid or address plaintiffs’ claim of lack of informed consent.

Plaintiffs waived claim they were deprived of fair trial because court-appointed Spanish interpreter mistranslated questions and testimony where they did not object, move for a mistrial, or request a different interpreter at trial and daughter’s affidavit regarding translations was not considered as it was dehors the record. Navarro v Ortiz    

Labor Law §240   Ladder   Experts  

First Department
Building owners’ motion for summary judment of Labor Law §240(1) claim of tenant’s employee who fell from ladder while cleaning glass suspended from ceiling 15′ above floor denied where questions remained of whether worker was exposed to an elevated risk by performing the work “as it was intended to be performed,” and owner’s expert’s account of how accident occurred based on review of a video differed from plaintiff’s. Credibility issues of owner’s expert’s opinion that plaintiff could have cleaned the glass while standing on the floor with an extension stick remained where the expert did not define his measurements or how they were made, did not opine whether the worker could have applied sufficient force using an extension stick while standing on the ground, and opined that ladders were available and appropriate for the task. Durasno v 680 Fifth Ave. Assoc., L.P.    

Labor Law §240   Labor Law §241   Industrial Code   Create Condition   Notice   Speculation  

Second Department
Owner and GC granted summary judgment of Labor Law §240(1) claim that 1000-pound hydraulic jack fell on elevator installer’s foot when he slipped on oil on box truck floor while he tried to secure the jack as the accident was not the direct cause of an elevated-related risk but caused by the ordinary risk of slipping on oil. Owner and GC failed to meet burden for summary judgment of §241(6) claim based on industrial code §23-1.7(d)(slippery substances) without proof the box truck floor was not a surface covered by that industrial code.

Defendant that provided hydraulic jack and company that delivered it in the box truck granted summary judgment on proof they did not create or have notice of the oil condition. Plaintiffs’ claim oil came from mis-positioned jack was speculative. Delivery company granted summary judgment of §§240, 241 claims on proof it was not an agent of the owner. Schutt v Dynasty Transp. of Ohio, Inc.    

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

Second Department
Order which granted roofer’s motion for summary judgment on Labor Law §241(6) for violation of industrial code §23-1.7(b)(1)(i)(protections for hazardous openings) but denied summary judgment of his §240(1) claim where he fell through roof opening for chimney hidden by a black ice/water shield covering, finding roofer sole cause of accident where he removed rope attached to his safety harness because it would not reach to area he went to help coworker, reversed and plaintiff granted summary judgment of §240 claim as violation of industrial code provision for §241 proved violation of §240 by lack of adequate safety device and worker cannot be found to be sole cause where there is a violation of §240. Mejia v 69 Mamaroneck Rd. Corp.    

Labor Law §240   Labor Law §241   Industrial Code   Control   Gravity Risk  

First Department
Building owner’s motion for summary judgment of Labor Law §240(1) claim where stack of 25-30 sheet-rock panels propped against wall fell on worker denied for questions of whether injury was result of force of gravity, elevation differential was de minimis, and panels could generate enough force as they fell. Subcontractor granted summary judgment of §240 claim on proof it was not the GC and did not control plaintiff’s work. Plaintiff’s Labor Law §241(6) claim based on industrial code §23-2.1(a)(1) dismissed as accident did not occur in a passageway, hallway, stairway, or walkway. Kuylen v KPP 107th St., LLC    

Premises Liab   Trivial   Open/Obvious   Inherently Dangerous  

Second Department
While defendant proved height differential plaintiff tripped on in Coney Island’s Luna Park was “small,” it failed to show surrounding circumstances, including it being in a crowded amusement park with distractive lights and noises, did not ‘magnify the dangers it pose[d]’ or that the condition was open/obvious and not inherently dangerous where it might be concealed by the crowd. Sessa v Central Amusement Intl., LLC    

Premises Liab   Create Condition   Notice   Last Inspection   Experts  

First Department
College failed to show it did not create or have constructive notice of condition where ladder in plaintiff’s door swung out as she climbed to her loft bed causing her to fall without addressing plaintiff’s specific allegations or showing last time ladder was inspected. In any event, plaintiff’s testimony that ladder made a metallic clicking sound every time she climbed it and expert’s opinion that it preexisted the accident raised issues in opposition. Moss v Marymount Manhattan Coll.    

Pothole Law   Prior Written Notice   Create Condition   NYC  

Second Department
NYC granted summary judgment on proof it did not receive prior written notice or create hole plaintiff tripped on in crosswalk and evidence of repair at same intersection 2-years earlier, without proof it created an immediate danger, failed to raise an issue in opposition. Zarnalieva v City of New York    

MVA   Rear End   Sole Cause  

Second Department
Proof decedent drove his vehicle at an excessive speed into the rear of a double parked truck without slowing down or swerving and that he had an elevated alcohol level showed he was the sole proximate cause of the accident and defendant’s truck being double parked merely provided the occasion for the accident even if the hazard lights were not engaged. Charles v Bagels by Bell, Ltd.    

Labor Law §241   Labor Law §200   Industrial Code   Create Condition   Notice  

First Department
Defendant’s motion for summary judgment on Labor Law §§ 241(6), 200, and negligence denied as plaintiff was performing painting/plastering work in context of construction and questions remained of whether plastic covering over new flooring caused his fall in violation of industrial code §23-1.7(e)(tripping hazard) and whether defendant created or had notice of the condition. Fuentes v Lindsay Park Hous. Corp.    

(1 summaries)


First Department
Plaintiff’s motion for summary judgment denied where plaintiff and defendant gave different accounts of how MVA occurred. The Court does not give the details of the proofs. Burton v Davis    

About Matt McMahon

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