Labor Law §240 Labor Law §241 Labor Law §200 Directed Verdict Set Aside Verdict Control Create Condition Industrial Code
NYCTA and GC for subway tunnel renovation project granted directed verdict at close of evidence on Labor Law §200 and negligence claims where defendants did not have control over contents that fell on plaintiff inside box truck used by plaintiff’s employer and on Labor Law §240(1) as objects that fell were not being hoisted, required to be secured for the work, and they did not fall because of lack of an adequate safety device leaving no rational path for jury to find for plaintiff on these claims. Jury was able to find no violation of Labor Law §241(6) on fair interpretation of the evidence that no “passageway, walkway, stairway or other thoroughfare” was obstructed under industrial code §23-2.1(a)(1). Bianchi v New York City Tr. Auth. ✉
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Labor Law §241 Industrial Code Agent Control
Defendants denied summary judgment on Labor Law §241(6) claim where employee of contractor hired to paint Verrazano Bridge towers tripped on spray line covered with debris in employer’s box van where they stored paint cans and pumps, as question remained of whether it was a violation of industrial code §23-1.7(e)(2) requiring work areas be free of dirt and debris. Consulting engineer failed to meet burden of showing it did not have authority to correct unsafe conditions or make sure work was done in a safe manner, leaving question of whether it was a statutory agent of owner under Labor Law. Kavouras v Steel-More Contr. Corp. ✉
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Malpractice Informed Consent Accepted Practice Causation Experts Conclusory BP
OB/GYN and his practice met burden for summary judgment on his own affidavit opining he did not depart from accepted medical practice, he fully discussed risks and alternatives to Essure sterilization procedure, and that his treatment did not contribute to plaintiff’s cardiac decompensation and bypass surgery 3-days after the procedure. Plaintiff’s expert raised issues in opposition by opinions that were not vague or conclusory as they were supported by detailed reasoning, citations to the record, and addressed defendant’s opinions. Plaintiff’s expert opined she should have been advised of a less invasive alternative and sent for further testing before the procedure. Plaintiff stated she was not apprised of alternatives and would have chosen the less invasive alternative if apprised. Claim that defendant failed to diagnose diabetes before the procedure was not a new theory but expansion of the allegations in the BP. Cox v Herzog ✉
Comment: Essure Sterilization was removed from the market in 2018-2019. A reported $1.6 billion was paid to settle nearly 39,000 claims according to Drugwatch.
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Labor Law §200 Premises Liab Control Create Condition Notice Conclusory
Defendants failed to meet burden for summary judgment where they presented only proof they did not have control over the means and methods of plaintiff’s work under Labor Law §200 and negligence claims, failing to address plaintiff’s claim hinged gate door that blue shut injuring him was a dangerous condition and whether they created or had actual knowledge of the condition in time to correct it. Defendants’ claim that only means and methods of work theory was implicated was conclusory. Rodriguez v HY 38 Owner, LLC ✉
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Vacate Default Reasonable Excuse Prejudice
Defendant’s proof it did not receive Summons/Complaint for several months after Secretary of State was served provided reasonable excuse for delay in answering, discrepancy between deed address and Secretary of State address did not show willful failure to maintain address with Secretary of State, and plaintiff did not claim prejudice in delay. Default vacated. Cuenca v Beach 65 LLC ✉
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Premises Liab Sidewalk Snow/Ice § 7-210 Homeowner Exception
Abutting landowner denied summary judgment for decedent’s fall on snow/ice on sidewalk on landowner’s testimony she allowed someone to store business equipment in garage and display a sign which she later had removed because it looked like she was operating a business, leaving a question of whether the sign and equipment were incidental to the residential use of the property for the homeowner exception of administrative code §7-210. Easement holders for driveway granted summary judgment on proof decedent fell on sidewalk, not on driveway, and they had no obligation to maintain the driveway. Shamilova v Berkowitz ✉
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Premises Liab Sidewalk Duty
Defendants failed to meet burden for summary judgment without proof they did not own, occupy, control, or make special use of sidewalk where plaintiff tripped and fell. Izgelova v 97-49 63rd Dr., LLC ✉
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Serious Injury ROM Experts Admissibility Unaffirmed Report
Defendant met burden for summary judgment on serious injury by IME/DME physician’s report showing normal ROM, no positive findings, and pointing out that plaintiff’s medical records including x-ray and MRI reports were “unremarkable.” Un-affirmed medical reports submitted by plaintiff inadmissible except for MRI and x-ray reports relied upon defendant which supported defendant’s doctor’s conclusion. Plaintiff’s medical expert’s findings based on examination 8-years after accident were too remote to raise an issue and they did not dispute that plaintiff ceased treatment 4-months after accident. Cortez v Bray ✉
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Serious Injury ROM Degenerative Causation Experts NYC
Defendants granted summary judgment on serious injury where IME/DME doctor found normal ROM, injuries had resolved, opined that plaintiff’s MRIs showed degenerative conditions not related to an accident, and ER records showed only knee contusion with no mention of neck, back, or shoulder injuries. Affirmed medical report submitted by plaintiff in opposition failed to raise issue where plaintiff was first seen 4-years after accident with no evidence of contemporaneous treatment. 90/180-day category claim dismissed where there was no causation between accident and injuries and BP and testimony claimed plaintiff confined to home for only 3-days after accident. Reyes-Mendez v City of New York ✉
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MVA Bus Emergency Doctrine
Defendants failed to meet burden for summary judgment without proof bus did not come to an unusual and violent stop as plaintiff was walking back after boarding, and did not meet burden of showing emergency doctrine applied. Gethers v Metropolitan Transp. Auth. ✉
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Construction Liab. Create Condition Premature Motion
Defendants granted summary judgment where plaintiff tripped on rut in street plaintiff claimed they created on proof they did no work in area of accident and did not create the condition. Arena v City of New York ✉
Comment: Additional defendant granted summary judgment on proof it did no work in area and did not create condition and plaintiff failed to show what evidence exclusively within defendant’s possession was necessary to oppose motion on claim motion was premature. Arena v City of New York.
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MVA Question of Fact Comparative Fault
Defendant-driver’s testimony, submitted by plaintiff on motion for summary judgment, with conflicting account of the position of the 2-vehicles in the intersection and points of impact failed to eliminate questions of fact on plaintiff’s motion for summary judgment. Plaintiff also failed to eliminate questions of fact on affirmative defense of comparative fault. Yubin Ni v Milio ✉
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Qualified Immunity Causation Experts
Defendants made out prima facie entitlement to summary judgment on serious injuries, but plaintiff raised issue in opposition. As defendants’ expert conceded plaintiff’s injuries were caused by the accident, the burden on causation never shifted to plaintiff. The Court does not give the details of proofs. Maitre v Empire Paratransit Corp. ✉
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