March 16, 2021 | Vol. 253

(4 summaries)

MVA   Directed Verdict   Set Aside Verdict   Appealable Order  

Second Department

Plaintiff’s appeal from order and judgment entered after denial of motion for directed verdict or to set aside verdict as against weight of evidence dismissed as no appeal lies from order after judgment is entered and plaintiff failed to provide full trial transcript making record inadequate for Court’s review. Hayashi v Cadet    

Vacate Jud   Costs/Disbursements   Settlement  

First Department

NYC marshal awarded $589,397.90 in poundage and attorney fees after plaintiff and attorney arranged to receive judgment funds of $11,611,177.90 directly from Port Authority without poundage fees, after marshal served notice of levy and execution with plaintiff’s and attorney’s knowledge and consent. Agreement not to seek mileage, poundage, or other fees if judgment was set aside did not encompass plaintiff’s subsequent settlement with Port Authority that prevented marshal from recovery of poundage fees. Marshal judgment against plaintiff and attorney for poundage fees upheld. Nash v Port Auth. of N.Y. & N.J.    

Building Security   Premises Liab   3rd Party Contractor   Duty   Espinal   Control   Foreseeability   Notice   Respondeat Superior  

Second Department

Falling perfume bottles that sounded like gunshots when Macy’s security guards attempted to apprehend shoplifter caused shoppers to panic and plaintiff to be knocked over by employee of store she was in while employee fled after another employee yelled “run.” Security company hired by mall for common areas granted summary judgment on proof its contract specifically stated parties not listed in agreement had no rights as third-party beneficiaries and there was no proof security company’s employee yelled “run” for the launch an instrumentality of harm exception of Espinal, the only exception pleaded. Mall denied summary judgment as their training and drills for evacuating mall and for active shooters demonstrated knowledge of need to protect against panicked shoppers and mall failed to show they did not have notice of the situation or opportunity to control the panic before it reached the store plaintiff was in. Grogan v Simon Prop. Group, Inc.    

Big Apple Pothole   Prior Written Notice   NYC  

Second Department

NYC granted summary judgment on proof that most recent Big Apple pothole map did not show defect on curb plaintiff tripped on and that it received no other prior written notices of a defect. Competing Big Apple map submitted by plaintiff showing defect failed to raise issue in opposition without proof of when it was served on NYC. Abdullah v City of New York    

(13 summaries)

Labor Law §240   Labor Law §241   Labor Law §200   Directed Verdict   Set Aside Verdict   Control   Create Condition   Industrial Code  

Second Department

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.    

Labor Law §241   Industrial Code   Agent   Control  

Second Department

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.    

Malpractice   Informed Consent   Accepted Practice   Causation   Experts   Conclusory   BP  

Second Department

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.

Labor Law §200   Premises Liab   Control   Create Condition   Notice   Conclusory  

Second Department

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    

Vacate Default   Reasonable Excuse   Prejudice  

First Department

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    

Premises Liab   Sidewalk   Snow/Ice   § 7-210   Homeowner Exception  

First Department

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    

Premises Liab   Sidewalk   Duty  

Second Department

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    

Serious Injury   ROM   Experts   Admissibility   Unaffirmed Report  

First Department

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    

Serious Injury   ROM   Degenerative   Causation   Experts   NYC  

First Department

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    

MVA   Bus   Emergency Doctrine  

Second Department

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.    

Construction Liab.   Create Condition   Premature Motion  

Second Department

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.

MVA   Question of Fact   Comparative Fault  

Second Department

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    

Qualified Immunity   Causation   Experts  

Second Department

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.    

(3 summaries)

Sanctions   Subpoena  

First Department

Lower court erred in denying motion for contempt of defendant’s principle and sole employee for refusal to respond to post judgment information subpoena and subpoena duces tecum and giving corporation opportunity to correct contempt rather than impose sanctions. Remanded for imposition of sanctions. Matter of Goetz Fitzpatrick LLP v OTR Media Group, Inc.    

Strike Answer   Respondeat Superior   Spoliation  

Second Department

The Court found no reason to disturb lower court’s grant of summary judgment or the denial of plaintiff’s cross-motion to strike defendant’s Answer for spoliation. The Court does not give the details of the proofs. Thompson v Coast to Coast Auto Glass, LLC    


First Department

Appeal from grant of defendants’ motion to compel further EBT and discovery of brain imaging and medical authorizations for subsequent accident dismissed as moot where the deposition was conducted, and authorizations provided. Salomon v United States Tennis Assn.    

About Matt McMahon

Civil trials and appeals since 1984
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