March 17, 2020 | Vol. 202


MUST READS
(7 summaries)
NOTEWORTHYIF YOU MUST READ

Med Mal   Motion to Dismiss   Statute of Limitations  

Second Department
Plaintiff’s claim of failure to diagnose malignant breast cancer tumor seen on mammogram accrued after effective date of new discovery rule of CPLR §214-a but was timely where commenced within revival deadline of July 31, 2018 for actions time-barred on or after March 31, 2017. Action was time-barred on October 18, 2017 and commenced on February 5, 2018. Mula v Sasson


Discovery   Preclusion   Reasonable Excuse   Prejudice  

First Department
Complaint dismissed where plaintiff failed to provide authorizations for pre-existing injuries under self-executing conditional order of preclusion and could not make out prima facie case. Plaintiff failed to give reasonable excuse for failure to provide authorizations and defendants were not required to show prejudice. Diaz v Maygina Realty LLC


Motion to Dismiss   Statute of Limitations   Amend Complaint  

First Department
Defendant’s motion to dismiss amended Complaint naming it, filed 2-days after statute of limitations, granted and plaintiff’s cross motion to deem amended Summons and Complaint served nearly 6-months before statute of limitations but not filed until 2-days after statute of limitations filed nunc pro tunc denied as it was not a mere ministerial act and even if defendant was on notice of claim plaintiff could not overcome failure to file within statute of limitations. Defendant was not united in interest with any other parties for relation back doctrine nor could plaintiff rely on “John Doe” designation as he clearly knew identity of the defendant nearly 6-months before statute of limitations. Benitez-Rivera v New York Botanical Garden, Inc.


Vacate Default   Reasonable Excuse   Untimely  

Second Department
Plaintiff’s motion to vacate order dismissing action pursuant to rule 202.27 for failing to appear for trial marked final denied where excuse of law office failure was conclusory and unsubstantiated, and plaintiff offered no explanation for more than 1-year delay in moving to vacate default. Campbell v TPK Heating, Ltd.


Premises Liab   Slip/Trip   Snow/Ice   Appealable Order  

First Department
Condominium owner whose awning overhang sidewalk where plaintiff slipped on ice from melting snow that dripped from awning and re-froze failed to show it did not create the condition by its maintenance of the awning denying summary judgment against tenant but plaintiff’s claim which was dismissed below was not reinstated where plaintiff did not appeal the decision. Medina v Fischer Mills Condo Assn.


Premises Liab   Venue  

Second Department
Contractors’ motion to change venue from Queens to Suffolk County denied where venue was predicated on 1-contractor’s residence in Queens, accident occurred in Nassau, and contractor claimed principal place of business was in Suffolk where all other parties resided as contractor failed to show that Suffolk County was listed in certificate of incorporation and other contractor conceded Secretary of State website showed County of incorporation as Queens. County in certificate of incorporation is only residence for purposes of venue. Drayer-Arnow v Ambrosio & Co., Inc.


Police   Emergency Doctrine   Judgment Rule   NYC  

First Department
Defendants granted summary judgment where bystander was struck by errant bullet fired by officers in response to being attacked by person with hatchet who had injured 2-officers and was rushing a third officer as they were exercising their judgment/discretion in response to an emergency not in violation of Patrol Guide § 203-12. James v City of New York

NOTEWORTHY
(24 summaries)
MUST READSIF YOU MUST READ



MVA   Set Aside Verdict   Directed Verdict  

Second Department
Evidence that bus driver failed to slow bus on road with snow/slush upon observing car stopped in bus’s lane 4-blocks ahead causing bus to cross into oncoming lane either to pass stopped car or because it lost control and another car made right hand turn into lane bus traveling in, bus driver lost control and crashed into store injuring 2-passengers on bus and causing property damage to store established bus driver’s negligence as a matter of law in violation of VTL §1120(a)(driving on right side of road). Judgment on defense verdict set aside as there was no rational path for jury to find defendant free of negligence and judgment as a matter of law granted plaintiffs. Hodnett v Westchester County Dept. of Pub. Works & Transp.


Governmental Function   Special Duty   Premises Liab   Elevator   Hearsay   NYC  

First Department
NYC granted summary judgment for treatment of plaintiff’s infant-decedent with severe asthma where plaintiff failed to show promises or other indicia of a special duty. NYCHA granted summary judgment where plaintiff’s claim that EMS was delayed in getting to child because of nonfunctioning elevators was belied by mother’s testimony that she rode down the elevator with EMS and claim that elevators were not working just before EMS arrived was contradicted by testimony. Hearsay statements insufficient to raise issue of fact. Plaintiff failed to show delay was a cause of decedent’s death. Matter of Estate of Archibald v New York City Hous. Dept.


Late Notice of Claim   Vacate Default   Actual Knowledge   Reasonable Excuse   NYC  

Second Department
Infant’s and mother’s motions to serve late Notice of Claim denied where mother’s derivative claim was barred by statute of limitation when motion was made and on infant’s motion plaintiffs failed to show reasonable excuse for 1-year 4-month delay from sexual assault in foster home and 1-year 1-month delay from commencement of action before making motion. Conclusory claims delay was caused by infancy rejected without nexus between infancy and delay, plaintiff failed to show NYC acquired actual knowledge within 90-days or a reasonable time thereafter and claim that investigative records might exist was insufficient to raise issue. Plaintiff could not show NYC was not prejudiced by delay where NYC was not properly served with original motion, which was vacated, and it did not have notice of the claim for more than 2-years after accrual. E.R. v Windham


Negligent Supervision   Motion to Dismiss   Conclusory  

Second Department
Charter school’s motion to dismiss for failure to state cause of action denied where CFO affidavit conclusorily stating they did not contract with bus company where plaintiff was sexually assaulted on way to/from school and that it had no knowledge of prior sexual assaults did not conclusively establish plaintiff did not have a cause of action and plaintiff properly pleaded negligent supervision. Doe v Ascend Charter Schs.


Labor Law §240   Labor Law §241   Labor Law §200   Industrial Code   Raised For First Time   Indemnity  

First Department
Collapse of construction shed plaintiff was dismantling was prima facie proof of violation of Labor Law §240(1) even where plaintiff could not identify precise piece that struck him. Securing shed against collapse would not have been contrary to purpose of the undertaking. Industrial code provision raised for first time in opposition considered where it did not allege new facts or theories and defendants were not prejudiced but plaintiff failed to show entitlement to summary judgment. Fact based industrial code provision raised for first time on appeal not considered. Labor Law §200 and negligence claims dismissed where plaintiff did not address them. Summary judgment on owner’s contractual indemnity claim against general contractor denied where question of whether plaintiff’s employer was a subcontractor was sharply contested. Leveron v Prana Growth Fund I, L.P.


MVA   Attorney Disqualification  

Second Department
Defendants’ motion to disqualify plaintiff’s attorney for representing 1-defendant in an unrelated MVA 8-years before accident, which was long resolved, denied without showing plaintiff’s attorney obtained confidential information from prior action related to current action. Carroll-Mikhail v Teutonico


Premises Liab   Slip/Trip   Sidewalk   Unknown Cause   Feigned Issue   Expert Aff   Speculation  

Second Department
Abutting landowner granted summary judgment on plaintiff’s EBT testimony that she did not observe what caused her to fall on date of accident establishing she could not identify cause of fall without speculation. Testimony she inspected area 3-weeks after accident and observed cracks she attributed to fall was speculative and her subsequent affidavit raised only feigned issues. Expert’s opinion on causation was speculative where plaintiff did not see what caused her to fall on date of accident. Allegations in Complaint and BP verified solely by attorney insufficient to raise issues of fact. Mallen v Dekalb Corp.


Legal Mal   Causation   No-Fault   Expert Aff   Speculation  

First Department
Law firm granted summary judgment of legal malpractice claim where plaintiff could not establish he would have been successful in underlying personal injury case on claim that he suffered economic loss greater than basic economic loss to meet serious injury threshold based on leaving Marine reserves where he testified that there were no physical requirements for his Marine reserve job and he was able to perform all of his duties, rendering economic expert’s opinion speculative. U Joon Sung v Park


Vacate Default   Reasonable Excuse   Meritorious Action   Willful/Contumacious  

Second Department
Plaintiff’s repeated failure to comply with discovery demands in 4-orders evinced willful/contumacious failure to comply and proffered reasonable excuse of law office failure claiming office had action marked “stayed” rejected where plaintiff acknowledged stay was lifted in so ordered stipulation, plaintiff’s attorney showed up on return date of motion to strike and was given adjournment to put in opposition but did not, and plaintiff waited 9-months to move to vacate default in opposing motion to strike complaint. Plaintiff also failed to show meritorious action. Maruf v E.B. Mgt. Props., LLC


False Arrest   False Imprisonment   Malicious Prosecution   Probable Cause   Question of Fact   NYC  

Second Department
NYC failed to meet burden for summary judgment on claim that probable cause barred claims of false arrest, false imprisonment, and malicious prosecution where plaintiff’s testimony submitted by defendant denied that he lived in mother’s apartment where contraband was found or that he had any connection to mother’s home, that police officer who found old items identifying plaintiff including high school ID from 20 years before, old employment ID, and letter addressed to plaintiff at a different address engaged in misconduct outside of mother’s home raising issues of credibility on probable cause. Webster v City of New York


Premises Liab   Slip/Trip   Create Condition   Notice   Strike Answer   Spoliation  

Second Department
Building owner failed to meet burden for summary judgment where it submitted plaintiff’s testimony that his foot caught portion of mat causing him to fall and that mat was raised when he saw it after fall, testimony of his father who was tenant in the building that mat often curled up and he saw it in an uneven position almost every day which, when viewed in the light most favorable to plaintiff, raised issue of recurring condition not adequately addressed. Plaintiff’s motion to strike defendants’ Answer for only preserving portion of video showing accident denied absent proof that other portions would have had relevant information. Hoppe v Imperial Towers Assoc.


Premises Liab   Slip/Trip   Snow/Ice   Sidewalk   Duty   Control   Causation  

Second Department
Strip mall owner denied summary judgment where it proved it was an and out of possession owner and tenant was responsible for clearing sidewalk where plaintiff fell on snow/ice but failed to show that owner was not responsible for maintaining drainage system and that failure to maintain drainage system was not a cause of plaintiff’s accident. Broughal v Tae J. Kwon


Note of Issue   Vacate Default   Amend BP   Discovery  

Second Department
Plaintiff’s motion to extend time to file Note of Issue granted and plaintiff required to complete discovery within 30-days of order. Previous removal of case from trial calendar to complete discovery placed case on discovery calendar, not subject to CPLR §3404, and dismissal as abandoned for failure to file Note of Issue by date stipulated by parties without court was inappropriate. Where defendant participated in discovery after date case improperly deemed abandoned, motion to strike amended BP should have been denied. Ryskin v Corniel

Comment: The Court frowned upon the parties agreeing to deadlines for discovery and filing of Note of Issue without court approval.

Premises Liab   Slip/Trip   Stairs   Wet Floor   Unknown Cause   Notice   Last Inspection   Strike Answer   Willful/Contumacious  

Second Department
Building owner denied summary judgment where eyewitness who inspected area after plaintiff fell observed water on stairs and soaked cardboard at bottom of stairs even if plaintiff could not identify cause of fall, defendant failed to show last time steps were cleaned or inspected, and there was evidence of recurring condition that defendant failed to address. Plaintiff’s cross motion to strike defendant’s Answer denied without showing willful/contumacious refusal to comply with discovery orders. Reyes v Latin Am. Pentecostal Church of God Inc.


Serious Injury   ROM   Causation   Preexisting   Degenerative   Expert Aff  

First Department
Plaintiff’s experts raised issue of fact on causation of plaintiff’s acknowledged significant loss of ROM where they examined plaintiff’s pre-accident records and acknowledged pre-existing injuries from a prior lawsuit and degeneration and opined that plaintiff’s current injuries caused the significant limitations based in part on fact he was asymptomatic in years between earlier accident and subject accident. Attilio v Torres


Med Mal   Accepted Practice   Expert Aff  

First Department
Doctor granted summary judgment on expert’s opinion he did not depart from accepted practice because he was not responsible for determining plaintiff-decedent’s need for monitoring and that restraints were not indicated where she was alert/oriented and only intermittently and irregularly agitated and plaintiff’s expert failed to disagree with those opinions or address them. Gilbride v Balikcioglu


MVA   Rear End   Nonnegligent Explanation   Indemnity  

First Department
Plaintiff granted summary judgment in rear end collision and defendants driver’s argument that plaintiff’s vehicle stopped short did not provide a nonnegligent explanation where she admitted that traffic was heavy. Codefendant granted summary judgment on contribution claims against defendant driver. Edwards v Aponte


Premises Liab   Negligent Supervision   Assumption of Risk   Notice   Causation  

Second Department
Town failed to meet burden for summary judgment on assumption of risk where infant-plaintiff was running towards ball hit to center field by coach and tripped on hole around sprinkler where it failed to show it lacked constructive notice of defect. League failed to meet burden of showing it provided adequate supervision of infant-plaintiff and that lack of adequate supervision was not a cause of the accident. Morace v Commack N. Baseball Clubs, Inc.


Premises Liab   Slip/Trip   Sidewalk   Admissibility   De Minimus  

First Department
Building owner granted summary judgment where plaintiff’s testimony that she tripped outside of store with “99 cents” on sign establish that she did not trip outside of defendant’s premises that did not have any such sign but which was on sign on building across street. Plaintiff’s reliance on Google maps photos rejected as not authenticated and in any event did not establish conclusively that it was defendant’s property. Defect, water cap 1/2″ below sidewalk surface, was trivial where it showed no defects in cap or surrounding sidewalk and plaintiff did not allege broken or cracked cement or inadequate lighting. Rivera v City of New York


Premises Liab   Slip/Trip   § 7-210   Create Condition  

Second Department
Abutting landowner granted summary judgment on proof that plaintiff tripped in tree well not covered by administrative code §7-210 and that it did not create the condition, negligently repair the condition, or cause it to be dangerous by special use. Powroznik v City of New York


Premises Liab   Out of Possession   Hearsay  

First Department
Building owner granted summary judgment on proof it was out of possession landlord without access to medical cabinet where heavy wooden door was stored upright that tipped over onto plaintiff and therefore had no control of the closet. Employer’s office manager’s statement that owner knew door was stored there was inadmissible hearsay and would not change result as door itself was not inherently dangerous. Van Dyk v C & M 974 Rte. 45 LLC


Premises Liab   Create Condition   Notice  

First Department
Building owner granted summary judgment on plaintiff’s claim that she stepped on nail embedded in debris during renovation on proof they did not create the condition or have notice of the specific nail embedded debris. Plaintiff’s claim of recurring condition could not be supported on a general awareness that a dangerous condition may be present. General contractor established it did not do any work that could result in debris described by plaintiff and general contractor and subcontractor established they completed work 6-days before plaintiff’s accident. A jury could not find defendants created the condition without speculation and plaintiff threw out the wood without taking pictures. Rooney v George Hardy St. Francis Apts., LLC


Premises Liab   Res Judicata   General Release   Sanctions  

First Department
Plaintiffs claim of injury from mold not barred by res judicata where stipulation of discontinuance of prior action against board members did not encompass mold claims. Attorney fees and costs to defendants denied. Gaudio v Grabler Bldg. Condominium


Serious Injury   ROM   Degenerative   Feigned Issue  

First Department
Plaintiff’s neurologist failed to raise issue of fact in opposition to defendants’ showing of entitlement to summary judgment where plaintiff had only minor limitation in ROM and ceased treatment a few months after accident and neurologist found only one minor limitation of ROM in lumbar spine and did not address MRIs showing degeneration. Plaintiff’s explanation for cessation of treatment, that it was denied by insurance, was feigned issue contrary to her prior testimony that she stopped because she felt better. Stovall v New York City Tr. Auth.

IF YOU MUST READ
(2 summaries)
MUST READSNOTEWORTHY

Serious Injury   Causation  

Second Department
Plaintiff raised issue of fact in opposition to defendant’s showing of entitlement to summary judgment on serious injury based on competent medical evidence. Since defendant did not show a lack of causation, burden never shifted to plaintiff. The court does not give the details of the proofs. Jeehyun Choi v Joel


Serious Injury   Causation  

Second Department
Plaintiff raised issue of fact in opposition to defendants’ showing of entitlement to summary judgment on serious injury based on competent medical evidence. Since defendant did not show a lack of causation, burden never shifted to plaintiff. The court does not give the details of the proofs. Nolasco-Ochoa v Kollanethu

About Matt McMahon

Civil trials and appeals since 1984
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