| MUST READS (3 summaries) | |||
| NOTEWORTHY | IF YOU MUST READ | ||
 Building owner and tenant in possession denied summary judgment where owner failed to show it was an out of possession owner without a duty to maintain exterior stairs plaintiff fell from, the stair risers were defective where not uniform, the top stair being 3″ higher than the bottom stair, the question of whether they violated any building code was irrelevant, and moving defendants failed to show they lacked constructive notice of the defect. Amparo v Christopher One Corp. ✉ |
 Defendants’ motion for summary judgment dismissing tenant’s claim for injuries sustained by home invasion due to defective entrance door lock, apartment chain guard, and peephole on grounds it was a “targeted attack” denied as a targeted attack is not an intervening cause. Defendants’ claim that they provided minimal security rejected where raised for the first time on appeal and, in any event, the malfunctioning locks were the most rudimentary security required.Plaintiff entitled to negative inference for defendants’ spoliation of surveillance video and their providing a copy to police, who also failed to preserve it, did not meet defendants’ preservation obligation. Cabrera-Perez v Promesa Hous. Dev. Fund Corp. ✉ |
| Plaintiff’s motion to compel response to discovery demands in Child Victims Act case denied and school district’s motion for protective order granted where discovery demands for “documents pertaining to any complaint of sexual abuse by any employee of the District from January 1, 1997, to the present and any suspected romantic or sexual relationship between any teacher and any student at the school from 1990 to the present” were overbroad and unduly burdensome. Ferrara v Longwood Cent. Sch. Dist. ✉ |
| NOTEWORTHY (16 summaries) | |||
| MUST READS | IF YOU MUST READ | ||
| Motion to dismiss for lack of personal jurisdiction and to vacate default judgment granted where process server testified at traverse hearing that person at the premises where he was attempting service on defendant’s ‘dwelling place/usual place of abode’ told him she did not live there and he failed to make the due diligence required by CPLR §308(4) before resorting to nail and mail service. Claim that service was proper because it was plaintiff’s actual place of business rejected where the process server did not believe it was defendant’s actual place of business at the time and made only 1-attempt to serve during normal business hours. Casanova v Lopez ✉ |
| Defendants’ failed to meet burden for summary judgment dismissing Labor Law §241(6) action of lineman injured by explosion while working on electrical lines from aerial bucket without proof industrial codes §§ 23-1.13(b)(3) and (4), requiring workers exposed to electrical lines be advised of the hazards and protective measures taken and that the lines be de-energized, were not applicable or a cause of plaintiff’s injuries. Plaintiff’s negligence could be imputed to his employer requiring denial of employer’s motion for summary judgment dismissing contractual indemnity claim. Defendant’s cross-motion for summary judgment on Labor Law §241(6), brought 1-month after time to bring summary judgment motions, in response to third-party defendant’s timely motion for summary judgment on §241 properly considered as made on nearly identical grounds but not on Labor Law §200 and negligence claims which were not raised on third-party defendant’s timely motion. Wittenberg v Long Is. Power Auth. ✉ |
| Defendants’ motion for summary judgment dismissing claim against horseback trainer who was providing lessons to plaintiff on a trail ride when plaintiff jumped off the horse as it suddenly galloped towards the stable granted as a horse acting in and unintended way is an inherent risk of horseback riding that plaintiff assumed and the unequivocal release she signed releasing the trainer from all liability from the activity was a total bar to the action and clearly recited she was aware of the inherent risks of horseback riding. Anthony v Firehock ✉ |
| Plaintiff’s expert raised issues in opposition on opinion that infant’s nerve injury during spinal surgery, a known risk of the procedure, may have been caused by negligence while using a Bovie electrocautery in an area where the dura was not protected by the posterior spine. Claim that plaintiff’s expert’s opinion was conclusory and not supported by the record unpreserved for appeal. B.J. v Schulz ✉ |
| Chiropractor met burden for summary judgment on expert-internist’s opinion that use of an intersegmental traction chair did not cause the patient’s DVT which was caused by chronic venous hypertension. Internist qualified to give opinion based on his clinical experience. Plaintiffs’ expert failed to raise an issue in opposition with opinion that was speculative and conclusory on causation. Lyons v Tsadyk ✉ |
| Worker struck on the head by a falling brick while unloading a truck in a delivery zone granted summary judgment on Labor Law §240(1) with proof that bricks were being chipped or removed for window installation on the 22nd floor, the brick that hit him was the type being worked on, the bricks were required to be secured for the undertaking, there were no safety nets below the scaffold or above the delivery zone, and the brick generated sufficient force to crack plaintiff’s helmet and cause severe injuries establishing his injuries were the direct consequence of the significant force of gravity on the brick. Labor Law §241(6) claim based on industrial codes §§ 23-1.7(a) and 23-2.6 dismissed as the area was not normally exposed to falling objects and the work did not involve the construction of an exterior masonry wall. Labor Law §200 claim against GC dismissed without proof it had control over the window installers and GC’s §200 claims against site safety manager dismissed as general supervisory authority is insufficient to show control. Owner and GC granted conditional summary judgment on contractual indemnity against plaintiff’s employer where agreement required indemnity for employer’s work except for injuries from owner’s and GC’s negligence. Window contractor’s motion for summary judgment on contractual indemnity against window subcontractor denied where questions remained on whose work caused the brick to fall. Torres-Quito v 1711 LLC ✉ |
| Wedding venue owners/operators failed to meet burden for summary judgment dismissing claim of wedding attendee who fell while descending grand stairs, even though plaintiff could not identify the cause of his fall, where plaintiff’s testimony that he looked for a handrail to use before descending the stairs raised an issue of whether a required handrail would have prevented his fall and whether absence of a handrail violated the duty to maintain the premises in a reasonably safe manner. Curto v Kahn Prop. Owner, LLC ✉ Comment: From the lower court decision, plaintiff’s expert engineer did not cite to any applicable building code or industry standard requiring a handrail. |
| Worker who fell from wall due to vibrations caused by heavy chipping hammer after his supervisor instructed him to use the hammer while standing on the wall instead of raising the scaffold he had been using granted summary judgment on Labor Law §240(1) and he could not be considered the sole cause of the accident where he was following the supervisor’s instructions. Construction management company established indemnity agreement with plaintiff’s employer was in effect by employer’s response to its notice to admit and it was entitled to contractual indemnity to the extent not barred by the anti-subrogation rule. Asian v Flintlock Constr. Servs., LLC ✉ |
| Contractor that installed fencing around construction perimeter failed to meet burden for summary judgment dismissing Labor Law §200 and negligence claims of worker struck by outward swinging access gate without proof it did not create the dangerous condition by installing the gate even though it showed it did not control the means and methods of plaintiff’s work. Speculation that another contractor could have installed the gate after it left the construction site failed to raise an issue. Samperi v City Safety Compliance Corp. ✉ |
| Village met burden for summary judgment dismissing claim for trip and fall on sidewalk defect by village clerk’s affidavit it did not receive required prior written notice of the defect. Bidding and contract documents for a large renovation project submitted by plaintiff did not raise an issue in opposition as records by other village agencies beyond the strict construction of the code failed to satisfy the prior written notice requirement. Lyons v Inc. Vil. of Garden City ✉ |
| Defendants met burden for summary judgment dismissing plaintiff’s claim for slip and fall on what he assumed was paint thinner on interior stairs by plaintiff’s testimony the condition was not there when he ascended the stairs 7-10 minutes before he fell, establishing defendants did not create or have constructive notice of the condition. Scammell v Flum ✉ |
| Building owner granted summary judgment dismissing claim for slip and fall on interior stairs by plaintiff’s testimony establishing she could not identify the cause of her fall. Plaintiff’s expert report was not in admissible form, plaintiff offered no excuse for not submitting it in admissible form, and in any event it was insufficient to raise an issue on causation. Sanchez-Trujillo v Beach 119, LLC ✉ |
| Defendant met burden for summary judgment by testimony and plaintiff’s statement in police report showing he came to a gradual stop at an intersection with his turn-signal on while waiting to make a left-hand turn when plaintiff’s vehicle rear-ended him but plaintiff raised an issue in opposition by his claim defendant came to a sudden stop without putting on his turn-signal, disputing the statement attributed to him in the police report and defendant’s testimony. Kerper v Betancourt ✉ |
| Plaintiff granted summary judgment against abutting landowner under administrative code §7-210 on proof she tripped on a raised sidewalk condition and defendant failed to raise an issue in opposition with uncertified medical records and statement in record was not an admission where it did not contradict plaintiff’s testimony or identify the source of the statement. Montano v Delfor, LLC ✉ |
| School district’s motion to dismiss action alleging intentional infliction of emotional harm, breach of fiduciary duty, and negligent training and supervision granted as alleged acts of misconduct of school faculty and administrators were not extreme and outrageous conduct, there were no allegations establishing a fiduciary duty, DASA law does not provide a private cause of action, and negligent training and supervision causes of action are not applicable where the actions are alleged to be within the actors’ scope of employment. Punitive damage claim dismissed as there can be no punitive damages against a municipality. Mackey v Lawrence Union Free Sch. Dist. ✉ |
| NYCHA’s motion to dismiss granted on documentary evidence, including the building deed and water and sewer bills, showing codefendant corporation not NYCHA owned the building. Ortiz v City of New York ✉ |
| IF YOU MUST READ (2 summaries) | |||
| MUST READS | NOTEWORTHY | ||
| Medical doctor and physician’s assistant at nursing home met their burden of showing they did not depart from accepted practice or cause decedent’s sepsis and eventual death with their expert’s opinions but plaintiff’s expert raised issues of fact in opposition by opinions that addressed defendants’ expert’s assertions and were not conclusory or speculative. The Court does not give the details of the proofs. Borodkin v Friedwald Ctr. for Rehabilitation & Nursing, LLC ✉ |
| Hospital failed to meet burden for summary judgment burden by showing tubes/chords from medical equipment plaintiff tripped on as she was visiting her son in its neurological ICU were open/obvious and not inherently dangerous. The Court does not give the details of the proofs. Butler v NYU Winthrop Hosp. ✉ |