March 2, 2021 | Vol. 251

MUST READS
(6 summaries)
NOTEWORTHY IF YOU MUST READ

Premises Liab   Out of Possession   Foreseeability   Dangerous Condition   Open/Obvious  

First Department

Developmentally disabled camp lessee/operator’s duty to maintain premises in reasonably safe condition included foreseeable risks posed by nature of its campers which must be considered as part of the “circumstances” under Basso v Miller. Camp denied summary judgment where adult developmentally disabled camper fell from grass path, wet with dew, down steep embankment without railing. Grass, wet from dew or rain, is not dangerous condition and testimony caretakers could see camper when going to his aid eliminated questions on inadequate lighting. Steep embankment, however, was not a “natural transitory condition” and fact embankment with boulders was open/obvious did not negate duty to maintain property in reasonably safe condition under all of the circumstances leaving question of whether absence of railing was a failure to guard against reasonably foreseeable dangers for the developmentally disabled campers. Remaining defendants granted summary judgment where they were not involved in camp operations or were out of possession owners with no obligation to maintain the premises. There was one dissent. Aberger v Camp Loyaltown, Inc.


90 Day Notice   Note of Issue   Untimely   Reasonable Excuse   Meritorious Action   Discovery  

First Department

OSC to extend time to file Note of Issue filed 18-days before end of 90-day period was timely where judge declined to sign OSC 9-days after it was filed, and declination was not entered until 1 day after expiration of 90-day period, negating need to show reasonable excuse or meritorious action. Plaintiff needed to show only good cause to extend time to file Note of Issue, shown by adequate compliance with discovery demands. Rozefort v Bronx Lebanon Hosp. Ctr.


Med Mal   Arbitration   Capacity to Sue  

First Department

Decedent’s daughter, acting as healthcare decision maker for her incapacitated father under PHL §2994-d, did not have authority to enter into binding arbitration agreement as her authority was limited to medical decisions. Nursing home’s motion to compel arbitration denied. Gayle v Regeis Care Ctr., LLC


Med Mal   Set Aside Verdict   Pain/Suffering   Materially Deviates   Appealable Order  

Second Department

Lower court improvidently granted defendants’ motion to set aside verdict in interest of justice based on plaintiff’s counsel’s inappropriate remarks during summation as defense counsel did not object at time depriving court of opportunity to give curative instruction, and remarks were not so prejudicial as to cause gross injustice or “so pervasive, prejudicial, or inflammatory as to deprive a party of a fair trial.”

At request of plaintiff Court considered defendants’ motion to set aside verdict as excessive, not addressed by lower court, in interest of judicial economy as issue was fully briefed by both sides and found award for future medical and other expenses based on life care plan not excessive but past/future pain/suffering awards of $10 million/$11.5 million over 11.5 years for cognitive impairments and hemiplegia making plaintiff functionally paraplegic materially deviated from reasonable compensation and set aside verdict unless plaintiff stipulated to reduce those awards to $4 million/$5 million. Yu v New York City Health & Hosps. Corp.


Negligent Supervision   Violent Propensity   Notice  

First Department

Parents of 31-year-old independently living autistic son granted summary judgment of claim by ophthalmologist they arranged to give eye exam at son’s apartment on proof they were unaware of any violent propensities and claim of negligent entrustment inapplicable as son’s legs could not be a “dangerous instrument” as a person’s body is not an “instrument, article or substance” under penal law. Chern v Leclerc


Dogbite   Vicious Propensity   Un-notarized Aff  

Second Department

In granting dog owners summary judgment lower court erred in refusing to consider plaintiffs’ son’s affidavit [stated to be under penalties of perjury and notarized using all-purpose acknowledgment under RPL], considering it an un-notarized affidavit. Defendants’ motion denied where son’s affidavit raised issue of defendants’ knowledge of their 100 lb. bull mastiff’s violent propensities. Orsini v Cromarty

NOTEWORTHY
(18 summaries)
MUST READS IF YOU MUST READ

Negligent Supervision   Notice  

Second Department

School district’s motion for summary judgment denied where student grabbed back of plaintiff’s head and pushed his face into bulletin board as district submitted only plaintiff’s testimony detailing incidents of assaulting student and other students threatening plaintiff verbally and with closed fists that he reported to the teacher who did not speak to the other student. While plaintiff testified the other student never assaulted him before, the district failed to show it had no notice of other violent incidents by the student. District’s claim that no degree of supervision could have prevented the attack rejected on testimony that attacking student threatened to stab plaintiff 10-minutes before class ended which was overheard by other students and the teacher. Nizen-Jacobellis v Lindenhurst Union Free Sch. Dist.


Labor Law §240   Ladder  

First Department

Plaintiff granted summary judgment on Labor Law Labor Law §240(1) on proof he used overturned 5-gallon bucket to work on ceiling wires, as he previously saw his supervisor do, after 5-minute search for a ladder turned up only 1-ladder being used by his coworker. Portillo v DRMBRE-85 Fee LLC


Premises Liab   Res Ipsa Loquitor   Notice   Unsigned Transcript  

First Department

Whole Foods denied summary judgment where piece of its sign fell on plaintiff as she exited store during snowstorm as sign that was supposed to last for 20-years without structural maintenance fragmented after it was hit by ice 2-years after installation, raising issue of notice that it was dangerous during snowstorms. Whole Foods failed to show periodic inspections would have prevented accident. Lack of incidents in 7-years between repair and accident did not conclusively show condition was not dangerous but was merely factor to be considered by jury.

Common experience dictates that a sign above store entrance in NYC does not break and fall on passersby absent negligence for application of res ipsa loquitor and sign was within Whole Food’s exclusive control even though it was an outdoor sign as they were the only ones with access to it.

Sign manufacturer and installer granted summary judgment on proof it was not defectively designed or manufactured and installer did not have contract to inspect and service sign. Repair 7-years before accident did not create ongoing duty and neither manufacturer nor installer had control of the sign for res ipsa loquitor. Nyambuu v Whole Foods Mkt. Group, Inc.


Med Mal   Accepted Practice   Causation   Expert Aff   Conclusory   Speculation  

Second Department

Hospital granted summary judgment even though expert did not establish no departure from accepted practice by emergency responders but did establish departures were not a cause of 7-year-old girl’s death caused by brittle asthma and mucus plugging in her lungs. Plaintiffs’ experts’ opinions were conclusory and speculative where they did not address opinions of defendants’ expert. Marsh v City of New York


Construction Liab.   3rd Party Contractor   Espinal   Expert Aff  

First Department

Plumbing contractor denied summary judgment where it failed to show installation of bathroom sink in hotel that fell when a guest weighing less than 250 lb. load bearing leaned on it did not launch an instrumentality of harm under Espinal. It could not meet burden by pointing to gaps in 3rd-party plaintiff’s proofs and, in any event, 3rd-party plaintiff’s expert’s opinion that sink’s failure under less than rated load showed it was negligently installed. Nestenborg v Standard Intl. Mgt. LLC


Premises Liab   3rd Party Contractor   Espinal   Create Condition   Duty  

First Department

Building manager granted summary judgment where plaintiff’s foot got caught on loose tile at edge of step on proof it did not affirmatively create condition and plaintiff failed to show it launched an instrumentality of harm or completely displaced owner’s responsibilities under Espinal. Fact it paid for janitor supervised by maintenance contractor did not raise issue under Espinal exceptions. Maintenance contractor granted summary judgment on proof building owner was responsible to maintain interior stairs and there was no proof contractor created the condition. Complaints by plaintiff or other resident about step to maintenance contractor did not create a duty. Individual defendants granted summary judgment as they did not own building and did not act outside scope of their representative capacity. Diaz-Pascall v Pereira


Premises Liab   Sidewalk   Snow/Ice   Storm in Progress   Create Condition   Notice   3rd Party Contractor   Espinal  

Second Department

Bank denied summary judgment where climatological data it submitted was inconsistent with plaintiff’s testimony and failed to establish that it lacked constructive notice of what plaintiff described as 1″ sheet of ice covering entire sidewalk. Defendant cannot meet burden by pointing to gaps in plaintiff’s proofs.

Snow contractor granted summary judgment on proof it cleared entire sidewalk and spread sodium chloride at 4 AM, establishing it did not launch instrumentality of harm under Espinal. Itzkowitz v Valley Natl. Bank Corp.


Labor Law §240   Labor Law §241   Industrial Code   Gravity Risk   Falling Object   Safety Devices   Sole Cause   Premature Motion  

First Department

Demolition worker granted summary judgment of Labor Law §240(1) claim where 200 lb. fire damper secured by rope held by coworker fell 8′ when plaintiff cut last weld establishing rope was inadequate safety device to secure damper. Preventing it from falling would not have been contrary to purpose of work. Industrial codes §§ 23-3.3(b)(3) and (c)(hand demolition) inapplicable for Labor Law §241(6) as injury caused by demolition work and not structural instability during demolition. Defendants’ claim plaintiff’s failure to use available ladder, lift, or scaffold was sole cause rejected without proof he should have known to use one of those devices instead of rope and temporary frame. Defendants failed to provide evidentiary basis that additional discovery might lead to relevant information or explain why they did not obtain affidavit from their subcontractor. Mayorga v 75 Plaza LLC


Labor Law §200   Labor Law §241   Premises Liab   Create Condition   Notice   Control   Industrial Code   Amend BP  

Second Department

MTA and Metro-North granted summary judgment dismissing Labor Law §200 and negligence claims where wheel of compressor he and coworkers were moving during renovation fell into tree well causing compressor to strike plaintiff on proof defendants did not create or have notice of the condition and did not have authority to control means and methods of plaintiff’s work. Labor Law §241(6) claim dismissed, and plaintiff’s motion to amend BP to include industrial code provisions denied, where no allegations of industrial code violations were plead in original BP and code provisions relied on were inapplicable. Rodriguez v Metropolitan Transp. Auth.


Premises Liab   Stairs   Design Defect   Open/Obvious   Inherently Dangerous   Expert Aff  

First Department

Property manager’s testimony of no prior accidents or violations of exterior steps failed to meet burden for summary judgment without expert opinion that stairs were not defectively designed and did not violate applicable standards. Plaintiff’s testimony she was looking down while descending stairs and believed bottom step that was less visible than when she was entering premises was mis-leveled raised issue on defendants’ claim that condition was open/obvious and not inherently dangerous. Defendants also failed to address pleaded allegation that handrail was required. Mashozhera v El Nuevo JB Bakery Inc.


Premises Liab   Sidewalk   Create Condition   § 7-210   NYC  

Second Department

NYC and DOT granted summary judgment on proof they did not create condition of raised decorative brick plaintiff tripped on near tree well on sidewalk by affirmative act of negligence when it was installed 6-years before plaintiff’s fall. Brick identified by plaintiff in photographs was in any event part of sidewalk under administrative code §7-210 and not tree well. Abuhamda v Brooklyn Sneaker Box, Inc.


Premises Liab   Open/Obvious   Inherently Dangerous   Optical Confusion  

First Department

NYCHA granted summary judgment where plaintiff fell when he leaned against unlocked gate as condition was open/obvious, an unlocked gate is as a matter of law not inherently dangerous, and fall was not caused by negligent maintenance. Photographs showed no optical confusion as gate was distinguishable from surrounding fencing. Jimenez v City of New York


MVA   Turning Vehicle   Comparative Fault   Sole Cause   Premature Motion  

Second Department

Plaintiff’s affidavit stating she was traveling through intersection with light when defendant’s vehicle made left turn in front of her a split second before impact made out prima facie entitlement to summary judgment for failure to yield right-of-way and to dismiss affirmative defenses of comparative fault establishing defendant was sole cause of accident. By not submitting affidavit contradicting plaintiff’s affidavit, defendant failed to raise issue in opposition and motion was not premature as facts necessary to oppose motion were within defendant’s knowledge. Sapienza v Harrison


MVA   Rear End   Nonnegligent Explanation   Emergency Doctrine   Causation  

First Department

Plaintiff granted summary judgment when defendant’s vehicle struck plaintiff and rear of garbage truck on side of road where plaintiff was loading garbage. Defendant’s claim of impaired vision from rising sun as he drove east was not nonnegligent explanation as it did not create an emergency situation. Truck protruding into lane merely provided occasion for accident, not a cause. Rodriguez v Beal


Premises Liab   Slip/Trip   Wet Floor   Stairs   Recurring Condition   Last Inspection   Notice  

First Department

Defendants denied summary judgment where they failed to submit specific evidence of last inspection of interior stairs plaintiff slipped on and plaintiff testified it was a recurring dangerous condition caused by a stuck stairwell window. Superintendent’s denial of the condition or complaints did not eliminate questions of fact on notice. Nieves v BHV IV, LLC


False Arrest   Malicious Prosecution   Notice of Claim   NYC  

First Department

NYC and police officers granted summary judgment of false arrest and malicious prosecution claims where identification by victim using 2-photo arrays established probable cause which also defeated plaintiff’s claim of warrantless search that was not included in Notice of Claim or Complaint. Plaintiff failed to raise issue of fact and evidence linking fellow arrestee to scene and crime did not eliminate probable cause without evidence police deviated egregiously from proper investigative procedures or proof of a conspiracy to falsify identification or grand jury testimony. Berry v City of New York


Premises Liab   Slip/Trip   Snow/Ice   Storm in Progress   Expert Aff   Speculation  

First Department

Defendants granted summary judgment on expert opinion and meteorological data showing ice on stairs resulted from snowfall that ended 35-40 minutes before plaintiffs fall and plaintiff did not see ice on steps before fall. Plaintiff’s expert failed to raise issue on claim ice came from melting and refreezing of prior snow where it was speculative. Ponce v BLDG Orchard, LLC


MVA   There to be Seen  

First Department

Motion for summary judgment by plaintiff who entered intersection with no traffic device denied were questions remained of whether defendant’s vehicle stopped at stop sign before entering, was in intersection as plaintiff approached, and whether plaintiff should have seen defendant’s vehicle before entering intersection. The Court does not give the details of the proofs. Luciano-Mahoney v Rossman

IF YOU MUST READ
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MUST READS NOTEWORTHY

About Matt McMahon

Civil trials and appeals since 1984
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