Negligent Supervision Notice
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.
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Labor Law §240 Ladder
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
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Premises Liab Res Ipsa Loquitor Notice Unsigned Transcript
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.
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Med Mal Accepted Practice Causation Expert Aff Conclusory Speculation
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
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Construction Liab. 3rd Party Contractor Espinal Expert Aff
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
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Premises Liab 3rd Party Contractor Espinal Create Condition Duty
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
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Premises Liab Sidewalk Snow/Ice Storm in Progress Create Condition Notice 3rd Party Contractor Espinal
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.
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Labor Law §240 Labor Law §241 Industrial Code Gravity Risk Falling Object Safety Devices Sole Cause Premature Motion
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
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Labor Law §200 Labor Law §241 Premises Liab Create Condition Notice Control Industrial Code Amend BP
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.
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Premises Liab Stairs Design Defect Open/Obvious Inherently Dangerous Expert Aff
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.
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Premises Liab Sidewalk Create Condition § 7-210 NYC
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.
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Premises Liab Open/Obvious Inherently Dangerous Optical Confusion
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
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MVA Turning Vehicle Comparative Fault Sole Cause Premature Motion
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
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MVA Rear End Nonnegligent Explanation Emergency Doctrine Causation
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
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Premises Liab Slip/Trip Wet Floor Stairs Recurring Condition Last Inspection Notice
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
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False Arrest Malicious Prosecution Notice of Claim NYC
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
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Premises Liab Slip/Trip Snow/Ice Storm in Progress Expert Aff Speculation
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
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MVA There to be Seen
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
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