March 21, 2017 | Vol. 46

MUST READS
(7 summaries)

Vicious Propensity   Dogbite  

First

Upholding summary judgment for defendant where plaintiff was injured when the defendant’s dog dragged an unsecured bicycle rack defendant tied the dog to into the plaintiff, on constraint of stare decisis for the Court of Appeals’ rulings that there is no negligence cause of action for domestic animals (with a limited exception for domestic farm animals who escape the confines of a farm) the First Department makes an impassioned plea for the Court of Appeals to abandon the no-negligence cause of action standard and adopt the Restatement (Second) of Torts §518 adopted by the majority of states. Scavetta v Wechsler

Comment: It may take legislative action to adopt the Restatement and allow a cause of action for negligent supervision of domestic animals.


Outrageous Conduct   Statute of Limitations  

Second Deptartment

Plaintiff’s motion to dismiss defendant’s counterclaims for intentional infliction of emotional harm to the extent that they occurred more than 1 year before the initiation of the counterclaim was properly denied under the doctrine of “continuing tort.” There was sufficient evidence that the plaintiff engaged in a long-standing campaign of intentional infliction of emotional harm including ethnic and racial slurs against the defendants and their guests, throwing items on defendants’ property, threats of violence, false criminal charges, assault, and battery. The final event of this continuous campaign occurred within 1 year of the initiation of the counterclaim and were timely. Estreicher v Oner


Late Notice of Claim   Prejudice   Actual Knowledge   Reasonable Excuse  

First

Nine-month-old infant’s petition to serve a late Notice of Claim for injuries sustained when he was exposed to heating pipe in apartment should have been granted even though plaintiff offered no reasonable excuse, municipality did not have actual knowledge of the essential facts within 90 days or a reasonable time thereafter, and there was no nexus between the delay and the infancy, because of the tender age of the child and defendant’s failure to rebut plaintiff’s showing that there was no prejudice in the delay because the conditions did not change. Parents properly denied leave regarding their derivative claims. Eboni B. v New York City Hous. Auth.


Late Notice of Claim   Statute of Limitations   Renew   Raised For First Time   Estoppel  

Second Deptartment

Almost 2 years after the 1 year and 90-day Statute of Limitations had expired, the plaintiff discovered for the first time that the driver of the car he was a passenger in when it hit a raised manhole cover had filed a timely Notice of Claim and sought to renew his prior motion to serve a late Notice of Claim which had been previously denied. The Appellate Division found that the late Notice of Claim could not be granted because the Statute of Limitations had expired, even accounting for the period during which the original petition was being decided, and that a motion to renew does not relate back to the original petition since to do so would render the Statute of Limitations meaningless. While the Statute of Limitations was first raised by the defendant on appeal, the court could entertain it since it involved a question of law on the face of the record. Equitable estoppel did not apply since none of the defendant’s actions or statements deterred the plaintiff from filing a timely Notice of Claim. Matter of Lubin v City of New York


Labor Law §240   Indemnity   Dead Man Statute  

First

Owner/leasee had been found liable for plaintiff’s fall through an unguarded stairwell during a renovation project under Labor Law §240(1) and sought summary judgment for indemnity claim against contractor whom it claimed had agreed to remove the pull-up door. Contract did not state that the contractor was required to remove the pull-up door and building owner/lessee’s affidavit stating that the contractor agreed to remove the pull-up door was barred by the dead man statute, CPLR 4519, because it was a transaction or communication with the contractor’s principal who had died. Owner/leasee also failed to meet its burden of showing that it was free from negligence. Nunez v LMJ Vision, Inc.


Labor Law §240  

First

Defendant and plaintiff both denied summary judgment on Labor Law §240(1) claim where plaintiff and coworker were attempting to move a wooden skid by tilting it and toppling it onto a dolly. Defendant’s argument that §240(1) did not apply because the plaintiff and the skid were on the same level does not bar the claim but a question of fact existed regarding whether the weight of the skid required a safety device under the statute. Natoli v City of New York


Spoliation   Sanctions   Negative Inference  

First

The lower court providently granted plaintiff’s motion for sanctions to the extent of granting a negative inference charge where it found that the defendant had willfully overwritten relevant portions of surveillance video after plaintiff demanded that they preserve the video shortly after the accident. Although the defendant’s actions were willful, they did provide portions of the video of the accident itself and there was enough evidence for plaintiff to prove notice with a negative inference rather than striking the defendant’s Answer or deeming the issue of notice resolved against the defendant. Defendants’ sanctions request for the actions of an investigator retained by the plaintiff in entering the defendant’s premises without permission and securing the elevator logs was properly denied. Dzidowska v Related Cos., L.P.

NOTEWORTHY
(24 summaries)

Products Liab   Labor Law §240   Elevator   Warnings   Expert Aff  

First

Plaintiff, injured when elevator he was repairing and testing suddenly dropped, claimed that a low-pressure switch and guide shoe were defective and that he was entitled to Labor Law §240(1) protection because he was involved in a repair. Plaintiff’s expert failed to rebut the manufacturer’s showing that the low-pressure switch was not defective at the time it left the manufacturer. Testimony from one of the manufacturer’s engineers conceding that the elevator car could come out of the guide rails if the guide shoe cracked, and that they had redesigned the shim in 2003 in response to a similar incident but never notified or warned customers with older shims, raised an issue of fact on the defectiveness of the shim and defendant’s failure to warn.

The elevator was not a safety device as defined by Labor Law §240(1) and no safety device could have been used to secure the elevator as it would have defeated the purpose of testing the elevator by running it up and down. Versace v 1540 Broadway L.P.


Highway Design   Qualified Immunity   Wrongful Death   Notice   Set Aside Verdict   Noseworthy  

Second Deptartment

Court of Claim’s decision dismissing wrongful death action upheld where evidence showed that the State made a deliberate decision after an adequate study and that its plan had a rational basis. Plaintiff failed to show that the State had notice that the guard rail which plaintiff’s decedent hit propelling her airborne into a highway sign was dangerous. A motion to set aside a verdict based on newly discovered evidence can only be granted upon showing a reasonable excuse for not having included the information in the trial. The Noseworthy doctrine did not apply as the State’s knowledge of the accident was equal to that of the plaintiff. Gagliardi v State of New York


Labor Law §240   Labor Law §241   Ladder   Safety Devices   Sole Cause   Comparative Fault  

First

Plaintiff who fell from A-frame ladder which twisted and moved as he was removing a dropped ceiling should have been granted summary judgment on Labor Law §240(1) claim. Plaintiff was not required to show the ladder was defective or that he fell from it and defendant failed to raise an issue regarding sole proximate cause by showing that there were other safety devices that plaintiff declined to use. Plaintiff’s method of using the ladder and removing the dropped ceiling was at most comparative fault which is not a defense to Labor Law §240(1). Plaintiff’s appeal from denial of summary judgment on Labor Law §241(6) dismissed as academic. Messina v City of New York


Premises Liab   Assumption of Risk  

Second Deptartment

Defendants denied summary judgment where they did not eliminate triable issues of fact as to whether they made conditions at a heavy metal concert where “slam dancing” was permitted as safe as they appeared or unreasonably increased the risks inherent in going to a concert. Plaintiff was injured when, standing apart from the area where slam dancing was taking place, another patron slammed into her. Noting that primary assumption of risk is normally applied to athletic and recreational activities providing social value, the Appellate Division expressly did not determine whether it would apply to slam dancing at a concert. Brosnan v 6 Crannell St., LLC


Premises Liab   De Minimus   Indemnity  

First

Defendants entitled to summary judgment based on plaintiff’s description of the defect as an “uneven spot” that “wasn’t as level as the other side” of a “little ridge” of concrete establishing that the defect was trivial and non-actionable. Claims for common-law and contractual indemnity were denied because the proposed indemnitors were not negligent. One contract, however, was broad enough to include attorney fees and costs for the work being performed rather than for the indemnitor’s negligence. Robinson v Brooks Shopping Ctrs., LLC


Med Mal   Accepted Practice   BP   Expert Aff  

Second Deptartment

Gastroenterologist made out prima facie entitlement to summary judgment on expert’s opinion that he did not depart from accepted practice by referring patient complaining of abdominal pain 8 days after colonoscopy to his primary care physician for a psychiatric referral without examining him, where the plaintiff was diagnosed with a perforated appendix 2 days later, and that the appendix was not perforated during the colonoscopy. Plaintiff raised triable issues of fact by his expert’s affidavit that the plaintiff exhibited clear signs of acute appendicitis at the follow-up appointment, should have been examined, and the appendicitis diagnosed which would have avoided the appendix being perforated and subsequent sequelae. Plaintiff properly served an amended BP, incorrectly denominated a supplemental BP, as a matter of right prior to Note of Issue raising the theory of defendant’s failure to examine the plaintiff on the follow-up visit. Mackauer v Parikh


Med Mal   Accepted Practice   Proximate Cause   Expert Aff   Speculation   Conclusory  

First

Plaintiff’s expert’s affirmation opining that her stroke would have been avoided or she would have received a more favorable outcome if she had been transferred to the hospital when she exhibited neurological symptoms, or when those symptoms, resolved was speculative and conclusory because it failed to address defendant’s expert’s opinion that plaintiff’s history of prior stroke without recurrence made her a low risk for immediate stroke and that she returned to her pre-existing state of health after the subsequent stroke which included a left-sided hemiparesis with a slight facial droop. Mariani v Ramin Hodjati, M.D.


Premises Liab   Out of Possession   Snow/Ice   Slip/Trip  

First

Out of possession owner granted summary judgment on proof that co-defendant tenant was responsible for removal of snow and ice under lease. Snow and ice is not a significant structural or design defect for which an out of possession landlord may be held liable. Cepeda v KRF Realty LLC


Premises Liab   Out of Possession   Snow/Ice   Slip/Trip  

Second Deptartment

Out of possession landlord denied summary judgment for failing to eliminate questions of fact regarding its obligation and ability to remove snow between the main house and a pool house at the leased premises. The landlord reserved the right to enter the premises and make repairs on 24-hour notice and hired a worker to maintain the premises, including clearing snow. There was conflicting testimony regarding whether the plaintiff (who died during the action) excluded the landlord’s worker or requested that he clear the snow. The accident happened 11 days after a snowstorm. A TRO preventing the landlord and her worker from entering the premises and climatic data showing 2” of snowfall, both occurring 2 days before the accident were irrelevant where defendant submitted affidavits affirming that there was no snow 2 days before the accident. Casson v McConnell


Premises Liab   Warnings   Open/Obvious   Inherently Dangerous  

First

Defendant’s motion for summary judgment denied were questions existed as to whether defendant was negligent in not placing barricades around ditch at its worksite and whether caution tape was a sufficient warning. Even if the condition was open and obvious it would not eliminate the defendant’s duty to make the premises safe. Claim that defendant was negligent in not providing proper illumination to the exterior stairs was dismissed as plaintiff testified that she could see the stairs. Lumpkin v 3171 Rochambeau Ave, LLC


Late Notice of Claim   Actual Knowledge   Prejudice   Reasonable Excuse   NYC  

Second Deptartment

Petition to serve late Notice of Claim granted where the defendants had actual notice within 90 days of the accident and plaintiff made an initial showing of no prejudice to the defendants. Lack of reasonable excuse would not prevent granting of the petition as actual knowledge and lack of prejudice are the most important elements. Petition should have been denied as against NYC as the Department of Education and Board of Education were the proper parties. Matter of Ramirez v City of New York


Late Notice of Claim   Actual Knowledge   Reasonable Excuse  

Second Deptartment

Claimant’s petition to serve a late Notice of Claim for her seventh-grade daughter’s injuries, including a fractured spine requiring surgery, resulting from her being required to participate in floor exercise designed by her teacher that she had previously complained about, denied for failing to show that the school had actual knowledge of the essential elements of the claim and for failing to show a reasonable excuse for the delay in seeking leave for 14 months after the accident. Knowledge of the accident and severity of the injuries is not knowledge of the essential facts underlying the claim and plaintiff failed to show a nexus between the child’s infancy and the delay. The mother’s proffered excuse of primary concern for the child’s medical needs was not supported with medical proof. Matter of Ramos v Board of Educ. of the City of New York


Premises Liab   Snow/Ice   Storm in Progress  

First

Homeowner denied summary judgment where there was conflicting proof by both eyewitnesses and expert witnesses regarding precipitation on the day of plaintiff’s fall and whether, assuming there was no storm in progress, anyone on behalf of the defendant inspected or cleaned steps on the morning of the accident, or after the prior snowfall several days before, and whether such person’s failure to salt the stairs created or exasperated a dangerous condition. Arroyo v Clarke


Assault   Battery   Security Guard   Respondeat Superior  

First

Restaurant’s motion for summary judgment denied where security guard/bouncer threw patron who had been refused admission because of perceived intoxication to the ground less than 30 seconds after patron grabbed the bouncer’s baseball cap 10’ from the entrance to the bar as it could not be said that the bouncer was acting outside the scope of his employment as a matter of law. Salem v MacDougal Rest. Inc.


Premises Liab   Indemnity  

Second Deptartment

Commercial tenant granted summary judgment on proof that plaintiff’s accident occurred in a common area for which it was not responsible but summary judgment on cross-claims for indemnification were denied as tenant failed to show that the indemnity clause in the lease did not include common areas or that the prohibition of Gen. Obl. Law §5-321 against leases containing indemnity clauses for the landlord’s own negligence applied. Gen. Obl. Law §5-321 does not apply to commercial leases where the parties are free to enter agreements to shift the risk of liability against third parties. Rodriguez v 5432-50 Myrtle Ave., LLC


Premises Liab   Slip/Trip  

First

Plaintiff’s testimony that she felt wax on her hands, saw a sunken stripe scuff mark through the wax, and could feel the wax move as she moved her shoe back-and-forth, all captured on video after she slipped on defendant’s floor raised a triable issue of fact in opposition to defendant’s prima facie showing that it last waxed the floor 3 months earlier. Sanchez v Mitsui Fudosan Am., Inc.


Labor Law §200   Labor Law §240   Labor Law §241  

Second Deptartment

Defendants granted summary judgment where plaintiff worker was injured while standing on a ladder that moved while cutting a tree branch with a power saw by showing that they did not have authority to supervise the methods or materials of the work, required under common law and Labor Law §200, and that a tree is not a structure as defined by Labor Law §§240(1) and 241(6). Plaintiff failed to show that the tree cutting was part of a larger renovation project. Olarte v Morgan


Premises Liab   Slip/Trip   3rd Party Contractor  

First

Defendants granted summary judgment on proof that they were not the tenants for the portion of the dock where the plaintiff fell while disembarking from a cruise ship at Chelsea Piers and that their contract to operate and manage the non-demised portions of the dock was not a comprehensive and exclusive management agreement that would displace Chelsea Piers’ duty to maintain the premises in a safe condition. Because defendants neither owned, occupied, nor controlled the peer where the accident occurred, it was not a “wharfinger” and thus they owed no wharfinger duty to warn. Summers v Chelsea Piers Mgt. Inc.


Serious Injury   BP   Expert Aff  

Second Deptartment

The lower court denied the defendant’s motion for summary judgment on serious injury solely on finding that the electronic signature on the defendant’s expert’s report was not in permissible form, but the Appellate Division denied because the expert’s report failed to address the plaintiff’s claims under the 90/180-day category in the BP. Sanon v Johnson


False Arrest   False Imprisonment   Probable Cause  

First

Defendants granted summary judgment on proof that the plaintiffs had constructive possession of drugs and a weapon recovered from the balcony in the apartment where 2 plaintiffs were registered tenants and third plaintiff was in a relationship with one of the other plaintiffs, frequently slept in the apartment, kept her clothes there, and was semi-dressed when the police arrived. Excessive force claims also properly dismissed for lack of competent proof that the actions were unreasonable or caused compensable injury. Walker v City of New York


Legal Mal   Statute of Limitations  

Second Deptartment

Law office denied summary judgment on claim that it failed to commence an action against the 2nd car in a 2-car accident within the Statute of Limitations for failing to show that it exercised reasonable care or that plaintiff did not sustain damages as a result. After retaining new counsel the action against the driver of the car plaintiff was a passenger in was settled for $10,000 but the action against the other driver was barred because it had not been brought within the Statute of Limitations. Atiencia v Pinczewski


Motion to Dismiss   Untimely   Reasonable Excuse   Meritorious Action  

First

Complaint was dismissed as abandoned for plaintiff’s failure to provide a reasonable excuse for not moving for default judgment within 1 year and not demonstrating a meritorious action. Any “indeterminate extensions” of time to answer the Complaint ended more than a year before the motion following plaintiff’s letter asking defendant to answer within 2 weeks or it would be in default. Wiscovitch v Lend Lease (U.S.) Constr. LMB Inc.


Serious Injury  

Second Deptartment

Defendants granted summary judgment on serious injury by competent medical evidence that cervical and lumbar injuries did not constitute a serious injury and by plaintiff’s deposition testimony that she missed only 1 day of work addressing plaintiffs 90/180-day category claim. Small v City of New York


SUM   Stay Arb  

First

The Appellate Division reversed the lower court’s grant of a permanent stay of SUM arbitration based on a hearing where the lower court found the insured incredible even though her story matched that of a non-interested eyewitness which the lower court found “very credible,” and credited the offending driver’s testimony which was inconsistent and logically impossible. The insured and eyewitness testified that she was crossing the street when she was struck by a delivery bicycle, knocked to the ground, and subsequently struck by the offending vehicle. The driver testified that he thought he had seen the injured woman, who held a Master’s degree and worked for Morgan Stanley, riding the delivery bicycle before the impact and that he could not see the bicycle rider at the moment of impact. Matter of Ameriprise Auto & Home Ins. Co. v Cao

IF YOU MUST READ
(2 summaries)

Attorney Fees  

First

Lower court properly confirmed referee’s recommendation of apportionment of fees between outgoing and incoming counsel. Appellant did not object to the reference but only to the fact that the court ruled that the other attorney was not discharged for cause in a transcript that was not entered and, thus, was non-appealable. Alex M. v City of New York


Coverage   Stay Arb   Uninsured  

First

Arbitration of uninsured claim where offending vehicle’s carrier disclaimed coverage for failure to cooperate should have been temporarily stayed for hearing on issue of jurisdiction over New Jersey carrier and, if jurisdiction was found proper, temporarily stayed for framed issue hearing on whether disclaimer was proper. Matter of AutoOne Ins. Co. v Negron

About Matt McMahon

Civil trials and appeals since 1984

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