March 21, 2023 | Vol. 357

(5 summaries)

MVA   Arbitration   § 7-210  

First Department
Plaintiff’s motion to stay arbitration of personal injury claim demanded by Uber as mandatory under its Terms and Conditions granted and Uber’s cross-motion to compel arbitration denied where Uber failed to show “an explicit and unequivocal agreement to arbitrate” by plaintiff’s signup up for its app in 2015 without proof the app constituted a valid “clipwrap agreement,” where users click a button or checkbox to confirm acceptance of the agreement.

Plaintiff’s motion after the 20-day limit for moving for a stay fell within the exception where parties never agreed to arbitrate. Castro v Jem Leasing, LLC    

Comment: From the cases cited by the Court, Uber’s clipwrap agreement went into effect in January 2021 requiring users to agree in order to use the service and contained a broad enforceable delegation agreement leaving the question of whether a user agreed to arbitrate to the arbitrator not the courts.

Malpractice   Coverage  

First Department
Plaintiff’s motion to vacate stay granted where First Department previously found Montana court order enjoining litigation against nursing home’s insolvent risk retention group, CareConcepts Insurance, Inc. and its insureds, was not entitled to full faith and credit or comity because risk retention groups do not pay into funds to protect injured parties on its insolvency and would undermine NY’s policy of protecting victims of nursing home negligence. Joseph v Saint Joseph    

Premises Liab   MVA   Causation  

Second Department
Building defendants who allowed their employees to park on the sidewalk outside their building granted summary judgment where one of its employee’s vehicle suddenly accelerated striking decedent as allowing employees to park on the sidewalk only provided the occasion for and not a proximate cause for the accident. The sudden acceleration was the proximate cause. Hanna v Valenti    

Workers Comp   Settlement   Untimely  

Second Department
Petition for Workers Compensation Law §29(5) judicial approval of settlement nunc pro tunc denied as more than 2.5 year delay is seeking approval was due to petitioner’s own fault or neglect. Matter of Delessio v York Risk Servs. Group, Inc.    

MVA   Motion to Dismiss   Admission  

First Department
Non-moving defendants’ failure to deny they owned the vehicle involved in the accident was a formal judicial admission that they were the owners entitling moving defendant to dismissal. Lower court improvidently converted motion to summary judgment where it did give notice of conversion to the parties. Pacheco v Jabalera    

(20 summaries)

Products Liab   Note of Issue   Discovery   Preclusion   Untimely   Reasonable Excuse   BP  

Second Department
Manufacture of Quad Fork Spinner device to assist disabled plaintiff in turning steering wheel met its burden for summary judgment by its former welder’s opinion the device had been rewelded after it was sold and was a substantial modification but plaintiff raised issues in opposition, including whether it had been rewelded.

Manufacturer’s motion to vacate the Note of Issue and compel plaintiff to produce the device for inspection or preclude plaintiff’s expert from testifying providently denied as untimely where made after receiving plaintiff’s opposition to the summary judgment motion, 5-months after Note of Issue, and plaintiff’s expert did not raise a new theory as plaintiff had alleged a welding defect in her BP. Sullivan v R&J Mobility Serv., Inc.    

MVA   Discovery   Note of Issue   Untimely   Reasonable Excuse   Prejudice  

First Department
Defendants’ motion to vacate the Note of Issue filed 7.5-months after the Note of Issue denied as untimely where the parties had signed a so-ordered stipulation that discovery was complete and there was no misrepresentation of a material fact in the Certificate of Readiness when it was filed. Defendants failed to show unusual or unanticipated circumstances or prejudice from information of additional claims revealed in an ISO claim search conducted 5-months after the Note of Issue. Taylor v Enterprise FM Trust    

Labor Law §240   Note of Issue   Discovery   Untimely   Reasonable Excuse  

Second Department
Plaintiff’s summary judgment motion under Labor Law §240(1) for injuries when scaffold he was working on collapsed, initially filed 6-months after filing Note of Issue that indicated one of defendant’s EBTs was outstanding, denied where plaintiff failed to show the outstanding deposition was “essential” to his motion as the issues raised were not in dispute and his 2-month delay in bringing the motion after the deposition was completed was not “prompt.” Ragoonanan v 43-25 Hunter, LLC    

Ins. L. § 3420(a)(2)   Notice   Untimely  

Second Department
Carrier granted declaratory judgment that it was not obligated to defend or indemnity insured-school where insured did not notify carrier of infant’s accident on its playground slide for 3-months and that carrier was not responsible to pay unsatisfied judgment against its insured entered 10-years later under Ins. L §3420(a)(2) where plaintiff did not make diligent efforts to ascertain and notify the carrier of the claim. Claim arose before amendment to §3420(a)(2) requiring carrier to show prejudice by delay. ZLv Zurich Am. Ins. Co.    

Labor Law §240   Labor Law §241   Labor Law §200   Industrial Code   Notice   Agent   Control  

First Department
Owner and GC denied summary judgment dismissing claims of worker who tripped on piece of wood in poorly lit passageway as he dragged a dolly with refrigeration equipment and fell into 2’-3’ uncovered elevator pit on GC’s testimony that the pit had been covered for safety but removed, raising an issue on applicability of Labor Law §240(1) and on Labor Law §241(6) for violation of industrial codes §§ 23-1.7(e)(tripping hazard) and 23-1.30 (illumination). Owner and GC denied summary judgment on Labor Law §200 and negligence claims where issues remained of whether they had notice of insufficient lighting and constructive notice of the uncovered pit for 2-days which was not latent or transient and clearly visible since other trades stored equipment there.

Kitchen contractor failed to show it was not a statutory agent where it had responsibility to supervise installation of kitchen equipment, including supervising its subcontractors such as decedent’s employer, under its contract with the GC but granted summary judgment dismissing §200 and negligence claims as it had no responsibility over the lighting, debris removal, or elevator pit. Devita v NYY Steak Manhattan, LLC    

Labor Law §240   Ladder   Falling Object   Admissibility   Hearsay  

Second Department
Worker who fell from unsecured ladder that fell after it was hit by a falling pipe granted summary judgment under Labor Law §240(1). Fact that ladder had 4-contact points with floor and brace to hold it open irrelevant where it was undisputed ‘the ladder was not secured to something stable and was not chocked or wedged in place.” Unsworn affidavit of plaintiff’s foreman not considered nor was testimony of his employer’s principal which was based on foreman’s hearsay. Mora v 1-10 Bush Term. Owner, L.P.    

Labor Law §240   Labor Law §241   Labor Law §200   Sole Cause   Question of Fact   Industrial Code   Control   Waiver  

First Department
Plaintiff’s testimony he was hit by a spinning beam as he tried to stop it to protect his coworkers as they lowered the beam would have evinced only comparative fault on his Labor Law §240(1) claim but his supervisor’s testimony that the beam never spun and plaintiff was hit when he stood up after moving under the beam created an issue on sole proximate cause for plaintiff’s unauthorized and dangerous conduct. Conflicting testimony on whether the beam spun left questions on the applicability of industrial code § 23-6.1(h)(tag lines for swinging/turning loads) on the Labor Law §241(6) claim.

Plaintiffs abandoned their Labor Law §200 and negligence claim where they did not oppose defendants’ motion for summary judgment below and the Court declined to review their appellate arguments as it was not a purely legal argument apparent on the record. In any event, it would have been dismissed as there was no proof defendants supervised or controlled plaintiff’s work. Fundus v Scarola    

Malpractice   Discovery  

First Department
Motion by Law firms, defendants in a legal malpractice case brought by the guardian, to unseal guardianship records granted as lower court’s grant of motion to seal records because of the “size of the settlement and other ongoing litigation” was insufficient to overcome the public’s right to the records, especially where the guardian put the incapacitated person’s mental condition in issue in the legal malpractice case.

Law firms’ motion for the judge’s recusal denied even though by sealing the records the court engaged in ex parte communications as ex parte communications regarding fee approval and guardianship matters do not require recusal as a matter of law. Jose V. v Smiley & Smiley LLP    

Malpractice   Statute of Limitations  

Second Department
Doctor whose unclear prescription resulted in substantially reducing plaintiff’s thyroid medication granted summary judgment where action was commenced beyond the 2.5-year statute of limitation and plaintiff’s argument that it was negligence not malpractice rejected as prescribing medicine bears a “substantial relationship” to plaintiff’s medical treatment and is governed by the malpractice statute of limitations. Kelty v Genovese Drug Stores, Inc.    

Malpractice   Accepted Practice   Experts  

Second Department
Doctor who performed transcretal prostate biopsy after which plaintiff developed an e-coli infection granted summary judgment on expert’s opinion procedure was performed within accepted practice. Plaintiff failed to raise an issue in opposition with opinion of doctor licensed in Uzbekistan who failed to establish familiarity with standards of care in NY or ‘to a minimum standard applicable locally, statewide, or nationally.’ Sobirov v Tetsoti    

Serious Injury   Experts   Conclusory  

Court of Appeals
The Court upheld summary judgment dismissing plaintiff’s claim, affirmed by the Third Department, where defendants submitted evidence that plaintiff had several prior accidents with injuries to his back and the same limitations alleged in the BP. Plaintiff’s expert failed to raise an issue in opposition by a conclusory opinion that did not show how the limitations and need for surgery were related to the subject accident and not plaintiff’s prior injuries and degenerative conditions. Lemieux v Horn    

Serious Injury   Experts  

Second Department
Plaintiff raised an issue of serious injury in opposition to defendants’ experts’ opinions that CT Scans at hospital he was taken to after the accident did not show fractures of the L2, L3 spinous processes by submission of the certified hospital records that included the radiologist’s and emergency doctor’s identification of the fractures on their reviews of the films which sufficiently addressed the defendants’ experts’ opinions. Scully v Stephens    

Malpractice   Motion to Dismiss   Res Judicata   Collateral Estoppel   Statute of Limitations  

Second Department
Motion to dismiss by law firm which represented plaintiff in legal malpractice case as defendant in personal injury case denied as res judicata did not apply since and the causes of action in the underlying personal injury case were not the same as the legal malpractice cause of action in the present case and the law firm was not a party to the personal injury case. Collateral estoppel did not apply as the issues were not identical in both cases. Motion to dismiss on statute of limitations denied as the cause of action did not accrue until the law firm failed to appear for trial and the legal malpractice action was commenced within 3-years of the default. Simmons v Jones Law Group, LLC    

Premises Liab   Sidewalk   Snow/Ice   Notice   Last Inspection   Causation   Survelliance Video   Sole Cause  

Second Department
Grocery store failed to meet burden for summary judgment for plaintiff’s slip on ice on sidewalk outside its store where shift manager testified their staff was responsible for snow/ice removal but only testified to general practice that staff would check sidewalk sometime in the morning, not when the sidewalk was last inspected prior to plaintiff’s fall. Surveillance video left question of whether plaintiff fell solely from hitting his foot on a wooden block under of a sidewalk shed pole or slipping on ice. Morlan v Atlantic Westerly Co.    

Premises Liab   Snow/Ice   Storm in Progress  

Second Department
Owners of apartment complex where plaintiff slipped on ice in cracks of walkway failed to meet burden for summary judgment where plaintiff and defendant gave conflicting versions of weather conditions at the time of the accident and failed to eliminate questions of whether ice was formed days before the accident. Licari v Brookside Meadows, LLC    

MVA   Pedestrian   Turning Vehicle   Sole Cause   Serious Injury   BP   Appealable Order  

Second Department
Plaintiff entitled to summary judgment on liability by her affidavit that she was in crosswalk with pedestrian signal in her favor when struck by defendants’ vehicle as it made a left hand turn. Defendant-driver’s claim plaintiff stopped and made eye contact with him insufficient to raise an issue that plaintiff was sole cause of the accident. Lower court denied plaintiff’s motion as academic when it granted defendants summary judgment on serious injury but Court could determine the motion in the interest of justice where the issue was fully litigated below.

Defendants failed to meet burden for summary judgment on serious injury without eliminating all questions of fact on 90/180-day category alleged in plaintiff’s BP or addressing plaintiff’s claim her hip and spine injuries were aggravated by the accident. Jordon v Chan    

Rear End   Pileup   Nonnegligent Explanation   Emergency Doctrine  

Second Department
Owner/driver of rear vehicle that rear ended middle vehicle driven by plaintiff in 3-car pileup granted summary judgment on driver’s affidavit he was following lead vehicle at a safe distance when plaintiff suddenly cut in front of him, struck the lead vehicle within seconds, and came to a sudden stop, establishing a nonnegligent explanation and that he acted reasonably in the face of an emergency situation he did not create. Plaintiff did not oppose the motion. Martin v PTM Mgt. Corp.    

Premises Liab   Duty   Create Condition  

Second Department
Lower court properly granted caterer’s motion for summary judgment on proof it did not owe plaintiffs a duty to keep the steps outside hall owned by the county safe on proof it did not own, occupy, control, or make special use of the steps and did not create the dangerous condition. County failed to raise an issue in opposition on its cross-claims against the caterer. Engelman v County of Suffolk    

Premises Liab   Dangerous Condition   Open/Obvious   Inherently Dangerous  

Second Department
Homeowners granted summary judgment on proof the mat on their front stoop plaintiff tripped on was not dangerous and was open/obvious and not inherently dangerous. Plaintiff failed to show the mat was dangerous. Villalba v Daughney    

Serious Injury   Admissibility   Uncertified Records  

Second Department
Plaintiffs did not dispute that defendants met burden for summary judgment on serious injury but raised issues in opposition on the uncertified medical records of their treating doctors. The uncertified records were admissible where submitted by the defendants. The Court does not give the details of the proofs. Miles v Hall    

(3 summaries)

Malpractice   Accepted Practice   Causation   Experts   Conclusory   Speculation   Waiver  

Second Department
Two doctor-defendants granted summary judgment on opinion of their expert, medical records, and their testimony establishing they did not depart from accepted practice and any departure was not a cause of plaintiff’s injuries. Plaintiff failed to raise an issue in opposition where her expert’s opinions were conclusory, speculative, and not supported by the record. The Court does not give the details of the proofs.

Appeal by hospital and other doctor-defendant dismissed as abandoned. Gargano v Langman    

Serious Injury   BP  

Second Department
Defendants failed to meet burden for summary judgment on serious injury of 3-plaintiffs without eliminating all questions of fact on 90/180-day category each alleged in their BPs. The Court did not need to look at whether any other injuries met the serious injury threshold. The Court does not give the details of the proofs. Alexandre v Neptune    

Serious Injury   BP  

Second Department
Defendants failed to meet burden for summary judgment on serious injury without eliminating all questions of fact on 90/180-day category alleged in plaintiff’s BP. The Court does not give the details of the proofs. Bradley v Palin    

About Matt McMahon

Civil trials and appeals since 1984. Retired partner McMahon | McCarthy.
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