March 22, 2022 | Vol. 305

(7 summaries)

Labor Law §240   3rd Party Contractor   Duty   Raised For First Time  

First Department
Plaintiff’s motion for partial summary judgment on Labor Law §240(1) denied where §240 was never pleaded in the Complaints and adding it to a BP 8-years after accident did not assert the claim as a BP amplifies pleadings and cannot add a new theory. Architectural firm granted summary judgment where it did not commit any affirmative act of negligence and nothing in its contract with building owner created a duty to plaintiff. Substitute GC granted summary judgment on proof it did not commence work until after plaintiff’s accident. Valentine v 2147 Second Ave. LLC    

Products Liab   Discovery   Unknown Cause   Circumstantial Evidence  

First Department
Defendants’ motion to compel plaintiff to supplement answers to interrogatories denied where plaintiff affirmed he could not presently identify what caused elevator to move by itself but would supplement interrogatories if he discovers the cause. A plaintiff need not identify a specific product defect in a products liability case but can prove it did not perform as intended and exclude all other causes not attributable to the defendants. Berkovich v Judlau Contr., Inc.    

Premises Liab   Stairs   Set Aside Verdict   Admissibility   Hearsay   Jury Charge   Prejudice  

Second Department
While defense verdict was not against weight of evidence, and admission of photographs without a proper foundation was harmless error, verdict set aside for admission of statement in hospital record that injuries were from “mechanical fall down ‘a few’ stairs” not germane to diagnosis or treatment and could not be an admission as it did not identify the declarant. The trial judged compounded the prejudice by charging the jury on this statement. Fraser v 147 Rockaway Pkw, LLC    

Pothole Law   Prior Written Notice   Big Apple Pothole   NYC   Premises Liab   Construction Liab.   Create Condition   Discovery   Note of Issue   Untimely  

First Department
NYC failed to show it did not have prior written notice of sidewalk and curb defect where the Big Apple Map symbol for “[e]xtended section of broken, misaligned, or uneven curb” “encompasses whatever happens at that particular location,” plaintiff testified the crumbled concrete on the curb and sidewalk she fell on was 2’ wide, and NYC did not show why the symbol did not apply.

Third-Party defendant Con Ed granted summary judgment on proof worked it did only in roadway was restored 1.5-years before accident and abutting land owner failed to raise issue against Con Ed as record searcher’s affidavit of no record of work in area did not contradict her testimony that its permit allowed it to open roadway or sidewalk to install conduit.

Plumbing company failed to show it did not create the condition while repairing the sidewalk where it kept no records and had no recollection of the repair. Its motion to strike Note of Issue and for further discovery denied where it did not seek the discovery before Note of Issue. Bagley v 1122 E. 180th St. Corp    

Premises Liab   Out of Possession   Building Code  

Second Department
Defendant building owners granted summary judgment where tenant’s employee fell off 3-step ladder that shifted from dents in freezer floor on proof they were out of possession owners with no duty by course of conduct to repair or maintain the condition. As plaintiff did not allege a statutory violation, defendants were not required to prove they did not have a statutory duty. Defendants properly proved lease was in effect at time of accident. Lopez v Mattone Group Raceway, LLC    

MVA   Venue   Uncertified Records   Admissibility  

Second Department
Defendant’s motion to move venue from Kings to Ulster county where MVA occurred granted on Certificate of Incorporation listing Richmond County as its principal place of business and plaintiff was a NJ resident. Plaintiff submission of an uncertified printout of the Secretary of State website page to show the certificate was amended was inadmissible. Faulkner v Best Trails & Travel Corp.    

Sanctions   Hearing  

First Department
Lower court’s sua sponte grant of $10,000 sanctions against plaintiff’s counsel for frivolous Labor Law and punitive damage claims reversed where lower court did not conduct a hearing or issue a decision detailing the conduct, why it was frivolous, and why amount was appropriate as required by 22 NYCRR §§ 130-1.1(d) and 130-1.2. DeSouza v Manhattan RX LLC    

(25 summaries)

Premises Liab   Motion to Dismiss   Statute of Limitations   Duty   Amend Complaint  

Second Department
Motions to dismiss brought by originally named LLC and separate LLC added by Amended Complaint 1-month after statute of limitations ran granted on proof original LLC never owned, operated, or used the premises and, therefore, owed no duty to plaintiffs, and action against added LLC was time barred where it had no connection to originally named LLC for relation-back doctrine to apply. Plaintiffs’ motion to amend Complaint to add new defendants, including Inc. with same name of originally named LLC, denied without proof of any connection to originally named defendant for relation-back doctrine. Finck v VL 10 1620 New Highway, LLC    

Assault   Battery   Preclusion   Severance   Premature Motion  

First Department
In action where exotic dancer claimed she was raped during a lap dance, lower court providently denied as premature individual defendant’s motion to preclude evidence and EBT questions of his prior bad acts as they may be relevant to “motive, intent, or a common scheme or plan,” and denied motion to strike scandalous material where defendant did not show they were irrelevant. Severance also denied without prejudice to renew after discovery. Robinson v Dinneen    

Comment: Potential prior bad act evidence included 12-dancers and 8-other witness.

Malpractice   Experts   Admissibility   Renew  

Second Department
Plaintiff’s expert’s CPLR §2106 affirmation not admissible where expert was not licensed to practice in NY and would not have raised an issue as the opinions were conclusory, not supported by the record, and failed to address defendant’s expert’s opinions.

Renewal properly denied where new evidence would not have altered the determination. Valentine v Weber    

Serious Injury   ROM   Admissibility  

First Department
Defendants granted summary judgment on serious injury where their orthopedic surgeon and neurologist found normal ROM with only slight limitation, injuries resolved without any permanency, and BP alleged only 1-month of bed confinement and missed work.

Plaintiff did not submit any affirmed medical reports and opinions in medical records certified under CPLR §4518, which are inadmissible and can only be used for limited purposes, did not become admissible where defendants’ experts reviewed them but did not rely on them. ER record that was relied on did not support serious injury claim. Rivera v Lopez-Reyes    

Amend Complaint   Statute of Limitations   Personal Juridiction   Service   Estoppel  

First Department
Plaintiff’s motion to amend Complaint after statute of limitations to add joint venture with name similar to named defendant denied on proof joint venture was separate entity with different address and counsel and, therefore, amendment was not a mere misnomer correction. Defect could not be corrected under CPLR §311-a as original defendant was not personally served and it was not likely to inform the joint venture of suit. Defendant did nothing to hide that it was a separate entity that would justify estoppel. Willis v Metropolitan Transp. Auth.    

Malpractice   Accepted Practice   Causation   Experts  

First Department
Ambulatory surgical center denied summary judgment on conflicting expert opinions of whether failure to have ability to convert anesthesia to general anesthesia, or a plan for immediate transfer to a facility capable of administering general anesthesia, departed from accepted practice and was a cause of plaintiff’s decedent’s heart attack. Decedent became agitated during eye surgery requiring general anesthesia and it took several hours to have him transferred to a hospital by a car service where the surgery continued during which he went into cardiac arrest and died while being transferred to another hospital. Barahona v Marcus    

Malpractice   Accepted Practice   Causation   Experts   Conclusory  

Second Department
ENT doctor who performed awake tracheostomy to protect decedent’s airway in preparation to remove a vocal cord polyp blocking 85% of her airway, during which her airway was lost, she suffered brain edema, and died 9-days later failed to meet burden for summary judgment where his expert failed to address specific allegations and conflicting evidence and failed to eliminate issues on causation.

Hospital failed to meet burden for summary judgment on vicarious liability claims for malpractice of anesthesiologist where its expert summarized medical records, failed to address specific allegations, and gave conclusory opinion of no departure from accepted practice and causation. Relying solely on the hospital’s expert, anesthesiologist also denied summary judgment. Martinez v Orange Regional Med. Ctr.    

Child Victims Act   Motion to Dismiss  

Second Department
Parish’s and dioceses’ motions to dismiss cause of action for breach of fiduciary duty in Child Victims Act case granted as Complaint did not allege facts sufficient to show relationship with the then 10-year-old who was sexually abused was “unique or distinct” from that with other parishioners. J. D. v Roman Catholic Diocese of Brooklyn    

Labor Law §241   Labor Law §200   Control   NYC  

Second Department
NYC granted summary judgment of laborer’s Labor Law §§241(6), 200, and negligence claims for injuries during Hurricane Sandy renovation project on property not owned by NYC on proof it was not an agent of the owner as it retained only general supervisory control and was not authorized to control the injury producing work and §200 and negligence claims were based on means and methods of plaintiff’s work. Southerton v City of New York    

Labor Law §240   Labor Law §241   Labor Law §200   Safety Devices   Agent  

First Department
Defendants granted summary judgment dismissing Labor Law §240(1) claim where plaintiff was struck by excavator while bringing debris up ramp and rolled down ramp after being struck as accident was not the direct consequence of failing to provide a safety device to protect against an elevation risk. Defendant that was delegated control of injury producing work properly found to be owner agent for Labor Law. That defendant’s motion for renewal denied without a reasonable excuse for not submitting “new evidence” with original motion and it would not have changed the determination.

Plaintiff’s request to search record and grant summary judgment on Labor Law §200 and negligence claims denied where thoseissues were not raised by the appealing parties. Herrera v Kent Ave. Prop. III LLC    

Products Liab   Design Defect   Warnings   Foreseeability   Sole Cause  

Second Department
Manufacturer of trommel (dirt-shifting machine) denied summary judgment where worker’s hand/arm got dragged into the machine as he tried to clear a clog on its conveyer belt as it failed to eliminate questions of whether plaintiff’s actions were foreseeable and reasonable, whether warnings were adequate, and what instruction were provided by plaintiff’s employer and it failed to show as a matter of law that plaintiff was sole cause of the accident. Rodriguez v McCloskey Intl. Ltd.    

Labor Law §240   Labor Law §241   Safety Devices   Industrial Code   Causation   Hearsay   NYC  

First Department
Electrical foreman who fell down stairs during renovation project denied summary judgment on Labor Law §240(1) where NYC and GC raised issue of whether stairs were a safety device. Plaintiff’s testimony he reached for missing handrail as he fell raised issue on, but failed to conclusively show, violation of industrial code §23-2.7(e)(handrails) was a cause of his injuries. Engineer’s testimony that plaintiff’s sub-foreman said accident never happened was inadmissible hearsay. Waldron v City of New York    

Labor Law §240   Labor Law §241   Industrial Code  

First Department
Owner’s , GC’s, and subcontractor’s motions for summary judgment dismissing Labor Law §240(1) claim of worker who tripped on uncovered rebar mat while going to lunch denied on questions of whether fall was from an elevated-related hazard where plaintiff testified it was 12″ above the ground and other witnesses testified it was 2″-3″ and whether plaintiff was engaged in work involving an elevation-related risk when he fell. Issue remained of whether subcontractor had sufficient authority over injury producing work to be statutory agent of owner. Labor Law §241(6) claim predicated on industrial code §23-5.1(e)(5)(planked scaffold width) dismissed as rebar mat was not a planked scaffold or walkway under that provision and was intended to support concrete not to protect workers.

Owner and GC granted summary judgment dismissing Labor Law §200 and negligence claims where they had no authority to control injury-producing work and granted summary judgment on contractual indemnity claims against subcontractor as accident arose out of subcontractor’s work. Payne v NSH Community Servs., Inc.    

Premises Liab   Create Condition   Note of Issue   Question of Fact  

Second Department
Defendants met burden for summary judgment by submitting select portions of plaintiff’s and store manager’s testimony but plaintiff raised issue of whether he tripped on a preexisting bundled-up section of carpet in furniture store by submitting the full EBT transcripts. Edwards v Raymour & Flanigan Props., LLC    

Assault   Respondeat Superior   Negligent Hiring   Premises Liab   Foreseeability   Notice  

First Department
First Department majority dismissed respondeat superior claims of JFK maintenance worker who claimed to be assaulted by non-party employee of defendant American Airline (AA) while she was cleaning a bathroom in main AA terminal owned by defendant Port Authority (PA), crediting affidavit of AA manager with a shaky foundation, alleged assailant’s testimony, and PA police report establishing alleged assailant was not working at time of incident and nothing made an assault foreseeable. Fact alleged assailant was wearing work badge was alone insufficient to raise issue of whether he was working at time.

Majority also dismissed negligent hiring, supervision, retention claims on AA manager’s affidavit and alleged assailant’s testimony that he had been fully vetted, including background searches by federal agencies necessary to obtain security badge, there were no prior “incidents,” nothing in his job of moving planes made an assault foreseeable, and plaintiff testified she thought area safe, was unaware of prior assaults, and only reported issue of AA employees using main terminal as “troublesome” to her employer, not defendants.

In a concurrence by 2-justices, they agreed with plaintiff that AA manager’s affidavit lacked a proper foundation but found the other evidence, primarily the alleged assailant’s testimony, sufficient to grant summary judgment. Summors v Port Auth. of N.Y. & N.J.    

MVA   Bus   Set Aside Verdict  

Second Department
Plaintiff’s motion to set aside verdict which found county not negligent where plaintiff’s shins struck an armrest when the bus went over a speed bump denied as not against the weight of evidence where jury could find on fair interpretation of the evidence, including driver’s testimony and surveillance video, that bus movement was normal jerks and jolts and not unusual and violent. Jones v Westchester County    

MVA   Bus   Pedestrian   Comparative Fault   Emergency Doctrine  

Second Department
Plaintiff entitled to summary judgment where he stopped and looked both ways before entering crosswalk with signal in his favor and was struck by bus, also establishing he was not comparatively at fault. Bus driver’s claim his vision was blocked by glare did not raise issue on emergency doctrine where he was familiar with route. Morales-Rodriguez v MTA Bus Co.    

False Imprisonment   Emotional Harm   Motion to Dismiss   Statute of Limitations   Untimely   Intervening Cause  

First Department
NYCTA’s motion to dismiss counterclaim of third-party defendant who pushed plaintiff’s decedent on subway tracks denied where motion on statute of limitations was untimely under CPLR §3211(e) after NYCTA served Reply, and it did not address the statute of limitations in its brief. Motion to dismiss for failure to state a cause of action was timely under CPLR §3211(e) but third-party defendant’s pleadings stated a cognizable cause of action where he was acquitted of criminal charges based on self-defense, leaving questions on NYCTA’s claim his “extraordinary and unforeseeable” conduct was an intervening cause. NYCTA could move for summary judgment on statute of limitations as defense was timely pleaded in its Reply. Han v New York City Tr. Auth.    

Premises Liab   Sidewalk   Unknown Cause   Circumstantial Evidence   NYC  

Second Department
While 4-year-olf infant could not identify cause of her fall at EBT when she was 7, her mother’s statement that she saw daughter trip on sidewalk defect in a park owned by NYC and managed by condominium defendants, and her father’s testimony that he immediately ran to infant whose body was partly on sidewalk were sufficient circumstantial evidence to deny defendants’ motion for summary judgment of their claim plaintiffs could not identify cause of infant’s fall.

Because defendants did not submit evidence that condition was not a defect, was trivial, or open/obvious and not inherently dangerous, the burden on these claims never shifted to plaintiff. E. F. v City of New York    

Premises Liab   Sidewalk   Snow/Ice   § 7-210   Unsigned Transcript   Renew   Reasonable Excuse  

Second Department
Building owner granted summary judgment on plaintiff’s testimony that she crossed to other side of street, away from defendant’s property, before she fell and on super’s testimony sidewalk abutting defendant’s building was maintained in a safe manner. Administrative code §7-210 imposes a duty only for sidewalks abutting the property. Super’s unsigned EBT transcript properly considered.

Renewal denied as it is not a second chance to argue case and plaintiff failed to give reasonable justification for not submitting the new evidence originally. Siyunova v 5420 Mgt. Corp.    

Premises Liab   Trivial   Experts   Speculation  

First Department
Defendants granted summary judgment on unenhanced photos showing defect was minor and not hidden or a trap and plaintiff’s testimony it was sunny and he never had difficulty entering the bank. Plaintiff’s estimation of height differential and estimation of his expert who never visited site, based on a survey 4-years after the accident, were speculative. Rojas v P&B Bronx Props. LLC    

Premises Liab   Snow/Ice   Storm in Progress  

Second Department
NYCHA failed to meet burden for summary judgment based on storm in progress where it did not establish as a matter of law that plaintiff’s fall was not from a pleaded “longstanding condition of ice.” Stukes v New York City Hous. Auth.    

False Imprisonment   Emotional Harm   Motion to Dismiss   Sole Cause   Discovery   HIPAA   Privilege  

First Department
Pro se plaintiff’s argument it is illegal to require him to provide HIPPA authorizations and motion for a protective order rejected as information was relevant to claimed injuries and collateral sources. Claims for false imprisonment, and intentional infliction of emotional harm dismissed as barred by 1-year statute of limitations. Claim of fraud dismissed where reliance not pleaded and claim not pleaded with particularity. Negligent infliction of emotional harm claims dismissed without allegation of duty to plaintiff and that he was unreasonably endangered. Winslow v New York-Presbyt./Weill-Cornell Med. Ctr.    

Serious Injury   BP  

Second Department
Defendants’ motion for summary judgment on serious injury denied where they failed to eliminate questions on 90/180-day category in BP. Testa v Lorefice    

Assault   Motion to Dismiss  

First Department
Defendants’ motion to dismiss assault claim for failure to state a cause of action granted where pro se plaintiff’s Complaint failed to plead the elements of a civil assault cause of action which is “an intentional placing of another person in fear of imminent harmful or offensive contact.” Cadet v Ayers    

(1 summaries)

Serious Injury  

Second Department
Defendants granted summary judgment on competent medical proof that plaintiff did not sustain a serious injury under permanent consequential limitation, significant limitation, or 90/180-day category and plaintiff failed to raise an issue in opposition. The Court does not give the details of the proofs. Yeninas v Kah    

About Matt McMahon

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