March 23, 2021 | Vol. 254

MUST READS
(5 summaries)
NOTEWORTHY IF YOU MUST READ

Set Aside Verdict   Pain/Suffering   Appealable Order  

First Department

Lower court erred in discharging jury foreperson after altercation with another juror without allocating both jurors about incident as heated discussions amongst jurors is not uncommon and not, in and of itself, grounds to discharge a juror without an interview. Lower court also erred in limiting polling of jury to single question foreperson had mistakenly reported as being unanimous where plaintiff had requested a full polling as it is “fundamental error to deny a party’s request poll the jury.” Plaintiff appealed judgment on verdict awarding $500,000/$0 past/future pain/suffering and 50% liability. Case remanded for a new trial. Garcia v Rosario    


Notice of Claim   Estoppel   Statute of Limitations   NYC  

First Department

NYC granted summary judgment where plaintiff failed to serve timely Notice of Claim or seek leave to serve late Notice of Claim and plaintiff failed to show any conduct by defendant that misled or caused her not to file timely Notice of Claim or motion for leave to serve late Notice of Claim under estoppel theory. NYC’s litigating case until expiration of statute of limitations does not establish estoppel and plaintiff was on notice of NYC’s claim by Answer, served within time to seek late Notice of Claim, which identified failure to serve Notice of Claim. Tirado v City of New York    


Negligent Supervision   Assault   Special Duty   Foreseeability   Violent Propensity   Negligent Hiring  

Second Department

School district granted summary judgment where assistant principal who became aware of rumor offending student intended to fight another student 2-days before plaintiff’s child was assaulted, warned offending student and mother of consequences of fighting, and advised head of security of rumor even though he did not know the intended target. Schools owe “special duty” to protect students from foreseeable risks, to be judged by what a reasonable parent would do, but cannot be expected to continuously monitor all movements and actions of students. BP did not allege, and there was no proof, that defendant had notice of any violent propensities of offending student, the assistant principal acted reasonably without knowledge of intended target, and assault happened so quickly that no degree of supervision could have prevented it. There could be no negligent training claim where the parties were acting within the scope of their employment. Wienclaw v East Islip Union Free Sch. Dist.    


Premises Liab   Out of Possession   Amend BP   Raised For First Time   Note of Issue   Reasonable Excuse  

Second Department

Out of possession landlord granted summary judgment where tenant’s employee claimed store door closed abruptly on her on proof tenant was solely responsible for maintenance of store under lease. Fact that landlord retained some responsibility to maintain portions of premises could only create liability if defect was in area landlord was responsible for under lease. Plaintiff’s motion to amend BP to add new theory that wheel of cart got stuck on floor defect, raised for first time in opposition to motion for summary judgment after Note of Issue filed, denied where there was no reasonable excuse for delay in seeking to add new theory. King v Marwest, LLC    

Comment: Plaintiff’s appeal from subsequent lower court order granting defendant summary judgment dismissed as academic. King v Marwest, LLC


Assault   Wrongful Death   Police   Governmental Immunity   NYC  

First Department

NYC granted summary judgment of assault/wrongful death claims against police officer who confronted and took down individual making death threats and racial slurs who broke free and attacked another responding officer that shot and killed assailant, even though there were questions of fact of whether officer should’ve known perpetrator was an emotionally disturbed person, as determination of how to handle perpetrator required instantaneous discretionary decision affording officer qualified immunity and the officer’s actions did not violate departmental standards or procedures. Conrad v City of New York    

NOTEWORTHY
(17 summaries)
MUST READS IF YOU MUST READ

MVA   Set Aside Verdict   Pain/Suffering   Materially Deviates  

Second Department

Plaintiff’s motion to set aside verdict for plaintiff granted and new trial ordered as award materially deviated from reasonable compensation unless defendant stipulated to increase jury’s award of $100,000/$50,000 to $300,000/$200,000 for past/future pain/suffering where plaintiff required spinal fusion surgery for herniated C5-6 disc that would require future surgery, frequent PT and pain management, and periodic MRIs for the rest of his life. Rojas v Brabant    


Premises Liab   Elevator   Notice   Res Ipsa Loquitor   Duty   Espinal   Untimely   Prejudice  

First Department

Building owner and manager granted summary judgment on proof they had no notice of defect in freight elevator that caused gate to close on plaintiff’s arm and descend while she tried to free her arm. Plaintiff could make out a prima facie case against elevator company without notice under res ipsa loquitor where there was no dispute accident would not normally occur without negligence and broad responsibilities of elevator company totally displaced owner’s obligations to maintain elevator under Espinal. Company hired to consult on modernization of elevator not subject to res ipsa loquitor even though it observed inspections of elevator as it did not provide comprehensive maintenance.

Plaintiff’s untimely opposition to owner’s motion properly considered where defendant not prejudiced and in fact benefited by delay by being able to submit reply with expert affidavit. Sanchez v 1067 Fifth Ave. Corp.    


Malpractice   Accepted Practice   Causation   Experts  

Second Department

Defendants made out prima facie entitlement to summary judgment on expert opinions that they did not depart from accepted practice in clearing plaintiff for surgery before her hypertension was under control, continuing the surgery after her blood pressure dropped during administration of anesthesia, and postsurgical treatment prior to plaintiff’s ischemic stroke and that there was no causal connection between their treatment and plaintiff’s stroke. Plaintiffs’ experts’ raised issues on accepted practice but failed to show any causal connection between claimed departures and plaintiff’s stroke, without which summary judgment was granted. Javich v Sullivan    


Labor Law §241   Industrial Code   Untimely   Note of Issue   Experts   CPLR § 3101(d)   Control  

Second Department

Plaintiffs granted summary judgment on Labor Law §241(6) against codefendants, owner of 1 of 2 condominium being combined for a supermarket and supermarket-tenant, on injured-plaintiff’s unrebutted testimony he was injured by table saw without protective guard or spreader in violation of industrial codes §§23-1.5(c)(3) and 23-1.12(c)(2) and (3). Plaintiff’s untimely cross-motion could be considered where based on “nearly identical grounds” as defendants’ timely motions and fact plaintiff was sole witness did not preclude summary judgment absent proof it was ‘manifestly untrue, physically impossible, contrary to experience, or self-contradictory.’ Plaintiff’s expert’s opinion showing causal connection between injuries and industrial code violations could be considered even though not disclosed prior to Note of Issue.

Owner of second condominium unit denied summary judgment on §241 where it could not be determined whether plaintiff’s injury happened in its portion of combined premises and plaintiff denied summary judgment against that owner where question remained of whether it was an owner of area where injury occurred, contracted for, or had control over the construction. Cruz v 1142 Bedford Ave., LLC    


Malpractice   Accepted Practice   Causation   Experts  

First Department

Conflicting opinions of defendant’s and plaintiff’s experts as to age of brain abscess and whether absence of symptoms in extremely premature infant ruled out infection with Serratia marcescens precluded summary judgment for defendant. Diaz v NYU Langone Med. Ctr.    


Malpractice   Accepted Practice   Causation   Experts   Speculation   Conclusory  

Second Department

Plaintiff’s expert raised issue on opinion defendants departed from accepted practice by not performing C-section earlier but failed to raise issue on causation where opinion was speculative and conclusory with insufficient explanation of claim infant-plaintiff sustained injuries from the departure. H.S. v New York City Health & Hosps. Corp.    


Labor Law §240   Labor Law §241   Labor Law §200   Scaffold   Create Condition   Notice   Control   Indemnity  

Second Department

Plaintiff who fell from scaffold without railing after reaching for something to stop his fall granted summary judgment on Labor Law §240(1) and §241(6) based on industrial code §23-5.3(e) that requires safety railings on scaffolds but neither plaintiff nor defendants met burden for summary judgment on remaining industrial code provisions. Owner and tenant granted summary judgment on Labor Law §200 on proof they did not create condition, have notice of it, and did not have authority to control demolition work of plaintiff, employee of contractor third-party defendant. Defendants’ motion for summary judgment on contractual indemnity denied without proof demolition contractor was negligent. Leon-Rodriguez v Roman Catholic Church of Sts. Cyril & Methodius    


Premises Liab   Sidewalk   Snow/Ice   Create Condition   Notice   § 7-210   Comparative Fault  

First Department

EMS worker who fell on ice on sidewalk while transporting patient from sidewalk to ambulance granted summary judgment where restaurants created condition by employee hosing down sidewalk on a cold day. Building owner had a nondelegable duty to maintain sidewalk in a safe condition and observed tenants’ employee hosing down sidewalk and management company that did not see tenants’ employee hosing down sidewalk testified it was aware of the practice to do so. Plaintiff failed to show applicability of rescue doctrine to eliminate comparative fault without evidence he was unable to see and avoid slippery condition because of patient’s need to be immediately transported and defendants’ claim plaintiff should have chosen a different route across sidewalk went to comparative fault which is not a ground to deny summary judgment. Benny v Concord Partners 46th St. LLC    


Premises Liab   Construction Liab.   § 7-210   Create Condition   Notice   Trivial   Dangerous Condition   Sole Cause   NYC  

Second Department

Abutting landowner failed to meet burden for summary judgment dismissing claim against it and for summary judgment against NYC and contractor as it had a duty to maintain sidewalk under administrative code §7-210 and evidence left question of whether sidewalk defect existed before NYC contractor worked on sidewalk several weeks before accident, negating claim of sole cause of NYC and contractor. Rivera v City of New York    

Comment: Estate of owner of property that shared driveway where plaintiff tripped on height differential between sidewalk flag and driveway denied summary judgment without showing height differential was trivial and not a dangerous condition. Rivera v City of New York.


Premises Liab   Stairs   Unknown Cause   Building Code   3rd Party Contractor   Espinal  

Second Department

Church granted summary judgment on proof plaintiff could not identify what caused her to fall while descending exterior steps and that it was exempt from building code provisions requiring a center handrail as alleged by plaintiff. Contractor who re-grouted portions of stairs and existing handrails granted summary judgment as its limited contract did not create a duty to install a center handrail and it did not launch an instrumentality of harm under Espinal. Jackson v Bethel A.M.E. Church    


Premises Liab   3rd Party Contractor   Espinal   Premature Motion  

First Department

Maintenance company failed to show it did not entirely displace tenant’s duty to maintain premises under Espinal where it was unclear what work it could perform without authorization. Motion for summary judgment premature where facts necessary to oppose motion were exclusively within possession of defendant and tenant and EBT’s had not been conducted. Thomas v Triboro Maintenance Corp.    


Labor Law §240   Labor Law §241   Scaffold   Ladder   Industrial Code   Safety Devices   Sole Cause   Untimely  

First Department

Plaintiff granted summary judgment on Labor Law §240(1) where unsecured scaffold provided for installation of sheet rock was too short, requiring plaintiff to use A-frame ladder on top of scaffold in a closed position as there wasn’t enough room to open ladder, and ladder moved causing plaintiff to fall when scaffold moved. Plaintiff could not be sole cause where he was provided with inadequate safety device that caused his fall and he was not required to show defect in ladder or scaffold or precisely what caused them to move. Defendant granted summary judgment on Labor Law §241(6) based on industrial code §23-1.21(e)(2) as no stepladder was involved and denied summary judgment on other industrial code provisions.

Plaintiff’s motion was timely where filed within 60-days of Note of Issue as per part rules making defendant’s cross motion timely where it addressed nearly identical issues. Martinez v ST-DIL LLC    


MVA   Pedestrian   Comparative Fault  

First Department

Pedestrian granted summary judgment on her testimony she was crossing street with light after looking both ways when defendant’s vehicle ran over her foot near double yellow lines and defendant admitted he didn’t see pedestrian due to glare before impact.

Video showing pedestrian walking just outside of crosswalk does not defeat summary judgment as plaintiff is not required to show defendant was sole cause or freedom from comparative fault. Simmons v Bergh    


Wrongful Death   Motion to Dismiss   Governmental Function   Special Duty  

Second Department

County police department’s renewed motion to dismiss granted where Complaint alleged police officers told decedent several weeks before father of her child killed her that they “did not see any reason why Mr. Jenkins would hurt [the decedent or her sister] and that there was no reason for them to feel unsafe,” which could not be interpreted to make a promise or intention to protect decedent necessary to establish a special duty for liability involving a governmental function. Coleman v County of Suffolk    


Serious Injury   BP   ROM   Experts  

Second Department

Defendants failed to meet burden for summary judgment on serious injury where they did not eliminate questions of fact on 90/180-day category alleged in BP and their examining doctor found significant limited ROM in lumbar spine and failed to establish lack of causation. Zahoudanis v United Parcel Serv. Gen. Servs. Co.    


MVA   Workers Comp Defense   Speculation  

Second Department

Driver of snowplow that struck plaintiff granted summary judgment on testimony of plaintiff and moving defendant that they were both employed at same dealership at time of accident and plaintiff received worker comp benefits. Claim that driver may not have been working for dealership at time of accident because he worked for other dealerships owned by his father was speculation and failed to raise issue in opposition. DiMarco v Coscia    


Construction Liab.   Premature Motion  

First Department

Construction company granted summary judgment on president’s affidavit and documentary proof showing it did no work on stairs plaintiff fell on and worked only on other stairs. Implying moving defendant’s affidavit was incorrect, failed to meet burden of showing evidence to be attained in discovery was necessary to oppose motion on claim motion was premature. Mironov v Memorial Hosp. for Cancer & Allied Diseases    

IF YOU MUST READ
(1 summaries)
MUST READS NOTEWORTHY

Premises Liab   Sidewalk   Unknown Cause   Speculation  

Second Department

Defendants granted summary judgment on proof plaintiff could not identify cause of decedent’s fall on sidewalk that caused his subsequent death by direct or circumstantial evidence without speculation. The Court does not give the details of the proofs. Theard v G. Fazio Constr. Co., Inc.    

About Matt McMahon

Civil trials and appeals since 1984
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