March 24, 2020 | Vol. 203

(5 summaries)

Products Liab   Design Defect   Warnings   Expert Aff  

First Department
Motion for summary judgment by manufacturer and retailer denied as mere compliance with industry standards is only some evidence design was not defective and not conclusive proof. Plaintiff’s expert raised issue with opinion based on testing of subject and exemplar ladders that feet were prone to slip out because of tendency for them to wear down, and that defective design was cause of accident. Plaintiff withdrew strict and negligent manufacturing design defect claims. Alicea v Gorilla Ladder Co.

MVA   Vicarious Liab   Respondeat Superior  

Second Department
Mechanic driver, sole owner of garage corporation, driving Lotus entrusted to them for sale on consignment to check on another customer’s car was involved in accident while returning home to walk his dog failed to meet burden for summary judgment where “owner” under VTL §388(1) includes a bailee with exclusive possession for more than 30-days (VTL §128) and question remained on respondeat superior as to whether employment created the need for the trip. Kelly v Starr

Set Aside Verdict   Admissibility  

First Department
Judgment on verdict awarding $75,000/$0 past/future pain/suffering set aside where trial court erred in allowing defendant to use plaintiffs’ EBTs that were never served on them under CPLR §3116(a) and given defendants’ extensive use of them it was not harmless error. Trial court also erred in allowing defendants to argue accident was caused by plaintiff’s use of Valium during medical procedure earlier in day without medical proof as to dose, how long it would last, and what its effects it would have had on his functioning. Greenman v 2451 Broadway Mkt., Inc.

MVA   Duty   Causation   Intervening Cause  

Second Department
School district’s motion for summary judgment denied where plaintiff testified that school bus driver waved him on to make left hand turn after bus driver looked in left rear view mirror, plaintiff made turn at 5 mph and was struck by car traveling in lane next to bus going 55 mph. A driver who voluntarily signals to another driver that it’s safe to proceed assumes a duty to do so with due care. School district failed to show that other driver’s conduct was an intervening cause where other driver testified he was driving at 25 mph. Pittman v Ball

Default Judgment   Traverse Hearing   Personal Juridiction   Service  

Second Department
Order denying plaintiff’s motion for default and granting defendant 30-days to submit Answer but stating that defendant could not request traverse hearing or raise jurisdictional defenses reversed where security guard at defendant’s building affirmed he was not authorized to accept packages or deliveries, he did not prevent process server from going to defendant’s apartment, and did not inform defendant about attempted service rebutting process server’s affidavit of service by suitable age and discretion requiring a traverse hearing. Edwards-Blackburn v City of New York

(8 summaries)

MVA   VTL §1104  

Second Department
In denying plaintiff’s motion for summary judgment, the Second Department found that officer’s making exaggerated U-turn and accelerating in order to stop motorist with an expired inspection sticker raised an issue of fact on whether conduct was an emergency under VTL §1104 for pursuing someone in violation of a law. Anderson v Suffolk County Police Dept.

MVA   Police   VTL §1104   Spoliation   Negative Inference   NYC  

First Department
Plaintiff’s motion for spoliation sanctions granted to extent of a negative inference charge where NYC was on notice from public police report attached to plaintiff’s Notice of Claim that an emergency operation defense would be made when NYC destroyed pre-accident audio communications between the dispatcher and the police officers. Sanchez v City of New York

Discovery   IME/DME   Privilege  

Second Department
Plaintiff’s motion to review JHO’s denial of her demand for IME/DME doctor’s notes and records under CPLR 3104(d) and to compel production of those records denied as privileged material prepared for litigation and plaintiff failed to show “a substantial need for the material or that she was unable, without undue hardship, to obtain the substantial equivalent of the material by other means.” Katz v Camp Bnoseinu

Med Mal   Accepted Practice   Causation   Expert Aff  

Second Department
NYCHH and doctor who performed prostatectomy at NYCHH hospital made out prima facie entitlement to summary judgment on experts’ opinions that injury was caused by subsequent treatment at other defendant’s facility and by other defendant doctors but plaintiff’s experts raised issue on opinions that recto-vesical fistula occurred during the prostatectomy and not from subsequent treatment. Summary judgment inappropriate where there are conflicting expert opinions. Castillo v Surasi

Med Mal   Accepted Practice   Causation   Expert Aff  

First Department
Plaintiff’s expert raised issue of fact in opposition to defendant’s showing of entitlement to summary judgment by opinion that urinary incontinence was a known risk of vaginal hysterectomy, which plaintiff claimed was an unnecessary procedure, incontinence began immediately after surgery resulting from fibrosis and weakening of bladder and urethra, and interstitial cystitis defendants’ expert opined was cause of the incontinence was a separate condition not related to incontinence. Rodriguez v Nikkhah

Premises Liab   Slip/Trip   Stairs   Wet Floor   Create Condition   Notice   Recurring Condition   Unknown Cause  

Second Department
Defendant failed to eliminate all questions of fact where plaintiff testified he slipped on stairs leading to roof, saw his footprints in wet portions stairs he slipped on after he fell, knew that water came from leaking roof above area, and he had previously complained to defendants verbally and in writing of the recurring condition and that defendant failed to address it. Constructive notice can be inferred from defendant’s actual knowledge of a recurring dangerous condition that it does not address. Plaintiff’s testimony established he knew the cause of his fall. Rivera v Waterview Towers, Inc.

MVA   Rear End   Pileup   Nonnegligent Explanation  

Second Department
Middle car owner and driver granted summary judgment on proof their vehicle was stopped when hit in the rear by the third car in a 3-car pileup propelling it into plaintiff’s lead car, establishing a nonnegligent explanation for the rear end collision. Bardizbanian v Bhuiyan

Premises Liab   Design Defect   Create Condition   Notice   Dangerous Condition   Expert Aff   Raised For First Time   NYC  

Second Department
NYC granted summary judgment where infant plaintiff fell from playground apparatus on proof apparatus and ground underneath it was regularly inspected and properly maintained and that they had no actual or constructive notice of a dangerous condition. Plaintiff’s claim of design defect was improperly raised for the first time in opposition and expert’s opinion did not warrant denial of NYC’s motion. Hadidi v City of New York

(2 summaries)

MVA   Rear End   Question of Fact  

Second Department
Plaintiff made out entitlement to summary judgment on his affidavit and police report showing defendants’ car struck plaintiff’s car in rear, but defendants raised issue of fact as to how accident occurred and whether they were negligent. The court does not give the details of the proofs. Modena v M&S Mech. Servs., Inc.

Vacate Arb   SUM  

First Department
Injured party’s motion to modify $5,000 arbitration award to eliminate offset of $25,000 paid by offending car’s carrier denied and cross-motion to confirm award granted where offset of payment from offending car’s carrier put injured party in same position as if offending party had the higher insurance. Matter of Merchant v State Farm Ins. Company-SUM

About Matt McMahon

Civil trials and appeals since 1984
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