| MUST READS (4 summaries) | |||
| NOTEWORTHY | IF YOU MUST READ | ||
 Addressing allegations that records not in movant’s possession exist to show actual knowledge of the essential elements of the claim for leave to file a late Notice of Claim, the Court explained that allegations cannot show actual knowledge and the proper procedure would be to concomitantly file with the petition a CPLR §409(a) notice to produce the records.An allegation that a city employee participated in an intentional tort does not automatically show the city had actual knowledge of the essential elements of the claim as an involved employee may have the incentive to hide the participation. Where the pleadings in Matter of Orozco v City of New York were verified by counsel without personal knowledge, there was no evidence for the court to make a fact-specific determination of actual knowledge by the city’s employees’ participation. Evidence of grievances submitted by the claimant in Jaime v City of New York were insufficient to show NYC received actual knowledge of the essential elements of the claim where they did not pertain to his attack. There were 2-dissenters in the Jaime v City of New York case. Matter of Jaime v City of New York ✉ Comment: The Court reversed the grant of leave to file late Notices of Claims in Matter of Orozco v City of New York, reported in Vol. 292, and Matter of Jaime v City of New York, reported in Vol. 314. |
| The Court of Appeals definitely settled the question of whether a Jud. L. §487 action for attorney deceit must be brought in the underlying action or can be brought in a separate plenary action, holding the medical malpractice client could bring a separate §487 against his attorney for claims the attorney misrepresented to the client and judges who approved attorney fees using the malpractice sliding scale separately for each of the 4-malpractice defendants, resulting in a higher attorney fee than if calculated on the total settlement. The Court, however, dismissed the action finding no deceit where the attorney fully informed the judges and the client of the correct sliding scale and how it was being applied. If incorrect to apply the scale separately to each defendant, it was at most an error and not deceit. Notably, the Court expressly declined to opine on whether applying the scale to each doctor separately was improper. Urias v Daniel P. Buttafuoco & Assoc., PLLC ✉ Comment: Although the Court did not adopt or reject applying the scale separately for each defendant, that alternative will likely appeal to plaintiff’s attorneys who may find judges who feel it is a fairer way to assess fees in malpractice cases which require considerably more work and risk than personal injury cases and, if widely adopted, ultimately lead to rethinking the sliding scale if plaintiffs opt not to release malpractice defendants with a negligible degree of liability. |
| In a non-tort action, the Court of Appeals clarified 4/3 that a trial court has discretion to grant an application to amend a Complaint after it was dismissed by the appellate division, instead of requiring the plaintiff to file a new action under CPLR §205-a, as long as the Complaint was not expressly dismissed with prejudice, the amended Complaint involved the same actions/transactions as the original Complaint which was timely filed, and the motion to amend was brought within the 6-month period of §205-a. The motion was brought within the 6-month §205-a period as extended by the Covid tolls. Favourite Ltd. v Cico ✉ |
 Carrier’s motion to dismiss insured’s bankruptcy trustee’s claims of bad faith refusal to settle within its policy limits, after plaintiff in underlying case was granted summary judgment, and breach of covenant of good faith and fair dealing denied where medical reports were not documentary proof and carrier’s evidence failed to “utterly refute the plaintiff’s factual allegations.” Punitive damage cause of action dismissed as it is an element of damage, not a separate cause of action, and plaintiff adequately pled it as a damage.Motion to dismiss by law firm and attorney assigned to defend the insured denied where Complaint sufficiently stated a cause of action for legal malpractice. Pergament v Government Empls. Ins. Co. (“GEICO”) ✉ Comment: Lower court should have denied plaintiff’s cross motion to compel defendants to comply with 2-items on its discovery demands as overbroad and unduly burdensome instead of “pruning them.” Pergament v Government Empls. Ins. Co. (“GEICO”). |
| NOTEWORTHY (16 summaries) | |||
| MUST READS | IF YOU MUST READ | ||
| Building owner granted summary judgment dismissing plaintiff’s claim for trip and fall on cement ramp as barred by the statute of limitations where owner was added to the Complaint more than 3-years after the accident and the relation back doctrine did not apply as owner was not united in interest with the original defendant that owned the adjacent building. Shared resources, common owner, managing member, and insurer are insufficient to establish separate entities are united in interest, especially where they have different defenses. Patrick v Comprehensive Med. Supply, LLC ✉ |
 Doctoral student who administered neuropsychological testing on the infant-plaintiff as defendant’s psychology expert’s psychometrist was not an expert protected by the CPLR §3101(d)(1)(iii) requirement of special circumstances to take her EBT but defendants’ motion to quash granted on the condition it remove the doctoral student’s designation as a trial witness. M.A. v Spring ✉ |
| Failure to include a word count certification on a motion is a technical defect that does not require denial of the motion. Courts are not obligated to require a separate statement of facts and, even if they do, they can overlook failure to include it where there is no prejudice, especially where the attorney’s affirmation is the “functional equivalent.” Abutting landowners granted summary judgment on proof the village law did not impose tort liability on them and they did not create the defective sidewalk condition or cause it by special use. Taveras v Incorporated Vil. of Freeport ✉ |
| Owner and GC granted summary judgment dismissing Labor Law §240(1) claim on proof plaintiff was injured by grinder that kicked back, not an elevation risk, where he did not fall from the ladder he was working on. Defendants denied summary judgment on Labor Law §241(6) based on industrial code §23-1.5(c)(3)(safety equipment) which set sufficiently specific safety standards, the grinder lacked a required guard, and plaintiff testified he had complained to his supervisor that the grinder kicked and lacked a guard. Desprez v United Prime Broadway, LLC ✉ |
| Worker who fell 16’ through uncovered opening in attic while spraying insulation during construction of home granted summary judgment on Labor Law §240(1) as he was exposed to an elevated risk without appropriate safety devices and his limited visibility due to his protective mask was at most comparative fault, not a defense under §240. Worker also granted summary judgment on Labor Law §241(6) for violation of industrial code §23-1.7(b)(1)(i)(hazardous openings) and comparative fault does not preclude summary judgment. Fuentes v 257 Toppings Path, LLC ✉ Comment: Plaintiffs’ motion to reargue defendants’ motion to dismiss for “fraud on the court” based on his testimony he never hurt his neck or back before the accident granted and the motion to dismiss denied where discovery of the prior treatment provided by plaintiffs negated defendants’ ability to show clear and convincing evidence that his testimony “was knowingly designed to hinder the… fair adjudication of the case and the defendants’… defense.” Fuentes v 257 Toppings Path, LLC. |
| Worker who fell from stacked empty compound buckets he was standing on to tape apartment walls during renovation granted summary judgment against owner and GC on Labor Law §240(1) where worker’s testimony he twice asked foreman for a ladder and foreman’s instruction to continue work standing on the buckets as he went to get a ladder, which he never did, was not contradicted by foreman’s claim he couldn’t remember that conversation. Testimony that ladders were available several floors away and workers were instructed at weekly safety meeting to use them did not establish plaintiff was the sole cause of the accident. Labor Law §§ 241(6), 200, and negligence claims dismissed where plaintiff did not argue them. Linares v Massachussetts Mut. Life Ins. Co. ✉ |
| Contractor granted summary judgment dismissing plaintiff’s claim for trip and fall in roadway pothole on documentary evidence and testimony that it did work solely on sidewalk which Con Ed inspected and approved. Plaintiff failed to raise an issue where claim contractors sometimes do extra work on verbal orders was mere speculation without proof of a verbal order and contractor testified a verbal order would have been noted on the order. Proximity of the pothole to the sidewalk work was insufficient to raise an issue. McHugh v Peduto Constr. Corp. ✉ |
| Landlord failed to meet burden for summary judgment where photographs of defect on top of stairs tenant tripped on left questions of whether the defect was open/obvious. Plaintiff seeing the defect on prior occasions did not change the result where she did not check it every time or see that it became worse after the last time she saw it as ‘[t]he nature or location of some hazards, while they are technically visible, make them likely to be overlooked.’ Photos also left question of whether the condition was not inherently dangerous despite landlord’s expert’s opinion. Super’s testimony he repaired the step with an epoxy patch years earlier left questions on actual and constructive notice. Johnson v 1451 Assoc., L.P. ✉ |
| Mall granted summary judgment dismissing plaintiff’s claim for slip and fall on ice where plaintiff’s testimony, meteorological expert report, and climatological records showed it was drizzling rain in subfreezing temperature at time of plaintiff’s fall, establishing storm in progress defense. Plaintiff’s expert’s speculative opinion that ice may have been from melting/refreezing of snow piles failed to raise an issue in opposition. Snow removal contractor granted summary judgment on proof plaintiff was not a party to its contract and plaintiff did not plead facts sufficient to raise issues on any Espinal exception. Cerar v Jefferson Val. Mall L.P. ✉ |
| Defendant granted summary judgment on his testimony he was driving the speed limit when plaintiff stepped into the road beyond the intersection from between parked cars and he had only seconds to try to avoid hitting the plaintiff. The lower court’s estimation that defendant had 2-3 seconds to react and reacted reasonably was supported by the testimony. Plaintiff’s affidavit in opposition raised only feigned issues where it contradicted his testimony that he had no recollection of the accident. Dushaj v Martinez ✉ |
| Pedestrian granted summary judgment on his affidavit that he looked both ways before crossing in crosswalk with traffic light in his favor and was struck by defendants’ vehicle making a left-hand turn and defendants did not submit their own affidavits. Argument that video of incident submitted in reply should not be considered did not raise an issue where defendants agreed to have court consider the video and argument they were not given an opportunity to submit a sur reply raised for the first time on appeal rejected. Motion was not premature without an evidentiary basis that discovery might lead to relevant information or essential facts solely within plaintiff’s knowledge to oppose the motion. Batista v Alvarez ✉ |
| Defendants granted summary judgment on parties’ testimony establishing plaintiff drove out of parking lot to make a left hand turn and defendants’ vehicle, going 35 mph, had only seconds to react before striking the driver’s side door, establishing plaintiff-driver violated VTL §1143 by failing to yield the right of way. Conflicting testimony of whether the parking lot plaintiff entered from was controlled by a traffic light was irrelevant. Soto v Colletta ✉ |
| Pedestrian struck by defendants’ vehicle while walking on shoulder granted summary judgment on liability on parties’ depositions establishing defendant-driver failed to see what was there to be seen but denied dismissal of comparative fault defense on conflicting accounts of whether plaintiff was walking on shoulder or traveling lane. Frankel v Jaroslawicz ✉ |
| Defendants granted summary judgment on testimony of defendant-driver and police officer that plaintiff’s vehicle rear ended defendants’ vehicle as it was changing lanes as directed by the police officer. Plaintiff’s claim defendant sideswiped his vehicle while making an unsafe lane change, with photos showing some scratches to his side panel, failed to raise a nonnegligent explanation as defendant was following lawful police directions (VTL §1102) and the most severe damage was to the front of plaintiff’s vehicle. Taveras v K&D Equip. Leasing Corp. ✉ |
| Plaintiff granted summary judgment on liability and dismissal of comparative fault defense on his affidavit establishing defendants’ vehicle struck plaintiff’s stopped vehicle. Defendants’ claim plaintiff stopped short of the white stop line for a yellow light did not raise a nonnegligent explanation or an issue on defendant’s sole cause of the accident. Yawagyentsang v Safeway Constr. Enters., LLC ✉ |
| Defendants and plaintiff denied summary judgment where defendants’ vehicle rear ended vehicle with plaintiff passenger on conflicting accounts of whether plaintiff was in the lead vehicle and whether the vehicle was stopped for 30-seconds before impact or stopped short in the middle of the block for no reason. Uncertified police report submitted by defendants was inadmissible. Laureano v EAN Holdings, LLC ✉ |
| IF YOU MUST READ (0 summaries) | |||
| MUST READS | NOTEWORTHY | ||