March 28, 2017 | Vol. 47

MUST READS
(6 summaries)

Lead Poisoning   Presumption   Notice   Expert Aff   Question of Fact  

First

NYCHA denied summary judgment where child tested positive for lead (45ug/dl), DOH tests positive for lead (even though NYCHA tests negative), child was observed putting paint chips in her mouth in her apartment as well as in her aunt’s apartment in the same building, the mother and aunt had made numerous complaints about peeling paint, NYCHA never investigated the complaints, and former superintendent of the building testified that at least 5 parents had results showing that their child tested positive for lead in the years he was superintendent, and that NYCHA would investigate but not report the results to DOH. NYC’s Childhood Lead Poisoning Prevention Act creates a presumption that buildings constructed before 1960 contained lead paint but that does not create a presumption that buildings after 1960 are free from lead paint as argued by the defendant. Lead paint was available until 1978 and building was completed in 1974. Dakota Jade T. v New York City Hous. Auth.


Premises Liab   Recurring Condition   Set Aside Verdict   Survelliance Video  

First

Plaintiff’s motion to set aside defense verdict properly denied where building superintendent testified that recurring conditions testified to by multiple witnesses for plaintiff did not exist. Jury was permitted to credit superintendent over plaintiff’s witnesses. Trial court properly excluded close-up photographs depicting slippery conditions on stairs without testimony that they were taken near the time of the accident and fairly and accurately depicted the conditions at the time of the accident. Surveillance video exchanged shortly before the trial was properly admitted because it was occasioned by the need for a second IME/DME due to a subsequent surgery and plaintiff’s treating doctor had time to review the video before the trial. Defense counsel’s comments during summation regarding the financial relationship between plaintiff’s attorney and treating physician was fair comment. Santana v 3410 Kingsbridge LLC


Set Aside Verdict   Pain/Suffering   Materially Deviates   Speculation  

Second Deptartment

Plaintiff’s verdict of $500,000 and $750,000 for past and future pain-and-suffering set aside unless parties agree to increase the awards to $750,000 and $1,500,000 respectively where plaintiff fractured 3 ribs, 2 cervical transverse processes, and 1 thoracic vertebrae requiring fusion of 3 vertebrae, and revisionary surgery, with continued pain and limitation. Verdict for past and future medical expenses which was less than plaintiff requested was proper given that portions of plaintiff’s treating doctor’s testimony regarding these expenses was speculative. Plaintiff had been previously granted summary judgment on liability by the Appellate Division where the defendant police officer ran over the plaintiff while he was in a lounge chair on the beach. Starkman v City of Long Beach


Estate   Statute of Limitations   Estoppel  

First

Individual doing business under an assumed name obtained a permit for a festival at which the infant plaintiff was injured when an inflatable ride collapsed. The individual died after the accident but before the suit was commenced against the assumed name entity. The Answer denied that the entity was a corporation and defense counsel notified plaintiff’s counsel that the entity was a DBA of the individual who had died before the suit was commenced. Plaintiff successfully obtained limited letters naming the Public Administrator but failed to make any motion to substitute or add the Public Administrator to the action prior to the running of the statute limitations. The plaintiff’s motion to substitute the Public Administrator was denied and the DBA entity’s motion to dismiss granted as it was not a legal entity and any suit against a deceased person is a nullity. Plaintiff could not claim estoppel by deception as the facts had been disclosed by the defendant long before the statute of limitations ran. Vello v Liga Chilean de Futbol


Serious Injury   Causation   Expert Aff  

Court of Appeals

The Court summarily affirmed the dismissal of the plaintiff’s shoulder claim for failing to raise an issue of fact on causation. The plaintiff’s treating physician affirmed that he had reviewed the MRIs and observed the injury during surgery, opining that the injuries were caused by the accident, but did not directly address the findings of degeneration and no acute bone trauma in the reports of the plaintiff’s own radiologists. Kyreese L. Franklin v. Carmen Rosa Gareyua

Comment: While the Court of Appeals has never directly addressed whether every indication of degeneration must be directly rebutted by a plaintiff’s treating physician or the treating physician’s opinion can be an equally plausible alternative cause of the injury, this is the third time that the Court of Appeals has summarily upheld dismissal of claims on causation for failing to directly rebut the findings of pre-existing or degenerative conditions where there were significant dissents in the First Department.


LHWCA   Duty   Open/Obvious  

First

Reversing grant of summary judgment for vessel owner where plaintiff, a surveyor using the vessel to work on a bridge, was injured when he jumped 40″ from a dock to the deck because there was no gangway, the First Department details the duties of a vessel owner. Passengers are owed the ordinary reasonable standard of care including a safe means of ingress/egress.

All LHWCA workers on the ship, not just stevedores, are owed a “turnover duty,” that the ship, equipment, and appliances will be in a reasonably safe condition for persons experienced and mindful of the dangers to reasonably be expected, which includes at a minimum a safe means of access, and a duty to warn of hazards which would not be obvious to an experienced, competent worker. While the lack of a gangway was obvious, it did not eliminate the duty to warn because it violates the minimum duty of safe access. LHWCA workers are also owed a “duty to intervene” if the vessel owner knew or should have known of a risk and the worker’s employer is not providing reasonable protection. A vessel owner that is involved in the LHWCA’s employer’s operations also owes a duty of “active control.” There were questions of fact as to whether the vessel owner violated these duties. Schnapp v Miller

NOTEWORTHY
(22 summaries)

MVA   Set Aside Verdict   Hearsay  

Second Deptartment

Motion to set aside defense verdict where there were conflicting eyewitness accounts including whether the bus struck the pedestrian or the pedestrian walked into the bus denied. Lower court properly excluded a report from the defendant’s disciplinary proceeding regarding the accident for plaintiff’s failure to show that the declarant had authority to “speak” for the defendant in order to meet plaintiff’s burden of showing the speaking-agent exception to the hearsay rule. Wilson v County of Westchester


Late Notice of Claim   Police   Actual Knowledge   Prejudice   Reasonable Excuse  

Second Deptartment

Petition to serve late Notice of Claim granted where a police officer driving a car owned by NYC was involved in an accident, police investigated, and sent the report to the office of the Comptroller establishing that NYC had actual notice of the essential facts within 90 days and was not prejudiced in its defense. In this circumstance, failure to provide a reasonable excuse for the delay does not defeat the petition. Matter of Jaffier v City of New York


Labor Law §240   Falling Object   Safety Devices   Expert Aff  

Second Deptartment

Plaintiff denied summary judgment on Labor Law §240(1) claim where there was conflicting descriptions of the “beam” or “duct” which was being cut when it fell causing plaintiff to move out of the way and fall off the scissor lift. In falling object cases plaintiff must prove that the object was being hoisted or secured and that it fell for failure or inadequacy of an enumerated safety device. Romero v 2200 N. Steel, LLC


Premises Liab   Sidewalk   Snow/Ice   Create Condition   Exacerbation   Storm in Progress  

First

Plaintiff raised a question of fact as to whether commercial tenant created or exacerbated the icy condition on the sidewalk by using a snowblower to clear a path during a storm in progress where the defendant’s manager testified that he did not recall whether they applied salt after clearing the snow. Where there is a storm in progress, plaintiff must show that the defendant either created the dangerous condition or exacerbated it by its snow removal efforts. Baumann v Dawn Liquors, Inc.


MVA   Rear End   Nonnegligent Explanation   NYC  

Second Deptartment

City sanitation worker who was passenger in sanitation truck driven by his coworker granted summary judgment on proof that the car in front of them came to a sudden stop at a yellow light and the sanitation truck skidded on a wet road into the rear of the car. While a sudden stop of a lead car may be a nonnegligent explanation, it will not be when the driver could anticipate a sudden stop under normal driving conditions such as a yellow light and the sanitation driver was aware that the road was wet before coming to the intersection. Tumminello v City of New York

Comment: Plaintiff and defendant were coworkers but the action was not barred by the Worker’s Compensation defense because it does not apply to uniformed officers in NYC including police, fire, correction, and sanitation officers. It is good to keep that in mind when evaluating cases to make sure that a Notice of Claim is timely served on the city when a uniformed officer is injured.


Labor Law §240   Hearsay   Unknown Cause   Circumstantial Evidence   Raised For First Time  

First

Plaintiff granted Partial summary judgment on Labor Law §240(1) claim, even though he could not recall what caused the accident, based on a statement by the defendant’s employee in an OSHA report that the ladder suddenly slipped out from the plaintiff as he was descending, which was an admission, and a workers’ compensation record where a proper foundation was laid as a business record. Defendants could not object to the admissibility of these records for the first time on appeal. Weicht v City of New York


MVA   Emergency Doctrine   Premature Motion  

First

Plaintiffs granted summary judgment where defendants’ tow truck crossed over double yellow line and struck ambulette transporting individual plaintiff head-on. Defendant not entitled to further discovery on emergency doctrine where defendant driver did not contest plaintiff’s claim that driver was speeding, as emergency doctrine does not apply when defendant created the emergency. Ruiz v Reyes


MVA   Comparative Fault  

First

Grant of summary judgment “on the issue of liability” to plaintiff who was a rear seat passenger in one of the defendant’s vehicle should only have been granted to the extent of finding no comparative fault. Issues of liability between the defendants precluded summary judgment for plaintiff on their negligence. Guzman v Desantis


Premises Liab   Stairs   Slip/Trip   Feigned Issue  

First

Plaintiff raised a question of fact in response to defendant’s prima facie entitlement to summary judgment by her daughter’s testimony that the beer cans on the stairs where she fell were there the day before the accident and on the day of the accident after the time that the defendant superintendent testified he had cleaned the stairs. The daughter’s testimony was not feigned testimony to avoid summary judgment as it did not contradict the mother’s testimony which was that she had not left her apartment before the accident. Because there is an issue regarding notice, there is also an issue regarding violation of Multiple Dwelling law §80 (cleanliness). Liranzo v Apartment Co., LLC


Premises Liab   Slip/Trip   Unknown Cause   Speculation  

Second Deptartment

Defendants granted summary judgment based on plaintiff’s inability to identify what caused him to trip and fall while he crossed the street. At his 50-H he testified that his foot hit some sort of stone around the tree on the sidewalk but at his EBT he testified that his foot caught on an uneven portion of the sidewalk 3” away from the tree. The plaintiff’s conflicting statements show that he was unable to identify the cause of his fall and ascribing any causation would be mere speculation. Vojvodic v City of New York


Premises Liab   Building Code   Open/Obvious   Inherently Dangerous   Expert Aff   Speculation  

First

Building owner granted summary judgment on proof that building was built before the building code plaintiff alleged was in effect. Plaintiff’s expert’s opinion that the low doorway causing the plaintiff’s injury was not the original construction and would have violated “any” building code at the time it was altered was conclusory and speculative. Defendant made out prima facie entitlement on common law theory by showing that the condition was open and obvious and not inherently dangerous. Duffy v 274 W. 19, LLC


Premises Liab   Pothole Law   Prior Written Notice   Create Condition   Premature Motion   NYC  

First

NYC entitled to summary judgment where it showed that it neither created the pothole plaintiff claimed to have tripped on nor had prior written notice of it. Plaintiff failed to raise a question of fact and her argument that further discovery might yield information was pure speculation. Stein v City of New York


Premises Liab   Out of Possession   Lease   Duty  

First

The out of possession landowner’s motion for summary judgment denied where the lease provided that it was required to maintain the sidewalk and cellar door which closed on the plaintiff. An out of possession landowner can only be liable where it created or had notice of the condition. The owner failed to show that it did not have constructive notice of the defect. Del Carmen Hernandez v 34 Downing Owners Corp.


False Arrest   Malicious Prosecution   1983 Action   Probable Cause  

First

Summary judgment should have been granted to the district attorney and assistant district attorney where plaintiff failed to overcome the absolute immunity accorded a prosecutor acting in her official capacity. Felony indictment, submitted in plaintiff’s opposition papers, established probable cause and the assistant district attorney was not involved with the case until after the indictment. Plaintiff failed to overcome the presumption of probable cause from the indictment on the malicious prosecution claim. Savane v District Attorney of N.Y. County


MVA   Rear End  

First

Defendant’s motion for summary judgment should have been denied as his testimony that the damage to his vehicle was consistent with a sideswipe instead of a rear end collision by the motorcycle on which the plaintiff was a passenger raised a question of fact making the presumption of liability in a rear end impact inapplicable. Perris v Maguire


MVA   Rear End  

Second Deptartment

Tractor-trailer owner and driver granted summary judgment on proof that truck was stopped in left lane of highway for 5 minutes due to mechanical failure with hazard lights on and reflective hazard triangles placed on the roadway to warn drivers. The plaintiff struck the right rear of the truck with the front driver’s side of his car. Nijhawan v Reid


Premises Liab   Create Condition   Notice   Last Clear Chance   Assumption of Risk   Open/Obvious  

First

Restaurant denied summary judgment where its principal shareholder/manager’s testimony, that he did not receive any prior complaints, did not establish that no one from the restaurant received prior complaints, testimony that he inspected the lawn every day did not conclusively establish the last time the lawn was inspected because he did not testify that he was working at the time of the accident, and there was no testimony that they inspected the lawn after an outside company mowed the lawn. Restaurant provided the frisbee for customers to use but plaintiff did not assume the risk of hole in the lawn because it was not perfectly obvious. Clarkin v In Line Rest. Corp.


Amend BP   Amend Complaint   Reasonable Excuse   Meritorious Action  

First

Lower court providently exercised its discretion in granting plaintiff’s motion to amend the BP and Complaint to include the correct date of the accident as defendant’s defense did not rely upon the date of the accident and plaintiff put forth a reasonable excuse for the delay and a meritorious action. Dockery v UPACA Site 7 Assoc., LP


Serious Injury  

First

Defendant granted summary judgment on serious injury on competent medical proof and plaintiff failed to submit any medical evidence to support her claim. Defendant met burden on 90/180 day claim by plaintiff’s testimony that she was not confined to bed and home for more than 5 weeks. Dziuma v Jet Taxi, Inc.


MVA   Bicycle  

First

The parties’ different versions of how the accident between the defendants’ vehicle and plaintiff’s bicycle prevents summary judgment. Martinez v Clean Air Car Serv. & Parking Branch One, LLC


Renew  

First

Defendants’ motion to renew their opposition to plaintiff’s motion for partial summary judgment, which had been granted by the lower court and affirmed by the Appellate Division, denied as the additional deposition testimony of the plaintiff taken after summary judgment was granted did not contain any new non-cumulative facts that would warrant reversal. Tavarez v Herrasme


Serious Injury   Causation   Expert Aff  

First

Plaintiff failed to raise a question of fact in response to the defendants’ prima facie showing that the injuries to the cervical and lumbar spine were degenerative and that there were no significant limitations in the spine or shoulder. Plaintiff’s treating doctor showed a tear in the shoulder but failed to show significant limitations, and found significant limitations in the cervical spine shortly after the accident but did not show any continuing limitations. The only limitations recorded by the doctor regarding the lumbar spine were 2 years after the accident which is insufficient to raise a question of fact on causation. Proof that the plaintiff did not miss any work was sufficient for summary judgment on the 90/180-day claim. Corporan v Erichsen

IF YOU MUST READ
(1 summaries)

Legal Mal   Amend Complaint   Untimely  

First

Law firm granted summary judgment dismissing client’s counterclaim of legal malpractice in action to recover attorney’s fees where counterclaim was not amended to include cause of action from legal malpractice until years after the original counterclaim and after discovery had been completed and client was clearly in possession of all relevant facts regarding the transaction. Daniel R. Wotman & Assoc., PLLC v Chang

About Matt McMahon

Civil trials and appeals since 1984

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