March 28, 2023 | Vol. 358

(3 summaries)

Set Aside Verdict   Governmental Immunity   Waiver   Raised For First Time  

Court of Appeals
New Jersey Transit Corporation’s appeal arguing its sovereign immunity defense could be raised for the first time on appeal from denial of its post-verdict motion to set aside plaintiff’s verdict or for a new trial on damages without it having been preserved below because the NY courts lack subject matter jurisdiction dismissed, even though the SCOTUS Hyatt III decision upholding interstate sovereign immunity was decided after its post-trial motion was briefed, as the Hyatt III decision recognized that sovereign immunity can be waived, taking the issue out of subject matter jurisdiction which can be raised at any time because it can never be waived. There were two dissenters. Henry v New Jersey Tr. Corp.    

1983 Action   Discovery   NYC  

First Department
In a 1983 action for alleged Monell claim of NYPD policy or practice of allowing officers to falsely swear out criminal charges, falsely testify, and falsify evidence, the lower court improperly precluded plaintiff from seeking records through FOIL requests in favor of discovery as a municipality-litigant has the ‘distinct disadvantage of having to offer its adversary two routes into its records.’ Lower court improvidently denied plaintiff’s requests for complaints and investigations of similar conduct by officers from the same task force for 6-months before his arrest as a fishing expedition and denied his requests for lawsuits and investigations by Internal Affairs and Civilian Complaint Review Board which identified documents with ‘reasonable particularity’ as he could not likely show a widespread policy or practice without such records.

Lower court providently precluded discovery of training materials for handling confidential informants and conducting surveillance covered by the law enforcement privilege which protects law enforcement and informants even after the investigation, limited requests for complaints or disciplinary charges to conduct similar to that alleged in the Complaint instead of all allegations of false arrests and malicious prosecutions and to a reasonable period predating plaintiff’s arrest, and providently limited future requests to a reasonable period prior to plaintiff’s arrest. Badia v City of New York    

Building Security   Duty   Foreseeability  

First Department
Bar granted summary judgment dismissing claim of patron who was viciously assaulted outside the bar by 3-men where the parties had an earlier verbal altercation inside the bar that resolved without incident, they all left the bar, the plaintiff returned briefly, and she was attacked when she stepped out of the bar for a phone call as the bar had no duty to the plaintiff outside the bar, the attack was not foreseeable since the earlier altercation resolved, and none of the bar’s employees participated in or encouraged the attack. The bar had no duty to come to the aid of the plaintiff when she was attacked outside the bar and could not be liable for their employee’s locking her out during the attack. Mitchell v Just Lorraine    

(9 summaries)

Renew   Discovery   Reasonable Excuse   Graves Amendment   Law of the Case  

First Department
Defendants’ motion to renew its opposition to plaintiff’s motion for summary judgment and renew truck leasing company’s motion to dismiss on Graves Amendment denied where they failed to show due diligence in securing the witness’s appearance for an EBT prior to the original motion and law of the case from the First Department’s prior decision, reported in Vol. 342, barred arguments on ownership of the trailer and the Graves Amendment. Bailey v Gabrielli Truck Leasing LLC    

Child Victims Act   Motion to Dismiss   Respondeat Superior   Court of Claims  

Second Department
State’s motion to dismiss Child Victims Act action for failure to plead date of sexual assault at psychiatric center denied as allegation that assault took place in 1993 when plaintiff was 14 years old satisfied the “when” requirement of Court of Claims Act §11(b). Plaintiff’s allegations of how she was sexually abused and how the State was negligent sufficiently met the “nature of the claim” pleading requirement of §11(b). Cause of action for respondeat superior dismissed as sexual assault was not within the scope of the assailant’s work. Wagner v State of New York    

Child Victims Act   Motion to Dismiss   Agent   Negligent Supervision  

First Department
Property deeds and certificates of incorporation were proper documentary evidence on motion to dismiss Child Victims Act case but did not conclusively establish the priest who abused the plaintiff was not an agent of the archdiocese, that the archdiocese did not supervise and control his appointment/employment, or that there was no special relationship between the archdiocese, the priest, and plaintiff. The affidavit of the associate General Counsel for the archdiocese was not documentary evidence and, in any event, was conclusory. Archdiocese’s pre-Answer motion to dismiss denied. J.D. v Archdiocese of N.Y.    

Malpractice   Set Aside Verdict   Directed Verdict   Accepted Practice   Causation   Loss of Chance   Experts   Pain/Suffering   Materially Deviates   Reasonable Excuse  

Second Department
Hospital’s motion to set aside verdict as against weight of evidence and for judgment as a matter of law denied where jury could find hospital departed from accepted care by discharging decedent to a rehab center without accurately diagnosing the condition that brought him to the hospital and reduced decedent’s chance of a better outcome and increased his pain/suffering based on the experts’ testimony which also provided a rational path for the jury’s verdict. Award of $1.3 million for 18-days of pain/suffering did not materially deviate from reasonable compensation.

Lower court improvidently denied defendant’s motion as untimely without considering the merits where defendant showed the short delay was due to excusable law office failure in mis-calendaring the motion scheduling order and there was no prejudice to the plaintiff. Stewart v New York Hosp. Queens    

Labor Law §240   Scaffold   Falling Object   Safety Devices  

First Department
Worker struck when legs and five beam of a sidewalk shed his foreman and coworkers were attempting to move fell granted summary judgment on Labor Law §240(1) under either his version there were no safety devices preventing the legs and beam from falling or his foreman’s version that they fell when one of the coworkers lost his grip on the base as they raised them with braces since a person is not a safety device under §240. Iuculano v City of New York    

Labor Law §240   Falling Object   Safety Devices   Question of Fact  

Second Department
Building owner and tenant failed to meet burden for summary judgment dismissing Labor Law §240(1) claim where they submitted plaintiff’s EBT testimony that a 50-gallon bag of cement mix fell on his knee when a coworker standing on a 5-gallon bucket failed to properly receive the bag being handed to him from a coworker from the floor above as well as plaintiff’s project manager’s affidavit that plaintiff stated he accidentally dropped the bag on his own knee, leaving questions of fact. Jin Kil Kim v Franklin BH, LLC    

Labor Law §240   Falling Object   Gravity Risk   Indemnity  

First Department
Tile worker granted summary judgment on Labor Law §240(1) when an 8’x4′ waterlogged plywood sheet weighing 60-100 pounds fastened to a door frame with 1-screw to block wind and entry from the exterior fell on him due to a strong gust of wind given the height differential, door weight, and force of the wind. Plaintiff’s expert opined that 2×4 boards should have been placed horizontally across the plywood to properly secure the plywood under §240.

Building owners’ motion for summary judgment on their contractual indemnity claim against the flooring contractor who employed plaintiff denied where asserted in an Answer 30-months after the flooring contractors’ cross-claim against the building owners, after EBTs were completed, and the indemnity clause was not triggered where the evidence showed only the GC was responsible for placement of the plywood board. Spero v 3781 Broadway, LLC    

Sidewalk   Prior Written Notice   § 7-210   Create Condition   Big Apple Pothole   NYC  

First Department
NYC granted summary judgment where the infant-plaintiff tripped on a gap at edge of a tree well on proof it did not create or have prior written notice of the condition as the Big Apple pothole map from 2003 had only symbols indicating raised/uneven portions of the sidewalk and the only symbols of defective tree wells were at other areas. Gutierrez v City of New York    

Attorney Fees  

Second Department
Original attorney granted $40,000 portion of fee on $850,000 settlement based on its work performed and effect on the settlement reached by the subsequent firm. Where and outgoing firm does not make an election to receive quantum meruit or a percentage of fee later recovered when discharged, it is presumed it elects to receive a percentage based on its relative work and effect on the results. Llivicura v 101 W. 78th, LLC    

(1 summaries)

Serious Injury   Causation  

Second Department
Defendants met burden for summary judgment on serious injury but plaintiff raised an issue in opposition. As defendants failed to show plaintiff’s injuries were not caused by the accident, the burden on causation never shifted to plaintiff. The Court does not give the details of the proofs. Day v Ahmed    

About Matt McMahon

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