March 3, 2020 | Vol. 200

(7 summaries)

Labor Law §240   Labor Law §200   Ladder   Sole Cause   Recalcitrant Worker   Indemnity  

First Department
Permanently affixed ladder plaintiff required to use to access elevator well was safety device as defined by Labor Law §240(1) and plaintiff’s testimony that ladder vibrated causing him to fall 20′ would have been sufficient for summary judgment for plaintiff had it been an unsecured but only raised issue of fact on whether it provided proper protection under §240 where secured. Plaintiff’s work correcting unguarded elevator cables was repair, not routine maintenance under §240 where it took several weeks, and supervisor testified it been a problem. Defendants failed to meet burden of showing plaintiff was sole cause of accident without evidence that plaintiff knew he was supposed to wear a harness when climbing the ladder and had disregarded specific instructions to do so. Defendants who were not owners or statutory agents granted summary judgment. Owner entitled to contractual indemnity against employer where Labor Law §200 claims against owner dismissed. Contractual indemnity against elevator company denied where building department inspected site after elevator company finished modernization and found it had received no complaints of ladders while elevator company had responsibility for site. Kehoe v 61 Broadway Owner LLC

Med Mal   Strike Answer   Sanctions   Preclusion   Negative Inference   Willful/Contumacious  

Second Department
Plaintiff’s motion to strike general surgeon’s Answer, preclude him from offering evidence, or for negative inference based on failure to answer most questions at deposition based on 5th Amendment denied where plaintiff failed to show refusal to answer was willful/contumacious. Defendant’s counsel’s inappropriately argumentative conduct at times during deposition did not rise to level of frivolous under 22 NYCRR 130-1.1(a). Pinnock v Mercy Med. Ctr

Comment: This defendant was granted summary judgment in separate decision reported in this volume.

Vacate Jud   Vacate Default   Reasonable Excuse  

Second Department
Defendant’s motion to vacate judgment on default denied where failure to keep address with Secretary of State current over long period of time raises inference of deliberate attempt to avoid service of process under CPLR §317 and does not provide a reasonable excuse under CPLR §5015(a)(1). Bookman v 816 Belmont Realty, LLC

Workers Comp Defense   Motion to Dismiss   Alter Ego   Raised For First Time  

First Department
Third-party defendant’s workers comp defense raised for first time in a reply properly considered where court gave third-party plaintiff opportunity for sur reply and summary judgment motion and third-party defendant’s motion to dismiss on workers comp defense granted on proof it was alter ego of plaintiff’s employer who shared a president and sole owner who did all invoices and obtained insurance for third party defendant, shared office staff, office space, insurance policies, and used equipment owned by the employer. Pizarro v Dennis James Boyle, Inc.

MVA   Highway Design   Qualified Immunity   Notice   Causation   Dram Shop   Discovery  

Second Department
County failed to show it made deliberate decision entertaining and passing on same risk alleged by plaintiff, unrecoverable V-shaped median, necessary for qualified immunity for highway design. Plaintiff veered off roadway into median and down embankment where there were prior accidents. Car owner granted summary judgment, even if intoxicated plaintiff had implied consent to drive car, as VTL §388(1) does not provide vicarious liability for driver, as opposed to innocent third party, against owner and Court declined invitation to expand its scope. Car owner’s daughter failed to eliminate all questions that her actions could not be a cause of accident based on conflicting testimony regarding dispute over song on radio that caused plaintiff to become distracted. Businesses that sold alcohol consumed by all vehicle occupants granted summary judgment on Dram Shop statute which does not create cause of action for person injured as a result of own intoxication or a person who purchased alcohol for tortfeasor. Plaintiff failed to show that witness County provided was inadequate or that new witness requested would have additional relevant information. Heins v Vanbourgondien

MVA   Question of Fact   Discovery   HIPAA  

First Department
Plaintiffs’ motion for summary judgment claiming defendant crossed double yellow line denied based on defendants conflicting story claiming plaintiff’s car sped towards his vehicle. Guilty plea to reckless driving under VTL §1212, a misdemeanor, was only some evidence of guilt and plea allocution not dispositive where it added no facts. Court ordered defendant to provide certain medical records after in camera review. Handelsman v Llewellyn

Construction Liab.   Workers Comp Defense  

Second Department
Third-party plaintiffs’ motion to dismiss employer, third-party defendant’s affirmative defense of workers comp exclusivity granted on showing that employer had gap in workers compensation insurance during period of accident and was not entitled to exclusivity clause. Naula v Utokilen, LLC

(28 summaries)

Labor Law §200   Directed Verdict   Open/Obvious  

Second Department
Trial court failed to consider facts in light most favorable to plaintiff considering all reasonable inferences in granting defendant’s motion for directed verdict where plaintiff’s leg fell into uncovered rebar grid during anchor bolt verification and there were questions of whether this was an inherent risk of plaintiff’s job as a surveyor and inferences that could be drawn from a jury’s assessment of witnesses’ credibility requiring new trial. Vitale v Astoria Energy II, LLC

Labor Law §240   Labor Law §241   Labor Law §200   Ladder   1-2 Family Exception   Dangerous Condition   Notice   Control  

Second Department
Painter, subcontractor of company partially owned by homeowners, who agreed to paint house exterior as favor for subcontracting work was injured when he fell from ladder when attempting to climb over rotted balcony railing that collapsed. Homeowners granted summary judgment on Labor Law §240(1) on 1-2 homeowners exception but denied summary judgment on Labor Law §200 and negligence claims where they failed to show they did not have constructive notice of the dangerous condition of railing as plaintiff’s testimony established that it was not a latent defect that could not be discovered on reasonable inspection. Company that subcontracted other work to plaintiff denied summary judgment on Labor Law §§240(1) and 241(6) where questions remained as to whether it was owner, contractor, or statutory agent based on testimony that materials were charged to company who would deduct them as expenses which also required denial of plaintiff’s motion for summary judgment on §240. Company denied summary judgment on Labor Law §200 and negligence claims where issue remained on whether it was acting as contractor with control over means and methods of plaintiff’s work. Alexandridis v Van Gogh Contr. Co.

Legal Mal   Accepted Practice   Causation   Speculation  

First Department
Law firm granted summary judgment where plaintiff raised issue of whether sole eye witness was properly prepared for EBT so that his testimony at EBT and trial describing truck that struck plaintiff would be consistent with his statements to the police but failed to offer anything other than speculation that jury would have found differently. Caso v Miranda Sambursky Slone Sklarin Verveniotis LLP

Med Mal  

Second Department
Emergency room general surgeon granted summary judgment on expert’s opinion that emergency surgery for appendicitis was within accepted practice based on plaintiff’s complaints, CT scan, physical examination, and post-surgical pathology report showing acute appendicitis and general surgeon was entitled to rely on opinion of intraoperative OB/GYN consult that surgery to address pelvic mass suspected to be cancer could be delayed to after appendectomy because plaintiff was not suffering ovarian torsion at the time as shown on CT scan. Plaintiff’s expert failed to raise issue without basis for opinion that emergency appendectomy was not required or that treatment of pelvic mass could not be delayed. Hospital denied summary judgment on claim it was not responsible for attending emergency room physician on proof that plaintiff was not referred to emergency room physician but only to emergency room and hospital doctors denied summary judgment where their expert gave opinion only on vicarious liability and not treatment rendered. General surgeon granted summary judgment on informed consent as it does not apply to claims of failure to perform or delay of procedure and record showed plaintiff consented to appendectomy. Pinnock v Mercy Med. Ctr.

Comment: See separate decision reported in this volume regarding request to strike answer of general surgeon.

Premises Liab   Directed Verdict   Prior Written Notice   Create Condition  

Second Department
County’s motion for directed verdict at close of plaintiff’s liability case should have been granted on park supervisor’s testimony that grass was not cut to level of boardwalk raised 5″above grass where plaintiff was riding his bicycle, rebutting plaintiff’s claim that County created immediate dangerous condition by cutting grass to same height as raised boardwalk. There was no rational path for a jury to conclude that exception to prior written notice statute, creation of dangerous condition, applied and because it was a general verdict it could not be determined if jury decided against County based on this theory or failure to illuminate area, requiring new trial. Creutzberger v County of Suffolk

Med Mal   Accepted Practice   Causation   Expert Aff   Raised For First Time   Speculation  

First Department
Hospital granted summary judgment where plaintiff’s expert raised a theory for the first time in opposition that was not included in pleadings and in any event failed to address opinions and conclusions that presentation on arrival at hospital indicated no fetal distress and that plaintiff was not in labor, and opinion that if plaintiff had been admitted, monitored, and administered medications to accelerate fetal brain and lung growth the fetus would not have died in utero was speculative without showing nexus between alleged malpractice and the harm. Ruiz v Reiss

MVA   Med Mal   Emergency Doctrine   Speculation   Governmental Immunity   Special Duty   Accepted Practice   Expert Aff  

Second Department
Defendants, owner and driver of car that pulled over as plaintiff’s decedent crossed over yellow line traveling in opposite direction, granted summary judgment under emergency doctrine and plaintiff failed to raise a nonspeculative issue in opposition. County entitled to governmental immunity for emergency services where and plaintiff failed to show that County made promises relied upon by decedent for special duty. Plaintiff’s expert raised issue in opposition to hospital’s showing of entitlement to summary judgment on opinion that thoracotomy performed to relieve pericardial tapenade in operating room where decedent had cardiac arrest in transport between emergency room and operating room should have been performed in emergency room under accepted practice. Plaintiff’s expert who specialized in thoracic and cardiovascular surgery had expertise to render opinion even though he had not performed surgery in 25-years which raised only issue of credibility to be decided by jury. Grasso v Nassau County

Labor Law §240   Labor Law §241   Labor Law §200   Sole Cause   Recalcitrant Worker   Control   Notice  

Second Department
Defendants granted summary judgment on Labor Law §§240(1) and 241(6) where plaintiff, elevator mechanic, unilaterally decided to stand on top of access panel in order to close doors below knowing that proper procedure was to stand on machine room floor and close doors above and that employer would not approve of method he chose establishing he was sole proximate cause of accident. Defendants granted summary judgment on Labor Law §200 and negligence on proof they did not control means and methods of plaintiff’s work and had no notice of a dangerous condition. Tukshaitov v Young Men

False Arrest   Malicious Prosecution   Probable Cause   NYC  

First Department
NYC granted summary judgment of false arrest and malicious prosecution claims after plaintiff acquitted at trial where police had probable cause based on eye witness and other collaborating evidence even where eye witness later claimed police threatened to arrest him if he didn’t identify plaintiff because witness never claimed he fabricated initial account and grand jury testimony and there was no evidence that police were trying to frame plaintiff. Cintron v City of New York

MVA   Graves Amendment   Amend Complaint   Discovery  

Second Department
Plaintiff’s motion to amend complaint to include cause of action for “losing the protection” of the Graves amendment providently denied where no such cause of action exists but should have been granted to the extent of allowing plaintiff to include the fact that lease had expired at time of accident and Graves amendment was therefore not applicable. Healey v Ean Holdings, LLC

Comment: In a separate decision plaintiff’s motion to compel a further EBT of defendants’ witness who did not know anything about the leasing agreement denied as defendants offered alternative witness with knowledge of leasing agreement, and defendants required to provide bank records financial records showing payments for lease as they were material and necessary. Healey v Ean Holdings, LLC

Med Mal   Amend Complaint   Statute of Limitations  

Second Department
Plaintiff’s motion to amend Complaint to include individual physician from defendant medical practice granted based on relation back doctrine where cause of action arose out of the same occurrence, treatment of plaintiff’s decedent for ulcerative colitis, proposed defendant was united in interest as an employee of the PC, and it would not be reasonable for proposed defendant to conclude that plaintiff intended to proceed against other defendants without including him where record showed extensive treatment of decedent including several days before decedent’s demise and that failure to include him was a mere mistake. Petruzzi v Purow

Workers Comp Defense   Alter Ego  

First Department
Plaintiff barred by exclusivity of workers Comp. from claims against wholly-owned subsidiary where it had no employees, was exclusively managed by other wholly- owned subsidiary, and had common CEO with parent and other wholly-owned subsidiary; all 3-entities used same administrative, financial and insurance resources, and it procured and paid premiums for all insurance policies for all 3-entities. Rodriguez v Dairyland HP, LLC

Premises Liab   Slip/Trip   Wet Floor   Out of Possession   Control   Notice  

Second Department
Landlord and managing agent denied summary judgment where they failed to show they were out-of-possession owner that had relinquished sufficient control to extinguish duty to maintain premises and that they did not have actual or constructive notice of slippery substance on floor from extermination efforts. Grant v 132 W. 125 Co., LLC

Workers Comp Defense   Indemnity  

First Department
Church granted summary judgment of Labor Law §240(1) claim based on workers comp defense on proof that it’s facility manager supervised, directed, and controlled plaintiff’s work that was solely for the church even though plaintiff was employed by a third party. Church’s motion for summary judgment on third party’s indemnity defense denied where there was question of fact of third party’s negligence. Reyes v Roman Catholic Church of St. Raymond

Asbestos   Question of Fact  

First Department
Defendant failed to meet burden for summary judgment where it did not show plaintiff’s decedent could not have been exposed to its spray-on fireproofing from her husband’s clothes even though plaintiffs’ interrogatories did not mention spray-on fireproofing but her husband’s testimony did even though inconsistently which only created credibility issues for jury. Matter of New York Asbestos Litig.

Med Mal   Accepted Practice   Causation   Speculation   Expert Aff  

First Department
Defendants granted summary judgment on proof that the watch battery plaintiff’s claim was in infant-plaintiff’s nostril when they saw him was not present at time of the examination with an otoscope and nasal speculum. Plaintiff’s expert’s opinion that it was hidden by edema was speculative and symptoms after defendants’ examination could not show it was present during the examination where it could have become lodged in the nose shortly after the examination. S. P. v St. Barnabas Hosp.

Med Mal   Accepted Practice   Causation   Expert Aff   Conclusory  

First Department
Hospital granted summary judgment on expert opinions that they comported with accepted practice and that plaintiff’s sacral ulcer was caused by plaintiff’s multiple comorbidities and not defendants’ care. Plaintiff’s expert failed to raise issue on general conclusions, misstatements of evidence, unsupported assertions, and failure to address pre-existing conditions including fact that ulcer failed to heal after in-patient admission. Myers v Americare Certified Special Servs., Inc.

MVA   Motion to Dismiss   Amend Complaint   Nuisance   Statute of Limitations  

Second Department
Construction site owner’s motion to dismiss granted where amended Complaint asserted cause of action for public nuisance against it 1-year after statute of limitations and relation back doctrine did not apply as original Complaint did not put owner on notice of potential claim and plaintiff raised no opposition to owner’s argument that it owed no duty to plaintiff on negligence claim. Plaintiff’s motion to amend Complaint to include public nuisance cause of action denied as patently devoid of merit where it did not allege elements of a public nuisance. Carlino v Shapiro

Premises Liab   Building Security   Motion to Dismiss   Special Duty   NYC  

First Department
Complaint dismissed for failing to state a cause of action where plaintiffs were attacked at pool owned and operated by NYC as it did not allege a special duty and failed to show facts sufficient to give rise to a special duty. Rivas v City of New York

Motion to Dismiss   Personal Juridiction   Service   Traverse Hearing  

Second Department
Defendant’s affidavit stating he moved from his apartment months after accident and was living at different address at time person of suitable age and discretion was purportedly served at his former address rebutted presumption of process server’s affidavit requiring hearing. Case remanded for traverse hearing. David v Singletary

Med Mal   Motion to Dismiss  

First Department
Medical malpractice action brought in state court against hospital and other defendants involving overlapping periods of time with prior action against hospital that had been properly removed to federal court dismissed based on stipulation in federal court that all actions against hospital would be brought in federal court. It was for federal court to determine if case should be remanded to state court. Darlene W. v Montefiore Med. Ctr.

Med Mal   False Imprisonment   Duty   Accepted Practice   Judgment Rule   Court of Claims  

Second Department
Claim dismissed after trial where claimant failed to show that Office of Mental Health breached a duty owed to claimant in malpractice or negligence on claim it failed to ascertain that claimant had not pled guilty to sodomy causing him to be retained longer. Psychiatrists’ determinations on whether to increase claimant’s privileges were subject to judgment rule and plaintiff failed to show any departure from accepted practice and absent showing of malpractice, commitment decisions were privileged. Claimant failed to show that breach of any general duty caused him to be retained longer. Davison v State of New York

Default Judgment   Motion to Dismiss   Personal Juridiction   Service  

First Department
Pro se plaintiff’s motion for default judgment denied and defendant’s request for sua sponte dismissal for lack of personal jurisdiction granted where plaintiff admitted he only served Summons and Complaint by certified mail. Miller v 21st Century Fox Am., Inc.

Serious Injury   ROM   Preexisting   Degenerative   Expert Aff  

First Department
Defendant granted summary judgment on medical proof that plaintiff’s shoulder and spine injuries were not serious injuries and that MRIs showed only mild degenerative condition with only initial complaint of shoulder injury after “minor” accident and no treatment recommendation. Plaintiff’s physician failed to raise issue without evidence of permanent limitations of spine or shoulder, failed to adequately explain why plaintiff’s injuries were not from 2-prior MVAs or address degeneration on MRIs. Finding of limited ROM on one visit insufficient to raise issue where he did not explain conflicting findings of full ROM. Maraj v Fletcher

Premises Liab   Slip/Trip   Sidewalk   § 7-210   Homeowner Exception  

Second Department
Homeowners granted summary judgment where plaintiff tripped on sidewalk defect on proof that they were entitled to 1-3 family exception to administrative code §7-210. Rodriguez v City of New York

MVA   Turning Vehicle   Comparative Fault  

Second Department
Plaintiff granted summary judgment on proof that defendant’s vehicle made left-hand turn from right lane in violation of VTL and defendants failed to raise issue in opposition. Plaintiffs are no longer required to show freedom from comparative fault for summary judgment. Simon v Rent-A-Center E., Inc.

Emotional Harm   Outrageous Conduct  

First Department
Removal of plaintiff from decedent’s room after he passed was insufficient to show extreme and outrageous conduct necessary for claim of negligent infliction of emotional harm. Xenias v Roosevelt Hosp.

MVA   Bicycle   Causation  

Second Department
Defendant failed to show that his action of pulling out of parking lot and stopping just before plaintiff who was riding her bicycle on the sidewalk ran into his car was not a cause of the accident but merely furnished the condition or occasion for the accident. Heaney v Kahn

(1 summaries)

MVA   Rear End   Nonnegligent Explanation  

Second Department
Plaintiff’s motion for summary judgment in rear end collision denied where defendants raised question of fact on nonnegligent explanation. The court does not give the details of the proofs. Samouhi v Retamales

About Matt McMahon

Civil trials and appeals since 1984
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