Labor Law §241 Labor Law §240 Labor Law §200 Ladder Industrial Code Safety Devices Foreseeability Control Law of the Case Indemnity
GC denied summary judgment of Labor Law §240(1) claim where worker fell from malfunctioning fire escape drop ladder while attempting to access AC unit as a permanently fixed ladder can be a safety device under §240 where there is a foreseeable elevation-related risk similar to using an extension ladder, but granted summary judgment on Labor Law §241(6) based on industrial code §23-1.7(d) as the ladder was not “a floor, passageway, walkway, scaffold, platform or other elevated working surface.”
Subcontractor denied summary judgment where it’s authority to hire contractors and for site safety left questions of whether it was an agent of the owner and prior lower court’s decision was not law of the case as a lower court decision does not bind the Appellate Division which was also not bound by its own prior decision as the question of agent status was not addressed in the prior appeal. This defendant failed to meet burden for summary judgment on Labor Law §200 where both means and methods of work and dangerous condition were alleged and defendant provided only terse statement that it did not control work and failed to address creation and notice of dangerous condition.
Various indemnity in breach of contract for procuring insurance claims addressed. Goya v Longwood Hous. Dev. Fund Co., Inc. ✉
Comment: The First Department’s earlier decision was reported in Vol. 136.
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Assault Malpractice Informed Consent Respondeat Superior Violent Propensity Notice Accepted Practice Experts
Treating physician and practice granted summary judgment of sexual assault claim based of separate codefendant physician’s alleged sexual assault of plaintiff where there was no proof moving defendants had notice of assaulting defendant’s propensity for sexual assault and an employer is generally not responsible for sexual assaults committed by employees. Malpractice and informed consent claims dismissed where plaintiff submitted no expert opinion opposing defendants’ expert’s opinions of no departure from accepted practice and informed consent was not separately pleaded by plaintiff. Rizzo v Estate of Polifrone ✉
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Pothole Law Notice of Claim Amend Complaint Prior Written Notice Create Condition Raised For First Time NYC
NYC granted summary judgment where plaintiff tripped on defective manhole cover as it did not have prior written notice of a defective manhole cover and plaintiff’s claim that she fell from an uneven/cracked sidewalk, raised for the first time in opposition, properly rejected where not included in Notice of Claim, Complaint, BP, or mentioned during 50H hearing and plaintiff never attempted to amend the Complaint. There was no proof NYC created the condition. Correa v Mana Constr. Group Ltd. ✉
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Malpractice Accepted Practice Causation Experts
Radiologist denied summary judgment where his expert failed to explain how interpretation of sonogram showing “gallbladder packed with stones” was not a departure from accepted practice when plaintiff’s gallbladder had been removed years before. Internist met burden by expert’s opinion that it was not a departure to rely on examination and plaintiff’s self-reported history, but plaintiff’s expert raised issue by opinion it was departure not to review facility’s own medical records that showed gallbladder was previously removed. Surgeon’s submissions, including expert opinion that accepted practice did not require surgeon to obtain medical records outside practice before performing gallbladder surgery, failed to meet burden for summary judgment where facility’s records contained history of prior cholecystectomy with scar. Ruiz v Opsha ✉
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Malpractice Causation Collateral Estoppel Experts
Defendants denied summary judgment of claim for extraordinary expenses of raising a disabled child where plaintiffs were deprived of knowledge of infant’s in utero condition within time to legally terminate pregnancy where conflicting expert opinions left issues of fact on whether those conditions caused extraordinary expenses not covered by collateral sources. Vasiu v Berg ✉
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Amend BP Untimely Reasonable Excuse Notice Prejudice
Plaintiff’s motion to amend BP providently denied where plaintiff made no mention of head or brain injury in original BP or 2-supplemental BPs, failed to give reasonable explanation for not moving to amend BP until 6-years after EBT, and plaintiff’s EBT testimony of headaches and forgetfulness was not notice brain injury with cognitive impairments would be asserted. Claim lacked merit without objective contemporaneous evidence of injury. Delay prejudiced defendants’ ability to conduct meaningful physical examination. Cruz v Sharkey ✉
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Assault Battery False Arrest 1983 Action Motion to Dismiss Police Feigned Issue NYC
1983 action by emotionally disturbed person shot and arrested by police after refusing to drop knife and advancing towards them, who had 5-year history of schizophrenia and was found not responsible of criminal charges due to mental disease or defect, dismissed as plaintiff failed to show any custom or policy allegedly violated. By testimony of police officers and plaintiff, defendants showed as a matter of law that officers’ actions were objectively reasonable requiring dismissal of assault, battery, and excessive force claims . Plaintiff’s new version of occurrence that directly contradicted her prior testimony that she had no recollection of the events, raising only feigned issues. Probable cause for arrest required dismissal of false arrest/imprisonment claims. NYPD not a proper party as it is a department of NYC and cannot be sued separately. Brown v City of New York ✉
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Premises Liab Create Condition Notice
Tenant granted summary judgment against NYCHA on proof defendant’s carpenter who removed old cabinet stated he could not install new cabinet without wall being improved, plaintiff testified she immediately asked second carpenter who installed cabinet to inspect it because of noises and was assured it was fine, but cabinet fell and hit plaintiff 1-year later establishing accident was caused by negligent installation. NYCHA offered no affidavit from second carpenter or other evidence showing wall was repaired before installation. Medina v New York City Hous. Auth. ✉
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Labor Law §240 Gravity Risk
Defendants granted summary judgment of Labor Law §240(1) claim where construction worker injured knee when he and coworkers lost grip on steel truss they were carrying on level ground as injury was not result of elevation risk protected by §240. Christie v Live Nation Concerts, Inc. ✉
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Labor Law §240 Falling Object Unsigned Transcript
Iron worker granted summary judgment under Labor Law §240(1) on his testimony that coworker was working with rebar 30′ above him when a piece fell and struck him, regardless of why it fell, as it was material required to be secured. Admissibility of coworker’s unsigned EBT moot where plaintiff’s testimony alone met burden for summary judgment. Plaintiffs Labor Law §241(6) academic. Pados v City of New York ✉
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Labor Law §240 Falling Object
Plaintiff’s motion for summary judgment on Labor Law §240(1) denied where he failed to show electrical panel that fell on him while removing it required securing for his work. Andres v North 10 Project, LLC ✉
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Serious Injury ROM Causation Preexisting Experts
One plaintiff raised issue on serious injury by orthopedic surgeon’s affirmed report finding reduced ROM and positive findings in plaintiff’s shoulder. “Since injuries may worsen over time, evidence of contemporaneous range of motion limitations is not a prerequisite to plaintiff’s claim.” Defendants failed to meet burden or question whether shoulder injury that required surgery was from accident never shifting burden on causation.
Other plaintiff raised issue on serious injury for cervical injury by examining doctor’s opinion injury was caused by accident, MRI taken shortly after accident, fact she had cervical spine surgery within 3-months of accident, and finding of limited ROM 3-years after accident. Since defendants’ claim of preexisting cervical injury was not based on plaintiff’s own medical records, plaintiff not required to address claim. Defendants’ radiologist’s opinion of preexisting degeneration on MRI of lumbar spine, and plaintiff’s testimony of having a preexisting lumbar condition with MRI shortly before accident, met burden for summary judgment on lumbar injury where her expert failed to address preexisting lumbar condition. Diaz v Vivar-Martinez ✉
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Negligent Supervision Assumption of Risk Spoliation Speculation
Defendants granted summary judgment where 13-year-old experienced baseball player assumed risk of runner sliding into him which precluded any negligent supervision claim. Plaintiff’s argument that sliding player’s metal cleats increased assumed risks rejected where infant-plaintiff and father were aware player was wearing metal cleats that they were allowed by league. Plaintiff’s argument of spoliation for destroying roster, required to be kept by league, so they could discover identity of sliding player who might have been older than infant plaintiff rejected as unpreserved and speculative. Torres v Loisaida, Inc. ✉
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Malpractice Premises Liab Unknown Cause Causation CPLR § 3126 Spoliation
Law firm granted summary judgment of legal malpractice claim on plaintiff’s EBT testimony in underlying case showing she could not identify cause of her fall down steps in restaurant that was basis of summary judgment in underlying action. Plaintiff’s motion for spoliation sanctions denied as law firm was never in possession of restaurant or lighting and independent claim for “negligent spoliation” dismissed as there is no such tort. Walker v Shaevitz & Shaevitz ✉
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Labor Law §240 Gravity Risk Safety Devices
Worker who rested one end of 200lb wood form on 3′-4′ raised pipe that fell onto his foot when coworker lifted other end denied summary judgment on Labor Law §240(1) as questions of fact remained on whether activity was elevated-related risk that required securing and whether there was a §240 safety device adequate to protect the worker. Palermo v 7 W. 21 LLC ✉
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Premises Liab Sidewalk Trivial Create Condition Notice Last Inspection Causation
Shopping center owner denied summary judgment despite showing it had no notice of rolled up carpet outside store that plaintiff initially tripped on where it failed to show lack of notice of raised sidewalk flag with 1″ height differential that plaintiff’s other foot got caught in causing him to fall where it offered only vague testimony of occasional visits instead of last time sidewalk was inspected and failed to show defect was trivial. Lack of notice of carpet was not grounds for summary judgment as there can be multiple causes of an accident. Abraham v Dutch Broadway Assoc. L.L.C. ✉
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Premises Liab Open/Obvious Inherently Dangerous
Defendants granted summary judgment where chain 4″-5″ inches above ground, hung between 2-posts, was open/obvious and not inherently dangerous on a sunny day. Sneed v Fulton Park Four Assoc., L.P. ✉
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Premises Liab Snow/Ice Notice Last Inspection Experts
Hospital failed to meet burden of showing no notice of dirty ice on pedestrian ramp leading to emergency room where it provided only general cleaning and snow removal procedures, not condition of area last time it was cleaned and inspected before accident, and plaintiff’s experts raised issues of presence of dirty ice by opinions that some areas under overhang were exposed to the elements, it snowed the day before the accident, 5″of snow remained on the ground, and 30-35 mph winds could blow snow into the area. Smith v Montefiore Med. Ctr. ✉
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Premises Liab Strike Answer Stairs Survelliance Video Spoliation Untimely Note of Issue Speculation
Defendants granted summary judgment where video showed plaintiff did not fall on stairs and plaintiff’s cross-motion to strike defendants’ Answer for spoliation by editing video denied as plaintiff never requested and declined offer of raw video footage and motion was made 3-years after receipt of video and 9-months after Note of Issue, and claim evidence was lost in edit was speculation. James v Kensington Assoc., LLC ✉
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Strike Answer Discovery Willful/Contumacious Renew
Lower court providently denied motion to strike 1-defendant’s Answer were plaintiff failed to show noncompliance with single discovery order was willful/contumacious or in bad faith. Renewal of defendant’s cross-motion for protective order providently granted. Rodney v City of New York ✉
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MVA Bus Pedestrian Emergency Doctrine Foreseeability
NYCTA and bus driver failed to meet burden for summary judgment on claim driver was faced with emergency situation when he struck plaintiff-pedestrian who stepped past a double parked vehicle in the opposite lane of traffic into unmarked crosswalk. The question of whether defendant should have anticipated plaintiff in unmarked crosswalk or if it was a sudden and unexpected event was a question for a jury. Allen v New York City Tr. Auth. ✉
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Assault Discovery
Plaintiffs’ motion to compel response to specific interrogatories denied where alleged prior misconduct of divorce attorney not relevant under NYC’s Victims of Gender-Motivated Violence Protection based on rape as “animus is inherent in rape.” Plaintiff not entitled to information related to nonmaterial factual allegations unrelated to elements of claim. Alleged coercive texts relevant, underlying conduct not relevant, and defendant’s travel documents not relevant without allegation defendant claimed he was unavailable for conference due to travel. Pacelli v Peter L. Cedeno & Assoc., P.C. ✉
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MVA Comparative Fault Premature Motion
Plaintiff’s motion for summary judgment before EBT’s on his affidavit stating he was struck from behind by defendant-truck as he stepped on curb/sidewalk lip denied with leave to renew based on defendant-driver’s affidavit stating plaintiff walked into truck while talking on phone. Plaintiff not required to show freedom from comparative fault but motion premature where plaintiff was not deposed. Bey v Rosado ✉
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MVA Rear End Question of Fact
Plaintiff traveling 40 mph on expressway with no traffic in front of her who was rear ended by defendant’s vehicle denied summary judgment where defendant testified plaintiff stopped short. Taveras v Ortiz ✉
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