March 30, 2021 | Vol. 255

(7 summaries)

Wrongful Death   Pain/Suffering   Assault   Statute of Limitations  

First Department

Thoroughly reviewing tolling of wrongful death claims and pain/suffering claims for infancy under CPLR §208, the First Department rejected an older ruling making it clear that where there are only minor distributees the 2-year wrongful death statute of limitations under EPTL §5-4.1 is tolled until the earlier of the court appointment of a guardian of the property, not a guardian of the person, issuance of letters of administration, or a distributee attaining majority. It is not tolled if there is at least 1-adult distributee. Existence of a potential guardian or personal representative does not end the tolling period. The Court found the wrongful death action tolled due to infancy and timely commenced but that the personal injury claims for intentional torts, where plaintiff’s decedent was killed in an altercation with defendants’ employee at its gas station, were not tolled as those causes of action belong to the estate, not the distributees. Machado v Gulf Oil, L.P.    

Wrongful Death   Motion to Dismiss   Governmental Function   Notice  

First Department

Port Authority’s motion to dismiss wrongful death and associated claims denied where 2-individuals jumped over 4′ railing on George Washington Bridge within a day of each other finding Port Authority acts in a proprietary, not governmental, function in designing and maintaining the GWB, following precedents in road maintenance cases and a Second Department precedent of a near identical case on the GWP. Plaintiffs submitted proof of suicide attempts on the GWB every 3.5 days with 93 deaths between 2009-2016. Feldman v Port Auth. of N.Y. & N.J.    

Malpractice   Discovery   CPLR § 3101(d)   Default Judgment   Accepted Practice   Causation   Experts   Conclusory   Speculation  

Second Department

Lower court providently dismissed case against 1-hospital and doctor where plaintiff failed to respond to multiple demands for expert information and plaintiff’s counsel conceded they did not have an expert ready to testify 1-week before trial scheduled almost a year earlier. Medical practice and its doctors granted summary judgment on statute of limitations. Prior motion to dismiss on statute of limitations, denied as untimely, did not bar summary judgment motion. Initial hospital and doctor made out entitlement to summary judgment and plaintiff’s expert’s opinions did not raise issue where conclusory and speculative. Moody v Hmoud    

Malpractice   Preclusion   Wrongful Death   Untimely   Reasonable Excuse   Premature Motion  

First Department

Defendants’ motion to dismiss wrongful death and pecuniary harm claims granted where plaintiff failed to comply with conditional order precluding plaintiff from introducing evidence of items not provided within 20-days of order as plaintiff could not prove wrongful death claim without proof of pecuniary loss not provided in response to the order. Lower court providently refused to consider plaintiff’s opposition submitted after agreed-upon adjourned date, without explanation for delay or notice to defense counsel. Motion could not be premature where pecuniary loss information was solely within plaintiff’s possession. Bacchus v Bronx Lebanon Hosp. Ctr.    

Labor Law §240   Gravity Risk   Indemnity   Conclusory   Speculation  

Second Department

HVAC worker injured when removable railing on loading he leaned on gave way causing him to fall 4′-5′ to concrete floor 10-minutes before elevators he needed that get to floors he was working on became operational protected by Labor Law §240(1) as loading dock was area “which must be accessed by a worker to do his or her job” even though he was not performing HVAC work at the time . Worker granted summary judgment on §240 as railing failed to provide adequate protection from elevated risk.

Company that built loading dock denied summary judgment dismissing common law contribution and indemnity claims of GC and denied summary judgment against GC for contractual indemnity where moving defendant failed to show it was free of negligence and question remained of whether contract required indemnity in favor of GC or subcontractor. Crutch v 421 Kent Dev., LLC    

Comment: HVAC subcontractor that subcontracted with plaintiff’s employer denied summary judgment of contractual indemnity and breach of contract claims where it failed to include contract documents regarding indemnity and insurance referenced in portion of contract attached to motion. Crutch v 421 Kent Dev., LLC

Attorney Fees   Malpractice  

First Department

Law firm’s motion to enforce contingency fee payment denied where pro se defendant raised issue on whether law firm was discharged for cause for settling case without her consent, requiring hearing. Fact that implied malpractice claim was not viable on causation or damages did not resolve issue of discharge for cause. If law firm was not discharged for cause, it is entitled to a fee based on quantum meruit. Silbowitz, Garafola, Silbowitz, Schatz & Frederick, LLP v Paravas    


First Department

Order reinstating lost earnings claim on motion to reargue but precluding claims for tax years not produced reversed where underlying preclusion order improperly granted without motion sua sponte at compliance conference. Sullivan v Snow    

(24 summaries)

Labor Law §241   Labor Law §240   Labor Law §200   Ladder   Industrial Code   Safety Devices   Foreseeability   Control   Law of the Case   Indemnity  

First Department

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.

Assault   Malpractice   Informed Consent   Respondeat Superior   Violent Propensity   Notice   Accepted Practice   Experts  

First Department

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    

Pothole Law   Notice of Claim   Amend Complaint   Prior Written Notice   Create Condition   Raised For First Time   NYC  

First Department

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.    

Malpractice   Accepted Practice   Causation   Experts  

Second Department

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    

Malpractice   Causation   Collateral Estoppel   Experts  

Second Department

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    

Amend BP   Untimely   Reasonable Excuse   Notice   Prejudice  

First Department

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    

Assault   Battery   False Arrest   1983 Action   Motion to Dismiss   Police   Feigned Issue   NYC  

Second Department

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    

Premises Liab   Create Condition   Notice  

First Department

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.    

Labor Law §240   Gravity Risk  

Second Department

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.    

Labor Law §240   Falling Object   Unsigned Transcript  

First Department

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    

Labor Law §240   Falling Object  

Second Department

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    

Serious Injury   ROM   Causation   Preexisting   Experts  

First Department

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    

Negligent Supervision   Assumption of Risk   Spoliation   Speculation  

First Department

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.    

Malpractice   Premises Liab   Unknown Cause   Causation   CPLR § 3126   Spoliation  

Second Department

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    

Labor Law §240   Gravity Risk   Safety Devices  

First Department

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    

Premises Liab   Sidewalk   Trivial   Create Condition   Notice   Last Inspection   Causation  

First Department

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.    

Premises Liab   Open/Obvious   Inherently Dangerous  

Second Department

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.    

Premises Liab   Snow/Ice   Notice   Last Inspection   Experts  

First Department

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.    

Premises Liab   Strike Answer   Stairs   Survelliance Video   Spoliation   Untimely   Note of Issue   Speculation  

First Department

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    

Strike Answer   Discovery   Willful/Contumacious   Renew  

First Department

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    

MVA   Bus   Pedestrian   Emergency Doctrine   Foreseeability  

Second Department

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.    

Assault   Discovery  

First Department

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.    

MVA   Comparative Fault   Premature Motion  

First Department

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    

MVA   Rear End   Question of Fact  

First Department

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    

(1 summaries)

MVA   Rear End   Nonnegligent Explanation  

Second Department

Plaintiffs granted summary judgment where their car was rear-ended, and defendant failed to provide a nonnegligent explanation. The Court does not give the details of the proofs. Resnick v Wainwright    

About Matt McMahon

Civil trials and appeals since 1984
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