March 31, 2020 | Vol. 204


MUST READS
(5 summaries)
NOTEWORTHYIF YOU MUST READ




Set Aside Verdict   Dangerous Condition   Admissibility   Prejudice   Expert Aff  

Court of Appeals
Court of Appeals confirms that non-mandatory industry standards for gap distance between train doors and platform are admissible but evidence of gap accidents at other stations was inadmissible without showing the same conditions existed as in plaintiff’s accident. Daniels v New York City Tr. Auth.

Comment: This is an important pronouncement from the Court of Appeals on the issue of whether standards must have “force of law” to be relevant. The First Department decision was reported in Vol. #: 156.


Products Liab   Design Defect   Spoliation   Circumstantial Evidence   Speculation  

First Department
Company that provided large ratchets for moving concrete wall forms failed to show it could not defend design defect case without actual ratchet that broke causing plaintiff’s injuries where circumstantial evidence showed 10-such ratchets broke prior to plaintiff’s accident, it was a simple design, and similar ratchets provided by the company could be tested by their expert. Failure to preserve defective product is not necessarily fatal to design defect case and plaintiff’s failure to procure and preserve ratchet where he needed immediate medical attention did not demonstrate “culpable state of mind” necessary to strike Complaint.

Plaintiff’s motion for spoliation sanction where prior emails destroyed when defendant switched to new email system and search prior to switching found only 1-relevant email denied as plaintiff offered only speculation that discarded emails would have relevant information. Rossi v Doka USA, Ltd.



Motion to Dismiss   Personal Juridiction   Service   CPLR §306-b   Reasonable Excuse   Meritorious Action   Prejudice   Untimely  

Second Department
Plaintiff who did not dispute service within 120-days was improper granted CPLR 306-b extension to serve in interest of justice where defendant was aware of suit within 120-days and did not demonstrate actual prejudice even though plaintiff did not show reasonable excuse for not moving for extension until after defendant’s motion to dismiss or that he had a meritorious action. Chandler v Osadln, Inc.


Premises Liab   Slip/Trip   Sidewalk   Question of Fact  

First Department
Plaintiff’s motion for summary judgment denied where he was only witness to accident, did not seek treatment for several weeks, and his account was not substantiated in medical records. Since the information is exclusively within plaintiff’s knowledge, defendants should have opportunity to cross-examine plaintiff and have his credibility determined by jury. Pabon v 940 S. Blvd., LLC


MVA   Bus   Notice of Claim   Indemnity  

Second Department
Bus driver and employer granted summary judgment where plaintiff failed to serve Notice of Claim on County on proof that County which owned bus was required to maintain a transit system and indemnify driver and employer requiring plaintiff to serve Notice of Claim on County. Smith v Pierce

Comment: A good reminder to always check whether a municipality must be served with a Notice of Claim for bus accidents, especially during regular bus service, regardless of whether driver, employer, or bus company are private entities.

NOTEWORTHY
(10 summaries)
MUST READSIF YOU MUST READ

MVA   Rear End   VTL §1104   Police   Emergency Doctrine  

Second Department
Defendants failed to show police officer who struck motorcycle in rear was engaged in specific conduct enumerated in VTL §1104 that would entitle them to reckless standard or that officer’s conduct did not constitute ordinary negligence. Martinez v Incorporated Vil. of Freeport


Med Mal   Vacate Default   Discovery   CPLR § 3126   Reasonable Excuse   Meritorious Action   Willful/Contumacious   Renew  

First Department
Court’s issuance of conditional order of dismissal for failure to comply with court orders requiring appearance at further deposition relieved the court of having to determine whether plaintiff’s failure to show was willful/contumacious. Renewal inappropriate where new facts pertained only to things which occurred after original conditional order. Plaintiff showed reasonable excuse for not appearing but failed to show a meritorious medical malpractice action. Mehler v Jones


Labor Law §240   Ladder   Sole Cause   Comparative Fault  

First Department
Plaintiffs granted summary judgment on Labor Law §240(1) on injured plaintiff’s testimony, corroborated by coworker, that 10′ ladder set up by coworker suddenly shifted causing him to fall, without further proof that ladder was defective. Defendant failed to show that use of fiberglass instead of metal ladder was sole cause of accident as it was at most comparative fault which is not a defense under §240. Rodriguez v BSREP UA Heritage LLC


MVA   Bus  

Second Department
NYCTA granted summary judgment on plaintiff’s testimony at 50-H and EBT demonstrating that movement of bus where plaintiff fell to the ground during acceleration/deceleration was not “unusual and violent” or different than ordinary “jolts and jerks” of bus travel. Mezarina v City of New York


Premises Liab   Construction Liab.   Slip/Trip   Wet Floor   Sidewalk   § 7-210   Create Condition   Notice  

First Department
Two defendant-adjoining landowners granted summary judgment on photographs authenticated by plaintiff showing accident did not happen on sidewalk adjacent to their property, adjoining landowners where accident occurred granted summary judgment on proof they did not create or have knowledge of wet cement left by contractor working in area and they were not expected to clean area. Construction company doing work on sidewalk with wet cement not entitled to summary judgment. Agard v Green Tree, LLC


Premises Liab   Slip/Trip   Snow/Ice   Out of Possession   Duty   Create Condition   Notice  

Second Department
Landlord failed to show it was out of possession landlord with no duty to maintain parking lot where plaintiff slipped on ice while exiting car to go to store and all defendants failed to show they did not have duty to maintain area and did not create or exacerbate condition or have notice. Pinck-Jafri v Marsh Realty, LLC


Premises Liab   Building Security   Police   Duty   GML §205-e   Notice   Hearsay  

First Department
Storage facility granted summary judgment of police officer’s claim it failed to evict tenant who injured her during arrest where it owed no duty to plaintiff to evict tenant. Even if hearsay evidence that tenant was a problem in the past and mentally ill was admitted, there was no evidence of violent behavior before the incident. Claimed violation of GML §205-e not applicable where there was no regulation requiring that basement door be unlocked. Henry v Storage Post


Premises Liab   Slip/Trip   Stairs   Create Condition   Notice   Last Inspection  

Second Department
Defendant showed it did not create slippery condition on interior stairs leading to lobby of its building where plaintiff fell or have actual notice of the condition but failed to eliminate questions of fact on constructive notice where it submitted evidence only of general cleaning and inspection practices, not evidence of last time area was cleaned or inspected. Griffin v PMV Realty, LLC


MVA   Duty   Sole Cause  

Second Department
Defendant driver and owner of car stopped in turning lane waiting to make a left-hand turn that was hit by vehicle driven by plaintiff’s wife when it crossed into oncoming lane granted summary judgment as motorist is not required to anticipate car driving in opposite direction of traffic and proof established plaintiff’s wife’s negligence was sole cause of accident. Kwang Jin Kim v Ramos


MVA   Motion to Dismiss   General Release  

Second Department
Defendant’s motion to dismiss under CPLR 3211(a)(5) granted on proof that plaintiff, defendant’s fiancé, signed release of all claims for accident for $500 and plaintiff failed to show any reason why it did not preclude the suit. Cames v Craig

IF YOU MUST READ
(0 summaries)
MUST READSNOTEWORTHY

About Matt McMahon

Civil trials and appeals since 1984
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