March 5, 2024 | Vol. 407

(2 summaries)

Child Victims Act   Motion to Dismiss   Statute of Limitations   Duty   Negligent Supervision   Respondeat Superior  

First Department
In the context of an aspiring model’s claims of sexual abuse and “sexual performance” against the product seller and her modeling agency at photoshoots when she was 16-17 years old, the First Department makes a thorough review of the Child Victim Act predicates and pleading requirements. It rejected defendants’ argument the CVA did not apply for alleged acts in Mexico as the CVA was intended to provide relief for NY residents wherever the acts took place.

The Court found plaintiff’s allegations that she was “unclothed” during the photoshoots sufficiently plead the Penal Law §263.05 “sexual performance” CVA predicate as it may infer that genitalia, required under the federal Dost test but not the CVA, was involved in a lewd exhibition and the question is whether the conduct fits within §263.05, not whether the defendant could be criminally prosecuted. The Court rejected defendants’ argument the CVA revival of the statute of limitations did not apply as §263.05 only applied to persons under 16 at the time of the photoshoots since the CVA specifically applies to acts against “a child less than eighteen years of age” and as it revives only civil actions its applicability is triggered by the conduct and not criminal liability.

Claims for negligent supervision against the seller dismissed as allegations it assumed a duty to supervise plaintiff due to her youth were insufficient to show it took her within their custody and control, necessary to create a duty to supervise her. Claim it knew or should have known the photoshoot would produce lewd photographs was insufficient without pleading some facts of how it acquired that knowledge or knowledge of the propensities of the actors or photographers. Claim that makeup artist touched plaintiff for sexual gratification insufficient for respondeat superior as it alleged a personal motivation not in furtherance of the seller’s business. Defendants denied dismissal of plaintiff’s Civil Rights Law § 50 claim that photographs were distributed without plaintiff’s consent where they didn’t address that issue. Doe v Wilhelmina Models, Inc.    

Asbestos   Pain/Suffering   Causation   Jury Charge   Waiver   Experts   Materially Deviates  

First Department
$13 mil/$10 mil past/future pain/suffering verdict for plaintiff’s mesothelioma from asbestos exposure did not materially deviate from reasonable compensation. Testimony of plaintiff’s experts, industrial hygienist’s testimony providing quantitative conservative estimates of plaintiff’s exposure based on plaintiff’s detailed testimony and methodology which the Court previously found provided “for the placement of the air cassettes specifically designed to capture asbestos fibers created by the simulated activity in [workers’] breathable zones,” epidemiologist testimony that the hygienist’s estimates were in the middle of range of epidemiology studies showing very high ‘odds ratios’ for mesothelioma making him 8, 22, 47 times more likely to develop mesothelioma, and testimony of thoracic surgeon that the amount of plaintiff’s asbestos exposure would have overcome the body’s usual pulmonary defenses allowing the fibers to enter his lungs together provided a sufficient ‘scientific expression of [plaintiff]’s exposure level’ for causation.

“Tyndall lighting” exhibit providently admitted where used solely as a visual aid of asbestos fibers in the air to rebut defense claim asbestos fibers in their gaskets couldn’t be released into the air because they were enclosed in metal. Defendant affirmatively waived challenge to a jury charge in the charge conference, raising different arguments on appeal, and failed to preserve claim the jury might have overheard the court’s comment during a sidebar without a timely objection where it waited until the next day. Challenges to plaintiff’s summation unpreserved except for suggesting the jury represented ‘the voices of this community,’ and the pain/suffering award defendant proposed ‘made a mockery of’ the legal system’ which were not so egregious to warrant a new trial. While a blanket prohibition against objections during summations is generally improper, the error was not sufficiently prejudicial for a new trial. Matter of New York City Asbestos Litig    

(11 summaries)

Child Victims Act   Motion to Dismiss   Negligent Supervision   Negligent Hiring   Duty   Foreseeability   Notice  

Second Department
Plaintiff adequately pled causes of action for negligent supervision of a child, negligent recruitment, screening, and supervision of mentors, and failure to warn by allegations that family services and Big Brothers knew their program attracted pedophiles, that children under their care were at a high risk for abuse, that their mentor selection process did not incorporate appropriate sexual abuse precautions, and that they should have known of the sexual abuse propensity of the mentor who abused the plaintiff starting when he was 8-years old from that mentor’s interaction with his prior mentees. Cause of action for failure to provide a safe and secure environment dismissed as duplicative of the negligent recruitment, screening, and supervision of mentors cause of action. Brophy v Big Bros. Big Sisters of Am., Inc.    

Construction Liab.   Untimely   Note of Issue   Indemnity  

First Department
Contractor’s motion for summary judgment on its indemnity claim against flooring subcontractor, brought 3.5-years after Note of Issue and after contractor settled with plaintiff, providently denied as untimely. Argument that Note of Issue was ‘essentially vacated’ by the settlement with plaintiff rejected without a stipulation or order to that effect. Malysz v WFP Tower B Co., LP    

Motion to Dismiss   Waiver   Personal Juridiction  

First Department
Defendant did not waive personal jurisdiction defense, even if not raised in original Answer, where raised as an affirmative defense in an Amended Answer filed within the time to amend pleadings as of right and its unopposed motion to dismiss for lack of personal jurisdiction granted on proof the person served was not authorized to receive service and no service was made on the Secretary of State.

The Court found personal jurisdiction was raised in the original corrected Answer, which the lower court found to be clouded. Manfredo v 100-106 LLC    

Premises Liab   Duty   Create Condition   Vicarious Liab  

First Department
GC’s testimony it undertook the installation, maintenance, and inspection of Masonite floor covering during renovation and that sections where plaintiff tripped and fell were not secured by duct tape left questions of whether it created a hazard and was a cause of plaintiff’s injuries. “[W]here a defendant has undertaken a specific duty, it is obligated to perform that duty with reasonable care or be liable for any hazards it creates.” GC’s negligence can be imputed to building owner which owes a nondelegable duty to maintain the premises. Bolson v UJA-FED Props. Inc., Ltd.    

Malpractice   Accepted Practice   Duty   Causation   Experts   Speculation  

First Department
Plaintiffs’ ENT expert raised issues in opposition to otolaryngologist’s prima facie showing of no departure by opinion that otolaryngologist departed from accepted practice in the way he addressed decedent’s bleeding mucosa during closure stage of benign pituitary tumor surgery, whether an alternative closure should have been performed without removing the entire mucosa, and whether an intra-operative sonogram should have been performed. Plaintiff’s neurology expert failed to raise an issue in opposition to neurosurgeon’s showing he had no duty to remain after removal of the tumor and it was speculation to assume he would have prevented the injury where the otolaryngologist was aware of the risk to the artery.

Plaintiffs’ experts’ opinions were not deficient for failure to state they read defendants’ experts’ reports where they addressed their assertions. Schwimer-Codos v Tassler    

Labor Law §240   Scaffold   Ladder   Safety Devices   Sole Cause   Recalcitrant Worker   NYC  

First Department
Plaintiff granted summary judgment on Labor Law §240(1) for 4’ fall as he climbed down cross-bracing under scaffold outrigger platform as the ladder which was supposed to be attached to the platform was not there. Defendants’ failed to raise an issue on sole cause by recalcitrant worker on proof ladders were available without proof plaintiff knew he was supposed to use them and refused for no good reason or that the detachable ladders used to access different floors of the scaffold were appropriate for the outrigger platform. Ortiz v City of New York    

Premises Liab   Notice   Raised For First Time   Waiver   Spoliation   Experts  

First Department
University’s motion for summary judgment dismissing plaintiff’s claim for fall on exterior steps due to lack of light granted on records showing it had no notice of issues with the lighting and plaintiff testified she first noticed the lack of lighting just before her fall. Plaintiff waived claim university’s records were unauthenticated where not raised below. University failed to meet burden of showing the steps were not defective by expert’s report that was based on an inspection 3-years after the accident.

Plaintiff denied spoliation sanctions where she did not conduct an inspection of the stairs or demand they be preserved before they were replaced without notice 4-years after the accident. Vasquez v Fordham Univ.    

Malpractice   Accepted Practice   Causation   Experts   Raised For First Time  

Second Department
Defendants met burden for summary judgment on their expert’s opinion they did not negligently stretch or compress plaintiff’s nerves during his bilateral hamstring lengthening surgery or cause the undisputed bilateral nerve stretch injury, which is a known risk of the procedure, during the surgery or by a delay in diagnosing the nerve stretch injury and removing plaintiff from his casts but plaintiff’s expert raised issues in opposition. Claim defendants’ expert failed to address certain allegations in the BP not considered where raised for the first time on appeal. Friedman v Vitale    

Child Victims Act   Notice  

Second Department
Defendants motion for summary judgment dismissing plaintiff’s claim for sexual abuse at overnight camp in 1984-1985 under the Child Victims Act denied where defendant failed to show it lacked notice of the counselor’s abusive propensity and conduct. The Court does not give the details of the proofs. Kwitko v Camp Shane, Inc.    

Premises Liab   Severance  

First Department
Motion to strike tenant’s jury demand denied as to cross claims for personal injuries and property damage and severed where lease had a valid jury waiver clause ‘for any matter concerning this Lease or the Apartment’ but had an exception for personal injury and property damage. 93rd Bldg. Corp. v Hefti    

Comment: Waivers of trial by jury for personal injury and property damage in leases were outlawed starting in 2013 by Real Property Law §259-c.

Malpractice   Motion to Dismiss   Statute of Limitations   Appealable Order  

First Department
Law firm’s motion to dismiss legal malpractice claim against it granted where action was commenced more than 17-months after the statute of limitations. Arguments raised by pro se plaintiff not reviewable where decided on 3-prior appeals and fraud claim was too incomprehensible, conclusory, and unsupported to plead an action for fraud. Sang Seok Na v Pulvers, Pulvers & Thompson, LLP    

(2 summaries)

SUM   Coverage   Settlement   Prejudice  

Second Department
SUM Carrier’s motion to dismiss action for declaratory judgment that it was obligated to provide its $1 million in SUM coverage to school bus driver injured when his bus was hit by another driver granted on proof plaintiff settled his case against the other driver for the full $100,000 policy limit and against her medical providers who failed to warn her not to drive due to the effects of medications given to her for $1,525,000 without obtaining the consent of the SUM Carrier as required by the policy. Plaintiff’s attorney’s statement that he orally advised the defendants in the underlying action of the plaintiff’s intention to pursue his SUM claim insufficient to show the execution of the releases would not prejudice the SUM Carrier’s rights of subrogation. Davis v New York Schs. Ins. Reciprocal    

MVA   Pedestrian   There to be Seen  

Second Department
Vehicle owner and driver failed to meet burden for summary judgment dismissing claim of plaintiff who came in contact with defendants’ vehicle while walking in bicycle lane where questions remained on whether the defendant-driver was at fault. The Court does not give the details of the proofs. Galloway v Lux Credit Consultants, LLC    

About Matt McMahon

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