March 6, 2018 | Vol. 96

MUST READS
(6 summaries)
NOTEWORTHY IF YOU MUST READ

Labor Law §241   Indemnity  

First

Plaintiff’s thumb was injured while cutting plywood on an unguarded table saw in area on the 16th floor, where approved construction company was allowed to keep their tools and materials without rent, for a bathroom renovation on the 41st floor. Question of fact existed as to whether workspace on 16th floor was a “construction area” for Labor Law §241(6). Work was integral to the construction and not “fabrication and transportation of materials.” Landlord granted summary judgment on cross-claim for contractual indemnity where contract language was clear. Karwowski v 1407 Broadway Real Estate, LLC


Labor Law §240   Ladder   Admissibility   Hearsay   Notice  

First

Summary judgment on Labor Law §240(1) for painter hired by deli owner to paint a decoration on a sign using an unsecured A-frame ladder provided and set up by the deli owner based on testimony that the unsecured ladder shifted, causing him to fall. Unsworn statements of deli owner and worker, who were not listed in responses to discovery demands which also stated that defendants were not in possession of statements, were hearsay and not admissible as they were the only evidence relied upon by the defendants. Building owner liable under Labor Law §240(1) even though tenant did not notify it of the work to be performed. Gonzalez v 1225 Ogden Deli Grocery Corp.


Negligent Supervision   Discovery   Privilege  

First

Plaintiff-mother’s motion for discovery of her child’s foster care records on claim that family services negligently certified foster parent granted to include identities of ACS caseworkers, mental health and other professionals with in camera review to redact information of other foster children. A former foster child has a right to his/her own records and “only a powerfully compelling showing would justify the court in potentially restricting” access to the records. K.B. v SCO Family of Serv.


Indemnity   Coverage  

First

Glass subcontractor whose employee was injured by falling glass was not entitled to summary judgment in action by building owner, general contractor and their carrier’s indemnity to recover a $465,000 settlement reached at an appellate conference after a $1 million verdict where subcontractor was aware of action and settlement negotiations. To recover a settlement from an indemnitor the indemnitee must show that the indemnitor had notice of the action and that it was a “reasonable good faith settlement,” or if the indemnitor did not have notice of the action, that the indemnitee “would have been liable and that there was no good defense to the liability.” Zurich Am. Ins. Co. v Tower Natl. Ins. Co.


Discovery   Strike Answer   Willful/Contumacious   Good Faith Aff   Reargument   Renew   Reasonable Excuse  

First

Lower court providently struck defendant’s Answer for failing to provide discovery required by multiple court orders despite prior conditional order of preclusion. Good faith affidavit was not defective given plaintiff’s prior attempts to compel discovery. Motion to renew/reargue denied where claim of medical issues impairing defense attorney’s ability to comply did not provide a reasonable excuse because it was not supported by medical proof. Rodriguez v Nevei Bais, Inc.


CPLR § 3126   Note of Issue   90 Day Notice   Reasonable Excuse  

First

Complaint dismissed where plaintiff failed to file Note of Issue until 3 days after time in 90-day Notice, failed to move to vacate the 90-day Notice or extend the time to file the Note of Issue “before” the expiration of the time, and failed to seek any remedy to compel discovery. Plaintiff failed to offer a reasonable excuse for the delay. Austin v Gould

NOTEWORTHY
(17 summaries)
MUST READS IF YOU MUST READ

Premises Liab   Slip/Trip   Set Aside Verdict   Admissibility   Pain/Suffering   Materially Deviates   CPLR 3122-a  

First

Past/future pain/suffering reduced from $350,000/$1.3 million to $150,000/$250,000 for ankle fracture without surgery and exacerbation of spinal stenosis. It was error to allow plaintiff’s expert to compare plaintiff’s pre/post accident spinal stenosis based on a post-accident MRI because the pre-accident MRI film and report were not in evidence and the expert had not reviewed plaintiff’s pre-accident medical records. The error, however, was harmless. Mosley v E.H.J. LLC

Comment: From the lower court decision, plaintiff’s expert was allowed to testify on the post-accident MRI and film which were admitted under CPLR 3122-a.


Med Mal   Accepted Practice   Causation   Expert Aff  

First

Plaintiff’s expert raised issues of fact on departure and causation by opining, based on review of medical records, that defendants departed from accepted practice by failing to diagnose the ectopic pregnancy on plaintiff’s complaints of abdominal pain and her BhCG levels not rising sufficiently, despite negative ultrasound, and in failing to prescribe methotrexate to terminate the pregnancy. Mathews v Stuyvesant Sq. Chem. Dependency Servs.


Med Mal   Accepted Practice   Causation  

First

Plaintiff’s expert failed to raise an issue of fact in opposition to defendants’ showing that they did not depart from accepted practice in their efforts at resuscitation after plaintiff’s decedent suffered a seizure like episode. Plaintiff’s expert’s opinion that defendants failed to establish an airway before introducing oxygen was contradicted by the records which showed that the decedent never stopped breathing naturally and that decedent’s pulse, circulation, and oxygen saturation were normal when EMS arrived. Rodriguez v Washington Hgts. Dental Practice, P.C.


Med Mal   Accepted Practice   Respondeat Superior   Expert Aff   Informed Consent  

First

Patient’s experts raised issues of whether a smaller catheter should have been used during cardiac ablations due to preexisting Factor V Leiden, whether Doppler studies after surgery should have done to rule out DVT, and whether the second surgery should have been delayed to allow greater activity. Doctor’s employment status was also at issue on claim of respondeat superior. Plaintiff failed to raise question on informed consent. Cabral v Stern


Premises Liab   Duty   Notice   Create Condition  

First

Landlord’s motion for summary judgment denied where tenant gave superintendent verbal notice (written required in lease) of defective cabinet 3 months before cabinet fell on her and super tried to fix it at that time, raising issue of actual notice. Landlord failed to establish what caused the cabinet to fall and that it properly installed the cabinet, necessary to eliminate whether it created the dangerous condition. Santana v Kardash Reality Corp.


Premises Liab   Slip/Trip   Snow/Ice   3rd Party Contractor   Espinal   Notice  

Second Deptartment

Snow contractor failed to show the snow removal efforts they made prior to plaintiff’s fall on black ice in a condominium complex and couldn’t eliminate issue of launching a force of harm by making the snow/ice conditions worse. Condominium granted summary judgment on proof that it did not have notice of the condition. Yvars v Marble Hgts. of Westchester, Inc.


Premises Liab   Battery   Duty   3rd Party Contractor   Espinal   Amend Complaint  

First

Security company owed no duty to shopper who was attacked by a store employee as plaintiff was not a 3rd party beneficiary to the contract and no Espinal exception applied. Santiago v K Mart Corp.


Premises Liab   Building Security  

First

Building granted summary judgment on proof that it contracted to provide 24-hour security, had locking doors, an intercom system, and video cameras at all entrances. Coles v Tracey Towers Assoc., LP.


MVA   Turning Vehicle   Comparative Fault  

Second Deptartment

Motorcyclist who struck turning truck establish that truck which could not complete turn before the collision failed to yield the right of way. Plaintiff’s testimony that he was driving at 25 mph before collision and broke as soon as truck started to turn established that plaintiff was not at fault. Truck driver raised issue of comparative fault in opposition by his testimony that plaintiff was driving at an excessive speed. Shashaty v Gavitt


Labor Law §241   Dangerous Condition  

First

Defendant raised issue of fact regarding adequacy of lighting on Labor Law §241(6) claim. Gonzalez v West 38th St. Dev. LLCex


Serious Injury   Expert Aff   ROM   Degenerative   Feigned Issue   Speculation  

First

Plaintiff failed to adequately explain 4-year treatment gap. He contradicted his testimony that he stopped after 6 months because he didn’t like doctors in his affidavit which stated that he stopped after 3 months because no-fault was denied and he testified that he had private insurance. This rendered his expert’s opinions speculative as to permanency, significance, and causation. Defendants’ experts’ findings of full ROM, normal tests, and that MRIs were either normal or showed degenerative changes made out entitlement to summary judgment. Vila v Foxglove Taxi Corp.


Serious Injury   Expert Aff   ROM   Preexisting   Conclusory  

First

Plaintiff failed to raise issue of fact in opposition to defendants’ prima facia showing of normal ROM, plaintiff’s doctor’s records showing that “hip strain” had resolved, plaintiff stopped treatment after 5 months, and that plaintiff had pre-existing conditions including corrected spina bifida and osteoarthritis that could be cause of symptoms. Plaintiff’s doctor offered only a conclusory opinion without explaining how injuries could be caused by accident and not pre-existing conditions. Plaintiff’s claim that he stopped treatment because of no-fault denial was contradicted by his testimony that he had private insurance. Latus v Ishtarq


Premises Liab   Unknown Cause   Building Code  

Second Deptartment

Building granted summary judgment where plaintiff was unable to identify what caused her to fall. Her claim that the lack of a handrail on the side she fell was a building code violation was speculative. Morchyk v Acadia 3780-3858 Nostrand Ave., LLC


Premises Liab   De Minimus  

Second Deptartment

Homeowner failed to show that defect which caused guest to trip on concrete floor in backyard was physically insignificant and that surrounding circumstances did not increase the risk, necessary to show that defect was trivial and nonactionable. Cortes v Taravella Family Trust


Premises Liab   Sidewalk   Bicycle   Dangerous Condition   Admissibility   Feigned Issue  

First

Condominium granted summary judgment where proof failed to show any dangerous condition that caused plaintiff to fall backwards from his bicycle and plaintiff admitted that photos did not show a defect. Plaintiff’s affidavit was not in admissible form lacking a translator’s affidavit (CPLR 2101(b)) and raised only a feigned issue as it contradicted his 50-h testimony. Sylla v Condominium Bd. of the Kips Bay Towers Condominium, Inc.


CPLR § 3126  

First

One defendant’s motion to dismiss for failure to prosecute providently denied where delays resulted mostly from difficulty deposing incarcerated defendant. Delay in providing post-EBT authorizations did not show intent to abandon case. Rosario v Albany Express


Malicious Prosecution   Amend Complaint   Police   Statute of Limitations   NYC  

First

Plaintiff’s motion to amend Complaint to substitute the police officers’ names for John Does denied as police officers were not “united in interest” with NYC, the original defendant. Malicious prosecution claim barred by acceptance of ACD. Campbell v City of New York

IF YOU MUST READ
(2 summaries)
MUST READS NOTEWORTHY

Premises Liab   Slip/Trip   Wet Floor   Spoliation  

First

Market denied summary judgment where plaintiff slipped on wet floor in fish department. There were questions of fact and case was remitted for determination of plaintiff’s cross motion for spoliation sanctions. The court does not give the details of the proofs. Rou Dong Yee v Deluxe Meat Mkt. Inc.


Coverage   Snow/Ice   Hearsay   NYC  

First

NYC entitled to recover costs of defending underlying suit where allegations of complaint brought it within terms of contract that required snow removal contractor to procure insurance for injuries resulting from snow removal not involving a plow. Based on evidence the right to indemnification could not be determined as a matter of law where photographs and an accident report showed signs of snow/ice. Unsworn report was hearsay but admissible as it was not the only evidence relied on. City of New York v Catlin Specialty Ins. Co.

About Matt McMahon

Civil trials and appeals since 1984
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