March 7, 2017 | Vol. 44

MUST READS
(5 summaries)

Med Mal   Sanctions  

Second Deptartment

The lower court granted a mistrial and awarded sanctions of $23,953.95 against defendant’s attorney for questioning the plaintiff regarding a prior admission of her decedent mother at a psychiatric Institute which the lower court believed was in bad faith and poisoned the jury. The Second Department reversed finding that there was a good faith basis for the question as the psychiatric admission was noted in one of the medical records in evidence and had some relevance based on the plaintiff’s opening. Marx v Rosalind & Joseph Gurwin Jewish Geriatric Ctr. of Long Is., Inc.


MVA   VTL §1104   Police   NYC  

Second Deptartment

Police officer and department’s motion for summary judgment denied for failing to make out prima facie entitlement where plaintiffs, husband-and-wife, testified that they entered the intersection without hearing sirens or seeing flashing lights from the defendants’ unmarked police car. Question of fact existed regarding whether police officer entered intersection in accordance with the specific exceptions under VTL §1104. If the police officer’s conduct does not fall specifically within the definition in VTL §1104, ordinary negligence applies. Defendants failed to eliminate the question of whether the police officer was negligent. Reid v City of New York


Court of Claims   Motion to Dismiss   Statute of Limitations  

First

Pro se plaintiff’s claims were properly dismissed, one for being untimely, and both for failing to strictly comply with the pleading requirements of the Court of Claims Act §11(b). Pro se plaintiff is not entitled to a lesser standard of pleading. Watson v State of New York


Asbestos   Set Aside Verdict   Directed Verdict  

First

Defendant Ford Motor Company’s motion to set aside a verdict in plaintiff’s favor was granted and a directed verdict entered in favor of defendant where plaintiff’s experts failed to “quantify” or provide some “scientific expression” that plaintiffs were exposed to a sufficient amount of asbestos to cause their mesothelioma. It is not sufficient to show a connection between asbestos exposure in general and mesothelioma, the expert must show that the plaintiff was exposed to sufficient levels of the toxin to cause the damage. Workers engaged with friction based automotive products (brakes, clutches, gaskets) showed no increased risk for mesothelioma in 21 of 22 studies and only 1% of visible dust from these products contain any asbestos which can further be reduced by heat from the friction of the brakes. There was one concurring opinion and one dissent. Matter of New York City Asbestos Litig.


Defamation   Malicious Prosecution   Privilege   Motion to Dismiss  

First

A prior action for declaratory judgment was considered a “sham action” designed to silence the plaintiff whistleblower and was not entitled to the absolute judicial privilege and, therefore, the complaint stated a cause of action for defamation and civil malicious prosecution. Thomas v G2 FMV, LLC

NOTEWORTHY
(23 summaries)

Premises Liab   Slip/Trip   Notice   Create Condition   Speculation   Question of Fact  

First

Plaintiff’s testimony that she saw a gouge in what she described as wax on a ladies room floor from her shoe sufficiently raised question of fact in opposition to the defendants’ testimony and affidavits that wax was never used on the floor which was cleaned only with water and had been last cleaned on the morning of the evening accident. The plaintiff’s testimony and affidavit were sufficiently specific to not be speculative and was circumstantial evidence of the defendant having applied a wax buildup on the floor. There was one dissent. De Paris v Women


MVA   Bus   Snow/Ice   Slip/Trip   Storm in Progress   Duty  

First

NYCTA granted summary judgment where plaintiff slipped and fell on slush on the exit steps of the bus brought onto the bus by passengers’ shoes as a common carrier does not have a duty to provide a “constant remedy” for tracking of water during ongoing storm or for a reasonable time thereafter. It would be unreasonable to expect the defendants to constantly clean the front steps of the bus. Notice was irrelevant since the defendant did not owe a duty to the plaintiff. Harbison v New York City Tr. Auth.


MVA   Turning Vehicle   Comparative Fault  

First

Rear seat passengers granted partial summary judgment finding them free of comparative fault but denied summary judgment on liability based on affidavit of defendant that she entered the intersection with the green light creating a question of fact. Huerta-Saucedo v City Bronx Leasing Inc.


MVA   Traffic Signs   Law of the Case   Set Aside Verdict  

Second Deptartment

Where the defendant entered the intersection from a road controlled by a stop sign and the plaintiff did not have a stop sign, the Appellate Division had previously affirmed the lower court’s order setting aside the defense verdict as against the weight of the evidence and the lower court then granted the plaintiff’s motion for summary judgment based on the Appellate Division’s decision. The Appellate Division reversed noting that the plaintiff failed to put forth any proof on the motion for summary judgment other than its previous decision which did not find the defendant negligent as a matter of law but only found that a new trial was warranted as the defense verdict was against the weight of the evidence. Zhubrak v Petro


Labor Law §240   Labor Law §241   Labor Law §200  

First

Defendant made out prima facie entitlement to summary judgment on evidence that it did not own the premises, was not a general contractor, nor an agent of the owner or general contractor, and did not supervise the work but plaintiff and co-defendants raised an issue of fact based on an affidavit and documentary evidence questioning whether moving defendant had a larger role in the project then their papers showed. At a minimum, there was a need for further discovery. Oseguera v Lincoln Props. LLC


Labor Law §241   Labor Law §200   Slip/Trip   Industrial Code   Last Inspection  

First

Defendants denied summary judgment on Labor Law §241(6) claims where carpenter engaged in building tables and platforms to be used to construct the next reinforced concrete floor slipped on wet discarded concrete on plywood he was walking on, causing his foot to get caught on rebar protruding from the plywood. Neither concrete nor rebar were integral parts of his work so questions of fact existed regarding industrial code §§ 23-1.7(d)(slipping hazards), 23-1.7(e)(1)(tripping hazards, passageway), §23-2.1(a)(1)(storage of material). Question of fact existed on Labor Law §200 claim as defendants failed to show the last time the area was cleaned or inspected and, therefore, failed to show that they did not have constructive notice. Pereira v New School


Premises Liab   Notice   Create Condition   Directed Verdict  

Second Deptartment

Defendant properly granted directed verdict at the close of plaintiff’s evidence on lower court’s finding that there was no rational basis for a jury to find in favor of the plaintiff based on lack of evidence that the defendant had notice of the defective condition or created it. Vasconcello v Lam


Premises Liab   Stairs   Handrail   Create Condition   Notice  

First

Defendant entitled to summary judgment where plaintiff waived any claim that her fall was caused by standing water on exterior stairs, relying solely on claim that there was no handrail, and testimony of defendant’s manager was that a handrail was in place on the date of the accident, no problems had ever been observed or complained of with the handrail, and the certificate of occupancy recited that all regulations were complied with. Plaintiff’s bare statement that there was no handrail was insufficient to raise a question of fact. Tejada v Schuman Props., LLC


Med Mal   Informed Consent   Accepted Practice   Expert Aff   Conclusory  

Second Deptartment

Defendants failed to make out prima facie entitlement for summary judgment based on their expert’s affidavit which opined that the plaintiff never had abdominal compartment syndrome, the condition alleged to not have been timely diagnosed and treated, where the medical records, including the discharge note signed by the defendant, clearly state the diagnosis as abdominal compartment syndrome. Defendant’s expert’s affirmation also failed to show that the consent obtained was within accepted practice and the plaintiff’s testimony raised issue of whether he was advised of the risks and alternatives of the surgery performed. Kleinman v North Shore Univ. Hosp.


MVA   Rear End   Untimely   Reasonable Excuse   Note of Issue   Discovery  

First

Third-party defendant’s 2nd motion for summary judgment, filed after Note of Issue and after obtaining an order permitting discovery of the co-third-party defendant but without specifically extending the third-party defendant’s time to make a summary judgment motion, should have been entertained and granted. The need to obtain the co-third-party-defendant’s deposition provided a reasonable excuse and the time to make the motion should not have run until the co-third-party defendant defaulted and was precluded. There was no evidence to show that the moving third-party defendant was in any way responsible for pushing the co-defendant third-party defendant’s car into the plaintiff and summary judgment should have been granted. Rotante v Advance Tr. Co., Inc.


Prior Written Notice   Pothole Law   Notice of Claim   Motion to Dismiss   NYC  

Second Deptartment

NYC’s motion to dismiss, or for summary judgment, denied for failing to eliminate all issues of fact under the pothole law, §702(c)(2) which requires that they have either prior written notice or acknowledge the defect. Numerous documents submitted by NYC involving a nearby water main break at a different intersection 6 months before the accident left open the applicability of some of these documents to the intersection in question. Fact that one defendant disputed the location of the accident was insufficient to deem the location in the Notice of Claim insufficient especially where plaintiff was not seeking to amend the Notice of Claim. DeGroat v City of New York


Premises Liab  

First

Landlord denied summary judgment on claim that plaintiff took the apartment “as is” even though he did not sign the lease and any lease provision abrogating a landlord’s liability for its own negligence would be void under Gen. Obl. L. §5-321. Munsey v Sindone


Premises Liab   Notice   Create Condition   Latent Defect  

Second Deptartment

Homeowner granted summary judgment on proof that the sharp object plaintiff stepped on in a shrub covered area of the property was latent, not visible on a reasonable inspection, and homeowner did not create condition. There can be no constructive notice for latent defects. Arevalo v Abitabile


Med Mal   Accepted Practice   Proximate Cause   Expert Aff   Renew  

Second Deptartment

Plaintiff sought to renew its opposition to the defendant’s motion for summary judgment based on a supplemental affirmation from his expert after the lower court had found the expert’s opinion conclusory. The motion to renew was properly denied as plaintiff failed to offer any excuse for not submitting the information in the supplemental affirmation in the original opposition to the motion. A motion to renew is not a second chance to relitigate what could have been litigated with due diligence. Hernandez v Nwaishienyi


Premises Liab   Slip/Trip   Sidewalk   Create Condition   § 7-210  

First

Single family homeowner granted summary judgment where plaintiff failed to show that homeowner created or exacerbated the ½” rise differential between two sidewalk flagstones. Plaintiff’s claim that tar or caulking placed in the gap between the flagstones by the homeowner obscured her view was insufficient to raise a triable issue. Napoli v Di Marco


Premises Liab  

Second Deptartment

Building owner denied summary judgment where it submitted conflicting evidence as to whether a smoke detector had been installed in the plaintiff’s apartment and merely pointed to gaps in the plaintiff’s testimony on proximate cause for the injuries he received when he had to run through the flames to leave the apartment. Cristescu v Gasparis


Defamation   Emotional Harm   Outrageous Conduct   Malicious Prosecution   Motion to Dismiss  

First

Causes of action for intentional infliction of emotional harm and prima facie tort were duplicative of the plaintiff’s claims for defamation and defendant’s conduct of making false statements was insufficient to constitute extreme and outrageous behavior. Allegations that defendant knowingly made false allegations to have the plaintiff arrested made out causes of action for false arrest and malicious prosecution. Matthaus v Hadjedj


Defamation   Renew  

Second Deptartment

The lower court providently denied plaintiff’s motion to renew the motion to dismiss as the newly discovered evidence would not have changed the outcome. Cullin v Lynch


Serious Injury   Expert Aff   Preexisting  

First

Defendant granted summary judgment on serious injury for cervical and lumbar spine on the opinions of orthopedist, neurologist and radiologist showing full range of motion and no signs of injury in the lumbar spine and pre-existing conditions in the cervical spine, including an x-ray report in the plaintiff’s medical records indicating multilevel disc disease and osteophytes. Plaintiff’s pain management doctor’s affirmation opining that the injuries were caused by the accident was conclusory as he failed to give a medical basis for how the accident caused the injury and his finding of significant loss of range of motion 3 years after the accident failed to address plaintiff’s initial treating doctor’s records which had found near-normal range of motion 2 months after the accident, which would be insufficient to make out a serious injury. Khanfour v Nayem


MVA   Rear End   Premature Motion  

Second Deptartment

Plaintiff granted summary judgment on certified police report and plaintiff’s testimony that he was slowing in traffic when he was struck in the rear by defendant’s vehicle. Defendant did not put an affidavit in opposition alleging different facts and failed to show what information was necessary to obtain by discovery when the facts of the accident were within the defendant’s own knowledge. Pierre v Demoura


Serious Injury   Vacate Default   Reasonable Excuse  

Second Deptartment

Plaintiff’s motion to vacate an order dismissing the action on serious injury grounds after an unopposed motion was denied where plaintiff failed to put forth a detailed reasonable excuse for waiting 7 months before initially moving to vacate and an additional 23 months after those papers were allegedly misplaced. Conclusory statements of law office failure do not constitute a sufficient reasonable excuse. Servilus v Walcott


Defamation   Statute of Limitations  

First

Plaintiff’s defamation action, commenced within 6 months after a federal judge amended a prior decision dismissing the defamation action without prejudice but dismissing a discrimination claim with prejudice to dismiss the discrimination claim without prejudice, was timely as the motion extended the time for the plaintiff to file a non discretionary appeal in federal court. The 6-month period to commence the defamation action ran from the decision on the motion to amend and not on the original decision even though no change was made regarding the defamation portion of the case. Arty v New York City Health & Hosps. Corp.


MVA   Consolidation   Venue  

First

Plaintiff’s motion to consolidate 2012 accident commenced in Queens with a 2010 accident commenced in Bronx denied as they involved separate accidents, defendants, injuries, and issues of fact. Suarez v Home Dynamix, LLC

IF YOU MUST READ
(3 summaries)

Defamation   Outrageous Conduct   Motion to Dismiss  

Second Deptartment

Defendants described plaintiff in a letter as “quixotic,” “self-absorbed,” “narcissistic,” “ungrateful,” and “delusional,” and referred to him a “paranoid pompous ass.”

Defendants’ motions to dismiss as to defamation per se causes of action granted as there was no allegation that the statements alleged the commission of a crime, that plaintiff suffered from a loathsome disease, or that the statements would injure the plaintiff in business or trade, as to the defamation causes of action because a reasonable reader would have considered them expressions of opinion which is not actionable rather than expressions of fact which would be actionable, as to the causes of action for intentional infliction of emotional harm as the complaint failed to allege extreme and outrageous conduct, and as to harassment as New York does not recognize a civil harassment cause of action. Scialdone v DeRosa


Serious Injury  

Second Deptartment

Defendants met their initial burden for summary judgment on serious injury but plaintiff raised an issue of fact in opposition. The court does not give the details of the proofs. Tsidulko v K & L Int’l Trading, Inc.


Serious Injury  

Second Deptartment

Defendant made out its entitlement to summary judgment on serious injury by competent medical evidence showing that shoulder injury did not meet the permanent consequential limitation or significant limitation categories and plaintiff failed to raise an issue in opposition. The court does not give the details of the proofs. Pierre v Motley

About Matt McMahon

Civil trials and appeals since 1984
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