Med Mal Sanctions
 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.
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MVA VTL §1104 Police NYC
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
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Court of Claims Motion to Dismiss Statute of Limitations
 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
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Asbestos Set Aside Verdict Directed Verdict
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.
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Defamation Malicious Prosecution Privilege Motion to Dismiss
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
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Premises Liab Slip/Trip Notice Create Condition Speculation Question of Fact
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
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MVA Bus Snow/Ice Slip/Trip Storm in Progress Duty
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.
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MVA Turning Vehicle Comparative Fault
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.
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MVA Traffic Signs Law of the Case Set Aside Verdict
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
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Labor Law §240 Labor Law §241 Labor Law §200
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
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Labor Law §241 Labor Law §200 Slip/Trip Industrial Code Last Inspection
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
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Premises Liab Notice Create Condition Directed Verdict
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
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Premises Liab Stairs Handrail Create Condition Notice
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
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Med Mal Informed Consent Accepted Practice Expert Aff Conclusory
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.
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MVA Rear End Untimely Reasonable Excuse Note of Issue Discovery
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.
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Prior Written Notice Pothole Law Notice of Claim Motion to Dismiss NYC
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
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Premises Liab
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
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Premises Liab Notice Create Condition Latent Defect
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
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Med Mal Accepted Practice Proximate Cause Expert Aff Renew
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
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Premises Liab Slip/Trip Sidewalk Create Condition § 7-210
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
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Premises Liab
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
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Defamation Emotional Harm Outrageous Conduct Malicious Prosecution Motion to Dismiss
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
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Defamation Renew
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
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Serious Injury Expert Aff Preexisting
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
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MVA Rear End Premature Motion
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
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Serious Injury Vacate Default Reasonable Excuse
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
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Defamation Statute of Limitations
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.
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MVA Consolidation Venue
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
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