March 7, 2023 | Vol. 355

(4 summaries)

Premises Liab   Motion to Dismiss   Service   Raised For First Time  

Second Department
NYCHA’s motion to dismiss action for failure to appear for a 50H hearing denied where its prior counsel sent a follow-up letter after claimant’s non-appearance adjourning the hearing without date and instructing claimant to call to reschedule as the prior counsel’s paralegal’s affidavit regarding service of the follow-up letter was submitted for the first time in reply and was not based on personal knowledge of the mailing or proof that standard office mailing procedures were followed. Without sufficient proof of mailing, presumption of receipt did not apply. Acevedo v Hope Gardens I, LLC    

Comment: The paralegal’s affidavit only stated her review of the file indicated it was mailed.

Venue   Reasonable Excuse   Untimely  

First Department
Fact that defendants first learned of plaintiff’s Westchester address when they received medical authorizations provided a reasonable excuse for not making a timely demand to change venue, but motion to change venue from Bronx to Westchester County denied where they brought the motion 20-days after service of the demand to change venue, 5-days after the 15-day time limit to make the motion. Gomez v Cypser    

Default Judgment   Compel Acceptance   Reasonable Excuse  

First Department
Lower court providently denied plaintiff’s motion for a default judgment and deemed defendants’ late Answer timely served where defendants’ carrier was liquidated before an Answer was served, Liquidation Bureau did not assign an attorney before the motion was marked submitted, defendants’ counsel attempted to obtain a stipulation withdrawing the motion to allow it to submit an Answer waving jurisdictional defenses, counsel served an Answer which plaintiff rejected as untimely, and all actions against and the carrier’s insureds were stayed at the time the motion was submitted. Morales v American United Transp., Inc.    

Labor Law §240   Labor Law §241   Labor Law §200   Control   Agent   Estoppel   Indemnity  

First Department
Defendants entitled to summary judgment dismissing Labor Law §§ 240(1), 241(6) claims of injured elevator mechanic hired and paid in cash by a non-supervisory employee of the defendant elevator contractor to help him finish work on a Sunday without the knowledge or authority of the defendants. Since the defendants did not authorize or control plaintiff’s work, the plaintiff was not a worker protected by §§ 240, 241, 200, and they could not be statutory agents of the owners.

Plaintiff’s claim that ECB decision finding worker who hired him was permitted to work on Sundays precluded defendants from arguing he was not permitted to work at the site not entitled to collateral estoppel as ECB decision did not address that identical issue.

Owner-defendants granted summary judgment on contractual indemnity claim against tenant where lease covered period of accident even though not signed until later and against elevator company where indemnity clause specifically referred to plaintiff’s accident even though signed later and it did not violate GOL §5-322.1 as the owner-defendants were not negligent. Garcia v 13 W. 38 LLC    

(15 summaries)

Negligent Supervision   Control   Notice   Intervening Cause   Foreseeability  

First Department
Afterschool program granted summary judgment where seventh grader kicked a plastic bottle on a basketball court that turned out to be a ‘Drano bomb,’ which exploded burning her legs, on her testimony that she saw boys on a different basketball court pouring a liquid into bottles before the incident as the boys’ actions were the intentional, spontaneous, and unforeseeable acts of persons over which the afterschool program had no control over and there was no evidence they had notice or reason to suspect the children were creating the dangerous condition. There was one dissent. S. G. v Harlem Vil. Academy Charter Sch.    

Highway Design   Qualified Immunity  

Second Department
County granted summary judgment dismissing wrongful death claims for 2-decedents where vehicle they were in went through a guardrail, down a steep slope, and struck a tree on proof the county’s design of the guardrail was part of a deliberative process and conformed with NYS DOT standards, entitling it to qualified immunity. Vays v County of Orange    

Labor Law §240   Gravity Risk   Falling Object  

Second Department
Contractor granted summary judgment dismissing Labor Law §240(1) claim where sheetrock on dolly tipped over onto plaintiff on proof the sheetrock was not being or required to be hoisted or secured for purposes of the work and was not an elevated gravity related risk protected by §240. Ortega v Fourtrax Contr. Corp.    

MVA   Graves Amendment   Hearsay   Uncertified Records   Venue   Comparative Fault  

First Department
Owner and lessor of truck that made illegal U-turn striking vehicle with plaintiff as a passenger failed to meet burden for summary judgment on Graves Amendment where plaintiff alleged negligent maintenance and documents submitted by those defendants were not certified or properly authenticated under the business records exception and the affiants lacked personal knowledge of the facts. Moving defendants could not show the truck was properly maintained or that the lessee was responsible to maintain the truck without the rental agreement.

Defendants’ motion to change venue from New York to Suffolk County denied as the owner’s and lessor’s principal place of business was in New York County. Testimony of plaintiff and non-party witness passenger in the same vehicle established plaintiff was an innocent seat-belted passenger, entitling plaintiff to dismissal of comparative fault defense. Muslar v Hall    

Labor Law §240   Renew   Reasonable Excuse  

First Department
Lower court providently granted defendant’s motion to renew its opposition to plaintiff’s motion for summary judgment on Labor Law §240(1) on proof the delay in obtaining the new information that plaintiff was injured at a different worksite not owned by the defendant was caused by refusal of the third-party defendants to comply with discovery and plaintiff’s employer to comply with information requests. The new information raised question of fact of where plaintiff was injured. Sanchez v Colorado Assoc., LLC    

Serious Injury   Causation   Degenerative   Preexisting   BP  

Second Department
Defendants met burden of showing one plaintiff’s shoulder and spine injuries were not serious under permanent consequential or significant limitation categories but plaintiff raised an issue in opposition. Defendants’ expert’s opinion the injuries were degenerative and preexisting did not establish they were not caused by the accident without addressing the BP allegations of exacerbation of degenerative and preexisting conditions. Defendant also failed to address the 90/180-day category allegations in the BP. Cuthill v Won Min Yun    

Serious Injury   Causation   Degenerative   Preexisting   BP  

Second Department
Defendants failed to submit competent medical evidence that plaintiffs’ injuries were not serious. The Court does not give the details of the proofs. Defendants’ failed to establish the injuries were not caused by the accident on their expert’s opinion they were degenerative without addressing the BP allegations of exacerbation of degenerative and preexisting conditions. Since the burden on causation never shifted to plaintiffs, they were not required to explain any gap in treatment.

One plaintiffs cross-motion for summary judgment establishing serious injury on 90/180-day category denied where issues of fact remained. Menjivar v Capers    

MVA   Emergency Doctrine  

Second Department
One defendant in consolidated action granted summary judgment on proof a vehicle was struck from behind, crossed over the double yellow line, and struck her vehicle within 1-second, establishing she was confronted with an emergency not of her own creation and had insufficient time to avoid the accident under the emergency doctrine. Lizares v Conklin    

MVA   Rear End   Nonnegligent Explanation  

Second Department
Plaintiff entitled to summary judgment on proof her vehicle was stopped for a traffic condition when rear-ended by defendants’ vehicle. Defendants’ claim plaintiff came to a sudden stop, in and of itself, did not provide a nonnegligent explanation or raise an issue of fact. Genao v Cassetta    

MVA   Rear End   Nonnegligent Explanation   Experts  

First Department
Owner/driver of vehicle with plaintiff as a passenger when it was hit in the rear granted summary judgment on that driver’s affidavit that he was slowing down in traffic when struck in the rear by codefendants’ vehicle, providing a nonnegligent explanation. Codefendants’ expert’s opinion that the lead vehicle stopped short insufficient to raise a question of fact as codefendants’ vehicle was required to maintain a safe distance in order to be able to stop without hitting the lead car. Obando v Espeut    

Premises Liab   Dangerous Condition   Trivial   Open/Obvious   Inherently Dangerous   Trivial   Survelliance Video  

Second Department
Supermarket’s cross-motion for summary judgment denied where evidence, including surveillance video, did not conclusively show floor mat plaintiff tripped on was not a dangerous condition, or that it was trivial or open/obvious and not inherently dangerous. Defendant also failed to show it did not have notice of a dangerous condition. Nicotra v Giunta’s Meat Farms, Inc.    

Amend Complaint   Estoppel  

First Department
Plaintiff’s motion to amend the Complaint to include MTA Long Island Railroad as a defendant denied where plaintiff failed to show the proposed defendant was united in interest with MTA and the record failed to show the proposed defendant should be equitably estopped from opposing the amendment. The Court does not give the details of the proofs. Gregory v Metropolitan Transp. Auth.    

Serious Injury   BP  

Second Department
Defendants met 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. Defendants also failed to eliminate all issues of fact on plaintiff’s 90/180-day category allegation in the BP. Khouni v Sidis    

MVA   There to be Seen   Question of Fact  

First Department
Plaintiff denied summary judgment where question remained of whether she could have seen defendants’ vehicle as she approached the intersection and avoided the accident. Gardiner v City of New York    

Products Liab   Attorney Disqualification   Appealable Order  

First Department
Plaintiff counsel’s appeal from order disqualifying it from representing any plaintiff in the diet drug litigation because a partner was to be called as a witness dismissed where the First Department previously affirmed the order and both the First Department and Court of Appeals denied leave to appeal. Applehole v Wyeth Ayerst Labs.    

(1 summaries)

Serious Injury   Causation  

Second Department
Defendant failed to meet burden for summary judgment on serious injury without competent medical evidence that plaintiff’s spinal and shoulder injuries were not serious injuries or not caused by the accident. The Court does not give the details of the proofs. Ceac v Baby Joseph    

About Matt McMahon

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