May 10, 2022 | Vol. 312

(5 summaries)

Child Victims Act   Motion to Dismiss   Statute of Limitations  

Second Department
In a case of first impression, the Second Department granted defendant-diocese’s motion to dismiss on statute of limitations finding the revival provision of CPLR §214-g extending the statute of limitations for persons sexually abused before turning 18, included as part of the remedial Child Victims Act, did not apply to persons who were sexually abused outside of NYS even if the NY-defendant diocese was negligent in transferring the abusing priest to the Florida parish with knowledge of his propensity to abuse children, as the legislative history of the Child Victims Act showed a desire to protect children and provide justice for abuse within NYS, revival statutes are narrowly construed, and it is generally presumed that laws of the state are not intended to have extraterritorial application. While the Child Victims Act is a remedial statute, CPLR §214-g is a revival statute and nothing in §214-G prohibits application of the borrowing provisions of CPLR §202 that would apply Florida’s 4-year statute of limitations. S.H. v Diocese of Brooklyn    

Labor Law §240   Labor Law §241   Labor Law §200   Sole Cause   Recalcitrant Worker   Experts   Indemnity  

First Department
Worker who fell after hitting his head on the shower-curtain rod he was installing in a bathroom with no artificial light while he stood on the bathtub rim because he couldn’t use his A-frame ladder due to boxes on the bathroom floor granted summary judgment on Labor Law §240(1) against owner and GC as the fall was the direct result of a gravity risk, the bathtub rim was the functional equivalent of a ladder or scaffold, and plaintiff testified he had to stand on the rim for leverage to tighten screws with an allen wrench.

Defendants’ biomechanical expert’s amended opinion that plaintiff would have sufficient leverage to use the allen wrench based on the expert’s tests of screwing mounting lugs into a wood plank did not raise an issue as it did not accurately recreate the condition of screwing lugs into a tiled wall or discuss the difference in these mediums. Foreman’s affidavit that plaintiff knew workers could perform the task while standing on the ground or inside the tub was a failed attempt to reframe comparative fault into a sole cause defense as a worker cannot be faulted for not using ineffective safety devices where defendant failed to provide effective safety devices and there was no proof plaintiff refused to obey a direct and immediate instruction.

Owner and GC could not be liable for floor obstructions where they did not supervise or control plaintiff’s work but questions remained of whether they had constructive notice of the inadequate lighting. Electrical subcontractor denied summary judgment on Labor Law §§ 200 and 241(6) for questions of whether it was responsible for providing adequate lighting which also raised issues on the contractual indemnity claims against them. Indemnity agreement admissible without foundation where subcontractor did not object below. The 2-partial dissenters would have found issues on the applicability of §240(1). Vitucci v Durst Pyramid LLC    

Malpractice   Set Aside Verdict   Directed Verdict   Accepted Practice   Experts   Question of Fact  

Second Department
Lower court providently set aside verdict finding defendants did not depart from accepted practice as against weight of evidence where testimony of treating-defendant and her expert established defendant departed from accepted practice by failing to take a thorough history of decedent’s back pain or consider differential diagnoses other than musculoskeletal injury, plaintiff’s expert opined abnormally high heart rate with abnormally low blood pressure required further testing to rule out life-threatening conditions, and defendants’ expert did not opine on relevance of these divergent values. Under those facts, the jury’s verdict could not have been reached on a reasonable interpretation of the evidence. The lower court providently denied plaintiff judgment as matter of law as questions of fact remained which favors a new trial rather than judgment as a matter of law. Decedent died of septic shock from an acute pyelonephritis 2-days after being discharged with a diagnosis of back sprain and prescriptions for ibuprofen and Flexeril. Yac v County of Suffolk    

Set Aside Verdict   Pain/Suffering   Materially Deviates   Causation  

Second Department
Verdict awarding $10,000/$40,000 past/future pain/suffering where plaintiff sustained tears to her rotator cuff, medial and lateral menisci, each requiring surgery, and spinal surgery 2-years after the accident materially deviated from reasonable compensation and set aside unless defendant stipulated to increase the awards to $50,000/$75,500. The jury could reasonably find the rotator cuff and menisci tears and surgeries caused by the accident but that the spinal surgery was necessitated by degenerative changes instead of the accident. Award of $15,000 future medical expenses unaltered where there was conflicting evidence for jury to base its decision. Lara v Arevalo    

Premises Liab   Notice   Res Ipsa Loquitor  

First Department
Plaintiff and defendant each failed to meet their burdens for summary judgment under common law negligence and res ipsa loquitor where living room ceiling collapsed on plaintiff. Issues of fact of whether defendants could be imputed to have constructive notice remained on plaintiff’s common law negligence claim where defendants did not have a program for inspecting the ceiling which had not been inspected for decades.

Plaintiff raised an issue on res ipsa loquitor as ceilings do not normally fall absent negligence and proof defendants had exclusive control of building structure and plaintiff did not contribute to the accident. Notice is imputed under the doctrine. But her proof did not meet the rare instance where it would entitle her to summary judgment. Defendants’ evidence that ceiling was not maintained during tenancy raised an issue but failed to meet burden for summary judgment where neither party showed what caused the ceiling to fall. Maroonick v Rae Realty, LLC    

(19 summaries)

Malpractice   Respondeat Superior  

Second Department
Plaintiffs granted summary judgment on issue of respondeat superior for actions of chiropractor where school district listed the chiropractor as part of its “’medical personnel’ at the district’s football games,” in a discovery response and counsel’s unsworn statement was insufficient to defeat summary judgment as an attempt to retract the statement. B. E. M. v Warwick Val. Cent. Sch. Dist.    

Comment: See companion cases on amended BPs and sanctions below.

Malpractice   Amend BP   CPLR § 3126   Sanctions  

Second Department
Where HS junior injured his back during a preseason drill was treated by chiropractor and played entire season with pain, later requiring spinal surgery, plaintiffs’ motion to serve 2nd and 3rd Amended BPs to include violations of school’s rules and regulations on the school district and chiropractor granted to the extent of allowing the amendments as to chiropractor except as to rules and regulations not cited in the previous supplemental BP which alleged rules and regulation violations of the chiropractor. Chiropractor waved any challenge to the SBP without moving to strike.

Plaintiff was sanctioned $2,500 payable to defendants. B. E. M. v Warwick Val. Cent. Sch. Dist.    

Comment: The Court modified the sanctions to have the $2,500 payable to the Client Protection fund not the defendants, as under required under 22 NYCRR 130-1.3. B. E. M. v Warwick Val. Cent. Sch. Dist. See companion case on respondeat superior above.

Discovery   Strike Answer   Preclusion   Good Faith Aff   Willful/Contumacious   Waiver  

First Department
Defendant’s motion for a protective order blocking further EBTs denied where original witnesses were not present when utility box that caused plaintiff’s injury was installed. Plaintiff showed defendant’s employee she specified for an additional EBT may have relevant information but motion to compel or strike defendant’s Answer was fatally flawed where it did not detail efforts to resolve the issue after a different defendant witness was deposed. Defendant’s conduct prior to the additional witness being deposed was so egregious as to release plaintiff’s counsel of having to engage with counsel prior to making a motion but the parties’ agreement to reassess if the specified employee’s EBT was necessary after the additional witness was deposed required plaintiff’s counsel to attempt to resolve the issue before moving and defendant’s conduct could then not be deemed willful/contumacious. Defendant waived plaintiff’s further EBT and IME/DME by its unreasonable delay and its argument that delay was caused by COVID rejected where it had medical authorizations months before and after COVID began. Amato v Verizon N.Y. Inc.    

MVA   Amend Complaint  

Second Department
While no evidentiary showing is necessary to amend a Complaint under CPLR §3025(b), the lower court providently denied amendment to add 2-individual defendants as devoid of merit where it failed to allege facts to pierce the corporate veil. Even if it alleged facts sufficient to show complete dominion over the corporation, it did not allege facts to show the complete dominion “led to inequity, fraud or malfeasance.” Lower court granted portion of plaintiff’s motion to add corporate defendant. Johnson v Ortiz Transp., LLC    

Comment: See companion decision below.

Discovery   Strike Answer   Preclusion   Negative Inference   Willful/Contumacious  

Second Department
Lower court providently denied plaintiff’s motion to strike defendants’ Answer, preclude defendants from offering evidence at trial, or to grant an adverse inference for failure to provide proper responses to discovery demands where the court ordered defendants to pay for the cost of additional depositions necessitated by documents not initially disclosed and where plaintiff failed to show defendant’s actions were willful/contumacious by repeated failures without adequate explanations. Single failure to comply with order directing defendant depositions on specific dates insufficient to show a pattern of willful/contumacious conduct. Johnson v Ortiz Transp., LLC    

Comment: See companion decision above

Sepulcher   Motion to Dismiss   Malpractice   Causation   Speculation  

Second Department
Plaintiff failed to state a cause of action for violation of the common-law right of sepulcher where he alleged only that decedent’s organs and tissues were retained from the autopsy and not that the hospital did not return the decedent’s body which is the gravamen of a sepulcher cause of action. Consent form signed by plaintiff, decedent’s father, utterly refuted claim autopsy was performed without consent where boxes for “full autopsy and “no restrictions” were checked and box for return of organs was not checked. Claim that defendants made verbal representations contrary to the form rejected as form must be generally interpreted under contract principles and deemed to supersede any verbal representations. Marinelli v New York Methodist Hosp.    

Comment: Related legal malpractice action alleging that firm engaged to prosecute medical malpractice action for death of infant during birth process did not take steps to recover the infant’s organs despite representations they were pursuing their return dismissed as return of organs was at the hospital’s discretion under the signed autopsy consent form and allegations the hospital would have returned the organs if the law firm took certain steps were speculative leaving the Complaint devoid of an ascertainable damage allegation. Contract claim dismissed as duplicative of malpractice claim. Marinelli v Sullivan Papain Block McGrath & Cannavo, P.C..

Labor Law §240   Sole Cause  

First Department
Worker injured while power washing HVAC chillers granted summary judgment on Labor Law §240(1) as work fit within definition of “cleaning” where it was not part of ordinary care on a recurring schedule, involved elevation risks greater than for domestic cleaning, and required specialized equipment. Defendant’s argument plaintiff was sole cause of accident for violating employer’s policy not to use equipment from other trades rejected without evidence plaintiff was ever informed of that policy. Mazzarisi v New York Socy. for the Relief of the Ruptured & Crippled    

MVA   Reargument   Emergency Doctrine  

Second Department
On her motion for reargument, plaintiff failed to point to any issue of fact or law that lower court misunderstood or overlooked and lower court’s original decision granting defendant-driver of vehicle with plaintiff as passenger summary judgment based on his testimony and dash cam video showing he acted reasonably in light of an emergency by breaking and swerving when another vehicle suddenly cut him off reinstated. Peretz v Zhenjun Xu    

Construction Liab.   Sidewalk   Create Condition  

Second Department
Contractor denied summary judgment on its admission they placed 2 x 4 in concrete which would have been removed after concrete set and that sloping sidewalk which hid hole in concrete from side plaintiff approached was intentionally created due to height differential between concrete slabs. Owner’s acceptance of contractor’s work did not relieve contractor of liability for creating dangerous condition. Pizzolorusso v Metro Mech., LLC    

MVA   Special Duty   Governmental Function   NYC  

First Department
NYC and traffic enforcement agent who directed plaintiff into intersection where he was hit granted summary judgment as directing traffic is a discretionary governmental function and act of directing plaintiff into intersection did not establish a special duty to plaintiff to act on his behalf or show plaintiff relied on such promise, especially where plaintiff made no eye contact with the traffic agent. Mendez v City of New York    

MVA   Turning Vehicle   There to be Seen   Sole Cause  

Second Department
Defendant denied summary judgment even though plaintiff failed to yield the right-of-way while making a left-hand turn on defendant’s testimony he was traveling 25 mph in the right lane on a clear day with no obstructions and did not see plaintiff’s vehicle or realize there was an accident until he heard the sound and he could not tell if his or the plaintiff’s vehicle entered the intersection first. Blake v Francis    

Labor Law §240   Safety Devices   Sole Cause  

First Department
Worker who fell through roof opening during renovation project while moving a skylight cover with a coworker granted summary judgment on Labor Law §240(1) on proof he was not provided with a safety device to prevent against the elevated risk. Plaintiff was not required to provide expert opinion of required safety devices. Defendant’s sole cause argument rejected where plaintiff was moving the skylight at the direction of his supervisor and a worker cannot be the sole proximate cause where there is a §240 violation. Cazho v Urban Bldrs. Group, Inc.    

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

Second Department
Scaffolding subcontractor granted summary judgment dismissing Labor Law §§ 240(1) and 241(6) claims of GC’s worker who fell when a plank broke as he descended onto a wooden walkway since subcontractor was not an owner or contractor nor was it an owner agent where it did not have employees on site or inspect the scaffold after it was installed even though it had a right to reenter and inspect. Condominium Board granted summary judgment dismissing Labor Law § 200 and negligence claims as it did not exercise supervision or control over GC’s or subcontractor’s work and accident arose from means and methods of work.

Board’s contract with GC admissible where no one objected below and both parties relied on it. Indemnity agreement did not violate GOL § 5-322.1 where limited to negligent acts/omissions of GC, its subcontractors, and their employees but Board granted only conditional summary judgment on contractual indemnity pending a determination of negligence of GC and its subcontractor. Guevara-Ayala v Trump Palace/Parc LLC    

Premises Liab   Snow/Ice   Storm in Progress   Experts  

Second Department
Hospital granted summary judgment for claim of slip and fall on ice in guest parking lot on meteorological expert and certified climatological records showing storm ended less than 2-hours before accident which was insufficient period of time to discover and correct the condition. Fitzsimons v North Shore Univ. Hosp.    

Premises Liab   Notice   Experts   Speculation   Untimely   Reasonable Excuse  

First Department
Plaintiff failed to meet burden of showing restaurant had notice that wood panel would fall and strike a patron where her expert’s opinion that panel fell because it was affixed with a wood screw was speculative based solely on a photograph with a wood screw that “evidently” was used to secure the panel and there were no photographs showing how the panel was secured or showing a screw or screw-hole on the panel. Plaintiff also failed to show a reasonable inspection would have revealed the dangerous condition.

Plaintiff’s motion submitted shortly after the deadline for summary judgment motions deemed timely based on death of managing partner who was handling the case. Salinas v Dorrian    

Premises Liab   Create Condition   Notice  

Second Department
Landowner granted summary judgment on plaintiff’s testimony he did not see ice when he walked up ramp 30-minutes before he fell on ice while walking backwards on ramp with cart, establishing defendant did not create or have adequate time to notice or remedy the icy condition. Lower court’s finding accident was caused by striking cart on railing instead of ice was not supported by surveillance video. Louis-Juste v Fisher Park Lane Owner, LLC    

Serious Injury   Grave Injury   Reargument   Appealable Order  

Second Department
Ryder Truck Rental failed to meet burden for summary judgment on Graves Amendment without proof it did not negligently maintain the truck. Truck leasee and driver failed to meet burden for summary judgment on serious injury without proof plaintiff did not sustain a fracture and Court need not look at any other serious injury claims. Lower court dismissed 90/180-day category. Vaccaro v Francolopez    

Comment: Appeal from motion to reargue dismissed as the decision denied reargument rather than grant reargument and adhere to original decision as defendant claimed and no appeal lies from denial of reargument. Vaccaro v Francolopez.

Premises Liab   Stairs   Unknown Cause   Notice   Last Inspection  

Second Department
Defendants failed to meet burden for summary judgment on claim plaintiff could not identify the cause of her fall on staircase joining 2-residential buildings as her testimony that she fell because her foot got caught on a step with a broken tread did not prima facie show she could not identify the cause of her fall. Defendants also failed to show they lacked constructive notice without proof of when stairs were last inspected. Weiss v Bay Club    

Default Judgment   Personal Juridiction   Service   Untimely  

First Department
Pro se plaintiff’s motions for default judgment denied without prejudice to renew upon a corrected affidavit of service where the affidavit attached had service being accomplished 11-months before the pleadings were dated and plaintiff’s averment that the date of service mistakenly listed 2020 instead of 2021 was more than a mere error as the date of service on the affidavit was more than the 1-year for a default motion to be brought under CPLR §3215(c). Although lack of a nonmilitary affidavit is not jurisdictional, it is required by federal law and should have been included to state the defendant was not in the military or that military status could not be determined. Matter of Petre v Lucia    

(1 summaries)

Labor Law §240   Vacate Default   Reasonable Excuse   Prejudice   Meritorious Action  

First Department
Plaintiff’s motion to vacate order granting unopposed default judgment on Labor Law §240(1) claim granted where plaintiff set forth a reasonable excuse for not opposing the motion, plaintiff’s deposition testimony established a meritorious action, and there was no evidence of an intent to delay or that defendant was prejudiced by the delay. The Court does not give the details of the proofs. Winters v Atlantic Dev. Corp.    

About Matt McMahon

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