May 11, 2021 | Vol. 261


MUST READS
(4 summaries)
NOTEWORTHYIF YOU MUST READ



MVA   Set Aside Verdict   Directed Verdict   Pain/Suffering   Materially Deviates   Serious Injury  

First Department
Motion to set aside verdict awarding $750,000/$0 past/future pain/suffering, $0/$0 past/future lost earnings, and $250,000 future medical expenses with 50%/50% plaintiff/defendant liability set aside and new trial ordered on issue of damages. Apportionment of liability reached on fair interpretation of evidence where defendant bus-driver made right hand turn in front of plaintiff’s motorized bike and defendant claimed plaintiff was going too fast and did not slow down when he saw bus turning.

Past pain/suffering award materially deviated from reasonable compensation where plaintiff sustained TBI (post-concussion syndrome ) with memory, cognitive, mood, and concentration deficits and headaches, full thickness rotator cuff tear requiring surgery, and herniated cervical discs with significant limited ROM that will require future surgery. Award of no future pain/suffering was inconsistent with award of future medical expenses, against weight of evidence, and materially deviated from reasonable compensation. Award of no past/future lost earning was against weight of evidence that showed prior work, current unemployment, and doctors’ testimony plaintiff is permanently unemployable.

Defendants’ motion to set aside verdict and for judgment as a matter of law on serious injury and claim past pain/suffering award materially deviated from fair compensation denied. Scott v Posas    


Comment: The First Department used new abbreviations: PP&S for past pain and suffering; FP&S for future pain and suffering; and FME for future medical expenses.

Labor Law §240   Labor Law §241   Labor Law §200   Premises Liab   Notice   Control   Sole Cause  

Second Department
Building owner denied summary judgement of Labor Law §240(1) claim where 500 lb. division plate plaintiff and coworkers were reinstalling in AC unit struck a condenser head that fell on plaintiff’s leg as their submissions showed plaintiff was told to do a temporary repair of plate that would be ultimately repaired by different company, establishing he was engaged in a repair protected by §240, not routine maintenance.

Owner granted summary judgment dismissing Labor Law §241(6) claim as that section does not include repair as protected activity and construction work defined under industrial code §23-1.4(b)(13) requires the work “must have affected the structural integrity of the building or structure or have been an integral part of the construction of a building or structure,” which did not apply. Owner denied summary judgment of Labor Law §200 and negligence claims where plaintiff alleged both means/methods of work and dangerous condition and owner failed to show it lacked constructive notice the condenser head was unsecured where it was removed 1-or-2 weeks earlier and the chain securing it was removed, including whether it removed the chain, inspected the area, or the condition was latent. It also failed to show plaintiff was the sole cause of the accident. Cantalupo v Arco Plumbing & Heating, Inc.    



Lien   Settlement  

Second Department
Nonparty Horizon Blue Cross Blue Shield’s lien of $108,008.10 for infant-plaintiff’s medical expenses, not covered by other insurance, from MVA was valid and not precluded by GOL §5-335 which is preempted by ERISA where it was a self-funded plan, not an insurance company as it did not purchase insurance from an insurance company, and plan provided for lien on any tort recovery and rejected any reduction by the ‘make whole’ doctrine or other equitable defenses. Infant compromise order declaring lien unenforceable reversed and remanded to incorporate lien. David v David    


Wrongful Death   Settlement  

First Department
Surrogate court decree awarding 50% of wrongful death settlement to objectant and splitting remaining 50% equally among 3-distributees without a hearing reversed and remanded for a hearing on each distributee’s pecuniary loss. Matter of Dixson    

NOTEWORTHY
(11 summaries)
MUST READSIF YOU MUST READ

Malpractice   Vicarious Liab  

Second Department
Plaintiff granted summary judgment on issue of hospital’s vicarious liability for independent surgeon where plaintiff’s decedent entered hospital through emergency room, did not request treatment by a specific physician, and was assigned surgeon by hospital. Goffredo v St. Luke    


Labor Law §240   Labor Law §241   Agent   Espinal   Control   Question of Fact   Workers Comp Defense   Indemnity  

First Department
Theater scene construction company entitled to summary judgment of Labor Law §§ 240(1) and 200 claims where it was not a statutory agent as it had no authority to control plaintiff’s work and §200 claim was based on means and methods of work that it did not control. Issue remained of whether its alteration of ladder by gluing a top rung at direction of co-defendant-production company launched an instrumentality of harm under Espinal where it claimed it was told the ladder that would not be climbed by the actors.

Production company granted summary judgment on worker compensation exclusivity clause on proof plaintiff was its special employee as they hired him and directed his work, but not the cross claim for contractual indemnity. Mullins v Center Line Studios, Inc.    



Labor Law §200   Labor Law §241   Elevator   Industrial Code   Workers Comp Defense  

First Department
Elevator worker whose fingers were crushed by falling counterweight he and coworkers were installing was supervised solely by his employer and fact employer reported to GC showed only GC’s general supervisory authority, insufficient for liability under Labor Law §200 claim which was dismissed against owner, GC, and employer. Industrial code §23-2.5(b) subsection on platform height not applicable as it would not have prevented counterweight from falling, and on partition not inapplicable where it was not necessary and would have made it impossible to install counterweight. Labor Law §241(6) claim dismissed. Moldaver v Pref 34 E. 51st St., LLC    


1983 Action   Motion to Dismiss   Discovery   Conclusory   NYC  

First Department
Neither plaintiff’s conclusory allegation that NYPD had ‘policies, practice, procedure, and customs’ that deprived plaintiff of her constitutional rights where sexually assaulted, nor documents recommending CCRB have jurisdiction of sexual misconduct complaints on premise NYPD’s polices were deficient were sufficient to oppose NYC’s motion to dismiss on Monell standard as they did not identify any official policy that led to the deprivation of a constitutional right. Plaintiff’s motion to compel discovery under CPLR §3124 denied for failure to show further discovery would make out a proper claim. Sifonte v City of New York    


Premises Liab   Wet Floor   Create Condition   Last Inspection   Unknown Cause  

Second Department
Catering hall owner’s testimony dance floor would be cleaned by workers as needed, that he periodically went into hall during party where plaintiff slipped on wet dance floor, and would look at dance floor but it was packed with people dancing with drinks in their hands, and that no one would stop or warn guests not to bring drinks on the floor, and plaintiff’s testimony, submitted by defendant, that he was slipping on wet floor where dancers had drinks the entire time, failed to meet burden for summary judgment and established plaintiff could identify cause of his fall. Ellis v Sirico    


Labor Law §240   Scaffold   NYC  

First Department
Plaintiff entitled to summary judgment on his testimony he fell through scaffold when unsecured plank shifted or slipped. Defendant’s claim plaintiff’s version was impossible as hole would be too small for him to fall rejected where plaintiff only estimated dimensions. Absence of other witnesses and coworkers’ statements did not raise issue where they stated area was clean of debris without addressing whether planks were secured, and plaintiff and coworker stated workers were directed to secure planks after plaintiff’s fall. Dyszkiewicz v City of New York    


Vacate Default   Reasonable Excuse   Meritorious Defense   Premature Motion  

First Department
Defendant’s motion to vacate 3-year-old order denying summary judgment for failure to appear at oral argument granted on proof attorney was not notified of argument and moving-defendant’s affidavits submitted on summary judgment motion showed it did no work at accident site, but motion denied as premature where plaintiff and co-defendant initially established discovery could reveal essential facts to oppose motion and no discovery had been completed at that time. Velasquez v Consolidated Edison Co. of N.Y. Inc.    


Premises Liab   Snow/Ice   Notice   Last Inspection   Indemnity  

Second Department
UPS failed to meet burden of showing plaintiff’s fall on ice at its facility was not caused by snow removal efforts 3-days earlier where it offered no proof of any inspection between snow removal and accident, leaving questions of causation and constructive notice. Questions of liability precluded summary judgment of indemnity claims between UPS and plaintiff’s employer. Anderson v United Parcel Serv., Inc.    


Premises Liab   Wet Floor   Notice  

First Department
Building granted summary judgment on plaintiff’s testimony it was sunny, started raining only 5-minutes before she entered building, and she did not see water on lobby floor until after she fell and building manager’s affidavit that search showed only one complaint of someone falling after stepping off a mat 1-year before plaintiff fall, establishing they lacked constructive notice of the condition. General awareness that floor can become wet during inclement weather does not raise an issue of fact. Barreto v 750 Third Owner, LLC    


MVA   Turning Vehicle   Sole Cause   Speculation  

First Department
Ambulance granted summary judgment on ambulance driver’s undisputed testimony he entered intersection with light, stayed entirely within his lane, and plaintiff’s car made a sudden left-hand turn in front of him. Plaintiff’s claim ambulance may have been a cause of accident by entering intersection when unsafe was speculation and contradicted her testimony showing it was unsafe for her to make the left-hand turn. Palau v Pagan    


Pothole Law   Duty   NYC  

Second Department
Transit defendants granted summary judgment on proof they did not own, occupy, control, or make special use of roadway where plaintiff tripped on uneven surface, establishing they owed no duty to plaintiff as roadway maintenance is responsibility of NYC. Jeffrey v City of New York    

IF YOU MUST READ
(1 summaries)
MUST READSNOTEWORTHY

Premises Liab   Open/Obvious   Inherently Dangerous  

Second Department
Defendants’ proof that cord or microphone wire plaintiff tripped over at event was open/obvious insufficient for summary judgment without proof it was not inherently dangerous. The Court does not give the details of proofs. Franzo v Town of Hempstead    

About Matt McMahon

Civil trials and appeals since 1984
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