May 12, 2020 | Vol. 210

(5 summaries)

50-H   IME/DME   Raised For First Time   NYC  

Court of Appeals
Coplaintiffs, driver and passenger, appeared for consecutively scheduled 50-H hearings but refused to go forward unless each was allowed to sit in on the other’s hearing claiming section of GML §50-E providing “such relative or other person as he or she may elect” may be present applied to oral examinations. Reviewing standards for statutory interpretation including “last antecedent rule” requiring clauses be interpreted with the language immediately preceding them, the Court affirmed the section applied solely to physical examinations not oral examinations upholding summary judgment for defendants on plaintiff’s failure to meet precondition of attending 50-H hearing. Plaintiffs’ request for belated 50-H hearings not considered where not requested prior to the appeal to the Court of Appeals. Colon v Martin

Comment: The Second Department decision was reported in Vol 152.

Motion to Dismiss   Personal Juridiction   Conclusory  

Second Department
Non-domiciliary manufacture’s motion to dismiss on personal jurisdiction denied where it did not dispute first 3-elements of long arm jurisdiction (tortious act outside state; cause of action arose from that act; injury to person or property in the state) and its website showed expectation its activity will have direct consequences in NY (fourth element). Conclusory affidavit claiming no substantial revenues in NY and only 1.5% international salesfailed to meet burden on last element requiring showing of no substantial sales interstate/internationally. Action was permissible under NY’s statute and met due process standard of minimal contacts where website showed it marked products directly nationwide and through at least one store in NY. Sacco v Reel-O-Matic, Inc.

MVA   Gen. Obl. L. § 15-108(a)   Amend Answer   Untimely   Prejudice  

First Department
Judgment for plaintiff on jury verdict affirmed and non-settling defendants’ motion to amend Answer to include set off defense raised for the first time after the verdict denied, even though it would have eliminated all damages, where delay in seeking to assert defense prejudiced plaintiff in incurring costs of trial based on belief it would not be raised, and altered settlement negotiations. Bradford v Chowdhury

Discovery   Subpoena   FOIL  

Second Department
Pointing out that discovery under CPLR article 31 is separate and not limited by FOIL discovery rules, the court upheld denial of Suffolk County’s motion to quash 2-subpoenas and granted plaintiffs’ cross motion to compel compliance, with restrictions, of 911 calls made by plaintiff’s decedent on date of her disappearance and all 911 calls and analysis involving her disappearance finding County’s argument it would interfere with ongoing homicide investigation 8-years after her death did not outweigh plaintiffs’ needs for the material. Estate of Gilbert v Hackett

False Arrest   Battery   Vacate Jud   Note of Issue   Preclusion   Admissibility   Prejudice   Jury Charge   NYC  

First Department
Judgment on defense verdict finding arrest lawful after plaintiff touched officer as boyfriend was being arrested while she, boyfriend, and boyfriend’s sister tried to interfere with protesters outside her store upheld, even though battery charge should not have been dismissed prior to summation and excessive force held in abeyance until after verdict, as lawful arrest negated battery charge and evidence showed no excessive force as a matter of law.

Plaintiff failed to authenticate medical records through testimony of custodian after surgical center was sold. Filing Note of Issue waived further discovery precluding plaintiff’s request to strike Answer or preclude defendants’ witnesses. Officers’ disciplinary files precluded where plaintiff did not request required in camera review and could not show relevancy since NYC admitted scope of duty. There was no record plaintiff requested and was denied interested witness charge and trial court properly determined missing witness was better addressed in summation than charge. Hui-Lin Wu v City of New York

(18 summaries)

Vacate Default   Reasonable Excuse   Meritorious Action   NYC  

Second Department
Plaintiff’s motion to vacate default in opposing defendants’ motion for summary judgment on serious injury denied where attorney requested second adjournment 2-weeks before adjourn date, was told request had to be made at the calendar call but failed to show on the return date. Claim of clerical error for missing return date not supported by detailed, credible explanation of default and belied by plaintiff’s call 2-weeks earlier for an adjournment finding default due to willful neglect, not law office failure. Attorney’s claim she could not oppose because waiting for expert affirmation did not provide reasonable excuse for not appearing on return date and question of meritorious opposition mute without reasonable excuse. Deep v City of New York

Vacate Default   Service   Reasonable Excuse   Meritorious Action  

First Department
Defendant president’s affidavit claiming non-receipt of Summons and Complaint with motion for default mailed to his address did not rebut plaintiff’s proof of mailing especially where president admitted receiving default judgment at same address, failing to establish company did not receive notice of the action in time to defend under CPLR §317 and failure to maintain address with Secretary of State was not a reasonable excuse under CPLR §5015(a)(1) and insufficient to vacate default even if plaintiff’s affidavit of merit did not meet the standard of CPLR §3215(f). Frazier v 811 E. 178th St. Realty Corp.

Med Mal   Vacate Default   Reasonable Excuse  

Second Department
Denial of plaintiff’s motion to vacate summary judgment entered on default reversed where parties agreed to further adjournment, part rules required adjournment requests be in person on return date, judge denied request for any adjournment granting summary judgment on return date, plaintiff filed opposition papers shortly after return date, before order entered, and timely moved to vacate default. Part judge not required to grant stipulated adjournment length but should have granted a short adjournment. Hamilton v New York Hosp. Queens

Premises Liab   Labor Law §240   Labor Law §241   Labor Law §200   Homeowner Exception   Control   Create Condition   Notice  

Second Department
Owners of single family vacation house granted summary judgment of Labor Law §§240(1) and 241(6) on homeowner’s exception by showing they did not direct or control work, requests to protect objects within house and provide information to their carrier did not constitute controlling means and methods of work. Defendants granted summary judgment of Labor Law §200 and negligence claims on proof they did not control means and methods of plaintiff’s water restoration work where he stood on floor where pipe had burst and fell through to next floor and that they did not create the condition or have actual or constructive notice. Salgado v Rubin

Causation   Intervening Cause   Foreseeability  

Second Department
Defendants granted summary judgment where plaintiff, injured in car accident, treated at hospital, and transferred to nursing home, attempted to go to the bathroom after no one responded to her calls for help for over an hour, transferring herself to a wheelchair and unlocking the wheelchair, against direct instructions not to do so, as any negligence, including failure to timely respond to calls, could not be considered a foreseeable consequence of defendant’s negligence. Kaziyeva v Majeski

Labor Law §200   Premises Liab   Control   Causation   Indemnity  

First Department
Defendants’ motion to dismiss Labor Law §200 and negligent claims denied where questions of fact remained on whether heavy metal door stored in unlit closet that fell on plaintiff was a premises defect or result of means and methods of work. Negligence of subcontractor whose employees stored the door in the unlit closet was not so remote as to sever causation and it was not relieved of duty to plaintiff because plaintiff told general contractor what he was doing. Summary judgment on common law and contractual indemnity claims denied for questions of fact. Cackett v Gladden Props., LLC

MVA   VTL §1104   Police   NYC  

Second Department
NYC and police officer granted summary judgment where RMP with plaintiff-police officer as passenger collided with another vehicle while making a left turn pursuing car that went through red light where under VTL §1104(e) liability could only attach if RMP was driven with reckless disregard defined as intentionally committing “an act of an unreasonable character, while disregarding a known or obvious risk that was so great as to make it highly probable that harm would follow.” Wong v City of New York

Premises Liab   Building Code   Expert Aff   Speculation  

First Department
Defendants denied summary judgment where they failed to show that administrative code §27-809 requiring vertical heating pipe in plaintiff’s boyfriend’s bathroom she fell against after losing consciousness sustaining a burn be insulated did not apply based on property managers affidavit which did not conclusively show 2011 alterations did not exceed 30% of building value and expert’s opinion that heating system complied with all building codes had no probative value where expert did not inspect heating system, records, or accident location. Zabawa v Sky Mgt. Corp.

Med Mal   Causation   Expert Aff   Speculation   Conclusory  

Second Department
Doctor and urgent care center where plaintiff presented with leg pain met burden for summary judgment on causation with 2-detailed expert affirmations but plaintiff’s expert raised issue of fact on opinion that failure to order appropriate arterial testing, or refer plaintiff to ER or vascular surgeon was a proximate cause of leg amputation after plaintiff developed gangrene. Joyner v Middletown Med., P.C.

MVA   Rear End   Nonnegligent Explanation   Raised For First Time  

Second Department
Motorist struck in rear while making right-hand turn met burden for summary judgment on certified police report with defendant’s statement that he took his eyes off road under VTL §1129(a) and defendants failed to offer nonnegligent explanation. Defendants argument regarding admissibility of plaintiff’s 50-H transcript not properly before court where raised for first time on appeal. Hasan v City of New York

MVA   Pedestrian   Nonnegligent Explanation   Feigned Issue  

First Department
Plaintiff granted summary judgment on liability on her affidavit that she was crossing in crosswalk with light when defendant made left-hand turn hitting her. Defendant’s affidavit contradicting statements to police in police report and MV104 raised only feigned issues and did not allege plaintiff was not in crosswalk or crossing with light that would have been necessary to raise nonnegligent explanation. Plaintiff’s affidavit was based on personal knowledge despite claims of cognitive deficit where she was able to speak with defendant and police after accident. Curl v Schiffman

MVA   Rear End   Nonnegligent Explanation  

Second Department
Plaintiff granted summary judgment on proof she was stopped at light for 10-20 seconds before struck in the rear by defendant and defendant failed to offer nonnegligent explanation. Hall v Powell

Building Security   Foreseeability   Control  

Second Department
Barclays Center and its management company granted summary judgment where plaintiff was struck by a blow during altercation of 2-people he did not know 5-seconds after fight began which lasted only 15 seconds. Defendant has a duty to provide reasonable security measures for persons lawfully on premises to protect against foreseeable criminal conduct of third parties, but incident was so short there were no steps defendants could have taken to prevent it. Velez v Pacific Park 38 Sixth Ave., LLC

Premises Liab   Slip/Trip   Wet Floor   Create Condition   Notice   Last Inspection  

Second Department
NYCTA denied summary judgment where plaintiff slipped and fell on accumulation of water in subway station during rainstorm where it failed to show last time area was cleaned or inspected necessary to eliminate questions of fact on constructive notice. Merchant v New York City Tr. Auth.

Premises Liab   Construction Liab.   Dangerous Condition   Control  

Second Department
Storage facility and its employee who plaintiff, con Ed employee, was helping unload pipe from flatbread trailer when employee lost grip causing pipe to knock plaintiff down and fall on his hand granted summary judgment on proof they did not create an unreasonable risk of harm contributing to plaintiff’s accident, did not exercise control over plaintiff’s work, or breach any other duty owed to him. Valente v Persico Realty Corp.

MVA   Vicarious Liab   Untimely   Estoppel  

Second Department
Used car dealer granted summary judgment where it sold car that struck plaintiff-pedestrian to codefendant 6-day before accident, completed all necessary paperwork, car passed NYS inspection and was insured by buyer on date of sale, and dealer submitted final registration papers to DMV within 5-days as required, establishing as a matter of law it was not owner of vehicle even where registration was returned for clerical error and corrected after the accident. Estoppel not applicable where all requirements diligently met, and correction not required by negligence or willful delay. Gonzalez v Zaki

Amend Complaint   Prejudice  

Second Department
Plaintiff’s motion to amend Complaint to correct date of accident providently granted where defendant could not show substantial prejudice from delay and amendment was not patently devoid of merit or palpably insufficient. Park v Home Depot U.S.A., Inc.

Premises Liab   Dangerous Condition   Duty   Create Condition   Notice  

Second Department
NYCHA granted summary judgment on proof it did not create or have notice of a defective condition that caused plaintiff’s injuries. The court does not give the details of the proofs. Stanley v New York City Hous. Auth.

(3 summaries)

Forum non conveniens  

First Department
Defendants failed to meet heavy burden of showing that NY is an inconvenient forum lacking a substantial nexus to the action. The court does not give the details of the proofs. Pyle v Pfizer Inc.

Serious Injury   Causation  

Second Department
Defendant granted summary judgment on competent medical proof that plaintiff did not sustain a serious injury under significant limitation, permanent consequential limitation and 90/180-day categories and that any injury was not caused by the accident. Plaintiff failed to raise an issue in opposition. The court does not give the details of the proofs. Toussaint v Zomah

Serious Injury  

Second Department
Defendants granted summary judgment on competent medical proof that plaintiff did not sustain a serious injury under significant limitation, permanent consequential limitation and 90/180-day categories and plaintiff failed to raise an issue in opposition. The court does not give the details of the proofs. Bong An v Villas-Familia

About Matt McMahon

Civil trials and appeals since 1984
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