CPLR § 3126 Strike Answer Discovery Willful/Contumacious
 Defendants’ Answers stricken for failure to comply with 2 discovery orders. Willful/contumacious conduct can be inferred from lack of a reasonable excuse. Abizeid v Turner Constr. Co.
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Med Mal Discovery
 Lower court improvidently granted defendants’ motion to compel plaintiff to provide cell phone and all material on it where defendants did not meet burden of showing it was reasonably calculated to yield material necessary for their defense. Evans v Roman
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Vacate Default Notice Reasonable Excuse
Defendant’s claim it did not receive Summons and Complaint served on Secretary of State because of outdated address was not a reasonable excuse required under CPLR §5015 to vacate default but because the process was not personally served, defendant could vacate judgment under CPLR §317 without a reasonable excuse within 1-year of receiving notice of the judgment. Its first notice of judgment was a dishonored check because of a restraining order on its bank account. Bing Fang Qiu v Cameo Owners Corp.
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Vacate Default Reasonable Excuse
Fact that plaintiff’s original attorney did not advise him of trial date, that he was picking a jury until he was set to start the trial provided reasonable excuse for plaintiff, who needed Haitian interpreter to communicate with the court, to show up on trial date with new counsel asking for short adjournment, which was amenable to defense counsel. Without Haitian interpreter the court failed to ascertain whether plaintiff had an intelligible excuse and dismissed the case pursuant to 22 NYCRR §202.27. The trial court tersely rejected the timely motion to vacate without reviewing the history leading up to the dismissal. Crevecoeur v Mattam
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Settlement CPLR § 2104 Lien
Defendants’ motion to enforce stipulation of settlement entered on record in open court granted where it was not made with fraud, duress, overreaching, or unconscionability, even if it was improvident. Plaintiffs’ dissatisfaction with net proceeds after Workers Comp lien and Medicare set-aside they agreed to take responsibility for was not a reason to set aside settlement. Lenge v Eklecco Newco, LLC
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Venue
Plaintiff did not forfeit right to choose venue by bringing case in Bronx County based on outdated information in police report but failed to show that its choice of New York County was proper under existin CPLR §503(a) where no party resided in New York County, that New York County was necessary for convenience of witnesses, or that Westchester County was an inconvenient forum. Venue changed to Westchester County in response to defendants’ motion. Hakanjin v Lincare, Inc.
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Notice of Claim Amend Notice of Claim Court of Claims Prejudice Governmental Immunity
Wrong date/time when cause of action arose in timely served Notice of Intention to Claim could not be cured by amendment. Waiver of sovereign immunity requiring date/time of cause of action in Notice of Claim are absolute and not subject to amendmentm making lack of prejudice irrelevant. Matter of DeMairo v State of New York
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Labor Law §240 Labor Law §241 Labor Law §200 Industrial Code Control Notice
Pipe saddle that dislodged striking plaintiff was not an object that needed securing for purposes of the work but a permanent part of the structure taking it out of Labor Law §240(1). Industrial code §23-1.7(a)(1) inapplicable because it did not occur during the ceiling demolition and §23-3.2(b) inapplicable because that pertains to stability of adjacent structures and not building being demolished. Defendants established they did not have control over the work under Labor Law §200 and it was a latent defect for which constructive notice cannot be implied. Djuric v City of New York
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Labor Law §240 Control Agent Gravity Risk
Cable tray on top of 2-ladders was a device that required securing and its fall from a not insignificant height as a direct result of gravity entitled plaintiff to summary judgment on Labor Law §240(1)., Director who subcontracted work had ability to control work and was agent of owner whereas tenant who contracted for work was an owner for purposes of Labor Law. Tropea v Tishman Constr. Corp.
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Late Notice of Claim Service Raised For First Time
Service of Notice of Claim by certified mail is complete upon deposit with post office with appropriate postage but certified mail receipt plaintiff produced matched the timely certified mail received by NYC not NYCHA which owned and controlled property where plaintiff was injured. Paralegal’s affidavit that she timely mailed it to NYCHA did not establish proper service without indication it was served by certified or registered mail. Claim under savings provision of GML § 50-e(3)(c) raised for first time in appellate reply brief not considered. Davis v New York City Hous. Auth.
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Premises Liab Slip/Trip Sidewalk Unknown Cause Hearsay Notice Last Inspection
Statements by decedent to plaintiff-administratrix that he tripped on raised sidewalk flag corroborated by the administratrix’ personal inspection of the area and photographs shortly after accident sufficient to identify cause of accident. Hearsay may be considered on motion for summary judgment when it is not the only proof. Defendant did not eliminate questions on constructive notice without proof of last time area was inspected or cleaned. Kontorinakis v 27-10 30th Realty, LLC
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MVA Bus Set Aside Verdict Directed Verdict Notice
Verdict finding NYCTA negligent for not providing reasonably safe place for plaintiff to exit bus based on reasonable inferences where driver was aware of cracked and raised pavement condition plaintiff had to step onto and there was a rational path for jury to reach their verdict. Watson v New York City Tr. Auth.
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Labor Law §240 Labor Law §200 Industrial Code Premises Liab Notice
Defendants’ motion for summary judgment on Labor Law §241(6) based on industrial code §23-1.7(d) denied where “green dust” product under paper improperly taped to floor created issue of whether a foreign substance created a slippery surface and summary judgment on Labor Law §200 denied for issue of a dangerous condition on the premises and whether contractor with 5-supervisors on site had constructive notice. DeMercurio v 605 W. 42nd Owner LLC
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Med Mal Accepted Practice Expert Aff Speculation
Plaintiff’s expert’s opinion that defendants departed from accepted practice in failing to diagnose and treat plaintiff’s pneumonia was speculative because it relied on facts not supported by record failing to raise issue of fact in opposition to plaintiff’s prima facie showing of entitlement to summary judgment. Wagner v Parker
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Premises Liab Slip/Trip Stairs Notice Last Inspection Speculation
Testimony of NYCHA caretaker who inspected stairwell where plaintiff slipped on urine on morning of accident finding no dangerous condition established that it had no notice of the condition and proof that NYCHA received no complaints of a similar condition in area for a year before accident rebutted plaintiff’s claim of recurring condition. General awareness of urine in the staircase as opposed to at location where plaintiff fell was insufficient to establish notice of recurring condition. Plaintiff’s argument that caretaker may not have inspected staircase before accident because her inspection may have taken longer than usual was speculative. Pagan v New York City Hous. Auth.
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Med Mal Estate Capacity to Sue Reasonable Excuse Meritorious Action Expert Aff
Lower court providently denied motion to substitute estate made 2-years after decedent’s death where wife did not offer adequate explanation for delay or rebut defendants’ proof of prejudice. Wife also failed to show meritorious action relying on verified pleadings without certificate of merit or affidavit from medical expert. Green v Maimonides Med. Ctr.
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Premises Liab Slip/Trip Stairs Out of Possession Unknown Cause Optical Confusion Appealable Order Raised For First Time
Out-of-possession owner of building could not be liable for plaintiff’s fall down bar stairs absent proof it was caused by structural or design defect violating specific statutory provision. Only claimed violation of NYC administrative code provision was for non-uniform handrail clearance that was not where plaintiff fell, and plaintiff could not identify cause of her fall. Inadequate lighting is not structural or design defect and optical confusion claim was raised for the first time on appeal.
Sua sponte grant of summary judgment for bar was proper where plaintiff could not identify cause of her fall, optical confusion was not in BP or Complaint, and there was no proof that inadequate lighting caused her fall. Uppstrom v Peter Dillon’s Pub
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Med Mal Motion to Dismiss Statute of Limitations Continuous Treatement
Ophthalmologist and his practice who only treated patient for contact lens fittings during 2-visits showed that malpractice claims of failure to diagnose glaucoma where not part of continuing treatment for complaints for glaucoma and not subject to continuous treatment but third visit to measure eye pressure when doctor knew of glaucoma diagnosis was within statute of limitations. Mello v Long Is. Vitreo-Retinal Consultant, P.C.
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Estate Meritorious Action Prejudice
Delay of 4.5 years in seeking appointment of administrator after plaintiff’s decedent died and 7-month delay in seeking substitution after appointment showed lack of diligence in seeking substitution within a reasonable time as required by CPLR §1021 and plaintiff failed to show meritorious action or that defendant was not prejudiced by the delay. Rosenblatt v Doe
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MVA Bus Duty
Bus met common carrier duty to provide safe exit by providing front exit to bus where plaintiff attempted to leave from rear emergency exit. Jacobs v Metropolitan Transp. Auth.
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MVA Motion to Dismiss Personal Juridiction Service CPLR §306-b Meritorious Action
Affidavit of 1-defendant stating he lived alone and had no guests when plaintiff’s process server claimed to have served a person of suitable age and discretion was sufficient to rebut presumption of process servicer’s affidavit but not sufficient to establish that service was improper, requiring a hearing on the issue. Plaintiff’s motion to extend time to serve foreign defendants under CPLR §306-b denied where plaintiff failed to show due diligence in attempting service by serving Secretary of State only 6-days before 120th day, waiting until after defendants moved to dismiss on jurisdiction before seeking extension of time to serve, or submitting proof of a meritorious action. Kowlessar v Darkwah
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Slip/Trip Snow/Ice Storm in Progress
Defendants established by plaintiff’s testimony and meteorological records that plaintiff’s fall on ice on platform while alighting from train was from freezing rain occurring at time. Plaintiff did not allege ice existed before storm in progress. MTA properly dismissed as their only function is to provide financing and planning. Revella v Metro N. Commuter R.R.
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Serious Injury ROM Expert Aff
Plaintiff’s neurologist’s affirmed report showing 22% limitation in ROM of lumbar spine raised issue of fact in opposition to defendants’ orthopedist’s affirmed report of normal ROM. Kelly v Andrew
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MVA Emergency Doctrine
Defendant’s affidavit that he was faced with an emergency situation when a car cut him off and came to a sudden stop forcing him to enter HOV lane without the right of way raised issue of fact in opposition to plaintiffs’ motion for summary judgment. Marks v Rieckhoff
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Pothole Law Slip/Trip Prior Written Notice NYC
Contractor’s proof that it did no work at location of potholes and open permits in its name were only for staging area entitled it to summary judgment. NYC made out prima facie entitlement to summary judgment on proof it did not have prior written notice and that civilian telephone complaint was not written notice. Plaintiff’s proof of work orders for pothole repairs did not show they were for the pothole that caused plaintiff to trip. Merrill v City of New York
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Pothole Law Slip/Trip Prior Written Notice Create Condition NYC
Lack of prior written notice under pothole law entitled NYC to summary judgment. Plaintiff’s claim that NYCs temporary fix with cold patch instead of a hot patch 6-months before accident did not show that NYC created an immediately dangerous condition or that it was inadequate, and plaintiff abandoned this theory on appeal. Thompson v City of New York
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Premises Liab Slip/Trip Wet Floor Create Condition
Building manager that employed custodial staff failed to meet initial burden for summary judgment by submitting plaintiff’s testimony that he slipped on dirty water in area where custodial staff cleaned out garbage pails with water in large sinks failing to eliminate questions of fact on whether they created the dangerous condition. Colon v New York Mercantile Exch., Inc.
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MVA Emergency Doctrine Sole Cause
Defendant driver’s testimony that plaintiff attempted to pull out of parking spot into lane he was traveling in a split second before she passed plaintiff’s car established plaintiff entered roadway in violation of the VTL and that defendant was not negligent. Green v Masterson
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Med Mal Discovery CPLR § 3126 Willful/Contumacious Note of Issue
After plaintiffs refiled Note of Issue without supplementing certain responses to demands as required by CC order on belief that they had previously fully complied, the lower court granted defendants’ motion to strike Complaint finding that a subsequent supplement of the responses was sent to defendants’ prior attorneys despite knowledge of the substitution. The Second Department reversed and remanded because the record was insufficient to establish the circumstances of the supplemental response, whether it fully complied with the CC order, and whether service on the prior attorney was willful/contumacious. Strong v Delemos
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Slip/Trip Foreseeability Duty
Defendant’s testimony that she had a path to walk around sales associate whose back was turned towards her established that it was unforeseeable that she would trip over his foot as he turned after speaking with a customer. Turso-Drasche v Banana Republic, LLC
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Asbestos Products Liab Question of Fact
Plaintiff’s unwavering recollection of working with defendant’s brand steam traps that contained asbestos prior to 1975 raised issue of fact in opposition to defendant’s motion for summary judgment. Matter of New York City Asbestos Litig.
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False Arrest False Imprisonment Malicious Prosecution 1983 Action Qualified Immunity Probable Cause NYC
NYC and police officer granted summary judgment on false arrest, false imprisonment, malicious prosecution, and 1983 action claims where there was probable cause for the arrest and prosecution. Probable cause affords police officer qualified immunity. Tiburcio v City of New York
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Serious Injury ROM Expert Aff
Defendant failed to meet burden for summary judgment on serious injury where its doctor found significant limitations of ROM in cervical and lumbar regions. Burt v MTA Bus Co.
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