| MUST READS (5 summaries) | |||
| NOTEWORTHY | IF YOU MUST READ | ||
 Hotel granted summary judgment dismissing claim for decedent’s suicide on finding it did not assume a duty when decedent’s relatives asked the front desk to check on the decedent, which they did and reported he indicated he was fine and wanted not to be disturbed, and when his sister later identified herself as a mental health profession, believed he was going to jump off a ledge, and asked them to contact the police, which they agreed to do, but waited 25 minutes to call 911 and of next door to the police station and brought the police back to the hotel. It took another 25 minutes for the police to gain access to decedent’s room where they found him on the ledge he jumped from 3-minutes later. The Court found that even if the hotel assumed a duty to call the police, they fulfilled that duty and because the decedent was alive and on the ledge when they went into the room, they did not put him in a worse position by the delay in contacting the police and could not be a proximate cause of his suicide. The Court noted the policy consideration of hotel’s refusing to check on guests if requested if they are found to assume a duty to prevent suicides.The dissent would have denied the motion finding questions of fact on whether the out-of-state relatives relied on the hotel’s promise to immediately contact the police, placing the decedent in a worse condition by the delay. Beadell v Eros Mgt. Reality, LLC ✉ |
| Psychiatrist who was stabbed in his apartment where he saw patients by the cousin of his estranged former partner raised issues of lapses in the building’s security for allowing the assailant to wander around the building and reenter without being challenged but building granted summary judgment as plaintiff’s voluntarily readmitting the assailant back into his apartment, at which time he was assaulted, was an intervening cause superseding any proximate cause from the building’s lapses in security. Weiss v Park Towers S. Co., LLC ✉ |
| Nursing home met its burden for summary judgment by geriatric medical doctor’s opinion it did not depart from accepted practice but lower court erred in granting nursing home summary judgment, rejecting plaintiff’s nursing expert’s opinions because she was not a medical doctor as her education, licensing as a registered nurse, and 15-years’ experience with care plans for high risk nursing home patients established she was qualified to opine on standards of care and departures for elderly patients with dementia in nursing homes. Moreover, some of plaintiff’s claims sounded in negligence as they could be assessed based on common knowledge. Rodriguez v Isabella Geriatric Ctr. Inc. ✉ |
| After building owner’s first motion to vacate its default in answering based on statute of limitations was denied since action was timely considering Covid tolls, the Court, in its discretion, granted defendant’s motion to renew without a reasonable excuse for not including new facts of a meritorious defense in the original motion by the building manager’s affidavit the sidewalk plaintiff claimed she tripped on was not defective and proof plaintiff previously filed 6-Complaints for slip and fall accidents. Because defendant did not receive the Summons and Complaint served on the Secretary of State or other notices where it we located during the pandemic without updating its address with SOS, it was not required to show a reasonable excuse under CPLR §317 for failing to answer. Martinez v Urban Renaissance Collaboration Ltd. Partnership ✉ |
| Plaintiff’s experts raised issues in opposition’s to defendants’ showing of entitlement to summary judgment by their conflicting opinions that defendants departed from accepted practice but failing to obtain a vascular consult before performing a knee replacement and subsequent skin grafting. Their opinions were not speculative where based on the medical records showing decedent had diabetes and vascular disease and prior wound healing difficulties, and testing after the procedures showed his leg arteries had long-standing occlusions. Their affirmation with their names redacted were properly considered, even though one of the affirmations was not included in the e-filed papers in response to 1-defendant’s motion as the affirmation was received and that defendant respondent to it. Claim plaintiff raised a new theory rejected where defendants did not dispute plaintiff filed a fourth amended BP that included the theory, even though it was not attached to the moving papers. Informed consent, negligent hiring, retention, and supervision claims dismissed where plaintiff did not address them in opposition to the motion or on appeal. Gobind v Nercessian ✉ |
| NOTEWORTHY (18 summaries) | |||
| MUST READS | IF YOU MUST READ | ||
 Appeal from denial of defendant’s motion to stay trial, strike Note of Issue, and for further discovery on claim there were criminal insurance fraud claims for staging accident cases against plaintiff’s former attorney dismissed where defendant did not include exhibits it claimed were presented to the motion court, the Complaint, Amended Complaint, or Answer, rendering appellate review meaningless. Bing v Myrtle 6, LLC ✉ |
| Petitioner, struck by train resulting in below knee amputation’s of his legs, granted leave to file late Notice of Claim on NYCTA 1-year after the accident where NYPD report indicated NYPD transit officer saw petitioner being taken to the hospital and spoke with train operator about the accident, giving NYCTA actual knowledge of the accident and the ability to timely investigate so that it was not prejudiced by the delay. Petitioner had a reasonable excuse for 8-month delay in seeking counsel where he was hospitalized for 1-month, required additional treatment, and had difficulty while housed in the shelter system, but failed to give a reasonable excuse for counsel not seeking leave for 4-months after being retained. Delay in seeking leave did not require denial of leave where NYCTA had actual knowledge and was not prejudiced. Matter of Rijos v New York City Tr. Auth. ✉ |
| Plaintiffs’ motion to amend Notice of Claim and Complaint to identify correct staircase denied and NYC DOE granted summary judgment dismissing claim for 13-year-old’s fall down school stairs where Notice of Claim, BP, and her 50H testimony identified staircase “B” but she identified the correct staircase as “A” during a site inspection 5-years after her fall. Defendants were prejudiced by significant delay in identifying correct staircase and they did not have notice of the correct staircase within 90-days, or a reasonable time thereafter, as there was no report of the incident or medical care rendered on the date of the accident and their incident report from the father’s report of the incident 4-days after the incident did not specify the location of the staircase. T. N. v City of New York ✉ |
| Petition to commence action against MVAIC granted where petitioner sent letter to MVAIC and provided requested documents within 90-days of the accident, but served notice of intention 5-weeks after the 90-day period, as MVAIC had actual knowledge of the essential facts within 90-days and was not prejudiced by the delay. Matter of Espinoza v Motor Veh. Acc. Indem. Corp. ✉ |
| Plaintiff denied summary judgment on Labor Law §240(1) on his testimony ladder he was using suddenly moved causing him to fall where defendant raised issues of credibility by plaintiff’s inconsistent testimony as to the day of the accident, whether he continued working after the accident, when he first reported the accident, and documentary evidence showing he first went to the hospital several days after he was fired. Simpertegui v Carlyle House Inc. ✉ |
| Lower court erred in finding collateral estoppel applied based on triable issues of fact in a related action without proof the issue in defendant’s motion in the prior action ‘was necessary to support a valid and final judgment on the merits’ in the present case, but the motion in the present case was correctly denied as the defendant did not show the waterslide in the obstacle course it designed, where plaintiff was injured when he hit his foot at the bottom of a water pit, was not defectively designed or that it did not have notice of the danger. Horvath v Red Frog Events, LLC ✉ |
| Worker who was shocked while trying to install an air conditioning coil and injured his arm and back while trying to put the unit that fell on his knees back up in order to prevent it for falling on his coworker below granted summary judgment on Labor Law §240(1), even though he did not fall from an elevation and was not hit by a falling object, as his injuries were the result of preventing the unit from falling on his coworker. Plaintiff also granted summary judgment on Labor Law §241(6) based on industrial code §§ 23-1.13(b)(3) and (4)(electrical hazards) where defendants failed to make sure the electrical wires were not active and protect plaintiff from an electrical shock. Britt v Levgar Equities Corp. ✉ |
| Company that had not been in business for years before plaintiff’s accident during construction work on a building granted summary judgment on its president’s affidavit and the building deed showing it was not a proper Labor Law defendant where it never owned the building and did not direct, supervise, or control any work at the building. Building permits submitted by plaintiff were inadmissible hearsay and did not raise an issue of fact where they did not mention the moving-defendant. Argument that motion was premature rejected without proof additional discovery was necessary. Loja v 133 Lincoln LLC ✉ |
| Landlord granted summary judgment dismissing tenant’s claim for burns he sustained when the stove exploded as he turned on one burner and all 4-burners erupted based on NYFD report attributing the fire to ‘cooking carelessness’ and the affidavit of an engineer-fire inspector that there was no defect to the stove when he inspected it more than 2-years after the incident and after the plaintiff moved out of the apartment, which conclusively rebutted plaintiff’s testimony. Qi Zhong Weng v Jian Juan Wang ✉ Comment: From the lower court decision, plaintiff had complained of the issue several times before the incident. |
| County granted summary judgment dismissing plaintiff’s claim for fall in area of reed beds in park not intended for public use as the condition was inherent to the nature of the property and could reasonably be anticipated in that area. Plaintiff failed to show discovery provided after the motion was fully submitted was relevant or exclusively within the county’s knowledge and control. Claus v County of Nassau ✉ |
| Unlicensed podiatry resident, authorized to participate in the hospital residency program, who performed an orthopedic consult on a patient in the ER communicating by text messages with the on-call orthopedist and diagnosed an ankle sprain and instructed patient to follow up with the orthopedic clinic denied summary judgment on conflicting expert opinions of departure from accepted practice and causation where the patient was admitted to the hospital with acute/subacute ischemia of the right lower extremity 2-weeks later and required a below knee amputation. Armond v Strangio ✉ |
| Building owner failed to meet burden for summary judgment dismissing plaintiff’s claim for fall from exterior stairs without expert opinion the stairs were not defectively designed and that they complied with applicable rules or standards when constructed. Defendant also failed to show lack of actual notice without proof there were no prior accidents, even though it’s witness testified there were no prior complaints, and failed to show lack of constructive notice on testimony the stairs were inspected monthly without proof of the last time they were inspected. Even if the door swinging 5″ out over the stairs complied with all building codes, questions remained of whether the condition was reasonably safe under common law. Guerra v 100 Stevens Ave. LLC ✉ |
| Landlord granted summary judgment dismissing tenant’s employee’s claim for injuries when drop ceiling fell on her on proof defendant was an out of possession owner by lease and testimony of defendant and tenant establishing it relinquished control of the area, was not obligated to make nonstructural repairs, and the condition alleged was not a significant structural defect. Res ipsa loquitor inapplicable as defendant did not have exclusive control of the area. Desosa v Ortiz-Osorio ✉ |
| Plaintiff’s motion for summary judgment denied where bus rear-ended vehicle causing injuries to plaintiff, passenger in bus, on bus-driver’s affidavit that the vehicle she rear-ended stopped suddenly when a car cut it off, supported by surveillance video, raising an issue on emergency doctrine. Motion to dismiss emergency doctrine defense denied where plaintiff did not establish defendants’ it “was ‘without merit as a matter of law.’ Yearwood v New York City Tr. Auth. ✉ |
| Defendant granted summary judgment dismissing decedent’s claim for injury on exterior walkway where plaintiff testified she did not know if she tripped or slipped or what caused her to fall, establishing she could not identify the cause of her fall without speculation. Claim that inadequate lighting was a cause of her fall was speculation where decedent did not identify that as a cause and it would be speculation to assume fall was caused by building code violations identified by plaintiff’s expert. Lucas v Genting N.Y., LLC ✉ |
| Plaintiffs raised issue on whether building owner/manager created icy condition injured-plaintiff slipped on by meteorologist’s report showing fluctuations in temperature allowed snow piles to melt and refreeze. Snow removal contractor denied summary judgment where it failed to eliminate questions of whether it created the condition, plaintiff detrimentally relied on performance of its contract, or if it wholly displaced the owner’s duty to maintain the premises under Espinal. Martins v Stickle ✉ |
| Plaintiff denied summary judgment on conflicting evidence where he testified he was turning from right hand lane when struck in his rear left side by defendants’ vehicle and defendant-driver testified plaintiff was making an illegal turn from a parking lane. Google maps from 4-months before the accident were admissible but not relevant without evidence the area was in the same condition on the date of the accident. Gonzalez v Cruz ✉ |
| Motion to dismiss legal malpractice claim against attorney who substituted for original attorney in personal injury action and represented plaintiff in legal malpractice action against original attorney granted where plaintiff’s claims that moving attorney’s advice deprived him of a better result in his legal malpractice case against his original attorney was purely conclusory, he made no factual allegations to support his claim he would’ve received a better result in the personal injury case absent the original attorney’s negligence, and his damage calculations were conclusory and speculative. Jud. L. §487 claim dismissed as ‘[p]rofessional shortcomings or disagreements as to litigation strategy that do not involve intentional false statements’ are not deceit. Gopstein v Bellinson Law, LLC ✉ |
| IF YOU MUST READ (3 summaries) | |||
| MUST READS | NOTEWORTHY | ||
| Defendants’ motion for summary judgment dismissing claim of bus driver whose bus was rear-ended by defendants’ bus as barred by Worker’s Comp. defense on claim defendant had a special employment relationship with bus company plaintiff worked for denied where they failed to show the special employment relationship existed. The Court does not give the details of the proofs. Dolores v Grandpa ✉ |
| NYC granted summary judgment dismissing plaintiff’s claim for trip and fall on broken pavement in intersection by evidence it did not receive prior written notice and plaintiff failed to raise an issue in opposition without evidence NYC negligently created an immediately dangerous condition. The Court does not give the details of the proofs. Rabich v City of New York ✉ |
| Portion of plaintiff’s motion to dismiss comparative fault defense, after granting her summary judgment on liability, denied where defendant raised an issue of fact in opposition. The Court does not give the details of the proofs. Mora v Moore ✉ |