May 16, 2017 | Vol. 54

MUST READS
(7 summaries)
NOTEWORTHY IF YOU MUST READ

MVA   Graves Amendment   Motion to Dismiss  

Second Deptartment

Nissan’s motion to dismiss granted where it showed that it was in the business of leasing vehicles and did not engage in vehicle maintenance contrary to plaintiff’s conclusory statements that they negligently maintained the vehicle. On a motion to dismiss where evidentiary material is submitted, but the motion is not converted to summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has pled a cause of action, taking the evidence in the light most favorable to the plaintiff but conclusory statements of fact or law need not be accepted as true. Aviaev v Nissan Infiniti LT


Premises Liab   Wet Floor   Create Condition   Hearsay  

First

Building owner and manager denied summary judgment where superintendent testified that he had mopped the floor 5 minutes before the fall and did not put out warning signs. Even if he hadn’t testified to this, a recorded conversation between plaintiff and manager would have defeated summary judgment, even though hearsay, since it could be considered with other evidence. Pena v Tyrax Realty Mgt., Inc.


MVA   Bus   Collateral Source   Burden of Proof  

Second Deptartment

$2,270,000 verdict reduced by $33,210 on the past lost earnings and $117,260 on the future lost earnings award for workers’ compensation benefits plaintiff was receiving, and would be receiving in the future from a prior work related incident. At a collateral source hearing, it is the defendant’s burden of proof to “a reasonable certainty,” which is higher than preponderance of the evidence, less than beyond a reasonable doubt, and most closely aligned to clear and convincing evidence. Defendants failed to meet that burden as to no-fault benefits and Social Security benefits. McKnight v New York City Tr. Auth.


Workers Comp Defense   Grave Injury   Renew  

Second Deptartment

Building owner and manager failed to show that plaintiff’s brain injury was a “grave injury” under Worker Comp. L. §11 which rendered him incapable of employment “in any capacity.” Third-party complaint against employer dismissed. Motion to renew providently denied as it would not have changed the result. Grech v HRC Corp.


90 Day Notice   CPLR § 3126   Reasonable Excuse   Meritorious Action   Good Faith Aff  

Second Deptartment

CPLR §3216 which allows dismissal for failure to file a Note of Issue within 90 days of a 90-day notice is an “extremely forgiving” statute which does not require dismissal, nor does it require a showing of both a reasonable excuse and meritorious action. Plaintiff, injured in an elevator accident, was deposed for 2 days before his attorney withdrew after which the 90-day notice was served. His new counsel sought to arrange for the continued deposition and physical examination which provided a reasonable excuse. Defendant’s good faith affidavit was insufficient in that it did not disclose attempts to resolve the discovery dispute. Vera v New York El. & Elec. Corp.


Legal Mal   Expert Aff   Causation  

First

The court previously held on a motion to dismiss that plaintiff’s allegations that defendant law firm negligently urged her to settle her personal injury action and told her that an MRI would not lead to a more favorable outcome of her case stated a cause of action for legal malpractice. The court now found that the law firm failed to meet its burden for summary judgment. Its legal expert ignored the plaintiff’s testimony and misstated the defendant’s testimony, and its radiology expert was equivocal on causation. Polanco v Greenstein & Milbauer, LLP


Legal Mal   Stipulation   Settlement  

Second Deptartment

Wife’s malpractice claim against law firm for allegedly concealing that she had been included in her husband’s lawsuit for loss of services, and signed the settlement agreement where she was to receive $200,000 for her claim, dismissed on proof that she signed the agreement and is presumed to have read it before signing it. Claims that the document was different than what she thought she was signing only apply where the person is illiterate, blind, or does not understand English. Plaintiff’s statement that she didn’t sign the document was the only proof submitted in opposition. Anderson v Dinkes & Schwitzer, P.C.

NOTEWORTHY
(31 summaries)
MUST READS IF YOU MUST READ

Discovery   Police   FOIL  

First

Defendants’ motion to compel non-party police department to disclose parts of its investigation file regarding the murder of plaintiff’s decedent should not have been denied without an in-camera review. The “public interest” privilege did not automatically bar disclosure even though the case was ongoing. The rules are not the same under CPLR 3101 and FOIL. Smith v Watson


Negligent Supervision   Foreseeability   Causation  

Second Deptartment

School district not entitled to summary judgment where evidence submitted on its motion, including plaintiff’s deposition, showed that there had been a prior incident involving the student who punched the infant plaintiff, that the incident took place over 1 1/2 to 2 minutes and was not so spontaneous an act as could not be prevented by any degree of supervision, and school district failed to show that the infant plaintiff voluntarily participated in the fight. Guerriero v Sewanhaka Cent. High Sch. Dist.


Set Aside Verdict   Jury Charge  

Second Deptartment

Lower court’s instruction to the jury, in response to their question as to whether a summons had been issued for violation of the statute requiring a red flag on items extending more than 4’ from a vehicle, that they can only rely upon the evidence presented and that there was no evidence that a summons was issued to either party was proper and correctly stated the law. Motion to set aside verdict denied. Melo v Byrns


Wrongful Death   Late Notice of Claim   Reasonable Excuse   Actual Knowledge   Prejudice  

Second Deptartment

The lower court providently found that plaintiff provided a reasonable excuse for not serving a Notice of Claim or seeking leave to serve a late Notice of Claim until she filed the summons with notice and motion to serve a late Notice of Claim two years after her husband was shot and killed during a police chase and that plaintiff failed to show that the municipal defendants had actual notice of the essential elements within 90 days and that plaintiff failed to show by evidence or argument that the defendants were not prejudiced by the delay. The fact that the defendants investigated the murder did not give them actual knowledge that it was caused by any negligence on their part. Facey v City of New York


Premises Liab   Elevator   Notice  

First

Building granted summary judgment where elevator governor cable snapped during plaintiff’s inspection of the elevator because there was no proof, including the previous 6 months of work tickets, that there was any problem with the cable which would constitute notice. Vilella v Witkoff Group, LLC


Labor Law §240   Labor Law §241   Labor Law §200   1-2 Family Exception   Control   Create Condition   Notice  

Second Deptartment

Homeowner failed to meet its burden for summary judgment where plaintiff’s testimony showed that homeowner directed workers not to throw debris out of the window but to throw debris from a balcony without a railing, raising a question of fact as to whether homeowner exercised that degree of direction and control to take him out of the 1-2 family exception. Where accident occurred because of defect on the premises, homeowner was required to show also that he did not create condition or have actual or constructive notice of same. Wadlowski v Cohen


Labor Law §240   Ladder  

First

Plaintiff granted summary judgment on his testimony that the ladder he was on was missing its rubber feet, wobbled and spun before falling. Affidavit of co-worker disputing issue of rubber feet did not raise an issue of fact because it did not discuss how the accident happened or dispute the fact that the ladder spun before falling. Kebe v Greenpoint-Goldman Corp.


Labor Law §240   Labor Law §241   Industrial Code   Recalcitrant Worker   Sole Cause  

Second Deptartment

The lower court incorrectly found the plaintiff to be a recalcitrant worker who was the sole cause of his accident where he exited the nonfunctioning lift bucket by sitting on the edge and swinging his legs over, catching his foot on a part of the bucket normally covered by a missing liner protecting workers from electric shock. There was no evidence that the plaintiff was given other instructions regarding how to exit the bucket. Defendants nonetheless granted summary judgment on Labor Law §240(1) claim because there was no evidence that the bucket lacked any safety device to prevent falls. The missing liner was for the protection of electrical shock, not the risk of falling. Labor Law §241(6) claim dismissed as there was no proof that the plaintiff was engaged in construction, demolition, or excavation. Robinson v National Grid Energy Mgt., LLC


Serious Injury   Expert Aff   ROM   Hearsay  

First

Defendant made out prima facie case for summary judgment on serious injury on affirmed reports showing no limited range of motion and proof that plaintiffs did not report physical injuries to the police at the scene or seek medical attention. Plaintiffs’ expert’s affirmed reports relied on findings by another doctor and MRI reports which were not in evidence and were hearsay. Lee v Rodriguez


Med Mal   Service   CPLR §306-b   Statute of Limitations   Continuous Treatement  

Second Deptartment

Defendant’s motion for summary judgment on statute of limitations denied and plaintiff’s motion to extend time to serve pursuant to CPLR §306-b and for substituted service, granted where defendant doctor. retired and moved to an undisclosed location in Haiti, was aware of the lawsuit, and was part of a practice which continued to treat the plaintiff for symptoms which were later found to be related to lung cancer. The continuous treatment of the retired doctor’s medical practice can be imputed to the retired doctor. Service was permitted by service on the malpractice carrier. Matthews v Barrau


Med Mal   Accepted Practice   Expert Aff  

Second Deptartment

Orthopedist granted summary judgment upon proof that he did not depart from accepted practice in diagnosing the plaintiff’s shoulder condition and that he owed no duty to diagnose plaintiff’s lung condition which was beyond the scope of what he was consulted for. Plaintiff’s expert radiologist failed to show that he had specific knowledge regarding orthopedic standards of care. Radiologist granted summary judgment upon proof that the MRI he reviewed did not contain views of the upper apex of the lung where mass was later found in the plaintiff’s lung and plaintiff’s expert radiologist failed to address this fact. Donnelly v Parikh


Premises Liab   Stairs   Circumstantial Evidence  

First

Building denied summary judgment where plaintiff and neighbor testified that his shorts were wet after he fell down stairs, a mop and bucket were at the bottom of the stairs, and the mop was propping open a door. Neighbor also testified that the second floor landing was wet. Grover v 291 Marion Realty Co.


Premises Liab   Workers Comp Defense  

First

Management company granted summary judgment where management agreement gave it sole responsibility for maintenance and repair, and management company hired plaintiff and could fire him, entitling them to the workers’ compensation defense as a special employee. Paychecks and termination in the name of the building owner showed them to be the general employer. McMahon v Cohen Bros. Realty Corp.


Late Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice  

Second Deptartment

Motion to serve late Notice of Claim denied where police report and police accident investigation showed no injuries and, therefore, MTA did not have actual knowledge that injuries were sustained because of the negligence of their employees. Petitioner failed to provide medical proof in admissible form that she suffered such incapacity as would make it impossible for to file a timely Notice of Claim, and failed to offer proof or plausible argument that the defendants were not prejudiced. Matter of Cuccia v Metropolitan Transp. Auth.


Set Aside Verdict   Materially Deviates  

First

On remand from the Court of Appeals which reversed a post-trial grant of a directed verdict for defendant, the First Department denied plaintiff’s motion to set aside the award of $450,000 for past pain/suffering finding that it did not materially deviate from reasonable compensation and noted that the cases relied on by the plaintiff had more surgery. Obey v City of New York


Set Aside Verdict   Directed Verdict   Causation  

Second Deptartment

Plaintiff’s motion to set aside the jury’s finding of no causation, and for a directed verdict, granted where plaintiff was injured by an explosion while attempting to remove a live cartridge which the defendant had jammed into the ammunition reloading device 2 months earlier. There was no line of reasoning under which the jury could have found negligence and no proximate cause. Piro v Demeglio


MVA   Rear End   Police   Hearsay   Emergency Doctrine   Set Aside Verdict  

Second Deptartment

Plaintiff’s motion to set aside verdict denied where there was factual dispute as to where and how the accident occurred. Plaintiff was not entitled to emergency doctrine charge where he rear ended defendant’s vehicle which he claimed stopped suddenly. Emergency doctrine does not apply in normal traffic conditions where a following car is expected to maintain sufficient distance to stop if the lead car stops suddenly. The lower court properly redacted portions of the police report regarding the location of the accident as there was insufficient indicia that it was based on the police officer’s own observation and properly prevented the plaintiff from impeaching the police officer whom he called as his witness regarding the location. Shehab v Powers


Serious Injury   Expert Aff   Preexisting   ROM  

Court of Appeals

Defendant made out prima facie entitlement to summary judgment on serious injury a CT scan 5 taken months before the accident showing multiple bulging discs and a possible herniated disc and plaintiff’s chiropractor’s report showing normal ROM 1 month after the accident. Plaintiff’s doctor who found limited ROM 3 years after the accident, failed to address the pre-existing conditions or explain how his findings were related to the accident and not the pre-existing finding. Jenkins v Murtagh


MVA   Special Duty  

First

Government defendants granted summary judgment where plaintiff claimed that they were responsible for failing to revoke the co-defendant cab driver’s license for having multiple violations with more points than allowed. There was no special duty between the government defendants and the plaintiff. Green v City of New York


Vacate Default   Strike Answer   Reasonable Excuse  

Second Deptartment

Lower court providently denied defendant’s motion to vacate its default to allow it to oppose plaintiff’s motion, and co-defendant’s cross motion, to strike its answer where 5 days after the motion was made defendant’s attorney informed the court that the defendant had instructed him not to continue defending the action. Carrier eventually agreed to take over representation after the motion to strike was granted and asked for an extension to respond to the motion, but did not make the motion to vacate the default for over a year. Carrier’s initial disclaimer was not a reasonable excuse under the circumstances. Hamilton v Adriatic Dev. Corp.


MVA   Respondeat Superior   Indemnity  

Second Deptartment

Employer’s motion for summary judgment denied where its employee was driving a vehicle owned by the employer and talking with a vendor on his phone at the time he hit the plaintiff in a parking lot raising a question of fact as to whether he was within the scope of his employment. Motion for summary judgment on cross-claims by the town for common law indemnity should have been granted. Camisa v Rosen


MVA   There to be Seen   Sole Cause  

Second Deptartment

Owner/driver of car which entered intersection with a green light denied summary judgment where plaintiff, who was passenger in cab that entered intersection against the red light, testified at deposition to conflicting facts raising an issue of whether green light defendants were negligent in entering the intersection without observing and avoiding the cab. White v Adom Rental Transp., Inc.


Premises Liab   Snow/Ice   Slip/Trip   Last Inspection  

Second Deptartment

Defendants did not meet their initial burden for summary judgment by failing to include proof as to the last time it snowed, what if any snow removal efforts were made, the last time the area was inspected or cleaned, and what the conditions were around the time that plaintiff slipped and fell on ice. Plaintiff submitted evidence that it is snowed 6” the day before the accident and that the area where she fell looked as if it had been plowed. D’Esposito v Manetto Hill Auto Serv., Inc.


Premises Liab   Wet Floor   Slip/Trip   Last Inspection  

Second Deptartment

Cafeteria operator denied summary judgment where deposition testimony of its supervisor showed only general cleaning provisions and not last time the area where plaintiff slipped and fell was inspected or cleaned, failing to show that defendant did not have constructive notice of the condition. Valdes v Pepsi-Cola Bottling Co. of N.Y., Inc.


Premises Liab   Unknown Cause   Speculation   Causation   Expert Aff   Building Code  

Second Deptartment

Plaintiff’s expert’s affirmation showing building code violations on front steps of residence where plaintiff fell was insufficient to raise a triable issue as plaintiff could not identify the defect which caused her fall. Any claim of proximate cause would be speculative. Amster v Kromer


Amend Notice of Claim   Prejudice  

Second Deptartment

Bicyclist granted leave to amend Notice of Claim to change “lawfully traveling” on road to “lawfully bicycling” on road where condition did not change before plaintiff served the summons and complaint which stated she was bicycling, and county’s police and EMS responded and noticed on their report that she fell from a bicycle, showing that there was no prejudice. Fast v County of Nassau


1983 Action   Malicious Prosecution   Motion to Dismiss   Negligent Hiring  

Second Deptartment

1983 action based on malicious prosecution dismissed as arrest based on complaint of known citizen provided probable cause which was not eviscerated by exculpatory evidence later disclosed by the prosecutor, however, plaintiff’s claims of violation of his constitutional right to a speedy trial upheld. County can be held responsible for the acts of the district attorney’s office where there are allegations of negligent hiring, retention, and training. Victor v County of Suffolk


Premises Liab   Slip/Trip  

Second Deptartment

Land owners granted summary judgment upon proof that they did not own, occupy, or control the asphalt area where the plaintiff tripped and fell on raised asphalt. The obligation to maintain premises in a safe condition is premised on ownership, operation, or control. Slavin v Village of Sleepy Hollow


Legal Mal   Motion to Dismiss   Statute of Limitations  

Second Deptartment

Defendants’ motion to dismiss based on documentary evidence and failure to state a cause of action denied. A “letter,” purporting to terminate the attorney/client relationship, does not constitute documentary evidence on a motion to dismiss and failed to “utterly refute” the plaintiff’s allegations that there was an attorney/client relationship. Breach of contract and negligence claims were duplicative of the legal malpractice claims and were dismissed. Prott v Lewin & Baglio, LLP


Legal Mal   Motion to Dismiss   Statute of Limitations  

Second Deptartment

Defendants’ motion to dismiss based on documentary evidence and failure to state a cause of action denied. A “letter,” purporting to terminate the attorney/client relationship, does not constitute documentary evidence on a motion to dismiss and failed to “utterly refute” the plaintiff’s allegations that there was an attorney/client relationship. Breach of contract and negligence claims were duplicative of the legal malpractice claims and were dismissed. Prott v Lewin & Baglio, LLP


Serious Injury   BP   Expert Aff  

Second Deptartment

Defendants’ failure to address plaintiff’s allegations in the BP regarding injuries to her shoulder and wrist by competent medical evidence defeated their own prima facie case for summary judgment. Mayes v Aldoais

IF YOU MUST READ
(2 summaries)
MUST READS NOTEWORTHY

Premises Liab   Statute of Limitations   Motion to Dismiss  

First

Pro se plaintiff properly pled “new” symptoms and injuries from toxic mold within 3 years of commencing action. Gordon v ROL Realty Co.


Question of Fact  

Second Deptartment

Defendant failed to meet its initial burden for summary judgment based on affidavits of the defendant and her husband and the deposition of the plaintiff regardless of the plaintiff’s proofs. The court does not give the details of the proofs. Bykov v Brody

About Matt McMahon

Civil trials and appeals since 1984
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