May 16, 2023 | Vol. 365

(8 summaries)

Discovery   Survelliance Video   Preclusion   CPLR § 3126   Willful/Contumacious   Note of Issue   Prejudice  

Second Department
Addressing when surveillance videos must be disclosed under CPLR §310(i), the Second Department found that failure to disclose pre-deposition video before a plaintiff’s deposition in violation of court orders constituted willful/strategic failure to comply with §3101(i) requiring preclusion, which defendant did not dispute. The Court found, however, that defendant was not required to provide piecemeal disclosure of videos taken over 9-months starting from immediately after plaintiff’s second deposition as it would be “impractical and defeat the very purpose of post-deposition sub rosa surveillance of parties.” Lower court providently denied preclusion of post-deposition videos where defendant disclosed successful and unsuccessful video attempts with outtakes and reports before a Note of Issue was filed, the 3-month delay from the last video was not significant, and plaintiff failed to show prejudice from the delay. The Court emphasized its decision was based on the particular facts of the case and did not represent a rule that post-deposition surveillance videos may never be precluded.

Plaintiff’s “cross-motion” to preclude the videos was improper as a party cannot make a cross-motion where they are the original movement, but the lower court properly considered the motion where the defendant fully litigated the issue. Pizzo v Lustig    

Malpractice   Motion to Dismiss   Notice of Claim   Collateral Estoppel   NYC  

Second Department
While service of a Notice of Claim on NYC through the controller’s office was not proper service on HHC, HHC’s motion to dismiss for failure to serve a Notice of Claim was providently denied on collateral estoppel which precludes a municipality from raising the issue where its “conduct was calculated to, or negligently did, mislead or discourage a party from serving a timely Notice of Claim and when that conduct was justifiably relied upon by that party.'” the Court does not give the details of HHC’s misleading conduct. Pales v New York City Health & Hosps. Corp.    

Comment: From the lower court decision, the controller’s office sent an acknowledgment of the Notice of Claim without indicating it was served on the wrong party, HHC answered the complaint without raising a failure to serve Notice of Claim defense and extensively litigated the action and made numerous discovery demands without raising the issue.

Labor Law §241   Labor Law §240   Industrial Code   Duty   Causation   NYC  

First Department
First Department found the “danger invites rescue” (PJI 2:13) doctrine applies to Labor Law §241(6) in denying summary judgment motions of NYC and NYCTA for claim of worker who injured his back when he jumped into a collapsed trench and lifted a heavy beam off of a coworker even through the plaintiff was not directly injured by the admitted violations of industrial codes §§ 23-4.2(a) and 23-4.4(a), (b), (c), and (f)(trench shoring). The rescue doctrine extends a duty owed to the rescuee to potential rescuers.

The Second and Fourth Departments have found the rescue doctrine applicable to §241, but the Second Department has found it inapplicable to §240. Leonard v City of New York    

Negligent Supervision   Strike Answer   Preclusion   Willful/Contumacious   Discovery   Survelliance Video   Note of Issue   NYC  

Second Department
Lower court improvidently granted DOE’s motion for summary judgment on ground that middle schooler’s action of letting go of heavy door as plaintiff-kindergartner was walking through it, catching plaintiff’s hand and severing a portion of one finger, was an unforeseeable, spontaneous act and denied plaintiff’s cross-motion to strike DOE’s Answer or preclude DOE from offering evidence or arguing at trial that the incident was unforeseeable/spontaneous where DOE’s failure to turn over a surveillance video of the incident until after plaintiff’s cross-motion, despite repeated demands and 2-court orders over 2-years, without any proffered excuse was willful/contumacious. Because the surveillance video was not included as part of the record, the Court could not determine if it would have rebutted the claim that the incident was unforeseeable/spontaneous and precluded DOE from arguing that issue on the motion for summary judgment but not at trial. Plaintiff’s filing of the Note of Issue without obtaining a response to the demand for the video did not waive the right to it as it was reasonable to assume it no longer existed. C. K. v City of New York    

MVA   Bus   Motion to Dismiss   Personal Juridiction   Conclusory  

First Department
MTA Bus Company’s (MTABC) motion to dismiss for lack of personal jurisdiction granted where plaintiff served the Summons and Complaint at its Brooklyn office, not its principal place of business in Manhattan and process server’s affidavit of service on MTA at the Manhattan address, stating only it was delivered to ‘the recipient’s actual place of business’ without identifying a person who was authorized to receive process for MTABC, did not establish personal jurisdiction. Plaintiff counsels’ conclusory affirmation that person was authorized to accept service for MTABC did not raise an issue.

MTABC established that MTABC and MTA, while having their primary offices at the same Manhattan address, are separate entities, not responsible for each other’s torts, the Summons and Complaint served was stamped ‘ACCEPTED FOR MTA ONLY,’ and it would not receive a copy of process served on MTA. Banks v New York City Tr. Auth.    

Child Victims Act   Motion to Dismiss  

Second Department
School district’s motion to dismiss Soc. Serv. L §413 claim that it failed to report sexual abuse of plaintiff by employee it claimed was not a “person legally responsible” for plaintiff denied where Complaint alleged abuser was a ‘counselor or “house parent’” whose responsibilities included “monitoring the plaintiff, organizing activities and programing, addressing the plaintiff’s daily problems and concerns, ensuring that the plaintiff remained in a safe and protected environment, and generally tending to the plaintiff’s needs,” meeting the Family Court Act definition of a personally legally responsible. Plaintiff also alleged he told 2-couselors of the sexual abuse but was ignored. Brave v City of New York    

Motion to Dismiss   Assumption of Risk  

Second Department
Community college’s motion to dismiss based on a signed release (CPLR §3211 (5)) granted dismissing action of student who was injured during mandatory wellness/fitness course even though she informed the instructor of her prior back problems where she signed a release that clearly released the college from liability for its own negligence, stated it was intended to be ‘broad and inclusive,’ and that plaintiff was aware of and assumed the risks of participating in the class. Claim that the Pilates instructor insisted plaintiff try lifting her legs and shoulders while laying on her back did not show ‘reckless indifference to the rights of others’ for gross negligence and plaintiff failed to show fraud, duress, or facts sufficient to avoid the release. Sjogren v Board of Trustees of Dutchess Community Coll.    

Arbitration   Untimely  

Second Department
Carrier’s petition to stay arbitration for discovery denied where brought beyond 20-day limit of CPLR §7503(c), which is strictly enforced, and it failed to show the demand for arbitration contained in a letter with 120 page attachments deceived the carrier where the 15th item of attachments on 2nd page of the cover letter clearly stated “demand for arbitration” and the carrier failed to include an affidavit from someone with personal knowledge to show it was deceived. Matter of Great N. Ins. Co. v Schwartzapfel    

(30 summaries)

Malpractice   Wrongful Death   Estate   Capacity to Sue  

Second Department
Malpractice and wrongful death Complaint brought by pro se administratrix for her husband’s death dismissed as an administrator can only bring an action without an attorney where she is the only beneficiary and there are no nonparty creditors of the estate and the proof showed there were additional beneficiaries. Martins v Liu    

Malpractice   Estate   Untimely   Renew   Prejudice   Reasonable Excuse  

Second Department
Motion to substitute administrator after original administrator died, brought 2-years after substitute administrator was appointed, denied and defendants’ CPLR §1021 cross-motion to dismiss for untimely substitution granted. Lower court improvidently granted substitute administrator’s motion to renew, granting motion to substitute and denying cross-motion to dismiss, where physician affidavit would not have changed the result since it showed defendants were prejudiced by delay in substitution as they were never provided with records not within their control and the substitute administrator failed to explain why he could not have submitted the affirmation of the attorney who filed for appointment of the substitute administrator on the original motion and that too would not have changed the result as it addressed only the delay in the appointment of the substitute administrator and not the 2-year delay in moving to substitute the administrator in the malpractice action. Tollinchi v Jamaica Hosp. Med. Ctr.    

Malpractice   Experts   Accepted Practice   Causation  

Second Department
Hospital and emergency medicine physician granted summary judgment on expert’s opinion their diagnosis and treatment, which included and ruled out appendicitis/perforated appendix in the differential diagnosis, was within accepted practice and did not cause plaintiff’s injuries, addressing all allegations in the Complaint and BP. Plaintiff failed to raise an issue in opposition with redacted expert affirmation where there was no proof she provided the court with an unredacted affirmation. Claim on appeal that court’s failure to receive a mailed unredacted affirmation due to COVID rejected without an explanation of why it was not received in the 17-days before the COVID shutdown. Richter v Menocal    

Pothole Law   Prior Written Notice   NYC  

First Department
NYC met burden for summary judgment for plaintiff’s fall in a pothole on affidavits and records of searches showing it had no prior written notice. Plaintiff failed to raise an issue in opposition by testimony of a NYC claims specialist and work order purportedly showing it had notice of the defect and need for repair from an inspection several weeks before her fall where the witness testified he was not familiar with that type of work order and only that it was ‘possible’ someone inspected the area weeks before the accident. DEP engineer averred that the inspection was 11-days before plaintiff’s fall and NYC has 15-days to cure defect under administrative code § 7-201(c)(2). Williams v New York City Dept. of Transp.    

Premises Liab   Wet Floor   Last Inspection   Admissibility   Hearsay  

Second Department
Mall denied summary judgment where incident report apparently prepared by site manager and a cleaning log by its cleaning contractor showing the bathroom where plaintiff slipped on a wet substance was cleaned shortly before the incident were inadmissible hearsay. The affidavit of the cleaning contractor’s national operations manager, the incident report, and cleaning log did not identify who prepared the log, who supplied the information in the incident report, or show they were made in the regular course of business by persons with a business duty to report the information in order to fit within the business record hearsay exception. Vaughn v Westfield, LLC    

MVA   Pedestrian   Zone of Harm   Emotional Harm   Speculation  

Second Department
Owner of trailer portion of tractor trailer that struck and killed 8-year old pedestrian failed to meet burden for summary judgment dismissing future medical expense claim of decedent’s sister who was in the zone of harm without proof the alleged damages were speculative and failed to show that economic damages are not recoverable in a zone of harm action. Abedin v Osorio    

Appealable Order   Untimely  

First Department
While an appeal from a final judgment brings up all non-final judgments and orders, plaintiff’s failure to timely appeal the order granting final judgment could not be revived by effecting a ministerial entry of the final judgment after the time to appeal elapsed. Geronimo v Guzman    

Products Liab   Control  

Second Department
Automobile manufacture and sales company granted summary judgment dismissing motorist’s claim that her front tire fell off while driving shorty after being serviced by a dealer on proof they did not exercise control over how their franchisee serviced vehicles. Failure to include the dealership agreement, and fact affidavits were notarized outside the state without certificate of conformity insufficient to deny summary judgment. Caceres v Toyota Motor N. Am., Inc.    

Malpractice   Wrongful Death   Accepted Practice   Causation   Foreseeability   Experts  

First Department
Defendants granted summary judgment dismissing malpractice claims on medical expert’s opinion they did not depart from accepted practice and were not a cause of decedent’s death where decedent had no history of wandering, had taken psychiatric medications for years without complications, the prescriptions at the rehab center were appropriate, decedent was seen by a psychologist when she reported depression and had no suicidal or homicidal ideations, and she reported feeling somewhat better before she left the center and climbed up a loading dock and fell as it was unforeseeable that she would have a psychotic break and even a psychiatric consult would not have stopped her from suffering psychosis. Plaintiff’s medical expert failed to raise an issue on opinion defendants departed from accepted practice by not using a Wanderguard device based on only 1-page of the medical record without a review of decedent’s condition and did not identify the standard of care and how it was breached.

Defendants granted summary judgment dismissing negligence claims where incident was unforeseeable. Schreiber v New York City Health & Hosp. Corp.    

Malpractice   BP   Accepted Practice   Causation   Experts   Conclusory  

First Department
Plaintiff’s expert’s opinion of departure for failing to timely diagnose/treat early-stage sepsis failed to raise an issue in opposition as it was a new theory not included in the Complaint or BP which focused on a cardiac condition. Although plaintiff asked a few questions on infection and sepsis at defendants EBTs, the focus was on the cardiac condition in the pleadings and she did not ask any question on the Systematic Inflammatory Response Syndrome criteria relied on by her expert.

Plaintiff’s expert’s opinion on causation was conclusory without addressing plaintiff’s personal doctor’s intervening treatment. Valette v Correa    

Malpractice   Public Health §2801-d   Accepted Practice   Causation   Vicarious Liab   Experts   Speculation   Conclusory  

Second Department
Hospital and nursing home granted summary judgment dismissing malpractice and wrongful death claims on their experts’ opinions they did not depart from accepted practice in the prevention and treatment of decedent’s decubitus ulcers which were unavoidable due to his medical condition and comorbidities. Plaintiff’s expert failed to raise an issue in opposition with speculative and conclusory opinions that did not address decedent’s comorbidities or proximate cause. Nursing home granted summary judgment dismissing PHL §2801-d claims on proof decedent’s injuries were not the result of its employees’ negligence. Hospital not vicariously liable for independent attending physician who treated decedent at the hospital. Russell v River Manor Corp.    

Emotional Harm   Negligent Supervision   Negligent Hiring   Notice   Violent Propensity  

Second Department
Medical alert company granted summary judgment of negligent infliction of emotional harm for statement by its home service person to plaintiff that she would ‘be hanging on this [extension cord]’ as the allegations were solely of intentional, not negligent conduct. Negligent, hiring, retention, supervision, training claims dismissed on proof defendant did not and should not have known of employee’s propensity for such conduct and the employee went through an ‘Elder Sensitivity course.’ Aklipi v American Med. Alert Corp.    

Child Victims Act   Negligent Supervision   Motion to Dismiss  

First Department
Archdiocese’s motion to dismiss Child Victims Act case denied where the documentary evidence, including deed showing they did not own the property where the abuse occurred, did not ‘utterly refute’ plaintiff’s claims that the abusers were agents of the archdiocese who supervised and controlled them and that there was a special relationship between plaintiff, the archdiocese, and the abusers. J.A.F. v Roman Catholic Archdiocese of N.Y.    

Premises Liab   Sidewalk   Open/Obvious   Inherently Dangerous   Intervening Cause  

Second Department
Building owner denied summary judgment where plaintiff tripped and fell on erect cellar door on sidewalk at 9:30 PM with a number of people on the sidewalk which did not establish as a matter of law that the condition was open/obvious, not inherently dangerous, or that plaintiff’s failure to see and avoid the cellar door was a superseding cause. Oruc v Zelik    

Serious Injury   ROM   Causation   Experts  

First Department
Defendants met burden for summary judgment on serious injury for knee injury by orthopedist’s finding of normal ROM and that plaintiff’s symptoms completely resolved, and by a gap in treatment. Plaintiff raised an issue in opposition by treating orthopedist’s opinion that plaintiff’s injury required surgery during which he observed the meniscal tears, and she had persistent meaningful limitations on his findings of limited ROM. Defendants failed to meet burden on causation where their orthopedist noted that the meniscal tear is typically caused by a “twist” but did not opine it could not be caused by the accident and, in any event, plaintiff’s orthopedist explained the basis of his opinion that the injury was caused by the accident.

Plaintiff’s testimony that she stopped treatment when her insurance stopped paying and she could not afford to pay herself adequately explained the gap in treatment. Oputa v New York City Tr. Auth.    

MVA   There to be Seen   Graves Amendment  

Second Department
Defendants, driver and lessee of box truck that injured plaintiff when it struck his car door as he opened it granted summary judgment on proof plaintiff violated VTL §1214 by opening a car door into traffic when it was unsafe to do so and by failing to see what was there to be seen. Truck lessor granted summary judgment under Graves amendment on proof it owned the truck, was in the business of leasing vehicles, accident occurred during the term of the lease, and there were no triable issues of negligent maintenance. Dowd v Kharieh Bros., Inc.    

Labor Law §240   Labor Law §241   Ladder   Industrial Code   Sole Cause   Question of Fact  

First Department
Plaintiff met burden for summary judgment on Labor Law §240(1) bu his testimony he fell from unsecured A-frame ladder on top of scaffold and had to stand on top rung in order to access a roof, but defendants raised issues of fact on sole proximate cause by testimony of superintendent that he instructed plaintiff to use the scaffold’s built-in ladder instead of the A-frame ladder and to tie off and use fall protection equipment, raising issues of whether adequate safety devices were available and plaintiff was aware he was expected to use them but chose not to for no good reason.

Plaintiff’s equivocal testimony on whether the ladder was closed and leaning against the scaffold left questions on applicability of industrial code §23-1.21(b)(4)(iv)(leaning ladders). Rivera v Suydam 379 LLC    

Premises Liab   Unknown Cause   Dangerous Condition   Building Code  

Second Department
Defendants failed to show plaintiff could not identify the cause of her fall where she testified she tripped on the door saddle of store entrance and was struck by the sliding door but granted summary judgment on its expert’s opinion that neither the door saddle nor sliding door were defective. Industry standards relied on by plaintiff’s expert failed to raise an issue where they were inapplicable to a store entryway. Devoe v Nostrand II Meat Corp.    

Labor Law §240   Sole Cause  

First Department
Plaintiff denied summary judgment on Labor Law §240(1) where questions remained of whether 10-pipes weighing 10-50 pounds he placed in a debris cart, sticking 5′ out from the cart, was an elevation-related risk covered by §240, whether he was the sole cause of the accident on conflicting versions of whether he had permission to place the pipes in the cart for transport, and superintendent and site safety experts’ opinions that placing pipes in the cart posed an obvious risk that the cart would tip over. Cantre v BLDG Oceanside LLC    

Premises Liab   Stairs   Dangerous Condition   Experts   Notice   Speculation   Indemnity  

First Department
Defendants failed to meet burden for summary judgment without eliminating all questions of fact where their expert did not opine that the winder steps and handrail backstage at the Lyceum theater were not a dangerous condition, and defendants failed to show lack of constructive notice. Plaintiff’s testimony that she was carrying a laundry basket and holding onto a handrail on the right as she descended until the handrail ended at a turn where the steps narrowed, that she tried to grab for a handrail as she lost her balance and would have used a handrail on the left if there was one was not speculative.

Defendants denied summary judgment against producer for contractual indemnity where questions remained of their negligence. Scott v Lyceum Theatre Corp.    

Premises Liab   Dangerous Condition   Notice   Last Inspection  

Second Department
Store service-manager’s testimony he would remove the storage gate that fell on plaintiff from its track in the morning and replace it at 3:30 PM every day and plaintiff’s testimony, submitted by defendant, that a strong gust of wind knocked the storage gate down left issues of whether the gate had been properly secured to its track. Manager’s testimony that he would check the gate 2-3 times a day was insufficient to eliminate questions of constructive notice without testimony of the last time it was inspected before the accident. Pena v Pep Boys-Manny, Moe & Jack of Del., Inc.    

Premises Liab   Wet Floor   Create Condition   Notice   Last Inspection  

First Department
Building owner, manager, and plaintiff denied summary judgment for plaintiff’s slip and fall on wet floor in vestibule between inner and outer doors as defendants failed to show the last time the area was inspected and the super was aware of condition as he placed a mat and caution signs and plaintiff raised issues of fact of whether placing a short mat on a wet, glossy, new tile floor and failing to check that the caution signs remained in place were reasonable measures. Rodriguez v KWIK Realty, LLC    

Premises Liab   Stairs   Create Condition   Notice   Last Inspection  

First Department
Defendant which owned/managed building for 2-years failed to meet burden for summary judgment dismissing claim of worker who fell on steps without evidence of the last time the area was inspected prior to the accident, submitting only an unsworn ‘inspection report’ from 5-months before the accident, and plaintiff’s testimony, supported by a photograph, showed the steps were unstable and poorly lit. Gomez v Samaritan Daytop Vil., Inc.    

Sidewalk   Prior Written Notice   Big Apple Pothole   NYC  

Second Department
NYC met burden for summary judgment dismissing pedestrian’s claim she tripped on a cracked sidewalk covered in leaves in the middle of the sidewalk on searcher’s affidavit they did not receive prior written notice and faint uneven lines on Big Apple map that went through building which did not match any symbol on the map legend did not impart any knowledge to NYC and, in any event, lines went through a sidewalk area different from where plaintiff fell. Curb defect on map did not give notice of defect in middle of sidewalk. Nieves v City of New York    

MVA   Pedestrian   There to be Seen   Comparative Fault  

Second Department
Pedestrian granted summary judgment on truck driver’s testimony he never saw plaintiff before impact and proof the truck was travelling in the middle lane and plaintiff had crossed the opposing lanes of traffic and left lane before being hit, establishing defendants failed to see what was there to be seen and failed to avoid hitting the pedestrian. There was no evidence that plaintiff darted into the street. Comparative fault not relevant to determination of defendants’ negligence. Beityaaghoob v Klein    

Labor Law §240   Motion to Dismiss   Premature Motion  

First Department
Contractor’s motion to dismiss for failure to state a cause of action and for summary judgment denied where the Complaint adequately stated a cause of action against it and contractor’s president’s affidavit was not conclusive documentary evidence. Summary judgment motion was premature where president’s affidavit that it had no connection to the premises or work did not refute other evidence of it being on site, the president had not yet been disposed, and there was little discovery. Pineda v 525 SMA Owner LLC    

Labor Law §240   Safety Devices   Recalcitrant Worker   Sole Cause  

Second Department
Worker who fell off roof of private home during construction work granted summary judgment against GC on Labor Law §240(1) on proof there were no adequate safety devices and defendants failed to raise an issue on whether they violated §240 and on recalcitrant worker without proof plaintiff was aware of the location of adequate safety devices and that he was required to use them. Santiago v Hanley Group, Inc.    

Premises Liab   Stairs   Wet Floor   Notice   Last Inspection  

Second Department
Building owner failed to meet burden for summary judgment where plaintiff testified he saw wet condition on stairs hours before he eventually fell and building superintendent and porter only testified to general inspection proceedures and not the last time the area was inspected/cleaned before the accident, leaving questions of fact on constructive notice. Rolon v Arden 29, LLC    

Labor Law §240   Labor Law §241   Labor Law §200   Ladder  

Second Department
Owner of garage adjoining construction worksite granted summary judgment dismissing roofer’s Labor Law §§ 240(1), 241(6), 200 and negligence claims for fall from ladder while repairing hole in roof of garage on proof it never authorized or was aware of repairs to the garage and did not know plaintiff or his employer. I.P. v Bonilla    

MVA   Rear End   Nonnegligent Explanation  

Second Department
Proof that lead vehicle was stopped in traffic when rear ended by vehicle with plaintiff as a passenger established lead vehicle was not negligent. Plaintiff’s version of the accident showed vehicle he was in failed to maintain a safe distance from the lead vehicle and fact he didn’t see lead vehicle brake lights go did not, in and of itself, raise an issue of fact. Bello v Masters Auto Collision of Long Is., Inc.    

(2 summaries)

Premises Liab   Causation  

Second Department
Building owner failed to establish that leaking roof was not a proximate cause of pharmacy-employee’s injury from moving plastic tote with accumulated rainwater based on plaintiff’s testimony or that plaintiff was injured by a condition he was responsible for repairing. The Court does not give the details of the proofs. Marmol v Pina Constr. Corp.    

MVA   Consolidation  

Second Department
Lower court improvidently denied plaintiff’s motion to consolidate civil case under CPLR §602(b) where vehicle lessor, defendant in the Supreme Court action for decedent’s personal injuries and damage to the vehicle, sued decedent for damage to the leased vehicle as there were significant common questions of law and fact and joint trial would serve judicial economy. Sherpa v Ford Motor Co.    

About Matt McMahon

Civil trials and appeals since 1984. Retired partner McMahon | McCarthy.
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