May 17, 2022 | Vol. 313

(7 summaries)

Negligent Supervision   Duty   Notice   Causation   Foreseeability  

First Department
Hard-to-place youth residential facility denied summary judgment of negligent supervision claim on evidence it was aware resident wanted to return to her abuser and sex-work when its worker dropped plaintiff at a therapy session, spent 15-20 minutes finding a parking space, and did not wait inside the building making worker unable to intervene when plaintiff absconded from building as she could not see her leaving. The worker had a duty to exercise the care of ‘a parent of ordinary prudence’ to prevent plaintiff from absconding and returning to her abuser and sex-work where she was severely injured. Facility’s argument that the therapy agency, plaintiff’s abuser, and plaintiff herself caused plaintiff’s injuries rejected as a jury could find their actions foreseeable. Fernandez v MercyFirst    

Highway Design   Prior Written Notice   Duty   NYC  

First Department
NYC failed to meet burden for summary judgment dismissing highway design claim where it did not show that manner of prior accidents in area of Harlem River Drive were not similar to decedent’s accident or that they were not caused by a similar design defect. The First Department previously found the area defective for not providing turnouts and since then 11 more accidents occurred with vehicles stopped in the travel lanes. NYC’s argument that the cost of installing turnouts outweighed their benefits was rejected as failure to act is a breach of its nondelegable duty to keep its roads safe when aware of a dangerous condition and it does not take action to remedy it.

Negligent highway maintenance claim for potholes dismissed as there was no evidence decedent’s vehicle struck a pothole causing a tire to blow out and NYC proved it did not have prior written notice of a dangerous lighting condition. Chowdhury v Phillips    

Motion to Dismiss   Personal Juridiction   Service   Hearing  

Second Department
Lower court improperly denied defendants’ motions to dismiss for lack of jurisdiction without a hearing where defendants raised the issue of whether the service address in the affidavit of service by suitable age and discretion was their actual place of business at the time. The process server’s affidavit could not be amended under CPLR §305(c) as an erroneous address affects the defendants’ substantial right to notice of the action. Case remanded for a traverse hearing. Jampolskaya v Ilona Genis, MD, P.C.    

Renew   Reargument   Attorney Disqualification   Reasonable Excuse  

First Department
Plaintiff’s motion to renew/reargue attorney disqualification for failure to obtain written waiver of potential driver/passenger conflict, previously upheld by the First Department, providently denied where plaintiff submitted an affidavit consenting to the joint representation but did not explain why the consent was not submitted with the original motion. Sanyang v Davis    

Comment: The First Department’s original decision upholding the disqualification was reported in Vol. 284.

Premises Liab   CPLR § 3126   Preclusion   Willful/Contumacious   Indemnity   Premature Motion  

Second Department
Motion to strike the Complaint by the building owners and elevator company providently granted as plaintiff’s violation of 8-discovery orders over 5-years was willful/contumacious and the conditional order of preclusion became absolute on plaintiff’s failure to comply.

Owner granted summary judgment on contractual indemnity claim against elevator company on proof plaintiff’s injury was result of elevator company’s work where elevator suddenly moved causing the injury. Elevator company’s claim summary judgment was premature denied where it offered no evidentiary basis to show discovery might lead to relevant information or that information solely within owner’s knowledge was necessary to oppose the motion. Khan v 40 Wall Ltd. Partnership    

Child Victims Act   Admission   Amend Answer   Prejudice   Meritorious Defense   Experts   Consolidation  

First Department
Plaintiff granted summary judgment of Child Victims Act claim against her older brother for sexual assaults based on defendant’s admission of sexual acts with his sister until he was 15-years-old. Defendant’s motion to amend his Answer to include defenses of infancy and mental incapacity denied where plaintiff would be unduly prejudiced by amendment after completion of discovery, defendant violated penal codes applicable to persons at least 13-years-old, and expert opinion regarding mental incapacity was conclusory and not supported by evidence. Robb v Robb    

Comment: According to the lower court decision, the plaintiff was sexually assaulted for 5-6 years starting at age 4.

MVA   Bus   Set Aside Verdict   Waiver  

Second Department
Plaintiff’s motion to set aside judgment on verdict finding MTA bus driver negligent for suddenly accelerating after plaintiff boarded the bus but not a proximate cause of plaintiff’s injuries as inconsistent denied as waived where not raised before the jury was discharged and the finding of negligence but not proximate cause was not contrary to the weight of the evidence. Grivas v MTA Bus Co.    

(19 summaries)

Premises Liab   Notice of Claim   Prejudice   Reasonable Excuse   Meritorious Action   Court of Claims  

Second Department
Claimant’s motion to file a late Claim denied where original Claim did not specify the location of the accident and the proposed second Claim narrowed it to only 2-buildings on a location with more than 50-buildings. Claimant was unable to show a meritorious Claim as failure to provide a sufficiently detailed description of “the time when and place where” the claim arose under Court of Claims act §11(b) is a jurisdictional defect and claimant failed to provide a reasonable excuse for the delay. Laignelet v State of New York    

MVA   Highway Design   Notice of Claim   Court of Claims  

Second Department
Claimants’ motion for leave to serve a late Claim for accident where injured-claimant’s car hydroplaned on a puddle causing him to hit another vehicle and tree denied where claimants conceded the state did not have actual knowledge of the essential elements or an opportunity to investigate the claim, offered no excuse for the delay, and failed to show the state was not prejudiced by the 13-month delay in bringing the motion. Gray v State of New York    

Discovery   HIPAA   Privilege   Preclusion   Sanctions   Willful/Contumacious  

Second Department
Defendant’s motion to compel plaintiff to provide HIPAA authorizations for a prior accident and stroke denied as a plaintiff does not waive privilege to unrelated medical conditions and defendant did not show the requested records related to the current action. Defendant also failed to show requested union records were material and necessary. Sanctions against plaintiffs denied where substantial compliance with the numerous discovery orders showed their actions were not willful/contumacious. Fitzpatrick v Consolidated Resistance Co. of Am., Inc.    

Malpractice   Negligent Hiring   Accepted Practice   Causation   Experts   Raised For First Time  

First Department
Plaintiff’s expert, a licensed pharmacist, pharmacologist, toxicologist, and physician, raised issues of fact by opinions which conflicted with hospital’s expert’s opinions regarding the standard of care for monitoring frequency of gentamicin, significance of tremors and creatinine levels as evidence of toxicity, and availability of extended interval dosing option. Hospital’s expert’s opinion on tremors and creatinine levels not considered where offered in reply as plaintiff had no opportunity to respond.

Negligent hiring claim that hospital should have known of doctor’s ‘propensity for the sort of conduct which caused the injury’ dismissed without evidence to support the claim. Kuhfeldt v New York Presbyt./Weill Cornell Med. Ctr.    

Malpractice   Accepted Practice   Causation   Experts  

Second Department
Orthopedic surgeon made out entitlement to summary judgment but plaintiff’s expert raised issues of fact by opinion surgeon departed from accepted practice by performing lateral retinaculum release early in knee replacement surgery and should have instead made femoral and tibial cuts and invert the patella. The operative report showed the defendant did not make femoral cuts until after the lateral release.

Defendant failed to meet burden for summary judgment on causation where the expert’s opinion that the subsequent patellar tendon rupture was caused by plaintiff climbing stairs was contradicted by the plaintiff’s testimony that she did not climb stairs and the opinion was conclusory as it did not explain how climbing stairs could cause the rupture. The burden of proof on causation never switched to the plaintiff. Martins v Fontanetta    

Labor Law §240   Duty   Agent   Safety Devices  

Second Department
Condominium unit owners and their lessees granted summary judgment of plaintiff’s Labor Law §240(1) claim where a dislodged portion of pipe that serviced the building dislodged and fell on his back as he bent down to get a tool while standing on a scaffold since they were not owners, contractors, or agents under §240 and only the board of managers was responsible for the “common elements” of the building. Plaintiff denied summary judgment against the building owner where he failed to show that lack of a §240 safety device caused his injury Lewis v Lester    

Discovery   Strike Answer   CPLR § 3126   Willful/Contumacious  

First Department
Plaintiff’s motion to strike defendant’s Answer under CPLR §3126 for not fully complying with discovery demands, orders, and stipulations providently denied where there was no evidence actions were willful/contumacious or in bad faith and lower court did not improperly reverse or overrule any prior findings or determinations. Skuric v Montefiore Med. Ctr.-Jack D. Weiler Hosp. of Albert Einstein Coll. Div.    

Premises Liab   Snow/Ice   Sidewalk   § 7-210   Homeowner Exception   Create Condition  

Second Department
Abutting landowner of 1-family house had no duty to remove snow on sidewalk under homeowner exception to administrative code §7-210 but was denied summary judgment where he failed to submit proof that neither he nor someone on his behalf attempted to remove the snow/ice and did not create or exacerbate the hazardous condition. Sheikh v Chinatomby    

Premises Liab   Snow/Ice   Storm in Progress   Experts   Amend Complaint   Prejudice   Indemnity  

First Department
Building granted summary judgment on meteorological expert’s opinion, climatological records, and testimony of plaintiff that it was snowing heavily when he arrived at building and still snowing when he left 4-hours later and when he slipped 1-hour later establishing storm in progress. Plaintiff’s claim that defendants created the ice condition by their snow removal efforts failed to raise an issue without an expert opinion of how failure to sand/salt before the accident created or exacerbated the naturally occurring condition. Plaintiff’s motion to amend Complaint to correct the accident date granted as it did not prejudice defendants and was not devoid of merit.

The Court took judicial notice of an order denying defendants summary judgment on their contractual indemnity claim not in the appellate record and affirmed the order as defendants, not the third-party-defendant-tenant, were responsible for maintaining the driveway under the lease. Colon v Site A – Wash. Hgts.    

Malpractice   Wrongful Death   Informed Consent   Duty  

Second Department
Defendants granted summary judgment of negligence and wrongful death claims on proof home health aide who was in the bedroom provided for her during overnight hours did not have a duty to continuously monitor the 87-year-old decedent who fell in her own bedroom during overnight hours. Medical malpractice and informed consent claims dismissed where there was no evidence of a physician-patient relationship. Tanzman v Ghislaine    

MVA   Bicycle   Experts   Speculation  

First Department
Truck owner and driver granted summary judgment on photographs of skid marks, eye-witness testimony, and accident reconstructionist’s opinion that the truck never left its lane when plaintiff-bicyclist swerved to his right to avoid a pedestrian, collided with the truck, and fell under its wheels. Plaintiff’s expert did not dispute moving-defendants’ proof truck stayed in its lane and opinion that truck was required to keep 3’ from bike while passing was not supported by any law or industry standard. Plaintiff’s claim truck crossed into bike lane was speculative. Deutch v City of New York    

MVA   Bus   Comparative Fault   Emergency Doctrine   Question of Fact  

First Department
Plaintiff denied summary judgment on conflicting versions of accident, plaintiff claiming bus driver pulled out of bus stop without yielding right away and bus driver claiming plaintiff cut in front of him. Plaintiff’s motion to strike affirmative defenses of comparative fault, emergency doctrine, and failure to mitigate damages denied but granted as to affirmative defense of failure to wear a seatbelt where NYCTA offered no evidence to contradict plaintiff’s testimony she was wearing a seatbelt. Prak v New York City Tr. Auth.    

MVA   There to be Seen  

Second Department
Driver of vehicle with plaintiff-passenger granted summary judgment, which plaintiff did not oppose, on moving defendant’s testimony and testimony of codefendant driver of vehicle they collided with establishing codefendant failed to yield the the right-of-way and moving defendant had only seconds to react. Hamer v Dunn    

Motion to Dismiss   Statute of Limitations   Service  

First Department
Lower court providently denied individual defendant’s motion to dismiss on claim plaintiff improperly used CPLR §1024 to identify him as plaintiff diligently tried to identify the defendant and sufficiently described him in order to provide notice that he was the intended defendant, and the defendant was served within the statute of limitations. Strautmanis v GMDC Two Corp.    

Premises Liab   Elevator   Question of Fact   Res Ipsa Loquitor  

First Department
Plaintiff’s motion for summary judgment denied on conflicting estimates of height differential of misleveling elevator and question of whether elevator company had actual or constructive notice of the condition as prior complaints did not specify the elevator involved, most witnesses to the misleveling never reported it, several employees testified to using the elevator for years without a problem, and there were no repair records indicating misleveling of the elevator. The open questions of fact made summary judgment on res ipsa loquitor inappropriate. Dyer-Crewe v Schindler El. Corp.    

Premises Liab   Stairs   Open/Obvious   Inherently Dangerous   Notice   Last Inspection   NYC  

First Department
NYC failed to meet burden for summary judgment where issues remained of whether defect on park stairs was open/obvious and not inherently dangerous and it did not eliminate question of constructive notice without evidence of last time area was clean/inspected. Vague testimony of park supervisor that he would sometimes walk the stairs during his inspections was insufficient to eliminate questions constructive notice. Simo v City of New York    

Premises Liab   Control   Duty   Reargument   NYC  

First Department
NYC failed to meet burden for summary judgment where nail claw fell from overhead train station during renovation and struck plaintiff as issues remained of defendants’ direction, supervision, and control of the independent contractor, whether defendants breached a nondelegable duty to maintain the station in a reasonably safe condition, and whether the work posed an inherent danger to pedestrians on the sidewalk. Elgahsh v City of New York    

MVA   Pileup   Premature Motion   Conclusory   Speculation  

First Department
Cross-motions for summary judgment brought by 3-defendants in a 4-vehicle pileup, where plaintiff was a passenger in lead vehicle, denied as premature without prejudice to renew after discovery as 2 of the defendants did not submit affidavits by someone with knowledge of the facts and the other defendant’s short affidavit was conclusory. Vazquez v Randall    

Construction Liab.   Create Condition   Notice   Last Inspection   Open/Obvious   Inherently Dangerous  

Second Department
Contractor denied summary judgment where plaintiff tripped over cinder block on sidewalk adjacent to work as constructive notice issue remained without proof of last time area was cleaned/inspected and contractor failed to show that cinder block was open/obvious and not inherently dangerous. Ferrer v 120 Union Ave., LLC    

(2 summaries)

MVA   Graves Amendment  

Second Department
Plaintiff failed to meet her burden of showing defendant-vehicle-owners were not protected by Graves Amendment and the burden never shifted to those defendants. The Court does not give the details of the proofs. Keys v PV Holding Corp.    

Serious Injury   Causation  

Second Department
Plaintiff conceded that defendant met his burden of showing no serious injury but raised issues on permanent consequential and significant limitation categories for his lumbar injuries and on causation. The Court does not give the details of the proofs. Rivera v Ramirez    

About Matt McMahon

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