Premises Liab Sole Cause Survelliance Video Question of Fact Experts
 Defendants’ expert’s affidavit opining plaintiff was sole cause of elevator coming to a sudden stop because she did not fully close gate did not establish claim where video expert relied on was not part of record since it was not included with electronically filed motion, inserting only exhibit stating it would be provided “upon the Court’s request.” Items that cannot be practically e-filed are submitted with NYSCEF Form EF 21. Neither still images nor expert’s opinion established plaintiff did not fully close scissor gait and defendant’s expert’s affidavit raised questions of whether elevator was defective if it could rise without gait fully closed. Amezquita v RCPI Landmark Props., LLC ✉
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Governmental Immunity
 Nonprofit ATV Association and defendant-volunteer who caused tree to fell on plaintiff-volunteer and broke his leg while they were maintaining ATV-trail granted summary judgment under Federal Volunteer Protection Act, 42 USC §14501 et seq., on proof defendant-volunteer was acting within scope of responsibilities for NPO and accident was not caused by willful, criminal, or reckless conduct, gross negligence or flagrant indifference to rights or safety of others. Jeraci v Cooper ✉
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Malpractice Directed Verdict Set Aside Verdict Accepted Practice Causation Experts Hearsay Admissibility Raised For First Time Jury Charge
Hospital properly granted directed verdict where plaintiffs’ expert opined hospital deviated by underestimating fall risk for decedent who fell after quickly standing to answer phone but admitted on cross that fall protocol actually implemented was appropriate and that only doctors could order bed rest and 1-on-1 observation. Verdict in favor of doctors could be reached on fair interpretation of evidence as jury could credit proof fall procedures were appropriate and did not cause decedent’s injuries.
Trial court providently precluded decedent’s autopsy and expiration reports as opinions of cause of death in an autopsy report are inadmissible hearsay. Plaintiffs’ argument autopsy findings were admissible to confirm decedent’s injuries not preserved where not raised below nor did plaintiffs object to limitation on decedent’s adult children’s testimony. Preclusion of plaintiffs’ second expert appropriate exercise of discretion as cumulative. The jury was not substantially confused by verdict sheet or charges. Rucigay v Wyckoff Hgts. Med. Ctr. ✉
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Motion to Dismiss Res Judicata
Supermarket’s motion to dismiss, claiming res judicata from prior stipulation to discontinue against a different defendant at a different location, denied as res judicata applies to actions arising out of the “same transaction,” not the same accident, and the second lawsuit was for the accident at a different location than alleged in the first. “With prejudice,” language of stipulation of discontinuance in first action is narrowly construed to only preclude another suit alleging accident at that location. CPLR §3217(c) prohibition against multiple suits did not apply as prior suits were discontinued for good cause and not harassment. Martinez v JRL Food Corp. ✉
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Malpractice Motion to Dismiss Discovery Willful/Contumacious Reasonable Excuse
Pro se plaintiff’s Complaint dismissed where she willfully refused to answer questions regarding a specific time period at her continued EBT as required by court order. Records that may not be admissible at trial can be used at EBT and plaintiff’s disagreement with court’s directives was not a reasonable excuse for not complying. Jones v FEGS-WeCARE/Human Resources, NYC ✉
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Sepulcher Special Duty Governmental Function Governmental Immunity NYC
NYC had special duty to notify next of kin of decedent’s death which is a nondiscretionary ministerial act not subject to governmental immunity, but it did not have information necessary to notify next of kin until they contacted NYC months later. Reid v City of New York ✉
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Discovery HIPAA BP Causation Experts
Lower court providently ordered disclosure of 6-months prior psychological and medical records on proof they were necessary to determine cause of plaintiff’s hospitalization after accident and denied request for 8-years of records where NYCTA failed to show they were material and necessary to assess causation, plaintiff’s recovery, or prognosis and its expert gave only generalized opinion they were necessary to determine life expectancy and evidence of plaintiffs overall health had been disclosed. Plaintiff did not raise loss of enjoyment of life claim in BP and defendant failed to show past mental health or substance abuse history was related to accident or prior conditions were exacerbated by accident. Hunlock v New York City Tr. Auth. ✉
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Malpractice Informed Consent Accepted Practice Causation Res Ipsa Loquitor Raised For First Time Experts
Defendants entitled to summary judgment on expert’s opinions facet joint injections and dosage of corticosteroid were within applicable standard of care and that plaintiff gave informed consent. Plaintiff’s claim defendant-doctor did not use proper sterile technique not supported by record. Plaintiff’s expert’s opinion that dose was excessive based solely on manufacturer’s recommendations as standard of care failed to raise issue and expert failed to opine any lack of informed consent was a cause of injuries. Res ipsa loquitor raised for first time on appeal not considered and in any event plaintiff failed to show infection would not have happened absent negligence. Thaler v Varlotta ✉
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Construction Liab. Workers Comp Defense
Defendant, convention service company, granted summary judgment on workers compensation exclusivity clause where worker employed by company operating Jacob Javits Center was injured through actions of workers while they dismantled a nonparty’s booth for defendant. Workers were general employees of plaintiff’s employer, defendant reimbursed general employer for their wages but did not supervise the work or always have a supervisor on site, plaintiff did not claim coworkers were special employees of defendant, and his employer always had a foreman on site and assigned carpenters to work with the defendant establishing coworkers were not special employees of defendant. Cruz v National Convention Servs., LLC ✉
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Malpractice Informed Consent Accepted Practice Causation Experts
Defendants’ expert failed to eliminate all questions of fact where opinions did not rebut specific allegations of departures including improperly performing transrectal prostate biopsy, causing a laceration, and failing to perform a proper examination before discharging plaintiff despite repeated complaints of rectal bleeding, and whether these departures were a proximate cause of plaintiff’s injuries. Defendants also failed to show plaintiff was reasonably informed of foreseeable risks and a reasonably prudent person would have undergone the treatment if fully informed. Huichun Feng v Accord Physicians, PLLC ✉
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Asbestos Products Liab Motion to Dismiss Forum non conveniens
Defendant failed to meet its “heavy burden” of showing its talcum products had no substantial nexus with New York where its own records show it developed and marketed them in NYC during time of decedent’s exposure. English v Procter & Gamble Mfg. Co. ✉
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Premises Liab Create Condition Admissibility Actual Knowledge Raised For First Time Premature Motion
BP Oil denied summary judgment where it relied on affidavit of executive without knowledge of whether they delivered gas to station where plaintiff tripped on raised gas cap, and affidavit from executive with knowledge not considered when submitted for first time in reply to correct fundamental error in motion, not to address opposition. Motion was premature as plaintiff showed essential facts exclusively withing BP’s possession were necessary to oppose motion where dealer agreement granted BP 24 access to deliver gas to gas station and summary judgment motion deprived plaintiff depositions of witnesses with knowledge of whether BP delivered gas to station before accident. Blackstock v Accede Inc. ✉
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Prior Written Notice § 7-210 Big Apple Pothole Spoliation NYC
Plaintiff’s motion for summary judgment on issue of NYC’s prior written notice denied where “v” notation on Big Apple Pothole map from 2003 showing tree well lacked railing did not given notice of depressed and uneven condition within the tree well plaintiff claimed caused her fall as notice of one condition does not provide notice of unstated conditions. Plaintiff failed to meet burden for spoliation sanctions, that NYC had obligation to preserve evidence, evidence was destroyed with culpable state of mind, and evidence was relevant to and would support her claim. Fisch v City of New York ✉
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Labor Law §240 Gravity Risk Safety Devices Comparative Fault
Plaintiff who slipped on mud while attempting to lift heavy support beam denied summary judgment on Labor Law §240(1) as questions remained of whether injury was caused by failure to provide safety devices to protect against a physically significant height differential. Plaintiff’s lifting of beam would be no more than comparative fault which is not a defense under §240. Summary judgment on indemnity claims premature. Greene v Raynors Lane Prop. LLC ✉
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Premises Liab Assumption of Risk Open/Obvious NYC
Photographs showing tear or seam in softball field turf left question of whether hole 16-year-old experience softball player’s foot went into was open/obvious or concealed danger that unreasonably increased risks to players. A.S. v City of New York ✉
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Serious Injury ROM Experts
Defendant granted summary judgment on orthopedic surgeon’s finding of full or only slightly limited ROM, that injuries resolved and radiologist’s report finding post-accident MRIs showed only preexisting degenerative changes not related to an accident. Plaintiff’s expert’s only examination 6-years after accident too remote to raise issue and expert failed to address MVAs before and after accident that plaintiff claimed caused spinal injuries, the findings of prior degenerative conditions on plaintiff’s cervical and lumbar MRIs, or plaintiff’s history of chronic neck/back pain in his medical records. Plaintiff offered only minor, temporary complaints of his hip, elbow, and knee insufficient for serious injury. Without causal connection, and where plaintiff testified he was confined for only a few days after accident, 90/180-day claim dismissed. Antepara v Garcia ✉
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Premises Liab Snow/Ice 3rd Party Contractor Espinal
Snow removal contractor failed to meet burden for summary judgment where plaintiff alleged ice she slipped on in parking lot was caused by snow removal efforts and evidence showed defendant piled snow in large mounds in parking lot and against building. Defendant failed to eliminate questions of whether melted snow from mounds created ice that caused plaintiff’s fall. Nicosia v Bucky Demelas & Son Landscape Contrs., Inc. ✉
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Premises Liab Stairs BP Experts Speculation
Defendant made out prima facie entitlement to summary judgment on plaintiff’s testimony his foot slipped on smooth step without liquid, debris, or other substances as a worn tread, in and of itself, is not an actionable defect. Plaintiff’s expert’s unaffirmed report speculative where expert did not inspect stairs, opinions were based on unauthenticated photographs, plaintiff was unable to identify portion of step he slipped on, an neither BP nor plaintiff’s testimony mentioned inadequate lighting or violations of multiple dwelling law and multiple dwelling law provisions cited were inapplicable. Wong v 15 Monroe Realty Inc. ✉
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Premises Liab Create Condition Notice Last Inspection
Supermarket failed to meet burden for summary judgment without proof it did not create or have notice of rolled up carpet plaintiff tripped on and did not show last time area was cleaned/inspected. General cleaning principles insufficient to eliminate questions of constructive notice. Reagan v Delmonico Mkt. Place, Inc. ✉
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Pothole Law Prior Written Notice 3rd Party Contractor Create Condition Espinal NYC
NYC granted summary judgment where plaintiff’s foot got stuck in roadway hole causing him to trip on proof it did not receive prior written notice and plaintiff failed to show NYC created the condition or it was result of a special use. Contractor hired by NYC to perform work on roadway granted summary judgment on proof it did no work in area where plaintiff fell and did not create the defect. Ocello v City of New York ✉
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MVA Turning Vehicle Sole Cause
Access-a-ride and driver granted summary judgment where plaintiff pulled into bus lane at bus stop near red light and collided with defendants’ van as it made a right-hand turn from the only lane of traffic as plaintiff failed to yield the right-of-way. St-Cyr v New York City Tr. Auth. ✉
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