May 19, 2020 | Vol. 211

(5 summaries)

Negligent Supervision   Highway Design   Duty   Sole Cause   Foreseeability   Conclusory   Premature Motion   NYC  

First Department
Charter after-school program and NYC denied summary judgment where they proved child was released from school’s custody but failed to prove he was released into a safe spot that was not a foreseeably hazardous setting where child, brother, and friends played a game and infant-plaintiff ran into the street and was hit by a car shortly after release. Plaintiff not required to show hazardous environment resulted from statutory violation. School’s proof showed they escorted plaintiff to exit on street without signs, reduced speed limit, speed bumps that were prior release exit on street on other side of school, failing to show that infant provided with alternative safe exit, or infant was sole cause of accident, and showing this type of accident was foreseeable. Affidavit of School’s employee claiming that NYC was solely responsible for changing exit point was conclusory. Denial of summary judgment in part because of outstanding discovery proper. Cruz v City of New York

Premises Liab   Set Aside Verdict   Misrepresentation  

Second Department
Verdict for plumbing contractor who plaintiff claimed left pipe he fell on in tunnel he was inspecting set aside in the interest of justice where defense counsel misrepresented to jury that witness who inspected tunnel after the accident and testified that none of the defendants’ pipes were there was an independent witness with no connection to the defendants and not on their payroll when in fact he was an interested witness employed by the defendant, discovered for the first time after the verdict as he was not disclosed as an expert. Jury should have been allowed to consider witnesses bias based on employment status and error could not be considered harmless. D’Amato v WDF Dev., LLC

Labor Law §240   Homeowner Exception   Amend Answer   Prejudice   Errata Sheet   Untimely  

First Department
Plaintiff hired directly by homeowner entitled to protection of Labor Law §240(1) whether hired for clean-up or demolition because work was part of larger construction project. Defendant’s failure to plead homeowner exception not fatal where plaintiff not surprised and had opportunity to oppose. Question of fact remained on whether home was 1-2 or 2-3 family house where record insufficient to establish whether basement was occupied by a relative not paying rent or tenant requiring denial of plaintiff’s motion for summary judgment. Plaintiff’s errata sheet rejected as untimely where submitted 7 months after receiving transcript, included in opposition without a reasonable explanation for delay. Information in errata sheet properly contained in defendant’s affidavit and to extent it was nonconforming, defendant directed to correct it nunc pro tunc with proper conforming affidavit. Parra v Cardenas

Med Mal   Vacate Default   Untimely   Reasonable Excuse   Meritorious Action   Expert Aff  

Second Department
Motion to vacate default in opposing defendants’ motions for summary judgment granted and remitted for decision on the motion where plaintiff submitted opposition on date for reply, 3-weeks after opposition due under stipulation, claiming law office failure in misinterpreting date for opposition. Given delay was “brief, isolated, and unintentional, with no evidence of willful neglect” and policy favoring deciding motions on merits, it was an abuse of discretion to deny the motion. Law office failure can provide a reasonable excuse and plaintiff’s expert’s affidavit showed meritorious defense under CPLR §5015(a)(1). Jackson v Kothuru

MVA   Vacate Jud   Comparative Fault  

First Department
Judgment finding defendant 100% at fault prior to trial on comparative fault providently vacated as prior First Department decision plaintiff claimed proved defendants’ negligence in causing MVA, found plaintiff raised question of fact, noting that plaintiff was not required to prove freedom from comparative fault, which did not establish that defendant was 100% liable or the plaintiff free from comparative fault. Silverio v Ford Motor Co.

(18 summaries)

Labor Law §240   Ladder   Gravity Risk  

First Department
Plaintiff denied summary judgment where employer testified plaintiff was instructed not to paint areas he could not reach from the ground, raising question of whether he was covered by Labor Law §240(1) as not exposed to elevated height risk. Orellana v Mo-Hak Assoc., LLC

Products Liab   Comparative Fault   Motion to Dismiss   Indemnity  

Second Department
Motion for summary judgment by third-party defendants, parents of 10-month infant plaintiff who was burned when humidifier tipped over spilling hot water on her, granted as there is no cause of action for parental negligence of their child, directly or for contribution, under case law and GOL §3-111. The only exception is breach of a duty owed to the public at large. Martinez v Kaz USA, Inc.

Comment: In related decision, appeals dismissed as motion to dismiss for failure to state a cause of action resolved by motion for summary judgment and there is no appeal from denial of a motion to reargue. Martinez v Kaz USA, Inc..

MVA   Rear End   Pileup   Comparative Fault   Causation   Nonnegligent Explanation  

First Department
Taxi driver who stopped short causing plaintiff’s vehicle to strike rear of vehicle behind taxi denied summary judgment where a jury could find stopping short in unobstructed lane was a cause of plaintiff striking the vehicle in front of him. Middle car granted summary judgment where she stopped car without striking taxi and plaintiff failed to offer nonnegligent explanation for the rear end collision. Newell v Bronston

Labor Law §241   Labor Law §200   Industrial Code   Create Condition  

Second Department
Electrical subcontractor who left wires dangling from ceiling that concrete worker tripped over granted summary judgment of Labor Law §241(6) premised on §23-1.7(e)(2)(debris) because wires were “integral to the work being performed,” and on searching record owner and general contractor also granted summary judgment on §241(6). Electrical subcontractor denied summary judgment on Labor Law §200 and negligence claims where plaintiff alleged dangerous condition, not means and methods of work, and question of fact remained on whether its employees created dangerous condition. Martinez v 281 Broadway Holdings, LLC

Comment: See companion decision below

Labor Law §200   Comparative Fault   Indemnity  

Second Department
Lower court clarified it’s prior decision was not intended to grant summary judgment to concrete worker who tripped on hanging wires at construction site but findings that electrical subcontractor created dangerous condition vacated as improper issue determination, not issue finding. Sua sponte dismissal of electrical subcontractor’s affirmative defense of comparative fault reversed where question existed on whether condition was readily observable by plaintiff. Building owner granted summary judgment on contractual indemnity against electrical subcontractor on contract provision and proof that owner was not negligent. Martinez v 281 Broadway Holdings, LLC

Comment: See companion decision above.

Premises Liab   Slip/Trip   Wet Floor   Notice   Last Inspection   Recurring Condition   Expert Aff   Speculation  

First Department
Defendants granted summary judgment on proof they took reasonable efforts to prevent slippery condition from snow/rain on day plaintiff fell in lobby, including 80′-100’of absorbent mats, inspecting area an hour before fall, assigning porters to regularly inspect lobby and mop any water, and fact that plaintiff did not see water on floor before her fall. Plaintiff failed to show a recurring condition that was routinely not addressed by testimony of former janitorial service employee and plaintiff’s expert described only general conditions, not mentioning date of accident, and agreeing that defendants had a reasonable cleaning routine. Expert’s opinion speculative where based on photographs and testimony which could not determine how slippery floor was. DeCongelio v Metro Fund, LLC

Premises Liab   Slip/Trip   Snow/Ice   Storm in Progress   Dangerous Condition   Question of Fact  

Second Department
Without climatological data school and district failed to meet burden for summary judgment on storm in progress, failing to show it did not have notice and opportunity to clear snow before infant-plaintiff’s accident, or that curb did not constitute dangerous condition and was not defectively designed. Conflicts between infant plaintiff’s 50-H transcript where she testified there was no snow, just rain, and EBT where she testified snow started 90-minutes before accident only raised issues of fact. Cartolano v Cornwell Ave. Elementary Sch.

Premises Liab   Notice   Recurring Condition   Question of Fact  

First Department
NYCHA denied summary judgment for tree branch falling on plaintiff where it had notice of a recurring condition of branches falling from tree, sufficient time to correct it before accident, and failed to do so. Falling branches provided “some other basis” for inferring defendant should have known of dangerous condition even where trees appeared healthy on inspection. NYCHA’s tree expert’s examination 3-years after accident, finding trees healthy, did not eliminate questions where groundskeeper’s log and plaintiff’s testimony contradicted conclusion. Louallen v New York City Hous. Auth.

Preclusion   Discovery  

Second Department
Defendant denied summary judgment on claim plaintiff precluded from offering any evidence at trial on liability or damages based on stipulation that plaintiff would provide specific items in discovery which were not provided because stipulation only provided plaintiff would be precluded from evidence of those specific items, not all testimony or evidence on liability and damages. Vlahos v Robert

Labor Law §200   Labor Law §241   Industrial Code   Dangerous Condition   Notice   Last Inspection   Open/Obvious   Comparative Fault  

First Department
Contractor’s motion for summary judgment dismissing Labor Law §200 and negligence claims denied where contract required it to look for dangerous conditions on a daily basis and iron rods and debris scattered around worksite that caused cart to get stuck and plaintiff’s hand to be pinned against iron jack severing tip of index finger when coworkers tried to push it was a dangerous premises condition and contractor failed to show last time area was cleaned or inspected necessary to eliminate question of constructive notice. Issue of open/obvious goes only to comparative fault, not constructive notice. Labor Law §241(6) claims dismissed against all defendants where §§ 23-1.7(e)(1) did not apply because neither plaintiff nor cart slipped/tripped, 23-1.7(e)(2) not applicable because iron rods were integral part of work, and 23-1.28(a) and (b) not applicable because accident not caused by defective wheels. Spencer v Term Fulton Realty Corp.

MVA   Discovery  

Second Department
Plaintiff struck by taxi whose driver stated he worked for different taxi company than one sued and deposed, previously granted leave to add additional taxi company and granted new deposition of original taxi company if new taxi company, which had not yet been served, could not provide information regarding relationship between the two companies. Corporation has right to designate witness and plaintiff showed that witness produced had insufficient knowledge regarding relationship and that there was substantial likelihood additional witness could provide relevant information. Events after original order not properly before the court on appeal. Monti v Shaw

Premises Liab   Slip/Trip   Sidewalk   Snow/Ice   Duty   § 7-210   Causation  

Second Department
Adjoining landowner granted summary judgment where plaintiff walking in narrow shoveled pathway on sidewalk stepped aside to avoid oncoming people, stepping into tree well where tree had been removed, covered with snow the same height as sidewalk as administrative code §7-210 does not apply to tree wells and defendant showed it did not create or make special use of the tree well. Shoveled pathway was not a proximate cause of the accident. Iskhakbayev v Casol Realty, LLC

Premises Liab   Slip/Trip   Stairs   Unknown Cause  

First Department
Defendant denied summary judgment where plaintiff testified hand truck got stuck in hole or crack in stair that he was unable to see before accident because it was dark and cart was in front of him, sufficiently identifying cause of his fall. Inconsistencies between plaintiff’s and coworkers’ testimony goes to credibility for finder of fact. Alvarado v Grocery

Serious Injury   ROM   Unaffirmed Report   Degenerative   Preexisting   Expert Aff  

First Department
Defendant entitled to summary judgment on orthopedic expert report showing normal ROM in knee, ER records inconsistent with claimed knee injury, and operative report showing degenerative condition not related to accident. Plaintiff’s expert’s unaffirmed report not be considered and, in any event, showed only 8° loss of ROM, insufficient for serious injury, and did not address degenerative condition. Morrison v Santana

MVA   Bicycle   There to be Seen   Comparative Fault   Speculation   Premature Motion   Nonnegligent Explanation  

First Department
Bicyclist granted summary judgment where dash cam showed bicyclist on right side of lane establishing truck driver failed to see what was there to be seen or maintain proper distance from bicycle. Truck driver’s claim that bicycle suddenly entered lane from sidewalk and did not have reflective equipment was speculative, contradicted by video, and would only raise issues of comparative fault. Motion not premature as defendants would have had knowledge of any nonnegligent explanation. Plaintiff not required to show freedom of comparative fault for summary judgment. Fernandez v Ortiz

MVA   Pedestrian   Raised For First Time   Comparative Fault  

First Department
Pedestrian’s motion for summary judgment and to dismiss affirmative defense of comparative fault denied where defendant’s testimony that she looked left and right before pulling out of parking space, watching rear view camera the entire time and did not see anyone raised an issue of fact. Violation of VTL §1121(a) not considered where raised for first time in reply. Plaintiff’s testimony that before being hit she turned to look behind her and momentarily stopped observing traffic conditions ahead left question of fact on comparative fault. Gil v Jewish Bd. of Family & Children

Serious Injury  

Second Department
Defendants failed to meet burden for summary judgment on serious injury where they failed to submit competent medical proof that plaintiff did not sustain a fracture as alleged. Knight v James

Premises Liab   Slip/Trip   De Minimus   Open/Obvious   Inherently Dangerous   Unknown Cause  

Second Department
Commercial tenant denied summary judgment after building granted summary judgment where questions of fact remained on whether uneven grate and surrounding area in middle of parking lot was trivial considering surrounding circumstances, was open/obvious and not inherently dangerous, and plaintiff’s testimony sufficiently identified uneven grate and surrounding circumstances as the cause of fall. Bishop v Pennsylvania Ave. Mgt., LLC

(1 summaries)

Premises Liab   Slip/Trip   Sidewalk   Unknown Cause   Speculation  

Second Department
Town granted summary judgment on plaintiff’s 50-H hearing and EBT establishing she could not identify cause of fall without speculation. The court does not give the details of the proofs. Dasilva v Shah

About Matt McMahon

Civil trials and appeals since 1984
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