May 2, 2017 | Vol. 52

MUST READS
(8 summaries)
NOTEWORTHY IF YOU MUST READ

Labor Law §240   Ladder   Vacate Default   Reasonable Excuse   Meritorious Defense   Materially Deviates   Inquest  

First

The lower court should have denied defendants’ motion to vacate their default made 41/2 years after the action was commenced where defendants received the original Summons and Complaint, multiple motions for default, notice of inquest, and judgment for $900,000 after inquest. Defendant could not claim that it reasonably believed its insurer was protecting its rights. Because there was no indication of whether the MRI’s were reviewed, or diagnostic tests placed in evidence at the inquest, the court found the award materially deviated from reasonable compensation and remanded for a new inquest at which the defendants would have a full opportunity to confront the plaintiff’s proofs. There was 1 dissent. Gecaj v Gjonaj Realty & Mgt. Corp.

Comment: The majority and dissenting opinions include a rare spat over reliance on Second Department cases.


Med Mal   Discovery   Preclusion   Strike Answer  

Second Deptartment

Plaintiff’s motion to strike defendants’ Answer and to preclude defendant from introducing evidence of Facebook pages marked as an exhibit at plaintiff’s 4th deposition granted only to the extent of precluding defendants from introducing the Facebook pages at trial unless defendants produce the person who found and printed the pages for the deposition. Lantigua v Goldstein

Comment: As social media becomes a more prevalent area of attack on credibility, this case gives the parties the important tool of demanding a deposition of the source of such pages which can be deceptive.


Wrongful Death   Motion to Dismiss   Service   CPLR §306-b  

Second Deptartment

Defendants’ for summary judgment based on lack of service within 120 days of purchasing index number should have been granted and plaintiffs’ motion to extend their time to serve the Complaint pursuant to CPLR §306-b denied where plaintiff failed to submit proof to substantiate attorney’s claim that the service was attempted during the 120 days. Plaintiff’s extreme lack of diligence and failure to provide a reasonable excuse defeated their claim that the extension should be granted in the interest of justice. Umana v Sofola


Notice of Claim   Service  

Second Deptartment

NYCHA’s motion to dismiss for failing to serve a Notice of Claim denied where plaintiff served the Notice of Claim by certified mail, which is complete upon deposit of a “properly addressed” envelope with the post office. The envelope was addressed to “Comptroller of NYCHA” at the correct address and the Notice of Claim itself was directed to NYCHA. Defendant averred that it did not have a Comptroller and the envelope was rerouted to the Comptroller of NYC without being opened. Had NYCHA opened the envelope they would have seen that the it was addressed to them. The statute does not require that service be made on a particular person, only on the entity, which in this case was NYCHA, and the court found that it was properly served. Carroll v City of New York


Amend BP   Prejudice  

Second Deptartment

Plaintiff’s motion to amend his BP to correct the date of the accident to 1 month earlier was denied, and defendant granted summary judgment, as plaintiff conceded that the defendant was not on the premises on the date alleged in the Complaint and BP. While leave to amend to correct an error should be liberally granted, when the motion is made long after Note of Issue discretion should be “discrete, circumspect, prudent, and cautious,” and exercised sparingly. Plaintiff’s motion was not made until nearly 1 year after the case had been stricken from the trial calendar as part of plaintiff’s motion to restore and the defendant demonstrated that it would be substantially prejudiced by the delay. Tabak v Shaw Indus., Inc.


Med Mal   Arbitration   Waive Arb Clause   Motion to Dismiss  

First

Defendants’ motion to compel arbitration pursuant to an arbitration clause in a nursing home contract denied where plaintiff had submitted the case to AAA for arbitration and commenced suit after defendant ignored the demand, defendant answered, made discovery demands, and participated in a preliminary conference before making the motion to compel arbitration. Defendants’ actions contradicted their claim that the matter must be submitted to arbitration. Hyde v Jewish Home Lifecare


Med Mal   Discovery   Appealable Order  

Second Deptartment

Plaintiff’s appeal from an order denying his motion to compel further depositions of defendant doctors dismissed as no appeal lies from an order, even where made on a full record, regarding a ruling at a deposition or to compel a further deposition. Plaintiff did not seek leave to appeal the order which would have been required. Donato v Nutovits


Serious Injury   Expert Aff   ROM  

First

Plaintiff overcame defendant’s prima facie showing of entitlement to summary judgment on serious injury for his shoulder injury by his orthopedist’s affirmation stating that he found a SLAP I tear during the surgery, limitations of ROM before and 2 years after the surgery which were not insignificant. The court specifically holds that the plaintiff’s orthopedist was not required to use “any particular instruments to measure the ranges of motion.” Liz v Munoz

NOTEWORTHY
(28 summaries)
MUST READS IF YOU MUST READ

Set Aside Verdict   Directed Verdict   Vacate Jud   Reasonable Excuse  

Second Deptartment

Defendants’ motions to set aside the $535,000 verdict in favor of plaintiff for property damage caused by the abutting shopping center’s maintenance of an infected tree, for judgment as a matter of law, and to vacate the judgment based on newly discovered evidence pursuant to CPLR 5015(a)(2) denied. There was a rational basis for the jury to come to its conclusion and defendant failed to show that it could not have discovered the claimed newly discovered evidence (a foreclosure action and eventual sale) with due diligence within the time to make its post-trial motion to set aside the verdict. Public records are presumed to be discoverable with due diligence. Defendant also failed to show that a different result would have ensued if the new evidence was introduced. Inman v Scarsdale Shopping Ctr. Assoc., LLC

Comment: See companion case at Inman v Scarsdale Shopping Ctr. Assoc., LLC.


Med Mal   Accepted Practice   Causation   Expert Aff  

First

Defendant denied summary judgment where there were competing expert opinions regarding departure from accepted practice and causation. Plaintiff’s expert’s opinion that defendant departed from accepted practice by failing to order a surgical consult for the infant’s abdominal condition was not rendered moot by the fact that the child did not have surgery for 36 hours after the infant was transferred to another facility. J.A.D. v Arevalo


Med Mal   Accepted Practice   Expert Aff   Speculation  

Second Deptartment

Defendants granted summary judgment where physical examination in ER revealed normal vital signs, including normal temperature, normal results from cardiovascular examination, and tests which ruled out infections. Plaintiff presented to a different ER 7 days later with a high fever and was diagnosed with endocarditis. Defendants’ experts opined that there were no departures from accepted medical practice given the normal findings and nonspecific complaints, nor any indication that further diagnostic testing was necessary. Plaintiff’s expert’s opinion that further testing was required was speculative and based on hindsight reasoning. Ortiz v Wyckoff Hgts. Med. Ctr.


Med Mal   Accepted Practice   Causation   Expert Aff   Speculation   Respondeat Superior  

First

Doctors granted summary judgment on their experts’ opinions that they did not depart from accepted practice and that their treatment was not a cause of the plaintiff’s injuries. Plaintiff’s expert’s affirmation, opining that an earlier diagnosis of gallstones would have eliminated the possibility of the plaintiff developing gallbladder inflammation or removal of a gallbladder remnant 8 months later, was speculative and did not raise an issue of fact. Hospital showed that the surgeon who performed the laparoscopic surgery was a private attending and that the ER exception to the rule that a hospital is not responsible for the negligence of a private attending did not apply because the plaintiff was referred to the surgeon by his private physician. Spiegel v Beth Israel Med. Center-Kings Highway Div.


Premises Liab   Sidewalk   3rd Party Contractor   De Minimus  

Second Deptartment

Motions of owner, contractor, and subcontractor for summary judgment claiming that loose red brick pavers on sidewalk were a trivial defect should have been denied as defendants’ proofs failed to show that the alleged defect was trivial as a matter of law. Contractors were not shielded from liability by privity since they could be responsible for a condition they themselves created. Sturm v Myrtle Catalpa, LLC


Settlement   CPLR § 5003-a  

Second Deptartment

Plaintiff’s motion to enter judgment with interest and costs pursuant to CPLR §5003-a(e) denied where County paid the full amount of the settlement from separate sources after the County legislature declined to issue a bond contemplated in the settlement agreement. The court found that the bond was a condition precedent to the settlement and, therefore, the payment was timely. Azbel v County of Nassau


Premises Liab   Duty   Assumption of Risk   Intervening Cause  

Second Deptartment

Defendant’s motion for summary judgment on assumption of risk and intervening cause denied where plaintiff was hit in the eye while trying to exit a mosh pit at a metal concert where he was involuntarily pushed into the pit. Defendant had a duty to prevent harm to persons on its property, including controlling others where it had the ability to do so and could reasonably expect the need. Defendant failed to eliminate questions of fact regarding whether the plaintiff, who had never attended a metal concert before, was aware of and assumed the risks, and whether the defendants had made the activity as safe as it appeared to be, or increased the risks even if assumption of risk could apply to a mosh pit at a metal concert. Nevo v Knitting Factory Brooklyn, Inc.


Bus   Stairs   Building Code   Expert Aff   Duty   Notice  

First

Defendant granted summary judgment where plaintiff claimed to have slipped on an oily substance at the bottom of the bus stairs as she exited, on bus driver’s testimony that there was no oily substance on the stairs before or after the plaintiff fell, showing that the defendant had no notice of the alleged condition. Plaintiff’s expert’s reliance on building codes to create an issue of fact was misplaced as they did not apply to buses. Plaintiff’s claim that the driver was negligent in not assisting her was rejected as defendant did not have a duty to assist the passenger off the bus and any internal rules which required such assistance went beyond the standard of ordinary care and cannot be the basis for liability. Ziman-Scheuer v Golden Touch Transp. of NY, Inc.


Labor Law §241   Industrial Code  

First

Floor refinishing subcontractor denied summary judgment on Labor Law §241(6) claim where plaintiff, employee of general contractor, fell due to dust on the floor he was covering under industrial code §23–1.7[d], [e], during a gut renovation. Plaintiff was a covered worker as he was not in the process of cleaning the dust which caused his fall and was involved in the renovation. Trinajstic v St. Owner, LP


Labor Law §240   Labor Law §200   Ladder   Create Condition   Notice  

Second Deptartment

Plaintiff, injured when his foot slipped on a rung of the ladder he was descending from the motor room of an elevator he was repairing, was not entitled to summary judgment on Labor Law §240(1) as there existed a question of fact of whether the ladder provided adequate protection under the statute. Defendant’s motion for summary judgment on Labor Law §200 and common-law negligence granted where defendant showed that it neither created the alleged condition nor had actual or constructive notice of same but defendant’s motion on Labor Law §240(1) denied as a question of fact existed regarding whether the plaintiff was engaged in a covered activity when repairing the elevator. Esquivel v 2707 Creston Realty, LLC


Negligent Supervision   Assumption of Risk   Intervening Cause   Expert Aff  

First

Defendant granted summary judgment where infant plaintiff was injured when he was accidentally bumped by another student during a game of tag. No amount of supervision could have avoided the spontaneous act of the student seeking to avoid being tagged when he bumped the infant plaintiff. Plaintiff’s expert’s opinions were not based in the record and did not raise an issue of fact. M.V. v City of New York


MVA   Rear End   Nonnegligent Explanation   Feigned Issue  

Second Deptartment

Driver of front limousine granted summary judgment upon proof that the co-defendant driving the second limousine struck him in the rear when he stopped abruptly. Second limousine did not offer a nonnegligent explanation and plaintiff’s, who were passengers in the second limousine, failed to raise an issue of fact by their affidavits which contradicted their deposition testimony. Jones v K&C Limousines of N.Y., LLC


MVA   Rear End   Nonnegligent Explanation   Renew   Comparative Fault  

Second Deptartment

Defendant’s motion to renew based on plaintiff’s deposition taken after the court had granted the plaintiff summary judgment on liability in this rear end collision case should have been granted as it constituted “new evidence,” and upon renewal plaintiff’s motion should have been denied as plaintiff’s testimony raised an issue of comparative fault. Donovan v Rizzo


Legal Mal   CPLR 3404   Note of Issue  

Second Deptartment

The lower court erred in dismissing the action as abandoned under CPLR 3404. When the Note of Issue was vacated, it returned to its pre-Note of Issue status and CPLR 3404 did not apply. Motion by defendant and cross motion by plaintiff for summary judgment remanded to the lower court for decision on the merits. Liew v Jeffrey Samel & Partners


Premises Liab   Slip/Trip   Untimely   Dangerous Condition   Notice  

Second Deptartment

The lower court providently exercised its discretion in granting defendant’s motion for an extension of time to move for summary judgment upon a showing of good cause and in granting defendant’s motion for summary judgment where defendant met its burden of showing that the condition was not dangerous and that it did not have notice of a dangerous condition. Plaintiff claimed to slip and fall as she was returning from having an MRI performed at the defendant’s facility, when she turned a corner and stepped on a carpet which moved. Livingston v Better Med. Health, P.C.


Premises Liab   Stairs   Handrail   Building Code   Notice   Out of Possession  

Second Deptartment

Building owner failed to make out prima facie entitlement for summary judgment by failing to show that a handrail was not required under the codes alleged by the plaintiff or that the lack of a handrail or proper lighting at the top of the stairs where the plaintiff-mother fell while holding her child was not a proximate cause of the accident. Building owner also failed to show that it was an out of possession owner without notice of the condition. Lopez-Serrano v Ochoa


Med Mal   Public Health §2801-d   Wrongful Death   Accepted Practice   Expert Aff  

Second Deptartment

Plaintiff’s decedent was recognized as a fall risk when admitted to the defendant’s nursing home and fall prevention measures were put in place. Defendant submitted expert opinions that the nursing home did not depart from accepted medical practice nor deprive plaintiff’s decedent of a right conferred by statute, contract, or code under Pub. Health L. §2801-d and that the plaintiff’s decedent’s injuries did not arise from any negligence on behalf of the defendant or its employees. Plaintiff failed to raise an issue of fact in opposition. Ciccotto v Fulton Commons Care Ctr., Inc.


Assault   Negligent Hiring   Vicious Propensity   Respondeat Superior  

First

Temp agency which placed assistant to real estate broker whom she killed granted summary judgment where there was no evidence that the temp agency was or should have been aware of any dangerous propensities of the assailant who had no criminal record, and comments made by the assailant regarding plaintiff’s decedent were not disclosed to the defendants until after the murder. Since real estate company exercised no control over the assistant, she was not a special employee for whom it could be vicariously liable. Stein v Douglas Elliman, LLC


Note of Issue   Untimely   Reargument  

Second Deptartment

The lower court erred in not considering a JHO’s grant of an extension of time to file summary judgment motions after completion of discovery on defendants’ motion to strike the Note of Issue. Defendant’s motion for summary judgment was remanded to the lower court. Mondesir v Sterling


Premises Liab   Sidewalk   Slip/Trip  

Second Deptartment

Lessee of parking lot was not entitled to summary judgment on cross-claims by owner where lessee’s own papers raised an issue of whether the sidewalk defect was caused by the lessee’s special use of the sidewalk as a driveway and whether, under the lease, lessee was required to repair that section of sidewalk. Simmons v Berkshire Equity, LLC


Premises Liab   Sidewalk   Slip/Trip   Expert Aff   Speculation  

Second Deptartment

Homeowner granted summary judgment in wrongful death case on proof that there was no statute or ordinance requiring that the homeowner maintain the sidewalk in Yonkers and that she did not make any repairs that would have affected the sidewalk. Plaintiff’s expert’s opinion that the landscaper’s use of ladders, wheeled machinery, and blowers was of the type that would have created the defect which caused the plaintiff’s decedent to trip was speculative. Pareres v Cho


Premises Liab   Sidewalk   Slip/Trip  

Second Deptartment

Homeowner entitled to summary judgment on proof that she did not create condition, make special use of sidewalk, or violate any statute or ordinance which creates a duty to the plaintiff. Yonkers City Code § 103-1 requires homeowners to maintain their sidewalk but does not create a tort liability for failure to comply. Lagawo v Myers


Indemnity   Workers Comp Defense  

Second Deptartment

General contractor failed to meet its prima facie burden for summary judgment on its contractual indemnification claim against subcontractor whose employee was injured during a renovation project by failing to show that the narrow exception for written contracts entered into prior to the date of the accident in Workers Comp. L. §11 applied. General contractor produced an unsigned contract which contained an indemnification clause and a signed contract dated after the accident which did not contain an indemnification clause. Subcontractor met its initial burden of showing there was no written contract prior to the date of the accident, but general contractor raised a question of fact as to whether the parties intended to be bound by the unsigned contract. Barrett v Magnetic Constr. Group Corp.


Dogbite   Vicious Propensity   Hearsay  

Second Deptartment

Dog owner granted summary judgment on proof that she purchased the dog when it was 2 months old, it attended obedience training, and had never bitten anyone or exhibited aggressive behavior before the incident where the plaintiff and defendant got into an argument in front of the plaintiff’s home when the dog bit the plaintiff on the arm. Plaintiff’s attempt to show dangerous propensity relied on hearsay which cannot be used to defeat summary judgment. Ciliotta v Ranieri


Venue   Appealable Order  

First

Defendants’ motion to change venue from Bronx to Nassau County was granted on default and was, therefore, not appealable. Turner v Owens Funeral Home, Inc.


Default Judgment   Compel Acceptance  

Second Deptartment

The lower court providently exercised its discretion in denying the plaintiff’s motion for default judgment and granting the defendant’s motion to compel acceptance of an Answer where defendant’s newly assigned counsel requested an extension of time to answer from plaintiff’s attorney 37 days after the time the to answer expired, Plaintiff’s attorney refused, and instead brought the motion for default. Yongjie Xu v JJW Enters., Inc.


Serious Injury   BP  

Second Deptartment

Defendant failed to meet his burden of proof for summary judgment on serious injury by failing to address the plaintiff’s claims under the 90/180-day category in the BP and the motion was denied regardless of plaintiff’s papers. Koutsoumbis v Paciocco


Serious Injury   BP  

Second Deptartment

Defendants failed to meet their burden of proof for summary judgment on serious injury by failing to address the plaintiff’s claims under the 90/180-day category in the BP and the motion was denied regardless of plaintiff’s papers. Valerio v Terrific Yellow Taxi Corp.

IF YOU MUST READ
(2 summaries)
MUST READS NOTEWORTHY

Legal Mal   Motion to Dismiss   Judiciary Law §487  

First

Defendants were not entitled to dismissal of breach of fiduciary duty claim which was not duplicative of legal malpractice claim since it occurred after termination of representation. Claim that attorney represented both sides to an assignment of lease negotiation properly stated a cause of action for legal malpractice. Claim that attorneys advised client to transfer assets in violation of a court order which they hid from her in order to force her creditors to come after her before going after co-defendants stated a cause of action for violation of Judiciary Law §487, material misrepresentation. O'Neal v Muchnick Golieb & Golieb, P.C.


Fraud   Motion to Dismiss   Conclusory  

Second Deptartment

Defendants’ motion to dismiss for failure to state a cause of action granted on fraud claim as the facts alleged, taken as true, do not make out a cause of action for fraud and all remaining allegations are conclusory without making out a cognizable cause of action. Cruciata v O'Donnell & McLaughlin, Esqs.

About Matt McMahon

Civil trials and appeals since 1984
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