May 2, 2023 | Vol. 363

(5 summaries)

Asbestos   Settlement  

Court of Appeals
On a certified question from he 11th-Circuit, the New York Court of Appeals ruled (4/1) that a plaintiff who sells portions of a structured settlement with an anti-assignment clause does not have a cause of action for issuer’s/obligator’s breach of the covenant of good faith and dealing for its failure to object to the sale where a court (Fla) approves the sale in an SSPA proceeding as in the plaintiff’s best interest, even if an anti-assignment clause could be considered for the benefit of the plaintiff. To hold otherwise would impermissibly elevate the issuer/obligator to a fiduciary. Cordero v Transamerica Annuity Serv. Corp.    

Comment: 49 states have Structured Settlement Protection Acts providing varying degrees of protection against predatory purchasers of annuity payments.

Assumption of Risk   Duty  

Court of Appeals
The Court of Appeals reaffirmed the social value of retaining the primary assumption of risk doctrine, rejecting a dissenter’s call to abolish the rule given the adoption of comparative negligence and the language of CPLR §1411 that assumption of risk “shall not bar recovery” but only reduce an award, finding that assumption of risk only defines the underlying duty. Where the participant is aware and voluntarily consents to the inherent risks of the activity there is no duty.

In one case, the Court found the doctrine applied where the plaintiff collided with a teammate as he chased an errant ball during a practice drill and increasing the size of the boundaries ‘did not unreasonably increase the inherent risk of the drill or playing basketball.’ In the other case, the Court found questions of fact of whether a baseball drill involving multiple balls being thrown at the same time “’was unique and created a dangerous condition over and above the usual dangers that are inherent’ in baseball.” There were 2-dissents. Grady v Chenango Val. Cent. Sch. Dist.    

Labor Law §200   Labor Law §240   Vicarious Liab   Amend Complaint   Statute of Limitations   Control   Res Ipsa Loquitor   Appealable Order   Indemnity  

First Department
Building owner granted summary judgment dismissing Labor Law §200 claim based on the means/methods of work as it had only general supervisory authority of the worksite but denied dismissal of plaintiff’s premises claim for failure to maintain the freight elevator. Owner had a non-delegable duty to maintain the elevator in a reasonably safe condition and would be vicariously liable for elevator maintenance company’s negligence whether or not it had notice of the defect. Elevator maintenance company denied summary judgment where infrared sensor’s failure to stop the door from striking plaintiff raised an issue on res ipsa loquitor. Labor Law §241(6) claim based on industrial code §23-7.3(e)(elevator operator) dismissed as that section sets only a general safety standard.

Plaintiff’s Notice of Appeal from order granting summary judgment automatically deemed from judgment subsequently entered on the order after the Notice of Appeal but before entry of an appellate order (CPLR §5501(c)). Plaintiff’s motion to amend the Complaint granted under the relation back doctrine where the defendants and the proposed defendants were “closely interrelated, centrally controlled, and represented to the public as a single organization… [and] previously sought the benefits of being a single enterprise.”

GC granted summary judgment on contractual indemnity claim against plaintiff’s employer under broad “scope- or performance-of-the-work clause.” Owner granted conditional summary judgment against elevator company but denied summary judgment against plaintiff’s employer as there was no evidence it was negligent. Estevez v SLG 100 Park LLC    

IME/DME   Attorney Disqualification   Prejudice   Discovery  

First Department
Lower court improperly granted defendants’ motion to disqualify plaintiff’s attorney/firm as they failed to show her testimony would be necessary and prejudicial to plaintiff regardng her attendance at, and alleged interferece with, the IME/DME and not cummulative of the evidence that could be provided by the physician and the plaintiff. Alleged inteference did not warrant disqualification where the physician was able to complete a ‘meaningful examination’ as evidenced by the report, defendants did not show prejudice, and any further information required could be obtained by discovery. Domingo v 541 Operating Corp.    

Assault   Preclusion   Discovery   Prejudice  

First Department
Lower court providently permitted plaintiff to proceed by pseudonym on specific allegation in affidavit that plaintiff’s teenager would be traumatized if peers discovered his/her rape online and to preclude defendant from using plaintiff’s name in publicly filed court papers as defendant was not prejudiced where he was aware of the plaintiff’s name, but defendant was prejudiced in his discovery and investigation abilities by the order’s prohibition against disclosing the name to anyone other than his attorneys, insurers, and investigators without a showing of compelling reasons for the preclusion. Matter remanded for further consideration on the permissible scope of discovery. N.S. v Frankenhoff    

(17 summaries)

CPLR § 3126   IME/DME   Willful/Contumacious   Sanctions  

Second Department
Order dismissing action pursuant to CPLR §3126 for plaintiff’s failure to appear for IME/DME as per so-ordered stipulation after 2-prior failures to appear modified to direct plaintiff to appear for IME/DME and pay defendant $2500 within 30-days as a more appropriate sanction given the policy favoring resolution on the merits. Plaintiff’s counsel submitted affidavits that plaintiff failed to appear because he was not informed of the dates due to law office failure. Jurlina v Town of Brookhaven    

Strike Answer   Discovery   Vacate Default   Appealable Order  

First Department
Defendant’s motion to stay entry of proposed judgment striking its Answer for failure to comply with conditional order striking Answer unless defendant complied with discovery orders and so-ordered stipulations denied as the order was self-executing and became absolute on noncompliance and defendant did not submit an affidavit from someone with personal knowledge. Proper remedy would have been to move to vacate default. Cedeno v 155 W. 162, LLC    

Appealable Order  

First Department
Plaintiff’s appeal from lower court’s short form order dismissing action based on oral argument dismissed where plaintiff did not include transcript of the oral argument, depriving the Court of the ability to consider the appeal. Barsoum v Stellar Mgt. Inc.    

Malpractice   Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice  

Second Department
Petitioners’ motion for leave to serve late Notice of Claim granted where hospital’s employees participated in the acts or omissions and prepared the medical records from which it could be readily inferred that it failed to timely diagnose and treat the complete transection of the husband’s median nerve where he had continued complaints of numbness in certain fingers after being treated for a wrist laceration and petitioners showed a reasonable excuse for the delay from his delayed diagnosis, recovery time, and being unable to consult with an attorney until COVID vaccinated due to his comorbiditeis. Hospital failed to make a ‘particularized evidentiary showing of prejudice’ in response to petitioners’ plausible argument that hospital could conduct an adequate investigation despite the delay. Matter of Cleary v Nassau Health Care Corp.    

Premises Liab   Note of Issue   Discovery   Untimely   Reasonable Excuse   Create Condition   Notice  

Second Department
Lower court providently granted supermarket’s motion to extend their time to file for summary judgment where plaintiff’s continued deposition took place beyond time for summary judgment in so-ordered stipulation, COVID suspension of non-essential filings, and conversion to electronic filing provided good cause for the delay. Supermarket granted summary judgment on proof it did not create or have notice of the shopping basket that caused plaintiff to trip. Kuyenova v R&M Supermarket    

Malpractice   Informed Consent   Accepted Practice   Causation   Experts   Waiver   Reargument   Appealable Order  

Second Department
Hospital granted summary judgment dismissing plaintiffs’ claims of malpractice for failing to diagnose and treat post-surgical infection on surgical expert’s opinion that hospital employees did not depart from accepted practice in their pre-surgical evaluation and referring plaintiff to an emergency room for infection which did not appear until 20-days after surgery and expert radiologist’s opinion hospital and its employees were not a cause of plaintiff’s injuries. Plaintiffs failed to raise an issue in opposition by expert’s opinions where they failed to sufficiently detail the qualifications, education, training, or work experience of their expert who was licensed in NJ. Hospital’s motion to dismiss informed consent cause of action denied.

Plaintiffs’ appeal from original order granting summary judgment dismissed as superseded by order granting their motion to reargue which adhered to original decision. Hospital’s request to search record and dismiss informed consent cause of action denied. Gruen v Brathwaite    

MVA   Survelliance Video   Admissibility   Open/Obvious   There to be Seen   Warnings  

Second Department
Dealership properly authenticated surveillance video by plaintiff’s identification of himself in the video and offending motorist’s testimony acknowledging she saw the video and both testified it accurately depicted the incident as “a video recording ‘may be authenticated by the testimony of a witness to the recorded events . . . that the video[ ] accurately represents the subject matter depicted.” Dealership granted summary judgment dismissing claim of customer struck by another customer’s vehicle in service area when that customer was leaving the garage where video and testimony proved dealership’s employees were not a cause of the accident. Claim of failure to warn rejected where danger of moving vehicles was open/obivious and any warning would have only altered plaintiff to what he already knew. Keene v Rosas    

Premises Liab   Dangerous Condition   Unknown Cause   Experts   Admissibility   Speculation  

Second Department
Hospital thrift shop granted summary judgment where decedent was not deposed before she died and deposition testimony of decedent’s 2-daughters, friend, thrift shop volunteer, and medical records all indicated decedent told them her hand was injured when a door closed on her as none could identify what part of the door or doorframe injured the decedent without engaging in speculation. Plaintiff’s expert’s opinions were speculative where based on unauthenticated photographs and he did not inspect the premises. Ward v John T. Mather Mem. Hosp. of Port Jefferson, N.Y., Inc.    

Premises Liab   Independant Contractor   Duty   Dangerous Condition   Create Condition   Notice   Last Inspection   Indemnity  

Second Department
Condominium denied summary judgment dismissing claim of Verizon worker who tripped over Cablevision cable wire in a flower bed where its proof failed to eliminate all questions of whether the cable was a latent defect or could have been discovered on a reasonable inspection and whether it had constructive notice of the condition as it did not show the last time the area was inspected. Cablevision failed to meet burden of showing it did not own, install, or service the cable wire or that it had been installed by independent contractors, not its employees, while performing maintenance several years earlier.

Landscaping company granted summary judgment as it did not owe a duty to plaintiff, dismissal of contractual indemnity claims of condominium which were not supported by the contractual language, and dismissal of common-law indemnity and contribution and failure to procure insurance claims of condominium. Lyman v Cablevision of Ossining Ltd. Partnership    

Serious Injury   Preexisting   Degenerative   Causation   Experts   Admissibility   Speculation  

First Department
Defendants met burden for summary judgment on radiologist’s opinion that MRI showed plaintiff’s spinal injuries were degenerative and preexisting and plaintiff’s testimony he injured his spine in a previous accident and stopped treatment 2-months after this accident. Unaffirmed MRI report submitted by plaintiff inadmissible where not relied upon by defendants who disagreed with its findings as was his chiropractor’s report which was notarized without an attestation clause. In any event, the inadmissible MRI report showed degenerative changes that were not addressed by plaintiff’s chiropractor who did not mention or address the prior accident. Plaintiff failed to explain gap in treatment from 2-months post-accident until he was next seen by his chiropractor 3-years later. Sooknanan v Pinales    

Serious Injury   Degenerative   Causation   Experts   BP   Waiver  

Second Department
Defendants met burden for summary judgment on serious injury by competent medical evidence that plaintiff’s injuries were degenerative and not caused by the accident. Plaintiff’s expert failed to raise an issue in opposition without addressing defendant’s radiologist’s findings that the injuries were degenerative. Plaintiff waived 90/180-day category alleged in the BP by not addressing it in her appellate brief. Merone v Five Towns Review, Corp.    

Premises Liab   Stairs   Out of Possession   Building Code   Notice  

First Department
Building owner granted summary judgment on proof it was an out of possession landlord with no contractual obligation to maintain and repair the step to its tenant’s restaurant which was not a significant structural or design defect. Claim that owner had notice of the condition irrelevant as notice does not impart liability to an out of possession landlord. Padilla v Holrod Assoc. LLC    

Premises Liab   Out of Possession  

Second Department
Landlord granted summary judgment dismissing claim of tenant’s employee who slipped on ramp to outdoor refrigerator unit installed and maintained by tenant on proof it was an out of possession landlord with no contractual or statutory obligation to maintain the area and there were no statutory violations. The landlord’s visits to the building to maintain the common areas were not proof the landlord maintained the tenant’s restaurant. Straub v JM Prop. of Sayville, LLC    

Construction Liab.   Control   Create Condition  

First Department
HVAC subcontractor granted summary judgment dismissing Complaint and all cross-claims against it on its superintendent’s testimony they did not require, use, or drill any core holes in the boiler room that plaintiff stepped in and the GC’s superintendent’s testimony that the GC was responsible for covering all holes/openings at the jobsite and the core holes seemed pre-existing. GC’s superintendent’s testimony that he saw HVAC employees drilling core holes did not raise a question of fact where he could not remember where/when they were drilled. Pianoforte v New York City Hous. Auth.    

MVA   Pedestrian   Speculation  

Second Department
Plaintiff granted summary judgment on parties’ testimony that she was struck by defendant’s vehicle as it entered the crosswalk she was in and that she had looked for approaching traffic before entering the crosswalk. Defendant’s claim plaintiff walked outside the crosswalk speculative where he testified he did not see her until after impact. Binger Mei v Kim Wan Cheung    

Malicious Prosecution   Default Judgment   Probable Cause   Conclusory   Appealable Order  

Second Department
Plaintiff’s motion for a default judgment in malicious prosecution case against her mother-in-law for bringing a family offense proceeding properly denied for failure to state a cognizable cause of action as the family court’s issuance of a TOP raised a presumption of probable cause, plaintiff’s conclusory assertions in the Complaint were insufficient to rebut the presumption, and dismissal of family court proceeding was irrelevant especially where not on the merits.

Appeal from sua sponte dismissal of the Complaint dismissed as no appeal lies from an order not granted on notice. Lugo v Corso    

Dogbite   Notice   Vicious Propensity  

Second Department
Dog owner granted summary judgment dismissing claim that his dog jumped on plaintiff knocking him to the ground under either plaintiff’s version that the dog ran into the street and playfully jumped on him or defendant’s version that he was throwing a ball to the dog in his yard and plaintiff tripped when he saw the dog as plaintiff didn’t dispute the owner neither had nor should have had notice of vicious propensities and New York does not recognize a negligence cause of action for in dog cases. Murga v Yarusso    

(2 summaries)

Premises Liab   Set Aside Verdict  

Second Department
Plaintiff’s motion to set aside defense verdict as against weight of the evidence in slip and fall case denied where jury could reach the verdict on a fair interpretation of the evidence. The Court does not give the details of the proofs. Rosenberg v Hanasab    

Premises Liab   Unknown Cause   Notice   Last Inspection  

Second Department
Defendants denied summary judgment for plaintiff’s fall in hotel parking lot where plaintiff’s testimony submitted by defendants identified the cause of her fall and defendants failed to show lack of constructive notice without proof of last time the area was inspected. The Court does not give the details of the proofs. Bayer v Savan Hospitality Corp.    

About Matt McMahon

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