Premises Liab Amend Complaint Emotional Harm
 A 3/2 Second Department found grandparents are not “immediate family” for emotional harm while in the zone of danger denying grandmother’s motion to amend Complaint to include the claim. The dissenters reviewed the changing dynamics of family and what can be considered immediate family. Greene v Esplanade Venture Partnership
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Negligent Supervision 50-H Discovery
Plaintiffs established that infant-plaintiff who was sexually abused by fellow student while in kindergarten suffered trauma but failed to show the “extreme incapacity or psychological injury” necessary for a protective order against testifying at a 50-H hearing or deposition. The Second Department noted that the lower court would have great discretion in determining if a deposition should be allowed or curtailed after the 50-h hearing. C.B., v Park Ave. Pub. Sch.
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Products Liab
 Judgment after verdict against defendants who sold and rented Bobcat without optional door kit reversed and new trial ordered with Court finding that the Scarangella v Thomas Built Buses, 93 NY2d 655 (1999) exception to products liability for users who do not purchase an optional safety device applies equally to those who rent the equipment as well as those who purchase the equipment. There was 1 dissent. Fasolas v Bobcat of N.Y., Inc.
Comment: This decision was made on May 9, 2019. |
Consolidation NYC
 Plaintiff’s motion to consolidate 3 Labor Law cases involving similar injuries from the same gas explosion for trial granted except on the issue of damages where the individual medical histories, degrees, and location of injuries will not be identical. Marullo v City of New York
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Premises Liab Slip/Trip Create Condition Discovery Notice Note of Issue
Lower court properly considered affidavit of project manager for Social Security Administration contradicting contractor’s affidavit claiming they had no responsibility for installing wiring, including the wiring plaintiff tripped on, during the project even though plaintiff did not disclose the witness prior to filing Note of Issue because he was not a notice witness. He did not see the condition plaintiff tripped on and only rebutted defendant’s affidavit on the scope of their responsibilities under the contract. Normally, notice witnesses must be disclosed prior to Note of Issue and should not be considered on motions for summary judgment absent reasonable excuse for not previously disclosing. Defendant did not submit a copy of the demand they claim required disclosure of this witness for either the lower court or appellate court’s consideration. Awai v Benchmark Constr. Serv., Inc.
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MVA Serious Injury Set Aside Verdict
In a damage only trial with the issue of serious injury submitted to the jury, the Second Department points out the need to make objections to improper comments by opposing counsel during summation, whether during the summation or after, to request curative charges, or mistrial and to present a full record of arguments regarding claimed inappropriate comments reversing the lower court’s grant of plaintiff’s motion to set aside the verdict in the interests of justice under CPLR §4404(a). The 3-comments objected to were “fair comment” and from the incomplete record it could not be determined if the 8-comments were objected to or improper. A verdict can only be set aside in the interest of justice where objections are not made “where the remarks are so prejudicial as to have caused a gross injustice, and where the comments are so pervasive, prejudicial, or inflammatory as to deprive a party of a fair trial.” Kleiber v Fichtel
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MVA Set Aside Verdict
Stipulation that plaintiff would receive policy limits if jury found defendant at all at fault and case would be dismissed if they did not, did not preclude posttrial motion to set aside verdict as against weight of evidence or as inconsistent. Verdict finding defendant not at fault was not against weight of evidence and plaintiff failed to preserve issue of inconsistency where he did not raise it before jury was disbanded. Salov v Akinjide
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Labor Law §240 Labor Law §241 1-2 Family Exception Safety Devices Sole Cause Independant Contractor Respondeat Superior
Building’s failure to provide safety device for worker while standing on radiator casement in front of open window during rain entitled plaintiff to summary judgment on Labor Law §240(1) against building and plaintiff’s decedent’s actions could not be sole cause where defendants failed to provide a safety device. Co-op apartment owners entitled to homeowners’ exception where they did not control work even though it was not pleaded as affirmative defense. Issues of fact remained on Labor Law §241(6) based on industrial code §23-1.7(d)(slipping hazards). Issues remained on plaintiff’s Labor Law §200 and negligence claims against contractor on whether its supervisor directed decedent’s work without authorization from decedent’s employer and whether supervisor was an independent contractor for which the contractor would not be responsible for. Urquiza v Park & 76th St., Inc.
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Asbestos Products Liab Question of Fact Causation
Manufacturer’s claim it did not sell doors in New York until after it stopped manufacturing asbestos containing doors rebutted by plaintiff’s decedent’s testimony that he recalled seeing the “Algoma Grade” designation of defendant’s asbestos doors while cutting them and inhaling the white dust, making it “reasonably probable, not merely possible or evenly balanced” that he was exposed to asbestos from the manufacturer’s doors. Minutes of meetings from NYC Board of Standards for the contradicted defendant’s principles affidavit. Shanahan v Aerco Intl., Inc.
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Dental Mal CPLR 3404 Note of Issue Meritorious Action Reasonable Excuse Prejudice
To restore a case to trial calendar more than 1-year after it’s marked off, plaintiff must show 1: meritorious action, 2: reasonable excuse, 3: lack of intent to abandon, and 4: lack of prejudice to defendant. Without a dental expert’s affidavit of merit showing departure and causation, plaintiff failed to show meritorious action. Bivens v Stearn
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Med Mal Accepted Practice Causation Expert Aff Spoliation Negative Inference Appealable Order
Plaintiff raised questions of fact in opposition to defendants’ showing of entitlement to summary judgment by expert affirmations showing defendants departed from accepted practice by allowing plaintiff’s decedent to undergo dialysis using an infected arterialvenous fistula with an aneurysm that spontaneously ruptured days later. Hutchinson v New York City Health & Hosps. Corp.
Comment: Plaintiff failed to establish which if any of the defendants had possession of a vascular surgeon’s note clearing plaintiff’s decedent for dialysis before it disappeared and lower court providently denied motion for negative inference charge. While pretrial advisory opinions are not appealable, a definite ruling on a proposed jury charge is appealable. If plaintiff can prove who last had the note before it disappeared the trial court can still give the charge. Hutchinson v New York City Health & Hosps. Corp.. |
Premises Liab Elevator Labor Law §241 Industrial Code
Issues of fact on negligence of elevator company that recently repaired a control handle, modified the brake system, and notified owner that a free fall incident 1-week before plaintiff was injured when the elevator fell from the 4th floor to the basement, and the separate elevator company under contract to service the elevator including the control handles with a broken switch/spring, precluded summary judgment for defendants. Plaintiff not entitled to summary judgment on Labor Law §241(6) on industrial code §23-1.7(f)(vertical passageways). Bellucia v CF 620
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Products Liab Personal Juridiction
Ohio gun dealer whose only advertisement was a sign placed at gun shows in Ohio and who only sold guns in Ohio to Ohio residents had insufficient contacts with New York to meet the constitutional “minimum contacts” standard for long-arm jurisdiction. The gun sales were all to an Ohio resident who claimed to be applying for a license to sell firearms in Ohio to Ohio residents. That customer brought the guns to New York and illegally sold them to gang members who used them to injure plaintiff did not provide evidence of meaningful contact between the gun dealer and New York. 4/3 decision in favor of defendant. Williams v Beemiller, Inc.
Comment: This decision was made on May 9, 2019 |
MVA Pedestrian Serious Injury ROM Causation Expert Aff
Plaintiff entitled to summary judgment on liability on testimony that she was crossing with light in crosswalk when defendant struck her while making a left-hand turn. Defendants failed to meet burden on serious injury for hip and lumbar injuries where their orthopedist found 30° limitation of ROM in spine and opined that hip injury was caused by the accident contrary to defendants’ radiologist’s opinion that it was not caused by the accident. Claim of gap in treatment improperly raised for the first time in reply. In any event, plaintiff’s orthopedist raised issues of fact on serious injuries but plaintiff’s testimony that she only missed 3-days from work required dismissal of 90/180-day category. Lewis v Revello
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Premises Liab Slip/Trip Snow/Ice Espinal Notice
Defendant, plaintiff’s mother who was tenant on 2nd floor of 2-family residence where plaintiff was tenant on 1st floor, had oral agreement with building owner to maintain premises and testified that leaking gutter often created ice on steps where plaintiff fell made out prima facie entitlement to summary judgment that plaintiff was not a party to the oral contract and had not pleaded facts falling within the Espinal exceptions but plaintiff raised issue of fact on whether defendant’s oral agreement was so comprehensive as to displace property owner’s obligation to maintain property and that defendant was aware of a recurring condition giving constructive notice to each instance. Sampaiolopes v Lopes
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Bankruptcy Statute of Limitations CPLR §205
Where original Labor Law case was dismissed for failure to list it in bankruptcy proceeding, trustee was entitled to file new action within 6-months [CPLR §205(a)] making new action timely where filed 1-month after bankruptcy was reopened to list the action. Orr v Urban Am. Mgt. Corp.
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Labor Law §240 Labor Law §241 Labor Law §200 Premises Liab Control Industrial Code
Vassar College and general contractor granted summary judgment on proof that industrial codes relied on by plaintiff were inapplicable because replacing stones on side of building was not demolition, §23-1.33(a) did not apply to workers on a construction site, and even if a sidewalk shed was required it was not a proximate cause of the accident when 3-stones fell on plaintiff’s hand. Defendants did not have the ability to control the means and methods of mason subcontractor’s work and the injury was not the result of a defect on the property entitling defendants to summary judgment on Labor Law §200 and negligence. Turgeon v Vassar Coll.
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MVA Bus Emergency Doctrine
Bus driver traveling 17 mph who swerved into left lane and stepped on brakes seconds after bicyclist fell into bus lane, and came to a stop next to bicyclist acted reasonably under the emergency doctrine entitling defendant to summary judgment. Rodriguez v New York City Tr. Auth.
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Assault Battery Duty Intervening Cause
Individual defendant’s proof that he did not strike plaintiff made out entitlement to summary judgment as he owed no duty to control the acts of others and plaintiff failed to raise issue of fact on whether that defendant created the conditions of the assault or acted tortiously in a tacit agreement to assault the plaintiff. Lanfranchi v Grille
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Negligent Supervision Assumption of Risk
Experienced varsity football player watching teammates drill with 5-person blocking sled from sidelines because he was feeling ill assumed risk of sled veering off and running over his foot especially where he could choose where to stand while watching the practice. Bystanders assume obvious and necessary risks. M.F. v Jericho Union Free Sch. Dist.
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MVA Rear End Nonnegligent Explanation Foreseeability
Plaintiff entitled to summary judgment on her testimony that she gradually came to a stop behind lead vehicle at red light when defendants’ car struck her from the rear. Defendant driver’s testimony that light was turning green to yellow and she thought lead car was going to continue when plaintiffcame to a sudden stop did not provide nonnegligent explanation because a sudden stop while light had already turned yellow was foreseeable. Catanzaro v Edery
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Serious Injury ROM Expert Aff
Defendants failed to make out entitlement to summary judgment on serious injury where their orthopedic surgeon found 50% limitation of cervical ROM and gave conclusory opinion that limitation was self-imposed along with his finding that cervical injuries were causally related accident and resolved. Bertuccio v Murdolo
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Premises Liab Slip/Trip Snow/Ice Storm in Progress
Plaintiff’s testimony that she saw ice balls on ramp before she stepped on it and must’ve slipped on ice from the inclement weather, that she saw no ice on the ramp the night before, and the climatological data established entitlement to summary judgment on storm in progress. Perez v Pinnacle Group, Inc.
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Venue
Plaintiff improperly placed venue in Kings County under then existing CPLR §503(a) where no parties resided in Kings County forfeiting right to choose venue. Defendants promptly demanded venue change and moved within 15-days to change venue to Rockland County. Plaintiff’s cross motion to retain venue based on convenience of witnesses denied where he gave only the names and office address of 2-doctors who treated him without proof that they were willing to testify and only plaintiff’s conclusory claims they would be inconvenienced. Plaintiff’s inconvenience in traveling to Rockland County is not a factor in changing venue. Pomaquiza v 145 WS Owner, LLC
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MVA VTL §1104 Turning Vehicle Reckless NYC
Fire truck responding to fire with lights and sirens on entitled to reckless standard of VTL §1104 in making left-hand turn, an enumerated conduct, when the rear of the truck struck plaintiff’s car and actions did not meet reckless standard. Thomas v City of New York
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Default Judgment Vacate Default Compel Acceptance Reasonable Excuse Meritorious Action Meritorious Defense
Plaintiffs’ separate motions to enter default against defendants denied where plaintiff failed to include affidavit or verified complaint by someone with knowledge of facts. One defendant’s motion to vacate default and compel acceptance of Answer granted on showing it immediately provided Summons/Complaint to insurance broker who delayed in giving it to carrier and that there was a meritorious defense. Lower court improvidently vacated other defendant’s default giving it permission to serve an Answer sua sponte absent reasonable excuse or proof of meritorious defense. Velez v Mr. Demolition, Inc.
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Premises Liab Slip/Trip Sidewalk Snow/Ice Create Condition Notice
Defendants’ proof that sidewalk was clear of snow and ice and snow piles 30-minutes before plaintiff’s fall, and plaintiff’s testimony that no ice was visible when she fell or when she walked over the spot the day before, established defendants did not create the icy condition or have notice of it. Elizee v Village of Amityville
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Construction Liab. Open/Obvious Inherently Dangerous Assumption of Risk
Electrician for electrical contractor hired by homeowners during construction of modular home assumed risk when he chose to move stack of plywood sheets on top of wire rather than having construction workers move them. The condition was open/obvious and not inherently dangerous entitling defendants to summary judgment. Ochoa-Hoenes v Finkelstein
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Negligent Supervision Causation
School district granted summary judgment on proof that even if infant-plaintiff was not properly instructed on how to use monkey bars he was properly using them at time of his fall. Bedi v Hyde Park Cent. Sch. Dist.
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MVA Turning Vehicle There to be Seen
Proof that plaintiff’s car making right-hand turn from stop sign struck defendant’s vehicle above front passenger wheel as it went through intersection without a stop sign established plaintiff violated VTL §1142(a), failed to see what was there to be seen despite plaintiff’s testimony that she looked before making the turn, and that she was the sole cause of the accident. Shvydkaya v Park Ave. BMW Acura Motor Corp.
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Premises Liab Create Condition Notice
Supermarket employee’s testimony that he personally dropped watercress in produce aisle were plaintiff fell based on a photograph taken immediately after accident, submitted on supermarket’s motion, required denial of summary judgment. Paar v Sky Foods Mkt., Inc.
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Premises Liab Slip/Trip Dangerous Condition Notice Optical Confusion Expert Aff
Proof of no accidents prior to plaintiff’s tripping on step between living room and balcony in friend’s apartment established lack of constructive notice of a dangerous condition and photographs showing that step was shiny metal and different color gray than surrounding area dispelled optical confusion theory raised by plaintiff’s expert. Namm v Levy
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MVA Nonnegligent Explanation Feigned Issue
Defendants’ motion and plaintiffs’ court’s motion for summary judgment denied where defendant driver’s testimony that he struck basket of plaintiff’s cherry picker when it suddenly popped out of plaintiff’s driveway but defendant’s statement to police that cherry picker was stationary raised an issue of fact. Defendant driver’s affidavit in sur reply explaining he told police cherry picker was stationary but basket was moving did not contradict his statement or testimony but raised an issue of credibility. Moore v DL Peterson Trust
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Premises Liab Slip/Trip Stairs Dangerous Condition Unknown Cause Last Inspection
Plaintiff’s testimony that neither he nor anyone else saw anything on the stairs before he fell failed to establish that a dangerous condition existed and affirmatively established that defendant lacked notice of a dangerous condition even without proof of the last time stairs were inspected/cleaned. Escobar v New York Univ.
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