| MUST READS (4 summaries) | |||
| NOTEWORTHY | IF YOU MUST READ | ||
 Motion to sever claims of 2-plaintiffs who individually met plaintiff on online dating app, met him in person once when he invited each to his home where he had non-consensual sex with them, denied as the identical allegations of violation of the NYC Gender-Motivated Violence Act, assault, and battery shared common questions of law and fact, including motivation, intent, or common scheme. Defendant failed to show prejudice by consolidation as the judge at trial can instruct the jury on how to weigh the evidence of similar conduct. T.J. v Parpia ✉Comment: The NYC Gender-Motivated Violence Act provides a 7 to 9 year statute of limitations and a revival period to bring suits otherwise barred by the statute of limitation from March 1, 2023 to March 1, 2025. |
| NYCHA granted summary judgment dismissing plaintiff’s claim for stabbing by tenant when he complained about tenant’s loud music on proof assault was unforeseeable where tenant had not previously engaged in violent or criminal behavior. Playing loud music, loud arguments with his sister, and banging on the apartment wall did not put NYCHA on notice he would stab someone, even if conceivable, as “conceivability is not the equivalent of foreseeability.” Goris v New York City Hous. Auth. ✉ |
 Defendant’s motion to dismiss Child Victims Act case alleging sexual assault of 11-12 year old girl between 1971-1976 denied where allegation that on several occasions “he forcefully pushed the plaintiff against a wall, tried to kiss and grope the plaintiff, and rubbed her shoulders” sufficiently pled a sexual offense under Penal Law article 130. Profeta v Caulo ✉ |
| On reargument, the First Department denied building owner’s and GC’s motion for summary judgment dismissing welder’s Labor Law §241(6) claim for injuries when he tripped over electrical conduit piping sticking 5″-12″ above the floor based on industrial code §23-1.7(e)(2)(tripping hazards) even though the risk of tripping was inherent to the work as it was an ‘avoidable dangerous condition’ that could have been prevented without making it impossible to complete the task. Defendants denied summary judgment on Labor Law §200 and negligence claims without proof they lacked authority to supervise the injury producing work. Maldonado v Hines 1045 Ave. of the Ams. Invs. LLC ✉ Comment: The original decision was reported in Vol. 403. |
| NOTEWORTHY (19 summaries) | |||
| MUST READS | IF YOU MUST READ | ||
| Petition for leave to serve late Notice of Claim or deem it timely served nunc pro tunc denied as failure to investigate was not a reasonable excuse for the 17-month delay in seeking leave and petitioner failed to provide some evidence or a plausible argument that county was not prejudiced by the delay. Neither the police nor EMS reports had facts from which an actionable wrong by the county could be ‘readily inferred’ and google images of defects on the roadway did not give county actual knowledge of plaintiff’s claim. Matter of Alexander v County of Nassau ✉ |
| Petition to deem late Notice of Claim timely served nunc pro tunc denied as ignorance of requirement to serve Notice of Claim within 90-days was not a reasonable excuse for the 8-month delay in serving the late Notice of Claim, petitioner failed to show the delay was caused by need for medical treatment based on records showing only intermittent inability to work during that period, and he failed to submit evidence that NYC and MTA were not prejudiced by the delay. Incident report without a connection between the facts and wrongdoing by NYC or MTA did not show actual knowledge. Report by MTA construction subsidiary cannot be imputed to other municipalities and petitioner testified only his employer’s workers were on site on the day of the accident. Matter of Almeida v City of New York ✉ |
| Defendants’ motion to strike the Note of Issue and for post Note of Issue discovery denied as untimely where it was filed before a litigation stay, the motion was brought 40-days after the stay was lifted, and defendants failed to show a reasonable excuse for the delay or unusual/unanticipated circumstances for post-Note of Issue discovery. Motion for summary judgment also untimely where filed beyond the 60-day limit after the stay was lifted and defendants’ mistaken belief the Note of Issue would be deemed a nullity was not a reasonable excuse for the delay. Foxx v Berrosa Auto Corp. ✉ |
| Plaintiff’s motion for summary judgment on liability and serious injury providently denied as premature where no EBTs, IME/DMEs were conducted and plaintiff had not yet responded to defendants’ BP demand as defendants were at least entitled to know the extent of plaintiff’s injuries before responding to the motion. Gillin v Spiess ✉ |
| OB/GYN and his practice denied summary judgment dismissing malpractice claim that they failed to identify her pre-term labor resulting in a premature birth by C-section at 28 weeks with the baby having serious injuries including cerebral palsy where their fetal medicine expert failed to eliminate triable issues of whether the mother was in labor 8-days before the delivery and whether the premature birth could have been prevented. Neumann v Silverstein ✉ |
| Construction manager/GC denied summary judgment on Labor Law §240(1) where its superintendent testified it was responsible for supervising the means and methods of work, hiring and supervising all subcontractors, including plaintiff’s employer, and was contractually responsible for all subcontractors, leaving question of whether it was a statutory owner agent. Labor Law §200 and negligence claims dismissed where it did not exercise supervision or control over plaintiff’s work and plaintiff testified he was supervised solely by his employer. Plaintiff abandoned Labor Law §241(6) claim. Siegel v Delta Airlines, Inc. ✉ |
| Defendants denied summary judgement dismissing bricklayer’s Labor Law §240(1) claim for injuries when bricks fell on him from the roof 4-stories above as he was working on a platform where they questions remained of whether the bricks were part of a load required to be secured or that they fell due to an absence or inadequacy of a §240 safety device. Rzepka v City of New York ✉ |
| Lower court improvidently denied plaintiff’s motion to amend the BP to include industrial code §23-3.3(e) as a Labor Law §241(6) predicate where the amendment had merit and did not present a new theory. Issue remanded for lower court’s consideration of plaintiff’s motion for summary judgment predicated on §23-3.3(e). Claimed violation of §23-1.7(d) dismissed as not applicable where plaintiff testified he slipped on construction debris on stairs which is not a foreign substance under §23-1.7(d). Labor Law §240(1) claim dismissed as a permanent stairway is not a §240 safety device. Verdi v SP Irving Owner, LLC ✉ |
| Motion to dismiss negligent hiring, retention, training, and supervision claims of plaintiff who was verbally and physically assaulted and shot by off-duty village police sergeant denied where Amended Complaint adequately pled that village knew or should have known it had the ability and necessity to control the sergeant who had previously committed tortious conduct with property and resources available only through his position and that there was a nexus between plaintiff’s injuries and the village hiring and retaining the sergeant. Olsen v Butler ✉ |
| Internist and his practice granted summary judgment dismissing plaintiff’s claim for scarring from cellulitis as a result of cosmetic procedure to plaintiff’s chin performed by RN on proof the plaintiff chose to have the procedure performed by the RN at her home without knowing of any connection between the internist and his practice and the RN was an independent contractor for whom moving defendants could not be vicariously liable under respondeat superior. Krivulya v Bay Parkway Physicians, P.C. ✉ |
| Plaintiff’s expert raised an issue on departure from accepted practice for preventative care of skin ulcers, noting lapses in treatment records for ulcer care, but failed to raise an issue on the wrongful death claim where opinion that ulcer care led to death by pneumonia from renal disease and hypertension was conclusory and speculative. Bradley v St. Barnabas Hosp. ✉ |
| Facility owner granted summary judgment dismissing claim for fall in parking lot on proof it was an out of possession owner with no duty to maintain the property by contract or course of conduct and plaintiff did not allege violation of a statute. Sandoval v GWKMAR Assoc., LLC ✉ |
| NYC DOE denied summary judgment dismissing teacher’s claim for injuries when her hand got smashed between a heavy metal fire door and a wall on custodian’s testimony she generally inspected all doors to make sure they were safe, without proof of when the door was last inspected or an expert’s analysis of the door, the custodian admitted the accident could not have happened if there was a door stop and that the door was dangerously close to the wall, and plaintiff testified she thought it had a doorstop because all other doors had doorstops. Dan v City of New York ✉ |
| City failed to meet burden for summary judgment dismissing bicyclist’s claim for fall when yellow caution tape got wrapped around her handlebars as photographs corroborated plaintiff’s testimony, submitted by city, that the orange traffic barrel near the curb was open/obvious but the several feet of slack caution tape tied to the barrel was not visible. Papetti v City of Long Beach ✉ |
| Defendants’ motion for summary judgment on claim they were not a fault for the accident denied where conflicting versions of drivers’ testimony left issues of how the accident occurred and credibility of plaintiff’s claim that she did not make statement attributed to her in police report was credibility issue for the jury. Defendants’ motion on serious injury remanded to lower court. Smith-Joyner v Barahona ✉ |
| Building owner granted summary judgment dismissing claim for slip and fall on waxed lobby floor on proof only a wax restorer was used, the lobby was monitored and inspected by a porter dedicated to the lobby, a security guard who assisted plaintiff after she fell saw no wet substance on the floor, and plaintiff stated the condition was not visible. One maintenance company granted summary judgment on proof it did not launch an instrumentality of harm but another company denied summary judgment where it was responsible for the floor’s maintenance by contract and plaintiff’s testimony that there was a waxy substance on her clothes after she fell and an indentation in the substance on the floor raised an issue on whether that company ‘undert[ook] to render services and then negligently create[d] or exacerbate[d] a dangerous condition’ under Espinal. Scaccia v Brookfield Props. One WFC Co., LLC ✉ |
| NYCTA and bus driver denied summary judgment on bus driver’s inconsistent testimony, first claiming bicyclist struck the bus on the passenger side where he found him on the ground after the accident but after a break in the EBT he testified he found the bicyclist on the ground in the bicyclist’s lane on the driver’s side of the bus, the driver side mirror was cracked, there were double parked cars in the bicyclist’s lane, the bus was stopped at the time of impact with the driver side of the bus in the bicyclist’s lane, and the driver of another vehicle did not support the bus driver’s testimony. Bliwas v Paul ✉ |
| Building owner and tenant granted summary judgment on storm in progressby plaintiff and tenant’s testimony, climatological data, and expert affidavit establishing it was snowing at the time of the accident and that tenant’s snow removal efforts did not create or exacerbate the condition. Corlette v SN Auto Repairs, Inc. ✉ |
| Motion to dismiss third-party Complaint against plaintiff’s employer granted as barred by workers compensation exclusivity clause where there were no allegations plaintiff had a permanent and total loss of use of his arm to establish a grave injury under WCL. Noel v 336 E 95th Realty LLC ✉ |
| IF YOU MUST READ (2 summaries) | |||
| MUST READS | NOTEWORTHY | ||
| Abutting landowners denied summary judgment dismissing plaintiff’s administrative code §7-210 claim for trip and fall on sidewalk defect where their proof failed to show the defect plaintiff tripped on was not on a portion of the sidewalk abutting their property or that plaintiff could not identify the cause of her fall. The Court does not give the details of the proofs.` Campos v Colon ✉ |
| Defendants met burden for summary judgment on serious injury but plaintiff raised an issue in opposition on permanent consequential and significant limitation categories for his shoulder injury. The Court does not give the details of the proofs. Brooks v Muessing ✉ Comment: Same reasoning and result for a separate plaintiff. Dubois v Muessig. |