May 23, 2017 | Vol. 55

MUST READS
(6 summaries)
NOTEWORTHY IF YOU MUST READ

MVA   Set Aside Verdict   Directed Verdict   Causation   Comparative Fault  

Second Deptartment

Plaintiff’s motion to set aside defense verdict on jury finding that defendant, who claimed to have a green arrow entering intersection, was negligent but not the proximate cause of the collision with the plaintiff, who claimed to have a green light entering the intersection, as the issue of negligence and proximate cause were so “inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause.” Plaintiffs motion for a directed verdict properly denied as there was an issue of comparative fault. Mancini v Metropolitan Suburban Bus Auth.


Negligent Supervision   Intervening Cause  

First

School organizations supervising Israeli trip by adult students granted summary judgment where plaintiff was assaulted after having been drugged by her assailants in a hotel bar since there was no duty to protect against unforeseeable criminal acts. Roommate testified that plaintiff voluntarily left the bar with one of the men and did not appear to be impaired. It would be speculative to suggest that more supervision would have protected her against the criminal attack. Lerner v Friends of Mayanot Inst., Inc.


Premises Liab   Building Security   Causation  

First

Plaintiff’s assailant gained access to the building where plaintiff was assaulted in the laundry room by “piggybacking,” following a resident who opened the front door, as he had done on numerous occasions over several years and the building owner was aware this history. This raised questions of fact as to whether the building provided “minimal security” considering the history of piggybacking in general and this assailant’s prior piggybacking in particular, and whether the building owner was negligent in not providing greater notice to tenants, real-time video surveillance, and more lobby attendants. The assailant clearly gained access as an “intruder” not as a guest by piggybacking based on opportunity, raising a question of fact on causation. Gonzalez v Riverbay Corp.


Med Mal   Discovery   Strike Note of Issue   Severance  

Second Deptartment

Lower court improvidently exercised its discretion in sua sponte severing the third-party action commenced by NYCHHC against another hospital where the plaintiff was receiving treatment at the same time, and in denying NYCHHC’S motion to strike the Note of Issue. There was no indication that NYCHHC delayed in bringing the impleader, the parties agreed that discovery was outstanding, and plaintiff filed the Note of Issue despite having stipulated to extend the Note of Issue deadline and provide discovery. Barrett v New York City Health & Hosps. Corp.


MVA   Graves Amendment  

Second Deptartment

Nissan’s motion to dismiss granted where it showed that it was in the business of leasing vehicles and did not engage in vehicle maintenance contrary to plaintiff’s conclusory statements that they negligently maintained the vehicle. On a motion to dismiss where evidentiary material is submitted, but the motion is not converted to summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has pled a cause of action, taking the evidence in the light most favorable to the plaintiff but conclusory statements of fact or law need not be accepted as true. Antoine v Kalandrishvili

Comment: This is a virtually identical decision to one decided by the Second Department last week involving a different plaintiff.


Assault   Special Duty   NYC  

First

NYC and police officers granted summary judgment for plaintiff’s failure to show justifiable reliance on police statement to plaintiff, who they asked to translate for them in a domestic dispute, that they would be on patrol in the area after directing the assailant to leave the area and the assailant returned, borrowed the plaintiff’s phone, crossed the street, and sat on a bench before returning to attack the plaintiff. The court did not address the government function argument. Alvarado v City of New York

NOTEWORTHY
(19 summaries)
MUST READS IF YOU MUST READ

Dram Shop   Circumstantial Evidence  

Second Deptartment

Bar made out prima facie entitlement to summary judgment by testimony of owner and 2 eyewitnesses that defendant driver did not appear intoxicated while at the bar, but plaintiff raised an issue of fact by proof of a high blood alcohol level (.18%), driver’s plea allocution stating that he had “a few” mixed drinks at the bar, and a police report stating that the driver “was observed to be intoxicated” after the accident. While a high blood alcohol level itself is not sufficient to show visible intoxication, circumstantial evidence coupled with the BAC may be sufficient. Defendant waived any objection to the police report by including it in their reply. Trigoso v Correa


Untimely   Reasonable Excuse   Security Guard   3rd Party Contractor   Espinal  

First

Security company properly allowed to file a late motion for summary judgment where it was unaware that plaintiff had e-filed the Note of Issue a month prior to the stipulated date and the parties continued discovery after the Note of Issue was filed. Security company granted summary judgment where assailant it was removing from hotel attacked another hotel guest. It owed no duty to the hotel guest and none of the Espinal exceptions applied. Coon v Hotel Gansevoort Group, LLC


Premises Liab   Elevator   Out of Possession   Res Ipsa Loquitor  

First

Building owner failed to show that it was an out-of-possession landlord by submitting a copy of the lease which was illegible. Mis-leveling of an elevator does not usually happen absent negligence and since the elevator was exclusively within the control of the defendants, the case should be submitted to a jury on the issue of res ipsa loquitor. Rojas v New York El. & Elec. Corp.


Labor Law §240   Scaffold   Sole Cause   Indemnity  

First

Plaintiff granted summary judgment on Labor Law §240(1) where her decedent fell from the side of a scaffold with no guard rail, falling through an opening where a window had been removed, to his death. The lack of a guard rail was a clear violation of Labor Law §240(1) and, therefore, the claim that plaintiff’s decedent failed to tie his lanyard to the scaffold could not be the sole proximate cause. Building owner and construction manager granted summary judgment on contractual indemnity claim against subcontractor that removed window because contract specifically provided for indemnity where the subcontractor was not negligent. Wilk v Columbia Univ.


Dogbite   Strict Liab   Vicious Propensity  

Second Deptartment

Claim of common law negligence for dog bite should have been dismissed as New York does not recognize theory of common law negligence for dog bite except for farm animals who escape from farm. Defendant granted summary judgment on strict liability claim upon owners’ proof that they had the dog for 4 years and the dog had never bitten, chased, or attacked anyone. Plaintiff failed to raise an issue of fact. Xin Kai Li v Miller


Premises Liab   Stairs   Slip/Trip   Out of Possession   Raised For First Time  

Second Deptartment

Building owner granted summary judgment on proof that it had leased the premises, including the staircase upon which the plaintiff slipped and fell, to the plaintiff’s employer who had exclusive control and access to the staircase that was used solely for plaintiff’s employer and its subtenant, showing that it was an out-of-possession owner. The lease did not require the owner to maintain or repair the stairs. Claim that lease attached to motion expired prior to the date of accident was not raised below and, in any event, was rebutted by the building owner’s affidavit. There was also no statutory duty of maintenance. Sections cited by the plaintiff were too general to impose a duty. Sapp v S.J.C. 308 Lenox Ave. Family Ltd. Partnership


Premises Liab   Dangerous Condition   3rd Party Contractor   Espinal   Open/Obvious   Inherently Dangerous  

First

Armored car service denied summary judgment where bank teller tripped over boxes of quarters delivered by them even though control of the boxes had been transferred to the bank minutes before. A third-party contractor may assume a duty of care when it launches an instrumentality of harm, creates, or exacerbates a dangerous condition. Defendant failed to show that the condition was open and obvious and not inherently dangerous. Brown v Garda CL Atl., Inc.


MVA   Sole Cause   Comparative Fault   Turning Vehicle   There to be Seen  

Second Deptartment

Plaintiff driver denied summary judgment where he was traveling straight on road with no traffic device and bus was making a turn onto the road from a road with a stop sign, striking the passenger rear of plaintiff’s car with the front left of the bus. Plaintiff showed that defendant failed to yield the right-of-way but failed to eliminate the question of plaintiff’s comparative fault by failing to see what was there to be seen before entering the intersection and avoiding the accident. Mark v New York City Tr. Auth.


Premises Liab   Building Code   Dangerous Condition   Notice   Open/Obvious   Inherently Dangerous  

Second Deptartment

Hospital failed to show that the alleged condition, steep delivery ramp in loading dock area, did not violate NYC administrative code §§ BC 1010.2 and 1010.4, was not dangerous on the day of the accident, that they did not have notice, and that the condition was open and obvious and not inherently dangerous. Gorokhovskiy v NYU Hosps. Ctr.


Late Notice of Claim   False Arrest   Battery   Actual Knowledge   Reasonable Excuse   Prejudice  

Second Deptartment

Motion to serve late Notice of Claim, or deem it timely served, denied where petitioner had filed a Notice of Claim with the wrong date that he was arrested and allegedly beaten. Allegation that police reports provided actual knowledge was conclusory without the reports themselves and police reports do not necessarily give the essential elements necessary to alert the municipality to an actionable wrong. Petitioner failed to explain why he could not remember the original date of the arrest or why he waited so long to retain an attorney, and failed to provide proof or a “plausible argument” showing that defendants would not be prejudiced. Matter of Fethallah v New York City Police Dept.


Med Mal   Discovery   CPLR § 3126   Strike Answer   Preclusion   Willful/Contumacious  

Second Deptartment

Plaintiff’s motion to strike the Answer or preclude defendants from offering evidence at trial providently denied where evidence of willful and contumacious was not clear and some of the demands were overly broad, vague, and irrelevant. Irving v Four Seasons Nursing & Rehabilitation Ctr.


Premises Liab   Sidewalk   Slip/Trip   Snow/Ice   Storm in Progress  

First

Adjoining landowner granted summary judgment on proof that freezing rain had started approximately 1 hour before the plaintiff slipped and fell on snow pushed to the side of the sidewalk which he walked on claiming that the sidewalk contained patches of ice, entitling defendant to the storm in progress defense. Plaintiff failed to show that ice existed on the sidewalk prior to the storm or that defendant’s snow removal efforts created or exacerbated a dangerous condition. Santiago v New York City Hous. Auth.


Dogbite   Strict Liab   Vicious Propensity  

Second Deptartment

Defendant granted summary judgment upon owner’s proof that the dog had never bitten, chased, bore its teeth, or attacked anyone. Plaintiff failed to raise an issue of fact. Carroll v Kontarinis


Premises Liab   Out of Possession   NYC  

First

NYC granted summary judgment on proof that it was an out-of-possession owner with no duty to repair or maintain the area where plaintiff’s accident occurred and plaintiff failed to raise an issue of fact by showing that the accident involved a structural defect. Mendoza v City of New York


Discovery   Reasonable Excuse  

First

Second third-party defendant was not prejudiced by order keeping case on trial calendar as it could complete discovery as the case made its way up the trial calendar and had all prior discovery available which involved the same issues. Second third-party plaintiff did not unduly delay commencing the second third-party action after receiving plaintiff’s expert disclosure which raised the issue of whether the second third-party defendant’s inspection was an integral part of the plaintiff’s claims. Range v Trustees of Columbia Univ. in the City of N.Y.


Untimely   Reasonable Excuse   Meritorious Action  

Second Deptartment

Defendant’s motion to dismiss the case as abandoned granted where plaintiff failed to take a default judgment within one year of completion of service. Fact that plaintiff’s attorney died, staying action pursuant to CPLR 312c), did not provide a reasonable excuse for not seeking the default since plaintiff’s attorney died 3 1/2 years after the 1 year expired. Kim v Wilson


Vacate Default   Reasonable Excuse   Meritorious Defense  

First

Affidavit of defendant’s president that the service address was wrong, that it did not operate any store at the location where plaintiff claimed the accident occurred, that none of its stores had stairs, and that a separate entity operated a store at the address alleged by the plaintiff was sufficient to warrant vacating default judgment. Caesar v Harlem USA Stores, Inc.


Discovery   Products Liab  

First

Injured worker made a proper showing for pre-action discovery by showing that he likely had a meritorious products liability case and needed limited information to identify the manufacturer of the concrete roadblock where he was injured while removing a pin. There was a continuing obligation to provide discovery, however, the lower court overstepped the bounds of the request by ordering a deposition which was not requested. Matter of Camara v Skanska, Inc.


Wrongful Death   Burden of Proof  

First

Defendant failed to meet its burden of proving entitlement to summary judgment. It is not sufficient to merely point out gaps in the plaintiff’s proofs. Barone v Elizabeth Firehouse, LLC

IF YOU MUST READ
(1 summaries)
MUST READS NOTEWORTHY

MVA   Pedestrian  

First

Plaintiff met initial burden for summary judgment on proof that she was crossing in the crosswalk with the light in her favor when struck by the defendant but defendant raised a triable question of fact in opposition. The court does not detail the proofs. Evart v Terzi

About Matt McMahon

Civil trials and appeals since 1984

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