May 23, 2023 | Vol. 366

(5 summaries)

Set Aside Verdict   Motion in Limine   Preclusion   Prejudice   Duty  

Second Department
Remarks by defense counsel in opening statement made after trial court granted motion in limine precluding Con Ed from mentioning claim Verizon’s cables attached to its power lines caused the lines to sag and fall on plaintiff-motorcyclist were “intentional and deliberate” as the trial court had reminded counsel of the prohibition just before opening statements and rather than objecting to a mistrial after repeatedly mentioning the prohibited argument, defense counsel only asked the court to mark the case off the trial calendar so it could reinstitute its third-party action against Verizon which had been dismissed for its “knowing and deliberate” delay in bringing the third-party action on the eve of trial (CPLR §1010). The repeated remarks that a “communication company” might be responsible deprived plaintiff of a fair trial by inviting the jury to speculate that the cause was other than Con Ed’s breach of its duty to repair sagging wires whether or not it caused the condition. Judgment set aside and remanded for new trial. Coward v Consolidated Edison, Inc.    

MVA   Arbitration   Raised For First Time  

First Department
Uber’s motion to compel arbitration and stay court case granted on unrebutted proof plaintiff explicitly agreed to an unequivocal arbitration agreement, including question of arbitrability, by taking 2-separate actions to confirm he reviewed and agreed to Uber’s updated terms of service (clipwrap agreement) and fact that terms were available only through a hyperlink in a pop-up screen gave plaintiff “inquiry notice” of the terms since reasonably prudent users are aware highlighted blue text takes them to another page where the terms are available. Unconscionability claim raised for the first time on appeal, not considered. Brooks v Lang Yang    

Assault   Battery   Building Security   Workers Comp Defense   Duty   Premature Motion  

Second Department
Lower court providently granted law firms’ motion for summary judgment dismissing pro se plaintiff’s assault and battery claim for assault by lawyer when the paralegal came in to pick up his belongings after being fired where he received workers compensation but erred in dismissing claim against the lawyer as a co-employee committing an intentional assault is not protected by the workers compensation exclusivity clause. Plaintiff granted summary judgment against lawyer on plaintiff’s affidavit showing intentional, non-consensual, offensive bodily contact that placed him in ‘imminent apprehension of harmful contact,’ and lawyer failed to raise an issue in opposition.

Company that did not own/occupy the building granted summary judgment as it had no duty to plaintiff. Building owner’s motion for summary judgment premature where plaintiff showed discovery might lead to relevant information to oppose their motion. Tarasiuk v Levoritz    

MVA   Zone of Harm   Emotional Harm  

Second Department
Mother’s claim for emotional harm from being in the zone of harm when vehicle struck her infant dismissed as diagnosis of generalized anxiety disorder on a single psychiatric exam based on her self-reported symptoms was insufficient to establish a “serious emotional injury” for purely emotional harm. A. W. v Palacios    

Comment: The Court did not address the issue of whether a plaintiff must meet the serious injury threshold for zone of harm emotional injury.

Vacate Jud   Vacate Default   Personal Juridiction   Service   Hearing   Reasonable Excuse   Renew  

Second Department
CPLR §4403 does not permit a motion to set aside a referee’s determination on an appointment to hear and determine as “the referee possesses ‘all the powers of a court in performing a like function.'” Service on security guard who refused to allow access to plaintiff’s unit but accepted service on behalf of defendant, with follow-up mailing to defendant’s residence, was proper service under CPLR §308(2). Defendant failed to meet burden to vacate $812,468 default judgment after inquest without a reasonable excuse for failing to answer. Makmudova v Cohen    

(16 summaries)

MVA   Motion to Dismiss   Notice of Claim   Respondeat Superior   Statute of Limitations  

Second Department
Motion to dismiss by school district and its employee granted on undisputed proof plaintiff did not serve a Notice of Claim prior to suit and both the defendant-employee’s affidavit and plaintiff’s pleadings showed employee was acting in the scope of his employment at the time of the accident. Motion also granted on statute of limitations where the action was commenced approximately 3-years after the accident which was subject to the 1-year and 90-day statute of limitations for suing municipalities. Parpounas v Ohagan    

Premises Liab   Sidewalk   Motion to Dismiss   90 Day Notice   Note of Issue   Reasonable Excuse   Meritorious Action  

Second Department
Defendant’s motion to dismiss under CPLR §3216 granted where plaintiff failed to file a Note of Issue or move to extend or vacate the 90-day notice and failed to show a reasonable excuse for not timely filing the Note of Issue and that she had a meritorious action. Turner v Fuchs, Cooperstein & Greengold, LLC    

Default Judgment   Compel Acceptance   Meritorious Defense  

Second Department
Plaintiff’s motion for default judgment against 1-defendnant and that defendant’s application to compel acceptance of his Answer submitted in opposition denied where counsel verified both the Complaint and proposed Answer instead of someone with personal knowledge, which is necessary to establish a valid cause of action or a meritorious defense. Plaintiff’s affidavit of merit submitted on the motion stating only that he was “struck by a motor vehicle” and injured did not allege facts of negligence. Pemberton v Montoya    

Malpractice   Renew   Estate   Vacate Default   Reasonable Excuse   Untimely  

First Department
Plaintiff’s motion to renew defendants’ prior motion to dismiss for failure to timely substitute estate providently denied where plaintiff offered no new facts not available at time of the original motion or reasonable justification for not including them 3-years earlier. Motion to vacate prior order on CPLR §5015(a)(1) denied as order was not granted on default. Plaintiff’s counsel appeared and argued motion and motion to vacate was brought more than 1-year after the prior order. Matter of Duval v Centerlight Health Sys., Inc    

Comment: Related decision reported in Vol. 241.

Motion to Dismiss   Notice of Claim   Court of Claims  

Second Department
Order dismissing action for failure to comply with Court of Claims Act §11(b) pleading requirement to identify location of accident providently granted after hearing, held after Appellate Division reversed order dismissing action, which found photographs of the exact location of the door that injured plaintiff were not attached to the Notice of Intention to Claim. Shabat v State of New York    

Comment: Appellate Division’s prior decision was reported in Vol. 187.

Premises Liab   Snow/Ice   Duty   Storm in Progress   § 7-210   Create Condition  

First Department
Building tenant granted summary judgment dismissing claim by person who slipped on snow/ice on abutting sidewalk as storm in progress administrative code (§16-123), which applies to tenants and owners, does not provide a cause of action for failure to remove snow/ice/debris within 4-hours and §7-210 which imposes a duty on abutting landowners does not apply to tenants. Lease did not require tenant to remove snow/ice and lease of other tenant showed it was responsible to remove snow/ice. There was no proof moving defendant’s earlier voluntary removal of snow/ice created or exacerbated the condition. Cruz v Heights Broadway, LLC    

Premises Liab   Duty   Create Condition   Notice   Last Inspection  

Second Department
Defendant’s motion for summary judgment denied where exculpatory and indemnity language in tradeshow agreement protecting defendant from claims unless caused by its ‘sole negligence or willful misconduct’ did not unequivocally relieve defendant of liability for exhibitor’s trip on a hole in the protective plastic covering over a carpet. Defendant failed to show it did not have constructive notice of the condition where affidavit by its director of operations provided only general inspection practice, not the last time the area was cleaned/inspected prior to the accident. Vella v UBM Holdings, Inc.    

Labor Law §240   Scaffold   Gravity Risk  

First Department
Worker injured when heavy scaffolding pole his coworker could not keep upright because it was unsecured fell on his head and shoulders granted summary judgment on Labor Law §240(1) as failure to secure the pole from falling created a gravity risk and the distance it fell was not de minimis where its weight could generate a large amount of force on its dissent. Ruiz v Phipps Houses    

MVA   Pedestrian   Comparative Fault   There to be Seen  

Second Department
Plaintiff granted summary judgment on proof forklift operator struck him from behind but failed to meet burden for dismissal of comparative fault defense without eliminating questions of whether he failed to keep a proper lookout when he stepped onto the roadway from a possession pathway while carrying a box of fruit on his shoulder. Acevedo v CKF Produce Corp.    

Premises Liab   Sidewalk   Snow/Ice   § 7-210   Create Condition   Notice   Feigned Issue   Open/Obvious   Warnings   Sole Cause  

First Department
Building owner failed to meet burden for summary judgment on plaintiff’s testimony she slipped and fell in “street,” not covered by administrative code §7-210, where the testimony was ambiguous as to where she fell, and defendant failed to show lack of notice of the snow pile the caused plaintiff’s accident. In any event, plaintiff’s affidavit explaining she testified through an interpreter and the questions were ‘very confusing’ provided a reasonable explanation for the conflicting locations and did not raise a feigned issue.

Argument that snow/ice was open/obvious rejected as it would only relieve owner of the duty to warn and question of whether plaintiff was sole cause of her accident was for a jury. Martinez v Contreras    

Premises Liab   Sidewalk   Unknown Cause   Notice   Last Inspection   Conclusory  

Second Department
Defendant failed to meet burden for summary judgment on unknown cause where plaintiff consistently testified her foot caught on a cracked/raised portion of sidewalk sticking up 1”-1.5″ in the middle of the sidewalk. Defendant’s VP’s conclusory affidavit stating they had no notice of the condition without any mention of the last time the area was cleaned/inspected failed to eliminate questions on constructive notice. Paraskevopoulos v Voun Corp.    

MVA   Turning Vehicle   Emergency Doctrine   Comparative Fault   Survelliance Video  

First Department
Plaintiff’s motion to dismiss comparative fault defense denied where jury could find from dash cam video that she had more than a few seconds to react to truck making right turn from left lane before striking her. Caparitia v Johnson    

Malpractice   Accepted Practice   Causation   Experts   Speculation  

Second Department
Rehab center granted summary judgment on expert’s opinion their treatment of decedent’s symptoms of intermittent non-productive cough increasing to congestion and vomiting, resulting in decedent’s death within 45-minutes, including suctioning and application of oxygen by nasal cannula, did not depart from accepted practice or cause decedent’s death. Plaintiff did not dispute defendant met burden for summary judgment and failed to raise an issue in opposition by the conclusory, speculative opinion of her expert which did not establish proximate cause. Nisevich v Shorefront Ctr. for Rehabilitation & Nursing Care    

MVA   There to be Seen  

Second Department
Defendants granted summary judgment on defendant-driver’s testimony he saw plaintiff enter the intersection past a stop sign 2-seconds before impact, in violation of VTL § 1142(a), and he could not avoid the accident after honking his horn, pulling the steering wheel to the left, and braking. De Pina v Jerrick Assoc., Inc.    


Second Department
Defendants granted summary judgment on proof plaintiff entered the roadway from a driveway without yielding the right-of-way in violation of VTL §1143 and defendant-driver was not driving negligently and did not have sufficient time to stop before striking plaintiff’s vehicle. Hand v Ridge Volunteer Fire Dept., Inc.    

Attorney Fees  

Second Department
Firm replaced after it had prepared all pleadings, attended conferences, conducted EBTs, prepared for trial, negotiated settlement and reduction of legal funding and medical liens over 3-years entitled to 65% of attorney fee based on the relative work performed by both firms and the outcome. Stephen v City of New York    

(1 summaries)

MVA   Bicycle   Causation  

Second Department
Bicyclist who struck taxicab rear door as passenger opened it while taxi was stopped in traffic failed to meet burden for summary judgment where his and passenger’s testimony failed to eliminate questions of fact on negligence and causation. The Court does not give the details of the proofs. Singh v Hana Express Cab Corp.    

About Matt McMahon

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