May 24, 2022 | Vol. 314

(6 summaries)

Assault   Negligent Hiring   Discovery   Privilege  

First Department
Plaintiff’s motion to compel hospital to provide discovery of 3-other women assaulted by ER doctor and identities of his coworkers working with him at time of the sexual assaults granted to extent of requiring defendants to provide party statements and incident reports in documents kept in the ordinary course of business, not in quality-assurance documents, and a log identifying any documents claimed protected by the quality-assurance review privilege for in camera review. Hospital’s affidavit stating there were no party statement in the quality-assurance documents of the offending doctor failed to identify the documents reviewed or whether they included the other 3-incidents. Defendant required to provide names of the other 3-patients on issuance of a 45 CFR 164.512(e) protective order as they are not privileged since a sexual assault is not part of treatment. Defendants required to provide coworkers’ names contained in a DOH statement of deficiencies and a copy of that statement but with DOH’s conclusions of law and opinions redacted. Newman v Mount Sinai Med. Ctr., Inc.    

Labor Law §240   Motion to Dismiss   General Release   Settlement   Premature Motion  

First Department
The Complaint and plaintiff’s affidavit raised questions of whether plaintiff understood the $30,000 English language general release he signed releasing all claims for his fall from a 30′ ladder at a construction site or whether it was the product of fraud, duress, or overreaching. Plaintiff did not read or understand English, was not represented, and claimed defendants told him it was a pro forma form needed to obtain compensation he was owed when he was desperate for money as he was unemployed at the time of the release and needed to go to Puerto Rico to see his dying brother. Defendants’ motion to dismiss based on the release and plaintiffs’ motion to dismiss the affirmative defense of settlement denied without prejudice as premature where there was minimal discovery. Rosa v McAlpine Contr. Co.    

Renew   Labor Law §241   Industrial Code   Amend BP   Untimely   NYC  

Second Department
Plaintiff’s second motion to renew opposition to defendants’ motion for summary judgment denied as untimely where brought 3-years after the time to appeal from the initial judgment dismissing the Labor Law §241(6) claim, despite fact his first motion to renew and amend his BP to include industrial code §23-1.5(c)(3) based on a change of law in the First Department finding it sufficiently specific to support a §241 claim was timely brought and Second Department rejected its prior precedent and likewise found it sufficiently specific while the appeal from the denial of that motion was pending almost 3-years before it upheld the denial of the first motion based on its precedent at the time the motion was made. Absent circumstances specified in CPLR §5015, the second motion to renew was untimely and the need to have an end to a litigation takes precedence over any apparent unfairness. A pending motion for leave to appeal to the Court of Appeals does not extend the time to appeal from a final judgment. Opalinski v City of New York    

Motion to Dismiss   Personal Juridiction   Discovery   Speculation  

First Department
German stem cell registry NPO’s motion to dismiss for lack of personal jurisdiction granted as it did not have minimal contacts with NYS where it provided bone marrow for transplant to treat decedent’s leukemia but did not engage in a regular course of conduct or avail itself of conducting activities in NYS, its contacts with decedent’s doctors were responsive, it did not derive substantial revenue from the transaction or from NYS as it was paid a set fee by a German entity which was not dependent upon decedent’s or decedent’s insurance company’s ability to pay, and it had no offices, employees, agents, marketing, registrations, or presence in New York. Claim that defendant might be connected with a larger entity that derived substantial international revenue was speculative and insufficient to deny motion and require discovery. Aloisio v New York-Presbyt./Weill Cornell Med. Ctr.    

Battery   Notice of Claim   Actual Knowledge   Prejudice   NYC  

First Department
Petitioner’s motion for leave to file late Notice of Claim granted as officers involved in alleged attacks on 5-occasions would have personal knowledge of the incidents and their knowledge would be imputed to their employer, NYC. NYC’s actual knowledge met petitioner’s burden of showing no prejudice and NYC failed to make a particularized showing that delay caused it substantial prejudice. Matter of Jaime v City of New York    

Malpractice   Public Health §2801-d   Venue  

Second Department
Defendants had no authority to bring motion to change venue from Bronx to Nassau County in Nassau County based on admission agreement signed by decedent’s great grandson where they failed to first serve a timely demand for change of venue under CPLR §511(a) and (b). Motion denied without considering merits. Allen v Morningside Acquisition I, LLC    

(16 summaries)

Motion to Dismiss   Discovery   BP   CPLR § 3126   Reasonable Excuse   Sanctions  

Second Department
Defendants’ motions to dismiss for failure to respond to defendants’ demands for BPs and discovery, respond in any way to defendants’ good faith efforts to get plaintiff to respond, or offer a reasonable excuse for not complying denied conditioned upon plaintiff’s counsel paying each defendant $2,500.00 where plaintiff substantially complied with the demands in response to defendants’ motions. Since plaintiff did not violate any court ordered deadlines, sanctions payable to each defendant was a more appropriate remedy then dismissing the action. Cook v SI Care Ctr.    

Negligent Supervision   Notice   Foreseeability   Question of Fact  

Second Department
School district failed to meet burden for summary judgment of negligent supervision claim of first-grader attacked by student who grabbed her arm and pulled it, causing physical and emotional harm, where it received prior complaints by her parents that she was being attacked by assailant and other students and district took some measures to protect the child as it failed to eliminate all questions of whether its supervision was adequate under the circumstances or whether the act was so spontaneous it could not have been prevented by any degree of supervision. J.S. v Ramapo Cent. Sch. Dist.    

Labor Law §240   Notice of Claim   Prejudice   Court of Claims  

Second Department
Claimants’ motion for leave to serve late Claims on Labor Law §§240(1) and 241(6) for injuries injured-plaintiff sustained during construction of the new Tappan Zee Bridge granted where the delay was minimal and the respondents were not prejudiced as they had an opportunity to investigate after receiving an accident report and medical release which were required by contract to be provided to them immediately after the accident. Respondents failed to make a particularized showing of prejudice. Schnier v New York State Thruway Auth.    

Motion to Dismiss   Preclusion   CPLR § 3126   BP   Willful/Contumacious   NYC  

First Department
NYC’s motion to dismiss or to preclude plaintiff from offering evidence at trial under CPLR §§ 3126 and 3042 providently denied where defendants failed to show a willful pattern of noncompliance. Cepeda v City of New York    

Labor Law §240   Labor Law §241   Renew   Reasonable Excuse   Raised For First Time   Strike Note of Issue   Discovery   HIPAA  

First Department
Defendants’ motion to renew opposition to plaintiff’s summary judgment on Labor Law §§240(1) and 241(6) and on their cross-motion for summary judgment denied where they did not provide reasonable justification for not presenting the new facts on the original motion or explain why they could not respond to a foreman’s affidavit submitted in plaintiff’s reply on the original motion in their reply on their cross-motion. New information would not have changed the result as fact that witness was not actually plaintiff’s foreman did affect fact he witnessed the accident and was aware of the conditions and plaintiffs’ counsel’s representation of the witness in a separate lawsuit involving a different accident had little bearing on what he witnessed in this case. Superintendent’s affidavit submitted by defendants for the first time in reply not considered without explanation of why it could not have been submitted initially.

Defendants’ motion to renew motion to strike Note of Issue for further discovery on damages providently granted as appellate court’s reinstatement of plaintiff’s claim and grant of summary judgment to plaintiff revived the damage issue and plaintiff required to provide authorizations for new medical, IRS, and union records. Ferguson v Durst Pyramid, LLC    

Comment: Original appellate decision was reported in Vol. 191.

Labor Law §241   Industrial Code  

Second Department
GC granted summary judgment dismissing Labor Law §241(6) claim based on industrial codes §§ 23-1.7(d) and (e)(slipping/tripping hazards) on proof debris plaintiff tripped on was an integral part of his demolition work. Moye v Alphonse Hotel Corp.    

Labor Law §240   Safety Devices   Sole Cause  

First Department
Mechanical technician injured when he grabbed an overhead metal truss as he slipped on 15′ escalator underside ramp that lacked siderails granted summary judgment of Labor Law §240 (1) claim. Defendant’s argument that plaintiff’s failure to wear a safety harness was sole cause rejected without proof tie off locations were available, plaintiff knew he was supposed to wear the harness but refused, or that the harness would have protected him. Claim mechanic was engaged in maintenance and not repair unpreserved for appeal. Latteri v Port of Auth. of N.Y. & N.J.    

Labor Law §240   Labor Law §200   NYC  

Second Department
NYCTA worker struck by metal sling from overhead elevated tracks failed to meet burden for summary judgment where questions remained of whether she was engaged in repair, protected by Labor Law §§240(1) and 241(6), or routine maintenance not covered by the sections. The Court does not give the details of the proofs. Washington-Tatum v City of New York    

Premises Liab   Sidewalk   Snow/Ice   Storm in Progress   Create Condition  

Second Department
Defendants granted summary judgment of plaintiff’s claim he slipped on snow/ice on sidewalk where plaintiff admitted there was a storm in progress and defendants showed any snow removal efforts did not make the condition worse. Failure to remove all snow/ice does not automatically prove the condition was exacerbated. Keeney v Hempstead Turnpike, LLC    

Premises Liab   Create Condition   Respondeat Superior   Indemnity  

Second Department
Landlord defendants denied summary judgment of tenant’s claim to be injured from chemicals, dust, and debris emitted from air conditioning unit in her apartment that building superintendent installed, disassembled, cleaned, and reinstalled every year and super was the last one to work on the AC unit before the accident where they failed to offer proof the superintendent properly cleaned and reinstalled the AC unit or that the superintendent was not acting within the scope of his employment. For the same reasons, landlords’ motion to dismiss the common-law-indemnity claim of exterior-pointing contractor denied. Andre v S.W. Queens Mezzanine, LLC    

Labor Law §200   Premises Liab   Control   Notice  

First Department
Defendants’ motion to dismiss Labor Law §200 and negligence claims on grounds they did not control means and methods of plaintiff’s work denied as to claim plywood ramp he had to walk over to deliver pipes into garage being built at Yankee Stadium was a dangerous condition and questions remained of whether owner or GC had notice of the dangerous condition. Plaintiff’s testimony ramp was present when he first started work months before contradicted defendants’ witnesses’ testimony they had no notice of the condition. The number of defendants’ witnesses is an issue of credibility for the jury, not a basis to dismiss. Plaintiff’s cross-motion for summary judgment denied. Jackson v Hunter Roberts Constr., L.L.C.    

Labor Law §200   Labor Law §241   Premises Liab   Control   Amend Complaint   Industrial Code   Prejudice  

First Department
Plaintiff’ motion to amend Complaint to include Labor Law §§ 200 and 241(6) claims providently granted where it did not hinder defendants in preparing their case or supporting their position and potential exposure to greater liability is not prejudice. Claim of dangerous condition sufficient for §200 claim even where there was no control of means and methods of work and industrial code §23-1.13(b)(4) was sufficiently specific to support §241 claim. Defendants’ argument plaintiff was not engaged in construction not relevant to issue of amending Complaint as court does not decide the merits of the pleading. Henry v Split Rock Rehabilitation & Health Care Ctr., LLC    

Malpractice   Appealable Order  

Second Department
Appeal from judgment entered after plaintiff’s appeal from order granting defendant’s summary judgment was dismissed for failure to prosecute dismissed as dismissal for failure to prosecute generally bars a subsequent appeal on all matters in the original appeal and plaintiffs failed to show any reason for the appellate court to exercise its discretion in hearing the subsequent appeal. Rodriguez v Kim    

Premises Liab   Amend Answer   Workers Comp Defense  

First Department
Defendant’s motion to amend its Answer to include a workers comp defense denied as its principal’s testimony that it leased the premises to plaintiff’s employer and both entities were owned by the same 2-brothers was insufficient to justify a workers comp defense. Carrasquillo v Wilfred Realty Corp.    

False Arrest   Battery   1983 Action   Probable Cause   Question of Fact   NYC  

Second Department
Viewing plaintiff’s vastly different version of the events leading up to his being handcuffed and detained for 15-20 minutes by the individual officers-defendants while they were patrolling an area with a surge of car thefts in light most favorable to plaintiff, questions remained of whether defendants had probable cause to arrest him and, if it was an unlawful arrest, the battery and 1983 violation of constitutional rights claims were viable. Plaintiff’s cross motion for summary judgment denied. Luers v City of New York    

Premises Liab   CPLR §306-b   Untimely   Meritorious Action  

Second Department
Plaintiff’s motion to extend her time to serve the Summons and Complaint under CPLR §306-b, brought 1-year after the Second Department dismissed the action for failure of proper service within 120-days, denied as plaintiff did not show due diligence in attempting service or moving for an extension of time to serve and failed to show a meritorious action. Pinzon v IKEA N.Y., LLC    

Comment: The Second Department decision dismissing the action was reported in Vol. 115.
(3 summaries)

Serious Injury   Premature Motion  

Second Department
Plaintiff’s motion for summary judgment on serious injury brought before discovery was premature. The Court had previously reversed denial of summary judgment on liability, but defendants were entitled to discovery on damages and serious injury. The Court does not give the details of the proofs. Harrinarain v Sisters of St. Joseph    

Serious Injury   Causation  

Second Department
Defendant met burden for summary judgment on serious injury but plaintiff raised issues on permanent consequential and significant limitation categories for his lumbar injuries and on causation. The Court does not give the details of the proofs. Holloman v Glover    

Serious Injury   Causation  

Second Department
Plaintiff conceded that defendant met burden of showing no serious injury but raised issues on permanent consequential and significant limitation categories for her cervical and lumbar injuries and on causation. The Court does not give the details of the proofs. Daley v P.J. Jennette-Mingo    

About Matt McMahon

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