May 25, 2021 | Vol. 263

(5 summaries)

Negligent Supervision   Respondeat Superior   Control   Dangerous Condition   Bicycle   Special Duty  

Second Department
Father of 2.5-year-old who struck 2-year-old with 2-wheeler bicycle in portion of municipal playground for smaller children denied summary judgment dismissing respondeat superior claim for nanny who continuously worked for family for 9-years and required their permission before engaging in certain activities on questions of whether nanny was employed by father and whether she negligently supervised child who was learning to ride and had trouble controlling the bicycle.

Municipal defendants granted summary judgment where there were no physical defects in park and a bicycle in a parking is not an ultrahazardous or criminal activity. Failure to enforce compliance with regulation prohibiting bike riding did not create a special duty to the infant-plaintiff. C.B. v Incorporated Vil. of Garden City    

Discovery   Note of Issue  

First Department
Motion by estate of window-washer who fell from fifth story to vacate or extend Note of Issue and compel further discovery providently denied for failure timely to seek discovery where plaintiff had history of noncompliance with court discovery orders and claim decedent’s employer’s EBT was necessary failed to show insufficiency of testimony of coworkers who were deposed. Trial court providently denied subpoenas for non-party witnesses plaintiff was aware of from start of action. Miranda v Hanover Riv. House Inc.    

Assault   Notice   Foreseeability   Intervening Cause   Workers Comp Defense   Alter Ego   Hearsay  

Second Department
Owner of mall and tenant karaoke restaurant failed to meet burden for summary judgment where drunk karaoke patron had altercation with plaintiff who worked at next door restaurant and returned with at least 20 karaoke customers who beat plaintiff unconscious. Owner’s witness did not work for the mall at the time and had no knowledge of whether mall had notice of “prior occurrence[s] of the same or similar criminal activity at a location sufficiently proximate to the subject location,” and tenant’s witness did not testify there were no prior incidents, claiming a lack of memory. Statements about prior incidents testified to by plaintiff were hearsay, but it was defendants’ burden to show lack of notice. Assault was not sudden and without warning where situation escalated from original altercation to return of the group of karaoke patrons.

Tenant failed to show it was the alter ego of plaintiff’s employer, a management company formed by two of the karaoke restaurant shareholders, without proof the companies were a single entity or that one completely dominated and controlled the day-to-day operations of the other. Zhi Eric Zhang v ABC Corp.    

Labor Law §241   Labor Law §200   Industrial Code   Control  

Second Department
Defendants granted summary judgment of Labor Law §241(6) claim where drilling soil samples was “investigatory” only, would terminate before construction or demolition, and was “a separate phase easily distinguishable from other parts of the larger construction project” not considered construction under the industrial code §23-1.4(b)(13) definition. Defendants also granted summary judgment dismissing Labor Law § 200 and negligence claims on proof they did not supervise, direct, or control plaintiff’s work. Specification of number and depth of holes given by defendant who hired plaintiff’s employer did not raise issue where that defendant did not direct or instruct plaintiff how to drill. Marney v Cornell Kent II Holdings, LLC    

Default Judgment   Vacate Default   Reasonable Excuse  

First Department
Plaintiff granted default judgment against building owner and building owner’s motion to compel acceptance of Answer denied where owner conceded receipt of Summons/Complaint under BCL §306, and additional service under CPLR §3215(g)(4)(ii) 6-months before it’s Answer, as claim they forwarded pleadings and discovery demands to carrier was not a reasonable excuse for failing to answer. Godlewski v Park Seventy-Ninth Corp.    

(13 summaries)

Labor Law §240   Labor Law §241   Safety Devices   Industrial Code   Feigned Issue  

First Department
Worker knocked off truck by beams that spread and decelerated due to missing taglines while he was preparing beams for hoisting in a storm granted summary judgment under Labor Law §240(1) on plaintiff’s affidavit which did not flatly contradict his EBT as he was not asked any questions on taglines or other safety devices, defendant admitted no taglines were used, and defendant offered only counsel’s unsupported arguments and an unauthenticated document. Plaintiff also granted summary judgment on Labor Law §241(6) based on industrial codes §§ 23-2.3(c) and 23-8.1(f)(2)(i)(hoisting) for lack of taglines and rapid deceleration causing load to bounce and knock plaintiff from truck. MacGregor v MRMD NY Corp.    

Malpractice   Set Aside Verdict   Pain/Suffering   Materially Deviates  

First Department
Jury award of $1 mil/$1 mil past/future pain/suffering, set aside by trial court unless plaintiff stipulated to reduce award to $150,000/$450,000, further reduced by Appellate Division to $150,000/$100,000. The Court does not give the details of the proofs. Numerous points raised in plaintiff’s reply brief stricken as improper sur reply. P.D. v LaCour-Gayet    

Malpractice   Informed Consent   Accepted Practice   Experts  

First Department
Dermatologist granted summary judgment where expert gave full explanation of Propecia used to treat early male pattern baldness and potential post-finasteride syndrome (PFS) before opining there was no departure from accepted practice and that explanations given to patient went far beyond standard of care. Plaintiff’s expert internist failed specifically to address defendants’ expert’s opinions or refer to acts or medical evidence he relied on for his opinions. A package insert revision did not raise issue of fact on informed consent where explanations given to plaintiff were consistent with revisions. Weitz v Bernstein    

Labor Law §240   Sole Cause   Safety Devices   Comparative Fault   Indemnity   Control  

First Department
Plaintiff’s testimony that he fell from ladder which suddenly gave way was sufficient for summary judgment against owner and tenant whose claim plaintiff was sole proximate cause failed to raise issue without proof plaintiff was provided with appropriate safety devices he chose not to use and incident report did not support argument that stepping between desk and ladder was sole cause versus comparative fault.

Contractor that installed ceiling grid denied summary judgment of owner’s and tenant’s contractual indemnity claims where plaintiff’s testimony that he was tweaking the ceiling grid to fit a light fixture raised issue of whether accident arose from performance of contractor’s work and also preluded summary judgment for owner and tenant. Common-law indemnification claims of owner and tenant dismissed on proof neither grid nor electrical contractor supervised plaintiff’s work or were otherwise negligent. Electrical contractor granted summary judgment of contractual indemnity claim as it installed the light fixture after plaintiff’s work and plaintiff testified a nearby light fixture fell when he grabbed it as he fell, not because it was improperly installed. Hogan v 590 Madison Ave., LLC    

Labor Law §200   Labor Law §241   Notice   Control   Industrial Code  

First Department
Defendants granted summary judgment of Labor Law §200 and negligence claims where electrical cord or wire plaintiff tripped on was not present for enough time for defendants to discover and remedy condition and GC lacked control over work. Defendants granted summary judgment of Labor Law §241(6) claim based on § 23-1.7(e)(1)(tripping hazard/passageway) as hallway where plaintiff was compounding sheetrock “must be considered more of a work area than a passageway.” Neither side entitled to summary judgment based on industrial code §23-5.22(f)(stilts) where there were conflicting opinions of when the plaintiff fell and what work was being performed. Amaya v Purves Holdings LLC    

Out of Possession   Create Condition   Notice   Espinal   Appealable Order  

Second Department
Sister-defendant who owned 2-family rental property with her brother-defendant denied summary judgment where she failed to show she was an out of possession owner and inspection 5-years before accident, and HUD report stating property cleared inspection 5-months before accident, were insufficient to establish lack of constructive notice. Brother granted summary judgment. Lattimore v Thackurdeen    

Comment: Mother-defendant granted summary judgment on proof she helped manage property but did not maintain complete or exclusive control of management. Lattimore v Thackurdeen. Mother’s separate appeal from order dismissing case against her son dismissed as she was not aggrieved by the order. Lattimore v Thackurdeen.

Labor Law §240   Falling Object   Scaffold   Control   Agent   Comparative Fault   Indemnity   Premature Motion  

First Department
Glazier, injured when 500’ power cord weighing 300-400 lbs. that controlled scaffold he was working on fell on him, granted summary judgment on Labor Law §240(1) and his out-of-court statements giving different account of accident raised only issue of comparative fault which is not a defense to §240. Plaintiff denied summary judgment against scaffold installation contractor on questions of whether it had sufficient authority to control site to be a statutory agent and if it was responsible for operation/safety of scaffold after installation.

Summary judgment for contractual and common-law indemnity claims against scaffold installation contractor denied as premature as there had been no determination of negligence of parties beyond statutory liability of §240. Pena v Intergate Manhattan LLC    

Labor Law §240   Falling Object   Gravity Risk  

First Department
Worker who had just descended tower scaffold and started working on a reshore scaffold granted summary judgment under Labor Law §240(1) where tower scaffold that was not connected to reshore scaffold fell on him as securing the tower scaffold would not have hindered work on the reshore scaffold and was not an integral part of work being performed. Hyatt v Queens W. Dev. Corp.    

Negligent Supervision   Causation   Comparative Fault   Premature Motion   NYC  

Second Department
Plaintiffs failed to eliminate all questions of fact on defendants’ negligent supervision where teacher told 1st grader to run quickly up and down stairs to retrieve something from classroom as questions remained of whether accident happened so quickly that no degree of supervision could have prevented fall. Infant-plaintiff’s testimony that teacher instructed her to run fast while retrieving the document established entitlement to summary judgment dismissing comparative fault defense. The motion was not premature where defendants could have obtained an affidavit from teacher, refuting argument that teacher needed to be deposed. Chen v City of New York    

Premises Liab   MVA   Duty   Foreseeability   Intervening Cause  

Second Department
Building granted summary judgment where vehicle left road, crossed parking lot, and crashed into fitness center injuring plaintiff as building owner has no duty to protect against extraordinary, unforeseeable acts of third parties. Collins v Delaware Ave. Enters., Inc.    

Premises Liab   Stairs   Notice   Last Inspection   Raised For First Time  

First Department
NYCHA granted summary judgment of claim plaintiff fell on grease or urine on stairs where caretaker cleaned stairs shortly before plaintiff’s accident pursuant to janitorial schedule and NYCHA received no complaints of the condition. Plaintiff’s claim he reported condition 2-days before accident did not raise issue where there was proof it was cleaned just before accident and a building is not required to monitor the staircase 24/7. Rosado v New York City Hous. Auth.    

Motion to Dismiss   CPLR §205   Statute of Limitations   Personal Juridiction   Service  

First Department
Order dismissing action sua sponte on ground original application to seal records and proceed anonymously because of sensitive nature of sexual assault claims was denied resulting in complete resolution of “petition,” reversed as plaintiff commenced action by filing Summons with Notice, not petition, there was no indication she intended action to be a petition, and use of plaintiff/defendant instead of petitioner/respondent, while not dispositive, was relevant to intent. Since action was timely filed, extension based on CPLR §205-a for subsequent Summons/Complaint was unnecessary but jurisdictional question remained as affidavit of service for original OSC did not indicate “supporting papers” were also served. Appellate Division granted 30-day extension to serve Summons with Notice and Complaint in interest of justice. Matter of A.V. v A.B.    

Malicious Prosecution   Governmental Immunity   Premature Motion  

Second Department
County attorneys failed to show they were acting in “an investigatory capacity,” necessary for absolute immunity from malicious prosecution claims. Their motion for summary judgment denied without prejudice to renew after completion of discovery. Moran v Town of Oyster Bay    

(3 summaries)

Construction Liab.   Espinal   Question of Fact  

First Department
Construction company denied summary judgment where plaintiff raised issues of whether defendant created sawdust plaintiff slipped on, launching an instrumentality of harm. The Court does not give the details of the proofs. Almonte v Edgecombe Props. Ltd. Liab. Co.    

Premature Motion   NYC  

First Department
Construction company’s motion for summary denied as premature where it was not deposed and NYC defendants showed facts essential to oppose the motion were exclusively within construction company’s knowledge or control. The Court does not give the details of the proofs. Barreto v City of New York    

MVA   Bus  

Second Department
NYCTA granted summary judgment on plaintiff’s testimony establishing bus’s stop that caused her to fall was neither unusual nor violent. The Court does not give the details of the proofs. Tomaszycki v New York City Tr. Auth.    

About Matt McMahon

Civil trials and appeals since 1984
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