Independant Contractor Espinal Control Agent Create Condition
 Restaurant could not hide behind contract with independent valet service where it had ability and opportunity to control contractor’s employees for safety of its customers and is required to retain a contractor sufficient to protect its customers. Restaurant failed to show valet service displaced its obligation to keep parking area safe under Espinal with proof showing it had daily contact with service, advised them of staffing needs and scheduled events, and provided additional parking areas. Testimony that attendant wore uniform with restaurant’s name raised issue of ostensible agency. Evans v Norecaj
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Discovery
Defendants’ motion for access to all of plaintiff’s social media accounts granted only post-accident for social media records showing social and recreational activities plaintiff claimed were limited as part her loss of enjoyment of life claim consistent with Forman v Henkin, 30 NY3d 656 (2018). Request for plaintiff’s passports after accident relevant to claim she was restricted from traveling long distances. Doyle v Temco Serv. Indus., Inc.
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MVA Motion to Dismiss Statute of Limitations GML §50-e
 NYCHA employee who rear-ended plaintiffs’ car subject to time limitations for suing municipality under GML §50-e where NYCHA was required to indemnify employees for acts performed within scope of employment under Public Housing Law and he was responding to a call at time of accident. Action brought after 1-year and 90-days was time-barred. Migliano v Romano
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Late Notice of Claim Actual Knowledge Reasonable Excuse Prejudice
Petition to file late Notice of Claim 7-months after 90-day period granted where petitioner who was attacked by inmate under DOC’s control while being treated at Bellevue Hospital spoke with DOC captain twice on day of incident and in response to his questions indicated how she was injured and that she intended to sue and captain took pictures of her facial injuries. To extent she did not specifically state who was in the room, DOC had obligation to obtain missing information which could be done with a “modicum of effort.” Lower court applied incorrect test for showing lack of prejudice which need not be extensive and lack of reasonable excuse for delay in bringing petition insufficient to deny petition. Matter of Rodriguez v City of New York
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Premises Liab Duty Dangerous Condition Notice Last Inspection Indemnity
Laundry company that rented space in building had independent duty to maintain machines and area as a tenant even if landlord/maintenance company also had duty to maintain area. Laundry company failed to meet its initial burden for summary judgment where plaintiff stepped onto 5″ step to put detergent into machine and fell when soap tray failed to stop as intended causing her to fall backwards. Laundry company executive’s testimony that they do not regularly inspect machines, only respond to complaints, and then do a touch and field test, lack of evidence as to last time they inspected soap tray that caused plaintiff’s fall, and fact that building employee cleaned the soap trays did not establish lack of constructive notice. Dismissal of indemnity claims denied where laundry company failed to show its freedom from negligence. Gatto v Coinmach Corp.
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Premises Liab Motion to Dismiss Statute of Limitations Estoppel
Plaintiff’s counsel’s affirmation supported by emails and correspondence showed that defendant was evasive about ownership of pipe under gouge in roadway that caused plaintiff to trip and fall and that they only discovered information questioning the information given by defendant after statute of limitations was sufficient to raise issue on equitable estoppel. Langston v MFM Contr. Corp.
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MVA Governmental Function Governmental Immunity Special Duty
Officers and city were acting in a governmental function in providing traffic control, subject to governmental immunity, and plaintiff failed to show a special duty. Jagatpal v Chamble
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MVA Bicycle Set Aside Verdict Noseworthy
There was a rational path for jury to find in favor of plaintiff, crediting his testimony of the normal path he would take with his bicycle placing him traveling with traffic, since he had no memory of the accident itself and Noseworthy charge given, instead of crediting defendant’s testimony that plaintiff was traveling against traffic. Verdict was not against the weight of the evidence. Ortega v Ting
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1983 Action Amend Complaint Untimely Statute of Limitations
Plaintiff’s motion to amend Complaint to name correction officer in place of designated “Jane Doe” after statute of limitations and more than 2-years after he learned officer’s name denied as plaintiff could not rely on relation-back doctrine where NYC is not vicariously liable for correction officer’s violation of §1983. Burbano v New York City
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Med Mal Accepted Practice Causation Respondeat Superior Expert Aff Discovery Note of Issue
Doctor who perforated plaintiff’s decedent’s bowel during colonoscopy, surgeon who repaired perforation, and hospital where repair surgery performed entitled to summary judgment on expert colon and rectal surgeon’s affirmation establishing no departure from accepted medical practice or causation from manner in which procedures were performed. Hospital met its burden of showing it was not responsible for attending doctors it did not employ. Plaintiff’s purported expert’s affirmation was unsigned and did not state expert’s education, training, or familiarity with procedures performed failing to raise an issue of fact. Lower court providently denied post Note of Issue discovery where plaintiff could not articulate unanticipated circumstances. Roye v Gelberg
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Labor Law §240 Labor Law §241
Defendant granted summary judgment on Labor Law §§240(1) & 241(6) where plaintiff was injured when rope holding refrigerator he was pushing up basement stairs broke as it was not part of demolition work being performed in other parts of the building and not protected under those Labor Law sections. Hernandez v 601 W. Assoc.
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Labor Law §240 Labor Law §200 Gravity Risk Control
Defendants granted summary judgment where construction worker herniated disc when he tried to throw hose 15′-20′ for fireproofing on proof that he was standing on the ground moving the 100 lb hose which only tangentially involved a gravity risk, not a gravity risk contemplated under Labor Law §240(1), and the means and methods of his work were solely controlled by his employer. Defendants had no right or obligation to control the means and methods of his work making out entitlement to summary judgment on Labor Law §200 and negligence. Clark v FC Yonkers Assoc., LLC
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MVA There to be Seen Admission Feigned Issue
Car driver who entered intersection without stopping at stop sign according to plaintiff motorcyclist who entered intersection on road with no traffic device, and defendant’s statement to police that she did not see motorcyclist before striking him, entitled plaintiffs to summary judgment for defendant’s failure to yield right-of-way and failing to see what was there to be seen. Driver’s affidavit claiming she stopped at stop sign before entering intersection and saw motorcyclist coming so fast that she couldn’t avoid hitting him even though she stepped on her brake directly contradicted her admission in the police report and was a feigned issue. Kerolle v Nicholson
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Construction Liab. 3rd Party Contractor Espinal Open/Obvious Sole Cause
Issue of fact existed whether contractor launched an instrumentality of harm under Espinal by failing to meet its obligation to surround open trench with caution tape or cover it with plywood. Issues also existed on whether trench was open/obvious and whether plaintiff’s action of walking to edgewhere he lost his footing and fell in was the sole proximate cause of the accident. McDowell v Xand Holdings, LLC
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Med Mal Motion to Dismiss Personal Juridiction
Motion to dismiss amended Complaint, amended to include malpractice claim against hospital, granted after hearing by attorney referee who found plaintiff failed to meet burden of showing proper service based on process server’s testimony that he served a named individual at hospital’s risk management office on the 1st floor but hospital showed that no such person ever worked at the hospital, the risk management office was on the 3rd floor, and the person designated to accept service in the risk management office was not served with the amended Complaint. Bushell v City of New York
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Premises Liab Renew Reasonable Excuse
Defendants’ motion to renew their motion for summary judgment providently denied where photograph was consistent with plaintiff’s deposition that occurred before original motion and affidavits of defendants’ construction manager and foreman contained information within their possession before original motion. Defendants failed to give justifiable excuse for not including these items in the original motion. Ramirez v Global Home Improvements, Inc.
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Premises Liab Slip/Trip Snow/Ice Notice Last Inspection
School district failed to meet burden of showing lack of constructive notice of snow/ice on sidewalk outside of school where evidence submitted showed prior snowfalls and removal of snow and slush up to 3-days before accident but failed to show condition of sidewalk after slush removal 3-days before accident or last time area was inspected or cleaned over those 3-days. Muzio v Levittown Union Free Sch. Dist.
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Premises Liab Slip/Trip Stairs Out of Possession Duty
Building owner that leased building to plaintiff’s employer granted summary judgment where plaintiff slipped on stairs where vinyl covering had worn off on proof that it was an out-of-possession owner and that defect was not a significant structural or design defect violating a specific statutory provision. Behluli v 228 Hotel Corp.
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Premises Liab Slip/Trip Sidewalk § 7-210 NYC
Adjoining landowners granted summary judgment on proof that hole where plaintiff tripped and fell was within 12″ of metal grate owned by NYC which was solely responsible for its maintenance under 34 RCNY §§2-07(b)(1) & (2). Jones v 3417 Broadway LLC
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Premises Liab Create Condition Notice Last Inspection
NYCHA granted summary judgment on proof it had no actual notice of complaints of urine on steps in lobby before accident and under janitorial schedule it would have been inspected and cleaned if any problems were found 30-minutes before plaintiff’s accident establishing lack of constructive notice within sufficient time to correct condition and plaintiff failed to show evidence of a recurring condition. Frederick v New York City Hous. Auth.
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Motion to Dismiss CPLR §306-b Statute of Limitations
One defendant was served well beyond 120-day time for service and other defendant, while served within 120-day time, failed to Answer and plaintiff did not move for default judgment within 1-year of default under CPLR 3215 or oppose defendants’ motions for dismissal requiring dismissal in favor of both defendants. Ping Zhang v Zhao Chen Yu
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Serious Injury ROM CPLR § 3126 Willful/Contumacious
Repossession company that ran over plaintiff’s feet and legs while vehicle was being repossessed failed to meet initial burden on serious injury where examining orthopedist found 25% dorsiflexion and 33% plantar flexion restrictions in ROM of plaintiff’s ankle. Defendants failed to show plaintiff’s delay in providing authorizations and restricting them to period from date of the accident was willful/contumacious making dismissal too harsh of a sanction. Nash v MRC Recovery, Inc.
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Pothole Law Prior Written Notice Create Condition NYC
NYC granted summary judgment on proof it had no prior written notice of pothole bicyclist hit in road and plaintiff’s claim that repairs in the general area provided notice under administrative code §7-201(c)(2) rejected as notice of defects in the general area are not notice of the specific defect claimed and plaintiff failed to show that any repair created an immediate dangerous condition. Vargas v City of New York
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Premises Liab Industrial Code Causation
Bank granted summary judgment on proof that injured plaintiff walked into glass vault door with white markings at her eye level while she was looking forward and that she had been in the vault many times before. Violation of industrial code §§ 47.7 & 47.8 requiring 2-markings and fact that glass door was missing lower marking at 30″-36″ could not be proximate cause where plaintiff was looking straight ahead at the eye level marking when she walked into the door. Levine v TD Bank, N.A.
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Dogbite Vicious Propensity Renew Reasonable Excuse
Dog owner and tenant, building owner, and managing agents granted summary judgment on proof that dog did not have vicious propensities and they did not have notice of vicious propensities. Dog’s straining at leash to get to plaintiff’s dog was normal canine behavior and not evidence of vicious propensity. Plaintiff’s affidavit provided new facts not submitted on original motion, but they would not have changed the determination and plaintiff failed to give reasonable justification for not submitting them on the original motion. Bukhtiyarova v Cohen
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Serious Injury Preexisting Degenerative Expert Aff Conclusory
Defendants’ otolaryngologist’s finding of less than 1% loss of hearing and subjective complaints of tinnitus that could not be caused by accident proved injury was “insignificant.” Defendants demonstrated cervical injuries were pre-existing and plaintiff failed to raise issue in opposition by un-affirmed MRI report showing bulging and herniated discs with bony ridges and hypertrophic changes and opinion of chiropractor who examined plaintiff years later acknowledging pre-existing degenerative changes but giving only conclusory opinion as to causal relationship to accident. Black v Gordon
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Serious Injury ROM Causation Expert Aff Speculation
Defendant failed to meet initial burden for summary judgment on serious injury where expert found significant limitations of ROM in lumbar spine and opinion on causation was speculative. Flood v Fillas
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Legal Mal Causation Collateral Estoppel
Third lawsuit brought against original attorney for failing to advise plaintiff of potential legal malpractice of 2 subsequently substituted firms for failing to timely file motion to restore case after it was dismissed as abandoned barred by collateral estoppel where issue of substituted firms’ causation of plaintiff’s harm was decided against plaintiff making it impossible for him to prove that he would have been successful had the original firm advised him of a potential legal malpractice claim. Sang Seok NA v Schietroma
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Reargument Appealable Order
No appeal lies from the denial of a motion to reargue whether designated reargument or renewal. Aldalali v Sungold Assoc. Ltd. Partnership
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