May 3, 2022 | Vol. 311

(6 summaries)

Labor Law §240   Ladder   Gravity Risk   Safety Devices   Causation   Experts   Conclusory  

Court of Appeals
In a 4/3 decision, the Court denied summary judgment on Labor Law §240(1) to a plumber who as electrocuted when he touched a pipe in a 10′ ceiling and fell from an unsecured A-frame ladder leaned against a wall because he could not reach the pipes with it opened and locked, finding questions of fact on whether the ladder provided proper protection, additional safety devices should have been provided, and whether the inadequacy of the ladder or absence of other safety devices was a proximate cause of plaintiff’s injuries. Plaintiff had no recollection of the accident and his expert’s opinion on causation was conclusory.

The dissent thoroughly reviewed prior precedent where electrocution and a fall from an inadequate ladder were each proximate causes of the worker’s injuries allowing full recovery under §240. Cutaia v Board of Mgrs. of the 160/170 Varick St. Condominium    

Comment: When read with the more detailed facts in the dissent, the majority opinion appears limited to specific facts. Unlike where a plaintiff testifies the ladder moved causing him or her to fall, here the plaintiff had no recollection of whether he fell because the ladder moved, the lack of other safety devices, or he was thrown by the electric shock. The circumstantial evidence might suggest the ladder was inadequate or additional safety devices needed, but according to the majority, it did not rise to the level of prima facie proof of proximate cause.

Labor Law §240  

Court of Appeals
Plaintiff denied summary judgment under the protection of Labor Law §240(1) for “cleaning” of commercial property as the question of whether the activity is “routine,” the first of the 4-Soto factors for determining if an activity meets the definition of “cleaning,” depends on whether the “type of work” can be expected to occur with relative frequency. Since plaintiff’s work was the type that would occur with relative frequency, he was not protected by §240 and the Complaint was dismissed. Healy v EST Downtown, LLC    

Comment: Failure to meet any one of the Soto factors takes the case out of §240 protection. The other Soto factors are that the work does not require special equipment or expertise, involves insignificant elevation risks, and is unrelated to other §240 activities.

Labor Law §240   Ladder   Appealable Order   Set Aside Verdict   Directed Verdict   Safety Devices   Sole Cause  

Court of Appeals
Appeal from non-final Appellate order which found questions of fact on whether ladder plaintiff fell from violated Labor Law §240(1) or plaintiff was sole cause of fall for not checking that the ladder was properly locked, dismissed as the order did not necessarily affect the final judgment entered on a jury verdict finding no §240 violation and that plaintiff was the sole proximate cause since it did not remove a legal issue that could not be further litigated.

The judgment in favor of defendants, and denial of plaintiff’s motion for a directed verdict and to set aside the verdict, were properly affirmed by the Appellate Division as there was rational path for the jury’s verdict. Bonczar v American Multi-Cinema, Inc.    

Malpractice   Wrongful Death   Venue   Admissibility   Hearing  

Second Department
Order granting nursing home’s motion to move venue from Bronx to Westchester County on admission agreement designation of venue reversed and matter remanded to Bronx County as decedent, plaintiff-estate-administrator, and nursing home did not sign the admission agreement and there was no proof decedent was present or ever learned that his non-party wife signed the agreement. The nursing home failed to show the wife was her husband’s “designated representative” when signing the agreement where there was no proof she was appointed by a court, that the husband manifested an intention for her to be his designated representative, or that the decedent lacked the capacity to make a designation since the proffered medical records were inadmissible hearsay lacking a foundation under the business record exception and they were not certified under CPLR §4518. Sherrod v Mount Sinai St. Luke’s    

Asbestos   Directed Verdict   Causation   Experts  

Court of Appeals
Plaintiff’s experts established asbestos from talc is capable of causing peritoneal mesothelioma (general causation) but failed to provide a scientific expression based on generally accepted scientific methodologies that decedent was exposed to sufficient levels of breathable asbestos to cause her peritoneal mesothelioma (specific causation). Plaintiff’s expert-internist relied on studies that did not sufficiently quantify the level of exposure necessary to cause peritoneal mesothelioma. Unquantified expressions such as “low level,” “significant exposure,” and “higher” levels are not a scientific expression and comparisons to protective regulatory standards such as OSHA cannot establish causation. The “glove box” analysis performed by plaintiff’s geology-expert, measuring the number of asbestos fibers released in a plexiglass box, did not measure the amount of asbestos that would have been inhaled in the 5’ x 6’ bathrooms where the decedent used the talcum power for 14-years. There was 1-dissent. Nemeth v Brenntag N. Am.    

Collateral Estoppel   Workers Comp   Conclusory  

First Department
Defendants granted summary judgment on collateral estoppelfrom WC decision rendered after a 2-day hearing that found “no accident occurred as testified to by plaintiff” making plaintiff’s Labor Law and negligence claims untenable. Plaintiff failed to show lack of a full and fair opportunity to litigate the issue where he attended the hearing, testified, and was represented by counsel who cross-examined witnesses and made objections. Ineffective assistance of counsel is a factor to be considered but claim was rejected where conclusory and not supported by the record. Valverde v Occam Suy LLC    

(15 summaries)

Labor Law §240   Elevator   Gravity Risk  

First Department
Defendants granted summary judgment where elevator mechanic sent the elevator to a higher floor, entered the shaft, pressed the call button, and the elevator descended in the automatic mode crushing him since the elevator did not fall as a result of gravity under Labor Law §240(1). Luna v Brodcom W. Dev. Co. LLC    

Labor Law §240   Labor Law §241   Labor Law §200   Create Condition   Notice  

Second Department
GC and engineer inspection company on renovation project for Pelham Parkway in the Bronx granted summary judgment dismissing Labor Law §§ 240, 241, 200 and negligence claims of electrician whose company was hired by DOT for streetlight maintenance throughout NYC as electrician was not employed or “suffered to work” on the renovation project and, therefore, was not entitled to protections of Labor Law §§240, 241, or 200. Defendants proved they did not create or have notice of the hole in the grassy median where plaintiff fell as they did not do any excavation work in that area. Pastier v C.A.C. Indus., Inc.    

Labor Law §240   Labor Law §241   Labor Law §200  

Second Department
Hospital granted summary judgment where sales rep fell off truck while assisting in delivery of mattresses to hospital as he was not “permitted or suffered to work on a building or structure” under Labor Law §§ 240, 241, or 200 which were the only causes of action in the Complaint. Auriemma v Brooklyn Hosp. Ctr.    

MVA   Bus   Discovery   Negligent Hiring   Respondeat Superior  

Second Department
Lower court providently denied plaintiff’s motion to compel NYCTA to provide bus driver training manuals where NYCTA conceded driver was acting within scope of employment, making negligent hiring, retention, and supervision claims irrelevant and plaintiff failed to show that requested disciplinary records for subject accident were relevant or existed or that examination of actual or exemplar bus was relevant. Rrengo v New York City Tr. Auth.    

Comment: From the lower court decision, plaintiff requested the subject disciplinary records, inter alia, “to obtain the factual scenario that was presented at the time of the [purported] hearing.”

Premises Liab   Create Condition   Notice   Recurring Condition  

First Department
Building and corporation that owned and rented apartment to plaintiff who was injured when she slipped and fell on water leaked from ceiling due to hole in kitchen drainpipe in apartment 2-floors above failed to meet burden of showing it did not have notice where plaintiff complained of a leak at the same spot 2-months earlier which the super determined was from an unauthorized washing machine draining water into the same kitchen sink in the apartment 2-floors above and the super did not testify about whether he inspected the drainpipe at that time. Even if the super were not required to inspect the drainpipe during the washing machine incident, plaintiff’s husband’s affidavit stating he complained about leaks in the same spot 4-5 times before the accident raised an issue of whether defendants had constructive notice of a recurring dangerous condition that would require them to find the source of the leaks. De Barcacel v 1015 Concourse Owners Corp.    

Premises Liab   Out of Possession   Building Code  

First Department
Landlord granted summary judgment on proof it was an out-of-possession landlord with a right to reenter to make repairs, tenant had exclusive duty to maintain premises, and plaintiff did not allege significant structural defects as varying riser heights and treads, and handrail violations are not structural defects. Administrative code § 28-301.1 was not sufficiently specific to impose liability on the landlord who did not have access to the stairway where plaintiff fell. Souma v Third Ave. Realty Mgt., Inc.    

Labor Law §240   Ladder   Question of Fact   NYC  

Second Department
Plaintiff met burden for summary judgment on Labor Law §240(1) on his testimony that extension ladder he used to access roof bulkhead shifted as he descended because it was only secured on the right side causing him to fall but defendants raised an issue by plaintiff’s supervisor’s affidavit stating plaintiff told him right after the accident that he lost his balance and jumped from the ladder. Jurski v City of New York    

Labor Law §240   Labor Law §241   Industrial Code   Untimely   Reasonable Excuse  

First Department
Third-party defendant’s untimely motion for summary judgment dismissing Labor Law §§ 240(1) and 241(6) claims predicated on industrial code §§ 23-1.7(e)(1) or (2) denied as claim that First Department created new law in case that found Masonite used as floor protection rendered it integral to the work, subject to the “integral-part-of-the-work defense,” misapprehended the decision which only applied to §23-1.7(e)(1) and was not new law. Motion granted as to Labor Law § 240(1) and 241(6) on § 23-1.7(e)(1) because plaintiff offered no opposition to dismissal of those claims on appeal and they were deemed abandoned. Murphy v Schimenti Constr. Co., LLC    

Malpractice   Informed Consent   Accepted Practice   Experts  

First Department
Plaintiff’s internist-expert lacked familiarity with surgery and abdominal surgery and was not qualified to give an opinion on whether defendant-surgeon departed from accepted standards during appendectomy or that defendants’ disclosures of the inherent risks were ‘qualitatively inadequate.’ In any event, the opinions were speculative, conclusory, and not supported by evidence. Codefendant who did not participate in the surgery also granted summary judgment.

Plaintiff’s affidavit claiming he was not informed of the risks was insufficient without a qualified expert opinion on what should be disclosed and proof that a fully informed reasonably prudent person would not have undergone the procedure. Claimed inconsistencies did not raise an issue where irrelevant to how appendectomy was performed and misdiagnosis claim was previously dismissed. Newell v City of New York    

MVA   Turning Vehicle   Sole Cause  

Second Department
Owner and driver of taxi with plaintiff as passenger granted summary judgment where taxi was struck 3/4 into a right turn from the middle lane designated for straight and right turning traffic by codefendants’ vehicle which went straight from right lane designated for right turns only. Vehicle going straight in right-turn only lane was sole proximate cause of accident as moving defendants had right-of-way, could rely on codefendant-driver obeying traffic laws, and had only seconds to respond. Plaintiff testified vehicle in right lane accelerated as taxi started its turn and he did not believe the taxi was at fault. Plaintiff’s cross motion for summary judgment denied. Ellsworth v Rubio    

MVA   Rear End   Nonnegligent Explanation   Emergency Doctrine   Premature Motion  

First Department
Plaintiffs granted summary judgment where rear-ended by defendants’ vehicle and defendants’ claim plaintiff stopped short at yellow light was insufficient to raise an issue without proof defendant-driver maintained a proper distance from plaintiffs’ vehicle. Emergency doctrine inapplicable and defendants’ premature motion argument denied where both sides provided detailed affidavits of the facts and defendants failed to show what facts former employee could provide that were essential to opposing the motion. Acevedo v Akhtar    

MVA   Bus  

Second Department
MTA bus granted summary judgment on plaintiff’s testimony she fell as the bus stopped at a red light, she was the only one to fall, she fell near where she was standing, and she did not estimate the speed of the bus before stopping, establishing that the stop was not “unusual or violent and was not of a different class than the jerks and jolts commonly experienced in city bus travel.” Orji v MTA Bus Co.    

Serious Injury   Preexisting   Degenerative   Causation   Admissibility   Hearsay  

First Department
Defendants granted summary judgment on their orthopedic surgeon’s opinion that MRI only showed mild preexisting degeneration not caused by the accident, their ortho’s and neuro’s findings of a normal neurological exam with no injury or disability caused by the accident, and their ortho’s opinion on examination and medical records of no injuries to the elbows, wrists, or hands caused by the accident.

Plaintiff failed to offer admissible objective medical proof in opposition as the MRI reports reviewed by defendants’ experts are not automatically admissible and his doctor’s affirmed report could not bootstrap them into evidence. Treating doctor’s report had results of recent exam but none from the months following the accident and did not explain plaintiff’s lack of treatment for 4-years, rendering his opinion that the recent limited ROM was caused by accident speculative. No issue on 90/180-category without proof of causation. Acevedo v Grayline N.Y. Tours, Inc.    

Espinal   Question of Fact  

First Department
Contractor servicing NYCTA’s fire extinguishing tanks failed to meet burden for summary judgment where testimony showed its technicians regularly removed the chains and caps meant to be permanently affixed to the tanks, leaving a question of whether it launched an instrumentality of harm under Espinal and there was evidence its technicians were not properly licensed as required by the NYC Administrative code. Malerba v New York City Tr. Auth.    

MVA   Rear End   Nonnegligent Explanation   Premature Motion  

Second Department
Bus driver granted summary judgment where defendant’s vehicle struck bus in the rear and defendant failed to raise an issue on nonnegligent explanation of a sudden and unforeseeable medical emergency where he did not submit medical evidence to support the claim. Defendant’s argument of premature motion rejected as the relevant facts were within his personal knowledge. Liddell v Morrison    

(1 summaries)

Serious Injury   Causation  

Second Department
Defendant met her burden for summary judgment on serious injury by competent medical evidence showing the injured-plaintiff’s cervical injuries were not caused by the accident and plaintiff failed to raise an issue in opposition. The Court does not give the details of the proofs. Edwards-Mohammed v Brown    

About Matt McMahon

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