May 30, 2017 | Vol. 56

MUST READS
(8 summaries)
NOTEWORTHY IF YOU MUST READ

Labor Law §240   Gravity Risk   Safety Devices  

Second Deptartment

Roofer struck by piece of plywood hoisted to roof for installation entitled to summary judgment on Labor Law §240(1) whether the plywood was in the process of being hoisted or had already been hoisted and was being held by the coworker for installation when it fell as defendant failed to provide proper protection to secure the plywood so that it would not fall. Escobar v Safi


Strike Answer   Willful/Contumacious   NYC  

First

Lower court improvidently exercised its discretion in denying plaintiff’s motion to strike the defendants, NYC & MTA’s, Answers for failing to provide deposition witnesses in violation of 5 “so-ordered” stipulations, providing a witness from a construction company which was later added as a party and who did not have sufficient knowledge of the NYC & MTA’s ownership and control of the Second Avenue subway where the plaintiff was injured during construction, violation of a “so-ordered” stipulation requiring them to provide a witness “with knowledge” after the construction company was added, and their refusal to provide a witness with knowledge after the witness produced clearly did not have knowledge of the issues regarding NYC & MTA. These defendants’ failure to provide a witness in violation of numerous stipulations over a period of 3 years could only be viewed as willful and contumacious requiring that their Answers be stricken. McHugh v City of New York


Battery   Statute of Limitations  

Second Deptartment

Plaintiff’s action against assailant barred by 1 year statute of limitation for intentional torts and was not entitled to the 7-year statute of limitations under CPLR 213-b which only applies to convictions for “crimes.” Assailant was convicted of “violations” of harassment and disorderly conduct which are not crimes. Elliott v Grant

Comment: “Specified Crimes” under Exe. L. 632-a(1)(e), such as violent felonies, class B felonies, 1st degree felonies, certain degrees of grand larceny, and criminal possession of stolen property in the 2nd degree, may be commenced within 10 years of conviction.


Attorney Fees   Sanctions  

Second Deptartment

Plaintiff’s and codefendant’s motions for attorney fees against NYCTA for frivolous conduct granted under 22 NYCRR 130-1.1. Conduct is frivolous under this provision where it is “completely without merit in law” or “asserts material factual statements that are false.” Marrero v New York City Tr. Auth.


Causation   Expert Aff   Unaffirmed Report  

Second Deptartment

Local fraternity chapter granted summary judgment on its expert’s affirmed opinion that the negligence of the defendants conducting a pledge ceremony was not the proximate cause of the plaintiff’s exacerbated asthma. The plaintiff’s treating physician’s medical records were unaffirmed and not considered and the remaining proofs provided by the plaintiff did not raise a triable issue of fact on causation. Pasquaretto v Long Is. Univ.


Late Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice   NYC  

First

Petitioner failed to meet any of the tests necessary for granting leave to serve a late Notice of Claim. Claim that plaintiff was not aware of the severity of his injuries for more than 90 days, despite having filed a worker’s compensation claim within the 90 days, did not provide a reasonable excuse. There was no proof that NYC received a copy of the worker’s compensation form within the 90 days and the form itself did not contain any of the allegations against NYC which would provide actual notice. Plaintiff failed to show by proof or argument that the defendant was not prejudiced by the delay and defendants showed clear prejudice from the delay. There was 1 dissent. Matter of Grajko v City of New York


Notice of Claim   50-H  

Second Deptartment

Plaintiff’s Notice of Claim describing the condition as a “defective, waterlogged ramp,” coupled with plaintiff’s 50-h testimony that she fell because the ramp wobbled and moved, not that it was wet, sufficiently implied the theory of liability to deny defendant’s motion for summary judgment on insufficiency of Notice of Claim. Puello v New York City Hous. Auth.


Premises Liab   Service   Statute of Limitations   CPLR §306-b   Meritorious Action   Prejudice  

Second Deptartment

Plaintiffs’ motion to extend their time to serve building owner providently granted where verified Complaint showed meritorious action, action was commenced within the statute of limitations which expired by the time the building owner moved to dismiss, and there was no prejudice to the defendant by the delay. Gabbar v Flatlands Commons, LLC

NOTEWORTHY
(26 summaries)
MUST READS IF YOU MUST READ

Assault   3rd Party Contractor   Negligent Hiring   Control  

Second Deptartment

Plaintiff was sexually assaulted by a home health aide employed by sub-contractor defendant under a contract with the co-defendant. While a principal is not responsible for the acts of an independent contractor, plaintiff raised an issue of fact by submitting the subcontract agreement showing that the contractor had the right to supervise the subcontractor’s employee. An employer can be liable under theories of negligent hiring, supervision, and retention when it knew or should have known of the employee’s propensity to commit injury even when the actions were not in furtherance of its business. Defendants failed to investigate a gap in the assailant’s work history which would have revealed a suspension from a prior job, and the subcontractor admitted that it had received a letter from the DOH that the assailant had been charged with grand larceny, without taking appropriate actions. Defendants’ motion for summary judgment denied. Chichester v Wallace


Labor Law §241   Industrial Code   Comparative Fault  

First

Plaintiff granted summary judgment on Labor Law §241(6) against building owner and contractor where metal on his safety harness contacted an electrified BX wire hanging from a dropped ceiling during a renovation, violating industrial code § 23-1.13(b)(3) & (4)(Electrical hazards). Owner and contractor had a nondelegable duty to provide adequate safety protections. Plaintiff could not be comparatively at fault because he was following his foreman’s instructions and neither knew, nor should have known, that the wire was electrified absent specific warnings. Rubino v 330 Madison Co., LLC


Premises Liab   Snow/Ice   Negligent Supervision   Dangerous Condition   Control   Duty   NYC  

Second Deptartment

Defendants granted summary judgment on proof that the infant-plaintiff’s sister was released to the infant-plaintiff, who had been released from the school earlier, and that the snow mound that the infant-plaintiff fell from after climbing to retrieve his sister was not a dangerous condition. The schools’ duty ends when the child passes from their custody and control. Grigorian v City of New York


Med Mal   Accepted Practice   Causation   Expert Aff   Frye  

First

Defendants met their initial burden of showing that they did not depart from accepted practice by the affidavits of three experts opining that post stroke anticoagulant treatment for the infant-plaintiff for 3 months followed by aspirin accorded with accepted practice but plaintiffs raised triable issues of fact by their expert’s opinion that discontinuing the anticoagulant treatment in favor of aspirin was a departure from accepted practice where scans showed a high grade stenosis of the cerebral artery involved in the initial stroke and before confirming the infant-plaintiff’s lipoprotein(a) levels, and that these departures were the proximate cause of the infant-plaintiff’s second stroke. Plaintiffs’ expert’s opinions were not based on novel theories and did not require a Frye hearing. While the plaintiffs’ expert’s affidavit was technically flawed by not stating that the expert was licensed to practice in New York (CPLR 2106(a)), that defect could be corrected by an affidavit of conformity or on the argument before the motion court. Cleasby v Acharya


Med Mal   Accepted Practice   Causation   Expert Aff   Conclusory  

Second Deptartment

Attending doctors made out prima facie entitlement to summary judgment by their expert’s affirmation that they did not depart from accepted practice in not diagnosing signs of preeclampsia and admitting the plaintiff mother to the hospital during an exam about a week before she was admitted to the hospital with a diagnosis of severe preeclampsia, and that upon admission the doctors did not depart from accepted practice in administering antihypertensive drugs and monitoring the external fetal heart monitor strips, but plaintiff’s expert raised an issue of fact on accepted practice by directly disputing the opinions of the defendants’ expert and opining that the doctors’ failure to recognize the signs of preeclampsia earlier, to administer a different antihypertensive drug after it was clear that the one they were using was ineffective, and in failing to observe decelerations on the fetal heart monitor strips. Defendants’ expert’s opinion on causation did not explain why the child’s cerebral palsy was not caused by the alleged departures and was, therefore, conclusory. Omane v Sambaziotis


Med Mal   Accepted Practice  

First

Defendants failed to meet their burden for summary judgment on plaintiff’s claim that the anesthesiologist failed to devise a plan sufficient to properly anesthetize the plaintiff during cataract surgery or to observe plaintiff’s signs of increasing pain during the surgery. Fowler v Buffa


Med Mal   Accepted Practice   Causation   Expert Aff   Respondeat Superior  

Second Deptartment

Negligence cause of action for injuries sustained during physical therapy session dismissed as the allegations of the complaint alleged “professional malpractice.” Defendant denied summary judgment based on Plaintiff’s physical therapy expert’s affidavit in opposition raising an issue as to accepted practice. Since defendant did not make out prima facie entitlement on causation, plaintiff’s expert did not need to address causation. There was a question of fact as to whether the defendants were liable under respondeat superior. Amendola v Brookhaven Health Care Facility, LLC


Labor Law §240   Ladder  

First

Plaintiff granted summary judgment on Labor Law §240(1) on his own testimony that an electrical wire jammed into a conduit sprang out and struck him in the arm causing the ladder to wobble and him to lose his balance and fall. Faver v Midtown Trackage Ventures, LLC


Premises Liab   Sidewalk   Pothole Law   Prior Written Notice   NYC  

First

NYC granted summary judgment on proof that it did not have prior written notice of the specific pothole that plaintiff claimed caused her to trip and fall. Notice of other potholes in the area, all of which had been repaired prior to the plaintiff’s fall, were not sufficient to show prior written notice of the pothole involved in the accident. Notice of a pothole in the vicinity cannot be considered notice of a different pothole. Worthman v City of New York


MVA   Notice of Claim   There to be Seen   Causation   NYC  

First

NYC granted summary judgment on claims that its failure to enforce parking regulations, and the placement of a “green fence,” obstructed the defendant driver’s view of the plaintiff’s motorcycle approaching on a perpendicular street where driver testified that he inched forward several times and could see past the fence prior to the accident. Conflicting statements from 2 eyewitnesses regarding the driver’s stops did not refute driver’s testimony that he could see down the street and, therefore, plaintiff’s claims of obstructed view could not be a cause of the accident. Plaintiff’s claims that city employees illegally parked at the location obstructing the view was not considered as it was not included in the Notice of Claim. Pratts v Campolo


Legal Mal   Motion to Dismiss   Preclusion  

Second Deptartment

Law firm’s motion to dismiss based on a prior court’s decision granting summary judgment in the underlying lawsuit, finding no evidence of damages since plaintiff was precluded from introducing damage evidence due to law firm’s failure to respond to discovery, denied. Dicta in prior court’s decision that the precluded evidence was “highly suspect,” did not “utterly refute” the allegations of the complaint. 4777 Food Servs. Corp. v Anthony P. Gallo, P.C.


Late Notice of Claim   Reasonable Excuse   Actual Knowledge   Prejudice   Speculation  

Second Deptartment

Petition to serve late Notice of Claim denied where petitioner failed to show why his injuries purportedly justified seeking leave 11 months after the 90 days or that a FOIL request constituted a reasonable excuse. Petitioner’s claim that the Dormitory Authority had personnel on the site on the day of the accident and “may” have acquired actual knowledge was speculative and Authority’s receipt of information 37 days after the 90 days expired was, under the circumstances, not within a reasonable time. While petitioner met his burden of showing there was no substantial prejudice, prejudice is only 1 element to be considered and leave can properly be denied in the absence of prejudice. Matter of Kumar v Dormitory Auth. of the State of N.Y.


Lead Poisoning   Discovery  

First

Exercising its own discretion, the Appellate Division reversed the lower court’s limitations on plaintiff’s requests for discovery regarding lead paint violations, to the apartments in which the infant-plaintiff lived or attended daycare, and ordered disclosure of all lead paint violations for all apartments for 3 years prior to the infant-plaintiff’s exposure. Z.D. v MP Mgt., LLC


Discovery   CPLR § 3126   Strike Answer   Preclusion   Willful/Contumacious  

Second Deptartment

It was an improvident exercise of discretion for the lower court to strike the defendant’s Answer where defendant provided some discovery in response to a conditional order and an affidavit stating that the remaining items were not within the possession of the defendant. The law favors resolution on the merits and the extreme sanction of striking an Answer should only be imposed when there is a clear showing of willful and contumacious refusal to participate in discovery. Nunez v Laidlaw


Discovery   IME/DME   Note of Issue   Prejudice  

First

Lower court providently exercised its discretion in ordering an IME/DME without removing the case from the trial calendar given defendant’s short delay in designating the examining doctor. Since the case remained on the trial calendar, there was no prejudice to either party. Cabrera v Abaev


Premises Liab   Last Inspection  

Second Deptartment

Defendant’s motion for summary judgment in 2 actions denied where proof showed general inspection procedures but no schedule for inspection or cleaning and if someone complained of a condition it would not be written down. General cleaning and inspection practices are insufficient to establish lack of constructive notice. Perez v Wendell Terrace Owners Corp.


Premises Liab   Wet Floor   Notice  

First

Store granted summary judgment on surveillance video showing assistant manager walking in area minutes before the plaintiff’s fall and deposition testimony of assistant manager and employee that they did not observe any wetness on the floor prior to the plaintiff’s accident. Fellner v Aeropostale, Inc.


Premises Liab   Control  

Second Deptartment

Campground owner and camper who allegedly left hot coals in an 8” deep fire pit that the infant-plaintiff stepped in denied summary judgment. A landowner has an obligation to control the conduct of others where they have the opportunity and are reasonably aware of the need to control the actions of the third person. Camper made out a prima facie case for summary judgment by testimony that the coals were extinguished and the ashes discarded but plaintiffs raised a question of fact as to whether he was the one that left the embers. Holohan v County of Suffolk


Premises Liab   Unknown Cause  

Second Deptartment

Bowling alley granted summary judgment where plaintiff could not identify what caused her to fall in the bowling alley. Priola v Herrill Bowling Corp.


Premises Liab   Wet Floor   Notice   Last Inspection   Create Condition  

Second Deptartment

Store denied summary judgment where its manager’s deposition failed to show that there were set times for the aisles to be inspected and cleaned and that he did not know the last time the card aisle where the plaintiff slipped and fell on water tracked in from rain was cleaned or inspected. A building owner is not required to put mats over all floors or to consistently mop floors where rain or snow may be tracked but can be liable where it either creates the condition or has actual or constructive notice and a reasonable time to correct it. Hickson v Walgreen Co.


Med Mal   Accepted Practice   Causation   Expert Aff  

Second Deptartment

Hospital failed to raise an issue of fact in opposition to the third-party defendant primary doctor’s motion for summary judgment in that hospital’s expert opinion was conclusory on both accepted practice and causation where plaintiff’s decedent sued the hospital for failing to treat pressure ulcers which eventually led to her death. The court does not give the details of the proofs. Scuteri v 7318 13th Ave. Corp.


Discovery   Renew  

First

Denial of defendant’s motion to renew its opposition to plaintiff’s oral motion for unredacted accident records upheld on absence of new facts justifying renewal of the motion. Sicoli v Riverside Ctr. Parcel 2 Bit Assoc., LLC


Personal Juridiction   Agent   Alter Ego  

First

The Appellate Division upheld the lower court’s judgment after a nonjury trial finding that plaintiff did not meet its burden of showing that South Korea had personal jurisdiction over the defendant, Rite-Aid, or its subsidiary, which the lower court found did not operate or control the ice cream plant which supplied listeria tainted ice cream to plaintiff in South Korea. Enforcement of foreign money judgment under CPLR art. 53 properly denied. Sung Hwan Co., Ltd. v Rite Aid Corp.


Defamation   Motion to Dismiss   Default Judgment   Appealable Order  

Second Deptartment

Plaintiff’s appeal from grant of defendant’s motion to dismiss for failure to state a cause of action dismissed as no appeal lies from an order or judgment granted on default. Gitzis v Isakov


Ins. L. § 3420(a)(2)   Coverage   Notice  

Second Deptartment

Carrier granted declaratory judgment that it had no obligation to satisfy the injured party’s judgment against its insured where the insured did not notify carrier for 15 months after insured was aware of the accident. The carrier was not required to show prejudice since the policy was written prior to the enactment of Ins. L. §3420. Carrier’s delay in disclaiming coverage to complete a thorough investigation was reasonable. Ramlochan v Scottsdale Ins. Co.


Legal Mal   Accepted Practice   Causation  

Second Deptartment

Proximate cause in a legal malpractice action refers to a finding that the plaintiff would have been successful on the merits in the underlying action. Defendant made out entitlement to summary judgment by showing it did not depart from accepted practice and that any departures would not have been a proximate cause of plaintiff’s damages. Plaintiff failed to raise a triable issue in opposition. Richmond Holdings, LLC v David S. Frankel, P.C.

IF YOU MUST READ
(2 summaries)
MUST READS NOTEWORTHY

Confirm Arb   MVIAC  

Second Deptartment

Review of a mandatory arbitration award requires closer scrutiny than a consensual arbitration award and should be “upheld if it is supported by the evidence and is not arbitrary and capricious.” MVIAC”s motion to confirm award of $50,000 against Allstate upheld as supported by the evidence and neither arbitrary nor capricious. Matter of Allstate Ins. Co. v Motor Veh. Acc. Indem. Corp.


Coverage   Notice  

Second Deptartment

A carrier waives all grounds for disclaimer not specifically included in its disclaimer letter. The only ground raised by the carrier in the disclaimer letter was that the additional insured was not named as an additional insured, which was incorrect. The ground raised on the carrier’s motion for declaratory judgment was not included in the disclaimer letter and the additional insured’s motion for declaratory judgment requiring the defendant to defend and indemnify granted. Ability Transmission, Inc. v John

About Matt McMahon

Civil trials and appeals since 1984

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