May 31, 2022 | Vol. 315

(4 summaries)

Motion to Dismiss   Governmental Immunity   Venue   Forum non conveniens  

First Department
In a sharply divided 3/2 decision, the First Department ruled New Jersey Transit could not invoke the sovereign immunity defense even though it did not expressly consent to lawsuits in NY as required by the 2019 SCOTUS Hyatt decision and raised the defense in its original Answer, using a forum non conveniens analysis based on NJ’s procedural rules that require lawsuits against municipalities be brought in the county were the action arose which would, according to the majority, deprive plaintiffs of any forum in NJ. The dissent disagreed that the plaintiffs would be deprived of a forum in NJ where venue is not jurisdictional, and a court may relax its rules where justice requires. Colt v New Jersey Tr. Corp.    

Malpractice   Notice of Claim   Statute of Limitations   Continuous Treatement   Actual Knowledge   Reasonable Excuse   Prejudice   Appealable Order  

First Department
Plaintiff’s motion to serve late Notice of Claim on HHC, or deem it timely served nunc pro tunc, denied where served 11-months after plaintiff’s last treatment at a non-HHC hospital, assuming the benefit of continuous treatment by a different provider, he failed to show HHC had actual knowledge without attaching their records, the discharge summaries from the other hospital could not impute knowledge to HHC and did not show Jacobi hospital inflicted injury by the acts/omissions of its employees. Plaintiff failed to show diligent efforts to obtain Jacobi’s records or that any requests were refused, or provide medical proof of physical incapacity to file a timely Notice of Claim. Plaintiff failed to show HHC was not prejudiced by delay.

No appeal lies from court’s sua sponte dismissal of the Complaint without a motion on notice, but due to the extreme nature of dismissal the Court deemed the Notice of Appeal to be a motion for leave to appeal, granted leave, and upheld dismissal as Notice of Claim is a condition precedent. Umeh v New York City Health & Hosps. Corp.    

Malpractice   Causation  

First Department
Moving defendants granted summary judgment on causation where plaintiff hid MRI report that showed an abnormal mass and recommended a biopsy from psychiatrist who ordered it, and whom she worked for, as any failure of doctor to follow up on the MRI could not be a cause of plaintiff’s delayed diagnosis of her recurring breast cancer as plaintiff was aware of the result and recommendation, timely acted on it, and a psychiatrist would not have expedited the diagnosis process. Radiologist who promptly interpreted the MRI and faxed it to the psychiatrist could not be a cause of plaintiff’s delayed diagnosis because plaintiff promptly went to a breast surgeon who reviewed the report and decided to delay a biopsy until the MRI films could be reviewed in-house and other tests completed. Breast surgeon and her employer could not be a cause where plaintiff scheduled the tests she prescribed, cancelled and did not reschedule them because she lost her health insurance even though she was aware of the urgency, never returned to the breast surgeon, and waited for more than a year before seeing another doctor. Grenyion v Mid-Hudson Comprehensive    

Premises Liab   Notice   Recurring Condition  

First Department
NYCHA granted summary judgment where neither plaintiff nor defendant’s super saw cardboard box on building walkway the afternoon before plaintiff tripped on it, it could have been placed there minutes before plaintiff fell at 8 am the next morning, super’s twice-a-day cleaning schedule of area as first and last parts of his shift was not “manifestly unreasonable,” and building is not required to constantly patrol area. Super’s knowledge that tenants always putting garbage there created a danger was not notice of a “recurring condition” as his daily cleaning meant it was not unremedied. Rodriguez v New York City Hous. Auth.    

(15 summaries)

Labor Law §240   Labor Law §241   Falling Object   Industrial Code   Control   Agent   Sole Cause   Raised For First Time   Collateral Estoppel   Workers Comp  

First Department
Worker injured when 15′-20′ x 8′ wooden door form leaned against a rebar cage fell on him granted summary judgment on Labor Law §240(1) against GC who had control over work and was an owner agent and tenant where the work was being performed and violation of §240 precluded finding that plaintiff was sole cause. Plaintiff denied summary judgment on Labor Law §241(6) where he first asserted a violation of a specific industrial code in reply and defendants did not have an opportunity to respond.

Plaintiff collaterally estopped from claiming TBI where issue was considered by WCB which ruled against him. Douglas v Tishman Constr. Corp.    

Malpractice   Accepted Practice   Causation   Experts   Conclusory   Speculation  

Second Department
Plaintiff’s expert raised an issue on whether defendant-rehab center departed from accepted practice by improperly assessing decedent as a low risk for falling and not implementing proper fall precautions but failed to show proper fall precautions would have prevented the fall as opnion on causation was conclusory and speculative without explaining or supporting the opinion with citations and the expert did not address defendant’s expert’s specific assertions. Plaintiff’s expert failed to raise an issue on departure in the administration of oxycodone which plaintiff claimed caused the gangrene and septic shock resulting in decedent’s death. Murray v Central Is. Healthcare    

Labor Law §240   Labor Law §200   Sole Cause   Agent   Comparative Fault   Notice   Indemnity  

First Department
Elevator constructor injured when freight delivery truck lift-gate collapsed as he stood on it to stabilize 400-lb. load granted summary judgment against owner on Labor Law §240(1) claim as lift-gate provided inadequate protection against elevated risk, 4′-5′ fall was sufficient for §240 protection, and worker’s decision to stand on lift-gate instead of using a ladder was at most comparative fault and not sole proximate cause.

Plaintiff correctly withdrew Labor Law §200 claim against truck-defendant as it was not an owner, GC, or owner agent but that did not withdraw plaintiff’s negligence claim and truck-defendant failed to show it lacked constructive notice of dangerous condition where plaintiff’s supervisor had the truck removed 2-weeks earlier of the rusted liftgate and failed to show what if any repairs were done.

Plaintiff’s employer denied dismissal of building owner’s contractual indemnity claim where indemnity agreement applied to injuries resulting from employer’s work and owner was granted summary judgment on contractual indemnity as there was no dispute it was not negligent. Pimentel v DE Frgt. LLC    

Labor Law §200   Labor Law §241   Sole Cause   Foreseeability   Control   Causation   Severance   Note of Issue   Prejudice  

First Department
Worker whose foot was struck by an ascending hoist elevator while removing a screw to fix a different misaligned hoist elevator denied summary judgment against construction manager on Labor Law §200 and negligence as ascending hoist elevator was not a dangerous condition where it functioned properly and questions remained of whether construction manager had authority to control means and methods of the injury producing work. Defendants’ motion for summary judgment dismissing these claims against construction manager denied as plaintiff was not sole cause of accident where accepted practice of his coworkers was to stand on the hoist tower while removing the screw as it could only be removed that way at times, making it foreseeable he would stand on the tower. Plaintiff denied summary judgment of Labor Law §241(6) claim based on industrial code §23-6.3(g)(hoist operation) for questions of whether violation was a cause of the accident and §23-6.1(c)(1)(trained operators) was too general for a §241 predicate.

Plaintiff and third-party defendant employer granted severance of third-party action as impleading employer months after Note of Issue prejudiced plaintiff by delay and employer by inability to conduct discovery. Lopez v Halletts Astoria LLC    

Labor Law §241   Industrial Code   Notice   Indemnity  

First Department
Although passageway plaintiff brought pallets of cinderblock through were free of debris, owner and construction manager failed to show no violation of industrial code §23-1.7(e)(1) where plaintiff testified he tripped on a pipe in a connecting passageway before the pallet jack fell on him and on §§ 23-1.7(e)(2) and 23-2.1(a)(1) on plaintiff’s and construction manager’s superintendent’s testimony that 4-5 pipes were “scattered” on the storage room floor. Those defendants also denied summary judgment based on industrial code §23-1.5(c)(3)(good working order) on plaintiff’s testimony he had problems with pallet jack when dropping other loads shortly before his accident. Plaintiff raised issues on § 23-9.2(a)(power equipment) with testimony he gave employer notice of pallet jack’s malfunctioning.

Electrical subcontractor granted summary judgment dismissing common-law and contractual indemnity on proof pipes were not theirs, and none of its work was involved in the accident. Failure to procure insurance claim dismissed as coverage would not have been triggered. Nicholson v Sabey Data Ctr. Props., LLC    

Labor Law §240   Sole Cause   Indemnity  

First Department
Worker granted summary judgment on Labor Law §240(1) against MTA and GC where he fell in uncovered manhole he was instructed to cover and his decision to step over the manhole where another worker bumped him was not sole cause as there was no protective railing or other safety devices to protect him from falling in the manhole.

Defendants denied summary judgment on contractual indemnity claim against subcontractor where issues remained of whether their failure to provide adequate safety devices and abide by contractual safety standards contributed to the accident. Piccone v Metropolitan Tr. Auth.    

Labor Law §240   Labor Law §241   Question of Fact   Industrial Code   Causation  

First Department
Worker denied summary judgment on Labor Law §240(1) where questions remained of whether ladder broke causing him to fall, or if he fell and broke ladder. Defendants failed to meet burden for summary judgement dismissing §241(6) claim without proof alleged industrial code violation did not cause the accident. Cabrera v DIRECTV, LLC    

Premises Liab   Reargument   Vacate Default   Reasonable Excuse  

Second Department
Plaintiff’s motion to reargue motion for summary judgment that was granted on default should have been treated as a motion to vacate the default judgment but lower court providently denied the motion where plaintiff offered no reasonable excuse for failing to initially oppose the motion. Day v Sguera Props., LLC    

MVA   Rear End   Nonnegligent Explanation   Experts  

Second Department
Dump truck driver raised issue of nonnegligent explanation for rear-ending plaintiff at a traffic light on his affidavit stating he was the first to stop at the light, never saw plaintiff cut in front of his truck because plaintiff stayed on his blind side, and he could not see plaintiff’s vehicle over his hood, supported by an expert report with photographs of an accident reconstruction based on the accounts provided by plaintiff and defendant drivers. Ordonez v ADM Agravit, Inc.    

MVA   Turning Vehicle  

Second Department
Plaintiff granted summary judgment against vehicle making a left-hand turn that struck taxi she was a passenger where that defendant-driver’s testimony prima facie showed he could not have completed the turn safely, failing to yield the right-of-way. Summary judgment denied against taxi driver and owner where questions remained of taxi-driver’s negligence. Lindo v Katz    

Construction Liab.   Question of Fact   Indemnity  

First Department
Welding subcontractor denied summary judgment where construction foreman tripped on welding cables in mechanical room as questions remained of whether cables were placed by moving-defendant which also required denial of its motion to dismiss contractual indemnity claim as indemnity agreement would be triggered by subcontractor’s negligence. Laudisio v 520 Madison Owners, L.L.C.    

Serious Injury   ROM   Causation   Experts  

Second Department
Defendant’s expert’s finding of significant limited ROM in plaintiff’s cervical and lumbar spine failed to meet burden for summary judgment on serious injury as expert did not adequately explain and substantiate his belief the limitations were self-imposed. Defendant also failed to show the cervical injuries were not caused by the accident. Bouzas v Schroeder    

False Arrest   Battery   Malicious Prosecution   Negligent Hiring   Respondeat Superior   Control   Notice   NYC  

First Department
Security guard at McDonald’s restaurant denied summary judgment dismissing assault and battery claims on questions of who was the primary aggressor in altercation with customers and his employer, security company, denied summary judgment on questions of whether guard was acting within scope of his duties. Battery claims against restaurant owner dismissed where it exercised no control over the guard who could not be its special employee. Negligent hiring/supervision/retention claims dismissed without proof restaurant or security company knew security guard had violent propensities or anything should have alerted them to a possible assault. Customer’s negligence claims against owner dismissed as it owed customer no duty to protect him from guard where the incident was unforeseeable and lasted about 1-minute.

Guard and security company denied summary judgment dismissing customers’ false arrest and malicious prosecution claims on question of whether guard was primary aggressor but told police 1-customer assaulted him. That customer’s malicious prosecution claims against NYC and owner dismissed where he acknowledged guard identified him as assailant giving NYC probable cause for arrest and merely calling 911 is insufficient for malicious prosecution. Fambro v City of New York    

Premises Liab   Wet Floor   Unknown Cause   Create Condition   Notice  

Second Department
Car dealership failed to meet burden for summary judgment on claim plaintiff could not identify cause of his fall in its bathroom where plaintiff testified he did not see what caused him to fall as he entered the bathroom but his pants were wet after he fell. Defendants also failed to prima facie show it did not create or have notice of the condition where plaintiff testified a dealership employee exited the bathroom 1-minute before plaintiff entered and defendants’ porter testified he saw drops of water on the bathroom floor a “very few times” and assumed it was from people washing their hands. Redendo v Central Ave. Chrysler Jeep, Inc.    

Security Guard   Notice   Violent Propensity  

First Department
Building owner, mother of assailant and his sister whose boyfriend-plaintiff was assaulted by the brother on stairway outside girlfriend’s apartment, granted summary judgment on proof she had no knowledge of or reason to believe son could be violent, that building outer door had a working lock, and there was no evidence son used a key to enter the building. Incident where brother broke into the apartment 6-months earlier because he thought he had a right to use one of the rooms insufficient to make violent behavior foreseeable. Johnson v Cummings    

(0 summaries)

About Matt McMahon

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