May 4, 2021 | Vol. 260

(4 summaries)

Set Aside Verdict   Pain/Suffering   Materially Deviates   Admissibility   Collateral Source  

First Department
Jury award of $550,000/$1.5 mil. past/future pain/suffering did not materially deviate from reasonable compensation for 28 year-old plaintiff with unhealed fracture of dominant wrist requiring 2-surgeries, limited ROM of wrist and hand, 2-bulging lumbar discs, constant permanent pain requiring wrist and back braces, and restriction of everyday tasks where his doctors opined he would never do even sedentary work, would require further surgery, and future use of a cane.

Without evidence of how many days plaintiff, a daily wage worker, worked per week or year the witnesses did not establish his lost wages “with reasonable certainty” and the Court recalculated the lost earnings on “the mean of his gross income on his tax returns prior to the accident” with his 2011 and 2012 tax returns establishing lost earnings with reasonable certainty. New trial ordered unless plaintiff stipulated to reduce past/future lost earning to $102,000/ $452,200. Claim that 1099 forms not properly authenticated unpreserved where defendant only objected on relevance and otherwise not prejudicial.

Defendant failed to show entitlement to collateral source hearing or “unusual or unanticipated circumstances” to warrant posttrial discovery. Plaintiff not entitled to additur for future pharmaceutical expenses as jury could refuse to believe testimony they were necessary. Henriquez-Rodriguez v 160 W. 118th St. Corp.    

Premises Liab   Stairs   Out of Possession   Duty   Building Code   Amend BP   Note of Issue   Prejudice   Raised For First Time  

Second Department
Out of possession building owner granted summary judgment on proof it did not assume duty to repair by contract or conduct restaurant stairs where plaintiff fell, there was no structural defect, and no violation of 1968 NYC building code for lighting. OSHA regulations not applicable as ‘OSHA governs employee/employer relationship’ and ‘[does] not impose a specific statutory duty on parties other than a plaintiff’s employer.’

Additional building code provisionsraised for the first time in opposition and not included in the pleadings not considered and, in any event, failed to raise issue where they were inapplicable. Plaintiff’s motion to amend BP to include additional building code provisions denied, and defendant’s motion to strike amended BP served without leave of court after Note of Issue granted, where plaintiff failed to show amendment had merit and amendment would prejudice defendant. Barger v Only Props., LLC    

Labor Law §240   Products Liab   Design Defect   Intervening Cause   Experts   Indemnity  

First Department
Plaintiff granted summary judgment on Labor Law §240(1) against bridge/tunnel defendants where boom lift collapsed and any design defect would not be a superseding cause under §240.

Manufacturer’s motion for summary judgment of design defect claim denied where bridge/tunnel defendants’ experts opined retract wire ropes failed because they could not be routinely inspected/maintained without completely disassembling the lift, which was a design defect. Manufacturing defect claim dismissed where unopposed and deemed abandoned. Lift rental company denied summary judgment of negligence claim on opinions lift could not be inspected/maintained without disassembling it.

Summary judgment of indemnity claims denied where questions remained of parties’ negligence and whether bridge/tunnel defendants were only vicariously liable. Fritz v JLG Indus., Inc.    


First Department
MTA bus’s motion to change venue from Bronx to New York County granted under CPLR §505(a) based on its principal place of business in New York County after all other public defendants were remove from the case. Plaintiff’s attempt to fit within the facility location mandate of §505(a) rejected as accident happened on the bus, not at the maintenance facility in the Bronx, and plaintiff did not raise issue below. Plaintiff’s residence insufficient given the venue mandate of §505(a). Gumbs v MTA Bus Co.    

(16 summaries)

Building Security   Assault   Notice   Foreseeability   Experts   Spoliation   Survelliance Video  

First Department
Building and bar/restaurant-tenant met burden for summary judgment where patron was raped in basement restroom on proof of no security protocol breach, a security guard presence would not have prevented the rape, and bar/restaurant was in low crime area making assault not reasonably foreseeable but plaintiff raised issues in opposition by building owner’s awareness of an assault in another bar a few blocks away, since prior assaults do not have to be at the exact location, expectation tenant would hire a security consultant, and belief surveillance videos were required to deter assaults. Plaintiff’s expert’s detailed affidavit showed it was a high crime area and tenant’s security procedures were inadequate and deviated from reasonable security standards. Surveillance cameras were installed in bar and restaurant prior to the rape but not outside of women’s restrooms in the basement even though an additional 10-cameras were purchased for that purpose but not installed and plaintiff’s expert opined those cameras would have prevented the rape.

Spoliation sanctions for not preserving 30-days of surveillance video inappropriate where plaintiff did not show defendants had obligation to save 30-days of video or that they had a culpable state of mind in not preserving them. Fact that assailant was on property before assault was irrelevant. Jane Doe v Turnmill LLC    

Premises Liab   Wet Floor   Set Aside Verdict   Pain/Suffering   Materially Deviates   Comparative Fault  

First Department
Jury could reach verdict of 90% comparative fault on fair interpretation of evidence where plaintiff did not observe readily apparent wet floor, defendant’s expert opined floor had adequate friction, and there was conflicting evidence of presence of wet floor signs, whether plaintiff was using service area in an approved manner, and whether her footwear contributed to fall. $100,000/$0 past/future pain/suffering award, reduced to $10,000 for 90% comparative fault, did not materially deviate from reasonable compensation where jury could credit evidence hamstring injury healed 7-years before trial, was not a cause of plaintiff’s knee injuries, and plaintiff malingered and exaggerated symptoms which also supported no award of lost earnings as plaintiff did not claim any lost earnings before hamstring injury healed and jury found knee injuries were not causally related to accident. Kopolovitch v 200 Water SPE LLC    

Labor Law §240   Labor Law §200   Industrial Code   Agent   Control   Causation   Indemnity  

Second Department
Electrical contractor granted summary judgment of Labor Law §241(6) claims on proof it was not an agent of owner or GC where it lacked authority to supervise and control the injury producing work which also entitled it to summary judgment of Labor Law §200 and negligence claims. Construction manager and Citi Field owners denied summary judgment of §241 claims where questions remained of whether Q-deck bridge plaintiff was walking on was wet or slippery condition under industrial code §23-1.7(d), whether injury was caused by debris, materials, or sharp projections in a passageway or work area under §23-1.7(e), and whether condition was “integral” to plaintiff’s work. Plaintiff denied summary judgment on §241(6) where questions remained on causation.

Electrical contractor granted summary judgment dismissing common-law indemnification and contribution claims on proof it was not negligent and did not have authority to direct, supervise, or control the work, and dismissing contractual indemnification claims where contract specified indemnify only for claims arising out of electrical contractor’s work. Pereira v Hunt/Bovis Lend Lease Alliance II    

Comment: Plaintiff was bankruptcy trustee for injured construction worker.

Premises Liab   Stairs   Create Condition   Notice   Last Inspection   Causation   Experts  

First Department
NYCHA granted summary judgment on caretaker’s testimony she followed cleaning schedule evening before and morning of plaintiff’s fall on wet stairs and found nothing wrong, establishing it did not create or have notice of a wet condition. Plaintiff’s expert’s opinion, raising new alleged defects on inspection 4-years after accident, failed to raise issue without proof alleged defects caused fall as plaintiff’s testimony was that accident was caused solely by wet stairs. Villar v New York City Hous. Auth.    

Labor Law §240   Ladder   Question of Fact   Sole Cause   Intervening Cause  

First Department
Construction worker who fell from 6′ A-frame ladder that shook and moved after sheetrock he was holding overhead fell, and he dropped drill he was working with overhead, due to fatigue granted summary judgment on Labor Law §240(1) as unsecured ladder failed to provide adequate protection against movement or slippage for work being performed and plaintiff was not required to show ladder was defective. Falling sheetrock was not an intervening cause as it was not an unforeseeable external force unrelated to plaintiff’s work. More detailed explanation of accident at plaintiff’s deposition was an expansion of his terse statement to supervisor immediately after fall. Plaintiff could not be sole cause of accident where ladder was inadequate safety device, and he could not be a recalcitrant worker where there was no evidence the accident would’ve been avoided by using an available larger ladder. Ping Lin v 100 Wall St. Prop. L.L.C.    

Labor Law §241   Labor Law §200   Industrial Code   Open/Obvious  

First Department
MTA’s motion for summary judgment granted as berm plaintiff was standing on, that supported water main they were attaching to overhead beam in preparation for excavation, was lose dirt and debris that was not a slippery condition defined by industrial code §23-1.7(d) under Labor Law §241(6). Lighting did not fall below standard of industrial code §23-130 where headlamps provided enough light for plaintiff’s coworkers to see his face 3’ away and metal washer before it fell, and for plaintiff to see where he was walking and washer as it slid down berm. Negligence and Labor Law §200 claims dismissed as berm was “‘part of or inherent in’ the very work being performed,” and muddy, slippery condition was readily observable. Cruz v Metropolitan Tr. Auth.    

Premises Liab   Out of Possession   Create Condition   Notice   Last Inspection  

Second Department
Landlord failed to show it was an out of possession owner with no contractual duty to maintain trapdoor as lease rider was unclear if trapdoor plaintiff fell through in deli was structural. Landlord granted summary judgment, however, where plaintiff testified he walked over trapdoor seconds before he fell through it when it was then open, establishing as a matter of law it did not create or have notice of the condition even without evidence of last time it was inspected. Vaughan v Triumphant Church of Jesus Christ    

Construction Liab.   Unknown Cause   Speculation   NYC  

First Department
Plaintiff’s testimony he fell on debris, consistent with his C-3 WC form filled out shortly after accident, defendants’ incident reports, and photograph authenticated by coworker showing debris strewn about, were sufficient to make cause of accident nonspeculative and a more likely cause of accident then other factors such as a misstep and would support a jury verdict on such grounds. Case remanded for consideration of issues lower court did not address. Canzoneri v City of New York    

Premises Liab   Assumption of Risk  

Second Department
Asphalt Green denied summary judgment where swimming official slipped on wet condition of indoor pool deck from brown water dripping from dehumidification system pipes where evaporated pool water mixed with dust on the air ducts without proof condensation of evaporated water was necessarily incidental to an indoor swimming facility. Dripping condensation was not open/obvious and increased inherent risks of using the pool. O’Brien v Asphalt Green, Inc.    

Premises Liab   Stairs   Unknown Cause   Feigned Issue   Building Code   Experts   Conclusory  

First Department
Commercial cleaner’s testimony she was unaware of whether she tripped or slipped and did not know what caused her to fall made out prima facie entitlement to summary judgment for defendant and plaintiff’s subsequent affidavit claiming she lost her balance from lack of handrail raised only a feigned issue. Defendant’s expert established the steps were not slippery, were not an interior stairway requiring handrails under 1968 building code, and did not violate any other building codes. Plaintiff’s expert’s opinion step dimensions, door arrangement, and lack of handrail caused the accident did not raise issue where conclusory and plaintiff never claimed steps or door caused her fall, or that lack of a handrail contributed to the fall. Sowa v Zabar    

Negligent Supervision   Causation  

Second Department
School district granted summary judgment where fourth-grader was given adequate instructions during PE class, which establishes adequate supervision, and there was no causation as the accident happened so quickly it could not have been prevented by any degree of supervision. The Court does not give the details of the proofs. Colantonio v Mount Sinai Union Free Sch. Dist.    

Labor Law §240   Ladder  

Second Department
Plaintiff granted summary judgment on Labor Law §240(1) where extension ladder without rubber feet slid on concrete surface causing him to fall. Soczek v 8629 Bay Parkway, LLC    

Labor Law §240   Falling Object   Indemnity  

First Department
Concrete worker struck by unsecured 8’x12′ pipes stacked against wall that fell on him granted summary judgment on Labor Law §240(1) even though they were not part of plaintiff’s work and concrete workers and defendants were not aware they were there, as they were not adequately secured for purpose of the work. Dismissal of contribution and indemnity claims denied on issue of who owned pipes. Diaz v HHC TS Reit LLC    

MVA   Nonnegligent Explanation  

Second Department
Plaintiff granted summary judgment on her affidavit, eyewitness testimony, and certified police report showing 2-vehicles passed through intersection with green light without incident, passenger side of plaintiff’s vehicle was struck by defendants’ vehicle as plaintiff went through intersection, and defendant-driver was looking in his lap as he entered intersection against light, establishing negligence per se for violation of VTL §1111(d)(1). Defendants failed to provide nonnegligent explanation. Callahan v Glennon    

Labor Law §241   Industrial Code  

First Department
Defendant granted summary judgment of Labor Law §241(6) claim as industrial code §23-1.7(e)(1) was inapplicable where plaintiff’s fall was not in a passageway and § 23-1.7(e)(2) was inapplicable as plaintiff was assigned to clear demolition debris making it in integral part of his work. Torres v Triborough Bridge & Tunnel Auth.    

Malpractice   Experts   Speculation   Conclusory  

Court of Appeals
Second Department’s holding that plaintiff’s expert’s opinions failed to raise issue in opposition to defendants’ entitlement to summary judgment where they were conclusory and speculative affirmed. Jacob v Franklin Hosp. Med. Ctr.    

Comment: The Second Department’s decision was reported in Vol. 236.
(1 summaries)

Negligent Hiring   Notice   Foreseeability  

Second Department
After school program failed to meet burden for summary judgment of negligent hiring and retention claims for sexual assault of student by dance instructor where its papers raised issues of whether it properly vetted instructor before hiring her and whether it retained her with notice of potential harm to the student. The Court does not give the details of the proofs. D.T. v Sports & Arts in Schs. Found., Inc.    

About Matt McMahon

Civil trials and appeals since 1984
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