May 5, 2020 | Vol. 209

This volume celebrates the four-year anniversary of the New York Tort Weekly which has to date published summaries of 4982 cases that can be easily searched with our search tool.
Thank you for your support!

MUST READS
(4 summaries)
NOTEWORTHYIF YOU MUST READ



Premises Liab   Slip/Trip   Stairs   Late Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice  

Second Department
It was not abuse of discretion to grant petition to serve late Notice of Claim without proof that NYCHA had actual notice of stair defect which caused petitioner’s fall where petitioner incorrectly served NYCHA with Notice of Claim on Comptroller’s office within 90-days, served amended Notice of Claim at NYCHA’s correct address 49-days after the 90-day period, and brought petition 15-days later establishing a reasonable excuse. Pictures provided with Notice of Claim taken 2-days after accident depicted condition at time of the accident and proof that NYCHA repaired step a month before 90-day period ended showed their own actions would have made it impossible to investigate if timely served. Plaintiff met initial burden of showing no prejudice and NYCHA failed to make a particularized showing of prejudice. Matter of Brown v New York City Hous. Auth.


Med Mal   Set Aside Verdict   Admissibility   Prejudice  

Second Department
Verdict for plaintiff awarding $400,000 for 5-years future pain/suffering against OB/GYN who performed D&C set aside in the interest of justice where trial judge improperly allowed plaintiff’s attorney to introduce extrinsic documentary evidence solely to impeach defendant’s credibility, prejudicing defendant and warranting new trial. Rudle v Shifrin

Comment: The NYCourts Evidence Guide has a good explanation of the limitations presented by the collateral attack rule at §6.11 Guide to NY Evidence. A link to the Court’s evidence guide is also on the right side panel of this website.

Motion to Dismiss   CPLR § 3126   Note of Issue   90 Day Notice   Vacate Default   Reasonable Excuse  

Second Department
Plaintiff’s failure to file Note of Issue within 90-days of notice to prosecute served by all defendants entitled defendants to dismissal for failure to prosecute. Plaintiff’s claim of law office failure did not provide reasonable excuse where it was conclusory and uncorroborated. Islam v HPENY Hous. Dev. Fund Co., Inc.


MVA   Set Aside Verdict   Jury Charge   Causation  

Second Department
Judgment on verdict for plaintiff finding second car in 3-car pileup negligent and cause of accident but finding third car not a cause of accident reversed and remanded for new trial where plaintiff had been granted summary judgment against both defendants, which encompasses both negligence and causation, and verdict sheet allowing jury to determine causation was improper. Court instructed trial court must instruct jury that they have to find both defendants at least 1% at fault and apportion liability between them. Sachaleli v Zdrazil

NOTEWORTHY
(8 summaries)
MUST READSIF YOU MUST READ



MVA   Turning Vehicle   VTL §1104   Police   Court of Claims  

Second Department
Police officer making U-turn across median responding to officer need’s assistance call entitled to reckless standard under VTL §1104(b)(4) which covers directions of travel and turns. Defendants granted summary judgment on proof that officer’s conduct was not reckless. Cable v State of New York

Comment: VTL §1104(b)(4) and (b)(1) have no prerequisites or conditions to the application of the reckless standard unlike subsections (b)(2) passing a signal “but only after slowing down as may be necessary for safe operation” and (b)(3) speeding “so long as he does not endanger life or property.”

Premises Liab   Slip/Trip   Unknown Cause   Notice   Dangerous Condition   Expert Aff   Amend BP   Speculation   Raised For First Time  

First Department
Building owner granted summary judgment where tenant slipped and fell on stairs entering building during heavy rain but was unable to identify cause of fall other than speculating it was slippery combination of rain on marble door saddle. Plaintiff’s expert failed to raise issue without testing coefficient of friction of saddle, and plaintiff failed to show defendant had notice of a dangerous condition. Plaintiff’s motion to amend BP to include 1968 building code violations not included in pleadings denied where it constituted substantial addition to theory of case raised for the first time 2-months after opposition, 3-months after Note of Issue, and 3-years after action commenced. Silber v Sullivan Props., L.P.


Premises Liab   MVA   Duty   Intervening Cause   Foreseeability   Expert Aff  

Second Department
Wendy’s granted summary judgment where patrons pinned against exterior wall by car that accelerated into side of the building on expert’s opinion that premises were reasonably safe and conduct of driver was unforeseeable and only provided occasion for the accident. There is no duty to protect against conduct of a third party unless it is “a normal or foreseeable consequence of the situation created by the defendant’s negligence.” DiMilia v Hogarty


Labor Law §240   Falling Object   Foreseeability   Safety Devices  

First Department
Construction worker hit by heavy wood concrete form while clearing form debris from floor granted summary judgment on Labor Law §240(1) because forms were required to be secured for work and being hit by them was a foreseeable consequence of the risk of doing the work without any safety devices whether the form was tossed or dropped by a coworker or just fell. Diaz v Raveh Realty, LLC


Premises Liab   Slip/Trip   De Minimus   Create Condition   Notice   Expert Aff  

Second Department
Mall granted summary judgment where plaintiff tripped when his foot got caught in a bent bench leg that plaintiff’s expert opined dangerously stuck out into passageway. Photographs authenticated by plaintiff showed defect was trivial given plaintiff’s unobstructed view and adequate lighting and defendants proved they did not create the condition or have actual or constructive notice of it. Reich v Alexander


Labor Law §240   Ladder   Falling Object   Foreseeability   Intervening Cause   Expert Aff   Raised For First Time  

First Department
Plaintiff’s Labor Law §240(1) motion for summary judgment denied where ceiling tile that fell on him causing 24′ ladder he was on, held by worker at the bottom, to fall against opposite wall as ceiling tile was not required to be hoisted or secured for the cleaning work. Factual issues remained on whether ceiling tile was a superseding cause where plaintiff described ladder as not defective and on whether it provided proper protection on conflicting experts’ opinions. Falling object theory not considered where raised for the first time on appeal. Morera v New York City Tr. Auth.


MVA   Train   Wrongful Death  

Second Department
LIRR granted summary judgment where plaintiff’s decedent was hit and killed while train was pulling into station on proof that operator did not see a person on the tracks in time to stop in the exercise of reasonable care. Estate of Umali v Long Is. R.R.


3rd Party Contractor   Duty   Espinal  

Second Department
Company that serviced portable default door which injured plaintiff, bank employee, when she opened it granted summary judgment under limited service contract on proof it did not launch an instrumentality of harm and plaintiff did not detrimentally rely on their service under Espinal. Cikoja v Diebold, Inc.

IF YOU MUST READ
(3 summaries)
MUST READSNOTEWORTHY

Stay Arb   SUM   Appealable Order  

Second Department
SUM carrier’s documentary proof that motorcycle insured was injured on was covered by separate motorcycle policy with $25,000 limit, not Lexus policy with $100,000 limit entitling it to permanent stay of arbitration. Carrier preserved right of appeal by seeking stay pending appeal from Appellate Division and met burden for stay with its documentary evidence. Matter of Government Empls. Ins. Co. v Kul


Set Aside Verdict  

Second Department
Plaintiff’s motion to set aside defense verdict denied where jury could reach a verdict on reasonable view of the evidence. The court does not give the details of the proofs. Duran v Nanda


Stay Arb   Uninsured  

Second Department
Uninsured carrier’s petition to stay arbitration claiming that offending vehicle carrier’s termination of policy was ineffective because it was not filed with Department of Motor Vehicles denied on proof that policy was not terminated, a new car was substituted for the offending car on the policy which under a 1983 amendment to VTL §313 did not require it to be filed with the Department of Motor Vehicles. Matter of Global Liberty Ins. Co. v Ho Suk Shin

About Matt McMahon

Civil trials and appeals since 1984
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