May 7, 2019 | Vol. 157

MUST READS
(7 summaries)
NOTEWORTHY IF YOU MUST READ

Premises Liab   Estate   Motion to Dismiss   Personal Juridiction   CPLR §306-b  

Second Department

By commencing action against property owner’s estate instead of executor/administrator as personal representative, and serving Summons and Complaint after 120-days, plaintiff never obtained personal jurisdiction and her cross motion to deem service against the estate timely under CPLR §306-b could not cure the defect. Rodriguez v Capri Landscaping, Inc.


Med Mal   Vacate Default   Reasonable Excuse   Meritorious Action   BP  

First Department

Plaintiff’s motion to vacate order dismissing case for failure to comply with discovery order denied where bare-bones BP failed to show meritorious action even if plaintiff showed reasonable excuse for default. Stio v Montefiore Med. Ctr.


Med Mal   Directed Verdict   Accepted Practice   Causation  

Second Department

Jury’s verdict finding hospital negligent for its radiologist not conveying re-examined result of ultrasound to treating OB/GYN established departure from accepted practice but there was no legally sufficient proof that the departure caused or contributed to plaintiff’s ruptured ectopic pregnancy where OB/GYN testified that the report would not have changed his treatment and that the ectopic pregnancy was not visible on a more detailed ultrasound 11 days after the hospital’s ultrasound. Plaintiff’s expert opined only regarding the OB/GYNs negligence and causation if the jury found he had been provided with the revised report and plaintiff had no expert to establish causation from admitted departure. Verdict set aside and hospital granted directed verdict where there was no rational path to verdict and no legally sufficient evidence on causation. Lopes v Lenox Hill Hosp.


Labor Law §240   Labor Law §241   Ladder  

First Department

Plaintiff granted summary judgment on Labor Law §240(1) where he fell from unsecured A-frame ladder that had to be propped up against wall to access work are when he received an electric shock. The 4/1 court found it was the lack of an adequate safety device including a secured ladder or Baker scaffold that caused the fall and the electric shock was only the precipitating factor. The parties did not dispute liability under Labor Law §241(6) based on industrial codes §§23-1.13(b)(3) & (4) for failure to provide against electrical shock. There was 1-dissent. Cutaia v Board of Mgrs. of the Varick St. Condominium


Note of Issue   IME/DME   Good Faith Aff  

First Department

Plaintiff’s post Note of Issue motion for a neurological examination after plaintiff failed to appear for his neurological examination before Note of Issue denied where defendant didn’t appeal or move to reargue lower court’s denial motion to strike Note of Issue 14-months earlier. Defendant also failed to provide good faith affirmation and attorneys’ affirmations and correspondence failed to give details of communications between counsel or show they had a relationship where discovery issues could not be resolved. The court noted plaintiff had indicated willingness to provide post Note of Issue authorizations, including Arons authorizations, during oral argument on the appeal. Stay denied. Cashbamba v 1056 Bedford LLC


Med Mal   Accepted Practice   Respondeat Superior   Expert Aff  

First Department

Physician’s expert failed to eliminate questions on departure from accepted practice where opinion that doctor acted timely was based on disputed fact that nurse called and informed him patient was momentarily unresponsive and that she administered oxygen. Physician group failed to show that doctor they paid and provided benefits for was an independent contractor especially where they failed to provide his contract. Vazquez v Beth Abraham Health Servs.


Untimely   CPLR § 3126   Reasonable Excuse   Meritorious Action  

Second Department

While the defendants served their motion to enforce self-executing conditional order dismissing complaint more than 16-days before return date, they did not specifically demand under CPLR §2214(b) that answering papers be served at least 7-days before return date so that plaintiff’s opposition served 2-days before return date was timely.

Plaintiff’s repeated failure to comply with discovery including serving the supplemental BP and unrestricted HIPAA AZ’s several weeks after deadline without a reasonable excuse or any attempt to show a meritorious action warranted dismissal. Williams v Davita Healthcare Partners, Inc.

NOTEWORTHY
(27 summaries)
MUST READS IF YOU MUST READ

Labor Law §241   Industrial Code  

First Department

Summary judgment on Labor Law §241(6)for worker who tripped on elevator shaft demolition construction debris not integral to work being performed by plaintiff in a passageway he was required to traverse to bring a ladder to worksite (23-1.7[e][1]) and in a working area he was required to pass during his work (23-1.7[e][2]). Rossi v 140 W. JV Mgr. LLC


MVA   Note of Issue   Prejudice  

Second Department

In case where summary judgment had been granted on liability, plaintiff’s motion to strike defendants’ demand for jury trial filed and served 6-months after Note of Issue was refiled denied and defendants’ CPLR §4102(e) cross motion to deem jury demand timely filed nunc pro tunc granted on finding that failure to timely file was inadvertent law office failure and there was no prejudice to plaintiff. Rudolf v Solomon


Discovery   Sanctions   Preclusion  

First Department

Plaintiff precluded from introducing evidence of head injury where she failed to provide authorizations for pre-existing head injury and stipulated that her claims of exacerbation/aggravation were limited to neck and back. Excuse that authorizations were misfiled and not sent deemed inadequate given length of delay. Hendrickson v New York City Hous. Auth.


MVA   Bus   Dangerous Condition   Expert Aff  

Second Department

Bus company showed entitlement to summary judgment on proof that area where passenger, who was not disabled and did not request assistance, and her companions disembarked from bus was safe. Plaintiff’s expert’s opinion of industry standard for bus driver to stand at bottom of stairs to offer assistance and give warnings was a conclusory opinion not supported by any evidence nor did the expert show any statute or regulation that was violated. Salas v Adirondack Tr. Lines, Inc.

Comment: The court opined that an industry standard or custom may be admissible to establish a standard of care, but that plaintiff’s expert failed to prove one.


MVA   Question of Fact   Premature Motion  

First Department

Aide injured when wheelchair on ambulette turned over on him as ambulette moved denied summary judgment by 3/2 court on conflicting versions of where plaintiff was sitting, whether there was an available seatbelt, and how the nonparty disabled person’s wheelchair could have flipped over in transit. The court found that further fact-finding was necessary including information from the disabled passenger. Bajaha v Mercy Care Transp., Inc.


Med Mal   Notice of Claim   Continuous Treatement  

Second Department

Westchester Medical Center granted summary judgment on proof that plaintiff’s Notice of Claim was served 10-months after his last treatment for the puncture to his heart during a pericardiocentesis procedure and that all subsequent treatment was related to his underlying kidney disease. Smith v Cooper


Premises Liab   Slip/Trip   Snow/Ice   Prior Written Notice   Create Condition   Last Inspection  

Second Department

Town showed that it did not have prior written notice of ice condition outside it’s parking lot but failed to eliminate questions on recognized exception where municipality creates the condition, in this case by its snow removal efforts. Town failed to establish what premises looked like immediately after its snow removal efforts 3-days before accident or the variations in temperature during that period to establish it did not create the 6-12″ of snow observed by the plaintiff. Eisenberg v Town of Clarkstown


Premises Liab   Slip/Trip   Snow/Ice   Last Inspection   Feigned Issue  

First Department

Adjoining landowner failed to eliminate question of notice without evidence of the last time sidewalk was cleaned or inspected. In any event, plaintiff’s testimony and affidavit that sidewalk was covered with snow when she fell would be sufficient to raise issue of fact and her affidavit did not flatly contradict her deposition testimony and would at most be an issue of credibility. Gonzalez v Franklin Plaza Apts., Inc.


Premises Liab   Slip/Trip   Snow/Ice   Storm in Progress  

First Department

Defendants denied summary judgment where they failed to address allegations that snow/ice plaintiff slipped on existed prior to the 10″ of snow that fell just before plaintiff’s accident, including failing to put forth evidence of someone with knowledge of the conditions before the snow or whether there were any complaints before the snow. Wolf v St. Vincent’s Catholic Med. Ctrs. of N.Y.


MVA   Turning Vehicle  

Second Department

Defendant driver’s affidavit stating that plaintiff’s vehicle was not near intersection when she signaled and started her turn, and there was insufficient time to avoid hitting plaintiff’s vehicle because of his excessive speed raised issue of fact in opposition to plaintiff’s prima facie showing that defendant failed to yield the right-of-way in making a left-hand turn. Brodney v Picinic


MVA   Rear End   Nonnegligent Explanation  

First Department

Both plaintiff’s and defendants’ motions for summary judgment denied on conflicting facts of speed and who was driving plaintiff’s vehicle when it was rear-ended by codefendant who raised issue on nonnegligent explanation that he could not see if vehicle in front of SUV he was behind was stopped or stopping until the SUV suddenly changed lanes. Richards v Mitchell


Negligent Supervision   Notice   Foreseeability   NYC  

Second Department

NYC and foster care agency that placed infant in foster home with his 14-year-old brother granted summary judgment on proof that they had no notice or knowledge of any propensity of older brother to abuse the infant and mother’s allegations at time both her and biological father were arrested for abuse claiming that 14-year-old masturbated in same room as infant did not provide notice of foreseeability of injurious conduct. Lopez v City of New York


Assumption of Risk   Informed Consent  

First Department

Cosmetic tattoo center granted summary judgment on proof that plaintiff signed consent form regarding risks of eyebrow tattoos and specifically approved drawings of the tattoos which were placed as drawn. Forman v Whitney Ctr. for Permanent Cosmetics Corp


Premises Liab   Motion to Dismiss   Notice of Claim   Court of Claims  

Second Department

Claimant’s description of accident as having occurred next to column designated “D1” in hospital parking lot insufficiently pled location of accident based on parking garage manager’s affidavit that all 28 columns were designated “D1” depriving the state of the opportunity to adequately investigate. The state raised the issue in an affirmative defense and was not dilatory in waiting until after depositions to make its motion. Constable v State of New York


Labor Law §240   Ladder   Control  

First Department

Plaintiff failed to show contractor who supervised work at residential property had “the ability to control the activity bringing about the injury and the authority to correct unsafe conditions” necessary to be deemed a general contractor for purposes of Labor Law §240(1) where contractor did not hire, retain, or pay any of the contractors at the site and did not have the ability to stop work for safety reasons. Uzeyiroglu v Edler Estate Care Inc.


Premises Liab   Hearsay   Expert Aff   Raised For First Time  

First Department

Building granted summary judgment on fire marshal’s report, admissible as a business record where fire marshal did not have independent recollection of investigation, establishing that fire was caused by flammable clothing left too long in dryer and not defect in equipment. Plaintiff’s expert’s opinion on a new theory raised for the first time in opposition failed to raise an issue of fact. Mirdita v Musovic Realty Corp.


Premises Liab   Create Condition   Notice   Expert Aff   Speculation  

First Department

Defendants proved they did not create or have notice of dangerous condition by their testimony that persons routinely used porch step without incident, they were not aware of any mold or slippery condition, and plaintiff’s testimony that step appeared safe, dry, and free of debris before he slipped. Plaintiff’s expert’s opinions were speculative and conclusory where he did not touch or attempt to create the same circumstances. Molina v Dimon


Serious Injury   Expert Aff  

First Department

Photographs taken after accident and 2-years later showing swelling and bump on plaintiff’s temporal region of her face and plastic surgeon’s affidavit that it was permanent and “tricky” to do surgery because of nerves in the area was sufficient to raise issue in opposition to the defendant’s prima facie showing of no serious injury under significant disfigurement. Feutcher v Composite Tr.


Premises Liab   Slip/Trip   Sidewalk   § 7-210  

Second Department

Abutting landowner granted summary judgment on proof that plaintiff tripped on grate covering tree well which is not considered part of sidewalk under administrative code §7-210. Barrios v City of New York


MVA   Rear End   Nonnegligent Explanation  

First Department

Plaintiff entitled to summary judgment and dismissal of defendants’ on showing that he was stopped at a light when struck in the rear by the defendants’ car. Defendants’ claim that plaintiff did not have his turn signal on was irrelevant as plaintiff was stopped when hit. Serrano v DTG Enter. Inc.


Consolidation   Reargument   Untimely  

Second Department

Lower court was allowed to consider reargument despite any statutory limits and on reargument providently denied motion to consolidate cases involving 3-separate accidents because they did not share common questions of fact or law. Tafolla v Aldrich Mgt. Co., LLC


Premises Liab   Slip/Trip   Sidewalk   § 7-210   NYC  

Second Department

NYC granted summary judgment on proof that sidewalk where plaintiff tripped on uneven sidewalk flag was adjoining a building that was not a 1-3 family residential building as NYC had no duty to plaintiff under administrative code §7-210. Kolotova v Beach Haven Apts. Assoc., LLC


Premises Liab  

First Department

Contractor hired to repair sidewalk after sidewalk shed was removed granted summary judgment on proof that accident happened while sidewalk shed was still in place and before contractor began work. Young v Associated Blind Hous. Dev. Fund Corp.


Negligent Supervision   Foreseeability   Intervening Cause  

Second Department

BOE granted summary judgment on proof it had no knowledge of students bringing dogs to lacrosse games and that the student who ran into plaintiff after being chased by dog that got loose was a spontaneous act that broke the chain of causation that could not be foreseen nor protected against. B.J. v Board of Educ. of the City of N.Y.


Serious Injury   ROM   Expert Aff   Degenerative  

Second Department

Plaintiff’s expert’s affirmation failed to raise issue of fact in opposition to defendant’s showing of entitlement to summary judgment on serious injury where it failed to identify objective test used to measure loss of ROM in plaintiff’s spine and shoulder and failed to address defendant’s radiologist’s findings of degeneration. Zavala v Zizzo


Premises Liab   Slip/Trip   Snow/Ice   Duty   Premature Motion  

First Department

Lease with supermarket tenant unambiguously left duty to keep parking lot free from snow and ice to landlord but plaintiff did not identify precisely where accident occurred making summary judgment for supermarket premature. Neppl v Fairway Pelham LLC


Premises Liab   Slip/Trip   Create Condition   Notice   Unknown Cause  

Second Department

Defendants failed to show that plaintiff was unable to identify cause of her fall in their parking lot but established that they did not create a dangerous condition or have notice of one. The court does not give the details of the proofs. Chang v Marmon Enters., Inc.

IF YOU MUST READ
(3 summaries)
MUST READS NOTEWORTHY

MVA   Discovery   Premature Motion  

First Department

Defendant’s motion for summary judgment before any discovery denied as premature giving plaintiff the opportunity to depose parties with knowledge of the incident. The court does not state what information was necessary to oppose the motion. Guzman v City of New York


Question of Fact   Premature Motion  

First Department

Defendant raised issue of fact in opposition to plaintiff’s prima facie showing of entitlement to summary judgment made before depositions were held. The court does not give the details of the proofs. Shek v Gachineiro


Serious Injury  

Second Department

Plaintiff raised question of fact in opposition to defendants’ prima facie showing of entitlement to summary judgment on serious injury. The court does not give the details of the proofs. Fernandez v Noschese

About Matt McMahon

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