| MUST READS (6 summaries) | |||
| NOTEWORTHY | IF YOU MUST READ | ||
 Defendants’ motion to dismiss malpractice claim for pressure ulcers while treating bedridden Covid patient who was on a ventilator as barred by the immunity provision of the federal PREP Act and for lack of state court subject matter jurisdiction denied. HHS declared an emergency during Covid as required for the PREP Act and a ventilator is a defined ‘covered countermeasure’ under the Act but the Complaint alleged solely state claims for injuries caused by malpractice for failing to follow ulcer protocols, not injuries related to the use of the ventilator. Once it is determined that PREP Act immunity doesn’t apply, there is no federal law involved that would deprive the state of subject matter jurisdiction. Kluska v Montefiore St. Luke ✉ |
 Worker who fell when plank over pool excavation cracked granted directed verdict on Labor Law §§ 240(1), 241(6) against LLC that owned cooperative townhouse where one of its owners placed the plank and instructed plaintiff to use it, taking the owner out of the 1-2 family exception to §§ 240(1),241(6) as he directed the work. Based on a $1.5/1.0 million high/low agreement with the owner that contemplated the amount of the owner would be found liable its degree of fault, the owner was responsible for the $1million of the high/low where the jury apportioned fault 10%-owner, 50%-contractor, 40%-plaintiff’s employer. Contractor found to be GC where jury given missing document charge for failing to produce its professional services agreement, which detailed the work it was to perform, that was in its exclusive possession. Motion to set aside verdict finding GC liable under Labor Law §200 and common law negligence granted where there was no proof it placed the plank or supervised the injury producing work. Malecaj v West 70th Owners Corp. ✉Comment: Trial court set aside the apportionment of liability, finding 10% fault for owner was too low, and granted a new trial on that issue but did not provide leave to readjust what portion of the high/low applies if the owner is subsequently found to be more than 10% liable and the appellate court noted that dismissal of §200 and negligence claims against the owner has nothing to do with reapportionment of fault. |
| Schools’ motion to dismiss Child Victims Act (CVA) case alleging sexual abuse from 1960-1965 denied as the CPLR §214-g revival statute did not violate the NYS Constitution due process clause where it was ‘a reasonable response in order to remedy [the] injustice’ to child sexual abuse victims caused by the statute of limitations and plaintiff adequately pled a cause of action for negligent hiring. Lower court providently granted plaintiff’s motion to amend the Complaint to include a claim for punitive damage where defendant was not surprised or prejudice by the amendment. Rubin v Poly Prep Country Day Sch. ✉ Comment: The same reasoning and result in a similar case against the same defendant. Feaster v Poly Prep Country Day Sch. |
| Plaintiff’s motion to preclude defendants’ biomechanical engineering expert from testifying granted where his opinions were based on unauthenticated photos without evidence of when, where, or by whom they were taken and defendants failed to show his opinions met the properly applied methodology Frye test without proof they were based on data specific to the accident, such as EDR data. Ruiz v Losito ✉ |
| Judgment in favor of internist on trial court’s grant of judgment as a matter of law in his favor solely on the issue of proximate cause vacated and $9,973,001 jury award reinstated where there was a rational path for the jury to find the internist’s failure to send the decedent to the emergency room on the day he committed suicide deprived the decedent of a chance of a better outcome. Case remanded for consideration of internist’s motion to set aside the verdict as against the weight of the evidence and for judgment as a matter of law on accepted practice and to set aside the verdict as materially deviating from reasonable compensation. Shouldis v Strange ✉ |
| Lower court improperly granted defendant’s motion to quash nonparty deposition subpoena as untimely where served after Note of Issue and for a protective order to prevent plaintiff from obtaining a statement from the witness to the extent of prohibiting plaintiff from obtaining the sworn statement of the nonparty, precluding the nonparty from testifying at trial, and awarding sanctions against plaintiff’s attorney as there is no statute or rule prohibiting a party from taking a nonparty statement which is a discovery device defined by CPLR §3102(a) prohibited by the automatic suspension pending an application for a protective order under CPLR §3103(b). Everett v Equinox Holdings, Inc. ✉ |
| NOTEWORTHY (14 summaries) | |||
| MUST READS | IF YOU MUST READ | ||
| Lower court providently granted defendants’ motions to reargue prior grant of plaintiff’s motion to amend the Complaint but on reargument improvidently denied amendment for breach of contract, gender discrimination, and fraud, and violations of General Business Law §§ 349 and 350 against the hospital and its director of obstetrics who determined there was insufficient time to seek a court order before allowing a c-section against the plaintiff’s wishes as the allegations were not palpably devoid of merit and these defendants were not prejudiced or surprised by the delay in seeking the amendment. Proposed amendment for violation of Civil Rights Law §40, fraud, and violations of General Business Law §§ 349, 350 against ob/gyn who performed c-section, and his practice, providently denied as §40 does not bar discrimination based on gender or pregnancy, and the allegations of fraud and violations of GBL were palpably devoid of merit where based upon the conduct of the hospital and its director of obstetrics. CPLR §3211(a) motions to dismiss no longer academic and still pending before the lower court. Dray v Staten Is. Univ. Hosp. ✉ Comment: Second Department’s prior decision, reported in Vol. 101, dismissed all claims for performing the C-section without plaintiff’s consent as barred by the 1-year statute of limitations for battery, whether plead as battery, malpractice, or informed consent. |
| Worker who fell in 2-2.5” deep, 18” wide, and 3’ long hole when he stepped on the thin plastic covering granted summary judgment on Labor Law §240(1) as he was exposed to an elevation risk and the height differential was not de minimis since “[t]here is no bright-line minimum height differential that determines whether an elevation hazard exists” and no safety device was provided. Fact he was working at ground level did not take case out of §240. Defendant failed to show motion was premature without proof discovery would lead to relevant information or information solely within plaintiff’s knowledge given that the discovery sought was related to a 3rd-party action. Haskins v Metropolitan Transp. Auth. ✉ |
| Defendants granted summary judgment dismissing plaintiff’s claim for injuries when police vehicle transporting arrestee to the police station, without lights or sirens, struck passenger side of plaintiff’s vehicle as police vehicle moved from the middle to left lane where plaintiff conceded the officer was engaged in an emergency operation under VTL §1104 and changing lanes is privileged conduct under §1104(b)(4). Officer’s testimony that he did not look to his left before changing lanes may be evidence of negligence but was a momentary lapse in judgment that does not meet the reckless standard. Beverly v County of Suffolk ✉ |
| NYC DOE granted summary judgment dismissing high school administrative dean’s claim for student’s assault on her in hallway on proof they had not assumed a special duty towards her where they did not assume a duty to protect her beyond that owed to the general school population or public, made no promises to specifically protect her that she could justifiably rely on, she did not fear the student who had not made any threats to her, and she never asked the school for protection from the student. Villa-Lefler v Department of Educ. of the City of N.Y. ✉ |
| Defendant granted summary judgment dismissing worker’s Labor Law §§ 240(1), 241(6) claims for injuries when a fire extinguisher on an unsecured beam 20′ above him fell on his head as he was backfilling a foundation as the fire extinguisher ‘was not a material being hoisted or a load that required securing for the purposes of the undertaking at the time it fell’ for §240 and industrial code §23-1.7(a)(1) was inapplicable for §241(6) where it was not an area ‘normally exposed to falling material or objects.’ Flores v Fort Green Homes, LLC ✉ |
| Worker who was instructed to cut a piece of wood he could not reach while standing on the ground granted summary judgment on Labor Law §240(1) where the piece of wood he cut fell, striking his leg and the A-frame ladder he needed to access the wood, causing both to fall. Cevallos v WBB Constr., Inc. ✉ |
| American Legion, which sponsored the youth baseball league whom plaintiff alleged was responsible for his sexual abuse, granted dismissal of Child Victims Act claims against it on proof it had no control over the team or league, establishing it did not owe plaintiff a duty of care. Plaintiff failed to show that facts necessary to oppose the motion could be obtained through discovery. Hansen v New York Archdiocese ✉ Comment: The same reasoning and results in 3-similar cases against the same defendant. Manfredonia v Babe Ruth League, Inc.; Morey v Babe Ruth League, Inc.; Morrison v New York Archdiocese. |
| Marist brothers’ motion to dismiss Child Victims Act claims for sexual abuse at a summer camp in NH in 1986 as barred by statute of limitations on the argument that CPLR §214-g does not apply to acts outside of NY denied where plaintiff was a NY resident at the time and §214-g applies to NY residents wherever the acts took place. Pesola v St. Mary ✉ |
| Lower court improperly deemed defendants’ motion to dismiss as a motion for summary judgment where it did not give notice of its intent to do so and the parties did not treat it as a motion for summary judgment. For the sake of judicial economy, the Court addressed the motion to dismiss where it was fully briefed and dismissed the action against the lessor of the vehicle on the Graves Amendment by the agent’s employee’s affidavit that it was in the business of leasing vehicles, laying a foundation for the lease, and establishing the lessee not the lessor had the sole obligation to maintain and repair the vehicle. Dismissal granted in favor of company that held title to the vehicle as it was not an owner for VTL §388 since its possession of a security interest only makes it an out of possession owner. Out-of-state employee’s affidavit properly considered without a certificate of conformity where it substantially conformed to NY statutory requirements. Khan v Vasilenko ✉ |
| Defendant which ran carnival where injured-plaintiff tripped over cables running across parking lot failed to meet burden for summary judgment without showing the condition was not inherently dangerous, even if it was open and obvious. Mozlin v Village/Town of Mount Kisco ✉ |
| NYCHA failed to meet burden of showing it lacked constructive notice by building caretaker’s testimony the stairs where plaintiff slipped and fell on urine were routinely cleaned and inspected without proof of the last inspection/cleaning before the accident. Proof of general cleaning procedures is insufficient to eliminate question of constructive notice. Ortiz v New York City Hous. Auth. ✉ |
| Plaintiff granted summary judgment on dash cam video and testimony of both drivers establishing that he was attempting to make a right-hand turn from the right hand turn lane went defendants’ vehicle made a right-hand turn from the left of plaintiff’s vehicle and struck him, establishing defendant-driver failed to keep a proper lookout, and departed from his lane and made a right hand turn when it was unsafe to do so. Defendants’ argument that plaintiff’s expert’s affidavit should not have been considered where it was not submitted before filing the Note of Issue rejected as it was timely when considering the Covid tolls. Williams v Morse ✉ |
| Plaintiff granted summary judgment on liability by her affidavit that she was stopped in traffic on the LIE when her vehicle was rear-ended by defendant’s vehicle and defendant’s claim plaintiff may have stopped short and told him that she stopped to let another car merge in front of her did not provide a nonnegligent explanation. Plaintiff’s affidavit failed to provide sufficient details for dismissal of comparative fault defense. Fischetti v Simonovsky ✉ |
| Defendants failed to meet their burden for summary judgment on serious injury where one of their experts conceded plaintiff’s lumbar injuries were caused by the accident. Johnson v Dambreville ✉ |
| IF YOU MUST READ (0 summaries) | |||
| MUST READS | NOTEWORTHY | ||