May 9, 2023 | Vol. 364

(4 summaries)

Motion to Dismiss   Workers Comp Defense  

Second Department
County probation officer’s action against sheriff’s office and 3-deputy sheriffs who conducted tactical training session where her hearing was damaged from training handgun being fired near her barred by workers compensation exclusivity clause. County and sheriff offices are joint employers for collective bargaining and, the Second Department found by extension, for workers compensation where their employees are covered under the same policy. Rys v Dubois    

Discovery   Settlement   NYC  

First Department
Lower court providently denied motion to compel NYC and Con Ed, defendants in gas explosion cases, to disclose a liability sharing agreement between them after an in camera inspection as agreement was not material and necessary to plaintiffs’ case and was not an impermissible “Mary Carter agreement” that would undermine the adversarial process by collusion. Matter of Barrios v Consolidated Edison Co. of N.Y., Inc.    

Comment: Mary Carter agreements are secret agreements to limit the liability of less than all defendants who will then feign a defense to reduce a jury’s finding of their share of negligence and to increase the share of the remaining defendants.

Labor Law §240   Labor Law §241   Labor Law §200   Industrial Code   Gravity Risk   Control   Agent  

Second Department
Owners/GC granted summary judgment dismissing Labor Law §240(1) claim where plaintiff fell into a hidden/uncovered manhole as the fall was not from an elevation-related hazard protected by §240, even though it was a gravity risk. Plaintiff granted summary judgment on Labor Law §241(6) predicated on §23-1.7(b)(1)(i)(hazardous opening) against owners/GC where the manhole was large enough for a person to fit through.

Owners/GC and plaintiff denied summary judgment on Labor Law §200 and common-law negligence claims where questions remained of whether owner/GC should have discovered the manhole was uncovered. Drainage/manhole subcontractor granted summary judgment dismissing §§ 240(1), 241(6) claims on proof it completed its work weeks before plaintiff’s fall and it could not be considered an agent of the owner/GC as it did not control the worksite at the time of the incident. Bonkoski v Condos Bros. Constr. Corp.    

MVA   Turning Vehicle   Intervening Cause  

Second Department
While moving defendants assumed a duty of reasonable care by signaling another vehicle to proceed out of a driveway, that vehicle driver’s action of crossing into an oncoming lane to make a left hand turn was an intervening cause entitling the signaling defendants to summary judgment dismissing the claim against them. Dyakiw v Salian    

(17 summaries)

Premises Liab   Stairs   Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice   Motion to Dismiss  

Second Department
Petition to amend location of wet/broken stair where plaintiff fell to higher staircase than originally alleged in Notice of Claim (GML §50-e(6)) denied for failure to show it was a good faith error that did not prejudice NYCHA as there were no witnesses to the incident/condition and no one reported the incident to NYCHA to give it actual knowledge of the essential facts within 90 days. Plaintiff’s claim the condition was unchanged not a “satisfactory substitute” for NYCHA’s right to investigate.

Alternative relief to file a late Notice of Claim (GML § 50-e(5)) denied for failure to show actual knowledge, reasonable excuse for the delay, or a plausible argument that NYCHA was not prejudiced by the delay. Matter of St. Hilaire v New York City Hous. Auth.    

Comment: NYCHA’s motion to dismiss for failure to serve a Notice of Claim granted. St. Hilaire v New York City Hous. Auth.

Premises Liab   Strike Answer   Discovery   Willful/Contumacious   Experts   Reargument   Renew  

First Department
Motion by tenant-restaurant to strike Answer and cross-claims of building owner granted where owner’s ignoring series of court orders to appear for deposition was “dilatory and obstructive, and thus contumacious.” Appeal from denial of motion to reargue dismissed and motion to renew providently denied where non-party affidavit did not have facts not known at time of original motion and movant failed to give a reasonable excuse for not originally including it.

Restaurant manager’s testimony they made no repairs to the exterior stairs to the restaurant, saw no delivery people damage the threshold with hand trucks, and received no complaints of the condition met burden of showing it did not create or have notice that its metal door threshold was a defective condition but plaintiff’s unchallenged expert-architect’s opinions the threshold damage was consistent with hand truck impacts over the years that she observed during her examination 15-days after the accident, which should have been corrected as it was a hazardous condition to the means of egress, raised issues in opposition. Pigott v J.C. Happy Garden Corp.    

Default Judgment   Motion to Dismiss   Personal Juridiction   Service   Raised For First Time  

Second Department
Plaintiff denied default judgment and defendant granted dismissal for lack of personal jurisdiction where process server’s affidavit failed to demonstrate due diligence before affixing and mailing Summons and Complaint after 4-weekday attempts without explaining why the defendant would likely be there at those time, what efforts were made to confirm it was his residence, usual place of abode, or actual residence, or that service at his place of business was attempted. Defendant affirmed he was not served and last lived at the address of attempted service before the accident.

Arguments raised for the first time on appeal and dehors the record not considered. Prego v Bartkowski    

Malpractice   Accepted Practice   Causation   Experts  

Second Department
Moving defendants meet burden for summary judgment on expert opinions they did not depart from accepted practice or cause decedent’s injury from spinal dural arteriovenous fistula but plaintiff raised issues in opposition by expert opinions that defendant neurologist relied on a nondiagnostic test and failed to order additional tests, and that defendant radiologist departed by failing to interpret an MRI and report specific findings, both of which delayed the proper diagnosis. Revellino v Haimovic    

MVA   Rear End   Nonnegligent Explanation   Intervening Cause   Survelliance Video   Emergency Doctrine   Renew   Experts  

First Department
Plaintiff who pulled his disabled vehicle onto highway shoulder, called the second plaintiff who positioned her vehicle partially in the right lane to charge his battery, granted summary judgment against truck defendants that rear ended the second plaintiff’s vehicle, injuring both of them. Truck defendants failed to provide a nonnegligent explanation where the driver was speeding and the truck’s dash cam showed he was talking on his phone with an unobstructed view of plaintiffs’ vehicles, saw the vehicles 10-seconds before the accident but did not break, swerve, or honk. The emergency doctrine was inapplicable since the truck driver created the emergency. Second plaintiff’s parking partially in the right lane was at most comparative fault and not an intervening cause. Renewal providently denied where the new evidence would not have changed the result as it only went to the credibility of plaintiff’s expert, a collateral issue. Martinez v ITF LLC    

Labor Law §240   Ladder   Hearsay   Admissibility   Comparative Fault  

First Department
Plaintiff granted summary judgment on Labor Law §240(1) by his testimony that unsecured ladder he was climbing with 8-rolls of wire shifted, causing him to slip and fall. Defendants failed to raise issues by unsworn safety-manager’s report based on conversation with plaintiff that he slipped on one of the rungs as it did not conflict with plaintiff’s testimony and there was no proof the manager spoke plaintiff’s language or used and interpreter. Emails stating plaintiff slipped on the ladder also did not contradict plaintiff’s testimony and were inadmissible hearsay as were unauthenticated photographs of the ladder. Carrying rolls of wire on ladder was at most comparative fault, not a defense to §240. Sanchez v MC 19 E. Houston LLC    

Labor Law §240   Ladder   Sole Cause   Recalcitrant Worker  

Second Department
Worker injured when extension ladder he was on fell after coworker who had been holding it was called away granted summary judgment on Labor Law §240(1) for failure to provide an adequate safety device. Owner’s cross-motion for summary judgment on sole proximate cause, recalcitrant worker, and volunteer worker not covered by §240 denied without proof plaintiff was provided with or instructed to use an adequate ladder and plaintiff testified he was paid by his employer for the work.

Lower court improvidently searched the record and granted plaintiff summary judgment against shareholder, sued in his individual capacity. Lochan v H & H Sons Home Improvement, Inc.    

Premises Liab   Labor Law §240   Labor Law §200   Sidewalk   Snow/Ice   Industrial Code   Duty   Create Condition   Notice   Appealable Order  

First Department
Bank granted summary judgment dismissing Labor Law §200 and negligence claims of carpenter who slipped on ice on sidewalk outside bank as bank did not create the condition or make special use of the sidewalk and had no duty to maintain the sidewalk since §7-210 was inapplicable outside NYC. Labor Law §241(6) claim dismissed where the sidewalk was not a passageway/walkway under §§ 23-1.7(d), 23-1.7 (e)(2) or a working area under § 23-1.7(e)(2) as the work was solely inside the building.

Appeal from unopposed grant of summary judgment to GC dismissed as no appeal lies from an order granted on default. Brunet v JP Morgan Chase Bank N.A.    

Premises Liab   Sidewalk   Duty   Create Condition  

Second Department
A neighbor’s testimony that defendants whose business was across the street from cracked sidewalk plaintiff tripped on would direct 18-wheelers to back up onto the sidewalk in order to pull into their property across the street raised an issue of fact on whether they created the condition in opposition to those defendants’ prima facie showing that they owed no duty as they did not own, occupy, or control the sidewalk where plaintiff fell. Abramson v Janowski    

Construction Liab.   Amend Complaint   Prejudice  

First Department
Plaintiff, injured at a governors ball venue when struck by a steel beam, allowed to amend his Complaint to assert a claim against third-party defendants who did not dispute they had contracted to provide services at the venue in their proposed Answers as the amendment was not devoid of merit and the third-party defendants did not claim they were prejudiced by the motion which was filed within days of the Third-Party Complaint. Counsel’s verification of the proposed amendments sufficient as the contracts were attached to the Third-Party Complaint and, therefore, within the knowledge of counsel. Smith v Founders Entertainment LLC    

Premises Liab   Wet Floor   Strike Answer   Discovery  

Second Department
Building granted summary judgment on porter’s testimony that floor under revolving door was mopped every 20-30 minutes, establishing reasonable efforts to address tracked in rainwater and building is not required to constantly mop floor. Plaintiff’s motion to strike Answer for failure to respond to demand for additional EBT denied as witness originally provided who responded to the scene was reasonable. Price v BFP Tower C Co., LLC    

Premises Liab   Snow/Ice   Create Condition   Notice   Espinal  

Second Department
Property owners and snow contractor denied summary judgment for fall on ice in commercial parking lot where snow contractor failed to show piling snow on elevated area that melted down and refroze did not launch an instrumentality of harm under Espinal as alleged by plaintiff. Snow contractor’s testimony the owners instructed them to pile snow on elevated area left question of whether owners created the condition and testimony of owners’ engineer raised an issue on whether it had notice of water streaming down from piled snow. Tomala v Islandia Expressway Realty, LLC    

Assault   Motion to Dismiss   Notice of Claim   Vicarious Liab  

Second Department
Town’s motion to dismiss claim for assault by firefighters denied where it failed to show plaintiff did not adequately plead a cause of action for vicarious liability for its firefighters. Town, sanitation company, and sanitation worker granted dismissal of claims based on subsequent incidents as they were not included in the Notice of Claim and the pleadings did not claim the sanitation workers were involved in the incident contained in the Notice of Claim. Curry v Town of Oyster Bay    

Pothole Law   Prior Written Notice   Create Condition   Experts   Speculation   NYC  

Second Department
NYC granted summary judgment for fall in pothole on record searcher’s testimony there was only 1-prior written notice of a defect in the area which was on the double-yellow line and plaintiff testified she fell 2’ from the curb, as awareness of 1-defect does not give notice of a different defect in the area. Gas company granted summary judgment on testimony of consultant who searched their records that only work it did was not on area of pothole, establishing it did not create the condition, and open work permit did not raise an issue of fact. Plaintiff’s expert’s opinion that gas company or one of the non-moving defendants created the pothole was speculative. Schaum v City of New York    

Labor Law §240   Labor Law §241   1-2 Family Exception  

Second Department
Homeowners granted summary judgment dismissing Labor Law §§ 240(1), 241(6) claims of worker injured during construction on proof the home was used solely for residential purposes and, in any event, the construction work was solely related to the residential use of the property. Manfredo v Marvin & Mario Constr., Inc.    

Premises Liab   Wet Floor   Stairs   Warnings   Survelliance Video   Question of Fact  

First Department
Plaintiff denied summary judgment for fall on allegedly wet stairs on testimony and surveillance video showing defendant placed wet floor signs at each landing with an entrance door, the area was mopped more than an hour before the incident, and plaintiff testified he did not see water on the steps as he descended, raising questions of whether they were wet at the time of his fall. Perez v Twin Parks, L.P.    

Serious Injury   Experts   ROM   BP   Waiver  

Second Department
Defendant met burden for summary judgment on competent medical proof that plaintiff did not sustain serious injuries and plaintiff’s treating physician failed to raise an issue without specifying the method used to measure ROM. Plaintiff waived any issue on 90/180-day category alleged in the BP without addressing the issue in his appellate brief. Jinlan Gao v Jae K. Choi    

(3 summaries)

MVA   Pedestrian   There to be Seen  

Second Department
Defendant failed to meet burden for summary judgment where questions remained of whether she failed to see what was there to be seen before striking plaintiff-pedestrian who was crossing the street. The Court does not give the details of the proofs. Mehta v Keaveney    

Construction Liab.   Create Condition   Question of Fact  

Second Department
Defendant that did road repair near where plaintiff fell in a road depression denied summary judgment where questions remained of whether it created the condition. The Court does not give the details of the proofs. Paganica v Town of Brookhaven    

Arbitration   Uninsured  

Second Department
Carrier failed to meet burden for stay of uninsured arbitration where insurance code “000” on police report for vehicle that rear ended its insured did not identify alleged carrier of offending vehicle and DMV records submitted by carrier showed that carrier had canceled coverage before the accident. Matter of Progressive Cas. Ins. Co. v Persaud    

About Matt McMahon

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