Battery Set Aside Verdict
 The court uses this battery case to clarify the difference between the tests necessary to set aside a verdict as against the weight of the evidence or where the evidence was insufficient, as a matter of law.
Plaintiff, a longtime friend of the defendant’s then wife called defendant and made threats regarding defendant’s treatment of his then wife. Defendant drove 20 miles to the plaintiff’s home with a stated purpose, according to one witness, to confront the plaintiff and physically assault him. Conflicting testimony showed that when the defendant got to the plaintiff’s house he came out of his truck with a bat, that plaintiff swung a maul,l and ordered his dog to attack the defendant, and that defendant struck the plaintiff with the bat. Defendant’s story was that he only intended to talk to the plaintiff and retrieved the bad only after seeing the plaintiff with the maul.
During the first trial the jury was instructed on self-defense and the issue of initial aggressor and returned a verdict in favor of the defendant, finding that he was not the initial aggressor. The Appellate Division reversed finding that the jury’s conclusion was unreachable on any fair interpretation of the evidence and remanded for a new trial. During the second trial the Supreme Court felt restrained not to give the self-defense charge by the Appellate Division’s decision and the jury returned a verdict in favor of the plaintiff.
When it is determined that a verdict does not comport with the weight of the evidence the matter should be remitted for a new trial on all issues. In this case that would have meant including the self-defense and initial aggressor issues. To find that the evidence was insufficient as a matter of law, the appellate court must find that the verdict was “utterly irrational.” The Appellate Division’s initial decision, finding that the result could not be reached on any fair interpretation of evidence, did not employ the “utterly irrational,” test and, therefore, it could not have been found as a matter of law that the defendant was not the initial aggressor. Since the utterly irrational test is a question of law, the Court of Appeals was able to review the question and found that the jurors’ conclusion in the first trial was not utterly irrational based on the conflicting testimony and remitted to the trial court for a new trial on all issues, including self-defense and initial aggressor. Stacy S. Killon v. Robert A. Parrotta
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Med Mal Frye
 The lower court properly denied the defendants’ motions for summary judgment and ordered a Frye hearing on the question of whether a neuroblastoma was detectable on a sonogram at 30.9 weeks based on literature generally accepted in the medical community. Defendants’ experts’ affirmations conflicted with plaintiff’s experts’ affirmations which were based, in part, on peer-reviewed articles showing that routine prenatal sonograms had detected neuroblastomas. The purpose of the Frye hearing would be to determine if those articles were generally accepted in the medical community. There was one dissent. Sepulveda v Dayal
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Med Mal Set Aside Verdict
 After the jury announced it had a verdict, the court officer, who later testified at a hearing called by the court, pointed, without speaking, to several items on the verdict sheet which he thought were filled out in error. The jury continued their deliberations and announced their verdict in open court which the court found inconsistent. The court instructed the jury to return to deliberations and follow the instructions on a fresh jury sheet. They then returned a verdict in favor of plaintiff and, after the court officer reported his actions to the court and a hearing was held, defendants moved to set aside the verdict and to reinstate the original verdict which, according to the court officer’s recollection, was for the defendant. The Appellate Division modified the lower court’s order setting aside the verdict and reinstating the initial verdict in line with the court officer’s testimony, instead ordering a new trial. For a verdict to be recognized as valid and final it must be pronounced and recorded in open court. The court officer’s recollection could not be substituted for this requirement. Kitenberg v Gulmatico
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Duty Foreseeability Intervening Cause
Plaintiff, a spectator at a youth hockey game, was injured while trying to break up a fight between two spectators after the game was over. Plaintiff sued among others, the Rome Youth Hockey Association who rented the arena, alleging that fights by the players on the ice during the game put it on notice of the potential for violence in the stands after the game, and for failing to enforce its internal policy of zero tolerance which required on-ice officials to remove spectators who threatened or engaged in physical violence. Defendant, Rome Youth Hockey Association’s motion for summary judgment was denied by the trial court on the ground that the trier of fact could find that the incidents on the ice made violence by the spectators after the game reasonably foreseeable despite the fact that there was no history of violence with spectators at this or other games. The Appellate Division affirmed, the Court of Appeals reversed.
Rome Youth Hockey Association owed a duty to protect spectators against foreseeable harm. Given the lack of a prior history of violence by spectators at that game, or any other games, there was no foreseeable risk and, therefore, there could be no breach of a duty. The associations internal “zero tolerance” rule is not a basis for imposing a higher duty then reasonable care and a general awareness of violence by spectators throughout the country does not give rise to foreseeability by spectators at an arena with no prior history of violence. Raymond Pink v. Rome Youth Hockey Association, Inc.
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Notice of Claim Indemnity Motion to Dismiss
Defendant, County Sheriff in charge of inmates, moved to dismiss for plaintiff’s failure to serve a notice of claim prior to commencing the action. The lower court granted the motion on the ground that the county was “statutorily obligated” to indemnify the sheriff under a prior resolution. The Appellate Division reversed and reinstated the complaint finding that the resolution relied on by the lower court was adopted to substitute the county as the insurer, under a collective bargaining agreement, for the insurance company due to escalating premiums.
The County Sheriff in charge of inmates had a duty of reasonable care to protect the plaintiff inmate from dangers even by fellow inmates which were reasonably foreseeable. The complaint alleged that the sheriff knew or should have known of the dangers of sexual assaults by other inmates, including the inmate who allegedly raped the plaintiff twice in the shower within a week, and should have taken steps to protect the plaintiff. The Court of Appeals agreed with the Appellate Division that the resolution relied upon by the county sheriff was not a statutory obligation to indemnify, as required by general municipal law §50-E, but instead the county’s decision to take over as the insurer due to skyrocketing premiums. In the resolution, the county specifically acknowledged that it could not, under the New York State Constitution, obligate itself to indemnify the defendant sheriff and, therefore, simply assumed the role of insurer. Adam Villar v. Timothy B. Howard, Erie County Sheriff
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Med Mal Missing Witness Charge Set Aside Verdict
After verdict for defendants in medical malpractice action where plaintiff’s decedent presented to the emergency room and internist with complaints of chest tightness radiating into her throat and was treated for symptoms of an allergic reaction to a medication she had just started taking, the lower court granted the plaintiff’s motion to set aside the verdict as against the weight of the evidence and in the interest of justice for the court’s perceived error in not granting a missing witness charge as to one of the defendants who did not testify, the motion for which was made after the close of all evidence. The appellate court reversed and reinstated the verdict finding that there was no error in denying the motion for a missing witness charge since both plaintiff and defendant had indicated they would call her to testify and the motion was not made until after the close of all evidence. The conflicting opinions of plaintiff’s and defendants’ experts required determinations of credibility which were within the jurors province and should not be disturbed. Russo v Levat
Comment: A good reminder that once a party is aware that the necessary witness will not be called they must immediately inform their adversary and the court that they will be seeking a missing witness charge. |
Defamation
Plaintiffs, employees of the Cheetah Club and management of a talent agency which provided talent to the Cheetah Club sued CBS and several reporters regarding stories that the Cheetah Club was one of the strip clubs raided by federal authorities and believed to be involved in a human trafficking ring with the Bonnano and Gambino crime families, bringing Russian and Eastern European women into the United States, arranging for sham marriages, and requiring them to dance in strip clubs. Defendants moved to dismiss the claims under CPLR 3211(1) and 3211(7) which was granted by the Supreme Court, affirmed by the Appellate Division, and affirmed by the Court of Appeals with one dissent.
Plaintiffs in a defamation action must prove that the allegedly defamatory statements is “of and concerning” them. The statements made by CBS did not mention any individuals or refer to an identifiable group of employees. Therefore, the statements were not “of and concerning” the individual plaintiffs and were properly dismissed. Three Amigos SJL Rest., Inc. v. CBS News Inc.
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Elevator Burden of Proof
Defendant, elevator maintenance company, with a maintenance contract, failed to show that it lacked knowledge of the condition and that it used “reasonable care to discover and correct the dangerous condition” as the exclusive maintenance company for the elevator. Plaintiff alleged that the elevator dropped suddenly and shook violently after the doors closed and there was proof that a similar accident occurred 12 days before. Griffiths v Durst Org. Inc.
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Premises Liab Elevator Workers Comp Defense
Employee of building manager who was injured in elevator was also considered an employee of the building owner since manager and owner operated as one company and, therefore, both defendants were entitled to summary judgment based on the exclusive workers comp remedy. The former owner had transferred the property 3 months before the accident which was sufficient time for the new owner to discover and cure any condition and was also entitled to summary judgment. Privette v Precision El.
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Labor Law §240 Labor Law §241 Elevator Industrial Code
Defendant entitled to dismissal of Labor Law §240(1) claim where worker was injured while riding an elevator in the building as an elevator is not a safety device for protecting a construction worker from gravity related risks under §240(1). Labor Law §241(6) claim alleging violation of industrial code general hazards provision §23-1.7(e)(tripping hazards) was properly pled and should not have been dismissed. Smith v Extell W. 45th St. LLC
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Labor Law §240 Sole Cause Recalcitrant Worker Ladder Feigned Issue
Plaintiff entitled to summary judgment on Labor Law §240(1) claim where he testified that he fell when trying to descend from a 6’ A-frame ladder that required him to stand on the top step. Plaintiff’s testimony that he could not use the 8’ ladder because there was not enough room to open it did not make him the sole proximate cause and the superintendent’s claim that there was sufficient room was belied by his prior testimony and deemed a feigned issue. Site safety manager for another contractor testified that she did not have authority to direct the plaintiff not to work and the evidence showed that the plaintiff had made prior complaints about debris in the area and had no reason to believe that he was instructed not to work because of the debris. Saavedra v 89 Park Ave. LLC
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Premises Liab Unknown Cause Slip/Trip De Minimus
While a defendant may show entitlement to summary judgment by showing that plaintiff cannot identify the cause of the accident, which would render any claim that the defendant’s negligence caused the accident speculative, defendant submitted the plaintiff’s EBT transcript which showed that she was able to identify the height differential between two concrete slabs as the cause of her accident. There is no rule holding that specific dimensions is a trivial defect but photographs which accurately depict the condition taken in light of the time, place, and circumstances of the accident may show the defect to be trivial. Considering these factors, the court found the defect trivial and not actionable even though defendant did not provide the dimensions of the elevation difference. Baldasano v Long Is. Univ.
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Med Mal Accepted Practice Expert Aff
Plaintiff’s expert’s affirmation raised a triable issue of fact in response to defendant’s prima facie showing of entitlement to summary judgment with opinion that rehab facility should have done DVT/PE work up, which was not done at the prior medical facility, on patient who was a high risk for DVT/PE. Kitt v Okonta
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Med Mal Expert Aff
Defendant nursing home made out a prima facie case for summary judgment through its expert’s affidavit opining that the fall prevention measures in the patient’s care plan comported with accepted practice and that the nursing staff timely responded to the patient’s bed calls. Plaintiff’s expert’s affidavit, however, raised a triable issue of fact that the bed rails, which under the care plan were to remain up at all times while the patient was in bed, were in fact down at the time that she fell out of the bed (for the eighth time in eight months) and that the nursing staff did not timely respond to her calls. Failure to follow directions to keep bed rails up in the care plan creates a question of fact and defendant’s motion should have been denied. Petralia v Glenhaven Health Care Org.
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MVA Red Light
Plaintiff entitled to summary judgment on his testimony and affidavit that he entered intersection with green light and defendant entered intersection through a red light and struck the plaintiff’s vehicle within one second. Defendant who did not appear for deposition was precluded from submitting an affidavit and unsworn MV-104 form was inadmissible with no reasonable excuse for not being able to submit it in admissible form. Plaintiffs testimony showed defendant’s fault and plaintiff’s freedom from fault since he had only a second to react. Jiang-Hong Chen v Heart Tr., Inc.
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Labor Law §240 Sole Cause Slip/Trip
Plaintiff who slipped on grease as he walked down 5’ ramp from top of building to scaffold was entitled to summary judgment on Labor Law §240(1) for failure to provide adequate safety device to protect against the risks of a significant elevation differential. Evidence that other ramp was not long enough to reach the scaffold and that plaintiff did not have enough time to build a proper ramp before meeting the crane that was coming to assist in dismantling the scaffold eliminated any claim that he was the sole proximate cause of his injury. Valente v Lend Lease (US) Constr. LMB, Inc.
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Assumption of Risk Open/Obvious
Gym member familiar with “Smith machine” overcame defendant’s proof of prima facie entitlement to summary judgment with expert affidavit opining that the machine was defective and other gym member’s affidavit stating that he had previously complained about the machine which was frequently out of order. Nonparty’s affidavit was originally submitted unsworn but a sworn statement with an explanation that he was out of state at the time of the original affidavit was sufficient. Barbuto v Club Ventures Invs. LLC
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Wrongful Death Respondeat Superior Negligent Hiring Motion to Dismiss
The lower court improperly denied the motion to dismiss because of some differences in the caption, instead of on the merits. On the merits the cause of action for negligent hiring must be dismissed as defendant employer admitted that the driver employee was acting within the scope of his employment. Where respondeat superior applies, negligent hiring does not lie. The causes of action brought on behalf of the wife individually, even though she had been named administratrix, and the four children should have been dismissed as a wrongful death claim must be brought by the personal representative of the estate and not the individual distributees. The court granted permission to replead in the name of the estate. Ambroise v United Parcel Serv. of Am., Inc.
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Premises Liab Out of Possession Premature Motion
Lower court’s denial of defendant’s motion for summary judgment on grounds that it was premature was reversed where landlord showed that it was an out of possession owner with no knowledge or duty to supervise patrons’ consumption of alcohol. Landlord had no employees on the premises at the time of the incident. Arreaga v 112 Dyckman Rest. Inc.
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Assumption of Risk
Man and woman who rented canoe for trip on a tidal river assumed the risk inherent in that activity if they were aware of the risks. Defendant’s proofs showed that plaintiffs were aware of the risks of canoeing in a tidal zone, including the risk of being stuck at low tide, and were aware of the tide times. Defendant’s employee’s comment that they could complete the trip, which usually took 2 1/2 hours, before low tide would occur in 4 hours did not increase the risks inherent in the activity or cause the plaintiff’s to slow their travel. Ferrari v Bob’s Canoe Rental, Inc.
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Prior Written Notice Bicycle NYC Speculation
NYC was entitled to summary judgment on proof that it did not have prior written notice of the defect which allegedly caused the plaintiff’s bicycle accident. Plaintiff’s attempt to show that a 2010 inspection report was a “written acknowledgment” of the defect, under Administrative Code §7-201(c)(2)(pothole law) did not raise a triable issue of fact as the defect in the inspection report was at a different location. Argument that issuance of a permit showed that NYC created the defect was speculative. Ragolia v City of New York
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MVA Bus Comparative Fault
Plaintiff who testified that he was struck by defendant’s bus was not entitled to summary judgment because he failed to show, as a matter of law, that he was using reasonable care when crossing the street. Since plaintiff failed to meet his burden, defendant’s opposition need not be reviewed. Bus driver testified that he stopped the bus in the crosswalk and saw the plaintiff walk into the side of his bus. Mirza v New York City Tr. Auth.
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MVA Comparative Fault Burden of Proof
Plaintiff entered intersection without traffic control device. Defendant entered intersection from perpendicular street against stop sign. Plaintiff proved defendant was negligent but failed to exclude the possibility that he may also have been negligent. Because there can be more than one cause of an accident, plaintiff was not entitled to summary judgment. Padilla v Biel
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Premises Liab Dangerous Condition
Defendant made out its prima facie entitlement to summary judgment by showing that the alleged defect, a raised shower stall, was not a dangerous condition. It is not necessary to prove the violation of a specific code or rule for common-law negligence, but plaintiff failed to raise a triable issue in response to the defendant’s showing that the condition was not dangerous. Alexis v Motel Oasis
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Serious Injury Expert Aff
Defendants made out prima facie entitlement to summary judgment on serious injury by neurologist’s affirmation that there was no causally related injuries and full ROM. Defendant’s orthopedists affirmation finding minor limitations of ROM did not change the result. Plaintiff acknowledged that she had been found disabled as a result of a cervical spine injury 6 years before the accident, confirmed by an MRI at the time, and her orthopedist failed to explain how that condition was exacerbated by the current accident or show that she had injuries different from the prior accident. Bobbio v Amboy Bus Co. Inc.
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School Supervision
Defendants entitled to summary judgment on proof that plaintiff’s thumb injury was the result of a sudden, unexpected collision during a regularly played game of tag and that no amount of supervision could have avoided the incident. Chynna A. v City of New York
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Venue
Motion to change venue from Queens County, where defendant driver resided, to Orange County, where accident occurred, for convenience of witnesses should have been denied. Defendant failed to set out the facts that the witnesses were expected to testify to, why their testimony was material, and made only conclusory claims that they would be inconvenienced by having to travel to Queens County. Traveling, in and of itself, does not establish inconvenience sufficient to change venue. Ambroise United Parcel Serv. of Am., Inc.
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Labor Law §240 Labor Law §240 Labor Law §200 Homeowner Exception
Second Defendant failed to exclude all triable issues of fact regarding the homeowner’s exception as there existed a question as to whether the property, owned by a trust of which the defendant was the sole trustee, was being renovated for residential purposes. On the common-law and Labor Law §200 claims, there remained questions of fact and both the defendant’s motion and plaintiff’s cross-motion should have been denied. Chorzepa v Brzyska
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MVA Rear End Nonnegligent Explanation Sudden Stop
Plaintiff was entitled to summary judgment where evidence showed that she remained stopped at a red light after it turned green to allow a truck to enter from a parking lot. Defendant’s testimony that plaintiff had begun to move and then stopped suddenly did not provide a nonnegligent explanation as defendant admitted that he saw the truck coming out of the parking lot before the accident and was unable to stop before hitting the plaintiff’s vehicle. A motorist is required to maintain a safe distance under prevailing conditions to stop before hitting the car in front of him, even if the car stops suddenly. Waide v ARI Fleet, LT
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Premises Liab Wet Floor Slip/Trip Create Condition Notice
Grant of summary judgment to plaintiff on her testimony that she and her daughter were in the store for 15 minutes and that she did not see the puddle in the rear of the store near the register before she fell, and daughter’s affidavit that they were in the store for 45 minutes and that she saw the puddle near the register when they first entered the store, was reversed as there were triable issues of fact from the conflicting stories. In addition, plaintiff failed to prove, as a matter of law, that she was free from fault, precluding summary judgment. Hernandez v Conway Stores, Inc.
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False Arrest Probable Cause
Plaintiff’s action for false arrest properly dismissed as there was probable cause for the arrest, including 3 controlled drug buys and constructive possession of drugs in the plaintiff’s basement which she could access from her 1stt floor apartment without a key. Boyd v City of New York
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Serious Injury
Defendant’s motion for summary judgment on serious injury should have been denied since they failed to address the claims of permanent consequential, significant limitation, and 90/180 days alleged in the BP. One defendant’s motion on liability, denied as academic, was remitted to the lower court for reconsideration. Mueckenheim v Smith
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