November 1, 2022 | Vol. 337

(7 summaries)

Child Victims Act   Discovery   Privilege   Hearing  

Second Department
Lower court improvidently denied defendant family center’s unopposed motion for a hearing to determine discoverability of confidential portions of former foster child’s records in Child Victims Act case and remitted for hearing. Former foster children are generally entitled to copies of their records except for portions that would reveal identities of other foster children, biological parents, in some cases siblings, and other matters a family center may deem confidential and courts are directed to utilize specific procedures to determine their discoverability. Cowan v Nassau County Dept. of Social Servs.    

Child Victims Act   Negligent Supervision   Negligent Hiring   Motion to Dismiss   Notice   Foreseeability  

Second Department
Family service that referred plaintiff to a youth mentor who sexually abused him when he was 10-12 years old entitled to dismissal where Complaint failed to sufficiently allege it knew or should have known of mentor’s propensity to commit wrongful acts, necessary to establish foreseeability. Fuller v Family Servs. of Westchester, Inc.    

Motion to Dismiss   Assault   Emotional Harm   Personal Juridiction  

Second Department
Motion to dismiss by MMA fighter Connor McGregor and his Dublin company granted only to dismiss negligence and negligent infliction of emotional harm claims of plaintiff struck by a hand truck thrown at the bus plaintiff was on. New York does not recognize a cause of action for negligent assault and all of the allegations were of McGregor’s intentional conduct. Intentional infliction of emotional harm claim not dismissed where complaint alleged extreme and outrageous conduct resulting in injury.

Company’s motion to dismiss for lack of personal jurisdiction denied where allegations that the assault was part of a publicity campaign to promote a fight and which the company participated in were sufficient to allege McGregor was acting as an agent for the company in committing a tort in the state of New York raising an issue on long arm jurisdiction. Chiesa v McGregor    

Serious Injury   Emotional Harm  

Second Department
Plaintiff raised issues of fact on whether her psychological injuries which include PTSD from the MVA were serious injuries under the permanent consequence and significant limitation categories. Defendants’ experts did not eliminate all questions of whether these injuries met the serious injury definition where they opined only on orthopedic and neurological conditions. Lee v WC Contr. Servs., Inc.    

Strike Answer   CPLR § 3126   Discovery   Willful/Contumacious   Raised For First Time  

Second Department
Plaintiff’s motion to strike defendants’ Answers under CPLR §3126 for failing to appear for depositions on 3 court-ordered dates and an additional date granted where defendants neither denied nor offered an excuse for their repeated failure to comply from which willful/contumacious intent can be inferred. Argument that plaintiff failed to include a good faith affirmation not considered where raised for the first time on appeal. Galarza v 25 Hope St. Assoc., LLC    

Construction Liab.   Amend Complaint  

Second Department
Plaintiffs motion to amend Complaint to add individual owners of defendant modular home company after their depositions providently denied as devoid of merit where there were no allegations sufficient to show the individual principles exercised complete domination of the company or how they used their domination over the company to injure the plaintiff during construction of the home where he was injured. Ruland v Leibowitz    

Notice of Claim   Reasonable Excuse   Actual Knowledge  

Second Department
Petition to serve late Notice of Claim on village 7-months after petitioner tripped on a curb/driveway/street defect denied as counsel’s failure to ascertain the correct municipal entity did not provide a reasonable excuse for failure to timely serve a Notice of Claim and petitioner made no effort to show village acquired actual notice within 90-days. Matter of Hernandez v Incorporated Vil. of Val. Stream    

Comment: A timely Notice of Claim was served on the County, the incorrect party.
(12 summaries)

Malpractice   Duty   Accepted Practice   Causation   Appealable Order  

Second Department
Bariatric surgeon granted summary judgment dismissing claims related to gastrointestinal issues that he referred patient to gastroenterologist for and directed her to return to that specialist when further symptoms appeared as referring doctors are only liable for their own injury producing conduct. Gastroenterologist granted summary judgment on proof he ordered test for c-diff infection and plaintiff failed to get the test.

The Court did not have authority to review lower court’s subsequent order denying reargument under CPLR §5517(b) as denial of reargument is not appealable. Messina v Rivera    

Labor Law §240   Scaffold   Sole Cause   Recalcitrant Worker  

First Department
Proof that scaffold plaintiff was working on collapsed for no apparent reason was sufficient for summary judgment on Labor Law §240(1). Defendants failed to raise issue on sole proximate cause with WC C-2 form that stated collapse “appeared” to be due to plaintiff failing to lock pins as it was not signed, authenticated, and did not identify the source of the statement, even though plaintiff waived any hearsay objection by relying on the report himself, because it did not establish the pins were in fact not locked and, in any event, failing to lock the pins would be only comparative fault. There was no proof plaintiff was instructed and knew he was required to lock the pins and get off the scaffold as it was moved necessary to establish a recalcitrant worker defense. Pirozzo v Laight St. Fee Owner LLC    

Labor Law §241   Labor Law §200   Industrial Code   Create Condition   Notice   Experts  

First Department
Defendants denied summary judgment of Labor Law §241(6) claim of worker whose foot was crushed when coworker moved the unguarded mast climber scaffold he was on under the integral-to-the-work defense as the poof did not show a protective enclosure could not have been erected before the accident and conflicting expert opinions raised issues of the application of industrial code §§ 23-1.22(c)(2)(safety railing) and 23-9.2(a)(maintenance of power equipment) or (d)(protection of moving parts). Defendants failed to eliminate questions of whether the tower was a dangerous condition and whether they created or had notice of a dangerous condition on the Labor Law §200, and common law negligence claims. Sinai v Luna Park Hous. Corp.    

Labor Law §240   Scaffold   Experts   Conclusory   Hearsay  

First Department
Plaintiff’s testimony that platform of baker scaffold he was working on fell through frame was sufficient for grant of summary judgment on Labor Law §240(1). He was not required to identify prior problems with the scaffold and length of time he stood on scaffold had no bearing on liability. Defendants’ expert’s conclusory opinion that plaintiff’s version of accident was physically impossible insufficient to raise an issue without establishing the expert inspected the actual scaffold involved, that it was in the same condition as on the date of the accident, and expert’s reliance on a hearsay statement could not defeat summary judgment. Santos v Monadnock Constr. Inc    

Motion to Dismiss   Governmental Function   Special Duty   NYC  

Second Department
NYC’s motion to dismiss for failure to state a cause of action granted where plaintiffs alleged negligent prehospital care by EMS but failed to allege facts to establish a special duty. Ambulance and EMT responses to 911 calls are governmental functions and liability can only be predicated on showing the responders assumed a special duty greater than that owed to the general public. Boland v City of New York    

Malpractice   Accepted Practice   Causation   Experts   Conclusory   Speculation  

First Department
Osteopath granted summary judgment dismissing claim of patient who fell when left unattended on expert opinion that his mobility plan did not depart from accepted practice and since it required close-contact supervision during mobility, the mobility plan could not be a cause of the accident. Plaintiff’s expert’s conclusory and speculative opinion failed to raise an issue in opposition. Sloan v Lawrence Nursing Care Ctr., Inc.    

Premises Liab   Notice   Last Inspection   Warnings   Comparative Fault  

First Department
Plaintiff met burden for summary judgment for fall on stairs with non-party witnesses’ testimony that bottom of handrail plaintiff reached for had broken off weeks before accident and was not repaired, and testimony of building manager and 3rd-party handyman that there were no regular inspections of the handrail which had not been inspected for at least a year before plaintiff’s fall. Defendants failed to raise an issue in opposition. Plaintiff’s failure to notice the bottom of the handrail broken off when she used the handrail the day before did not establish defendants’ lack of constructive notice and her awareness and complaints that it was loose for 8-months before the accident was not proof that she knew it had broken off. Knowledge that it had broken off would in any event only eliminate the duty to warn, not the duty to maintain it in a reasonably safe condition, and would go only to comparative fault. Defendants’ claim they had repaired the handrail rejected where they could not give details of the alleged repair or provide an invoice and cancelled check. Young v 1530 Rosedale Partners, LLC    

Premises Liab   Stairs   Notice   Recurring Condition   Last Inspection  

First Department
Landlord granted summary judgment where plaintiff slipped on wet substance on stairs and porter testified area was cleaned less than 3-hours before the accident and there were no complaints of a wet condition on the stairs that morning. Defendant was not required to submit a written schedule or log. Plaintiff failed to raise an issue in opposition without proof of who created the condition and when, that the recurring condition was routinely left unaddressed, or that defendant’s cleaning routine was manifestly unreasonable. Hartley v Burnside Hous. Dev. Fund Corp.    

MVA   Bus   Survelliance Video  

Second Department
NYCTA and bus driver prima facie showed plaintiff violated VTL §1128(a) by unsafely merging into lane but plaintiff raised an issue on whether bus driver also violated VTL §1128(a) by her deposition testimony. Bus video did not conclusively show bus driver was free from fault. Ferguson v City of New York    

Notice   Comparative Fault  

First Department
Boat guest granted summary judgment on his and fellow passenger’s testimony that defendant boat-owner instructed other passenger to engage anchor windlass (winch to hoist anchor) without first checking to make sure plaintiff’s hand was not near the windlass which had malfunctioned. Plaintiff was not required to prove freedom from comparative fault for summary judgment. Defendant’s testimony he could not recall who instructed the other passenger to engage the windlass and claim plaintiff may have known it malfunctioned on prior occasions was insufficient to raise an issue in opposition. Manganiello v Vitanza    

MVA   Rear End   Serious Injury   BP   BP  

Second Department
Defendant’s cross appeal dismissed as he was not aggrieved by order dismissing case on serious injury but considered by appellate court as an alternative argument for affirmance. Defendant failed to meet burden for summary judgment where different versions of accident in defendant’s and plaintiff’s EBTs left questions of whether accident was a sideswipe when plaintiff changed lanes or a rearend collation. Defendant failed to meet burden for summary judgment on serious injury without eliminating questions on 90/180-day category alleged in BP. Despinos-Cadet v Stein    

MVA   Rear End   Notice of Claim   Estoppel  

First Department
MTA granted summary judgment on undisputed proof that only Notice of Claim was served on MTA and they did not own the vehicle which rearended plaintiff or employ the driver of that vehicle. Equitable estoppel inapplicable where MTA did not represent they were appearing for Triborough Bridge and Tunnel Authority or their driver and they notified plaintiff they did not own the vehicle or employ the driver. Cruz v Ajim    

(1 summaries)

Premises Liab   Notice   Last Inspection   Experts  

First Department
NYCHA granted summary judgment dismissing claim of person who slipped on wet or slippery substance on stairs on proof it had a reasonable inspection and cleaning practice in place to address such conditions on the day of the accident. Plaintiff’s expert’s opinion regarding coefficient of friction failed to raise an issue in opposition as it did not dispute lack of constructive notice. The Court does not give the details of the proofs. Morrison v New York City Hous. Auth.    

About Matt McMahon

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