November 10, 2020 | Vol. 235

MUST READS
(6 summaries)
NOTEWORTHY IF YOU MUST READ

Untimely   Appealable Order  

First Department

Plaintiff’s appeal dismissed as untimely where he did not appeal from so ordered transcript granting defendants summary judgment, served with notice of entry, but appealed subsequent short-form order granting same relief. Notice of Appeal from short form order was filed 1-month after time to appeal from so ordered transcript. de Lara Nunez v CCNY Constr., Inc.

Comment: A reminder that the time to file a Notice of Appeal cannot be extended.


Motion to Dismiss   Notice of Claim   Untimely   Court of Claims  

Second Department

Description that plaintiff fell on pathway in “Rockland Lake State Park in Rockland County” in Notice of Intention to Claim insufficient to identify area where plaintiff so that state could investigate rendering Notice of Intention to Claim invalid and did not extend time to file Claim, filed 1-year later, giving a more detailed description that was untimely without the extension. Claim dismissed on subject matter jurisdiction. Criscuola v State of New York


Assault   Motion to Dismiss   Statute of Limitations   Punitive Damages   Vicarious Liab   Public Health §2801-d  

First Department

First Department held that toll for sexual assaults in CPLR 213-c applies ‘to any party whose intentional or negligent acts or omissions are alleged to have resulted in the commission of the said conduct,’ not just the assailant, denying employer’s motion to dismiss and reinstating plaintiff’s claim for punitive damages. Issue of employer’s vicarious liability for assault not addressed on this appeal. Public health Law §2801-d claims dismissed as detoxification and rehabilitation facility is not governed by public health law. Gutierrez v Mount Sinai Health Sys., Inc.


Med Mal   Set Aside Verdict   Expert Aff  

Second Department

Plaintiff’s motion to set aside verdict on 2-inflammatory comments by defense counsel regarding plaintiff’s expert denied where there was no timely objection or request for curative instruction. Counsel is afforded wide latitude in commenting on evidence and criticisms of inconsistencies of plaintiff’s expert were fair comment, isolated, and not so prejudicial as to deprive plaintiff of a fair trial. Kulynska v Agayeva


Stay Arb  

Second Department

Rehab facility’s motion to stay all actions pending arbitration of wrongful death claim denied on finance director’s explanation that resident was unable to speak but gave consent by blinking twice for “no,” director signed arbitration agreement for resident as “unable to sign,” and that resident’s son who held power of attorney refused to sign which did not make out facility’s burden of showing “clear, explicit and unequivocal agreement to arbitrate.” Pankiv v Richmond Ctr. for Rehabilitation & Specialty Healthcare


Premises Liab   Elevator   3rd Party Contractor   Espinal   Intervening Cause   Foreseeability   Indemnity  

First Department

Building management company denied summary judgment where infant-plaintiff fell down shaft of freight elevator nanny opened with “drop key” left in condominium lobby for persons to open freight elevator door. Violation issued 3-months before accident for missing device to prevent shaft door being opened if elevator not at that level and allowing access to a drop key, which can only be used by the building owner and qualified elevator operator. Management company’s contract completely displaced owner’s duty to maintain elevator under Espinal and questions existed of whether the nanny justifiably relied on management company’s obligation to maintain elevator in a safe condition, whether they launched an instrumentality of harm by making the drop key available, and whether repairs after the violation were effectuated. Question of fact remained on whether infant plaintiff stepping into open shaft was an intervening cause or was a foreseeable risk of allowing access to the drop key where the door could be opened without the elevator present.

Management company not entitled to dismissal of common law or contractual indemnity claims of owner based on management company’s negligence but was entitled to summary judgment on elevator company’s contractual indemnity claim where there was no contract. XX v Dunwell El. Elec. Indus., Inc.

NOTEWORTHY
(16 summaries)
MUST READS IF YOU MUST READ

Med Mal   Set Aside Verdict   Materially Deviates   Causation  

Second Department

Defendants’ motion to set aside verdict in labor/deliver case as inconsistent, against weight of evidence, and materially deviating from reasonable compensation granted only to extent of reducing future pain/ suffering from $10 million to $3.5 million and reduction period for certain future economic damages from 90 to 45 years. Cost of private education for the infant and for certain future economic damages for 45 years was not speculative, but based on evidence at trial. Correa v Abel-Bey


Labor Law §240   Safety Devices   Sole Cause  

First Department

Proof that top step of recently constructed stairway that was plaintiff’s sole access to deck detached when plaintiff stepped on it made out entitlement to summary judgment on Labor Law §240(1). Defendant failed to show ladder plaintiff previously used, or other safety device, was readily available or provided adequate protection. The failure of stairway was clear violation of §240 and is “conceptually impossible” for such violation to occupy the same grounds as a claim of sole proximate cause. Rivas v Nestle Realty Holding Corp.


Building Security   Assault   Set Aside Verdict  

Second Department

Motion to set aside verdict finding motel owner 100% at fault for shooting in parking lot granted to the extent of reallocating fault 65%/35% owner/assailant. Lack of almost any security measures in light of history of criminal activity in parking lot made out prima facie case and verdict finding motel at fault was not against weight of the evidence. Carter v BMC-HOJO, Inc.


Sepulcher   Special Duty   Governmental Immunity   NYC  

First Department

NYC had a special duty to notify next of kin of decedent’s death so that they could exercise their right to the immediate possession and sacred burial of the remains, the right of sepulcher. Questions existed of whether NYC had documents identifying the next of kin and failure to do so would be a ministerial act not protected by qualified immunity, and not a discretionary act protected by qualified immunity. Williams v City of New York


Premises Liab   Slip/Trip   Sidewalk   Late Notice of Claim   Actual Knowledge   Reasonable Excuse   Renew   NYC  

Second Department

Notice of Claim, served 2.5 months after 90-day period, rejected by NYC as untimely, failed to give actual notice of essential facts within 90-days or a reasonable time thereafter and plaintiff failed to show a reasonable excuse for the delay. Former attorney’s lack of diligence in discovering NYC was proper party was not a reasonable excuse. Motion to renew providently denied where new facts would not have changed result. Matter of Suraty v City of New York


Labor Law §241   1-2 Family Exception   Control  

Second Department

Homeowners granted summary judgment of Labor Law §241(6) claim under 1-2 family exception. Aesthetic decisions and general supervision regarding the project are not sufficient control to take it out of the 1-2 family exception. Fraser v King


Premises Liab   Set Aside Verdict   Untimely   Waiver   Causation   Expert Aff   Speculation  

First Department

Plaintiffs’ failure to submit motion within time provided by court waived objection, raised before jury was disbanded, that verdict was inconsistent and issues of liability and causation were not inextricably interwoven. There were valid lines of reasoning for jury’s finding of no causation on defendant’s expert’s opinion that padding of pole would not have avoided or reduced injuries and jury could have found other causes, including child who pushed plaintiff into pole, to be cause of injuries. Madsen v Catamount Dev. Corp.


MVA   Dram Shop   Negligent Supervision   Comparative Fault   Raised For First Time  

Second Department

Plaintiff’s granted summary judgment on proof defendants’ decedent drove ATV while intoxicated in violation of VTL and parent/owner of ATV is vicariously liable. Plaintiffs are no longer required to show freedom of comparative fault for summary judgment. Uncle failed to meet burden for summary judgment of negligent supervision claim where questions remained of whether he agreed to supervise nephew and if supervision was reasonable, but granted summary judgment on negligently providing alcohol to minor claim as there is no such common law cause of action in New York. Aunt and uncle denied summary judgment on violation of county law prohibiting alcohol to minors where they addressed argument for the first time in a reply. Abtey v Trivigno


Construction Liab.   3rd Party Contractor   Espinal   Create Condition   Notice   Last Inspection  

First Department

Contractor denied summary judgment where plaintiff tripped while stepping from temporary concrete pathway to 6” lower tree well where footing for sidewalk shed was located and contractor’s witness could not describe condition on day of accident or last time area was inspected leaving questions of fact. Steele v New York City Hous. Auth.


Premises Liab   Slip/Trip   Wet Floor   Create Condition   Notice   Recurring Condition   Last Inspection   Expert Aff   Spoliation   Feigned Issue  

First Department

Supermarket granted summary judgment where injured plaintiff slipped and fell on 5″clear puddle in front of ice machine without streaks that neither injured-plaintiff nor spouse saw before fall and supermarket’s proof area was clear on inspection 1.5 hours before accident, it was not aware of any prior complaints or incidents, including no complaints by plaintiffs. Plaintiffs affidavit that they observed similar wet spots in the past was feigned issue that directly contradicted their testimony and plaintiffs’ experts’ opinions that it was caused by condensation and required mats according to industry standards rejected as speculative and standards cited were advisory without proof they were generally accepted in the industry. Velocci v Stop & Shop


MVA   Bus   Serious Injury   Expert Aff  

First Department

NYCTA denied summary judgment on conflicting versions of how accident occurred with witness testifying that bus tried to pass car as it pulled out of parking spot and struck rear panel when trying to cut back. Defendants’ accident reconstruction report did not eliminate all questions of fact where it did not rule out possibility of bus driver’s negligence playing some role in the accident.

Opinions of 2 treating doctors and no-fault IME doctor showed questions of fact on serious injury and defendants failed to refute plaintiffs statement that she had no medical conditions before accident or from subsequent accidents. Goldwire v New York City Tr. Auth.


Premises Liab   Slip/Trip   Sidewalk   § 7-210   Causation  

Second Department

Church granted summary judgment on proof the hole plaintiff tripped on was not on portion of sidewalk abutting their property under administrative code §7-210, that they maintained their sidewalk in a safe manner, and it did not cause or contribute to the plaintiffs accident. Martinez v New York Metro Dist. of the United Pentecostal Church Intl., Inc.


Premises Liab   Slip/Trip   Snow/Ice   Storm in Progress  

First Department

Meteorological records showing barely 0.05″of precipitation prior to accident raised issue of whether storm was in progress. Plaintiff’s testimony that ice was black and dirty raised issue of whether it existed prior to current storm and defendants’ expert opinion that the conditions over 2-days before the accident were favorable to create a 5″snowpack to melt and refreeze supported that theory. Anderson v New York City Hous. Auth.


MVA   Duty   Independant Contractor   Vicarious Liab   Control  

Second Department

Defendants granted summary judgment on proof they did not own truck with metal plate extended to the loading dock that plaintiff was standing on when driver pulled out causing plaintiff to fall and that they did not have an employment relationship with or control the truck driver, necessary for vicarious liability. Constantine v City of New York


Assault   Discovery  

First Department

NYCHA’s motion to unseal plaintiff’s grand jury testimony regarding shooting where plaintiff was shot denied for failure to show ‘a compelling and particularized need’ to overcome the presumption of grand jury confidentiality. Bare claim that it is necessary to impeach the witness in the civil trial does not establish a compelling need and defendants failed to show that other sources were inadequate to show assailant was not an intruder. Crespo v New York City Hous. Auth.


Lead Poisoning   Consolidation  

First Department

Defendants’ motion to consolidate non-payment of rent proceeding in civil court with plaintiffs’ lead poisoning case in Supreme Court providently denied where the common facts did not so predominate to constitute an abuse of discretion especially in light of the disparate progress of each case and a strong preference for resolving summary landlord/tenant proceedings. L.B. v Stahl York Ave. Co.

IF YOU MUST READ
(1 summaries)
MUST READS NOTEWORTHY

Construction Liab.   Duty   3rd Party Contractor   Espinal  

Second Department

Highway contractors granted summary judgment on proof they did not create condition, an unattached road construction sign leaning against frame it was supposed to be attached that clipped plaintiff’s bicycle handle causing him to fall, establishing they did not launch an instrumentality of harm under Espinal. The court does not give the details of the proofs. Cortes v City of New York

About Matt McMahon

Civil trials and appeals since 1984
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