Med Mal Set Aside Verdict Materially Deviates Causation
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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.
|
