November 12, 2019 | Vol. 184

(4 summaries)

MVA   Bus   Set Aside Verdict   Causation   Appealable Order   Prejudice  

Second Department
In setting aside a defense verdict, the Second Department clearly established that a post-trial motion to set aside the verdict is not necessary to preserve the issue for appeal specifically rejecting case law in the Second Department that suggested otherwise and case law in the Third and Fourth Departments. Jury’s finding that defendants were negligent in not providing safe place for plaintiff to exit bus but not proximate cause of injuries where bus driver stopped several blocks from bus stop and plaintiff stepped from rear exit into large pothole was against weight of the evidence as there was no logical basis for jury’s decision and issues of negligence and causation were inextricably intertwined. Trial court’s comments that she found plaintiff’s testimony that door remained open as bus drove away unbelievable, expressed during her testimony, were inappropriate and prejudicial but rendered moot by decision. Evans v New York City Tr. Auth.

Slip/Trip   Discovery   Untimely   Premature Motion   NYC  

First Department
NYC’s failure to disclose records as required by preliminary conference order, that were destroyed 6-months later during hurricane Sandy and 4-years before NYC searched for them, and disclosure of 200 pages of relevant records for the first time on its motion for summary judgment made months after Note of Issue filed, warranted denial of NYC’s motion for summary judgment as premature without prejudice but only if it produced knowledgeable witness for deposition on records it produced within 60-days of decision. Con Ed’s motion for summary judgment based solely on its internal investigative report stating it did not create the defect denied. Martin v City of New York

Med Mal   Untimely   Reargument   Renew   Strike Note of Issue   Reasonable Excuse   Good Faith Aff   Appealable Order  

Second Department
Lower court summarily denied defendants’ motion for summary judgment in malpractice action upon plaintiff’s attorney’s letter court showing that motion was untimely. Defendants’ motion to renew was denied where defendants failed to provide reasonable excuse for not including new facts in its original motion. Motion to reargue was granted, making order appealable, but court providently adhered to original decision to deny motion as untimely. Defendants’ motion to strike Note of Issue for additional discovery denied without good-faith affirmation and where defendants acknowledged they were provided all requested material at time of motion and they neither showed an incorrect statement in the Certificate of Readiness or good cause for vacatur. Starzyk v Heslinga

Sidewalk   Slip/Trip   Snow/Ice   Notice   Dangerous Condition   NYC  

Second Department
Walking her dog on a shoveled portion of sidewalk plaintiff stepped back several feet to avoid unleashed dog, closer to where sidewalk met the street where snow/ice had been piled, and slipped on a 2″ thick slab of ice. NYC granted summary judgment as ice slab from repeated snowfalls by street where there was a cleared path on the sidewalk did not constitute “an unusual or dangerous obstruction to travel” and plaintiff failed to show that NYC had constructive notice of the condition. Cespedes v City of New York

(15 summaries)

Premises Liab   Elevator   Res Ipsa Loquitor   Control   3rd Party Contractor  

First Department
Building owners and their representative granted summary judgment on proof they did not have notice of any condition causing the elevator to drop 5-stories and that they ceded all maintenance and repair responsibility for the elevator to their elevator service contractor. Chambers v Tilden Towers Hous. Co. Section II, Inc.

MVA   Amend Complaint   Discovery   Premature Motion  

Second Department
NYCTA defendants’ motion for summary judgment denied as premature where driver of vehicle that struck Access-A-Ride van in the rear, injuring van passengers, was added as party after motion was made, they answered, and opposed motion as premature. Guerrero v New York City Tr. Auth.

Premises Liab   Slip/Trip   Stairs   De Minimus   Notice   Last Inspection  

Second Department
Defendants failed to meet burden for summary judgment where they submitted proof of 0.5″ x 0.5″ defect on nose of stair where plaintiff had to stand and twist in order to close exterior door. Location and surrounding circumstances of defect raised issues of fact on whether it was trivial. Defendants also failed to eliminate issues on constructive notice where they did not show last time area was cleaned or inspected. Coker v McMillan

Serious Injury   Preexisting   Degenerative   Causation   Expert Aff  

First Department
Plaintiff failed to raise issue of fact in opposition to defendants’ entitlement to summary judgment on serious injury where certified medical records and medical expert’s affirmed report gave no opinion on causation for spine injuries and plaintiff’s own medical records identified pre-existing degenerative condition in shoulder which her medical expert did not adequately explain. Bonilla v Bathily

Governmental Function   Governmental Immunity   Special Duty   Court of Claims  

Second Department
Non-jury decision in favor of college that hosted concert where plaintiff was assaulted by person he knew upheld where duty to provide security was a governmental function entitling college to governmental immunity absent a showing it assumed a special duty to the plaintiff. Plaintiff failed to show a special duty. Singh v State of New York

MVA   Bus   Late Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice  

Second Department
Petition to deem Notice of Claim served 3-months after 90-day period timely served denied where NYCTA reports and police report relied upon by petitioner did not show actual timely knowledge where there was no mention that someone was injured and plaintiff failed to give reasonable excuse for delay or plausible argument that NYCTA was not prejudiced. Matter of Molme v New York City Tr. Auth.

False Arrest   Malicious Prosecution   Battery   Probable Cause   NYC  

First Department
False arrest and malicious prosecution claims dismissed where plaintiffs failed to raise issue in opposition to NYC’s showing of probable cause. One plaintiff’s excessive force claim dismissed where he failed to offer any competent proof that force used was not reasonable under the circumstances. Goetz v City of New York

Premises Liab   Slip/Trip   Workers Comp Defense   Alter Ego  

Second Department
Leasee of bus terminal parking lot showed that person who fell in parking lot was employee of company in same corporate group as lessee corporation which had no direct employees, bank accounts, or management responsibilities for the property, establishing that plaintiff’s employer was its alter ego but documents lessee submitted in reply identified a different company as employer requiring denial of summary judgment. Gerardi v I.J. Litwak Realty Ltd. Partnership

Premises Liab   Out of Possession   Control  

Second Department
Defendants granted summary judgment on proof they were an out of possession landowner with no duty by statute, contract, or course of conduct to maintain parking lot plaintiff tripped in and plaintiff did not plead any statutory violation. Ferraro v 270 Skip Lane, LLC

MVA   Rear End   Comparative Fault   Premature Motion  

Second Department
Rear passenger entitled to summary judgment on her lack of comparative fault in rear end collision. Conflicting testimony between both drivers did not raise issue as to passenger’s comparative fault and motion was not premature where defendants failed to show what evidence was necessary to oppose motion. Seat belt defense would go only to mitigation of damages, not liability or comparative fault. Romain v City of New York

MVA   Pileup   Question of Fact  

Second Department
Middle car in 3-car pileup entitled to summary judgment on proof he was stopped behind lead vehicle when rear ended and pushed into lead vehicle. Lead vehicle’s motion for summary judgment denied on lead driver’s conflicting statements about what he was doing immediately before accident. Lower court should not have searched record and granted plaintiff summary judgment where driver of lead vehicle testified he did not come to a sudden stop, raising issue of fact. Rossnagel v Kelly

MVA   Pileup   Premature Motion  

Second Department
Middle vehicle driver and owner granted summary judgment on proof their vehicle was stopped behind lead vehicle where plaintiff was a passenger and propelled into lead vehicle when rear ended by third vehicle. Plaintiff failed to show what discovery was necessary to oppose the motion on her claim that motion was premature. Gonzalez v Goudiaby

MVA   Pileup   Question of Fact   Renew  

Second Department
Motion for summary judgment by owner and operator of 1-car in 4-car pileup originally denied based on conflicting stories between them and plaintiff as to which car was lead vehicle and motion for renewal of original motion based on deposition testimony also denied where depositions showed diametrically opposed positions on which was lead vehicle. Moyal v Dewhurst

MVA   Bicycle   Set Aside Verdict  

Second Department
Plaintiff’s motion to set aside defense verdict as inconsistent based on jury’s finding that defendant was not negligent and that plaintiff was not negligent (which jury did not have to consider after finding defendant was not negligent) denied as plaintiff could have fallen off her bicycle without being negligent. Verdict was not inconsistent. Li v Moon

Serious Injury   BP  

Second Department
Defendants failed to meet burden for summary judgment on serious injury where they did not address 90/180-day category alleged in BP. Ghaly v Umhafer

(1 summaries)


Second Department
Ambulance granted summary judgment where plaintiff claimed she slipped and fell while entering ambulance. The court does not give the details of the proofs. Harrison v ACT Ambulette, Inc.

About Matt McMahon

Civil trials and appeals since 1984
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