| MUST READS (3 summaries) | |||
| NOTEWORTHY | IF YOU MUST READ | ||
 In a Child Victims Act case where plaintiff was sexually abused by the foster father in one home and a neighbor in a second home when she was 10-12 years old the Second Department upheld denial of the county’s motion for summary judgment recognizing that providing and supervising the placement of foster children is a governmental function but that a county takes custody of a child when placing the child in and supervising foster care, voluntarily assuming a special duty in parens patriae as a matter of law beyond what is owned to the public generally without need to prove or allege any other factors, including the Cuffy factors, because the child must rely on the foster care agency and has no role in the decision making process, breaking with decisions for the First and Fourth Departments. In the context of placement and supervision of foster care, there is “no material distinction between legal and physical custody,”.County failed to show governmental immunity for discretionary acts, which is irrelevant where it violates its own internal rules and procedures, on bare assertions the conduct was discretionary. County also failed to show lack of constructive notice of the conduct without evidence of how it selected foster parents or showing its caseworkers made regular visits to interview plaintiff and the foster parents or that the county ‘responded appropriately as the events unfolded.’ Adams v Suffolk County ✉ Comment: The First Department had reversed its own prior precedent and found plaintiffs in a foster child context must plead and prove the 4-Cuffy factors to show a special duty. Q.G. v City of New York, reported in Vol. 395. |
| Plaintiff denied summary judgment on his affidavit in English stating defendants’ vehicle rear-ended his vehicle which stated it was translated to him in Spanish by a person who speaks Spanish and had an attached affirmation from an associate attorney certifying she was fluent in English and Spanish and accurately translated the English affidavit into a Spanish affidavit as the associate attorney’s affirmation insufficiently set forth her qualifications to translate, making the affidavit inadmissible. Reyes v Underwood ✉ |
 On motion to dismiss, dentist established he had no part in treatment but motion to dismiss denied where plaintiff adequately pled moving-dentist controlled all aspects of the clinic including regulations regarding emergency protocols and anesthesia, defendant’s denial was not documentary proof, and he offered no documentary evidence to refute this allegation. Cartagena v Volotsenko ✉ |
| NOTEWORTHY (12 summaries) | |||
| MUST READS | IF YOU MUST READ | ||
| Plaintiff’s motion to quash defendant’s subpoena for non-party witness EBT after Note of Issue providently granted where defendant knew of the eyewitness from the police report and plaintiff’s deposition but took no steps to depose the witness before Note of Issue. Defendant could not use a subpoena instead of discovery. Chiarovano v 237 Park Owner, LLC ✉ |
| Plaintiff’s motion to quash defendant’s subpoena for treating doctor’s EBT denied where plaintiff failed to show the potential testimony was “utterly irrelevant” and records from another treating doctor indicating plaintiff gave a history to the subpoenaed doctor of falling after breaking up a fight in a subway station made that doctor’s testimony relevant on liability, especially since the statement in the record would be inadmissible without the doctor’s testimony attributing it to plaintiff. Scope of subpoena not considered where raised for the first time on appeal and subpoena was not overbroad. Ogando v 40 X Owner LLC ✉ |
| Governing Body of Jehovah’s Witnesses’ motion to dismiss Child Victims Act claims for sexual abuse by a congregation’s ministerial servant between 1991-1994 denied on personal jurisdiction where Summons & Complaint adequately alleged the Governing Body was a jural entity that could be sued as an unincorporated association and complied with General Associations Law §13 with allegations it had a member formally referred to as a “chairman” and a coordinator complied with by identifying the most closely analogous officer to a president or treasurer. Plaintiff adequately pled the Governing Body knew or should have know of the ministerial servant’s propensity for abuse. RKJW1 Doe v Watchtower Bible & Tract Socy. of N.Y., Inc. ✉ Comment: Same result for the same reasons for different plaintiff involving a different Jehovah Witness congregation. Owen v Watchtower Bible & Tract Socy. of N.Y., Inc. |
| Plaintiff’s experts raised issues in opposition to hospital’s prima facie showing of no departure or causation on emergency medicine expert’s opinion of departure from accepted practice by failing to take a proper history through a proper interpreter, failure to diagnose decedent’s stroke that according to plaintiff’s expert radiologist was evidenced by an infarct on decedent’s CT scan, and that tPA and other medications were available to treat the stroke had it been properly diagnosed, raising questions on departure and whether decedent was deprived of a chance of a better outcome. Hanna v Staten Is. Univ. Hosp. ✉ |
| Owner and manager of building where plaintiff slipped on water that leaked from washing machine she was using in laundry room granted summary judgment on plaintiff’s testimony there was no leakage 40-minutes before her fall, proof washing machine vendor serviced the machine 3-days before and after the incident finding it in working order on both days, and vendor’s opinions leakage was from using too much soap. Daughter’s affidavit failed to raise an issue where it only showed a general awareness the machines leaked at times, insufficient to establish notice by a recurring condition. Daniel v York Terrace, Inc. ✉ |
| Landlord granted summary judgment on surveillance video wholly refuting plaintiff’s claim she fell down stairs while carrying objects when she was hit in the back by a closing interior door, making her testimony “incredible as a matter of law” and plaintiff subsequently admitted the door did not hit her in the back. Attorney’s claim the door may have hit a chair she was holding was pure speculation. Bonilla v Vaszer Realty, LLC ✉ |
| Plaintiff granted summary judgment on Labor Law §240(1) where 400 pound duct lift fell 10″-12″ on him from unsteady ramp as it was an elevation-related hazard and not trivial where the weight of the object could generate sufficient force over the distance it fell. Labor Law §241(6) claim based on industrial code §23-1.22(b dismissed on proof there was no violation of a specific standard under that provision. Davila v City of New York ✉ |
| Defendants granted summary judgment dismissing plaintiff’s Labor Law §241(6) claim predicated on industrial code 23-1.7(e)(2)(debris) for trip on hole in protective plywood floor covering an unfinished floor as the hole was not debris, tools or materials under that provision. Cioppa v ESRT 112 W. 34th St., L.P. ✉ |
| Defendant, owner of vehicle that collided with plaintiffs’ vehicle, denied summary judgment where his statement that his vehicle had been stolen and codefendant-driver was driving without his permission failed to rebut VTL §388(1) presumption of permission and documentary evidence was in inadmissible form or failed to establish the vehicle was stolen. Dombalic v Cornelius ✉ |
| Abutting landowner granted summary judgment on photos and plaintiff’s testimony the hole which caused him to fall was on the side of the curb between the sidewalk and road, establishing it did not have a duty under administrative code §7-210 as the defect was on the street, not the sidewalk. Manager’s testimony showed the landowner did not create or have notice of the defect and plaintiff failed to show it was caused by special use. Fatty v City of New York ✉ |
| NYC and DOE granted summary judgment dismissing student’s negligent supervision claims for assault by another student during PE class on proof it had no knowledge of the assaulting student’s violent propensity necessary to make to the assault foreseeable and no degree of supervision could have prevented the sudden and violent behavior. G.A. v City of New York ✉ |
| Contractor that did road work in area where plaintiff’s bicycle when into a pothole 4-years later denied summary judgment as it failed to show its work did not launch an instrumentality of harm under Espinal or present any evidence the area was reasonably safe when it completed its work or that NYC inspected and found the work satisfactory. Paving contractor granted summary judgment on proof it did no work where plaintiff fell and permits authorizing paving contractor to work at the site, submitted by plaintiff, did not raise an issue without proof the work was performed. Zatizabal v City of New York ✉ |
| IF YOU MUST READ (1 summaries) | |||
| MUST READS | NOTEWORTHY | ||
| Defendants failed to meet burden for summary judgment dismissing plaintiff’s claim for injuries when Coke truck struck her driver’s door as she opened it where questions of whether defendant-driver was negligent and a cause of the accident remained from testimony of both drivers, submitted by defendants, and unauthenticated still photo from dashboard camera was inadmissible. Scarsella v Liberty Coca-Cola Beverages, LLC ✉ |