November 14, 2017 | Vol. 80

(5 summaries)

Lien   Workers Comp  


Plaintiff who settled action for $3,500.00 without worker’s compensation carrier’s consent required to pay full amount of lien (minus 1/3 setoff for attorney fee), rather than lesser amount plaintiff’s counsel claimed carrier agreed to, where plaintiff’s counsel ignored numerous court orders to appear for deposition and produce the writing that he claimed showed the carrier’s consent eliminating any bona fide dispute regarding the amount due despite the carrier cashing a check sent to the carrier but not to the attentions of the representative involved with a cover letter referring to the check as in full satisfaction. The lower court found that sending the check without addressing it to the representative was an intentional dodge to try to force a settlement that did not exist. Illinois Natl. Ins. Co. v Schumann

Labor Law §240   Jury Charge   Set Aside Verdict   Directed Verdict  

Second Deptartment

Defense verdict set aside in the interest of justice where the trial court failed to add a special interrogatory requested by the plaintiff asking the jury to find whether the plaintiff fell off a beam while removing flooring as he testified to as opposed to slipping on debris as he wrote on a worker’s compensation form in English he claimed he did not understand. Failure to include the special interrogatory led to jury confusion on Labor Law §240(1) regarding whether there would be a violation of Labor Law if the plaintiff fell from the beam. Plaintiff’s motion for a directed verdict properly denied as there were conflicting stories regarding how the accident occurred. Duran v Temple Beth Sholom, Inc.

Premises Liab   Directed Verdict   Set Aside Verdict   Speculation  

Second Deptartment

Defense verdict set aside and plaintiff granted judgment as a matter of law where movers left a 6’ desk on its side on a dolly, half on tile and half on carpet, unattended and unsecured. There was no rational process for a jury to find in favor of the defendants. Plaintiff’s motion for directed verdict at the close of the evidence should have been granted and defendants’ claim that a question of fact existed as to whether the accident happened at all was mere speculation. Canale v L & M Assoc. of N.Y., Inc.

MVA   Mistrial   Set Aside Verdict   Default Judgment   Compel Acceptance   Meritorious Defense   Prejudice  

Second Deptartment

Plaintiff’s motion for a mistrial made for the first time during jury deliberation was not preserved for appeal as neither a request for curative charge or mistrial was made immediately upon defense counsel’s purported objectionable comments during opening. The lower court providently exercised its discretion in refusing to grant a default judgment where the Answer was served 42 days late as there was no prejudice to the plaintiff by the short delay and there was evidence of a potentially meritorious defense and lack of willfulness. Crosby v Barry

Products Liab   Design Defect   Warnings   Punitive Damages  


Gel fuel pots sold at Bed Bath & Beyond found to be defectively designed where they could explode while adding gel fuel to the pot with an imperceptible flame despite warnings not to add fuel if there was a flame or the pot was hot. As a purely decorative item, the utility of the product was minimal, and it posed an extraordinary risk of the fuel exploding because the flame could not be seen when adding fuel and the burning fuel could stick to users because of its viscosity. It could have been made safe by using nonrefillable metal fuel pods. Defendant’s claim that the product was misused by adding fuel while a flame existed contrary to the warnings was rejected because it was foreseeable given the fact that the flame could be invisible. Manufacturing defect, breach of express warranty, failure to warn and punitive damages claims were dismissed. M.H. v Bed Bath & Beyond Inc.

(12 summaries)

Second Deptartment

Jury finding that defendant NYCTA was 100% liable for accident where plaintiff was thrown from the back to the front of the bus by a heavy jerk of the bus while she was trying to retrieve a bottle of milk that had rolled under the seat was reached on a fair interpretation of the evidence and there was a valid line of reasoning upon which the jury could find for the plaintiff. $800,000 past pain-and-suffering did not materially deviate from reasonable compensation, but $1,500,000 future pain-and-suffering materially deviated and was set aside unless the plaintiff stipulated to reduce the future pain-and-suffering to $800,000. Plaintiff underwent surgeries to both shoulders with residual loss of ROM, as well as back injuries that left her unable to perform most of her activities of daily living without assistance and prevented her from engaging in her usual activities. Peterson v MTA

Premises Liab   Wrongful Death   Duty   Causation  

Second Deptartment

Plaintiff’s decedent, a podiatric surgeon, was found in her car about 15 hours after she died in the parking lot at the hospital where she was to perform surgery and an autopsy revealed that she died of natural causes. The hospital met its initial burden for summary judgment on proof that it did not breach any duty to the plaintiff’s decedent, that it provided adequate security, that the decedent’s death was not foreseeable, and that none of its actions caused the death. Plaintiff failed to raise an issue of fact in opposition. Carney v Staten Is. Univ. Hosp.

MVA   VTL §1104   Fireman Rule   Police   NYC  


NYC and police officer granted summary judgment where officer entered an intersection 10 mph over speed limit, after slowing down and looking both ways, responding to an emergency and tried to steer out of the way when he realized that plaintiff was not going to stop before entering the intersection. Defendants were not required to show that lights and sirens were on to get the benefit of the reckless standard. Lewis v City of New York

Negligent Supervision   Assumption of Risk   Raised For First Time  

Second Deptartment

School district and defendant student who kicked the infant plaintiff during a basketball game granted summary judgment on primary assumption of risk. Plaintiff’s claim that the student intentionally kicked him, raised for the first time in opposition, was insufficient to raise a question of fact as the only claims asserted in the amended complaint were for negligence. Plaintiff’s claim that assumption of risk did not apply due to the “compulsion doctrine,” did not apply since plaintiff testified that he chose to play basketball for several options eliminating any claim that he was compelled to participate by a superior. Hanson v Sewanhaka Cent. High Sch. Dist.

Premises Liab   Fireman Rule   Notice   Unknown Cause   Building Code   Expert Aff  


Building owner granted summary judgment against fireman who was injured when he fell on a wet floor in an internal staircase when the substance and duration it was present were unknown and the cement surface was painted with a non-skid paint with a safe slip-resistance coefficient. Certificate of occupancy stating that the premises met all building codes switched the burden to the Plaintiff whose expert lacked knowledge of the width or traction coefficient to form a basis for his opinion that the stairs violated the building code. Viselli v Riverbay Corp.

Labor Law §240   Labor Law §200   Control   Safety Devices  

Second Deptartment

Stone tender’s claims under Labor Law §200 and negligence dismissed where he was injured when his supervisor lost his grip on the nylon straps they were using to move a 500-600 lb. granite stone 4’ since the defendants did not control the means and methods of the work. General supervision is not sufficient to impose liability. Plaintiff’s Labor Law §240(1) dismissed as the stone did not fall due to the absence or inadequacy of a safety device. Portalatin v Tully Constr. Co.- E.E. Cruz & Co.

Legal Mal   Coverage  


Law firm’s motion for summary judgment on legal malpractice claim for not notifying excess carrier that claim would likely exceed primary policy, based on fact the client’s third-party administrator told client to notify excess carrier and it did not, denied. Issue is not what client did but what attorney knew and failed do with that knowledge. Eurotech Constr. Corp. v Fischetti & Pesce, LLP

MVA   Bicycle   There to be Seen   Sole Cause   Serious Injury  

Second Deptartment

Defendants denied summary judgment even though they established that the infant plaintiff was negligent by darting out into traffic on his bicycle where defendant driver testified that she took her eyes off the plaintiff and did not see him from the time he was standing beside his bicycle until the collision, raising a question of whether defendant maintained a proper lookout and saw what was there to be seen to avoid the accident. Motion on serious injury denied as defendant failed to meet its burden on the 90/180-day category. Ellis v Vazquez

MVA   Turning Vehicle   Comparative Fault  

Second Deptartment

Plaintiff granted summary judgment on proof that defendants’ car pulled out of a parking spot into plaintiff’s right-of-way to make a U-turn with only 1-2 seconds to react. Under such circumstances plaintiff could not be comparatively at fault. Criollo v Maggies Paratransit Corp.

MVA   Rear End   Nonnegligent Explanation  


Plaintiff who was rear ended while stopped at a red light entitled to summary judgment. Defendant only offered an affirmation by counsel without knowledge of the facts and did not provide a nonnegligent explanation. Claim that plaintiff stopped short at intersection was not a nonnegligent explanation. Vasquez v Chimborazo

MVA   Serious Injury   Court of Claims  

Second Deptartment

Claimant granted summary judgment on liability to the claimant on proof that the State’s dump truck rear-ended the bus he was driving. After a nonjury trial the Court of Claims granted judgment in favor of the State finding that the claimant did not sustain a serious injury to his lumbar spine based on defendant’s expert neurosurgeon’s examination with normal findings of strength and sensation, the lack of evidence of traumatic injury on the MRI taken 1 month after the accident, and the State’s investigator’s testimony that he followed the plaintiff shortly before the trial and observed him shoveling snow for 20 minutes. Claimant’s neurosurgeon’s testimony failed to give a cause for the claimant’s complaints of pain. Lucas v State of New York

MVA   Turning Vehicle   Sole Cause  

Second Deptartment

Defendants granted summary judgment where plaintiff attempted to merge into the lane in which defendants’ bus was, failing to yield the right-of-way. The fact that plaintiff stopped at a stop sign before attempting to merge did not create a question of fact as she proceeded without the right-of-way. Panzer v MTA Bus Co.

(1 summaries)

Premises Liab   Slip/Trip   Dangerous Condition   Feigned Issue  

Second Deptartment

Department store granted summary judgment on proof that there was no dangerous condition outside of defendant store where plaintiff fell and that facts brought up in opposition by the plaintiff were feigned issues designed to defeat summary judgment. The court does not give the details of the proofs. Touloupis v Sears, Roebuck & Co.

About Matt McMahon

Civil trials and appeals since 1984
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