November 14, 2023 | Vol. 391

(4 summaries)

Labor Law §240   Falling Object   Indemnity   Appealable Order   Waiver  

First Department
Electrician injured when a vacuum fell from ground level onto his head as he crouched just below a manhole cover while installing fiber-optic cable between manholes for access to NYC public schools granted summary judgment on Labor Law §240(1) against contractor who hired his employer and owner of manholes and cable conduits. Plaintiff’s work was a protected “alteration” under §240 as it was part of a larger, multi-worker project installing cable through 20-manholes to install cables into schools that would necessitate drilling holes into the school foundations. The vacuum posed a §240 elevation-related risk despite its initial position on ground level where it fell into the manhole underground. Verizon Communications, Inc., and Verizon New York, Inc. granted summary judgment as they did not own the manholes or conduits.

Contractual indemnity claims owner of manholes and conduits against contractor not properly before the Court where only plaintiff appealed and did not raise that issue. Keilitz v Light Tower Fiber N.Y., Inc.    

Malpractice   Motion to Dismiss   Statute of Limitations   Amend Complaint   Prejudice  

Second Department
Defendant’s motion to dismiss Amended Complaint which corrected the defendant’s first name to Mark instead of Michael on statute of limitations denied where the original Complaint was timely filed and served on the defendant. Plaintiff’s cross-motion to deem the Amended Complaint timely served nunc pro tunc granted as the name correction was permissible after the statute of limitations under CPLR §305(c) since the original Summon & Complaint was timely served and there was no prejudice to defendant. The Court rejected defendant’s claim that the amendment added a new party rather than corrected a misnomer. Brewster v North Shore/LIJ Huntington Hosp.    

MVA   Reckless  

Second Department
Motion for summary judgment by town and its snowplow driver who struck plaintiff’s vehicle denied as the snowplow driver had not “engaged in work on a highway” necessary to trigger the reckless standard of VTL §1103(b) where he was on his way to his plowing root and had not commenced plowing at the time of the accident. Horton v Rigney    

Discovery   Experts   Prejudice  

First Department
Plaintiffs’ motion to compel defendants to provide the infant-plaintiff’s statements during defendants’ neuropsychological testing and the raw data from the testing granted and defendants’ cross-motion to compel plaintiffs to provide their psychologist’s raw neuropsychological data used to generate her report granted as they would be disadvantaged and prejudiced at trial without it where they were on equal footing since they both conducted neuropsychological testing. M.A. v Spring    

(11 summaries)

Child Victims Act   Negligent Hiring   Negligent Supervision   Motion to Dismiss   Duty   Violent Propensity   Premature Motion  

First Department
Motion to dismiss Child Victim’s Act claims as untimely or for failure to state causes of action for negligent training, supervision, or retention providently denied as allegation that defendants had notice of the priest’s criminal proclivities was at this stage of the litigation adequate where this information was solely within defendant’s own knowledge, making the motion premature as ‘facts essential to justify opposition may exist but cannot then be stated.’ Claim was revived by the CVA even though alleged abuse took place outside NY where both plaintiff and the priest were NY residents. ARK265 Doe v Archdiocese of N.Y.    

Comment: The lower court decision gives an excellent analysis of the duty owed to college students, where in loco parens does not apply, by placing their employees in a position to do harm to their students.

Assault   Negligent Supervision   Notice   Violent Propensity  

Second Department
School made prima facie showing it did not have notice of student’s propensity for sexual attack but failed to eliminate all questions of fact on negligent supervision where evidence showed a security camera covering the hallway where the incident happened was monitored by 1-guard and 2-guards patrolled the hallway during the incident, which included the plaintiff being dragged by her legs into the boys room, and they did not intervene. Basile v Board of Educ. of the Glen Cove City Sch. Dist.    

Informed Consent   Causation   Experts   Conclusory   Speculation  

First Department
Defendants granted summary judgment dismissing informed consent claim on their anesthesia expert’s opinion that the procedure was properly performed based on the ultrasound images and their neurology expert’s opinion that plaintiff’s pain was caused by an autoimmune condition not by any acts or omissions of the defendants and that based on the needle insertion site it was impossible to cause symptoms in plaintiff’s hands and fingers rather than his shoulder. Plaintiff’s expert failed to raise an issue by conclusory opinions that also did not address many of the defendants’ experts’ specific opinions. Contant v Mount Sinai Hosp.    

Labor Law §240   Scaffold  

First Department
Worker met burden for summary judgment on Labor Law §240(1) on proof GC placed plywood over bathtub, creating an elevated platform or scaffold, instructed plaintiff to stand on it to frame a window, and the plywood lifted as he stood on it causing him to fall to the floor. Fall of 3’ was sufficient for protection of §240. Flores v Exotic Design & Wire LLC    

Labor Law §240   Labor Law §241   Notice   Industrial Code  

Second Department
University failed to meet burden for summary judgment dismissing Labor Law §200 claim of worker who tripped on plywood covering a 4×4 inch hole without proof it was an undiscoverable latent defect in order to show lack of constructive notice. Labor Law §241(6) claims based on industrial code §23-1.7(b) dismissed on proof the hole was too small for plaintiff to fall through and on (e)(1)&(2) on proof the area was not a passageway and the plywood was an integral part of the work. Freyberg v Adelphi Univ.    

Premises Liab   Unknown Cause   Speculation  

Second Department
Defendants met burden of showing plaintiff could not identify the cause of his fall without speculation by his testimony that he was covered with cement dust after he fell down the stairs but denied summary judgment where plaintiff’s testimony that he reached for a handrail to stop his fall raised an issue on whether the lack of a handrail was a cause of his fall. Adzei v Edward Bldrs., Inc.    

Premises Liab   Sidewalk   § 7-210   Homeowner Exception   Create Condition   Premature Motion  

Second Department
Abutting landowners granting summary judgment for plaintiff’s fall on depressed area around utility cover on sidewalk on proof they were entitled to the homeowners’ exception to administrative code §7-210 and that they did not create the dangerous condition or make special use of the sidewalk. The motion was not premature as the mere hope or speculation that discovery might uncover facts necessary to defeat the motion is insufficient. Moving defendant’s CPLR 2214(c) motion to submit additional papers in support of its motion providently denied. Giammarino v City of New York    

MVA   Rear End   Admission   Premature Motion   NYC  

First Department
Uber driver granted summary judgment dismissing passenger’s claim where the Uber vehicle was rear-ended by a NYC ambulance on Uber driver’s affidavit that he was slowing or stopped at a red light when rear-ended by the ambulance and supported by the ambulance driver’s statement in the certified police report which was admissible as a party admission or declaration against interest. Motion was not premature where both the plaintiff and NYC failed to identify any relevant information solely within the Uber driver’s possession to establish a nonnegligent explanation and plaintiff and the ambulance driver each had knowledge of the facts. Wilson v City of New York    

MVA   Bus   Survelliance Video  

Second Department
NYCTA, MTA Bus Co., and bus driver granted summary judgment dismissing passenger’s claim for being thrown to the floor of the bus on plaintiff’s 50 H testimony and bus video showing “the movement of the bus was not ‘unusual or violent’ or of a class different from ‘the jerks and jolts commonly experienced in city bus travel.'” Jimenez v New York City Tr. Auth.    

MVA   Rear End   Nonnegligent Explanation   Premature Motion  

Second Department
Plaintiff granted summary judgment on her affidavit and eyewitness affidavit showing he was stopped at a red light when rear-ended by defendants’ vehicle and defendants failed to raise a nonnegligent explanation for the rear end hit. Argument the motion was premature rejected as mere hope or speculation. Jimenez-Pantaleon v Aucancela    

Premises Liab   Renew   Reargument   Appealable Order  

Second Department
Motion to renew opposition to defendants’ motion for summary judgment dismissing claim for plaintiff’s fall on their property denied where “plaintiff failed to offer new facts or a change in the law that would change the court’s prior determination.” Appeal from denial of motion to reargue dismissed as no appeal lies from a denial of a motion to reargue. Andil v Wakefern Food Corp.    

(0 summaries)

About Matt McMahon

Civil trials and appeals since 1984. Retired partner McMahon | McCarthy.
Bookmark the permalink.

Comments are closed.