November 15, 2016 | Vol. 28

MUST READS
(3 summaries)

MVA   Bus   CPLR § 3101(d)   Untimely   Rebuttal   Preclusion   Set Aside Verdict  

First

The Appellate Division reversed the lower court and set aside a jury’s verdict in favor of the defendant based on the lower court’s improvident exercise of discretion in denying the plaintiff’s rebuttal biomechanical expert’s testimony because the 3101(d) was served only after defendant’s medical expert testified. The jury found that the rear wheel of the MTA articulating bus did not run over the plaintiff’s foot on the sidewalk based on defendant’s medical expert’s testimony that the injury was inconsistent with being run over by a bus since there were no tire marks on the foot or broken metatarsals. Despite the fact that this opinion was beyond the expertise of a medical doctor, the jury heard the testimony and the plaintiff should have been allowed to have the biomechanical expert testify in rebuttal.

The court found that the defendant’s 3101(d) was legally sufficient without the specific facts and opinions which the medical expert was to give. All that is required is the “substance,” of the anticipated testimony. Plaintiff’s attempt to call the rebuttal witness after hearing the defendant’s doctor’s testimony did not amount to a willful delay in providing a 3101(d), and the testimony should have been allowed. Tate-Mitros v MTA N.Y. City Tr.


Funding Company   Tortious Interference  

First

Funding company sued plaintiff’s firm in prior case for disbursing funds to plaintiff in the underlying action without paying the funding company pursuant to an assignment of proceeds. The court denied the defendant, law firm’s summary judgment motion finding questions of fact as to whether the partner at the firm was aware of the assignment before dispersing the funds, which would support claims of conversion and aiding and abetting client’s conversion and tortious interference. Swift Funding, LLC v Isacc


Malicious Prosecution   Law of the Case   Probable Cause  

Second Deptartment

Plaintiff sued defendants and their attorney for damages as a result of the malicious prosecution of a prior civil case. ‘The elements of the tort of malicious prosecution of a civil action are (1) prosecution of a civil action against the plaintiff, (2) by or at the instance of the defendant, (3) without probable cause, (4) with malice, (5) which terminated in favor of the plaintiff, and (6) causing special injury.’ Defendants were entitled to summary judgment by showing that the “action, considered as a whole, was not entirely without probable cause.” 347 Cent. Park Assoc., LLC v Pine Top Assoc., LLC

Comment: A civil malicious prosecution case presents an interesting alternative to CPLR §8303-a (frivolous action) although the burden of proof, especially malice and complete lack of probable cause, would seem very high.

NOTEWORTHY
(7 summaries)

Labor Law §240   Labor Law §241   Labor Law §200   Ladder  

Second Deptartment

Defendant correctly granted summary judgment under Labor Law and negligence. Plaintiff, a school employee, assigned to fix a roof air conditioning unit used a fixed ladder which plaintiff admitted was not defective. After fixing the air conditioner he decided that the filters needed to be changed and fell while using the ladder. At the time of the accident he was not engaged in a protected activity under Labor Law §240(1) nor was he engaged in “construction, demolition, or excavation” protected by Labor Law §241(6). The Labor Law §200 and common-law negligence claims were properly dismissed because defendant did not have the ability to supervise or control the plaintiff’s work. Mammone v T.G. Nickel & Assoc., LLC


Labor Law §240   Labor Law §241   Ladder  

Second Deptartment

Plaintiff was entitled to summary judgment under Labor Law §240(1) on proof that he was assigned to install molding over sheet rock and doors which constituted “altering” under the Labor Law as it affected a significant physical change to the building. Proof that 8′ A-frame ladder he was using to reinstall speakers, which had been removed to install the paneling, shook before falling conclusively showed that he was not provided with adequate protection under the Labor Law. The fact that he was not “altering” the building at the time of the accident does not change liability as activities which are ancillary to the protected activity are also entitled to protection. Labor Law §§200 & 241 claims were properly dismissed. Goodwin v Dix Hills Jewish Ctr.


Labor Law §240   Ladder   Safety Devices   Sole Cause   Renew  

Second Deptartment

Plaintiff entitled to summary judgment on proof that he fell while descending from a 28′ ladder on claim that he should have been provided with a 40′ ladder and that he was not provided with a safety device to prevent him from falling. Claim that plaintiff was sole proximate cause was rejected for failure to show that a 40′ ladder was available on the day of the accident. Defendant’s motion to renew was properly denied for failure to show that affidavit of employee could not have been submitted with due diligence on the original motion. Pacheco v Halsted Communications, Ltd.


Labor Law §240   Labor Law §241   Gravity Risk   Industrial Code  

Second Deptartment

Plaintiff was feeding a cable into a trench at a subway station. The cable was being pulled by a device 800′ away. When a train came, plaintiff held the cable above his head so that it would not be caught by the train, but it advanced, was caught by the train, and he was pulled into the trench. The lower court properly granted summary judgment on the Labor Law §240(1) claim which must have a tangible nexus to a gravity related risk and §241(6) and 12 NYCRR §23-7(b)(1)(hazardous openings) as the 2′ deep trench did not qualify as a hazardous opening under the industrial code provision. Palumbo v Transit Tech., LLC


Premises Liab   Unknown Cause   Slip/Trip  

Second Deptartment

Defendant entitled to summary judgment, without having to show that it did not create or have notice of the condition, upon proof that plaintiff could not identify what caused him to fall as he was attempting to board a bus. Witness’ statement that plaintiff “may” have come into contact with the plaintiff, causing him to fall, is not sufficient since plaintiff failed to show how that contact would have been due to the defendant’s negligence. Hahn v Go Go Bus Tours, Inc.


Premises Liab   Slip/Trip   Open/Obvious   Inherently Dangerous  

Second Deptartment

Ropes between metal stanchions surrounding a tree exhibit in building lobby, that were known to the plaintiff, were open and obvious and not inherently dangerous. The Second Department reversed the lower court’s denial of summary judgment to the defendant. LeComples v More Specialized Transp., Inc.


Serious Injury  

Second Deptartment

The court reversed the grant of summary judgment for defendant on serious injury because the defendant failed to address the plaintiff’s claim of 90/180 days and, therefore, did not meet its burden of proof regardless of plaintiff’s opposition papers. Peters v Rice

IF YOU MUST READ
(1 summaries)

Serious Injury  

Second Deptartment

Defendant is entitled to summary judgment on serious injury on proof that lumbar injury was not caused by the accident and plaintiff failed to raise a triable issue in opposition. The court does not give the details of the proofs. Flaack v Tavarez-Estevez

About Matt McMahon

Civil trials and appeals since 1984
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