November 15, 2022 | Vol. 339

(5 summaries)

Malpractice   Personal Juridiction   Service   Untimely   Irregularity   Appealable Order  

Second Department
While failure to file proof of service by suitable age and discretion (CPLR §308(2)) is a mere irregularity and not jurisdictional, plaintiffs’ motion to deem service on individual doctor proper denied where they did not ask for leave to excuse their untimely filing and lower court did not grant them leave to file a late affidavit of service. The Court did not consider whether the motion was a request for declaratory relief or an impermissible request for an advisory opinion. Chunyin Li v Joffe    

Battery   Strike Answer   CPLR § 3126   Discovery   Willful/Contumacious   NYC  

Second Department
Motion to strike NYC’s Answer by plaintiffs, parents and child who were assaulted by 3-armed men in their PA house who claimed NYC “negligently and erroneously” released one of the assailants from custody, improvidently denied where it repeatedly failed to comply with plaintiffs’ demands and court orders from which their willful/contumacious conduct can be inferred. L.K. v City of New York    

Malpractice   Frye   Hearing   Admissibility   Preclusion   Appealable Order  

Second Department
Appeal from order after Frye hearing only precluding plaintiff’s expert from testifying that polymicrogyria can be caused by post-delivery events, ostensibly allowing plaintiff’s expert to testify that “[polymicrogyria] can be caused by extreme prematurity, prematurity, [petriventricular leukomalacia], and intraventricular hemorrhage” dismissed as it was an evidentiary ruling made in advance of trial which is a non-appealable advisory opinion. Washington v Todd    


Second Department
NAM settlement agreement signed by attorneys for both sides at end of medication complied with CPLR §2104 requirement that it be in writing signed by parties or their attorneys. Defendants’ motion to enforce the agreement granted after plaintiff refused to provide additional settlement documents. Ebaid v PV Holding Corp.    

Premises Liab   Stairs   Duty   NYC  

Second Department
NYC granted summary judgment where plaintiff misstepped on short step outside public school on proof it did not “operate, maintain, or control the school,” and plaintiff failed to raise an issue of whether NYC affirmatively created or retained control to re-enter and repair the condition. Giannikas v City of New York    

(13 summaries)

Pothole Law   Notice   Actual Knowledge   Reasonable Excuse   Prejudice   Admissibility   Raised For First Time  

Second Department
Petition to serve late Notice of Claim denied as county police and ambulance responding to scene gave notice of injury not essential facts underlying the claim that there was a crack in the pavement, claim plaintiff’s injuries prevented her serving a timely Notice of Claim was not a reasonable excuse where unsupported by medical proof, and attorney’s conclusory statement that county was not prejudiced did not provide a plausible argument that county was not prejudiced by delay. Late Notice of Claim served 50-days after the 90-day period was not within “a reasonable time.” Argument that photographs attached to late Notice of Claim gave actual knowledge of essential facts rejected where they were not authenticated or dated, did not establish they reflected the conditions at the time of the accident, and the issue was raised for the first time on appeal. Matter of Lang v County of Nassau    

Premises Liab   Sidewalk   Prior Written Notice   Create Condition   Burden of Proof  

Second Department
Town granted summary judgment where plaintiff tripped on broken asphalt used to patch sidewalk in parking lot on proof town did not have prior written notice of the defect and employee affidavit that patch was initially rolled even with sidewalk and cracked due to normal wear and tear or tree roots over 10-years, eliminating question of prior written notice exception of creating an immediately dangerous condition when it was originally patched. Town was not required to address exception for summary judgment as plaintiff had burden of showing exception applied. Parthesius v Town of Huntington    

Malpractice   Accepted Practice   Causation   Experts   Conclusory   Speculation   Respondeat Superior  

Second Department
Doctors granted summary judgment on medical records, testimony, and opinions of medical experts establishing they did not depart from accepted practice in treating plaintiff after an accident and their treatment was not a cause of plaintiff’s injuries. Plaintiffs’ expert failed to raise an issue on causation with speculative and conclusory opinions.

Hospital granted summary judgment as it could not be vicariously liable for employees who were not liable. Wijesinghe v Buena Vida Corp.    

Comment: See companion decision regarding accident defendant below.

Premises Liab   Create Condition   Notice   Recurring Condition  

Second Department
Building owner failed to meet burden for summary judgment where it submitted plaintiff’s testimony that he slipped on coffee leaked from a coffee urn and that he made numerous complaints of the condition which were never addressed, leaving question on notice of a recurring condition. Wijesinghe v Buena Vida Corp.    

Comment: See companion decision regarding malpractice claim above.

MVA   Rear End   Pileup   Nonnegligent Explanation   Spoliation  

First Department
Defendant, second vehicle in 3-vehicle pileup granted summary judgment on driver’s testimony he was stopped in traffic when 3rd-vehicle rear ended him, pushing him into plaintiff’s vehicle. 3rd-vehicle driver’s testimony that 2nd-vehicle stopped short did not raise an issue without an explanation of why he didn’t maintain a safe distance, especially where he testified he was in stop/go traffic and behind 3rd-vehicle for several minutes.

Plaintiff failed to meet spoliation burden for 2nd-vehicle driver’s failure to preserve accident video without proof plaintiff asked driver to preserve it and that it was overwritten with a culpable state of mind where 2nd-vehicle driver testified it was accidentally lost when he turned off his car without saving it. Plaintiff did not show video would have supported his claim. Alvarez v Bracchitta    

MVA   Duty  

Second Department
Home health aide and her employer granted summary judgment where patient fell from her wheelchair during ambulette transport on proof aide secured seatbelt before bringing her to curb, after which ambulette driver was solely responsible for securing her. Aide and employer had no duty to make sure patient was secure in the ambulette. Withopf v Rapid Tr. Servs., Inc.    

Premises Liab   Sidewalk   § 7-210   Duty   Causation  

First Department
Building owner made out prima facie entitlement to summary judgment on manager’s testimony adjourning sidewalk had no cracks or defects when plaintiff tripped on it as shown in a photograph provided by plaintiff but plaintiff raised an issue by her testimony that the photograph did not accurately depict the sidewalk when she fell and the sidewalk appeared to have been repaired in the photo. She also testified that a different photo showing broken portions of sidewalk accurately depicted the conditions at the time of her fall. Google maps photos submitted by defendant in reply not considered without an affidavit detailing their origin or that they fairly depicted the conditions at the time of the accident.

Building owner had nondelegable duty to maintain the sidewalk under administrative code §7-210 regardless of lease to abutting commercial tenant. Mercedes v 680 SN LLC    

Serious Injury   ROM   Causation   Experts  

Second Department
Defendants’ expert failed to meet burden of showing plaintiff did not sustain a serious injury as a result of MVA where he found significant limitations of lumbar ROM, failed to substantiate opinion the limitations were self-imposed by competent medical evidence, and failed to show the lumbar injury was not caused by the accident. Augustus v Negron    

Labor Law §240  

First Department
Cleaning person injured when a refrigerator on a dolly she was cleaning in newly constructed apartments before they were occupied fell on her was not engaged in “cleaning” under Labor Law §240(1) as she had no part in the construction. Duque v 50 Clinton Prop. Owner LLC    

MVA   Bus   Survelliance Video   Causation  

Second Department
Plaintiff-bus-passenger failed to meet burden for summary judgment on bus videos that did not show driver’s POV or contact with other defendant’s vehicle and she testified that she did not see the collision. Valdez v MTA Bus Co.    

Comment: Codefendant denied summary judgment where even if he did have right of way over bus, he failed to eliminate questions of whether he could have avoided the accident by seeing what was there to be seen from the proper use of his senses and there can be more than 1-cause of an accident. Valdez v MTA Bus Co.

Premises Liab   Duty   Notice  

Second Department
Defendant which installed and owned newsstand where plaintiff tripped over empty crate failed to meet burden for summary judgment on its claims it owed no duty to plaintiff because it installed the newsstand pursuant to a contract with NYCDOT and had only a limited duty to maintain it where it did not include a copy of the agreement with its motions. That defendant also failed to show it did not have constructive notice of the condition. Ferrezza v Das    

MVIAC   Uninsured   Raised For First Time  

Second Department
Petition to file claim against MVIAC denied where petitioner testified at EUO she recognized and knew driver of the vehicle that struck her and left the scene and lower court could find her self-serving statement in the petition that a 3rd-vehicle that left the scene was involved incredible. Claim that vehicle with driver she knew was uninsured not considered where raised for the first time in reply. Matter of Melville v Motor Veh. Acc. Indem. Corp.    

Amend Complaint   Renew   Reargument   Untimely   Capacity to Sue   Appealable Order  

Second Department
Pro se nonparty, decedent’s son, had no standing to amend Complaint to include a cause of action for his own injuries caused by defendant home attendant’s negligence in attending to his mother or to move for a declaratory judgment as his Power of Attorney terminated on his mother’s death and his appeal from the Court of Appeals’ denial of his motion for leave to appeal and NY Supreme Court’s denial of his motion to renew or reargue his prior motions denied as no appeal lies from denial of a motion to reargue and he failed to submit new facts that would have changed the result on motion to renew. There is no time limit for a motion to renew in CPLR §2221 except where based on new case law. Dudley-Lanier v City of New York    

(1 summaries)

MVA   Motion to Dismiss  

Second Department
Defendant whom plaintiff claimed was driver of vehicle that struck his vehicle, whose owner previously settled with plaintiff, granted dismissal for failure to state a cause of action where documentary evidence conclusively showed the defendant was not the driver at the time of the accident. The Court does not give the details of the proofs. Greenstein v Danzy    

About Matt McMahon

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