November 16, 2021 | Vol. 287

(5 summaries)


First Department
Emails confirming $275,000 settlement with 1-defendant an enforceable writing under CPLR §2104 as sending of email if sufficient proof it was subscribed by sender absent any claim it was unintentionally sent, and it contained the material terms of the settlement, namely the amount plaintiff would accept to settle with those defendants, and there was proof in prior emails that the settling defendants were aware the other defendants were not interested in settling. Settling defendants refused to go forward with settlement after all defendants’ motions for summary judgment were granted. Rawald v Dormitory Auth. of the State of N.Y.    

Wrongful Death   Motion to Dismiss   Special Duty  

Second Department
Wrongful death claims against counties and their social workers for death of plaintiff’s child from abuse by mother’s live-in boyfriend dismissed where Complaint failed to allege defendants voluntarily assumed a special duty as the claims were solely that they failed to perform their statutory duties and performed them negligently. Court of Appeals has previously held ‘a private right of action for money damages cannot be fairly implied from title 6 of the Social Services Law.’ Plaintiffs’ cross motion to amend Complaint denied as palpably insufficient. Estate of M.D. v State of New York    

MVA   Turning Vehicle   Set Aside Verdict   Comparative Fault   Missing Witness Charge   Jury Charge   Raised For First Time  

Second Department
Motion to set aside judgment on verdict finding plaintiff not at fault his when van was struck by county bus as he was making a left turn denied where supported by a fair interpretation of evidence. Court providently gave missing witness charge where defendant bus-driver did not testify and providently declined to charge inapplicable VTL sections requested by defendants. Defendants’ claims of errors in the missing witness charge and improper comments during summation unpreserved where not raised at trial. Fratello v County of Suffolk    

Malpractice   Vacate Jud   Directed Verdict   Appealable Order   Premature Motion   Pain/Suffering   Preclusion   BP   Reargument  

Second Department
Second Department exercised its discretion in hearing appeal from lower court’s grant of plaintiff’s motion to reargue judgement that granted defendants directed verdicts and adhered to its prior decision even though plaintiff’s prior appeal from judgement was dismissed for lack of prosecution where the appeal from the judgment was pending when the Notice of Appeal was filed from the order on reargument.

Defendants’ motions for judgment as a matter of law were premature where made before the close of plaintiff’s case and not based upon plaintiff’s admissions. ER doctor’s motion to limit plaintiff’s pain/suffering claim to after her kidney was subsequently removed denied where BP claimed damages from original ER visit. Fuchs v Long Beach Med. Ctr.    

Premises Liab   Motion to Dismiss   Capacity to Sue   Amend Complaint   Prejudice  

First Department
Building owner/managers’ motion to dismiss for lack of standing granted where named plaintiff was not injured. The motion to amend the Complaint to name the injured party denied as it was in fact a motion to add a new party who failed to show using his cousin’s name and SS# was an innocent misnomer. Defendants were prejudiced by injured party’s providing false information regarding his identity which he did not reveal until EBT and defendants had no reason to be aware of his true identity from the onset of the case. Perez v Garden Prop. Assoc., LLC    

(14 summaries)

Labor Law §240   Safety Devices   Sole Cause   Duty   Question of Fact  

First Department
Plaintiff granted summary judgment on Labor Law §240(1) against GC on proof it provided no safety devices to gain access to fuel tank room in building under construction and without adequate safety devices, plaintiff’s stepping on oil barrel to gain access could not be the sole proximate cause. Workers have no duty to request adequate safety devices. Question of fact of whether development company was owner remained where construction management agreement listed it as an owner. McEachern v Extell Dev. Co.    

Labor Law §240   Labor Law §241   Scaffold   Industrial Code   Notice of Claim  

Second Department
Lower court erred in denying summary judgment for failure to attach Notice of Claim as it is not a pleading. Plaintiff, however, failed to meet burden for summary judgment on Labor Law §240(1) by his testimony he moved his foot while standing on a scaffold and fell between 2-scaffolds without proof of whether or not the scaffold had guardrails or other safety devices. Without proof of absence of guardrails plaintiff failed to meet burden under Labor Law §241(6) based on guardrail requirements of industrial code §23-5.1(j). Torres v New York City Hous. Auth.    

Malpractice   Public Health §2801-d   Accepted Practice   Causation   Experts   Conclusory   Venue   Untimely   Reasonable Excuse  

First Department
Rehab center’s expert failed to meet burden for summary judgment where he did not explain decedent’s rapid weight loss and dehydration and inconsistencies in monitoring weight/hydration, or why these did not contribute to decedent’s death 3-months later, other than by conclusory statements. Lower court improvidently granted change of venue from Bronx to New York County without an explanation of why defendant waited 6-years to make the motion. Cortez v Terrence Cardinal Cooke Health Ctr.    

Labor Law §240   Gravity Risk   Safety Devices  

First Department
Proof wooden dunnage securing bundle of metal frames plaintiff stepped on, on flatbed truck, broke while lifting a 200-300 lb. load of other frames, pulling him down 3.5′ to loading dock floor made out entitlement to summary judgment on Labor Law §240(1) as dunnage was inadequate to prevent plaintiff falling. Being pulled down rather than struck by dunnage was irrelevant as injury was result of application of force of gravity. Medouze v Plaza Constr. LLC    

Premises Liab   § 7-210   Raised For First Time   Feigned Issue   Premature Motion   NYC  

First Department
Plaintiff’s affidavit alleging height differential between curb and sidewalk for the first time in opposition to abutting landowners’ motion for summary judgment was a feigned issue where the Notice of Claim, Complaint, and initial BP alleged fall was caused by defective metal curb that NYC, not abutting landowners were responsible for under administrative code §7-210. Plaintiff offered only conjecture that motion was premature. Rios v City of New York    

Premises Liab   Sidewalk   3rd Party Contractor   Espinal   NYC  

Second Department
Business improvement district denied summary judgment where it failed to eliminate Espinal question of whether it wholly displaced NYC’s duty to maintain sidewalk outside shopping plaza where plaintiff tripped. Vidal v City of New York    

MVA   Set Aside Verdict   Directed Verdict  

First Department
Plaintiff’s motion to set aside verdict finding no negligence against firefighter who struck rear of double-parked taxicab, and for directed verdict, denied as jury could credit firefighter’s testimony that lights and sirens were on when he struck driver’s side rear of taxicab. Taxicabs are allowed to double park while picking up or dropping off passengers but must clear passage for emergency vehicles under VTL §1144(a). Trial court gave appropriate response to jury question on negligence. Borgella v City of New York    

Assumption of Risk  

Second Department
Trainer’s verbal reassurances such as “I’m right here” to encourage plaintiff who said he could not perform balancing exercise at fitness/rehab center, making plaintiff think trainer would catch/stabilize him is he started to fall, left question of fact of whether defendant exposed plaintiff to an unassumed risk. Defendant also failed to show it was not a ‘gymnasium’ as defined by GOL §5-326 that voids releases of negligence for “pools, gymnasiums, places of public amusement or recreation, or similar establishment” which receive a fee. Haggerty v Northern Dutchess Hosp.    

Malicious Prosecution   Vacate Default   Premature Motion   Motion to Dismiss   CPLR § 3126   Discovery   NYC  

First Department
Plaintiff’s motion to vacate order requiring him to provide transcripts of 3-trials (2-mistrials and an acquittal) with self-executing language denied as premature since no order of dismissal was ever entered, lower court conducted conferences after plaintiff’s failure to comply with the order, and several orders had required defendant to provide the transcripts. While NYC submitted the order with Notice of Entry and an affidavit of non-compliance, it never submitted a proposed order of dismissal. Lower court improvidently ordered plaintiff to provide transcripts not in his possession at his expense where he could not pay for them and NYC had ability to obtain them. Case remanded for decision on NYC’s motion to dismiss under CPLR §3126 which lower court deemed moot. Larkins v City of New York    

MVA   Question of Fact   Admissibility   Hearsay   Waiver   NYC  

First Department
Plaintiffs’ motion for summary judgment denied on conflicting versions of how MVA occurred. Plaintiffs’ waived hearsay objection to defendant-driver’s statements in police report by not objecting to the motion court and relying on them to support their own motion. Khaimov v City of New York    

Premises Liab   Sidewalk   § 7-210   Duty   Premature Motion   Speculation  

Second Department
7-Eleven, Inc. granted summary judgment on proof it had no duty to maintain sidewalk under administrative code §7-210 as it was not an owner, or under lease which placed sidewalk maintenance on building owner, and franchise agreement placed maintenance requirements on franchisee. Plaintiff’s claim motion was premature purely speculative. De Felix v 590 E. Fordham Rd. Corp.    

Premises Liab   Create Condition   Open/Obvious   Causation  

First Department
Deli failed to meet burden of showing it did not create a dangerous condition where it placed orange colored gaming machine on top of 3″ raised platform that plaintiff tripped on sidewalk in front of deli by submitting plaintiff’s testimony that a group of children waiting to play the game blocked her view of the platform, even if she had seen it previously. Ortiz-Zayas v 98 Rivington Realty Corp.    

Discovery   Note of Issue   Sanctions   Severance  

First Department
Third-party defendant’s motion for sanctions for defendant’s failure to produce project manager who submitted affidavit in prior summary judgment motion for EBT denied where it failed to obtain order for post Note of Issue discovery which was prohibited by court’s standing order and third-party defendant failed to show prejudice. Motion to sever third-party action denied where common questions of law and fact with main case existed. Caras v George Comfort & Sons, Inc.    

Emotional Harm   Motion to Dismiss   Appealable Order  

Second Department
Appeal from order dismissing action for intentional infliction of emotional harm as barred by res judicata and collateral estoppel, and denying plaintiff’s cross motion for summary judgment, dismissed where plaintiff failed to include copies of the pleadings, motion papers, and exhibits in the appendix where the appendix method was chosen. Edem v Wondemagegehu    

(1 summaries)

Attorney Fees  

First Department
Oral agreement detailing fee split between firm and departing attorney did not violate professional code 1.5, was not an improper restraint on the practice of law, and could theoretically be completed within 1-year taking it out of statute of frauds. A writing signed by the departing attorney 15-years earlier regarding a different departing attorney and post-withdrawal emails sent to him but never agreed to were not a “signed writing necessary to piece together a writing from multiple writings.

Firm’s motion to declare agreement valid and enforceable, and defendant’s motion to declare it invalid and unenforceable granted only to declare that it was not invalid as a matter of law. Koster, Brady & Nagler, LLP v Callan    

About Matt McMahon

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

Comments are closed.