November 17, 2020 | Vol. 236

MUST READS
(6 summaries)
NOTEWORTHY IF YOU MUST READ

Labor Law §240   Labor Law §200   Directed Verdict   1-2 Family Exception   Set Aside Verdict   Control   Causation  

Second Department

Directed verdict on Labor Law §240(1) at close of case but before summation on 1-2 homeowner exception reversed where reasonable inferences could establish homeowner directed and controlled work taking it outside exception. Court points to better practice of reserving determination of directed verdict motion until after jury verdict so it may be reinstated on appeal if appropriate. Motion to set aside defense verdict on common law negligence claim finding negligence but no proximate cause granted as fact that defendant struck scaffold with bobcat causing it to collapse, the only claim of negligence, rendered it impossible for negligence not to be a proximate cause. Brewer v Ross


Med Mal   Vacate Jud   Motion in Limine   Admissibility   Hearsay   Admission   Dead Man Statute   Reargument  

Second Department

On reargument Second Department reversed judgment for medical center and emergency room doctor based on defense verdict and ordered new trial where trial judge erred in denying plaintiff’s motion in limine to preclude statements in subsequent medical record that decedent stated he signed out AMA at different facility 4-days earlier and allowed plaintiff’s expert to be cross-examined on statement attributed to decedent’s primary care physician that plaintiff previously signed out AMA even though lower court found it inadmissible hearsay. While germane to decedent’s diagnosis and treatment statement did not meet business record exception where source of information unknown. Attributing statement to decedent’s primary care physician not sufficient identification and neither doctor who authored notes could remember the doctor’s name, nor could it be an admission since neither identified the decedent as the declarant. Doctors who authored notes were interested in event as defendants at time of deposition making statements inadmissible under dead man’s statute, CPLR §4519, and any other hearsay exception irrelevant. Defendants failed to meet test for declaration against interest at the time declaration made. Grechko v Maimonides Med. Ctr.


Emotional Harm   Discovery   CPLR §3124   Note of Issue  

Second Department

Defendant entitled to authorizations for infant-plaintiff’s Facebook, Snapchat, and Instagram accounts and names, addresses, and telephone numbers of friends relevant on claim of social isolation and permanent need for psychological treatment from being in zone of harm when brother was struck and killed by defendant’s truck as reasonably likely to yield evidence and plaintiff did not argue that requests were unduly burdensome, overbroad, or otherwise improper. Since discovery was not complete cross motion to restore case to trial calendar denied. Abedin v Osorio


Premises Liab   Stairs   Admissibility   50-H   De Minimus   Unknown Cause  

Second Department

NYCTA denied summary judgment on claim stair defect plaintiff tripped on was trivial where it failed to show protruding edge was physically insignificant and surrounding circumstances did not increase the risks. Transcript of Public Authorities Law §1212(5) hearing transcribed from audio recording by typist not present at examination inadmissible where unsigned, unsworn, and not certified by examiner. Proof sufficiently showed plaintiff could identify cause of fall. Elentuck v New York City Tr. Auth.


Med Mal   Accepted Practice   Admissibility   Expert Aff   Raised For First Time  

First Department

Bariatric surgeon’s motion for summary judgment denied where expert’s opinion relied on defendant’s testimony that he usually inspects bowel for perforations before closing but had no independent recollection of doing so and intraoperative records did not mention it, which did not lay foundation for habit testimony without proof he followed the procedure in the hundreds of his bariatric surgeries without variation from patient to patient, and did not conclusively show that he did so with this patient. Further claim that perforation might not have been observable on palpation raised for first time in reply should not have been considered as plaintiff did not have an opportunity to respond. Guido v Fielding


Untimely   Reasonable Excuse  

Second Department

Lower court improvidently granted defendant extension to file motion for summary judgment where proffered law office failure excuse was perfunctory and not supported by detailed credible explanation. Grant of summary judgment reversed as academic. Lanza v M-A-C Home Design & Constr. Corp.

NOTEWORTHY
(34 summaries)
MUST READS IF YOU MUST READ

Labor Law §240   Ladder   Set Aside Verdict   Directed Verdict   Recalcitrant Worker   Sole Cause  

Second Department

Defendants’ motion to set aside verdict and for judgment as a matter of law improvidently granted where there was conflicting evidence of availability of an alternative scissor lift and ladder and whether plaintiff knew he was expected to use them from which a jury could find a violation of Labor Law §240(1). Prior appeal had found questions of fact on issue of recalcitrant worker and sole cause. Cioffi v Target Corp.


Serious Injury   ROM   Preexisting   Degenerative   Expert Aff   Conclusory  

First Department

Plaintiffs’ treating neurologist failed to raise issues in opposition to defendants’ showing that spinal injuries were degenerative, pre-existing, and not serious where there was full ROM and no objective symptoms. Neurologist failed to address notations in plaintiffs’ MRI reports showing degenerative conditions in cervical and 1-plaintiff’s lower back. Court found neurologist’s opinion as to other plaintiff’s lumbar injury conclusory even though MRI did not note degeneration where neurologist failed to address defendants’ radiologist’s opinion that lumbar injury findings were degenerative as well. Gjoleka v Caban


Discovery   Preclusion   Note of Issue   Willful/Contumacious  

Second Department

Lower court providently precluded testimony of 2-notice witnesses not disclosed until after trial readiness confirmation stipulation/order signed and plaintiff’s attorney’s statement he first learned of witnesses 2-days later insufficient to show plaintiff did not know of witnesses. Willful/contumacious intent inferred from repeated failure to comply with stipulations/orders. Llanos v Casale Constr. Servs., Inc.


Vacate Default   Reasonable Excuse   Meritorious Defense   Strike Note of Issue   Discovery   Sanctions   Counterclaims   Reasonable Excuse  

First Department

Plaintiff’s motion to vacate default in responding to counterclaims denied on proof plaintiff was represented by same attorney throughout, negating claim of law office failure based on reassignment to new attorney. Absent reasonable excuse the court did not need to look at meritorious defense. Inaccurate statements in Certificate of Readiness that discovery including IME/DME and exchange of reports was complete justified striking Note of Issue and grant of $200 in sanctions against plaintiff for frivolous conduct under §130-1.1(c)(2) & (3) for failure to withdraw the Note of Issue on request. Landusco v Open Loop NYC


Venue   Conclusory  

Second Department

Defendant’s conclusory statement he resided in Rockland County at time action was commenced in Kings County insufficient without supporting documentary evidence to show Kings County was improper venue. Case transferred back to Kings County. Joseph v Kaufman


Med Mal   Accepted Practice   Causation   Expert Aff   Speculation   Conclusory  

Second Department

Defendants met burden for summary judgment by medical records, autopsy report, and experts’ opinions that decedent’s death was caused by critical condition on admission, including HIV, severe sepsis, small bowel obstruction, low blood pressure, and respiratory failure and that there were no departures from accepted practice that caused death. Plaintiff’s expert’s opinion that morphine overdose after abdominal surgery was a departure and contributed to death was speculative and conclusory as there was no indication expert reviewed record and autopsy report which did not list morphine as a cause or contributing factor and failed to address these records. While stating morphine can cause drop in blood pressure and difficulty breathing, expert did not state that happened to decedent. There was 1-dissent. Jacob v Franklin Hosp. Med. Ctr.


Labor Law §240   Labor Law §200   Gravity Risk   Safety Devices   Indemnity  

First Department

Plaintiff granted summary judgment on Labor Law §240(1) where his leg sank to thigh level when he stepped in area of excavated trench backfilled without protective barriers or other safety devices from an elevation differential sufficient for §240. Defendant denied summary judgment on Labor Law §200 and negligence where it did not eliminate questions on whether a reasonable inspection of trench would have discovered the defect and whether it conducted a reasonable inspection. Contractor granted conditional summary judgment against subcontractor, plaintiff’s employer, on contractual indemnity pending determination of contractor’s own negligence. Sunun v Klein


Med Mal   Accepted Practice   Independant Contractor   Vicarious Liab   Agent  

Second Department

Hospital where plaintiff’s decedent was evaluated and admitted for passive suicidal ideations and subsequently committed suicide while an inpatient denied summary judgment as it failed to show that ostensible agency exception to rule that hospital is not vicariously liable for an attending physician who is an independent contractor applied and further failed to show that treatment by attending and hospital’s nursing staff did not depart from accepted practice and was not a cause of decedent’s suicide. Valerio v Liberty Behavioral Mgt. Corp.


Labor Law §241   Industrial Code   Unknown Cause   Sole Cause   Raised For First Time  

First Department

Fact nothing other than wheels of dumpster getting caught on door saddle could have caused dumpster to tip raised issue on cause of accident. On Labor Law §241(6) Defendants failed to establish industrial code §23-1.7(e)(1) and (2) did not apply where an object being pushed strikes an obstruction, the doorway was a passageway and area where workers pass, and questions remained on whether saddle was a “sharp projection.” Kaufman v Capital One Bank (USA) N.A.


Premises Liab   Labor Law §200   Slip/Trip   De Minimus  

First Department

Defendants failed to show pipe stub sticking up in elevator machine room that plaintiff tripped on causing his hand to be partially amputated in moving cables was trivial where unguarded, exposed hoist and moving cables magnified risks. Size is not only criteria to determine triviality. Arpa v 245 E. 19 Realty LLC


Premises Liab   Products Liab   3rd Party Contractor   Espinal   Statute of Limitations   Res Ipsa Loquitor  

Second Department

Installer of seat that collapsed in movie theater granted summary judgment on proof it did not launch instrumentality of harm and other Espinal exceptions were not pleaded. Res ipsa loquitor claim against manufacturer/distributor dismissed on proof it did have exclusive control of seat. Warranty claim time-barred where commenced more than 4-years after installation. Manufacturer/distributor met burden for summary judgment on strict liability, but plaintiff and theater raised issues in opposition. The does not give the details of the proofs. Coakley v Regal Cinemas, Inc.


Premises Liab   Slip/Trip   Unknown Cause   Discovery   Preclusion  

Second Department

Plaintiff’s testimony she was unable to identify what caused her to fall in her basement kitchen entitled landlord to summary judgment and lower court providently refused to consider husband’s affidavit since he was not previously identified as a witness. Manavazian v Pietromonaco


Premises Liab   Slip/Trip   De Minimus   Open/Obvious   Tripping Hazard   Expert Aff   Conclusory   Building Code   Raised For First Time  

First Department

Defendant granted summary judgment on proof 0.25″-0.5″ gap between ceramic tile floor and underside of door saddle was trivial, open/obvious, and did not pose a tripping hazard and was within ADA guidelines. Plaintiff’s expert failed to raise issue in opposition without inspecting or measuring entranceway and door and plaintiff failed to show how height differential or subsequent claim that saddle moved caused her to fall. Plaintiff’s expert’s opinions of noncompliance with ADA, ANSI , and American Society for Testing Materials not considered where offered for first time in reply. Alonzo v 215 Audubon Ave. Hous. Dev. Fund


Premises Liab   Slip/Trip   Stairs   Open/Obvious   Inherently Dangerous   Optical Confusion  

Second Department

Landowner granted summary judgment on proof pie shaped winder stair was open/obvious and not inherently dangerous where plaintiff used stair 5-times before day of accident, ascended stairs without incident minutes before accident, was familiar with the stairs, and other factors such as loss of balance were just as likely cause of fall. Claim that condition created optical confusion rejected based on plaintiff’s familiarity with steps, adequate lighting, and available handrail. Masker v Smith


Premises Liab   Out of Possession   Independant Contractor   Create Condition   Court of Claims  

Second Department

State which owns Bear Mountain Inn failed to establish independent contractor it hired to repair bathroom where heavy trash receptacle fell from wall striking plaintiff did not create a dangerous condition as an out of possession owner is still liable for conditions it creates. Cintron v State of New York


Premises Liab   Slip/Trip   Sidewalk   Expert Aff   Speculation  

First Department

Abutting landowner’s expert’s opinion that plaintiff fell on sidewalk flag within 12″-zone of Con Ed gas valve cover Con Ed required to maintain under 34 RCNY §2-07 speculative where it contradicted plaintiff’s testimony that there was no metal, or debris in square she fell on, and expert was not the one who inspected the sidewalk. Colon v 385 Fifth Ave., LLC


Premises Liab   Slip/Trip   Sidewalk   Duty   Notice  

First Department

Plaintiff not entitled to summary judgment against Con Ed who had duty to maintain sidewalk flag plaintiff tripped on within 12″ of Con Ed’s grate under 34 RCNY §2-07(b)(1) where Google map plaintiff relied on for constructive notice was inconclusive and Con Ed raised issue in opposition by proof it found no defect on inspection 2-years before accident and testimony of managing agent of adjoining building that he never made a complaint to Con Ed of defect. Roa v City of New York


Labor Law §241   Labor Law §200   Industrial Code   Notice  

First Department

Defendants denied summary judgment of Labor Law §241(6) based on industrial code §23-1.7(e)(2) as issue of fact remained on whether debris plaintiff slipped on was integral to plaintiff’s work and whether removing the debris was part of his job. Industrial code §23-1.7(e)(1) not applicable as area was open and not a passageway. Building owner failed to establish it did not have constructive notice of condition were plaintiff testified debris accumulated for 2/3-hours before accident on Labor Law §200 and negligence claims. Singh v Manhattan Ford Lincoln, Inc.


Prior Written Notice   Motion to Dismiss  

Second Department

County granted summary judgment on personal injury and property damage claims from sewer flooding on proof it did not receive prior written notice, as required by local law, did not create condition, or make special use of sewer resulting in a benefit to the county, the only two exceptions to the prior written notice rule. Lower court providently treated motion to dismiss as motion for summary judgment where both were requested, and plaintiff clearly responded to motion to summary judgment laying bare proof. Serrano v County of Suffolk

Comment: Companion motion to consolidate denied as academic given dismissal of action. Serrano v County of Suffolk.


Premises Liab   Slip/Trip   Pothole Law   Duty   NYC  

First Department

Nursing home across from public road where plaintiff tripped on pothole granted summary judgment on proof it did not make special use of or receive special benefit from road that would impose a duty of maintenance and fact that persons would cross road to go to the nursing home was not a special benefit. Rodriguez v City of New York


Labor Law §241   Labor Law §200   Industrial Code   Causation   Notice  

First Department

Plaintiff who tripped on electrical box concealed by debris granted summary judgment on Labor Law §241(6) under industrial code §23-1.7(e)(2) as debris was a cause of the fall. Industrial code §23-3.3(k) not applicable as there was no demolition, evidence that debris was from demolition, or a pile of material being stored. Plaintiff failed to show defendants had notice of pile of debris for Labor Law §200. Sande v Trinity Ctr. LLC


Premises Liab   Slip/Trip   Wet Floor   Create Condition  

Second Department

Supermarket failed to show it did not create wet floor plaintiff slipped on by water leaking from an asparagus display. Lauzon v Stop & Shop Supermarket


MVA   Bus   Emergency Doctrine  

First Department

NYCTA granted summary judgment under emergency doctrine on driver’s testimony that car made sudden turn into his lane causing him to step on brake. Plaintiff failed to raise issue by his testimony that he did not see car as he was walking toward back of bus after paying his fare and was thrown backwards into the farebox because of a sudden stop. Castillo v New York City Tr. Auth.


Labor Law §240   Untimely   Reasonable Excuse  

Second Department

Lower court improvidently denied plaintiff’s motion for summary judgment returnable 3-days after return date in prior stipulated order as untimely as plaintiff offered reasonable excuse for the delay. The court does not give the details of the proofs. Garcia v Bleeker St. Gardens, LLC


Serious Injury   ROM   Degenerative   Expert Aff  

First Department

Medical records showing contemporaneous complaints of shoulder pain, limited ROM until arthroscopic surgery, and doctor’s opinion that tears were not degenerative raised issue on serious injury under significant limitation category but doctor’s finding of significant improvement with near-normal ROM precluded finding of permanency. Permanent consequential category for spinal injuries not met without proof of continuing limitations and/or treatment beyond 4-months. Return to work 3-days after accident precluded 90/180-day category. Smith v Green


Premises Liab   Create Condition  

Second Department

Village denied summary judgment where it proved county not village maintained crosswalk where plaintiff fell but failed to show it did not create a dangerous condition by obscuring defect with paint as alleged in Complaint. Montemurro v Nassau County


Serious Injury   ROM   Preexisting   Degenerative   Causation   Expert Aff  

First Department

Defendants entitled to summary judgment on serious injury on orthopedist’s opinion that limitation of ROM in knee was from arthritis observed on MRI 13-days after accident and x-ray showing no traumatic injury. Plaintiff’s physician’s affirmed report failed to explain conclusion injury was caused by accident and not pre-existing arthritis. BP allegation of confinement to bed and home for 49-days insufficient to make out 90/180-day category and there was no medical proof supporting claim he was unable to work or participate in ADL. Tarjavaara v Considine


Premises Liab   Building Code   Expert Aff   Conclusory  

Second Department

Restaurant granted summary judgment on proof storefront window without safety glass complied with all applicable building codes. Plaintiff’s expert’s conclusory opinion failed to raise issue of whether window violated cited regulation. Vasquez v Za Late Night Pizzeria


MVA   Question of Fact  

First Department

Conflicting stories of how defendant truck entered intersection, whether it stopped at stop sign, and whether it had right-of-way before entering intersection where plaintiff’s vehicle struck it left questions of fact precluding summary judgment for plaintiff. Cortes v Ventura


MVA   Rear End   Nonnegligent Explanation  

Second Department

Plaintiff granted summary judgment on her testimony that defendant rear ended her car. Defendant’s explanation that he stopped 1-2 car lengths behind plaintiff’s vehicle when traffic stopped and moved forward when she started to move but was unable to stop when she stopped suddenly due to traffic and the wet road did not provide nonnegligent explanation as cars must maintain proper distance and anticipate foreseeable stops ahead. Newman v Apollo Tech Iron Work Corp.


1983 Action   False Arrest   Malicious Prosecution   Assault   Probable Cause   NYC  

First Department

Probable cause from multiple witnesses identifying plaintiff on video surveillance and victim identifying assailant from photo array required dismissal of 1983 action, false arrest, false imprisonment, and assault claims for excessive force due to being handcuffed without injuries and absence of intervening exonerating facts between arrest and prosecution, and absence of actual malice, required dismissal of malicious prosecution. McFall v City of New York


Strike Answer   Discovery   Privilege   Sanctions  

First Department

Plaintiff’s motion to strike Port Authority’s Answer and for sanctions for failure to provide video footage and to unseal affidavit denied as there was no proof video sought was ever in defendant’s possession or that national security interests that resulted in affidavit being sealed had changed. Benson v Port Auth. of N.Y. & N.J.


MVA   Vicarious Liab   Estate  

Second Department

Estate of plaintiff-driver of vehicle cannot recover from owner of car he was driving under vicarious liability of VTL §388 for his own negligence. The court noted that surprisingly there was no prior precedent on this issue. Shepard v Power


Med Mal   Privilege   Vicarious Liab  

First Department

Medical practice’s motion to disqualify plaintiff’s counsel based on fact associate previously worked at firm representing it denied without proof matters or issues in current case were substantially similar with prior cases, associate left prior firm 1-year before alleged malpractice in current case, and allegations against practice were only of vicarious liability for one doctor. Patane v Tan

IF YOU MUST READ
(2 summaries)
MUST READS NOTEWORTHY

Late Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice  

Second Department

Lower court providently exercised discretion in granting petition to deem late Notice of Claim timely served on NYCHA after considering actual knowledge, reasonable excuse, and potential prejudice. The court does not give the details of the proofs. Matter of Reddick v New York City Hous. Auth.


Serious Injury   Causation  

Second Department

Plaintiff raised issue in opposition to defendant’s showing of entitlement to summary judgment on serious injury and since defendant’s expert did not opine regarding causation, the burden never shifted to plaintiff on that issue. The court does not give the details of the proofs. Ledee v Matthes

About Matt McMahon

Civil trials and appeals since 1984
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