Labor Law §240 Ladder Set Aside Verdict Directed Verdict Recalcitrant Worker Sole Cause
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.
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Serious Injury ROM Preexisting Degenerative Expert Aff Conclusory
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
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Discovery Preclusion Note of Issue Willful/Contumacious
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.
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Vacate Default Reasonable Excuse Meritorious Defense Strike Note of Issue Discovery Sanctions Counterclaims Reasonable Excuse
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
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Venue Conclusory
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
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Med Mal Accepted Practice Causation Expert Aff Speculation Conclusory
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.
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Labor Law §240 Labor Law §200 Gravity Risk Safety Devices Indemnity
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
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Med Mal Accepted Practice Independant Contractor Vicarious Liab Agent
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.
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Labor Law §241 Industrial Code Unknown Cause Sole Cause Raised For First Time
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.
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Premises Liab Labor Law §200 Slip/Trip De Minimus
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
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Premises Liab Products Liab 3rd Party Contractor Espinal Statute of Limitations Res Ipsa Loquitor
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.
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Premises Liab Slip/Trip Unknown Cause Discovery Preclusion
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
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Premises Liab Slip/Trip De Minimus Open/Obvious Tripping Hazard Expert Aff Conclusory Building Code Raised For First Time
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
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Premises Liab Slip/Trip Stairs Open/Obvious Inherently Dangerous Optical Confusion
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
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Premises Liab Out of Possession Independant Contractor Create Condition Court of Claims
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
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Premises Liab Slip/Trip Sidewalk Expert Aff Speculation
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
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Premises Liab Slip/Trip Sidewalk Duty Notice
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
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Labor Law §241 Labor Law §200 Industrial Code Notice
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.
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Prior Written Notice Motion to Dismiss
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.
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Premises Liab Slip/Trip Pothole Law Duty NYC
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
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Labor Law §241 Labor Law §200 Industrial Code Causation Notice
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
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Premises Liab Slip/Trip Wet Floor Create Condition
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
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MVA Bus Emergency Doctrine
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.
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Labor Law §240 Untimely Reasonable Excuse
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
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Serious Injury ROM Degenerative Expert Aff
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
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Premises Liab Create Condition
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
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Serious Injury ROM Preexisting Degenerative Causation Expert Aff
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
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Premises Liab Building Code Expert Aff Conclusory
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
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MVA Question of Fact
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
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MVA Rear End Nonnegligent Explanation
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.
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1983 Action False Arrest Malicious Prosecution Assault Probable Cause NYC
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
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Strike Answer Discovery Privilege Sanctions
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.
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MVA Vicarious Liab Estate
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
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Med Mal Privilege Vicarious Liab
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
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