November 19, 2019 | Vol. 185


MUST READS
(6 summaries)
NOTEWORTHYIF YOU MUST READ

Sanctions  

Second Department
Trial counsel sanctioned $250 for failing to timely notify court action had settled under 22 NYCRR 1250.2(c). While trial and appellate counsel for both appellants and defendants bear the burden of notifying court and can be sanctioned independently, appellant’s trial counsel notified its appellate counsel and respondent’s appellate counsel that it would notify the court which it attempted to do by letter waiting until after settlement paperwork had been received. Second Department local rule 22 NYCRR 670.2[b] makes clear that notification must take place immediately on the change of circumstances and cannot be delayed until paperwork is completed. In addition, the appeal could not be withdrawn by letter once it had been calendared. Guo-Bang Chen v Caesar & Napoli, P.C.


Labor Law §240   Labor Law §241  

First Department
Port Authority’s motion for summary judgment on Labor Law §§240(1), 241(6) claiming that as an interstate company it is not subject to NY legislation governing its internal operations denied as it is subject to NY legislation involving health and safety as its activities may affect the public and it has repeatedly been held subject to NY Labor Law. Wortham v Port Auth. of N.Y. & N.J.


Amend Answer   Amend Complaint   Bankruptcy   Capacity to Sue  

Second Department
Defendants’ motion to amend Answer to include defense of lack of capacity to sue where plaintiff filed Chapter 7 bankruptcy without listing lawsuit as an asset after the suit was started denied and plaintiff’s cross motion to amend Complaint and substitute bankruptcy trustee as plaintiff granted. Bankruptcy was reopened after defendants’ motion was made and bankruptcy order directing trustee to move to amend Complaint and have trustee substituted was entitled to comity. The bankruptcy order distinguished this case from others which found failure to list suit as asset forever barred suit. Fausset v Turner Constr. Co.


Premises Liab   Slip/Trip   Sidewalk   Directed Verdict   Expert Aff   Speculation  

Second Department
Judgment on jury verdict finding Con Ed liable for plaintiff’s injuries from trip/fall on sidewalk reversed and directed verdict granted to Con Ed where plaintiff’s expert building inspector, although qualified to give opinion on height differential of sidewalk flags and effect of inadequate backfilling, assumed facts not in record to reach opinion. Expert had no knowledge of when sidewalk or manhole in sidewalk flag were constructed or the weight and inside dimensions of the manhole rendering opinion speculative. Since there was no other evidence of defendant’s negligence, directed verdict appropriate. Ippolito v Consolidated Edison of N.Y., Inc.


Premises Liab   Slip/Trip   Untimely   Notice   Note of Issue  

First Department
Motion for summary judgment deemed timely based on when it was served, not when it was filed. Defendant granted summary judgment on plaintiff’s testimony that she only saw oily substance she claimed caused her to fall on escalator after she fell, affidavits of managers that they saw no oily substances on escalator on day of accident and did not receive any complaints, and surveillance video showing that no other person had problems with the escalator for 40 minutes before and 50 minutes after plaintiff’s fall. Plaintiff denied CPLR §3215(f) request to depose managers where they did not seek depositions prior to Note of Issue and certified that all discovery was complete. Hamilton v National Amusements, Inc.


Malicious Prosecution   False Imprisonment   Motion to Dismiss  

Second Department
Civilian defendants will not be liable for false arrest or malicious prosecution where they merely provided false information and allowed authorities to exercise their own independent judgment unless they acted with undue zeal in inducing authorities to pursue the criminal action without exercising their own independent judgment. Motion to dismiss granted. Williston v Jack Resnick & Sons, Inc.

NOTEWORTHY
(23 summaries)
MUST READSIF YOU MUST READ

Dogbite   Vicious Propensity   Notice  

First Department
NYCHA’s internal documents showing dog bite 3-months before plaintiff bitten by tenant’s pit bull as she returned from walking her dog raised question of fact on whether NYCHA had notice of dog’s presence and vicious propensities and on plaintiff’s testimony that she often saw tenant with the pit-bull acting aggressively, even where records did not identify which dog was involved 3-months earlier. Almodovar v New York City Hous. Auth.


Med Mal   Accepted Practice   Causation   Expert Aff  

First Department
Plaintiff’s expert’s opinion that fistula required prompt surgical treatment and 3-month delay increased risk of infection, and plaintiff’s testimony that treating physician did not schedule follow-up appointment despite plaintiff’s requests raised issues of fact in opposition to defendants’ showing of entitlement to summary judgment. One defendant-doctor made timely referrals but failed to conclusively establish he was not involved in the care after the referrals. Evans v Esposito


Vacate Default   Reasonable Excuse  

First Department
Defendants’ motion to vacate default denied where claim that email sent to carrier was not received could provide a reasonable excuse but they failed to show why they continued not to Answer, oppose motion for default, or move to vacate for 9-months after default granted. Claim of ongoing settlement negotiations is not a reasonable excuse. Neely v Felicetti


Assumption of Risk  

Second Department
College, its coaches, and soccer referees granted summary judgment where plaintiff sustained concussion when hit in the head by ball in early part of game and was left in until near end of game on proof that they were not aware that plaintiff had sustained a concussion and that plaintiff assumed the risk of head injuries which are a known risk of playing soccer. Calderone v College


Labor Law §240   Falling Object   Gravity Risk   Safety Devices   Causation   Feigned Issue  

First Department
Plaintiff granted summary judgment on his testimony and affidavit that he was hit by hoist chain that fell from above, ignoring that portion of his affidavit claiming he was hit by entire hoist chain system that contradicted his prior testimony. Either the chain or the hoist chain system would constitute an “object” for purposes of Labor Law §240(1). Goncalves v New 56th & Park (NY) Owner, LLC


Premises Liab   Slip/Trip   Stairs   De Minimus   Tripping Hazard  

First Department
Photographs of step plaintiff tripped on, submitted by NYCHA on its motion for summary judgment, showed defect was not trivial and that gap between metal riser and concrete beneath it was capable of catching plaintiff’s shoe. Parham v New York City Hous. Auth.


Premises Liab   Slip/Trip   3rd Party Contractor   Espinal   Indemnity  

Second Department
Third-party contractors’ motion for summary judgment claiming that as third-party contractors they could not be held responsible for infant-plaintiff’s trip on concrete surrounding sunken metal grate on sidewalk denied where they failed to show they did not create the condition thereby launching an instrumentality of harm under Espinal. Motion to dismiss Con Ed’s contractual indemnity and common-law contribution indemnity claims denied where questions of fact existed. Randazzo v Consolidated Edison Co. of N.Y., Inc.


Premises Liab   Causation   Sole Cause  

First Department
Defendant failed to show that missing wheel on hangar cage could not be a cause of plaintiff’s accident or that it did not have notice of the condition where its employee testified that every year several cages had to be sent to warehouse because of loose wheels. A jury could find plaintiff’s actions caused or contributed to the accident but defendant failed to show that plaintiff’s actions were the sole proximate cause. Sauceda-Ocampo v H&M Hennes & Mauritz LP


MVA   Rear End   Nonnegligent Explanation   Premature Motion  

Second Department
Plaintiff granted summary judgment on his affidavit that he was slowing in traffic when rear ended by defendant. Defendant’s affidavit claiming he was traveling 16′-20′ behind plaintiff at 30-35 mph when traffic began to slow failed to provide a nonnegligent explanation and emergency doctrine does not apply to typical rear end collisions where defendant is required to maintain sufficient distance to be able to stop. Ordonez v Lee


Premises Liab   Slip/Trip   Unknown Cause   Causation   Speculation   Notice   De Minimus  

First Department
Plaintiff’s various claims of what caused her to fall, that her flip-flop got caught in less than 1/4″ crack on stair, that stair moved when she stepped on it, and that handrail was too low, were insufficient to raise issue of fact on causation without speculation. Crack would in any event have been trivial and her previous testimony that she found handrail accessible and stable when she ascended stairs eliminated height of handrail as a possible cause. Superintendent’s testimony that he used, mopped, and swept stairs several times a day, saw no defects, and received no complaints established lack of constructive notice. Scholar v Citadel Estates, LLC


Premises Liab   Slip/Trip   Out of Possession   Create Condition   Notice   Admissibility   De Minimus   Raised For First Time  

Second Department
In opposition to landlord’s motion for summary judgment plaintiff raised issue of fact of whether landlord was out of position owner by affidavits of 2-former co-employees and whether landlord created condition by replacing carpet several months before plaintiff tripped in area where carpet met linoleum and whether landlord had constructive notice of condition. Defendant failed to eliminate all issues of fact where photographs it relied on were not authenticated to establish they showed condition as it existed at time of accident and without dimensions of the defect defendant failed to show defect was trivial. Defendant’s argument that affidavits should not be considered was improperly raised for the first time in reply on appeal. Rodriguez v Sheridan One Co., LLC


Premises Liab   Slip/Trip   Open/Obvious   Inherently Dangerous   Create Condition   Notice   Out of Possession  

Second Department
Deli-tenant’s motion for summary judgment denied where submissions including plaintiff’s deposition failed to show boxes stacked outside bathroom that caused plaintiff to fall were open/obvious and not inherently dangerous and that it did not create the condition or have actual/constructive notice. Landlord’s motion for summary judgment granted even though it failed to show it was out of possession owner on proof that it did not create the condition or have actual/constructive notice of condition. Robbins v 237 Ave. X, LLC


Labor Law §240   Safety Devices   Admissibility   Premature Motion   Speculation   Expert Aff  

First Department
Plaintiff granted summary judgment on Labor Law §240(1) on his testimony, photographs, and expert opinion that he fell 10′ from sidewalk bridge he was helping construct that had no side rails when he was struck by shifting heavy wooden planks and he was not provided with a safety harness. Plaintiff’s testimony was admissible as adopted by plaintiff when submitted, it was certified, and defendant did not challenge its accuracy. Plaintiff also submitted authentication in reply. Photographs plaintiff identified as depicting location at time of accident were admissible. Defendant’s argument that motion was premature based on its expert’s opinion that further depositions might show plaintiff was provided with a harness lacked any foundation in the record, were speculative, and defendant failed to show that it pursued discovery with due diligence. Singh v New York City Hous. Auth.


Vacate Default   Fraud   Untimely   Admission  

First Department
Defendants’ motion to vacate judgment under CPLR 5015(a)(3) on fraud denied for delay in seeking to vacate after alleged fraud discovered and where default was not entered on fraud but because of defendants’ decision not to pay their first attorney or obtain new counsel until trial. Liability was admitted upon default and did not require testimony. Lower court’s finding of fraudulent transfer of assets found to be an improvident exercise of discretion. Matter of 4042 E. Tremont Café Corp. v Sodono


MVA   Emergency Doctrine  

Second Department
Defendants in whose car plaintiff was a passenger granted summary judgment dismissing cross-claims on proof that car was traveling on road without stop sign and car coming from side street with stop sign failed to yield right-of-way where, even if it stopped before proceeding, it entered intersection when driver could not see oncoming traffic due to a tall vehicle. Driver on street without stop sign could assume that other drivers would obey right-of-way and could not be considered at fault where it had only seconds to react. Fernandez v American United Transp., Inc.


MVA   Rear End   Serious Injury   Comparative Fault  

Second Department
Defendant’s motion for summary judgment on serious injury for 90/180-day category denied based on plaintiff’s testimony, submitted by defendant, that he missed approximately 6-months of work from accident. Plaintiff granted summary judgment on his testimony that he was slowing in traffic when he was struck in the rear by defendant and defendant failed to raise issue in opposition. Plaintiff need not prove freedom from comparative fault for summary judgement. Xin Fang Xia v Saft


MVA   Bus   Pedestrian   Survelliance Video   Question of Fact  

First Department
NYCTA denied summary judgment where plaintiff claimed she was hit by rear of bus while in her wheelchair on sidewalk and surveillance video submitted by defendants did not show accident, only bus in road as it passed plaintiff, and did not irrefutably show lack of negligence. Miranda-Lopez v New York City Tr. Auth.


MVA   There to be Seen  

Second Department
Owner and driver of vehicle entering intersection with right-of-way when it was hit by vehicle that failed to stop at stop sign causing it to spin out of control and strike plaintiff’s vehicle granted summary judgment as driver could assume that other cars would obey right-of-way and could not see the car going through stop sign in time to avoid accident. Laurent v Bass


Labor Law §240   Scaffold   Safety Devices  

First Department
Plaintiff granted summary judgment on Labor Law §240(1) for fall from scaffold without side rails or other safety devices regardless of whether scaffold was defective. Sanchez v Bet Eli Co. Del. LLC


MVA   Rear End   Nonnegligent Explanation  

Second Department
Plaintiff whose car rear ended car in front of it when it came to a sudden stop granted summary judgment against vehicle that subsequently struck plaintiff’s car in the rear and defendant failed to provide a nonnegligent explanation for not maintaining sufficient distance to avoid hitting plaintiff’s vehicle. Gelo v Meehan


Labor Law §241   Industrial Code   Indemnity  

First Department
Upon searching record, plaintiff’s Labor Law §241(6) claim based on industrial code §23-1.7(e)(2) dismissed as safe he tripped over was integral to work of removal of debris during demolition project. Defendants denied summary judgment on indemnification where issues existed as to which entity was obligated to indemnify. Castillo v Big Apple Hyundai


Strike Note of Issue   Punitive Damages   Untimely  

First Department
Defendant’s motion to strike Note of Issue mooted by finding that discovery response was adequate and denial of extension of time to file motion for summary judgment was not abuse of discretion. Summary judgment on punitive damages inappropriate where there was sharp dispute and actual evidence was never submitted to lower court. Defendant was not denied due process and it failed to show that it could have filed a meritorious summary judgment motion if time was extended. Vazquez v 3M Co.


Severance  

First Department
Plaintiffs’ motion to sever defaulting defendant’s case and proceed with inquest providently denied where there were common issues of law and fact and judicial economy would be served by single trial. Luckey v City of New York

IF YOU MUST READ
(3 summaries)
MUST READSNOTEWORTHY

Serious Injury  

Second Department
Defendants granted summary judgment based on competent medical proof that plaintiff did not sustain a serious injury and under 90/180-day category. Plaintiff failed to raise an issue in opposition. The court does not give the details of the proofs. Duciau v Levano


Serious Injury  

Second Department
Plaintiff raised issue of fact in opposition to defendants’ undisputed showing of entitlement to summary judgment requiring denial of the motion. The court does not give the details of the proofs. Kim v Pineda


Serious Injury  

Second Department
Defendant made out prima facie entitlement to summary judgment on serious injury but plaintiff raised issue of fact in opposition. The court does not give the details of the proofs. Yu Feng Jiang v Francois

About Matt McMahon

Civil trials and appeals since 1984
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