| MUST READS (4 summaries) | |||
| NOTEWORTHY | IF YOU MUST READ | ||
 Jury verdict finding thoracic surgeon did not depart from accepted practice by “proceeding” with surgery to remove a substernal goiter, the only interrogatory on the verdict sheet, was based on a fair interpretation of the evidence but trial court erred in not submitting the question of whether there was a departure by the ”improper performance” of the surgery where defendant testified he performed 2-subsequent surgeries to correct issues with the recurrent laryngeal and phrenic nerves caused by the goiter surgery and plaintiff’s expert testified the issues resulted from division of both nerves during the goiter surgery. Remanded for new trial on that theory. Lawrence v New York Methodist Hosp. ✉ |
 TBTA denied summary judgment dismissing claim of motorcyclist who struck a tubular lane marker between the end of dashed white lines and the beginning of solid white lines on the Whitestone Bridge that had no warnings without establishing they used engineering judgment to comply with the MUTCD as the TBTA regional director who testified was not an engineer, failing to establish that “a ‘study, inquiry or investigation’ into that question was conducted and reached the determination now relied upon’” for qualified immunity and ‘[a] mere informal review or internal policy will not suffice.’ Doxiadis v Triborough Bridge & Tunnel Auth. ✉ |
| Case remanded where lower court struck plaintiff’s opposition to defendants’ summary judgment motion served the day before the return date, 2-weeks after the time to serve the opposition, as plaintiff had good cause for the delay where her attorney received the expert report necessary to oppose the motion 1-day before the return date and immediately sought an extension. Any prejudice could have been avoided by extending defendants’ time to reply. Lauren v Hotel Pa. ✉ |
| Plaintiff’s motion for spoliation sanctions providently denied where incident report shorty after plaintiff fell on the bus did not put NYCTA on notice of the need to preserve evidence. The Court did not give the details of the proofs. Myung Ja Wang v New York City Tr. Auth. ✉ Comment: From the lower court decision, the plaintiff claimed NYCTA should have preserved the “Clever Box Data” which would show a hard braking but the incident report had conflicting versions of whether plaintiff just collapsed or fell when the brakes were applied without plaintiff saying the bus came to a sudden or violent stop. |
| NOTEWORTHY (18 summaries) | |||
| MUST READS | IF YOU MUST READ | ||
| On plaintiffs’ appeal to set aside judgment on jury verdict awarding $460,000/$0 past/future pain/suffering, $230,000 past lost earnings, and $0/$0 past/future loss of services the Court found the awards for past/future pain/suffering and past lost earnings supported by the record where the jury could find the injured-plaintiff’s multiple hip surgeries were necessitated by preexisting degenerative avascular necrosis but remanded the case for a new trial on the issue of past loss of services as materially deviating from reasonable compensation where the wife testified she assumed full responsibility for the household, children, and her husband’s care, unless the parties stipulate to increase that award to $40,000. Lind v Tishman Constr. Corp. of N.Y. ✉ |
| Ministry defendants’ motion to dismiss Child Victims Act claim of negligent hiring, retention, supervision denied where allegations plaintiff was abused by a youth leader between 1987-1991 on church premises and sponsored camping trips, the abuser-employee was under their direct supervision and control, and they knew or should have known of the abuser’s propensity to commit sexual abuse sufficiently pled negligence, negligent hiring, retention and supervision. Allegations were sufficient to support personal jurisdiction against ministry defendants. Escobar v Segunda Iglesia Pentecostal Juan 3:16 Asamblea de Dios ✉ |
| Motion to dismiss Child Victims Act claim agist nyc for abuse in foster care on statute of limitations granted where plaintiff’s prior motion to amend the Complaint to substitute NYC for a John Doe was granted without prejudice to raise statute of limitation and plaintiff failed to show diligent efforts to identify the foster care providers before the statute of limitations expired and allegations in the original Complaint that only mentioned Orange County did not put NYC on notice it would have been included in the suit absent misstate for the relations back doctrine. Irvine v City of New York ✉ |
| Motion to dismiss by contractor, whom plaintiff asserted a direct claim against after defendants impleaded it, granted where claim was asserted after the statute of limitations and the relation back doctrine did not apply as the contractor was not united in interest with the parties as they had different defenses from their disputes of who did the work and contractor could be aware it would have been included in the original suit absent mistake as it learned of the accident after the statute of limitations. Fitzpatrick v City of New York ✉ |
| Lower court properly left question of comparative fault for jury after granting plaintiff summary judgment on liability by ordering a damage only trial where plaintiff did not ask for dismissal of comparative fault defense. Gama v 2001 Story Tower A LLC ✉ |
| School district denied summary judgment dismissing plaintiff’s Child Victims Act claim for sexual abuse by a teacher during the 2013-2014 school year where plaintiff’s testimony, submitted by defendants, that the principal and teachers were aware of the offending-teacher’s inappropriate behavior throughout the school year, in a classroom on school grounds, during school hours left issues on constructive notice of the teacher’s propensity for abuse. J.J. v Mineola Sch. Dist. ✉ |
| Appeal from order granting plaintiff’s motion to preclude defendants’ biomedical expert from testifying, granted to the extent of ordering a hearing, and order granting the motion after hearing dismissed as no appeal lies from pretrial evidentiary rulings that do not challenge or limit the legal theory of liability. Guerra v Munoz Corporan ✉ |
| Defendants denied summary judgement dismissing iron-worker’s Labor Law §241(6) claim for fall on uncapped vertical rebar column when temporary plywood flooring ‘kind of came up,’ based on industrial code §23-1.5(c)(3) requiring all safety devices be in good order and immediately repaired if damaged and §23-1.7(e)(2) requiring floors and platforms be free of inter alia sharp projections. §23-1.7(e)(2) would not have applied solely based on the plywood floor but did apply where plaintiff also alleged he fell on the uncapped rebar. Velasquez v RS JZ Driggs, LLC ✉ |
| Plaintiffs failed to raise issues in opposition to OB/GYN’S showing of no departure from accepted practice with their expert’s opinions that defendant failed to relay the urgency of the mother’s condition to the hospital he referred her to and in not directing them to do an emergency c-section which was contradicted by the record showing defendant called and texted the hospital doctor to apprise her of the urgency and then the labor and delivery unit when the doctor did not respond. Defendant owed no duty once the mother arrived at the hospital as he had no authority to order a c-section and did not tell the mother he would meet her there. A.M. v Sconzo ✉ |
| Out of possession landlord denied summary judgment dismissing delivery person’s claim for sidewalk hatch door falling on his head as he wheeled a handcart down stairs where it failed to show a façade modification that limited the hatch door from being propped completely open was caused by the tenant or that the modification did not create a structural defect. Plaintiff’s employer denied dismissal on workers comp exclusivity on conflicting expert opinions regarding plaintiff’s TBI and permanent employability for ‘grave injury.’ Landlord failed to eliminate all questions of whether it was negligent for contractual indemnity against tenant. Robles-Martinez v Partnership 92 West, L.P. ✉ |
| Plaintiff met burden for summary judgment on proof defendant truck-driver did not see SUV she was a passenger in when it tried to merge into the SUV’s lane but truck-driver’s affidavit that he put his turn signal on, checked his side and rear mirrors, and looked over his shoulder before changing laned raised issues in opposition but comparative fault defense dismissed as plaintiff was an innocent passenger. Motion not premature. Houston v McQuiller ✉ |
| Defendants failed to show plaintiff’s work of filling holes with a bark blower after removal of utility poles and work area was not protected by Labor Law §241(6) where plaintiff was continuing previous work and preparing his equipment for additional work. Questions of whether plaintiff unintentionally stuck his hand into the back of the blower to remove ice and whether the blower was defective because the auger could spin when the back door was open remained on sole cause. Defendants failed to show lack of notice of dangerous conditions for summary judgment on common-law negligence. Kalaf v PSEG Long Is. LLC ✉ |
| Podiatrists granted summary judgment dismissing plaintiffs’ malpractice claims for treatment of osteochondritis dissecans (OCD) on their experts’ opinions that conservative treatment, surgery, and postoperative care all complied with accepted podiatric practice and were not a cause of the surgical failure that was from difficulty in treating the condition, regardless of which podiatrist was the lead surgeon. Plaintiff’s expert’s opinion that defendants did not specify the depth thet drilled to or the size of the lesion failed to raise an issue without explaining how that caused surgical failure and he did not address defendants’ experts’ opinions it was due to the condition itself. Third party claim against podiatrist who was previously dismissed on jurisdiction and plaintiffs’ claims of vicarious liability against practice dismissed as moot. Pepen v Lascano ✉ |
| Defendants granted summary judgment dismissing plaintiff’s malpractice claim that nurses negligently positioned him after lumbar surgery, causing a displacement of a screw in his spine, on their expert’s opinion of no causation and plaintiff’s medical records and EBT testimony failed to rebut that opinion. Sottosanti v St. Francis Hosp. ✉ |
| Restaurant granted summary judgement dismissing plaintiff’s claim for slip/fall on wet floor inside entrance during rainstorm on proof it did not create or have notice of the condition and ongoing rainstorm does not constitute constructive notice of a dangerous condition from water being tracked in to create a duty to cover the entire floor with mats or continuously mop. Plaintiff’s testimony he only saw water after he fell did not show constructive notice of a condition. Betancourt v ARC NYC123 William, LLC ✉ |
| Defendant’s motion for summary judgment dismissing plaintiff’s Labor Law §241(6) claims based on industrial codes §§ 23-1.5(c) and 23-9.2(a) denied where plaintiff raised issues of whether the chipping gun was in sound and operable condition under those codes. Antonio v VS 125 LLC ✉ |
| NYCTA granted summary judgment dismissing bus passenger’s claim on security camera and dashboard video showing bus stayed within its lane when a truck abruptly veered in front of it. Plaintiff’s arguments raised for the first time on appeal considered as “they involve no new facts other than those that already appear on the record” but failed to raise an issue as plaintiff conceded the bus driver had only seconds to react. Clarke v New York City Tr. Auth. ✉ |
| Lower court erred in dismissing plaintiff’s serious injury claims under 90-180 day category and for knee and shoulder injuries, which were irrelevant where it found plaintiff raised issues on his spine injuries. Defendants failed to show those injuries were not caused by the accident. Santos v Fiktus ✉ |
| IF YOU MUST READ (4 summaries) | |||
| MUST READS | NOTEWORTHY | ||
| Motion for summary judgment by corporate building owner dismissing worker’s Labor Law §§240(1), 241(6), and negligence claims for fall from ladder, brought 2-months after joinder of issue and before EBTs, denied without prejudice as premature where the record showed discovery might lead to evidence on whether it had control of the worksite and notice of a defective condition. The Court does not give the details of the proofs. Kharyshyn v West End 82, LLC ✉ |
| Plaintiff failed to meet burden for summary judgment against abutting landowner for trip and fall on sidewalk without proof owner had actual or constructive notice of the defect and her engineer’s opinions were conclusory and speculative, and against demolition contractor without eliminating questions of whether it launched an instrumentality of harm under Espinal. The Court does not give the details of the proofs. Tamrazyan v 379 Ocean Parkway, LLC ✉ |
| The Court declined to reconsider its prior finding that the covid executive orders were a toll not a suspension of the statute of limitations and denied defendants’ motion to dismiss as the action was timely started when calculated with the covid tolls. Sadri Ymaj v Empire State Realty Trust, Inc. ✉ |
| Defendants granted summary judgment on competent medical evidence that plaintiff did not sustain a serious injury and plaintiff failed to raise an issue in opposition. The Court does not give the details of the proofs. Gordon v Valencia ✉ |