Costs/Disbursements
 Court of Appeals finds that CPLR §§8501 & 8503 requiring non-residents to post security for costs if they are unsuccessful does not violate Privileges and Immunities Clause of U.S. Constitution in case where plaintiff started personal injury action as a New York resident but then moved out of state noting the exception for persons meeting poor-person status. States are allowed to impose marginally disparate requirements on nonresidents that address specific reasonable concerns. Clement v Durban
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Labor Law §240 Labor Law §241 Ladder Admissibility Admission Hearsay
 Plaintiff made out prima facie entitlement to summary judgment under Labor Law §240(1) on decedent’s statement that ladder started to move hitting him in chest but defendants raised issue of fact based on decedent’s statements in records that his legs felt wobbly after having chest pain corroborated by coworker who heard him say he was having chest pains. Decedent’s statement to wife that he should’ve known better than to use a ladder that way was admissible as an admission against interest where it was made under circumstances with sufficient indicia of reliability. Labor Law §241(6) claim based on specific industrial code provisions dismissed as plaintiff failed to specify subsections. Defendants’ arguments regarding triable issues in its memo of law sufficient to preserve issue for appeal but failure to raise sole proximate cause below rendered it unreviewable. Caminiti v Extell W. 57th St. LLC
Comment: The court cites to the courts’ official Guide to Evidence. This is a link that everyone should bookmark as the official guide will be the fastest and most persuasive authority for issues of evidence covered in the Guide. |
Med Mal Late Notice of Claim Actual Knowledge Prejudice Reasonable Excuse Expert Aff
 While ambulance call report was insufficient to show actual knowledge of essential elements because it did not show injuries were caused by negligence, Plaintiff successfully showed actual knowledge with opinions of EMT expert and neurologist that EMT and paramedics departed from accepted practice by not following rules for stabilizing patient with suspected spinal cord injury and that departure was a cause of plaintiff’s paralysis establishing that “the malpractice was apparent from an independent review of the medical records.” Patient had consumed 3-4 glasses of wine, had a history of scoliosis, and diminished responses in her lower extremities. Actual knowledge met plaintiff’s initial burden of showing lack of prejudice. Lack of reasonable excuse where plaintiff first hired attorney a month after accident was insufficient to deny motion. Ballantine v Pine Plains Hose Co., Inc.
Comment: This is a very detailed example of how to prove actual knowledge through independent review of medical records created by municipality. |
Labor Law §240 Labor Law §241 Industrial Code Sole Cause
Plaintiffs failed to meet burden for summary judgment on Labor Law §240(1) were rung of ship’s ladder (part ladder, part stairs) gave way because it was missing bolt that plaintiff was tasked to replace, failing to eliminate question of whether it was integral part of work being performed and whether plaintiff was sole cause of accident where there were other ladders available for his use. Defendants raised issue of fact on whether ladder was integral part on work being performed under Labor Law §241(6) even though court found the industrial code provisions relied on were violated. Jones v City of New York
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Premises Liab Indemnity
Volunteer Agreement signed by plaintiff before taking volunteer position as warehouse assistant was barred as a matter of public policy which prevents agreements purporting to absolve employer of future liability for the acts of its employees. Richardson v Island Harvest, Ltd.
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Serious Injury Expert Aff Speculation
First Department found plaintiff raised issue of fact in opposition to defendants’ prima facie showing for summary judgment on serious injuries in his lumbar spine on the significant limitation category but not the permanent consequential category because plaintiff failed to adequately explain why he stopped treating. The court rejected explanation that he couldn’t pay after no-fault denial based on evidence of other insurance which rendered the opinion of plaintiff’s examining physician speculative. 90/180-day claim dismissed based on BP allegation that he was confined to bed and home for only 8-weeks. Tejada v LKQ Hunts Point Parts
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Premises Liab Set Aside Verdict Comparative Fault
NYCTA’s motion to set aside verdict finding them 100% at fault granted where finding that plaintiff was not at fault was contrary to weight of the evidence as it could not be reached on a fair interpretation of the evidence showing that plaintiff had walked across gap between train and platform just before accident which occurred when she tried to reenter the train and that she had extensive experience exiting and entering trains at that station. Stallings-Wiggins v New York City Tr. Auth.
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Pain/Suffering Set Aside Verdict Materially Deviates
Jury’s award of $400,000/$750,000 for past/future pain/suffering of 29-year-old with partial shoulder labral tear requiring surgery and PT, resulting in residual intermittent pain and loss of ROM, and necessitating possible future PT and surgery, materially deviated from reasonable compensation and set aside unless plaintiff stipulated to reduce award to $300,000/$250,000. Thompson v Toscano
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Products Liab Workers Comp Defense Independant Contractor
Denial of defendant’s motion for summary judgment on exclusivity provision of workers comp. law modified to remit case for reconsideration after question of employment/independent contractor is determined by WC board who has primary jurisdiction for resolving issue. Defendant raised issue on WC defense where an employee testified that he trained plaintiff who periodically worked for the catering company, closely supervised him, and set his work hours. Plaintiff made out prima facie case for negligence and defendant failed to raise issue of fact. Findlater v Catering by Michael Schick, Inc.
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Motion to Dismiss Meritorious Action Prejudice
Defendants’ motion to dismiss for failing to move for default within 1-year under CPLR §3215(c) denied where plaintiff showed meritorious action, defendant’s denials merely raised issues of fact, defendants failed to show prejudice by the delay, and public policy in favor of deciding cases on the merits. Fling v Integrity Bus. Solutions, Inc.
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Discovery Strike Answer Willful/Contumacious
Defendant building superintendent’s motion to vacate prior conditional order striking his Answer for not appearing at deposition providently denied where superintendent failed to appear on repeated court ordered dates evincing willful/contumacious refusal to comply. Attorneys’ claim they were unable to locate superintendent did not provide reasonable excuse and potential harm to remaining defendants, including superintendent’s employer, was not ground to deny striking Answer. Sepulveda v 101 Woodruff Ave. Owner, LLC
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Vacate Default Reasonable Excuse
Defaulting defendant’s cross motion to vacate prior order granting default judgment denied. Adjuster’s claim that she didn’t assign attorney to Answer because she was negotiating with a separate carrier contractually obligated to defend and indemnify did not provide a reasonable excuse required under CPLR 5015 (a)(1). Adjuster’s claim that she did not receive Summons and Complaint belied by her letter to other carrier indicating that she received it. Kaung Hea Lee v 354 Mgt., Inc.
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MVA Respondeat Superior Admissibility Hearsay
Delivery company made out prima facie entitlement to summary judgment that delivery man driving the truck when plaintiff was injured was independent contractor, but plaintiff presented conflicting proof regarding terms of work including control of work hours, assignments, forms, and use of helpers. Handwritten note by driver that accident happened while he was on his way to a pickup was admissible on a motion for summary judgment even though it was hearsay because it was corroborated by other evidence. Edwards v Rosario
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Negligent Supervision Premises Liab Foreseeability Notice of Claim Causation NYC
NYC cannot be held responsible for negligent supervision of DOE. DOE granted summary judgment on proof that infant-plaintiff’s finger injured when gymnasium door closed on it was not foreseeable and no degree of supervision could have prevented accident. Claim that door was defective insufficient to defeat summary judgment where it was not raised in Notice of Claim and plaintiff never moved to amend the Notice of Claim. K.B. v City of New York
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Legal Mal Motion to Dismiss Statute of Limitations
Plaintiff raised issue of fact in opposition to defendants’ showing that action commenced years after statute of limitation by verified allegations that defendants told plaintiff they would start the accident case that would resolve in seven years and did not tell plaintiff that he did not have a case until after he inquired about status of case after the seven years expiredm raising questions of fact on continuous representation which must be shown by ‘clear indicia of an ongoing, continuous, developing, and dependent relationship between the client and the attorney’. Schrull v Weis
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MVA Rear End Nonnegligent Explanation
Plaintiff failed to make out prima facie entitlement to summary judgment in rear-end case where he submitted defendant’s deposition containing claim that plaintiff abruptly changed lanes and suddenly stopped in front of him. Merino v Tessel
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Premises Liab Slip/Trip Create Condition
Utilities granted summary judgment on proof that they performed no work prior to the accident in crosswalk where plaintiff tripped and fell in a pothole. Igneri v Triumph Constr. Corp.
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Premises Liab Slip/Trip Sidewalk Create Condition Causation
Single-family homeowners granted summary judgment where plaintiff tripped and fell on a defective flagstone on sidewalk adjacent to a flagstone on their driveway which failed to show that the defect was caused by defendants’ special use of driveway. Hanze v City of New York
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Premises Liab Building Security Assault Dram Shop Expert Aff
Restaurant’s motion for summary judgment on lack of security denied where there were no security measures, assault continued over a distance of 40’ with most severe injuries occurring later in the assault, restaurant manager took no steps to stop assault or protect patrons, and plaintiff’s expert opined that they violated safety standards for the type of establishment. Dram Shop claim dismissed without proof that assailant was visibly intoxicated when served. Hirsch v Solares
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Discovery HIPAA BP
Plaintiff’s motion to vacate portions of preliminary conference order requiring him to provide authorizations for full medical records for 3-years prior to accident denied as he put his entire medical condition in issue by broad allegations in BP. Kakharov v Archer
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Dogbite Vicious Propensity Notice
Defendant whose son was walking dog when it jumped up and bit infant-plaintiff granted summary judgment on proof that she did not have notice of vicious propensities in the time she was caring for dog. Facts that the dog previously bit and locked jaws on a stick, that son told infant-plaintiff to get away from dog just before attack, and nature and severity of attack did not raise issues of fact on notice of vicious propensities. Hai v Psoras
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Premises Liab Assumption of Risk Renew
Experienced hockey player ice-skating with teammates voluntarily assumed risk of divot in outdoor ice-skating rink. Motion to renew denied for not presenting new facts that would have changed the outcome. Baron v Southeast Sports Complex, LLC
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MVA Sole Cause
Owner and drive of assess-a-ride entering intersection not governed by traffic device granted summary judgment on proof that sole cause of collision with vehicle entering intersection from perpendicular road controlled by stop sign, after stopping, failed to yield the right-of-way under VTL §1142(a). Hunt v New York City Tr. Auth.
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Serious Injury ROM Expert Aff
Defendant failed to meet her burden of proof on serious injury where she submitted examining orthopedist’s affirmed report showing normal ROM as well as examining neurologist’s affirmed report showing 50% loss of ROM in cervical spine. Alexander v Annarumma
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Serious Injury BP Expert Aff
Defendants failed to meet burden of proof on serious injury where their expert found significant limitations in ROM in plaintiff’s knee and failed to address 90/180-day allegations in BP. Singleton v F & R Royal, Inc.
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Med Mal Reargument
Defendant’s appeal from denial of motion to reargue prior order denying motion for summary judgment for postsurgical care that was appealed and dismissed for failure to prosecute dismissed as barred by prior appeal where defendant failed to show any basis for court to exercise discretion. M.H. v Tucci
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