November 21, 2017 | Vol. 81

(6 summaries)

Premises Liab   Unknown Cause   Causation   Spoliation   Circumstantial Evidence   Building Code  


Plaintiff’s decedent, his daughter who viewed a video of the accident which the landlord destroyed despite being asked to save it by the daughter, the building superintendent who viewed the video, and an eye witness could not say precisely what caused the plaintiff’s decedent to fall on the stairs. The court denied the landlord’s motion for summary judgment finding that there was sufficient circumstantial evidence for a jury to find that the fall was due to poor lighting as measured by plaintiff’s engineer, especially given the negative inference to be charged for destruction of the video. Plaintiff’s engineer’s opinion that the lighting violated the 1916 Building Code standard of “adequate lighting,” but which was not defined, because it violated the subsequent building codes which did define adequate was admissible. There was 1 dissent. Haibi v 790 Riverside Dr. Owners, Inc.

Comment: It is unclear if the same result would have occurred absent the spoliation charge.

Labor Law §240   Labor Law §241   Labor Law §200   Ladder   Sole Cause  

Second Deptartment

Insulation installer granted summary judgment on Labor Law §240(1) on testimony that as he was applying tape near ceiling he felt the ladder shake and fall, that ladder was missing 2 rubber feet and the bottom rung and that the surface was uneven, unfinished, and covered with rubble. Defendants failed to show that plaintiff was the sole cause of accident by showing that he failed to use a proper safety device which was readily available at the work site despite being aware that he was expected to use it. Other ladders were available at his employer’s office but not at the worksite.

Defendants failed to meet their burden on Labor Law §241(6), §200, and negligence by addressing adequately addressing dangerous condition (debris) and that they did not have the ability to control the work, both of which were pled. Cross motions for summary judgment on common law and contractual indemnity denied for failing to show negligence of the alleged indemnitors. Poalacin v Mall Props., Inc.

Comment: The court also found the insurance company obligated to defend and indemnify and in a separate opinion granted the carrier’s motion to sever that cause of action as it would be prejudicial to try the issue of coverage with the issue of liability.

Fraud   Notice  


Referring attorneys’ motion to dismiss 3rd party complaint brought by settling attorneys in New York Diet Drug Litigation which sought contribution for referring attorneys’ alleged failure to scrutinize settlements and claimed disbursements which plaintiffs claimed were intentionally misrepresented as individually negotiated and skewed in favor of settling attorneys’ direct clients and against referred clients granted. If referring attorneys were given notice requiring them to take steps to stop the settlement, such notice would be imputed to their clients, the plaintiffs, who could not then prove justifiable reliance, an essential element for fraud. Matter of New York Diet Drug Litig.

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

Second Deptartment

Defendants denied summary judgment on Labor Law §240(1) where plaintiff was pushing a dolly loaded with 16 pieces of sheetrock weighing 1100 lbs up a temporary plywood ramp, the base of which was 4’-5’ above the ground, when it rolled back hitting the plaintiff then hitting a wall where 2 pieces broke off striking the plaintiff who fell on the ramp. Labor Law §240(1) does not require that the worker or an object fall but only that the injury flows from the application of gravity from a “significant elevation differential.” Labor Law §200 and negligence claims dismissed as the accident involved the means and methods of work and defendants did not have control over the means and methods. Kandatyan v 400 Fifth Realty, LLC

Premises Liab   Untimely   Reasonable Excuse   Duty   Espinal  


One of 15 defendants denied summary judgment for submitting its motion late. Excuse that handling attorney was on trial for 2 weeks, that it was a complicated motion and voluminous file were not reasonable when 14 other parties submitted their motions on time. Summary judgment granted to: GC who owed no duty to plaintiff; to caulking subcontractor because even if it did originally owe a duty the warranty expired and the caulking was intended to be replaced at least 2 years before the accident; to the electrical contractor because there was no proof that they installed the wrong light or that it shorted because of water; to the parking lot architects because there was no proof of a defective design; and to the design architects and structural engineer because their duty to inspect did not create a duty to plaintiff. Kenny v Turner Constr. Co.

Premises Liab   Notice   Last Inspection   Spoliation   Admissibility  

Second Deptartment

Supermarket denied summary judgment where it’s manager who was not working on the day the plaintiff fell on a grape on the supermarket floor testified to only general cleaning procedures and not the last time that the area was cleaned or inspected and, therefore, could not eliminate the question of constructive notice. Cleaning log submitted on motion was not authenticated and not considered. Plaintiff showed that the accident was recorded on a store video, that the video was negligently destroyed, and that it was relevant to the case making an adverse inference charge the appropriate sanction for the negligence spoliation. Eksarko v Associated Supermarket

(14 summaries)

Labor Law §240   Labor Law §241   Scaffold   Sole Cause   Industrial Code   Raised For First Time  

Second Deptartment

Demolition worker granted summary judgment on Labor Law §240(1) where a large piece of an iron window he threw to the ground hit the 6′ scaffold he was using, causing the scaffold to move, the plaintiff to lose his balance and jump from the scaffold where he hit the floor because his lifeline was too long to stop him from hitting the ground. The scaffold alone was insufficient to prevent his fall. Defendants failed to raise a question of fact on whether plaintiff was the sole cause of his accident. Defendants’ motion for summary judgment on Labor Law §241(6) denied as Industrial code §23-1.16(b) (lifeline to prevent fall of no more than 5′) was sufficiently specific for liability. Claim that defendants were not statutory agents of the owner was not considered as it was raised for the first time on appeal. Yaucan v Hawthorne Vil., LLC

Premises Liab   Slip/Trip   Expert Aff   Admissibility   Hearsay   NYC  


NYC failed to meet its initial burden for summary judgment in case where plaintiff tripped in a pothole in the road as its field engineer failed to show that she had personal knowledge of the construction work involved and failed to provide sufficient information to lay a foundation for the business record exception to hearsay for the records she relied on. Oldham v City of New York

MVA   Causation   Sole Cause  


Tractor-trailer granted summary judgment on proof that plaintiff’s decedent was riding his motorcycle faster than surrounding vehicles and weaving in and out of cars when he hit the rear of a vehicle in the center lane and was thrown under a tractor-trailer in the left lane which ran him over. Plaintiff’s decedent was the sole cause of his accident. Fact that tractor-trailer was illegally in the left lane only furnished the condition for decedent’s death, not proximate cause. Plaintiff failed to raise a triable issue of fact or show existing testimony by the defendant driver. Caro v Chesnick

Premises Liab   Wet Floor   Create Condition   Notice  

Second Deptartment

Building owner and manager denied summary judgment where plaintiff fell on a wet floor while exiting office building and saw the water on the floor immediately after he fell when a defendant lifted a floormat with water underneath. Testimony that the floor was to be mopped on the Friday afternoon before plaintiff’s accident on Monday left questions of fact as to whether the owner and manager created the condition or knew or should have known that it existed. Cross motion against nonmoving defendants who were moving furniture into the building at the time of the accident denied as moving defendants failed to show that they were not themselves at fault. Dow v Hermes Realty, LLC

Premises Liab  


Landlord granted summary judgment where child rolled off bed and landed against pipes that carried steam to radiators in the apartment which were not insulated, as insulating the pipes would reduce their functioning and plaintiff’s expert conceded that the pipes were part of the heating system providing some heat to the room. P.R. v New York City Hous. Auth.

Premises Liab   Out of Possession  


Landlord granted summary judgment where it did not retain responsibility for maintaining portion of property where plaintiff fell and, in actual practice, did not maintain the area which was not open to the public. Although lease gave landlord the right to reenter for repairs, plaintiff failed to show that landlord violated a specific statute or that the hole that caused plaintiff’s fall was a structural defect. OSHA provision did not apply since landlord was not the plaintiff’s employer. Martinez v 3801 Equity Co., LLC

Dental Mal   Directed Verdict   Judgment Rule   CPLR § 3101(d)   Informed Consent  


Summary judgment granted to dentists and oral surgeon after plaintiff’s case where plaintiff’s expert testified that both implants, which plaintiff claimed should have been used, and a bridge, which was used, were appropriate treatment options even though expert preferred implants. Plaintiff’s consent was informed, and plaintiff’s expert was properly precluded from testifying regarding bone grafts which were not included in his 3101(d). Nothing in the record showed judicial bias. Reid v Rubinstein



Defendant’s motion to change venue from the Bronx denied where defendant only submitted the accident report on the motion which was not inconsistent with plaintiff’s affidavit, and the summons, showing that plaintiff resided in the Bronx. Moodie v Kehoe

1983 Action   False Arrest   Malicious Prosecution   Notice of Claim   Probable Cause  

Second Deptartment

The lower court improperly denied plaintiff’s motion to amend the Complaint to include 2 claims of 1983 violation because they were not in the Notice of Claim since a Notice of Claim is not a condition precedent to a 1983 action, but the court properly granted summary judgment on all counts on proof that there was probable cause for the arrest in the form of an affidavit from an accomplice and for the prosecution in the form of a grand jury indictment. Plaintiff failed to raise an issue in opposition including on his claim that they failed to give him medical attention where the municipality brought him to a hospital for insulin. Rodriguez v County of Suffolk

Premises Liab   Notice  


Building owner denied summary judgment for failure to show that it did not have actual notice of the defective floor condition in plaintiff’s apartment. Davis v 1715 Walton Ave. Props., L.L.C.

Strike Note of Issue  


Note of Issue vacated and time to make a motion for summary judgment extended where statement in Certificate of Readiness that all discovery was complete was false. Pua v Lam

Serious Injury   Preexisting   Expert Aff  


Defendants met burden for summary judgment on serious injury by neurologist who examined plaintiff and found normal ROM, radiologist who attributed positive MRI findings to preexisting degeneration, and emergency room specialist who opined that ER records were inconsistent with trauma, but plaintiff raised a question of fact by treating orthopedist’s finding of limited ROM initially and on recent exam and radiologist’s objective findings on MRI. Orthopedist sufficiently addressed defendant’s experts opining that the injuries of the otherwise asymptomatic plaintiff were consistent with and causally related to the accident. Paulling v City Car & Limousine Servs., Inc.

Vacate Default   Reasonable Excuse  

Second Deptartment

Defendant’s motion to vacate its default in answering granted on proof that it attempted to update its address with the Secretary of State, did not know that it had not been updated, and did not receive the summons and complaint until long after the motion for default was made. Li Fen Li v Cannon Co., Inc.

Legal Mal   Notice of Claim   Default Judgment   Service   Motion to Dismiss  

Second Deptartment

Plaintiff’s motion for default judgment in legal malpractice case claiming that law firm failed to file a Notice of Claim denied where pro se plaintiff failed to provide proof of service and proof of default. Defendant’s motion to dismiss under CPLR 3211(4)granted where prior action involving the same complaints was pending. Stevens v Law Off. of Blank & Star, PLLC

(2 summaries)


Second Deptartment

Claims of defamation against village mayor and local newspaper dismissed because an average reader would interpret the statements as opinions which would be incapable of being proven false not facts. Brummel v Board of Trustees of the Vil. of E. Hills, N.Y.

Renew   Motion to Dismiss  

Second Deptartment

Plaintiff’s motion to renew prior motion to review hearing officer’s report denying motion to strike defendant’s Answer for willful failure to comply with discovery dismissed as plaintiff did not allege new facts which would have changed the result. Vines v City of New York

About Matt McMahon

Civil trials and appeals since 1984
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