November 21, 2023 | Vol. 392

(6 summaries)

Negligent Supervision   Causation   NYC  

Second Department
NYC and DOE failed to meet burden for summary judgment dismissing negligent supervision claim of seventh grader whose finger got caught in hinge of cafeteria door when student monitor (also a seventh grader) closes the door, plaintiff’s finger was stuck for 3-minutes, and the tip severed when the monitor opened the door. Proof there was no adult supervision in the area of the door as assistant principal tryed to get assistance left questions of whether school provided adequate supervision and whether they played a role in empowering or training the student monitor about closing the door. This was not a situation where the accident happened so fast that no degree of supervision could have prevented the accident. Fleming v City of New York    

Malicious Prosecution   Motion to Dismiss   Statute of Limitations   Notice of Claim   Amend Complaint   Notice   Prejudice   NYC  

First Department
Plaintiff’s cross motion to amend the Complaint to include a malicious prosecution claim granted, despite all other claims being dismissed for failure to file a timely Notice of Claim, as the allegations in the original Complaint that officers acted in the scope of their employment when they unlawfully detained plaintiff, lodged false charges, sent fabricated evidence to the DA, and assisted the DA in prosecuting plaintiff knowing the charges were false gave defendants notice of the malicious prosecution claim under the relation-back doctrine and plaintiff timely filed a Notice of Claim for the malicious prosecution claim 57-days after his conviction was overturned, 41-months into a 6-year sentence, and filed the Complaint 7-days before the statute of limitations expired.

Defendants not prejudiced by 3-year delay in commencing the suit where they investigated the original charges and stayed involved in the case until plaintiff was released from prison. Spruill v City of New York    

MVA   Vacate Default   Reasonable Excuse   Meritorious Action   Causation   Preclusion  

Second Department
Plaintiff’s motion to vacate summary judgment, granted on default, denied where defendant agreed to her second extension of time to oppose but she did not notify the court of the extension. Even if plaintiff had a reasonable excuse for the default, she could not show a meritorious action as escaping from police custody and running into the street where she was struck constituted “serious criminal activity” which was the direct result of the accident. New York public policy bars recovery for injuries caused by a person’s own serious criminal activity. Perri v EJ’s Auto Repair, Inc.    

Dogbite   Vicious Propensity  

Second Department
The Second Department granted pet-friendly restaurant summary judgment where its patrons’ dog bit the infant-plaintiff, declining to extend the limited exception to liability for dogbites without knowledge of a dog’s vicious propensities where defendants have specialized knowledge of animal behavior (veterinarian) in Hewitt v Palmer Veterinary Clinic, PC to other non-owners of the dog. Non-owners may be held liable on negligence but only if they had knowledge of the dog’s vicious propensities or special knowledge of animal behavior. Cantore v Costantine    

Comment: Hewitt v Palmer Veterinary Clinic, PC was reported in Vol. 233.

MVA   Bus   Motion to Dismiss   Personal Juridiction  

First Department
Defendants’ motion to dismiss for lack of personal jurisdiction granted where 2-defendants were never served and the remaining 2-defendants were served with the Summons and Complaint by first class mail but not with the statement of service by mail or the acknowledgment of service as required by CPLR §312-a. Carney v Metropolitan Transp. Auth.    

Child Victims Act   Negligent Hiring   Negligent Supervision   Discovery  

First Department
Plaintiff’s request for documents or information on whether archdiocese knew or should have known of priest’s sexual abuse of children before and at time of plaintiff’s abuse and their response to child abuse claims, whenever created or gathered, granted as evidence could be useful on direct, cross, or rebuttal, was specific, not founded on hypotheticals, not a fishing expedition, and permissible under the existing case management order where plaintiff showed the information was likely contained in documents prepared after his abuse.

Archdiocese failed to show First Amendment issues were implicated by Canon Law or sacramental issues or that confidential information was sought. McNierney v Archdiocese of N.Y.    

(20 summaries)

Assault   Battery   Discovery   Preclusion   Prejudice  

Second Department
Plaintiffs in putative class for sexual assault by physician granted portion of motion to proceed under pseudonyms based on their affidavits showing they were sexually assaulted, some as minors, would relive the incidents if their names were associated with the case, and feared damage to their reputations, humiliation, and retaliation causing them to lose sleep if their names were revealed. Defendants failed to show prejudice where portion of motion which was to preclude plaintiff’s from having to reveal their identities to the defense was denied as it would inhibit defendants’ ability to defend the case. Doe v Khandker    

Child Victims Act   Motion to Dismiss   Statute of Limitations  

First Department
Defendant’s motion to dismiss Child Victims Act’s claim as barred by statute of limitations denied where the action was timely brought given the executive Covid toll and plaintiff adequately pled abuse, bringing claim within CPLR §214-g. Plaintiff was not required to plead that the action was timely commenced. Doe v Archdiocese of N.Y.    

Malpractice   Vacate Default   Motion to Dismiss   CPLR § 3126  

Second Department
Plaintiff failed to show court lacked jurisdiction to render order granting defendants’ CPLR §3126 motion to dismiss for failure to file a Note of Issue by time specified in an order on grounds she was not served with the motion where affidavit of mailing to plaintiff-attorney’s correct address raised a presumption of proper service and plaintiff failed to rebut the presumption. Plaintiff also failed to establish the order should be vacated in the interest of justice. Wilson v Saini    

Motion to Dismiss   Control   Vicarious Liab   Personal Juridiction  

First Department
Defendant, lessee of hangar in NJ where plaintiff stuck his head on an airplane while loading supplies, denied dismissal for failure to state a cause of action where its aircraft service agreement did not show if it or company that provided aircraft and flight crew controlled the pilot who directed plaintiff’s work and plaintiff adequately pled the pilot was the lessee’s “special employee” for vicarious liability. The “special employer doctrine has been applied outside of workers’ compensation cases.” Plaintiff failed to state causes of action against lessee’s CEO without allegations he acted outside the scope of his position as officer and against CEO’s personal financial manager.

Motion to dismiss for lack of personal jurisdiction by hanger lessor, a NJ company, and its parent companies granted where the lease did not specify personal jurisdiction, it did transact or provide goods or services in NY, and there can be no jurisdiction against the parent companies where the subsidiaries are not subject to personal jurisdiction. Medina v Jet Aviation Holdings USA, Inc.    

Malpractice   Accepted Practice   Causation   Conclusory   Speculation  

Second Department
Oncologist granted summary judgment on proof patient with recurring fever was referred to him to rule out lymphoma or other cancer and she did not rely on him to diagnose an infectious disease where her primary doctor also referred her to an infectious disease doctor whom she did not see and on oncology expert’s opinion defendant-oncologist did not depart from accepted practice in his oncology work up or in not diagnosing endocarditis which was outside the scope of his duty as a medical oncologist.

Plaintiff’s internal medicine and infectious disease expert’s opinion that oncologist departed from standards of internal medicine was irrelevant and he failed to lay a foundation to opine on the standards of medical oncology. Plaintiff’s surgical oncology expert also failed to lay a foundation to opine on the standards of medical oncology, which is a separate specialty, and his testimony from prior trials that he only provided surgical care to patients already diagnosed with cancer rebutted his claim to knowledge of standards of medical oncology. Plaintiff’s experts’ opinions were conclusory and speculative where they failed to address specific assertions and evidence relied on by defendants’ expert and their opinions and were contradicted by the record. There was 1 dissent. Abruzzi v Maller    

MVA   VTL §1104   Reckless   Causation   Premature Motion  

Second Department
Town, police department, and officers granted summary judgment on proof they were entitled to the reckless standard of VTL §1104 while pursing motorcyclist with lights and sirens on and were not reckless or a cause of motorcyclist’s crash where 1-officer fell back and the other officer lost sight of the motorcyclist 1.5-miles before the accident when the motorcycle sped up to 90 mph. Neither officer was near the plaintiff at the time of the accident.

Motion was not premature where the officers’ affidavits were clear and consistent with the other evidence and plaintiff’s guardian failed to provide an evidentiary basis to show discovery might lead to relevant information or information solely within defendants’ knowledge. Rojas v Town of Tuxedo    

Comment: Motorcyclist sustained a brain injury and remained in a coma since the accident.

MVA   Vicarious Liab  

First Department
Sua sponte order granting plaintiff summary judgment against auto garage whose employee drove a vehicle outside the garage and struck plaintiff reversed as “[a] motion for summary judgment on one claim or defense does not provide a basis for searching the record and granting summary judgment on an unrelated claim or defense” and the only issue before the lower court was whether the vehicle owner who left the vehicle at the garage could be vicariously liable for the auto mechanic’s actions. Christopher v Piard    

Comment: Vehicle owner granted summary judgment on proof she did not give the auto garage permission to take her vehicle outside the garage.

Labor Law §240   Stairs   Safety Devices   Assumption of Risk   Comparative Fault   Waiver  

First Department
Plaintiff denied summary judgment on Labor Law §240(1) where he tripped in gap between stairs and landing while carrying a heavy bucket of cement in one hand and a 4′-level in the other as there were other stairs available, leaving a question of whether the stairs were a safety device under §240. Since plaintiff did not serve or indicate he intended to serve a reply before the return date, it was unnecessary to remit the matter where the lower court decided the motion before the return date. Plaintiff granted summary judgment dismissing assumption of risk defense where defendants did not oppose that portion of the motion but denied summary judgment dismissing comparative fault defense where plaintiff voluntarily carried the heavy materials while descending the stairs and there was evidence a hoist may have been available. Gamez v Sandy Clarkson LLC    

MVA   Bicycle   Turning Vehicle   There to be Seen   Causation   Comparative Fault  

Second Department
Plaintiff granted summary judgment on liability on testimony and surveillance video from store near intersection showing defendants’ driver made a left turn when it was unsafe to do so into the path of the bicycle, failing to yield the right-of-way or see what was there to be seen. Plaintiff denied dismissal of comparative fault defense where questions remained of whether he failed to keep a proper lookout, slow down sooner given the traffic conditions, or contributed to the accident, Plaintiffs no longer must prove freedom from comparative fault for summary judgment on liability. Bornsztejn v Zito    

Premises Liab   Sidewalk   § 7-210   Create Condition   Causation   Experts  

First Department
Plaintiffs’ husband’s affidavit that he saw his wife’s foot catch on a lump on the sidewalk causing her to fall met plaintiff’s burden for summary judgment but defendants raised issues in opposition on administrative code §7-210 claim by conflicting expert opinions of whether the condition was created by the defendants, defective, and a cause of plaintiff’s fall. Plaintiff’s claims for violation of administrative code §19-152(a) and 34 RCNY §§ 2-09(f)(1) and (5), holding property owners responsible for differences greater than 1/2″ between sidewalk flags, rejected. Davidson v Shubert Org., Inc.    

Premises Liab   § 7-210   Homeowner Exception   Create Condition   Notice   Premature Motion  

Second Department
Homeowner granted summary judgment dismissing claim for trip/fall on their sidewalk on proof they were entitled to 1-3 family homeowner exception to administrative code §7-210 where it was a 2-family home. Defendant’s testimony that she was a doctor who used a portion of the basement as a “study or home office and” it had office equipment was insufficient to take it out of the homeowners exception without proof it was used regularly or claimant to it as a tax deduction.

Defendant also showed she did not create or have notice of the condition under common law. Plaintiff failed to raise an issue in opposition or show discovery was likely to lead to relevant information or information solely within defendant’s knowledge necessary to oppose the motion. McCalla v Piris-Fraser    

Labor Law §240   Gravity Risk   Safety Devices   Appealable Order  

First Department
Worker who fell 18’ from scaffold material stacked on a truck bed granted summary judgment on Labor Law §240(1) where he was provided with a safety harness but no place to tie off. Fact he tripped on a scaffold board did not take it out of §240. Construction manager was a proper §240 defendant where it acted as a GC and contracted to perform the scaffolding work but the Court declined to search the record to grant plaintiff summary judgment against that defendant where plaintiff did not cross-appeal the portion of the order which dismissed the claim against that defendant. Agurto v One Boerum Dev. Partners LLC    

Premises Liab   Create Condition   Notice   Last Inspection   Recurring Condition   Raised For First Time  

Second Department
NYCHA granted summary judgment dismissing plaintiff’s claim for slip and fall on urine in interior staircase on caretaker’s affidavit and testimony of caretaker’s supervisor establishing there was no urine on the staircase when the caretaker last inspected it before leaving at 4:30 PM and no complaints of urine on the staircase before 10 PM went plaintiff fell, establishing lack of notice.

Plaintiff failed to raise an issue for a recurring condition in the specific area where she fell and argument that motion should have been denied for failure to attach the pleadings rejected where raised for the first time on appeal. Brannon v New York City Hous. Auth.    

Asbestos   Causation   Experts  

First Department
Plaintiff’s medical expert and expert industrial hygienist raised issues in opposition to motion for summary judgment by company that provided putty containing asbestos by opinion that decedent’s exposure range exceeded known causative levels for mesothelioma based on simulation studies showing mixing and sanding the putty would have released toxic concentrations of asbestos fibers into plaintiff’s breathing zone, satisfying the scientific expression requirements for specific causation. Sason v Dykes Lbr. Co., Inc.    

MVA   Sole Cause   Emergency Doctrine   Speculation  

Second Department
Owner and driver of vehicle entering intersection not controlled by a traffic device granted summary judgment on proof vehicle with plaintiff as a passenger entered the intersection without stopping at a stop sign, establishing codefendant was the sole cause of the accident by negligence per se for violation of VTL §1142(a). Moving-defendants had a right to anticipate the other vehicle would obey the law and only seconds to react. Plaintiff’s argument that moving-defendants could have avoided the accident was speculative where not supported by the record. Lopresti v Estate of Frank L. Galante    

MVA   Turning Vehicle   Emergency Doctrine   Premature Motion  

Second Department
Owner and driver of vehicle that collided with codefendants’ vehicle carrying plaintiff as a passenger granted summary judgment on liability and dismissing cross-claims for common-law contribution indemnity by proof moving-defendants’ vehicle was traveling under the speed limit, with the green light, slowed down before the intersection, and tried to stop when codefendants’ vehicle coming in the other direction sped up and attempted to make a left-hand turn in front of moving-defendants’ vehicle when it was unsafe to do so violating VTL §1141.

Codefendants failed to raise an issue in opposition by attorney affirmations where they did not submit an affidavit from the driver of their vehicle and the motion was not premature absent proof of what discovery was necessary or solely within moving-defendants’ knowledge to oppose the motion. Kishun v Roman    

MVA   Bus   Discovery   Survelliance Video   Appealable Order  

First Department
Defendants’ appeal from grant of plaintiff’s CPLR §3102(c) pre-suit motion to disclose bus videos dismissed as moot where the videos were provided and the suit started. The issues were not so substantial or novel to permit appeal from a moot order even though the issue is likely to recur. Matter of Cheheli v Metropolitan Tr. Auth.    

MVA   Rear End   Nonnegligent Explanation   Emergency Doctrine  

Second Department
Plaintiff entitled to summary judgment on proof his vehicle was stopped when rear-ended by defendants’ vehicle. Defendant-driver’s claim that he applied the brakes to try and stop before hitting plaintiff’s vehicle but his foot slipped off the brakes due to pebbles on the floor and mat failed to raise an issue on nonnegligent explanation or emergency doctrine. Donnellan v LaMarche    

MVA   Motion to Dismiss   Vicarious Liab   Admissibility   Waiver  

First Department
Defendant’s motion to dismiss for failure to state a cause of action granted on unrefuted proof its van was stolen prior to the accident rebutting the VTL §388(1) presumption of consent and plaintiff failed to raise an issue of whether defendant left the keys in the van while it was on and unattended under VTL §1210 (a). Hidalgo v WCBS-TV    

MVA   Sole Cause   Nonnegligent Explanation   Speculation  

First Department
Defendants met burden for summary judgment on proof the sole cause of the accident was plaintiff’s failure to yield the right-of-way when entering the intersection from a street controlled by a stop sign. Plaintiff’s speculation that defendant-driver must have been speeding because plaintiff stopped at the stop sign and looked both ways before proceeding failed to raise an issue of fact. Miranda v Dream Dr. LLC    

(2 summaries)

Premises Liab   Sidewalk   Snow/Ice   Prior Written Notice   Create Condition  

Second Department
City granted summary judgment dismissing claim for slip and fall on ice on sidewalk over train tracks leading to Metro-North station on proof it did not receive required prior written notice of the condition and plaintiff failed to raise an issue on whether the creation exception to prior written notice applied. The Court does not give the details of the proofs. Miceli v City of Poughkeepsie    

Premises Liab   Out of Possession  

Second Department
Building owner granted summary judgment where plaintiff fell through trapdoor in tenant’s grocery store on proof it was an out of possession owner with no responsibility to maintain the interior of the store by contract, course of contract, or statutes relied upon by plaintiff. The Court does not give the details of the proofs. Myers v Linden Express Deli Corp.    

About Matt McMahon

Civil trials and appeals since 1984. Retired partner McMahon | McCarthy.
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