|NOTEWORTHY||IF YOU MUST READ|
Second Department upheld lower court’s order requiring plaintiff to respond to BP demand to state whether she notified anyone in defendant’s store of her fall even though it is not specified in CPLR §3043 and ordered the parties to submit affidavits/or affirmations on whether and in what amount plaintiff’s counsel should be sanctioned for a frivolous argument and appeal, including appellate costs, where plaintiff argued the demand was an interrogatory that waived defendant’s right to EBT. Ethington v H & M Hennes & Mauritz, L.P. ✉
NYC granted summary judgment dismissing claim that officer negligently directed vehicle creating the dangerous condition that caused plaintiff’s accident where neither the Notice of Claim nor pleadings alleged the essential facts of a special relationship for special duty by taking control of a “known and dangerous condition.” The dangerous condition must exist before NYC takes control of it, and plaintiff did not allege the intersection was inherently dangerous or that drivers were violating safety laws. Polito v Escorcia ✉
NYC defendants’ motion to dismiss where the Notice of Claim had wrong address of school in Queens County granted where defendants were prejudiced by providing custodian from Queens school for EBT and searched records for Queens school, not correct school in Brooklyn with same PS number, and they did not discover the error until the eve of trial. Davis v City of New York ✉
NYC met burden for dismissal on proof plaintiff had not pleaded prior written notice of defect that caused plaintiff to trip on sidewalk and most recent Big Apple Map which did not show the type of defect alleged by plaintiff but plaintiff raised an issue on prior written notice by the Big Apple Map and photographs. NYC’s argument that the Big Apple map was irrelevant because the area had been repaired rejected where raised for the first time on reply and proof showed defect remained after the repair.
Plaintiff’s evidence properly considered in order to correct the pleading deficiency. Because plaintiff previously alleged actual notice and NYC was aware of the Big Apple Map, it could not be prejudiced by the amendment and the Court deemed the pleadings amended to conform to the proofs on prior written notice. While the Notice of Claim did not allege prior written notice, it was sufficient to give NYC the ability to locate and investigate the accident. Bchakjan v City of New York ✉
Hospital’s and physicians’ motions for summary judgment denied where questions remained of whether they failed to follow decedent’s directives in his ‘Forgoing Life-Sustaining Treatment Including DNR’ form and living will and whether their administration of IV antibiotics prolonged decedent’s life, causing him to sustain pain-and-suffering. Lanzetta v Montefiore Med. Ctr. ✉
Plaintiff who tripped on hose on sidewalk running from truck to restaurant was not required to allege she sustained a serious injury where she alleged it was inapplicable as the “use or operation” of the truck was not a cause of her injuries. Truck owner’s motion to dismiss for failure to state a cause of action denied where the allegations taken in light most favorable to plaintiff fit within a cognizable legal theory. Skefalidis v China Pagoda NY, Inc. ✉
Lower court erred in setting aside arbitration award where arbitrator set forth at least a “barely colorable justification” for pain/suffering award and petitioner’s disagreements with arbitrator’s credibility determination and analysis of awards for similar injuries were insufficient to vacate award. Lack of arbitration transcript does not preclude review of award. Matter of Jackson v Main St. Am. Group ✉
Comment: From lower court order, arbitrator discounted testimony of petitioner’s medical and economic experts in favor of respondent’s orthopedic expert on grounds he gave a more detailed explanation and had an Ivy League degree.
Lower court improperly denied plaintiff’s motion to reargue his motion for a default judgment against nursing home for failure to serve CPLR §3215(g)(4) additional notice which is only required for domestic and foreign corporations and not LLCs such as the defendant. Motion should not have been denied for improper service without first determining defendant’s status and who was the proper defendant. Case remanded for further determination on the motion. Mitchell v Kingsbrook Jewish Med. Ctr. ✉
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Plaintiff’s motion to vacate default in opposing defendants’ motion for summary judgment denied where plaintiff failed to submit opposition after motion was adjourned, plaintiff’s request for another adjournment was denied, and plaintiff waited 8-months to move to vacate judgment after service with Notice of Entry. Attorney’s explanation that case had been diaried to make sure opposition was filed, but was not followed up on, constitutes mere negligence not law office failure and did not provide a reasonable excuse. Sauteanu v BJ’s Wholesale Club, Inc. ✉
Defendant’s motion to vacate its default in not appearing at 2-preliminary conferences, resulting in 22 NYCRR 202.27 dismissal, denied where attorney still represented plaintiff and was aware of his obligation to appear and substitute counsel’s delay of 18 months in moving to vacate failed to provide a reasonable excuse for the default. Stewart v Petrolite Inc. ✉
Motion to set aside verdict that found NYC 70% at a fault for not training lifeguards regarding “shallow water blackout,” not providing enough lifeguards, and for 2-lifeguards being away from pool deck when decedent drowned, and for judgment as a matter of law, denied where there was a rational path for the verdict and 30% apportionment of fault to decedent was not against weight of the evidence. Award of $440,000 past and $1,050,000 future pecuniary loss for 15-years, reduced by lower court to $308,000/$210,000 for 3-years, set aside unless plaintiff stipulated to award of $308,000/$400,000 past/future pecuniary loss. Decedent was a 21-year-old loving son, employed in his family’s business, living at home, and caring for a younger sibling. Vitenko v City of New York ✉
Plaintiff’s motion to set aside defense verdict on grounds trial court improperly gave PJI 2:76A charge that he had a duty to avoid placing himself in a dangerous position while riding his bicycle denied as cyclists on roadways are subject to the responsibilities of a vehicle driver under VTL §1231, including keeping a vigilant watch and avoiding placing themselves in a dangerous position. Sturm v Chaudhary ✉
Motion for summary judgment by former distributor of asbestos cement pipe that plaintiff claimed he worked with and which exposed his mother to asbestos from laundering his clothes denied where questions remained of whether plaintiff worked with their pipes. Punitive damage claim dismissed as it is only appropriate “in ‘singularly rare cases’ such as cases involving an improper state of mind or malice or cases involving wrongdoing to the public” and there was evidence distributor placed multiple warnings, such is not to use with dry saws. Failure to have warnings on all pipes was merely negligence where there was no proof distributor attempted to conceal the dangers. Arana v A.O. Smith Water Prods. Co. ✉
Comment: Punitive damage claim dismissed against same distributor for same reasons where plaintiff-contractor claimed distributor concealed dangers by failing to put warnings on all of its pipes. Maffei v A.O. Smith Water Prods. Co..
Special Master in asbestos litigation providently exercised discretion in ordering defendant’s deposition on issue of punitive damages where their responses to the standard interrogatories on punitive damages were insufficient. Defendant’s reliance on non-asbestos cases inapplicable given the exceptional needs of asbestos cases. Matter of Maseto v A.O. Smith Corp. ✉
Summary judgment granted dismissing Labor Law §240(1) claim of worker who was demolishing bathroom wall while standing on second step of 3’ ladder when wall fell causing him and ladder to fall as cement board was not an object being hoisted or which needed to be secured for plaintiff’s work and it did not fall from lack of an enumerated safety device. Labor Law §200 and negligence claims dismissed on proof defendants did not have authority to control means/methods of plaintiff’s work.
Plaintiff’s cross-motion for summary judgment based on Labor Law §241(6) premised on industrial code §23-3.3(c)(hand demolition) denied where questions remained of whether cement board fell because of structural instability or as a result plaintiff’s work. Carranza v JCL Homes, Inc. ✉
Home care agency met burden for summary judgment with aide’s testimony that she did not use scissors, previously used to cut away soiled diapers, to trim dead skin from decedent’s foot but plaintiff, decedent’s son, raised issues by his testimony he noticed an unusual straight cut on his mother’s foot and observed rusty scissors on the TV stand at the same time and medical records documenting his complaints that the aide used the scissors to cut his mother’s skin. Conflicting expert opinions on the cause of the infection that resulted in an above-the-knee amputation left issues of fact requiring denial of summary judgment. Curry v Martin ✉
Law firm showed prima facie that action was commenced beyond 3-year statute of limitations for legal malpractice which accrued when the no-fault and personal injury cases were settled without first obtaining the workers comp carrier’s consent. Plaintiffs claim of continuous treatment not considered where first raised on appeal. Kreutzberg v Law Offs. of John Riconda, P.C. ✉
Defendants granted summary judgment on plaintiff’s testimony that pole for sidewalk shed was placed in middle of sidewalk leaving 3′ on either side for pedestrians and that she tripped when her and her husband walked side-by-side on the curbside 3′ passage and her husband nudged her, causing her foot to contact and trip on tree well edge. Placement of pole merely provided circumstances for the accident, not a cause. Plaintiff’ expert’s opinion of building violations was speculative where condition had changed by time of his inspection and, in any event, would not have been a cause of plaintiff’s fall.
Building owner granted summary judgment of contractual indemnity claim against contractor where clause triggered indemnity for any claims arising from contractor’s work. Kalnit v 141 E. 88th St., LLC ✉
Elevator maintenance company failed to show it did not owe a duty to plaintiffs where it was required to maintain elevator in a reasonably safe condition under its contract, leaving questions of whether it entirely displaced the owners’ duty to safely maintain the elevator and whether it ought to have found or used reasonable care to find and correct the dusty condition in the motor room.
Contractors that installed and managed communication equipment on roof granted summary judgment dismissing indemnity and contribution claims on proof they did not create any dust or debris. Communication equipment owner entitled to contractual indemnity for attorney fees and defense costs from contractor that upgraded equipment where plaintiffs made claim of injury from its work which triggered clause requiring indemnity for claims made as a result of contractor’s work but contractual indemnity claims against project manager with same indemnity clause denied where plaintiffs made no claim that its work injured them. Alicea v Medjugorje Realty, LLC ✉
Plaintiff granted summary judgment against HVAC contractor that left Masonite board on the floor, leaving the premises ‘less safe’ than before and launching an instrumentality of harm and contractor’s claim it was instructed to leave the board by the owner’s agent did not change the result. Issue of comparative fault remained for jury’s consideration.
Owner-defendants granted summary judgment on their common-law indemnity claims against HVAC contractor where there was no proof owner-defendants were actively negligent or controlled the work. Drummond v 450 Partners LLC ✉
Owner of building where tenant tripped over entry doorstep of tenant’s pizza shop failed to show it was an out-of-possession owner where the lease required the owner to maintain and repair the exterior and tenant could only make non-structural repairs but granted summary judgment on proof construction occurred prior to 2008, making 2008 building code plaintiff relied on inapplicable, and condition was open/obvious and not inherently dangerous. Plaintiff’s expert failed to show prior repairs would bring the pizza shop within the 2008 building code. Tsokolakyan v Tiffany Mgt., Ltd. ✉
Plaintiff’s CPLR §3124 motion to compel defendants to provide supplemental responses to plaintiff’s post-EBT demands denied where defendants provided numerous responses over 7-years, produced multiple witnesses, provided all available documents including maintenance/work tickets for the freight elevator plaintiff tripped on which duplicated the missing logbook, and provided sufficient Jackson affidavits describing diligent efforts to find the missing elevator maintenance contract and logbook. Walsh v West Gramercy Assoc. LLC ✉
NYC grated summary judgment on proof it did not have notice of ice condition on walkway under MetroNorth overpass which plaintiff claimed was caused by water leaking from the roof of the tunnel onto the walls, that it did not receive any complaints of ice or ever remove snow/ice on the walkway in the tunnel, plaintiff’s testimony she never saw NYC working in the tunnel, she made no complaints about the condition, and she did not see ice on the walkway 4-days before her fall. There was no proof NYC had notice of a MetroNorth report stating water was leaking in from the tunnel nor did the report establish the leaking formed ice on the walkway or that it was a recurring condition. NYC failed to make out storm-in-progress defense without proof accident didn’t happen during a significant lull in the storm. Ferguson v City of New York ✉
Building owner granted summary judgment on proof she was an out-of-possession owner with no duty by statute, contract, or course of conduct to maintain stairs and plaintiff did not allege a structural defect. Plaintiff failed to raise an issue in opposition. Fuentes v Fisher ✉
Building owner met burden for summary judgment on plaintiff’s 50H testimony that her leg twisted prior to stepping onto sidewalk and the affidavit of its project manager that it shared a property line with the adjacent property where plaintiff fell and it did not create a temporary sidewalk or perform any work in the area where plaintiff fell during construction of an apartment building. The lower court providently searched the record and granted summary judgment to defendant-construction-company.
Plaintiff failed to raise an issue with speculation that defendant made special use of the area and failed to show information solely within the knowledge of the defendants made the motion premature. Rivera v City of New York ✉
Lower court providently denied CPLR §3126 motion to strike NYC-defendants’ Answer even though their repeated failure to comply with discovery requests could be deemed willful/contumacious and NYC did not offer a reasonable excuse as they provided most of the outstanding discovery prior to or in response to plaintiff’s motion and their failures were not egregious. A lesser sanction may have been appropriate but plaintiff did not request one.
Defendants required to provide nonmedical information in their possession regarding the inmate who assaulted the plaintiff-nurse at the Metropolitan Detention Complex as it was relevant to her claims, which defendants did not dispute, but not required to provide inmate’s medical condition which was privileged and plaintiff did not obtain inmate’s consent or show she made any attempt to obtain his consent. Defendant was not required to provide personnel records of non-party correction officers where plaintiff failed to show relevancy.
Plaintiff’s motion complied with good faith affirmation requirement by making clear that the issues could not be resolved by the parties. Lane v City of New York ✉
Lower court providently granted defendants’ motion to amend their Answer as there was no prejudice to plaintiff and entertained their motion to dismiss based on the Graves Amendment which was not addressed when plaintiff was previously granted summary judgment on liability but defendants’ documentary evidence did not establish as a matter of law that they were in the business of leasing and leased the tractor-trailer involved in the accident. Issues also remained of whether the defendant-driver was employed by the moving defendants. Steigelman v Transervice Lease Corp. ✉
Appeal from building owner’s unopposed summary judgment motion dismissed as plaintiff is not aggrieved by an order granted without opposition. Tenant-supermarket granted summary judgment on its employees’ affidavits establishing it did not create or have notice of any dangerous condition of the security gate that injured plaintiff. Photos submitted by plaintiff not considered where not authenticated. Birmingham v Linden Plaza Hous. Co. ✉
Building owner and management company granted summary judgment on proof owner was an out-of-possession landlord with no contractual duty to maintain stairs leading to basement in area leased to 7-Eleven and that it did not create or have notice of a dangerous condition. Contractor that performed renovation work on stairs plaintiff, tenant’s employee, tripped on after the renovation work was completed failed to eliminate questions of whether it launched an instrumentality of harm under Espinal.
Common-law indemnity claims by owner and manager against contractor dismissed where they could not be liable and they did not argue the point on appeal. Ghodbane v 111 John Realty Corp. ✉
Building manager failed to meet burden for summary judgment where it did not submit documents or description of management responsibilities for area of building where plaintiff was injured. Building owner granted summary judgment where plaintiff did not oppose summary judgment against owner in lower or appellate court. Kamara v Century Mgt. Servs. ✉
County met burden but denied summary judgment where plaintiff tripped on crosswalk pothole by proof it did not have prior written notice, shifting burden of showing an exception to plaintiff who raised an issue on whether the county created the condition by a negligent repair. Beecher v County of Nassau ✉
Town met burden for summary judgment where plaintiff slipped on ice in municipal parking lot by proof it did not have prior written notice, shifting burden of showing an exception to plaintiff who failed to raise an issue on whether town created an immediately dangerous condition. Cross v Town of Hempstead ✉
NYC granted summary judgment on proof property adjoining sidewalk where plaintiff tripped was not owned by NYC and was not a 1-2 family residence used exclusively for residential purposes under administrative code §7-210 and if plaintiff tripped on the curb it did not have prior written notice as the Big Apple Map lacked an indication of curb defect outside the adjoining premises. Plaintiff failed to show motion was premature without proof essential facts to oppose the motion or facts solely within defendant’s possession were necessary to oppose the motion. Rivera v City of New York ✉
NYC met burden for summary judgment where plaintiff tripped on uneven sidewalk by proof it did not have prior written notice, shifting burden of showing an exception to plaintiff who failed to raise an issue on whether NYC created the condition. Broome v City of New York ✉
NYC and police officers granted summary judgment of false arrest, false imprisonment, and malicious prosecution claims on officers’ testimony and body cam videos showing plaintiff refused to leave the precinct when ordered to do so and admitted at EBT that he intended to provoke the officers, establishing probable cause for arrest on criminal trespass. Williams v City of New York ✉
Defendants granted summary judgment where bus video contradicted plaintiff’s testimony that bus was halfway down the street when plaintiff started his left hand turn, instead showing he started the turn as the bus entered the intersection with the green light. Bus driver who was scanning traffic as he entered the intersection could reasonably expect plaintiff to yield the right-of-way and had only seconds to react under the emergency doctrine. Plaintiff did not show how bus driver could’ve avoided the accident. Batista v Metropolitan Transp. Auth. ✉
Plaintiffs granted summary judgment on proof injured-plaintiff looked both ways before entering crosswalk with signal in her favor and defendant failed to yield the right of way. Defendant failed to raise an issue in opposition. Ahmed v Fernando ✉
City granted summary judgment dismissing Labor Law §200 and negligence claims of worker injured in a construction site within city’s sanitation facility on proof it did not supervise or control any of the manner or methods of plaintiff’s work. Plaintiff and city-defendant denied summary judgment on Labor Law §§240(1) and 241(6) where questions remained of how the accident occurred, if safety devices were available, whether plaintiff was sole cause of his accident, and whether industrial codes relied upon by plaintiff were violated. The Court does not give the details of the proofs. Jarnutowski v City of Long Beach ✉
Lower court providently denied contractor’s motion for summary judgment as premature, with leave to renew after discovery, where documents were not clear on whether work performed was on opposite side of street and 30′ away from pothole plaintiff tripped on. By addressing the arguments on defendant’s subsequent motion to reargue, denial of motion to reargue was appealable. Ceresa v City of New York ✉
Otis elevator granted summary judgment on proof it was not negligent in maintaining the elevator and it had no notice of any misleveling condition. Plaintiff did not appeal from order granting summary judgment to Otis and since Otis could not be found negligent, all crossclaims for indemnity against Otis were dismissed. The Court does not give the details of the proofs. Florez v 215 E. 68th St. L.P. ✉
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Motion to strike NYC’s Answer based on failure to provide court-ordered discovery providently denied and denied based on spoliation claim where plaintiff failed to show NYC negligently or intentionally destroyed evidence, that they knew it should be preserved, and that it was relevant to plaintiff’s case. The Court does not give the details of the proofs. Aldo v City of New York ✉
Dentist and practice met burden for summary judgment on proof dentist did not depart from accepted practice in extracting patient’s wisdom tooth but plaintiffs raised an issue on departure from accepted practice in opposition. The Court does not give the details of the proofs. Schmidt v Bangiyev ✉
Church denied summary judgment for slip and fall where evidence viewed in light most favorable to plaintiff failed to show prima facie that she could not identify the cause of her fall. The Court does not give the details of the proofs. Rozo v Roman Catholic Church of the Precious Blood ✉