November 23, 2021 | Vol. 288

(6 summaries)

False Arrest   False Imprisonment   Assault   Notice of Claim  

First Department
First Department unanimously overturns its prior precedents requiring plaintiffs to serve Notices of Claim on all individual municipal defendants (detectives), bringing its rule in line with the 3-other departments. Plaintiff was imprisoned for 6-years, including 3-years in solitary, starting when at age 16 even though witnesses identified a different shooter who was prosecuted for the shooting and did not identify the plaintiff as the shooter. Plaintiff ultimately pled guilty, but his conviction was overturned. Wiggins v City of New York    

Vacate Jud   Set Aside Verdict   Pain/Suffering   Materially Deviates   Interest   Raised For First Time   Prejudice   NYC  

First Department
Judgment on verdict of $29,585,000/$29,585,000 past/future pain/suffering for 5.5/54 years set aside unless plaintiff stipulated to reduce awards to $12 million/$17 million. NYC’s proposed counter judgment requesting reduced interest rate under GML §3-a denied for failure to formally move to reduce interest rate, prejudicing plaintiff.

Plaintiff was severely burned when he was 16 during a chemistry class sustaining third-degree burns over 31% of his body, requiring cadaver graphs and later graphs from his own skin resulting in loss of 50% of his original skin, requiring thousands of staples to attach graphs, he never lost consciousness suffering intense physical/emotional pain, the nerves and sweat glands under the damaged skin were destroyed, removing sensation and ability to regulate body temperature, and his condition will worsen over time due to atrophy from loss of the skin’s elasticity and thickness. Yvonne Y. v City of New York    

Vacate Jud   Set Aside Verdict   Experts   Conclusory   Preclusion   Frye   Punitive Damages   Admissibility   Bifurcation  

First Department
Defendant failed to show biomechanical expert’s methodology was generally accepted by expert’s conclusory statement of general acceptance without proof to support his claim his methodology was adopted by the Air Force, NASA, or NASCAR. He admitted his citations did not reflect his methodology but were only helpful in applying it to the facts of the case, and the only article that might have been relevant applied method in a very different context. Being qualified to testify in other cases irrelevant as facts in those cases were different. Argument that he should have been allowed to testify on medical causation as an MD rejected as he was only disclosed as a biomechanical expert for accident reconstruction, biomechanics, and injury causation analysis and defendant’s other medical experts testified on medical causation.

Trial court providently allowed evidence of prior bad acts before it could determine if punitive damages were warranted and bifurcation of compensatory/punitive damages not required. Claims that curative instruction was required, and that plaintiff made improper statements during opening/closing not preserved where not raised at time and there was no request for a mistrial. Review in the interest of justice not appropriate where statements were not so prejudicial as to deprive party of fair trial. De La Rosa v Nelson Ave. Holdings    

Court of Appeals
Court of Appeals finds PHL §18(2)(e) that limits charge for medical records to $0.75 per page for patients and their attorneys does not provide a private right of action for damages where the statute allows the Attorney General to assess a fine of $2,000 per violation as well as other means to enforce compliance, including Article 78 proceedings by the government or individuals. Ortiz v Ciox Health LLC    

Products Liab   Duty  

First Department
Otis elevator granted summary judgment of strict liability claim where elevator door suddenly closed on plaintiff as installation of elevator years before and servicing it after installation ‘would not impose upon [it] strict liability for a defect which developed after installation was completed.” Booth v Otis El. Co.    

Labor Law §240   Ladder   Sole Cause  

First Department
Custodian’s replacing inoperable hardwired smoke detector and battery operated carbon monoxide detector in room in shelter with combined hardwired smoke/CO detector was repair not routine maintenance under Labor Law §240(1) and testimony unsecured A-frame ladder suddenly shifted during the installation entitled plaintiff to summary judgment. Defendant’s claim ladder was not defective insufficient to raise issue and no view of plaintiff’s actions could be considered sole cause of his injuries. Rodriguez v Milton Boron, LLC    

(24 summaries)

Labor Law §240   Labor Law §200   Control   Sole Cause   Indemnity  

First Department
Worker who fell when plank covering structure for concrete form flipped granted summary judgment against owner and GC on Labor Law §240(1). Claims plaintiff fell less than 6′ and defendants complied with OSHA irrelevant to §240. Wooden planks were not a “passageway” but served as an elevated platform or scaffold. Plaintiff could not be sole cause where defendants failed to provide an adequate safety device in the first place and claim plaintiff could have worked from floor level was contradicted by the evidence.

Owner and GC granted summary judgment on Labor Law §200 and negligence claims where they lacked control of means and methods of plaintiff’s work. Authority to control overall safety and stop unsafe work is not control of means and methods. Since owner found free of negligence, it was granted summary judgment on contractual indemnity claim against subcontractor. DaSilva v Toll First Ave., LLC    

Labor Law §240   Scaffold   Sole Cause  

First Department
Proof platform on Baker scaffold fell made out entitlement to summary judgment on Labor Law §240(1) and question of why it fell was irrelevant since it failed to provide adequate protection. Project manager admitted that his allegation plaintiff failed to place a pin to secure the platform was based on opinion not fact and plaintiff testified he did not assemble the scaffold. Claim plaintiff was moving scaffold irrelevant without proof that caused platform to fall. Hernandez v 767 Fifth Partners, LLC    

MVA   Bus   Pedestrian   Set Aside Verdict   Directed Verdict   Causation  

Second Department
NYCTA’s motion to set aside verdict finding its bus driver 100% at fault for accident, and for judgment as a matter of law, granted on plaintiff’s testimony she stepped towards the bus while waiting at the bus stop and next recalled seeing the rear of the bus passing her as she came to lying on the ground which only established the occurrence, not the driver’s negligence. There was no rational path for a jury to find the driver negligent. Kirwan v New York City Tr. Auth.    

Labor Law §241   Labor Law §200   Industrial Code   Notice   Last Inspection  

First Department
Defendants’ motion for summary judgment on Labor Law §241(6) denied on question of whether bottle cap plaintiff slipped on at construction site was accumulation of debris under industrial code §23-1.7(e). Contractors’ motion to dismiss Labor Law §200 and negligence claims denied without proof of when area was last cleaned/inspected. Testimony it was inspected daily, and debris removed by laborers too general to meet burden of showing last inspection. Deleo v JPMorgan Chase & Co.    

Premises Liab   Trivial   Experts   Speculation  

First Department
Defendants’ expert’s measurement of height differential in floor defect in Costco store as less than 9/64ths (0.14) of an inch insufficient to establish defect was trivial without evidence of condition of floor surrounding defect and experts’ opinion based on measurements 2.5 years after accident was speculative. Camara v Costco Wholesale Corp.    

Premises Liab   Snow/Ice   Out of Possession   Create Condition   Notice   3rd Party Contractor   Espinal  

Second Department
Building owner failed to show it was out of possession owner where agreement with plaintiff’s employer covered only operation of a smelting plant, was not a lease, did not restrict owner’s presence on the premises, or release control of maintenance of the premises. Owner failed to establish it did not have actual/constructive notice of formation of ice on machinery that melted and refroze on floor. Defendants who installed and maintained oxygen vaporizing equipment failed to eliminate questions of whether their equipment created the icy condition plaintiff fell on, launched an instrumentality of harm under Espinal, and had actual or constructive notice of the condition. Lamb v BOC Group, Inc.    

Premises Liab   Elevator   Res Ipsa Loquitor   Experts   Create Condition   Notice  

First Department
Elevator maintenance company failed to show sudden elevator drop was result of power loss from building testing its generator where its expert inaccurately incorporated plaintiff’s description of the incident and did not address the sudden drop. Expert’s subsequent opinion was speculative where not supported by evidence and plaintiff’s expert opined the sudden drop was not normal and could not be explained by a power loss which was inconsistent with plaintiff’s descriptions of the lights in the elevator.

Plaintiff raised issue, in opposition to defendants’ showing it did not create or have notice of the condition, under res ipsa loquitor as sudden elevator drops do not normally occur absent negligence and there was no dispute the elevator was in the exclusive control of the defendant or that plaintiff did not contribute to the malfunction. Claim that generator testing took exclusive control of elevator from defendant unavailing. Rivera v Slade Indus., Inc.    

Malpractice   Accepted Practice   Experts  

Second Department
Plaintiff’s expert raised issue in opposition to defendants’ showing of entitlement to summary judgment with opinion defendants departed from accepted practice by leaving residual stenosis during procedure instead of attempting bypass surgery given plaintiff’s propensity to form clots, and for failing hospitalize plaintiff for further work-up and intervention at office visit 4-days later. Plaintiff’s expert’s assertion that plaintiff had leg, not just toe pain on day of the procedure was supported by plaintiff’s deposition testimony. Powell v Singh    

MVA   Wrongful Death   Pain/Suffering   There to be Seen   Notice   Experts  

First Department
Condominium that hired decedent’s employer to string holiday lights on 15-trees, UPS and driver of its tractor trailer denied summary judgment where boom lift was in parking lane with orange bucket extended over closest travel lane with orange cones when UPS driver struck the bucket while changing lanes. Agreement with decedent’s employer provided condominium was responsible to provide location for boom lift. UPS driver testified he never saw the orange bucket, but decedent’s coworker testified it was lit and visible. Lessor of lift granted summary judgment where it had no notice of any danger.

UPS’ motion to strike wrongful death and conscious pain/suffering claims denied where coworker testimony regarding the impending accident and expert testimony of elapsed time supported claims of impending death and pre-accident suffering and questions remained on level of decedent’s consciousness after the accident based on the hospital records. Mothers of decedents’ children provided affidavits of support provide by decedent leaving valuation to jury. Cabrera v Lincoln Sq. Condominium    

Premises Liab   Create Condition   Notice   Last Inspection   Amend BP   Recurring Condition   Note of Issue   Prejudice   Indemnity  

Second Department
Building established it did not create or have actual notice of wet condition of loading dock that UPS driver slipped on but failed to establish lack of constructive notice where security guard testified he inspected area 2-times every 30-60 minutes but did not pay attention to area where plaintiff fell on date of accident and testimony of general cleaning principles by owner and cleaning contractor were insufficient to show last time area was clean/inspected. Plaintiff’s cross-motion to amend BP to add claim defendants knew of recurring condition of trucks bringing precipitation into docks denied where brought after Note of Issue and it contained new facts, prejudicing defendants.

Owner granted contractual indemnity against cleaning contractor where contract language provided broad indemnity and it did not violate GOL §5-322.1(1) which does not apply to routine maintenance and cleaning. Skerrett v LIC Site B2 Owner, LLC    

Labor Law §240   Sole Cause  

First Department
Iron worker who fell from retaining wall while gaining access to worksite granted summary judgment on Labor Law §240(1) as retaining wall presented elevated height risk protected by §240. Plaintiff had no duty to clear snow from hill to access site other than from retaining wall and, therefore, could not be sole cause of accident. Hovorka v Applied Prods. Co., Inc.    

Labor Law §240   Ladder   Sole Cause  

First Department
Plaintiff who fell from prop ladder when top rung detached as he was constructing theater set granted summary judgment on Labor Law §240(1) and he could not be sole cause of the accident where there was no evidence he was instructed to use a different ladder and evidence showed no other ladders were available. Mullins v Center Line Studios, Inc.    

MVA   Bus   Sole Cause   Comparative Fault   Feigned Issue  

First Department
Plaintiff’s and defendant-bus-driver’s testimony that plaintiff’s vehicle was stopped in far right lane when bus hooked plaintiff’s left-side front wheel, lifting car 45 degrees, and dragging it for 10′-15′ established plaintiff was not at fault and bus driver was sole cause of accident. Bus driver’s unsworn statements that plaintiff’s car struck his stopped bus in accident reports contradicted his testimony creating only feigned issue. Wu v Torres    

Premises Liab   Sidewalk   Unknown Cause   Trivial   Create Condition   Notice   Causation   Last Inspection   Experts  

Second Department
Plaintiff’s testimony she fell when wobbly shopping cart wheel went into sidewalk crack in front of supermarket and stopped suddenly causing her to fall, submitted by defendants, rebutted defendants’ claim plaintiff could not identify what caused her to fall by providing 2-possible causes, a defective sidewalk, and a defective cart. Photographs and owner’s architectural expert’s affidavit failed to show sidewalk defect was trivial as a matter of law. Supermarket established it did not create or have actual notice of defective shopping cart but failed to eliminate constructive notice where assistant manager could not identify last time the carts were inspected. Scalia v King Kullen Grocery Co., Inc.    

Premises Liab   Wet Floor   Warnings   NYC  

First Department
Testimony of eyewitness that inmate was mopping floor without warning signs and witness who arrived while plaintiff was still on the floor that floor was wet with no warning signs made out plaintiffs’ entitlement to summary judgment. Criss v City of New York    

Labor Law §241   Labor Law §200   Industrial Code   Create Condition   Notice   Causation  

First Department
Both sides denied summary judgment on Labor Law §241(6) based on industrial code §§ 23-1.7(e)(2)(debris) and 23-1.7(f)(vertical passage) where questions remained of whether wood plaintiff slipped on was integral to work being performed or accumulation of debris and defendant failed to show vertical passage was not required between 2-levels and that lack of vertical passage was not a cause of the accident. Owner and contractor failed to show they did not create or have actual or constructive notice of accumulation of debris for summary judgment on Labor Law §200 and negligence claims. Davis v Trustees of Columbia Univ. in the City of N.Y.    

False Arrest   1983 Action   Negligent Hiring   Assault   Wrongful Death   Motion to Dismiss   Police   Probable Cause   NYC  

Second Department
Where 17-year-old boy was assaulted in subway tunnel when fleeing police for jumping turnstile, and died 2-months later, claims of assault, battery, and excessive force dismissed on proof plaintiff was injured by train, police officers didn’t pursue him into tunnel, or ever touch him. Plaintiff failed to show police were present or involved in assault. Defendants granted summary judgment on false arrest/imprisonment where officers had probable cause where they observed decedent jumping turnstile. Negligent hiring claim dismissed as officers were acting within scope of their duties. 1983 action dismissed without proof of a police policy leading to constitutional violation. Wrongful death claim dismissed as there was no proof death was caused by police. Fludd v City of New York    

Consolidation   Prejudice  

First Department
Plaintiffs’ motion to consolidate for joint trial granted on proof both decedents were exposed to sole defendant’s product and died of same disease, establishing common questions of law and fact. Defendant failed to show it would be prejudiced by joint trial. Matter of New York City Asbestos Litig.    

Negligent Supervision   Assault   Respondeat Superior   Res Judicata   Collateral Estoppel   Coverage  

First Department
Priest’s motion to dismiss negligence claim where his infant son sexually assaulted infant parishioner based on res judicata and collateral estoppel of dismissal of church and archdiocese which Appellate Division found not responsible because priest was, as a matter of law, not acting in his official capacity denied. Nothing in the appellate decision relieved the priest of liability and issues of coverage were not ripe and were distinctly separate from issues of liability. A.M. v Holy Resurrection Greek Orthodox Church of Brookville    

Comment: First Department’s decision regarding church and archdiocese was reported in Vol. 245.

Malpractice   Causation   Amend Complaint  

First Department
Defendant’s motion to dismiss pro se plaintiff’s legal malpractice claim for handling of medical malpractice trial dismissed for failure to state a cause of action where taking allegations as true plaintiff fails to allege any negligence caused actual/ascertainable damages. Plaintiff’s conclusory allegations insufficient to grant motion to amend Complaint. Silverstein v Pillersdorf    

False Arrest   Assault   1983 Action   Probable Cause   NYC  

Second Department
NYC and police officer’s motion for summary judgment granted where presence of cocaine in plaintiff’s boyfriend’s apartment provided probable cause of constructive possession, a defense to false arrest/imprisonment and related 1983 claims, and applying handcuffs during lawful arrest is reasonable use of force. Fischetti v City of New York    

Default Judgment   Vacate Default   Compel Acceptance   Reasonable Excuse   Meritorious Defense   Prejudice  

Second Department
Lower court providently granted NYCTA’s motion to compel plaintiff to accept its Answer after plaintiff’s motion for default judgment was denied when plaintiff failed to show on return date, defendant’s excuse of law office failure of inadvertently failing to diary Answer due date was reasonable, defendants showed a potentially meritorious defense, and there was no prejudice to plaintiff by service of the Answer 3-months after the Complaint was filed and defendants moved to compel acceptance a month later. Plaintiff’s OSC to vacate default in appearing for default motion denied as academic. Patel v New York City Tr. Auth.    

Vacate Default   Law of the Case   Reargument   Appealable Order  

First Department
Defendant’s second motion to vacate default denied as denial of first motion was not appealed and is law of the case. Even if second motion was considered reargument, appeal would be dismissed as there is no appeal from denial of a motion to reargue. Court rejected defendant’s claim motion was for renewal. Gil-Soriano v Northwind, LLC    

Motion to Dismiss   Governmental Immunity   Waiver   Raised For First Time  

First Department
New Jersey Transit Corporation waived subject matter jurisdiction defense based on sovereign immunity where it did not raise the defense in its Answer served more than a month after the Supreme Court Hyatt decision, engaged in discovery and litigation, and did not raise the defense for a year after its Answer. Taylor v New Jersey Tr. Corp.    

(1 summaries)

Strike Answer   Discovery   CPLR § 3126   Willful/Contumacious  

Second Department
Plaintiff’s motion to strike defendant’s Answer for failure to comply with discovery orders providently denied without proof failure to provide discovery was willful/contumacious. The Court does not get the details of the proofs. Irving v Four Seasons Nursing & Rehabilitation Ctr.    

About Matt McMahon

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