November 24, 2020 | Vol. 237

MUST READS
(9 summaries)
NOTEWORTHY IF YOU MUST READ

Premises Liab   Labor Law §240   Labor Law §200   Late Notice of Claim   Out of Possession  

First Department

Petition to serve late Notice of Claim denied as Dormitory Authority cannot be liable for injuries in CUNY buildings as it is an out-of-possession owner and has no non-delegable duties, such as under Labor Law §§240 and 241, because it surrenders all possession and control after buildings are complete. Matter of Bento v Dormitory Auth. of the State of N.Y.


Note of Issue   CPLR 3404   90 Day Notice  

Second Department

Lower court’s denial of plaintiff’s motion to restore to trial calendar on doctrine of latches reversed as CPLR §3404 does not apply to a pre-Note of Issue case where the Note of Issue was previously stricken after being filed as directed by court before discovery and there was neither a 90-day notice nor dismissal under 22 NYCRR §202.27. Courts do not have authority to dismiss for calendar latches which is limited to statutory devices set forth by the legislature. Guillebeaux v Parrott


Motion to Dismiss   Statute of Limitations  

First Department

Statute of limitations for exposure to harmful substances is 3-years from the earlier of when injury is or should have been discovered accruing on the manifestations of symptoms regardless of when the condition or its causes are diagnosed. Plaintiff’s symptoms for mold exposure identified during doctor visits 1-month before mold inspection identified cause rendered action commenced 3-years after identification of mold untimely under CPLR §214-c. Brightman v Sim

Comment: Important to note that CPLR §214-c is a separate operative statute of limitation. It replaces and is not an extension or toll of a general negligence statute of limitations for exposure cases.


Premises Liab   Duty   Notice   Foreseeability   Causation   Expert Aff  

Second Department

Condominium owed fiduciary duty to unit owners as management company and to owners’ lessee as third-party beneficiary to specific duties under by-laws regardless of whether lessees were identified by name or known when by-laws were signed. Condominium’s motion for summary judgment denied where it failed to eliminate questions of constructive notice of toxic mold as reasonably foreseeable from unit flooding during Hurricane Sandy and separate sewer backup from heavy rains. Desernio v Ardelean

Comment: Unit owners’ expert failed to eliminate all questions of fact on whether mold could cause plaintiff’s injuries (general causation) or whether he was exposed to sufficient levels to cause the illness (specific causation). Defendants failed to eliminate all questions of actual and constructive notice. Desernio v Ardelean.


Discovery   CPLR §3124   Note of Issue   Prejudice  

First Department

Defendants’ motion to compel further discovery 2-years after Note of Issue providently granted where quickly requested after substitution of attorney, on proof they would be prejudiced without the additional information. Valencia v City of New York


Dram Shop   Motion to Dismiss   Wrongful Death   Estate   Amend Complaint  

Second Department

Liquor store that sold alcohol for off-site consumption to plaintiff’s decedent on several occasions prior to date of her death granted summary judgment. Under dram shop act, GOL § 11-101 (1), husband and children would have right to sue for loss of support of the intoxicated person but they failed to plead such support and there were no factual allegations reasonably connecting the sale of alcohol on prior occasions to decedent’s later death. Neither decedent nor her state could recover under dram shop for her wrongful death from her own intoxication.

Complaint was amended as a matter of right while motion to dismiss was pending since the motion extended the time to answer giving them more time to amend the complaint. Remaining causes of action also dismissed. Estate of Tammy Colleen Feenin v Bombace Wine & Spirits, Inc.


Med Mal   Fraud   Punitive Damages   Amend Complaint  

First Department

Plaintiff’s motion to amend Complaint to include deceptive business practice claim under BCL §349 denied as devoid of merit where claim medical providers made misrepresentations was not consumer-oriented conduct under §349 and statements were either not material or mere puffery. Defendant’s motions to dismiss punitive damage claims denied where pleadings alleged a scheme to knowingly misrepresent with wanton dishonesty and fraudulent motive that would permit punitive damages in medical malpractice, and that hospital and health system ratified the misrepresentations. Nadler v Samadi


Med Mal   Motion to Dismiss   Default Judgment   Untimely   Reasonable Excuse  

First Department

Plaintiffs abandoned action under CPLR §3215(c) against 1-doctor without moving for default until 2-years after that defendant’s default in answering and failed to offer a reasonable excuse for the delay. Law office failure excuse offered on appeal, based on lower court’s statement, was vague and insufficient. Claim they did not know doctor’s role in decedent’s care because they were not given certified copies of records unpersuasive where they had enough information to name doctor initially. Zayas v Montefiore Med. Ctr.


Labor Law §240   Falling Object   Comparative Fault  

First Department

Worker struck by 1000 lb. concrete slab that slipped its sling/straps while being hoisted granted summary judgment on Labor Law §240(1). Fact that the slings/straps were inadequate to secure slab showed violation of §240 without proof of how it was secured and why it fell. Plaintiff’s or coworkers’ failure to properly secure load was at most comparative fault that in not a defense under §240. Gallegos v Bridge Land Vestry, LLC

NOTEWORTHY
(36 summaries)
MUST READS IF YOU MUST READ

Serious Injury   Set Aside Verdict   Preclusion   Admissibility   CPLR § 3101(d)   Prejudice  

Second Department

It was error to preclude defendants’ medical expert in damage only trial from testifying based on medical records and testimony in the record, even where he lacked personal knowledge of the specific injuries, and also on the issue of causation not addressed in his CPLR §3101-d report as causation is implicit on issue of damages, requiring judgment on verdict finding plaintiff sustained a serious injury be set aside and new trial ordered. Though not preserved, the Court noted that plaintiff’s failure to disclose a new neck injury 1.5 years before trial prejudiced defendants and would have required a new trial. Gubitosi v Hyppolite


Premises Liab   Slip/Trip   Snow/Ice   Set Aside Verdict   Pain/Suffering  

First Department

Plaintiff’s testimony she saw and appreciated dangers of ice behind defendant’s building before walking on it justified jury’s apportionment of 50%/50% liability. Award of no future pain/suffering could not be reached on fair interpretation of evidence where plaintiff had bimalleolar fracture with ORIF and permanent scarring and set aside unless defendant stipulated to increase award from $150,000/$0 to $150,000/$200,000. Jury could find no economically measurable loss of services of husband. Samlal v Ghanbarpour


Note of Issue   Motion to Dismiss   90 Day Notice   Reasonable Excuse   Meritorious Action  

Second Department

Defendants’ motion to dismiss for failure to file Note of Issue within 5-months of service of 90-day notices granted as plaintiff failed to provide a justifiable excuse for delay or proof of a meritorious action. The Court does not give the details of the proofs. Finizio v Midwest Custom Case, Inc.


Set Aside Verdict   Untimely   Pain/Suffering   Materially Deviates  

First Department

Plaintiff’s motion to set aside verdict as inconsistent untimely where not made before jury discharged and, in any event there was sufficient evidence from experts on both sides for jury’s award of $50,000/$0 past/future pain/suffering as they could find injury was not as severe as plaintiff believed and had resolved by time of trial. Farrugia v 1440 Broadway Assoc.


Labor Law §240   Set Aside Verdict   Sole Cause  

Second Department

Judgment on verdict finding defendants violated Labor Law §240(1), that violation was not a cause, and plaintiff was sole cause upheld where it could be reached on a fair interpretation of the evidence. The Court does not give the details of the proofs. Mancellari v Church of Ascension


Premises Liab   Slip/Trip   Sidewalk   Late Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice   NYC  

Second Department

Sanitation worker’s petition to serve late Notice of Claim granted even though excuse of ignorance and delay in realizing severity of injuries was not reasonable as NYC had actual knowledge within 90-days by unusual occurrence report detailing worker tripped on raised piece of sidewalk and both report and evidence showing condition was unchanged made plausible argument of no substantial prejudice which NYC did not rebut with particularized evidence. Matter of Catania v City of New York


Premises Liab   Set Aside Verdict   Spoliation   Survelliance Video   Speculation   Jury Charge   Juror Confusion  

First Department

Lower court providently denied adverse inference charge request for spoliation where defendant preserved and provided portion of video showing accident and plaintiff did not request extended portion until after it was overwritten and failed to show defendant had an obligation to preserve it, destroyed it with a culpable mind, or that it would have opposed defendant’s version of the accident based on anything other than speculation. Verdict sheet not inherently confusing where consistent with PJI 2:90. McAddley v Western Beef Props., Inc.


Premises Liab   Motion to Dismiss   Assumption of Risk   Collateral Estoppel   Law of the Case   NYC  

Second Department

CYO’s motion for summary judgment granted on assumption of risk where fifth-grader participating in soccer match on field owned by NYC, knew of and appreciated risks inherent on field, including irregular playing surface which he and his mother were aware of and which was not hidden and did not increase risks inherent with playing soccer. NYC’s subsequent motion to dismiss on collateral estoppel of grant of summary judgment to CYO granted as it constituted law of the case and plaintiff could not distinguish assumption of risk between CYO and NYC. V.A. v City of New York


Vacate Default   Strike Answer   Reargument   Discovery   IME/DME   Willful/Contumacious  

First Department

Lower court providently considered proof on reargument that scheduled IME/DMEs infant plaintiffs failed to attend conflicted with their school schedules making it not willful/contumacious to fail to appear at several IME/DMEs. Arshil C. v Meike


MVA   Preclusion  

First Department

Driver and owner of car traveling straight that was hit by taxicab with plaintiff as passenger entitled to summary judgment on driver’s testimony he was driving in his lane when struck on right side by taxi coming into his lane. Plaintiff-passenger did not see accident until after taxi hit lamppost and taxi driver’s affidavit should not have been considered where he was precluded for failure to appear at deposition. Brand v Colas


Construction Liab.   Create Condition   Dangerous Condition   Question of Fact   Indemnity  

Second Department

Concrete subcontractor, which may be liable for creating a dangerous condition on a public street or sidewalk, denied summary judgment on its claim that it finished work and was off site 1-week before accident where questions remained of whether it created sidewalk blockage that forced plaintiff and plaintiff’s decedent into street where they were struck without a safe alternative passageway based on conflicting testimony, and whether it was responsible for implementing a safe passageway and implemented the plan it admittedly charged for.

Summary judgment dismissing contractual and common law contribution and indemnity claims also denied for the same questions of fact. Byrd v Hughes


Premises Liab   Slip/Trip   Stairs   Last Inspection   Notice   Unknown Cause   Expert Aff  

Second Department

Defendants made out prima facie entitlement to summary judgment on proof superintendent found no defects on inspection of stair on day of accident, no one fell on stairs before accident, and plaintiff could not identify cause of fall due to loss of memory from preexisting conditions. Plaintiff’s engineer raised issue of fact by opinion that worn and sloped condition of step caused fall based on review of video of accident and inspection of stairs. De Pepin v Berik Mgt., Inc


Building Security   Dram Shop   Control   Notice   Foreseeability   Respondeat Superior   Spoliation   Raised For First Time  

First Department

Club owners failed to meet burden for summary judgment where questions remained of whether they had control of street in front of club where plaintiff was assaulted, whether assault was foreseeable based on incidents in club leading to assault, violent history of club, and whether club was special employer of security company’s bouncer. Defendants’ reliance of plaintiff’s inability to show assailants were served alcohol when visibly intoxicated insufficient for summary judgment on Dram Shop claim as gaps in plaintiff’s proof do not make out defendant’s burden for summary judgment. Court declined to address spoliation issue raised by plaintiff for first time on appeal. Plaintiff can request spoliation negative inference charge by motion or at trial. Ballard v Sin City Entertainment Corp.


Labor Law §240   Ladder   Recalcitrant Worker   Sole Cause  

First Department

Worker injured when ladder missing step moved and fell granted summary judgment on Labor Law §240(1). There was no evidence to support claim worker knowingly selected defective ladder from safe ones and placed it on an uneven floor without good reason for sole cause by recalcitrant worker. Taking a step up after ladder moved, and not asking co-worker to hold ladder was at most contributory negligence, not a defense to §240. Sinera v Embassy House Eat, LLC


Labor Law §240   Labor Law §241   Ladder   Indemnity  

Second Department

Plaintiff’s motion for summary judgment on Labor Law §240(1) for fall from A-frame ladder that shifted underneath him denied based on conflicting testimony of whether he was in the act of preparing the area for painting, an enumerated activity under §§240 and 241, leaving questions of fact on the applicability of these sections. Defendants’ motions for summary judgment on §§240 and 241 denied based on conflicting testimony. Building owners granted summary judgment on contractual indemnity against tenant based on clear lease provision and proof that building owners were not negligent. Mejia v Cohn


Labor Law §240   Ladder   Sole Cause   Comparative Fault  

First Department

Plaintiff’s unrefuted testimony that ladder shifted causing him to fall and that there were no safety devices to keep ladder upright entitled him to summary judgment on Labor Law §240(1). Without proof that plaintiff chose not to use available safety devices, defendants’ claim of sole cause failed. Failure to secure ladder is at most comparative fault and not a defense under 240. Sacko v New York City Hous. Auth.


Labor Law §240   Ladder   Safety Devices   Expert Aff   Speculation   Raised For First Time  

First Department

Worker granted summary judgment on Labor Law §240(1) on his testimony that unsecured ladder shifted causing him and ladder to fall and defendants’ claimed issue of fact on appropriateness of ladder moot as plaintiff is not required to show ladder was defective. Defendants’ expert’s opinion that he would’ve observed paint splatter on floor 2-years after accident speculative in light of evidence ladder tipped, paint splattered, and superintendent cleaned floor after the accident. Claim plaintiff acting outside of scope of employment raised for the first time on appeal rejected and, in any event, irrelevant where plaintiff and coworker testified superintendent’s husband instructed him to paint ceiling and superintendent did not know what husband instructed worker. Cabrera v 65 Park W. Realty, LLC


Labor Law §240   Labor Law §241   Feigned Issue   Indemnity  

First Department

Worker injured when band of lumber stack being hoisted to roof burst granted summary judgment on Labor Law §240(1). Plaintiff’s testimony that 5-6 workers remained and GC’s testimony that work was “almost done” established plaintiff’s job of receiving construction material was ancillary to construction work, even if received after work was completed. Owner’s claim that work was already completed, and lumber was for furniture was feigned issue to contradict GC’s testimony as owner lacked personal knowledge of the facts. Issue remained on common law negligence and common law contribution and indemnity of lumber company where its employees’ testimony was ambiguous and contradictory on whether the bands were inspected before hoisting. Mejia v Unique Dev. Holding Corp


Labor Law §240   Falling Object  

First Department

Worker struck by bracing timber thrown into trench granted summary judgment on Labor Law §240(1) as it was a load that required securing even if it was deliberately lowered. Plaintiff was not standing in a drop zone and not struck by debris for which securing would not be necessary or expected. Albuquerque v City of New York


Premises Liab   Negligent Supervision   Slip/Trip   De Minimus   Feigned Issue   Expert Aff   Speculation   Conclusory   NYC  

Second Department

NYC granted summary judgment on proof it did not own, operate, maintain, or control schoolyard where seventh-grader tripped while running sprint in afterschool program. DOE and Y that ran program granted summary judgment on proof crack in concrete was trivial based on expert’s measurement of 1/8″-7/16″ with no height differential on either side that would increase the risks. Plaintiff’s affidavit stating it was wide enough for his foot to go into it was feigned issue contradicting his earlier testimony that his toes stopped really hard, his heel stepped on the crack, and it wasn’t wide. Plaintiff’s expert’s opinion speculative and conclusory without description or measurement of crack. DOE and Y proved they did not negligently supervise the infant-plaintiff. K.A. v City of New York

Comment: In a separate decision School Construction Authority granted summary judgment even though it did not transfer title until after the accident where DOE assumed sole “care, custody, control and safekeeping of all school property” when school opened 9-years before accident under Educ. Law. Augustine v City of New York.


Premises Liab   Med Mal   Sole Cause   Indemnity  

First Department

Theater and EMT company that tried to assist plaintiff who passed out during performance granted summary judgment on undisputed fact that injured- plaintiff refused to allow them to help him to the lobby after finding him AAOx3 and he fell as he reached the lobby on his own. A person has an absolute right to refuse medical treatment but cannot hold the provider responsible for such refusal. Medical provider who hired EMT required to indemnify theater under contract, but medical provider failed to make out prima facie case for contractual indemnity against EMT. Fornabaio v Beacon Broadway Co., LLC


Premises Liab   Slip/Trip   Out of Possession   Building Code   Note of Issue   Hearsay  

First Department

Landlord granted summary judgment on lease showing they were out-of-possession owner with no duty to maintain and they never inspected roof where plaintiff fell. Plaintiff failed to raise issue of notice where he never inspected roof or submitted expert opinion that roof violated specific statutory safety provision. Counsel’s claim of statutory violation not probative and plaintiff’s claim to have overheard conversation between his boss and someone he thought was employee of landlord was inadmissible hearsay. Estrella v Rex Realty of Conn., Inc.


Premises Liab   Slip/Trip   Sidewalk   Prior Written Notice   Create Condition   Expert Aff  

Second Department

Village granted summary judgment on proof clerk search record and found no prior written notice of defect on sidewalk and proof condition was result of settling over long period of time and not the creation of an immediately dangerous condition when constructed. Plaintiff’s expert’s opinion failed to raise issue without violation of ” any=”” specific=”” binding=”” industry=”” standard,=”” code,=”” rule,=”” or=”” regulation.”=”” Cuomo v Incorporated Vil. of Garden City


Premises Liab   Slip/Trip   Create Condition   Notice   Open/Obvious   Inherently Dangerous  

First Department

By failing to show that it neither created nor had actual knowledge of protruding display that caused plaintiff’s decedent to trip and fall, supermarket failed to meet burden for summary judgment. Claim condition was open/obvious and not inherently dangerous rejected where issue of reasonableness of condition existed on decedent’s description and supermarket had duty to maintain it in a reasonably safe condition even if open/obvious. Leavy v Key Food Stores Co-Operative, Inc.


MVA   Admissibility   Hearsay  

First Department

Plaintiff injured while entering access-a-ride van that was struck by defendants’ truck denied summary judgment as accident report relied on was unsigned and did not identify the author, source of information, or whether the reporter was under a duty to report necessary for business record exception to hearsay and it did not meet any other hearsay exception. Coronado v Veolia N. Am. Inc.


Building Security   Notice  

Second Department

Defendants granted summary judgment of claim they failed to provide minimal security resulting in tenant being robbed at gunpoint in his own apartment by a group that included another tenant on proof they had no notice of prior criminal activity in the building that would trigger a duty to provide minimal security. Markov v Grecian Gardens Co.


Labor Law §200   Agent   Control   Create Condition   Warnings  

First Department

Worker granted summary judgment on Labor Law §200 and negligence on finding that contractor was statutory agent of owner where it was given authority to supervise work that caused plaintiff’s injury, it was caused by means and methods of work, and created the dangerous condition where it temporarily covered open plumbing holes with limestone bags without warnings, and without monitoring that they stay in place. Wenk v Extell W. 57th St. LLC


Med Mal   Duty   Accepted Practice   Expert Aff  

Second Department

Internist at rehab center granted summary judgment on expert’s opinion of no departure in referring plaintiff for physical and occupational therapy. Internist’s duty was limited to his specialty, and he met that duty by having plaintiff evaluated and confirming she was being treated by physical and occupational therapists. Plaintiff did not oppose motion. Aaron v Raber


Med Mal   Accepted Practice   Causation   Expert Aff   Conclusory  

Second Department

Plaintiff’s expert’s failure to address defendants’ experts’ specific assertions of non-departure and lack of causation rendered opinion conclusory and lacking support in record and did not raise issue of fact in opposition to defendants’ showing of entitlement to summary judgment. The Court does not give the details of the proofs. Choida v Schirripa


Premises Liab   Slip/Trip   Wet Floor   Create Condition   Notice   Survelliance Video  

First Department

Defendants failed to show they neither created nor had actual or constructive notice of water on lobby floor and stairs plaintiff slipped on where it was raining, and superintendent removed rain mat for cleaning without replacing it before fall. Video surveillance did not conclusively show condition was caused by tenant collapsing umbrella moments before accident. Brown v Phillbert


MVA   Question of Fact   NYC  

Second Department

NYC and company repairing traffic signal at intersection where 2-cars collided after entering intersection at the same time, both claiming to have a green light, denied summary judgment on conflicting testimony of repair employees and defendant-driver over whether traffic light at southeast corner was operating and malfunctioning at time of accident. Lewis v King


MVA   Speculation  

Second Department

Defendant granted summary judgment on proof he drove into intersection not controlled by traffic device and was struck by plaintiff’s vehicle that entered intersection against stop sign. Plaintiff’s argument defendant was negligent in not avoiding accident was speculative and not supported by record. Cruz v DiSalvo


Premises Liab   Slip/Trip   Sidewalk   § 7-210  

First Department

Plaintiff’s identification of spot that caused him to fall on photo he authenticated showed defect to be on curb, not sidewalk, that NYC, not abutting landowner is responsible for under administrative code §7-210 and plaintiff failed to raise an issue of fact on defendant’s creation of the defect directly or through special use. Fernandez v 2265 E. Tremont Realty, LLC


Serious Injury   ROM   Causation   Preexisting   Degenerative   Expert Aff   Speculation  

Second Department

Defendant failed to meet burden for summary judgment on serious injury where expert found significant limitations of ROM in lumbar spine and shoulder and failed to explain and substantiate claim with medical evidence that limitations were self-imposed. Defendant conceded injuries were caused by accident rendering opinion of pre-existing and degenerative causation speculative. McGee v Bronner


Default Judgment   Personal Juridiction   Service   Reasonable Excuse   Meritorious Defense  

First Department

Plaintiff’s motion for default judgment denied on undisputed fact that plaintiff did not make reasonable attempt to personally serve defendants. Without personal jurisdiction, defendants were not required to show a reasonable excuse for not timely answering or a meritorious defense. Matter of Petre v Lucia


MVA   Default Judgment   Reasonable Excuse   Meritorious Defense   Prejudice   Appealable Order  

Second Department

Plaintiff’s motion for default judgment against driver of truck, personally served, and truck owner, served by service on secretary of state, providently denied on proof of a reasonable excuse for delay in answering, meritorious defense, and lack of prejudice. Jin Long Liu v CPS Contr. Co., Inc.

Comment: Neither the appellate nor lower court give the details of proffered excuse but from the motion papers it appears to have been the carrier’s administrative delay. Defendant’s appeal from decision finding proper service dismissed as no appeal lies from a decision. Jin Long Liu v CPS Contr. Co., Inc..

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About Matt McMahon

Civil trials and appeals since 1984
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