Serious Injury Set Aside Verdict Preclusion Admissibility CPLR § 3101(d) Prejudice
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
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Premises Liab Slip/Trip Snow/Ice Set Aside Verdict Pain/Suffering
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
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Note of Issue Motion to Dismiss 90 Day Notice Reasonable Excuse Meritorious Action
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.
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Set Aside Verdict Untimely Pain/Suffering Materially Deviates
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.
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Labor Law §240 Set Aside Verdict Sole Cause
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
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Premises Liab Slip/Trip Sidewalk Late Notice of Claim Actual Knowledge Reasonable Excuse Prejudice NYC
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
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Premises Liab Set Aside Verdict Spoliation Survelliance Video Speculation Jury Charge Juror Confusion
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.
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Premises Liab Motion to Dismiss Assumption of Risk Collateral Estoppel Law of the Case NYC
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
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Vacate Default Strike Answer Reargument Discovery IME/DME Willful/Contumacious
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
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MVA Preclusion
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
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Construction Liab. Create Condition Dangerous Condition Question of Fact Indemnity
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
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Premises Liab Slip/Trip Stairs Last Inspection Notice Unknown Cause Expert Aff
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
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Building Security Dram Shop Control Notice Foreseeability Respondeat Superior Spoliation Raised For First Time
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.
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Labor Law §240 Ladder Recalcitrant Worker Sole Cause
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
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Labor Law §240 Labor Law §241 Ladder Indemnity
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
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Labor Law §240 Ladder Sole Cause Comparative Fault
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.
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Labor Law §240 Ladder Safety Devices Expert Aff Speculation Raised For First Time
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
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Labor Law §240 Labor Law §241 Feigned Issue Indemnity
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
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Labor Law §240 Falling Object
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
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Premises Liab Negligent Supervision Slip/Trip De Minimus Feigned Issue Expert Aff Speculation Conclusory NYC
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.
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Premises Liab Med Mal Sole Cause Indemnity
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
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Premises Liab Slip/Trip Out of Possession Building Code Note of Issue Hearsay
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.
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Premises Liab Slip/Trip Sidewalk Prior Written Notice Create Condition Expert Aff
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
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Premises Liab Slip/Trip Create Condition Notice Open/Obvious Inherently Dangerous
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.
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MVA Admissibility Hearsay
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.
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Building Security Notice
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.
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Labor Law §200 Agent Control Create Condition Warnings
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
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Med Mal Duty Accepted Practice Expert Aff
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
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Med Mal Accepted Practice Causation Expert Aff Conclusory
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
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Premises Liab Slip/Trip Wet Floor Create Condition Notice Survelliance Video
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
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MVA Question of Fact NYC
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
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MVA Speculation
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
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Premises Liab Slip/Trip Sidewalk § 7-210
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
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Serious Injury ROM Causation Preexisting Degenerative Expert Aff Speculation
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
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Default Judgment Personal Juridiction Service Reasonable Excuse Meritorious Defense
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
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MVA Default Judgment Reasonable Excuse Meritorious Defense Prejudice Appealable Order
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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