November 27, 2018 | Vol. 134 - New York Torts Weekly

MUST READS (5 summaries)
	NOTEWORTHY	IF YOU MUST READ

Sanctions Set Aside Verdict Circumstantial Evidence Open/Obvious

Second Deptartment

Lower court’s order setting aside verdict finding defendant 60% at fault and dismissing Complaint where plaintiff fell from stairs when she turned to look for her grandchildren and mis-stepped, falling off side of stairs/landing without handrail, reversed as jury looking at evidence in light most favorable to plaintiff could find defendant failed to maintain premises in safe condition. An open/obvious condition does not preclude a finding of liability where jury could find that it created a trap for a distracted plaintiff.

Lower court should have granted plaintiff’s motion for sanctions under 22 NYCRR §130-1.1 for making frivolous argument that plaintiff failed to prove defendant’s ownership despite there being no dispute regarding ownership prior to trial, plaintiff read defendant’s testimony admitting ownership which was circumstantial evidence of ownership, and defendant objected to reading further portions of defendant’s deposition on ownership before plaintiff rested. Lower court improperly sustained objection to further reading of deposition without defendant giving any basis for the objection and deprived plaintiff of an offer of proof. There was 1dissent on the granting of sanctions. Cram v Keller

Comment: This is an important decision for the proposition that litigants and judges should make the basis of objections clear when it is not perfectly obvious.

Plaintiff’s attorney relied solely on §130-1.1(c) rather than raising CPLR §8303-a applicable to frivolous claims in personal injury lawsuits which specifically defines frivolous as, inter alia, where “the action, claim, counterclaim, defense or cross claim was commenced or continued in bad faith without any reasonable basis in law or fact and could not be supported by a good faith argument for an extension, modification or reversal of existing law. If the action, claim, counterclaim, defense or cross claim was promptly discontinued when the party or the attorney learned or should have learned that the action, claim, counterclaim, defense or cross claim lacked such a reasonable basis, the court may find that the party or the attorney did not act in bad faith.”

MVA Vicarious Liab Emergency Doctrine

First

Plaintiff’s motion for declaratory judgment granted finding that car dealer who let prospective buyer and her son take car without signing any registration documents remained the vehicle owner and was vicariously responsible for prospective buyer’s son’s negligence when he struck road barricade pushing it onto sidewalk where it struck pedestrian. Plaintiff granted summary judgment against car dealer and buyer’s son where emergency doctrine didn’t apply because barricade was not a “sudden and unexpected circumstance.” Prospective buyer granted summary judgment on all claims. Bunn v City of New York

Med Mal Fraud Motion to Dismiss Statute of Limitations

Second Deptartment

Female patient’s claims that psychiatrist fraudulently induced her into 19-year sexual relationship by telling her that sex with him would improve her mental health and libido, and that both would suffer if she refused, sounded in medical malpractice governed by a 2.5-year statute of limitations and not fraud and was barred by malpractice statute of limitations. Stagnitta v Ambrosino

Labor Law §240 Labor Law §200 Scaffold Control Agent Espinal Indemnity

Second Deptartment

Construction manager granted summary judgment on Labor Law §240(1) on proof that it had no control of he means and methods of work under the contract and did not control the work or supervise safety according to plaintiff’s testimony and, therefore, not an agent of the owner. Plaintiff’s motion for summary judgment on Labor Law §240(1) denied on conflicting stories of how plaintiff fell, including whether he had ever mentioned that scaffold moved causing him to fall. Subcontractor’s motion for summary judgment on common-law negligence denied because of question of subcontractor’s affirmative negligence for launching an instrumentality of harm under Espinal which also required denial of subcontractor’s motion on contractual indemnity. Giannas v 100 3rd Ave. Corp.

Motion to Dismiss Estate

First

Defendants’ motion to dismiss for not timely substituting estate granted where years after death 4 beneficiaries applied for letters which had not yet been issued. Without issue of letters decedent’s former attorney appearing in opposition to motion had no authority to act on behalf of estate. Authority terminated on date of death. Appeal dismissed for lack of jurisdiction. Snipes v Schmidt

Comment: Prior appeal (reported in Vol. 109) dismissed for lack of proof that attorney had authority to act on behalf of estate recalled and vacated by this decision.

NOTEWORTHY (9 summaries)
	MUST READS	IF YOU MUST READ

Premises Liab Sanctions Intervening Cause

First

Plaintiff’s sanctions motion against defendant-contractor for frivolous summary judgment motion on claim that persons who cleaned area after contractor’s work broke chain of causation where plaintiff slipped and fell on dusty condition created by contractor providently denied where lower court found argument was not frivolous no matter how unpersuasive under 22 NYCRR §130-1.1(c). Lucheux v William Macklowe Co. LLC

Comment: The plaintiff’s attorney relied solely on §130-1.1(c) rather than raising CPLR §8303-a applicable to frivolous claims in personal injury lawsuits.

Premises Liab De Minimus Conclusory

Second Deptartment

U-Haul granted summary judgment where plaintiff tripped during daylight on less than 1” stake sticking up from parking lot where area around it was clear of debris or other traps establishing that defect was trivial and did not present a trap. Easley v U Haul

Premises Liab Assumption of Risk NYC

First

Large hole near right-handed batter’s box on NYC baseball field that had been filled with loose clay that became displaced as game progressed raised issues of fact on whether plaintiff’s injury when he attempted to jump over hole was result of a negligently repaired defect that was not as safe as it appeared or whether plaintiff assumed risk. Martin v City of New York

Negligent Supervision Products Liab Warnings Causation Expert Aff

Second Deptartment

School district granted summary judgment where kindergartner’s wet hands slipped from play apparatus crossbar during recess on showing that the 80 students were being watched by 7-10 monitors, which the court found adequate, manufacturer’s employee’s testimony that apparatus was being used appropriately and there were no warnings against using it in that manner, and an expert’s opinion that the apparatus was in good working order and did not violate any standards. Plaintiffs expert’s opinion did not raise issue of fact where expert did not show specialized knowledge, education, training, or experience to render him an expert in this field. Ponzini v Sag Harbor Union Free Sch. Dist.

Labor Law §240 Labor Law §200 Slip/Trip Snow/Ice Open/Obvious Inherently Dangerous Industrial Code

Second Deptartment

There was no common law duty to protect construction worker from slipping on snow on grassy lawn of townhouse complex under construction which was open/obvious and not inherently dangerous. Industrial codes §23-1.7(d)&(e)(slipping & tripping hazards) did not apply on Labor Law §241(6) claim because accident did not happen in passageway or work area. Grosskopf

Premises Liab Dangerous Condition Foreseeability

Second Deptartment

Homeowner whose healthcare worker locked herself out of house and tripped on a stake and wire supporting a bush next to front entrance as she tried to get back in the house granted summary judgment because it was unforeseeable that somebody would walk in that area and homeowner owed no duty to provide lighting or otherwise make that area safe for walking. Pusey v Stark

Motion to Dismiss Service CPLR §306-b Meritorious Action

Second Deptartment

Plaintiff first attempted to serve Summons & Complaint beyond 120-days after filing eliminating good cause for extension to serve under CPLR 306-b. Plaintiff failed to show entitlement to extension in the interests of justice where he did not exercise diligence in attempting service or moving for extension of time to serve, he waited until after defendant made motion to dismiss and statute of limitations had run, defendant did not have notice of the claim until after the statute of limitations ran, and plaintiff did not submit affidavits or certified records making out a meritorious action. Jung Hun Cho v Bovasso

Products Liab Expert Aff

First

Expert’s opinion premised on fact that potholder caught fire after contacting heating element in plaintiff’s oven directly contradicted plaintiff’s unequivocal testimony that it did not was insufficient to raise question of fact on defendant’s motion for summary judgment. Salinas v World Houseware Producing Co., Ltd.

Legal Mal Motion to Dismiss Statute of Limitations

Second Deptartment

Defendants’ evidence submitted on motion to dismiss did not show that material fact in complaint was not a fact or not in dispute. Plaintiff had a cause of action where firm started suit against pizza delivery driver but not Dominos. Legal malpractice suit properly brought even though suit against driver was pending as statute of limitations against firm would otherwise run out. Lopez v Lozner & Mastropietro, P.C.

IF YOU MUST READ (3 summaries)
	MUST READS	NOTEWORTHY

Court of Claims Set Aside Verdict

Second Deptartment

In reviewing interlocutory judgment finding state 100% at fault, Appellate Division had authority to review de novo giving due credit to lower court’s opportunity to examine witnesses’ credibility. The court found no reason to disturb the finding after nonjury trial but did not discuss the details of the proofs other than that the plaintiff hit a pothole on the Sprain Parkway propelling him off his motorcycle and that the state failed to properly maintain the roadway in a safe condition. Rodriguez v State of New York

Serious Injury

Second Deptartment

Defendants made out prima facie entitlement to summary judgment on serious injury by competent medical proof establishing that injured plaintiff did not sustain a serious injury, her injuries were not caused by the accident, and she did not sustain a psychological injury and plaintiff failed to raise an issue of fact in opposition. The court does not give the details of the proofs. Perez v Dixon

Serious Injury

Second Deptartment

Plaintiff raised issues of fact in opposition to defendant’s prima facie entitlement to summary judgment on serious injury. The court does not give the details of the proofs. Soto v Garzon

November 27, 2018 | Vol. 134

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