November 28, 2023 | Vol. 393

(2 summaries)

Labor Law §240   Grave Injury   Workers Comp  

Second Department
Where plaintiff had been granted summary judgment on Labor Law §240(1) for fall from scaffold, plaintiff’s motion to appoint pro bono attorney to represent corporate defendant after its attorney was granted leave to withdraw for failure to pay fees providently granted to pursue third-party grave injury claim against plaintiff’s employer in order to avoid injustice where plaintiff identified an attorney willing to represent defendant pro bono. Santiago v Panda to Brasil Corp.    

Comment: From lower court decision, employer opposed motion on grounds the pro bono attorney shared offices with plaintiff’s attorney arguing there must be a secret financial arrangement but failed to show how it would be prejudiced and the sole shareholder of both corporations had a clear conflict of interest in the decision to retain counsel.

Malpractice   Informed Consent   Punitive Damages   Mistrial   Appealable Order   Pain/Suffering   Materially Deviates  

First Department
Defendants’ appeal from order denying their motion for a mistrial from the first phase of trial where the jury found liability on malpractice, altering medical records, and failure to give informed consent and awarded compensatory damages not properly before the Court where defendants raised only issues from after the first phase of the trial in the motion below.

Motion to vacate order retraining defendants from dissipating assets to persons other than plaintiff should have been granted on the parties’ stipulation. Rosenthal v Sperling    

Comment: The trial court decision gives a detailed description of the liability portion of the claims for the radiologist altering the medical records to cover-up that an unnecessary and experimental focal laser ablation was performed on the injured-plaintiff’s prostate which was not cancerous and plaintiff was never given informed consent regarding the experimental nature of the procedure. In the first phase of the trial the jury awarded $500,000/$2,075,000 past/future pain/suffering, $29,000 past medical expenses, and $200,000 past loss of society/services. The second phase of the trial was to assess the amount of punitive damages.
(11 summaries)

Child Victims Act   Motion to Dismiss   Notice   Negligent Hiring   Negligent Supervision   Statute of Limitations  

First Department
Defendants’ motion to dismiss plaintiffs’ negligent hiring, retention, and supervision causes of action regarding abuse by priests plaintiff met at youth programs denied where plaintiffs pled defendants had notice of priests’ proclivities to commit criminal acts and the specific facts at this early stage were solely within defendants’ knowledge, establishing that “facts essential to justify opposition may exist but cannot then be stated.” Plaintiffs adequately pled entitlement to file under CPLR §214-b revival statute of limitations by allegations of conduct that would violate Penal Law §130 and/or §263.05. Ark 357 Doe v Jesuit Fathers & Bros.    

Premises Liab   Vacate Default   Reasonable Excuse   Meritorious Action   Prejudice  

Second Department
Lower court improvidently denied plaintiff’s motion to vacate order granting defendants’ motion for summary judgment as unopposed, dismissing claim of infant-plaintiff’s injuries at defendants’ trampoline park, where the parties’ stipulation to a 2-week adjournment was rejected by the lower court as against its part rules, the parties appeared for oral argument, plaintiff showed a reasonable excuse by law office failure, and a potentially meritorious action and defendants were not prejudiced by the short delay. V. C. v Fly High Indoor Trampoline Park, Inc.    

MVA   Bus   Amend Complaint   Negligent Hiring   Prejudice   Punitive Damages  

Second Department
Plaintiff’s motion to file and serve a second Amended Complaint to add a cause of action for bus company’s gross negligence in hiring their bus driver providently granted where the driver’s criminal history raised issues on whether the bus company knew or should have known he was not qualified to operate a double-decker tour bus with passengers and was “conduct that may constitute a willful and wanton disregard for the interests of others.” Bus company failed to overcome the “heavy presumption of validity” permitting amendment, or allege it was prejudiced by the amendment. Portion of motion to add punitive damages claim in proposed Amended Complaint denied. Ferrer v Go N.Y. Tours Inc.    

Malpractice   Wrongful Death   Motion to Dismiss   Statute of Limitations  

First Department
Ambulance service’s motion to dismiss on statute of limitations granted as failure to provide an advanced life support ambulance required the dispatcher to have knowledge of the importance of decedent’s shortness of breath which “bears a substantial relationship to the rendition of medical treatment” sounding in malpractice not negligence and the action was commenced beyond the 2.5-year malpractice statute of limitations. Death claim dismissed where started more than 2-years after decedent’s death under EPTL §5-4.1. Trofimova v Seniorcare Emergency Med. Servs., Inc.    

Premises Liab   Open/Obvious   Inherently Dangerous   Notice   Last Inspection   NYC  

Second Department
DOE failed to meet burden of showing ajar bottom desk drawer plaintiff tripped on when she got up from her desk was open/obvious and not inherently dangerous as an open/obvious condition “may be rendered a trap for the unwary where the condition is obscured or the plaintiff is distracted.” Testimony of custodial engineer who started working a few days before the accident and had no recollection of problems with desks in that month was insufficient to show lack of actual or constructive notice without evidence of the last time the desk was cleaned/inspected. Cosme v New York City Dept. of Educ.    

Premises Liab   Stairs   Wet Floor   Notice   Last Inspection   Indemnity  

First Department
Landlord denied summary judgment dismissing plaintiff’s claim for fall on interior stairs where plaintiff testified the stairs were wet with accumulated rainwater when she arrived at 6:30 pm and when she fell while leaving the tenant’s exercise studio at 7:30 pm and defendant testified the stairs were last cleaned at 12:36 pm under a maintenance schedule that did not extend beyond 3:00 pm, leaving questions of whether there was sufficient time to discover and correct the condition.

Landlord denied summary judgment on contractual indemnity against tenant where lease did not require indemnity for common areas controlled by the landlord. Merino v Larstrand Corp.    

MVA   Turning Vehicle   Emergency Doctrine  

Second Department
Defendant granted summary judgment on plaintiff’s testimony that she first saw defendant’s vehicle as a blur 10′-20′ from her after she started her left hand turn and defendant’s vehicle struck the front passenger side of her vehicle, establishing plaintiff failed to yield the right-of-way when making the left hand turn and defendant had only seconds to react to avoid the accident. Smith v Trail    

Serious Injury   ROM   Experts  

First Department
Defendants granted summary judgment on serious injury where their orthopedic surgeon found normal ROM, no objective evidence of orthopedic disability, plaintiff’s injuries had resolved, and on plaintiff’s testimony and contemporaneous records showing her injuries had resolved. Plaintiff failed to raise an issue in opposition without admissible MRI reports showing objective injury and the report of doctor she submitted did not explain how limited ROM was determined from a “video consultation” or address her treating doctor’s finding of normal ROM 4-months after the accident. Hall v Uber Tech., Inc.    

MVA   Question of Fact  

Second Department
Plaintiff denied summary judgment on conflicting testimony of defendant-driver, submitted on plaintiff’s motion, that vehicle with plaintiff as passenger suddenly moved to the left and struck defendant’s vehicle. Quintero v Boyle    

MVA   Comparative Fault  

Second Department
Plaintiff granted summary judgment on his affidavit showing the defendant vehicle entered the intersection from a street controlled by a stop sign and failed to yield the right-of-way under VTL §1142(a) and defendants failed to raise an issue in opposition. Plaintiff failed to eliminate all questions of whether he was comparatively at fault but need not show freedom from comparative fault for summary judgment. Policart v Wheels LT    

MVA   Bus   Sole Cause   Question of Fact  

First Department
Owner and driver of vehicle involved in collision with codefendant’s vehicle and bus plaintiff was on denied summary judgment dismissing Complaint and cross-claims where they did not show they were free from negligence as a matter of law or that codefendant was the sole cause of the accident where defendant-drivers’ conflicting testimony left questions of fact on their respective liability. Renwick v Mitchell    

(2 summaries)

SUM   Arbitration   Police  

Second Department
Carrier’s motion to permanently stay SUM arbitration where plaintiff was injured as a passenger in police chief’s unmarked vehicle provided for his use while on and off duty granted as police vehicles are exempt from SUM coverage and the Court rejected plaintiff’s claim the vehicle did not qualify as a “police vehicle” where it was being used for personal reasons. Matter of New York Mun. Ins. Reciprocal v Linares    

Comment: From lower court decision, plaintiff claimed police chief was driving her and his daughter home from a friend’s house and did not engage in any police business during the ride but police chief claimed he was on call 24/7.

Construction Liab.   Reargument   Question of Fact  

Second Department
Testimony of gas company’s consultant and documents submitted on reargument failed to eliminate all questions of whether gas company did work in the area where plaintiff tripped over temporary asphalt patch and whether it created the condition. The Court does not give the details of the proofs. Encalada v Brooklyn Union Gas Co.    

About Matt McMahon

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

Comments are closed.