November 29, 2022 | Vol. 341

(5 summaries)

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

Second Department
In a case of first impression, the Second Department interpreted the CVA language requiring that the victim suffered “conduct which would constitute a sexual offense” under the penal law to refer to acts and not whether the bad actor could have been subjected to criminal charges rejecting school defendants’ argument plaintiff did not fall under the CVA revival statute because her assailant was a minor not subject to criminal prosecution. To adopt defendants’ interpretation would make the further language in the CVA making criminal defenses applicable superfluous. While the minor could raise the defense of age, the school defendants could not raise it for claims of their negligent supervision and negligent hiring. The Court found this interpretation consistent with the CVA legislative history which was to revive claims of children who otherwise would have had to commence their actions before they came to terms with their abuse. Anonymous v Castagnola    

Assault   Special Duty   Police   NYC  

Court of Appeals
NYC and police officers granted summary judgment of claim they failed to protect plaintiff whose ex-boyfriend assaulted her and threw her out of a 3rd floor window, despite having previously failed to arrest the boyfriend for violating an order of protection as required by the Family Protection and Domestic Violence Intervention Act of 1994, as she could not show she relaxed her vigilance by justifiably relying on promises by the officers where they did not tell her they would arrest him and she did not speak with them and they were not present on the day she was assaulted and an order of protection, on its own, does not prove justifiable reliance. The Court noted there were 195,000 orders of protection issued in NY in 2021 and the enactment of the mandatory arrest Act did not expand the special duty test as it would have a significant impact on municipal finances. There were 2-dissents which highlighted the how the police callously questioned plaintiff about why she kept calling them and told her she should stay somewhere else instead of arresting her ex-boyfriend for violation of the order of protection. Howell v City of New York    

Assault   Special Duty  

Court of Appeals
Municipal defendants granted summary judgment where 23-year-old developmentally disabled woman was tortured and murdered by her mother and one brother after her other brother, who did not live locally, asked CPS and APS to investigate suspicious injuries reported by another family member and the sheriff’s office returned her to the home after she ran away because they believed she had only a verbal fight with her mother as plaintiff failed to show justifiable reliance on defendants’ actions to meet the fourth prong of the test to establish a voluntarily assumed special duty. The Court rejected plaintiff’s argument that the ‘Cuffy test’ is unfair when the victim is a child or diminished adult, noting it previously relaxed the test to allow a competent family member to satisfy the direct contact and justifiable reliance element but the proof did not show that defendants’ actions caused the remote brother to relax his vigilance regarding his sister. The Court highlighted that further expansion of special duty would have a significant impact on municipal finances available for other services. There was 1-dissent. Maldovan v County of Erie    

Sidewalk   Set Aside Verdict   Pain/Suffering   Materially Deviates   Jury Charge  

Second Department
Verdict finding defendants 100% at fault where plaintiff tripped on raised sidewalk abutting subway grate upheld as the jury could reach the verdict on a fair interpretation of the evidence and jury was properly instructed that they could consider a violation of administrative code §19-152(a)(4) “which defines a substantial defect as ‘a trip hazard, where the vertical grade differential between adjacent sidewalk flags is greater than or equal to one half inch or where a sidewalk flag contains one or more surface defects of one inch or greater in all horizontal directions and is one half inch or more in depth'” as some evidence of negligence.

Past/future pain/suffering award of $1.3mil/$1.6mil materially deviated from reasonable compensation and set aside unless plaintiff stipulated to reduced award of $1.0mil/$700,000 past/future pain/suffering. The Court does not give the details of the injuries. Ormond v MTA/New York City Tr. Auth.    

Attorney Fees  

First Department
Initial attorney who started suit and litigated it for 6-years before being replaced after a mediation where the initial attorney told plaintiff they could settle between $1.5mil-$2.1mil but the only official offer was $150,000 entitled to 90% of the fee on the $1.725mil settlement reached by the substitute attorney at a second mediation who represented plaintiff for 1-year and plaintiff became dissatisfied them after the mediation and rehired the initial attorney. Substituted counsel failed to show its representation was “pivotal” to the eventual settlement which was in the range contemplated at the first mediation. Salas-Aleman v Lenox Manor Owners, Inc.    

(11 summaries)

Malpractice   Informed Consent   Statute of Limitations   Continuous Treatement   Accepted Practice   Causation   Experts   Speculation   Waiver   Respondeat Superior  

Second Department
Physician and medical institute met burden for partial dismissal on statute of limitations by showing malpractice action was commenced more than 2.5-years after portions of treatment for head and neck pain complaints but plaintiffs raised issue on continuous treatment by showing patient repeatedly sought treatment for original complaints which defendants continued to treat her for with PT, pain management, cervical collar, and diagnostic exams, testing, and imaging. Despite months passing between treatments, questions remained of whether patient and doctors anticipated her treatments would continue.

Defendants met burden for summary judgment on departure and causation but plaintiffs raised issue by unsworn affidavit of neurosurgeon on both issues which was not conclusory or speculative where based on diagnostic reports/images before and after patient’s diagnoses, and he demonstrated his qualifications in neurosurgery. Defendants’ waived objection to affidavit being unsworn where they did not object before the lower court.

Defendants failed to show entitlement to dismissal of lack of informed consent by signed generic consent and EBT testimony of patient, doctors, and center did not establish that sufficient description of risks and alternatives were given precluding finding that a reasonably prudent person would not have declined to undergo the procedures. Hospital-defendant also failed to show the doctors and center were not its employees. Hall v Bolognese    

MVA   Question of Fact   Collateral Estoppel  

Second Department
Truck owner and driver failed to meet burden for summary judgment where they submitted conflicting accounts of how the accident happened including which vehicle entered the other’s lane before the accident. Plaintiff’s guilty plea to unsafe driving not entitled to collateral estoppel as pleas to traffic offenses are not subject to collateral estoppel and plaintiff explained she plead guilty because she didn’t have money to keep traveling to New Jersey to fight the charge. Charles v American Dream Coaches    

Labor Law §240   Safety Devices   Recalcitrant Worker   Sole Cause   Indemnity  

First Department
Worker who fell when he stepped on wooden floor joist granted summary judgment on Labor Law §240(1) on proof he was wearing his harness but could not tie off because there was no accessible tie off spots and his work was not stationary which defendants did not refute. He could not be sole cause of accident where his supervisor instructed him to walk on the joists and not move the plywood and access to an interior staircase was locked and blocked by construction materials.

Owner denied summary judgment on its contractual indemnity claim against contractor where it was required to show contractor or its subcontractors were negligent and it did not attempt to show negligence and it did not address its common-law indemnity claim below. Martinez v Kingston 541, LLC    

Wet Floor   3rd Party Contractor   Espinal  

Second Department
Cleaning contractor for bathroom at JFK where plaintiff slipped on a wet floor granted summary judgment as its contract with American Airlines did not create a duty towards plaintiff and its limited janitorial agreement did not wholly displace AA’s duty to maintain the property in a reasonably safe condition under Espinal. Plaintiff was AA employee. DaCruz v Airway Cleaners, LLC    

MVA   Rear End   Causation  

Second Department
Defendants whose driver pulled onto shoulder to enter a destination into a navigation system denied summary judgment where car plaintiff was in swerved into the shoulder to avoid a collision, rear ending moving-defendants’ vehicle, as questions remained of whether moving-defendants’ pulling into the shoulder for a non-emergency situation created a duty to warn other drivers of the danger their vehicle posed and whether their failure to use reasonable care was a proximate cause of the accident. Georgiadis v Feder    

Labor Law §240   Falling Object   Experts  

First Department
Worker struck by falling beam while securing scaffold as coworker stripped concrete formwork beams from ceiling granted Labor Law §240(1) summary judgment on his testimony and expert opinion that the beam was not properly secured even though plaintiff could not explain how the beam fell. Fuentes v YJL Broadway Hotel, LLC    

Premises Liab   Open/Obvious   Inherently Dangerous   Premature Motion  

Second Department
Store granted summary judgment for plaintiff’s trip on cart stacked with empty boxes in aisle as the condition was open/obvious and not inherently dangerous where it could be readily observed by the proper use of a customer’s senses and plaintiff agreed she saw the box initially but then forgot about it before she tripped. Plaintiff failed to show relevant information or information solely within defendant’s knowledge was necessary to oppose the motion on claim the motion was premature. Cortes v King Kullen Grocery Co., Inc.    

MVA   Rear End   Nonnegligent Explanation   Premature Motion  

Second Department
Plaintiff granted summary judgment on his affidavit that his vehicle was rear-ended by defendants’ vehicle and defendants failed to raise a nonnegligent explanation without submitting an affidavit of the defendant-driver or someone with personal knowledge. Defendants failed to show motion was premature without an evidentiary basis that discovery might lead to relevant information or information solely within plaintiff’s knowledge. Edwards v Cheezwhse Com, Inc.    

MVA   Police   GML §205-a-e   Turning Vehicle   VTL §1104   Reckless   NYC  

Second Department
NYC and plaintiff, NYPD officer injured as passenger in patrol vehicle when her partner made a left hand turn against the light and was struck by another vehicle while responding to an emergency, denied summary judgment where plaintiff agreed vehicle was protected by VTL §1104 reckless standard and partner testified he stopped at the red light and looked both ways before turning but plaintiff testified he did not stop at the light and only looked to his left before turning. Lower court erred in granting plaintiff summary judgment on GML §205-e based on violations of VTL §§ 1110, 1111, and 1140. Case remanded. Thompson v City of New York    

MVA   Bus   Survelliance Video  

Second Department
County and bus service granted summary judgment on plaintiff’s 50H testimony where she described the bus movement as she started to walk to the back as “like a jerk” causing her to fall and the bus driver testified he merged with traffic at 5mph which was corroborated by the bus video. A plaintiff’s description of the bus movement as unusual and violent is insufficient on its own. Perez v Doe    

MVA   Attorney Fees  

Second Department
Lower court improvidently denied initial attorney any fee where the attorney filed for no-fault, arranged IMEs, and obtained relevant information before being discharged more than 2-years later. Subsequent counsel put matter in suit and eventually settled the case for $100,000. Even though initial attorney did not submit records showing time spent, his efforts were not of no value and he was entitled to 10% of the fee. Jules v David    

(1 summaries)

Serious Injury   BP   Causation  

Second Department
Defendants failed to meet burden for summary judgment where they did not adequately refute plaintiff’s claims in her BP that she sustained serious injuries to both shoulders or establish that her injuries were not caused by the accident. The Court does not give the details of the proofs. Hamdamova v New Dawn Tr., LLC    

About Matt McMahon

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