November 3, 2020 | Vol. 234

MUST READS
(6 summaries)
NOTEWORTHY IF YOU MUST READ

Building Security   Assault   Respondeat Superior   Notice   Vicious Propensity  

First Department

Management company, employer of superintendent that sexually assaulted infant-plaintiff, who resided in the building, did not have notice of employee’s propensity to commit violent acts, even though employee was registered sex offender, as an employer does not have duty to inquire if employees have been convicted of crimes without facts that would lead a reasonable person to question employee’s background. Management company cannot be responsible under respondeat superior as assault was not in furtherance of its business and outside the scope of employment. Building owner granted summary judgment where it did not employ superintendent and former management company granted summary judgment on proof it did not hire the superintendent. Samoya W. v 3940 Carpenter Ave., LLC

Comment: The court noted that any imposition of a duty to check for criminal convictions would have to come from the legislature.


Labor Law §240   Labor Law §241   Safety Devices   Recalcitrant Worker   Sole Cause   Industrial Code   Indemnity  

Second Department

Lower court providently searched record granting plaintiff summary judgment on Labor Law §240(1), and denied motion for summary judgment by defendant-tenant who contracted with plaintiff’s employer for the work, where plaintiff fell 13′ from makeshift scaffold he and defendant’s member built to speed up work being performed with a scissor lift defendant rented on proof that defendant’s member instructed plaintiff to use the makeshift scaffold and removed the scissor lift during the work. Plaintiff had no recollection of the accident but was granted summary judgment because of the lack of safety devices necessary to protect him from the work. Defendant’s claim of recalcitrant worker rejected as there was no proper safety device plaintiff refused to use after being instructed to use one and he could not be the sole cause of the accident.

Defendant failed to eliminate questions on applicability of industrial code §23-5.1(e)(scaffold planking) and building owner denied summary judgment on contractual indemnity where questions remained of its own negligence. Lojano v Soiefer Bros. Realty Corp.


Premises Liab   Slip/Trip   Out of Possession   Raised For First Time   Expert Aff   Speculation  

First Department

Building owner granted summary judgment where plaintiff slipped and fell on ramp as an out-of-possession owner and no structural defect was alleged. Plaintiff’s claim he slipped on oil dripped from elevator maintenance room on roof rejected as a new theory where not pleaded in the Complaint, BP, Supplemental BP, or testified to by plaintiff depriving defendant of notice of that claim. Plaintiff’s expert’s opinion that oil came from elevator maintenance room rejected as speculative as expert did not visit or inspect the premises or roof. Mitchell v 423 W. 55th St.


Set Aside Verdict   Materially Deviates   Pain/Suffering   Preexisting  

Second Department

Lower court improvidently granted plaintiff’s motion to set aside verdict of $50,000/$100,000 for past/future pain/suffering unless defendant stipulated to increase award to $300,000/$500,000 where there was conflicting evidence of plaintiff’s pre-existing condition and subsequent accidents which jury could credit. Martinez v Coca-Cola Refreshments USA, Inc.


MVA   VTL §1104   Reckless   Qualified Immunity  

Second Department

Firefighter and fire district failed to meet burden for summary judgment under VTL §1104(b)(2) on reckless disregard where they failed to eliminate issues of whether fire truck slowed before going through stop sign without stopping, how fast the fire truck was moving, and whether the speed was reckless under the circumstances. Sanicola v Wantagh Fire Dist., Inc.

Comment: VTL §1104(b)(2) provides a qualified immunity for emergency vehicles going through stop signs “but only after slowing down as may be necessary for safe operation.” This would appear to be a condition precedent to applying qualified immunity, resulting in an ordinary negligence standard, and not a default to the reckless standard under VTL §1104(e) which would apply if the condition precedent were not included in the language of §1104(b)(2).


Motion to Dismiss   Personal Juridiction   Amend Complaint   CPLR §306-b   Raised For First Time   Appealable Order  

Second Department

Plaintiff’s affirmative request for extension of time to serve under CPLR §306-b, first set forth in reply to defendant’s opposition to her cross motion to amend the Complaint, and not addressed in the lower court’s decision granting defendant’s motion to dismiss on personal jurisdiction, is not an issue which can be addressed on appeal. Appeal dismissed. Marshall v Auntie Anne

NOTEWORTHY
(24 summaries)
MUST READS IF YOU MUST READ

Set Aside Verdict   Pain/Suffering   Materially Deviates  

Second Department

Plaintiff’s motion for additur and to set aside verdict as against weight of evidence and materially deviating from reasonable compensation where jury awarded $2000/$0 past/future pain/suffering and $9500 for past medical expenses granted to extent of increasing past pain/suffering to $50,000 for a torn meniscus. Award of $0 for future pain/suffering was not against weight of evidence where it could be reached on a fair interpretation of the evidence. Hadjidemetriou v Juarez


Strike Note of Issue   Discovery   IME/DME   Waiver  

First Department

By stipulating that discovery was complete before the Note of Issue was filed, aware of plaintiff’s claim for lost earnings, defendants waived an IME/DME by a vocational rehabilitationist as lack of diligence is not proof of unusual or unanticipated circumstances necessary to strike a Note of Issue. Gonzalez v Miles


Serious Injury   Raised For First Time   Expert Aff  

Second Department

Plaintiff’s argument that defendant’s expert failed to address complaints of pain did not raise issue in opposition as pain alone cannot form the basis of a serious injury. Plaintiff’s argument that he raised an issue in opposition below not preserved where raised for the first time in reply brief on appeal. Canner v Diamond


Premises Liab   Slip/Trip   Wet Floor   Sidewalk   Create Condition   Notice  

Second Department

Supermarket granted summary judgment where plaintiff slipped on puddle of liquid on abutting sidewalk, even though there was proof defendant may have had notice of the condition, on proof it did not have a reasonable time to correct the condition. Martinez v Inserra Supermarkets, Inc.


Serious Injury   ROM   Expert Aff   Speculation  

First Department

Defendant granted summary judgment on serious injury based on IME/DME doctor’s report finding limited ROM but opining it was subjective with no objective physical findings. Plaintiffs failed to raise an issue by submitting only report of pain management doctor who treated plaintiff more than 1-year after accident, by not submitting records of contemporaneous treatment, fact that plaintiff was not treated for 5-months after accident, that she went back to work immediately, and had only minor complaints. Pain management doctor was unaware of prior accident making causation opinion speculative. Tusu v Leone


MVA   Set Aside Verdict   Emergency Doctrine   Jury Charge  

Second Department

Plaintiff’s motion to set aside defense verdict on claim trial court should not have given emergency charge denied as there was reasonable view upon which a jury could find defendant was responding to a qualified emergency. Defendant-driver testified he stopped 8′-10′ feet behind oil truck that was blocking road and drove in reverse to avoid being hit by oil truck as it was backing up when he collided with plaintiff’s vehicle as it approached his vehicle. Grullon v Coscia


Med Mal   Motion to Dismiss   Statute of Limitations   Continuous Representation  

Second Department

Plaintiffs raised issue of fact on toll of statute of limitations for continuous treatment on proof plaintiff-patient received postoperative treatment, including rehabilitation, wound care, and pain management after bilateral above knee amputations necessitated by failure to diagnose and treat DVTs more than 2.5 years before action was commenced. Wright v Southampton Hosp.


Med Mal   Informed Consent   Expert Aff   Conclusory   Raised For First Time  

First Department

Lower court providently allowed defendants to correct lack of expert’s qualifications in a reply, establishing entitlement to summary judgment. Plaintiff’s expert’s opinions failed to raise an issue where vague, conclusory, and partly contradicted by the medical records. Allegations of failure to assess plaintiff’s mental health rejected as neither pleaded nor supported by the record and lack of informed consent dismissed. Poivan-Traub v Chaglassian


Premises Liab   Slip/Trip   Stairs   Set Aside Verdict  

Second Department

Plaintiff’s motion to set aside judgment entered on non-jury verdict finding her 1/3 at fault denied based on fact that she climbed to mezzanine level to access stairs she fell on and was familiar with their configuration because she had used them before. The court noted that on appellate review from a nonjury trial, the court’s authority is as broad as the trial court.
Carone v St. George Theater Restoration, Inc.


Labor Law §240   Ladder   Question of Fact  

First Department

Plaintiffs met burden for summary judgment on Labor Law §240(1) where injured-plaintiff testified ladder shifted and moved causing him to fall while standing on the fourth rung and reaching for a conduit which did not contradict his affidavit. Accident report completed contemporaneously by foreman recounted plaintiff’s statement that he slipped off the ladder while descending contradicting plaintiff’s testimony and affidavit leaving question of fact. Romano v One City Block LLC


Building Security   Dangerous Condition   Unknown Cause   Special Duty   NYC  

First Department

NYCHA granted summary judgment where plaintiff could not say if lock that had been broken many times before assault was broken on day of the assault since someone held the door for him as he entered the building and he failed to provide any evidence that it was more likely than not the assailant was an intruder. NYC granted summary judgment as plaintiff’s statement that police officer nodded at him was insufficient to establish a special relationship to impose a special duty on NYC. Morel v City of New York


MVA   Pileup   Comparative Fault  

Second Department

Plaintiff, passenger in her mother’s car which was the middle car in a 3-car pileup, granted summary judgment finding she was not at fault as innocent passengers are entitled to summary judgment regardless of potential issues of comparative fault between defendant drivers. Morris v Dorota


Med Mal   Accepted Practice   Causation   Expert Aff  

First Department

Plaintiffs’ expert raised issue of fact on departure opining that defendants’ expert’s opinion of no departure based on treatment for epididymitis ignored or minimized plaintiff’s increasing pain of a severity uncharacteristic of epididymitis, the difference in the lie of plaintiff’s testicles consistent with torsion, and the absence of risk factors for STD which is usually the cause of epididymitis. Defendants’ expert opined only on accepted practice, not causation. Zemsky v Prokofieva


MVA   Pedestrian   Admissibility   Hearsay  

Second Department

Defendant, owner of vehicle with license plate identified by plaintiff-pedestrian as vehicle that hit him and left seen, granted summary judgment on employees’ affidavits that vehicle was transferred to Connecticut 11-months before accident, license plate removed sometime before month of accident and remained in employee’s possession until forwarded to counsel for case, and GPS data showing vehicle only made stops in Connecticut on day of accident. Lower court erred in precluding GPS data as inadmissible hearsay where plaintiff did not object to its admission in opposition to motion and, in any event, employee affidavits met burden for summary judgment. Costor v AT&T Servs., Inc.


Med Mal   Accepted Practice   Causation   Expert Aff  

First Department

Podiatrist met burden for summary judgment and plaintiff’s expert failed to raise issue by conclusory opinion that departures were cause of plaintiff’s decedent’s injuries and failed to address podiatrist’s expert’s lack of causation opinion or provide an independent analysis of causation. Benefatti v Centerlight Healthcare, Inc.


Med Mal   Accepted Practice   Expert Aff  

Second Department

Plaintiff’s expert’s opinion that removal of excessive labrum during surgery was a departure from standard of care raised issue in opposition to surgeon’s prima facie showing of entitlement to summary judgment based on conflicting expert opinions. Rodriguez v Bursztyn


Premises Liab   Slip/Trip   Sidewalk   Snow/Ice   Unknown Cause   Create Condition   Notice  

Second Department

Landowner did not meet burden for summary judgment where evidence that plaintiff fell on wet sidewalk with clumps of ice melt, viewed in light most favorable to plaintiff, raised issue of cause of accident and defendants failed to show they did not create the condition or have notice of it. Leibman v Water Auth. of W. Nassau County


Premises Liab   Construction Liab.   Create Condition   Sole Cause  

First Department

Replacement contractor granted summary judgment where plaintiff-homeowner fell off deck he knew had no railings while stepping back to look at balusters he had just installed. Plaintiff testified he knew it was a dangerous condition and was aware railings were not installed as he instructed replacement contractor not to install them. There was no implied-in-fact contract to install the railing. By installing balusters at night and walking off the deck knowing there were no railings plaintiff was the sole proximate cause of his injuries. Chowaniec v AACC Inc.


False Arrest   False Imprisonment   Assault   Battery   1983 Action   Probable Cause   NYC  

Second Department

Defendants failed to eliminate questions on probable cause where they submitted testimony of plaintiff and defendant-officer providing very different stories of the arrest, and on whether the force used was reasonable where video taken by plaintiff during the arrest did not show the physical force used. Macareno v City of New York


Premises Liab   Slip/Trip   Wet Floor   Unknown Cause   Create Condition   Notice   Open/Obvious   Inherently Dangerous  

Second Department

Defendants failed to meet burden for summary judgment where plaintiff’s affidavit stating she slipped and fell on wet floor and her pants were wet after fall sufficiently identified cause of fall. Defendants failed to prove they did not create or have notice of the condition or that it was open/obvious and not inherently dangerous. Aleman v 760 8th Ave. Rest., Inc.


Premises Liab   Slip/Trip   Snow/Ice   Storm in Progress  

Second Department

Abutting landowner granted summary judgment where plaintiff slipped and fell before 4-hour window for snow removal allotted under administrative code §16-123(a) that would have ended at 11 AM. Zambrano v City of New York


MVA   Feigned Issue  

First Department

Defendant-driver granted summary judgment on his testimony that opposing car was speeding, crossed over double yellow line, he honked, but could not avoid accident establishing that he was not negligent. Plaintiff, passenger in defendant-driver’s car, failed to raise issue in opposition by statement that defendant failed to avoid accident which was speculative and contradicted her EBT where she stated she was looking down at her phone and did not see anything. Hidalgo v Vasquez


Premises Liab   Slip/Trip   Out of Possession   Duty   Raised For First Time  

Second Department

Property owner failed to meet burden for summary judgment on claim it was an out-of-possession owner where it did not show as a matter of law that the lease with its tenant did not require it to remedy the hole in the parking lot that caused plaintiff to fall when she stepped in it after slipping on snow/water. Since defendant did not address whether it created the condition or had notice of it below, it did not meet its burden on that alternative theory. Negri-Riglos v First N. Star, LLC


Serious Injury   ROM   BP   Expert Aff  

First Department

Plaintiff’s expert failed to raise issue in opposition to defendants’ entitlement to summary judgment on serious injury without comparing limitations in ROM to normal ROM in knee or addressing absence of related findings on MRI. BP allegation that plaintiff was confined to bed for 6-days, and home for 11-days, and testimony that he was confined to bed for 1-2 days insufficient to raise issue on 90/180-day category. Olivare v Tomlin

IF YOU MUST READ
(3 summaries)
MUST READS NOTEWORTHY

Premises Liab   Duty  

Second Department

One defendant granted summary judgment on proof it owed no duty to plaintiff who was injured by defective store door. The court does not give details of the proofs. Braddy v Related Cos.


Serious Injury  

Second Department

Defendant did not meet burden for summary judgment on serious injury where it failed to eliminate issues on 90/180-day category or significant disfigurement category. The court does not give the details of the proofs. Ali v Williams


Serious Injury  

Second Department

Moving defendant failed to meet burden of showing plaintiff did not sustain a serious injury. The court does not give the details of the proofs. Melika v Caraballo

About Matt McMahon

Civil trials and appeals since 1984
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