November 30, 2021 | Vol. 289

(3 summaries)

Premises Liab   Elevator   HIPAA   Preclusion   Subpoena   Note of Issue   Res Ipsa Loquitor   Experts   Spoliation   Negative Inference  

First Department
Elevator company failed to show plaintiff’s injuries were not caused by elevator freefall where lower court properly precluded plaintiff’s treating doctor’s affidavit. Arons authorizations permit defendants to interview treating doctors but not to obtain affidavits. Subpoena for treating doctor’s EBT served months after Notice of Issue quashed where defendants did not seek permission.

Elevator company failed to show res ipsa loquitor did not apply without proof elevator freefall was mechanically or electronically impossible. Expert’s opinion freefalls can ordinarily occur absent negligence rejected on universal agreemen elevators do not ordinarily freefall absent negligence. Owner granted summary judgment where it relinquished all control of elevator to elevator company and did not have notice of dangerous condition. Report of elevator doors not opening 2-minutes before plaintiff’s accident did not provide notice of a potential freefall or sufficient time to remedy condition.

Plaintiff granted negative inference where elevator company was aware of accident but disposed of elevator CPU which was relevant as defendants’ expert opined CPU could’ve caused the malfunction. Lonigro v WFP Tower B. Co. L.P.    

Labor Law §240   Labor Law §241   Labor Law §200   Industrial Code   Workers Comp Defense   Control   Res Judicata   Collateral Estoppel   NYC  

First Department
NYC and DEP deemed functional owners of property where contractor was building concrete mockup of aqueduct for benefit of NYC and Dep and DEP reserved right to have its engineers inspect site before any work started. Plaintiff granted summary judgment on Labor Law §§240(1) and 241(6) based on industrial code §23-2.2(a) against NYC and contractor, and Labor Law §200 and negligence against contractor.

Decedent found not to be contractor’s special employee where his actual employer retained some control including assigning work by their dispatcher, having workers call their dispatcher or operations manager for safety concerns, providing the truck, and providing protective gear. Specific contractor instructions insufficient control to make worker its special employee. Contractor’s claim workers comp decision entitled to res judicata or collateral estoppel rejected where contractor failed to provide any records of workers comp decision/proceedings or give excuse for not providing them. Winkler v Halmar Intl., LLC    

Premises Liab   Stairs   Set Aside Verdict   Causation  

Second Department
Infant-plaintiff’s unrebutted testimony she slipped on cracked, sloped, uneven, step at subway station, consistent with plaintiffs’ expert’s testimony, rendered jury verdict finding NYCTA negligent but not a proximate cause ‘irreconcilably inconsistent.’ Case remanded for new trial. Middleton v New York City Tr. Auth.    

(9 summaries)

MVA   Bus   Bicycle   Set Aside Verdict   Jury Charge   Emergency Doctrine   Comparative Fault  

Second Department
Jury verdict finding bus driver not negligent when plaintiff-bicyclist collided with it as bus was making a right-hand turn not against weight of the evidence as evidence did not so preponderate in favor of plaintiff that verdict could not be reached on fair interpretation of the evidence. Trial court’s denial of plaintiff’s request for emergency doctrine charge on comparative fault, if error, harmless as jury never reached question of plaintiff’s comparative fault. Lopez v Skyliner Travel & Tour Bus Corp.    

Labor Law §241   Labor Law §200   Industrial Code   Create Condition   Notice   Indemnity   Premature Motion  

First Department
Question of whether area where carpenter stepped through unsecured grill covered with paper was a “passageway” under industrial code §23-1.7(e)(1) precluded summary judgment for owner and GC on Labor Law §241(6). GC failed to show it did not create the dangerous condition by covering the unsecured grill with paper and that it did not have notice the grate was unsecured, necessary for summary judgment on Labor Law §200 and negligence claims. Given possibility of GC’s negligence, summary judgment on contractual indemnity against subcontractor premature. Pawlicki v 200 Park, L.P.    

Pothole Law   Vacate Default   Meritorious Action   Unknown Cause   Prior Written Notice   NYC  

Second Department
Plaintiffs’ motion to vacate default in opposing NYC’s motion for summary judgment denied as plaintiff could not show meritorious opposition to motion where plaintiff’s 50H testimony that he was riding his bicycle downhill and the next thing he knew he was in an ambulance, with no recollection of the accident, established he could not identify cause of fall. Deep hole shown in photographs taken 10-days after accident was just as likely a cause as his losing balance. Plaintiffs failed to rebut defendants’ showing they did not receive prior written notice of any defect. Xin Zheng Zhan v City of New York    

Lead Poisoning   Vacate Default   Reasonable Excuse   Meritorious Action  

First Department
Proof that plaintiffs made bona fide efforts to make their witnesses and a nonparty witness available for EBT and sought court assistance when unable to obtain mutually agreeable dates provided a reasonable excuse to vacate dismissal for failure to comply with self-executing conditional order. Plaintiffs provided proof DOH found lead at premises, establishing a meritorious action. J.G. v Fortress CD, LLC    

Malpractice   Notice of Claim   Prejudice  

Second Department
Plaintiff’s motion to amend Notice of Claim to expand malpractice time period based on testimony at 50H hearing denied as amendments are only allowed for good faith mistakes/omissions not to change nature or theory of liability which would prejudice the municipality. Matter of Lesaine v New York City Health & Hosps. Corp.    

Malpractice   Motion to Dismiss   Statute of Limitations  

First Department
Plaintiff’s failure to show individual doctor knew or should have known he was intended defendant who would have been sued absent mistake required dismissal of action commenced 7-years after statute of limitations and mooted issue of whether moving defendant was united in interest with hospital. Graves v Brookdale Univ. Hosp. & Med. Ctr.    

Premises Liab   Sidewalk   3rd Party Contractor   Espinal   Out of Possession   § 7-210   Create Condition   Notice   Indemnity  

First Department
Building owner granted summary judgment of administrative code §7-210 claim where plaintiff slipped on salmon skin on sidewalk on proof owner did not create or have notice of the condition. Owner was out-of-possession landlord not obligated to maintain premises under lease and course of conduct established tenant was responsible for elements necessary to keep trench drain clear. Right of reentry under lease did not create duty where alleged condition was not ‘a significant structural or design defect that is contrary to a specific statutory provision.’

Plaintiff raised issue In opposition to garbage removal defendant’s showing it did not drop fish skin that day and had no notice of condition by circumstantial evidence of tenant’s testimony that garbage would occasionally be on sidewalk after garbage removal defendant removed trash. If garbage removal defendant is found to have dropped the fish skin, it would have launched an instrumentality of harm under Espinal.

Since tenant was not negligent, owner’s contractual indemnity claim dismissed. Arias v Sanitation Salvage Corp.    

Labor Law §200   Wrongful Death   Control   Raised For First Time   Indemnity   Vacate Default   Reasonable Excuse   Meritorious Defense  

First Department
Owner and GC granted summary judgment on Labor Law §200 and negligence claims where they did not control decedent’s work of unloading sheetrock from a truck and GC did no more than general safety supervision. They were denied summary judgment of wrongful death claim where it was raised for the first time in reply. Because owner and GC were not negligent, they were entitled to conditional summary judgment of contractual indemnity claim against sub-contractor.

Lower court should have granted sub-contractor’s motion to vacate order denying its motion for summary judgment granted on default in appearing for oral argument where it offered a reasonable excuse of law office failure and a potentially meritorious defense. Castellano v Ann/Nassau Realty LLC    

Discovery   Note of Issue   BP   Prejudice  

First Department
Defendants made out entitlement to limited post Note of Issue discovery to include additional deposition of plaintiff and orthopedic and neurological IME/DME examinations limited to additional tests and treatment identified in supplemental BPs served after Note of Issue. Defendants’ motion to strike the Note of Issue denied where the additional discovery was limited and plaintiff would be prejudiced by striking the Note of Issue. Lewis v Verizon N.Y. Inc.    

(1 summaries)

Serious Injury   BP   NYC  

Second Department
Defendants failed to meet burden for summary judgment on serious injury based on 90/180-day category raised in plaintiff’s BP. The court does not give the details of the proofs. Raphael v City of New York    

About Matt McMahon

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