November 5, 2019 | Vol. 183

(8 summaries)

Med Mal   CPLR § 3126   Preclusion   Discovery   Willful/Contumacious  

First Department
Where plaintiffs surreptitiously recorded (video and audio) conversations with defendant doctor in recovery room and postoperative visit the First Department followed the Second Department’s ruling in Bermejo v New York City Health & Hosps. Corp., holding that video and audio recordings are subject to CPLR 3101(i) and must be disclosed within times set forth in court’s discovery orders. Waiting until defendant was initially deposed and only providing recordings day before continuation of the defendant’s testimony showed plaintiff’s actions to be willful/contumacious warranting preclusion of their use under CPLR 3126. Polakoff v NYU Hosps. Ctr.

MVA   Privilege   Negative Inference   Question of Fact  

First Department
Trier of fact may draw strongest possible inference against party invoking Fifth Amendment right to remain silent in civil case. Plaintiff and non-moving defendant raised issue of fact by moving defendant’s testimony that she merged onto I-95 and did not see codefendant’s car before collision and testimony of 2 of her friends that she used drugs immediately before accident and was distracted by fiancé’s conduct. Both moving defendant and fiancé evoked Fifth Amendment on these issues. Varela v Rohlf

False Arrest   Malicious Prosecution   Probable Cause   Police   NYC  

Court of Appeals
In a 5/2 decision the Court found that plaintiff who was acquitted of 2nd degree murder failed to raise issue of fact on probable cause even where, as noted by the dissents in the Court of Appeals and Appellate Division, there were conflicting witness statements regarding plaintiff’s identification that could not be resolved without crediting witnesses and resolving those conflicts in favor of the defendants. Roberts v City of New York

Vacate Default   Sanctions   Reasonable Excuse   Meritorious Action   Appealable Order  

Second Department
Appeal from dismissal of action for failure to appear at trial granted on oral application dismissed as no appeal of right lies from order not on motion on notice and permission to appeal denied as academic. Lower court’s denial of plaintiff’s motion to vacate default in appearing at trial reversed where plaintiff’s counsel was engaged in parole violation hearings on scheduled trial dates, 2-days apart, and had not discovered conflict until settlement conference several days before scheduled trial providing a reasonable excuse for default and the lower court indicated it would have granted adjournment if stipulated as it had done in the past. Lower court did not explain why it did not impose or consider lesser sanctions including granting an adjournment beyond 2-months under 22 NYCRR 125.1 that would have required assigned counsel to provide substitute counsel if unable to appear, or reimbursement of defendant’s expenses. Given fact that case was more than 20 years old, case was remanded for trial within 60-days of the decision. Quercia v Silver Lake Nursing Home, Inc.

Police   Assault   Battery   Set Aside Verdict   Admissibility   Preclusion   Expert Aff   NYC  

First Department
Judgment on jury verdict finding police officers assaulted, battered, and used excessive force in transporting teenager on autism spectrum to assisted living facility affirmed. Trial court providently precluded defendants from calling treating physicians where they had repeatedly represented that they were calling no witnesses and jury was twice selected based on those representations. By failing to propose its own redactions of facility’s records, defendants waived objection to plaintiff’s proposed redactions. Plaintiff’s expert’s opinions on emotional distress and psychological injuries were not speculative where he only read portions of the records before his report but where he read entire records at time of trial and they did not change his opinions. His reliance on statements made by the teenager when he interviewed him were admissible under professional reliability rule. While teenager’s sister’s statements did not fall within professional reliability rule, the opinions were based primarily on appropriate evidence and supported by other evidence and properly considered. Walid M. v City of New York

Labor Law §240   Gravity Risk  

First Department
Plaintiff granted summary judgment on Labor Law §240(1) where large formwork structure each weighing 1500 pounds used to form concrete walls fell on plaintiff when he removed the last pin even though it was on the same level as him. Given the weight and distance it fell they presented a significant gravity risk because, as testified to by manufacturer’s employee, the forms required securing with cranes before removing the pins. Encarnacion v 3361 Third Ave. Hous. Dev. Fund Corp.

Labor Law §240   Labor Law §241   Gravity Risk   Safety Devices   Sole Cause   Industrial Code   Expert Aff   Speculation   Comparative Fault  

First Department
Plaintiff whose hand was pinned when scaffold tipped as he was attempting to secure it granted summary judgment on Labor Law §240(1) where scaffolding and counterweights, weighing 2400 lbs., created a tremendous force even over a short distance, counterweights were not safety devices for securing scaffold, and scaffold required securing. Coworker and defense expert’s claims accident was caused by over tightening speculative where coworker did not see accident and would have only amounted to comparative fault. Labor Law §241(6) claims dismissed as industrial code provisions relied on were too general and inapplicable. Ortega v Trinity Hudson Holding LLC

Discovery   Privilege  

First Department
Liability carrier’s accident investigation report privileged and not subject to disclosure absent proof of hardship. Dabo v One Hudson Yards Owner, LLC

(22 summaries)

Consolidation   Venue  

First Department
Plaintiff’s motion to consolidate 3 other actions involving same incident for discovery and trial and place venue in the Bronx where initial action was commenced denied and defendants’ motion to consolidate the 3 actions and a 4th action for subrogation and place venue in New York County granted where there were common issues of law and fact, the accident occurred and all treatment took place in New York County, and there were no connections to the Bronx other than initial plaintiff’s residence. Lower court did not abuse discretion in placing venue in New York County absent special circumstances. Lema v 1148 Corp.

False Arrest   1983 Action   Malicious Prosecution   Late Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice   Statute of Limitations  

Second Department
Petitioner’s motion to serve late Notice of Claim for 1983 action and various state claims denied except as to 1983 action which does not require Notice of Claim and malicious prosecution action which was timely given that statute of limitations did not commence until charges were dismissed approximately 1-year after plaintiff was arrested. On remaining state claims plaintiff failed to show village had actual knowledge of essential elements where police officer’s knowledge and county police report cannot be imputed to municipality, and on their face, reports did not give notice of any police wrongdoing. Plaintiff’s claims that criminal attorney never informed him of Notice of Claim requirement and that he delayed filing claim until after criminal charge was dismissed due to fear of retaliation and intimidation did not provide reasonable excuse for delay. Plaintiff met burden for showing no prejudice and village failed to provide “particularized evidentiary showing” of substantial prejudice, but any one factor is not dispositive. There was 1 partial dissent. Matter of Nunez v Village of Rockville Ctr.

Late Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice   NYC  

First Department
Leave to serve late Notice of Claim granted even though claim to have not known of 90-day requirement did not provide reasonable excuse for delay where NYC had actual knowledge of essential elements within a reasonable time after the 90-days and NYC failed to dispute that condition had not changed by time of petition. Matter of Montero v City of New York

Premises Liab   Slip/Trip   Set Aside Verdict   Causation  

Second Department
Motion to set aside defense verdict denied where tenant who fell on pavers leading to laundry room was aware of condition and had been instructed by landlord to avoid area until repairs were made but chose to use pavers instead of shorter alternative route and jury could find defendant negligent but not proximate cause on fair interpretation of evidence. Verdict was not inconsistent where issues of negligence and causation were not inextricably interwoven. Bongiovanni v Eckhardt

Labor Law §241   Industrial Code   Out of Possession   Control  

First Department
Commercial tenant denied summary judgment on Labor Law §241(6) based on industrial code §§23-1.25(d), (e)(1), (e)(3), and (f) where there was question of fact of whether plaintiff’s work of installing 200 lb. condenser unit 3-weeks after store opened was an “alteration” of premises where there had been a renovation project before the incident during which plaintiff installed 3-3000 lb. condenser units. Out of possession building owner granted summary judgment where it did not control plaintiffs work and did not violate any industrial code provision. Rodriguez v Antillana & Metro Supermarket Corp.

Premises Liab   Elevator   Res Ipsa Loquitor   Notice   Admissibility   Hearsay  

First Department
Defendant failed to eliminate all questions of fact on whether it had exclusive control of elevator and whether plaintiff’s actions partially caused her injury for purposes of res ipsa loquitor where elevator doors unexpectedly closed injuring plaintiff’s hand. Notice can be presumed under res ipsa loquitor. Plaintiff also raised notice issue by sister’s affidavit that she complained about elevator within a week of the accident. Defendant laid foundation for consideration of elevator maintenance records as business records prepared by the mechanic in the ordinary course of business. Carter v New York City Hous. Auth.

Med Mal   Accepted Practice   Causation   Expert Aff   Speculation   Raised For First Time  

First Department
Plaintiff’s expert’s affirmation failed to raise issue of fact in opposition to defendants’ prima facie showing of entitlement to summary judgment where it raised new theory not alleged in Complaint or BP for the first time, was speculative and not supported by the record. Plaintiff’s expert’s opinion ignored the fact that plaintiff was examined by 2-orthopedic surgeons in the months following her port infection and that no hip infection was diagnosed for 8-months after infection. Ruchames v New York & Presbyt. Hosp.

Vacate Jud   CPLR § 3126   Preclusion   Reasonable Excuse   Meritorious Defense  

First Department
Defendants’ motion to vacate $259,570.51 judgment denied for failure to show a reasonable excuse for failing to comply with conditional discovery orders or show a meritorious defense. Hodosy v Apotheke, LLC

False Arrest   Malicious Prosecution   Directed Verdict   Set Aside Verdict   Admissibility  

First Department
Defendants’ motion for directed verdict at the end of plaintiff’s case and to set aside the jury verdict in false arrest, malicious prosecution, and abuse of process case denied where plaintiff properly pled false arrest and there were questions of fact on whether defendant maliciously withheld critical evidence and actively encouraged plaintiff’s prosecution. Incident reports and testimony of defendants’ prior neighbor properly admitted under “motive and intent” and “common plan or scheme” exceptions. DeJesus v Moshiashvili

MVA   There to be Seen  

Second Department
Plaintiff who entered intersection without stop sign granted summary judgment against defendant who entered intersection from street controlled by stop sign without yielding right-of-way or seeing plaintiff’s vehicle before collision. Spratley v Lafortune

Serious Injury   Preexisting   Degenerative   ROM   Expert Aff  

First Department
Plaintiff raised issues of fact in opposition to defendants’ motion for summary judgment on serious injury by his physiatrist’s opinions based on personal review of MRIs from prior accident and current accident showing disc bulges and herniations had become worse after second accident, that there was no evidence of degeneration at L3/4, his young age, and lack of evidence of degeneration in his own medical records. Affirmed medical reports showed significant limitation of ROM shortly after accident and recently and plaintiff’s testimony and medical records showing that he was unable to work safely for 5-months after accident raised issue on 90/180-day category. Shoulder, thumb, and leg injuries did not meet serious injury where plaintiff admitted he had no complaints to these areas. Massillon v Regalado

Serious Injury   Preexisting   Degenerative   Expert Aff   Conclusory  

First Department
Plaintiff’s treating physicians failed to raise issue of fact in opposition to defendants’ showing of entitlement to summary judgment on serious injury where they gave only conclusory opinions that spine and shoulder injuries were caused by accident without explaining how pre-existing conditions noted in plaintiff’s own records could be ruled out as the cause of symptoms. Santos v UM Cab Corp.

Labor Law §240   Labor Law §241   Safety Devices   Gravity Risk   Recalcitrant Worker   Agent  

First Department
Plaintiff granted summary judgment on Labor Law §240(1) against owner and contractor where plaintiff fell in trench when he slipped on mud and tried to grab wooden fencing holding net which fell into the trench with him. Conflicting stories of whether trench was 3′ or 5′ deep insufficient to raise issue of whether it presented a gravity risk. Other contractor’s motion for summary judgment on Labor Law §240(1) on claim that plaintiff was not allowed in area denied absent proof that he was instructed not to use door leading to area and proof that there were no signs instructing him not to go into area and on §241(6) where issue of whether contractor was agent for owner existed. Summary judgment on Contractual indemnity denied where issue of indemnitee’s on negligence remained. Demetrio v Clune Constr. Co., L.P.

Building Security   Battery   Intervening Cause  

First Department
Hospital granted summary judgment on proof that plaintiff voluntarily engaged in a fight, including throwing the first punch, on defendant’s premises severing any possible causation to alleged failure to provide adequate security. Hernandez v Bronx-Lebanon Hosp. Ctr.

Labor Law §200   Dangerous Condition   Control   Create Condition   Notice  

Second Department
Cellular companies that leased portion of roof for radio equipment cabinet and antenna granted summary judgment on Labor Law §200 and negligence causes of action where worker escorting cellular worker on roof tripped on “step-over” on proof they did not create a dangerous condition or have notice of one and did not have control over plaintiff’s work. Bruno v T-Mobile, USA, Inc.

Premises Liab   Slip/Trip   Sidewalk   Unknown Cause   Speculation   Expert Aff   Raised For First Time  

First Department
Defendant failed to meet its burden for summary judgment where plaintiff testified he tripped on height differential of sidewalk flags abutting defendant’s property and fact that he could only identify area as 12″-18″ behind a traffic pole, and could not point to exact location on a photograph, did not render his testimony speculative. Defense expert’s opinion not considered where inspection took place 3-years after accident after condition had been repaired. Defendant’s argument that they did not create the condition or have notice of it not considered as raised for the first time on appeal. Guo Ping Li v Overseas Partnership Co., Inc.

Labor Law §241   Labor Law §200   Open/Obvious   Comparative Fault  

First Department
Plaintiff’s Labor Law §241(6) claim based on industrial code §23-1.7(e)(1) dismissed as his fall while using a wheelbarrow in a working area strewn with debris was not a “passageway” as required by this section but defendant denied summary judgment on industrial code §23-1.7(e)(2) for tripping hazard caused by debris in working area. Plaintiff’s testimony that area was strewn with debris was sufficient to raise issue of fact on notice for Labor Law §200 and issue of condition being open/obvious went solely to comparative fault. Gonzalez v G. Fazio Constr. Co., Inc.

Med Mal   Accepted Practice   Causation   Expert Aff  

First Department
Rehabilitation center met burden for summary judgment and plaintiff’s expert failed to raise issue of fact by not pointing to any condition or symptom that would have expedited decedent’s treatment and prevented death if reported to the doctors. Scheinin v Monas

Premises Liab   Labor Law §240   Labor Law §241   Labor Law §200   Premature Motion   NYC  

Second Department
NYC entitled to summary judgment on proof it was not the owner or contractor of Van Wyck Expressway and did not supervise paving contract that NYSDOT was in charge of. Plaintiff failed to show what evidence exclusively within the possession of the defendant was necessary to oppose the motion. Coelho v City of New York

Comment: Related appeal dismissed as academic. Coelho v City of New York

Vacate Default   Serious Injury   Renew   Reasonable Excuse   ROM   Meritorious Action  

First Department
Plaintiff’s motion to renew motion to vacate default in opposing defendant’s motion for summary judgment on serious injury denied where only new facts alleged was affidavit of service which did not show personal service as required by the OSC and a medical report. Plaintiff failed to give reasonable excuse for failure to oppose motion and in seeking to vacate. Vague claims of difficulty getting affirmed medical report insufficient especially where report had been prepared months earlier. Plaintiff failed to show meritorious action where affirmed report did not show contemporaneous treatment or limited ROM compared to normal. Wade v Giacobbe

Construction Liab.   Slip/Trip  

Second Department
Contractor granted summary judgment on proof it did not do any excavation work in area where plaintiff fell from his bicycle due to depression in the road and permit to allow contractor to open roadway on street at different location insufficient to raise issue of fact. Brown v City of New York

Premises Liab   Question of Fact  

First Department
Plaintiff raised issue of fact by her testimony that stool collapsed as she sat on it and any inconsistencies in her testimony went to credibility to be determined by the trier of fact. Checo v Express, LLC

(1 summaries)

Premises Liab   Slip/Trip   Sidewalk   Indemnity  

First Department
Tenant entitled to summary judgment on contractual and common-law indemnity claims where it did not occupy or control sidewalk as required for indemnification under the lease. Lopez v G.P. Castle Realty, LLC

About Matt McMahon

Civil trials and appeals since 1984
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