November 5, 2024 | Vol. 442


MUST READS
(4 summaries)
NOTEWORTHYIF YOU MUST READ





Venue   Hearing   Estoppel   Admissibility  

First Department
Defendants’ motion to change venue from Bronx to New York County after a hearing where plaintiff produced documents including naturalization notices and auto insurance cards showing he moved from Queens over a year before starting the action providently denied. Tax estoppel, which precludes a party from taking a position different from that in tax returns, did not preclude plaintiff’s evidence where he stated he did not notice his long-term accountant had incorrectly continued to use his Queens address on the tax returns, he did not obtain any tax advantage by using the Queens address on his tax returns, and there was no evidence his Bronx residency was solely for obtaining an adventitious venue. Orellana v 115 Enters. Group LLC    

Comment: Tax estoppel is most commonly applicable on tax issues, especially real estate tax assessments.


Malpractice   Motion to Dismiss   Bankruptcy   Capacity to Sue   Amend Complaint   CPLR §205  

Second Department
Motion to dismiss for lack of capacity to sue granted as plaintiffs’ malpractice claims and causes of action vested solely in the bankruptcy estate once they filed for bankruptcy a year before filing the malpractice action and they could not correct this error by substituting the bankruptcy trustee in an Amended Complaint. Dismissal was without prejudice to commence a new action by the bankruptcy trustee within 6-month period of CPLR §205(a). Messer v Hughes    


Premises Liab   Stairs   3rd Party Contractor   Duty   Subsequent Repairs  

Second Department
Company that managed hospital parking garage where plaintiff tripped on raised piece of concrete on stair landing failed to meet burden for summary judgment on its claim its contract expired years earlier where it’s maintenance supervisor testified he repaired the landing shortly after plaintiff’s accident and its VP testified the repairs were within the purview of its work at the garage, leaving questions of whether it had a duty to maintain the premises in a reasonably safe condition. Mesoraca v Parking Servs. Plus, Inc.    

Comment: An example of where a subsequent repair is admissible to prove something other than negligence.


Labor Law §240   Labor Law §241   Labor Law §200   Falling Object   Control  

First Department
Defendants denied summary judgment dismissing plaintiff’s Labor Law §240(1) claim where plaintiff testified a cement board (WonderBoard) which was installed on a wall the day before it fell on him and conflicting testimony of whether the board was installed were credibility issues for a jury. The board was not a permanent fixture as it was installed after the work began. Questions of whether the area was normally exposed to falling objects for industrial code §23-1.7(a)(1) remained on Labor Law §241(6) and defendants’ claim they did not exercise control over the means and methods of plaintiff’s work was conclusory and failed to show they did not have control over the injury producing work for §200 and common-law negligence. Delcid v Park Ave. Christian Church    

NOTEWORTHY
(25 summaries)
MUST READSIF YOU MUST READ

Premises Liab   Sidewalk   Vacate Default   Service   Reasonable Excuse  

Second Department
Motion to vacate $200,000 judgment, entered on default judgment after inquest, by corporate owner and individual manager of building where plaintiff tripped and fell on abutting sidewalk denied as mere denial of receipt of Summons and Complaint by corporate defendant served through Secretary of State and individual manager’s denial of receipt of substituted service that was mailed to his residence was insufficient to show they did not receive the Summons and Complaint in time to answer for CPLR §317, especially where the corporate defendant did not deny Secretary of State had its correct address or provide a reasonable excuse for failing to Answer for CPLR §5015(a). Claim defendants thought the action had been dismissed belied by their failure to appear despite receiving numerous notices after the order of dismissal. Almonte v Soldati Realty, Inc.    


Premises Liab   Default Judgment   Inquest   Pain/Suffering   Materially Deviates  

Second Department
Order after inquest awarding plaintiff $100,000 modified on appeal to $400,000 on finding the original award materially deviated from reasonable compensation. The Court does not give the details of the injuries. Sharif v Pritam Prop., Inc.    


CPLR §306-b   Service   Untimely  

Second Department
Pro se plaintiff’s CPLR 306-b motion for extension to serve Summons/Complaint denied where plaintiff mailed the Summons/Complaint to defendant by certified mail shortly after filing but did not serve defendant by registered agent until 11-days after the 120-day time to serve elapsed and did not move for the extension until 2-months later. Plaintiff also failed to show entitlement to the extension in the interest of justice. Duckett v Stringer    


Child Victims Act   Negligent Hiring   Negligent Supervision   Notice   Foreseeability   Conclusory  

Second Department
Yeshiva’s motion to dismiss Child Victims Act claim for sexual by her religious studies teacher at his home when she was in fourth-grade granted where plaintiff’s conclusory allegations the Yeshiva knew or should have known of its religious studies teacher’s propensity for sexual abuse did not sufficiently plead any factual allegations of the Yeshiva’s knowledge. Kessler v Yeshiva of Cent. Queens    


Premises Liab   Stairs   Spoliation   Preclusion   Survelliance Video  

Second Department
Plaintiff’s motion for spoliation sanctions, including preclusion of video evidence, for failure to preserve 12-hours of video surveillance on day plaintiff tripped while ascending staircase denied where defendants preserved 52-seconds of video from before plaintiff’s accident to her walking away and remaining footage was automatically deleted before receipt of plaintiff spoliation letter. Plaintiff failed to show defendants were on notice of need to preserve the video, that saving only 52-seconds was done with a culpable state of mind, or that she could not prove her case without the erased video. De Abreu v Syed Rests. Enters., Inc.    


Malpractice   Wrongful Death   Accepted Practice   Causation   Experts   Conclusory   Speculation  

First Department
Nursing home granted summary judgment dismissing malpractice and wrongful death action where 86-year-old resident with a history of falls who was found on the floor of his room with his head on a pillow and did not remembering how he got there, his medical records characterized it as a fall but he often chose to sit or lie on the floor, and he had no pain or injuries consistent with the fall. Plaintiff’s expert’s opinion was speculative where it solely recited the medical record indication of a fall without any explanation of how a fall would have been a cause of decedent’s cardiopulmonary impairment and death. Starnella v Ganti    


Labor Law §240   Ladder   Spoliation   Sanctions   Indemnity  

First Department
Plaintiff’s motion for spoliation providently granted to the extent of precluding defendant-tenant of suite where worker fell when A-frame ladder collapsed from using photos of the ladder taken by its insurance carrier before its employees disposed of it as the spoliation was at least negligent and striking the Answer would have been inappropriate. Defendant had a duty to preserve the ladder where it was aware of plaintiff’s fall and that there was a reasonable possibility of a lawsuit.

Building owners’ motion for summary judgment against the tenant granted on indemnity agreement triggered by any accident in the suite. Right of reentry did not raise an issue without proof the owners were negligent. Vaccaro v ESRT Empire State Bldg., L.L.C.    



Labor Law §240   Safety Devices   Notice to Admit   Premature Motion  

First Department
Worker, provided with harness and yo-yo but no tie off point, who tripped on metal debris and fell into uncovered 3′ beam pocket granted summary judgment on Labor Law §240(1) for failure to provide adequate safety devices such as a tie off point or covering for the beam pocket. Defendants offered only speculation that the beam pocket was integral to the work and covering would have been contrary to the work being done. Claim plaintiff could have just stepped over the beam pocket would at best be comparative fault, not a §240 defense. Plaintiff’s failure to respond to notice to admit that photographs depicted the site on the day of the accident did not establish they accurately depicted where he fell immediately prior to or at the time of his accident.

Defendants failed to show they needed information exclusively within plaintiff’s knowledge where plaintiff had been deposed 3-times, coworkers it sought to depose were not within plaintiff’s control, or that discovery might lead to relevant information to oppose the motion. Guzman-Saquisili v Harlem Urban Dev. Corp.    



Labor Law §240   Labor Law §241   Industrial Code   Notice   Indemnity  

Second Department
Plaintiff who was standing in the basket of fully extended 30′ boom lift when it telescoped in on itself granted summary judgment under Labor Law §240(1) on eyewitness’s testimony and an expert engineer’s opinion that the lift malfunctioned due to poor maintenance. Fact plaintiff remained in the basket was irrelevant to whether he fell from a height. GC failed to meet burden for summary judgment dismissing Labor Law §241(6) based on industrial code §23-9.2(a) where its proof did not establish lack of actual notice of a structural defect or unsafe condition of the boom.

Plaintiff’s employer granted summary judgment dismissing GC’s claim for contractual indemnification as the broad language of the agreement violated the GOL §5-322.1 prohibition of indemnity for the indemnitee’s own negligence and the engineer’s report was prima facie proof of the GC’s negligence. Rogers v Peter Scalamandre & Sons, Inc.    



Labor Law §240   Ladder   Recalcitrant Worker   Sole Cause  

First Department
Plaintiff granted summary judgment for fall while standing on bucket to caulk top of 12′ windows on his testimony no ladders were available and his supervisor told him to do the work any way he could. Supervisor’s equivocal statement that he believed ladders were in plaintiff’s vicinity failed to raise an issue on recalcitrant worker, plaintiff testified he checked the designated supply room and no ladders were present, and supervisor and coworker testified only generally that workers were expected to use ladders but did not testify that plaintiff was told a ladder was necessary for the task. DeOleo v 90 Fifth Owner, LLC    


Labor Law §240   Scaffold   Recalcitrant Worker  

First Department
Worker granted summary judgment on Labor Law §240(1) on his undisputed evidence he fell from a scaffold without guardrails when it moved. Defendants failed to raise an issue on recalcitrant worker with plaintiff’s employer’s affidavit that there was a standing order to only use baker scaffolds with guardrails and sufficient guardrails were present on the worksite as the employer acknowledged he was not present on the worksite on the date of the accident. Ruiz v BOP 245 Park LLC    


Labor Law §240   Safety Devices   Recalcitrant Worker   Sole Cause  

First Department
Worker who fell from A-frame ladder after it was struck by overhead pipe he was cutting granted summary judgment on Labor Law §240(1) for failure to provide safety devices to secure the pipe. Defendants’ claim coworkers were supposed to hold the pipe did not raise an issue as people are not safety devices. Defendants failed to show recalcitrant worker or sole cause for not placing the ladder in a place where it would not be struck by the pipe as instructed by his supervisor as ‘an instruction to avoid an unsafe practice is not a sufficient substitute for providing a worker with a safety device.’ Jara-Salazar v 250 Park, L.L.C.    


Labor Law §241   Industrial Code   Sole Cause   Question of Fact  

Second Department
Defendant denied summary judgment dismissing electrical mechanic’s Labor Law §241(6) claim for an eye injury when an electrical cable swung and hit him in the eye as defendant failed to show of installing and furnishing electrical cables to provide power to a tent defendant was using for storage was not construction work protected by §241 as defined by industrial code 23-1.4(b)(13), questions remained of whether the worker was provided with and instructed to use proper eye protection under industrial code 23-1.8(a) and whether lack of proper eye protection was a cause of the injury in order to establish plaintiff was the sole cause. Lopez v Kamco Servs., LLC    


Construction Liab.   Create Condition   Trivial   Open/Obvious   Comparative Fault  

Second Department
Infant-plaintiff granted summary judgment for slip and fall on sand in bicycle lane on his testimony he saw contractor dumping sand in the lane 2-days earlier, saw residual sand earlier on the day of his fall, and foreman’s testimony establishing defendant left sand behind at the scene. Defendant failed to show the condition was physically insignificant or open/obvious. Questions of the infant’s comparative fault remained where he testified he saw the sand 15′ before he slipped. Ismailova-Aronov v Elecnor Hawkeye, LLC    


Premises Liab   Sidewalk   Unknown Cause   Experts   Indemnity   § 7-210   Building Code  

First Department
Building owner denied summary judgment dismissing plaintiff’s claim for fall from ramp leading from tenant’s deli to street where plaintiff’s expert raised issues on whether the ramp’s incline was too steep in violation of building codes and whether it caused plaintiff’s fall.

Building owner denied summary judgment dismissing deli’s cross-claims for common-law contribution and indemnity as it failed to show it was not negligent where its owner and representative routinely visited the building and repaired portions of the sidewalk. A jury could find the owner made special use of the ramp under administrative code §7-210, giving it a nondelegable duty to maintain the ramp. Pena v Rhodes 2 L.L.C.    



Premises Liab   Sidewalk   Trivial   Experts   Admissibility  

Second Department
Landowners granted summary judgment dismissing plaintiff’s claim for trip and fall on raised sidewalk flag, even though their “certified safety professional” expert’s affidavit was insufficient based an inspection 3-years postaccident and after repairs, on plaintiff’s testimony that the weather was nice, she had walked the sidewalk before, and nothing was obscuring the defect, establishing the defect was physically insignificant and the risk was not increased by the surrounding circumstances. Brothers v Nisan Maintenance Corp.    


Serious Injury   Causation  

First Department
Denial of portion of defendants’ motion for summary judgment dismissing plaintiff’s knee and ankle injury claims affirmed where defendants’ did not appeal denial of summary judgment on spine and shoulder injuries as plaintiff can recover for all injuries caused by the accident as long as he meets the serious injury threshold on any injury. Defendants failed to show the knee and ankle injuries were not caused by the accident. 90/180-day category claims dismissed where plaintiff did not testify any doctor told him to stay home. Celestine v Bonte    


Serious Injury   Preexisting   Degenerative   Experts  

Second Department
Plaintiff’s neurologist’s affirmed report raised issues on permanent consequential and significant limitations to her cervical spine and adequately addressed her preexisting cervical degeneration in opposition to defendants’ motion for summary judgment on serious injury. Plaintiff’s affidavit that she could not afford treatment after her no-fault benefits stopped adequately explained her treatment gap. Pacannuayan v New York City Tr. Auth.    


Premises Liab   Stairs   Unknown Cause  

Second Department
Restaurant granted summary judgment dismissing plaintiff’s claim for slip and fall on stairs on plaintiff’s testimony there was no debris or substances on the stairs. Her testimony that stairs seemed very smooth was insufficient to raise an inference of negligence. Causation could not be inferred from plaintiff’s claim the stairs lacked a handrail on one side and lighting was dim and she did not testify they caused her fall. Joseph v Door Rest. Corp.    


MVA   Duty  

Second Department
Defendants granted summary judgment dismissing plaintiff’s claim for rear end hit by valet-vendor’s employee who was looking for a parking space 4-blocks from the venue, as the defendant synagogue congregation owed no duty to plaintiff since they did not hire the valet-vendor which was hired by the wedding party. Murtazayev v Shalom Intl. Corp.    


MVA   Bus   Survelliance Video  

Second Department
NYCTA granted summary judgment dismissing claim for decedent’s fall into a row of seats on its bus as decedent’s characterization that the movement of the bus was “unusual and violent” was insufficient objective evidence that the jerk or lurch was unusual and violent and defendant’s bus camera video showed it was not unusual and violent. Joo Yeon Park v New York City Tr. Auth.    


MVA   Pileup  

Second Department
Owner and driver of middle vehicle in 3-vehicle accident granted summary judgment on proof driver brought her vehicle to a safe stop behind plaintiff’s vehicle when it was rear-ended by NYCTA’s bus, pushing it into plaintiff’s vehicle. Beltre v Menegos    


MVA   Bicycle   There to be Seen  

Second Department
Defendants failed to meet burden for summary judgment dismissing bicyclist’s claim for being struck by their vehicle where the plaintiff’s and defendant-driver’s testimony left questions of whether defendant driver kept a proper lookout as he approached the intersection or used reasonable care to avoid the accident. Tsarenkov v Rosenbaum    


MVA   Rear End  

Second Department
Driver of vehicle with plaintiff as passenger which was rear-ended by codefendants’ vehicle failed to meet burden for summary judgment where conflicting versions of the accident left questions of whether she was moving or stopped when rear-ended and distracted on her cell phone just before the accident. Trinidad v Llapa    


MVA   BP   Causation  

Second Department
Defendants’ motion to strike portions of BP alleging lumbar injuries/surgeries on its claim no lumbar injuries were caused by the MVA denied as there was no basis to grant the motion without a summary judgment motion. Modica v Cohen    

IF YOU MUST READ
(4 summaries)
MUST READSNOTEWORTHY

Premises Liab   Sidewalk   § 7-210   Unknown Cause   Burden of Proof  

First Department
Abutting landowners failed to meet burden for summary judgment dismissing plaintiff’s claim for fall on sidewalk defect where they conceded they had a duty to maintain the sidewalk under administrative code §7-210 and did not refute plaintiff’s claim the sidewalk was defective. Argument that plaintiff failed to prove the sidewalk caused his fall was an improper attempt to shift defendants’ burden of proof to plaintiff. Ortiz v Country Beer Distrib. Inc.    


Malpractice   Accepted Practice   Causation   Experts   Speculation   Conclusory  

Second Department
Internist failed to meet burden for summary judgment dismissing plaintiff’s action for failure to diagnose and treat liver cancer that resulted in decedent’s death 11-months after he first presented with abdominal pain where his expert’s opinions of no departure from accepted practice and no causation were speculative and conclusory. The Court does not give the details of the expert’s opinions. Miller-Albert v EmblemHealth    


Serious Injury   Preexisting  

Second Department
Defendant met burden for summary judgment on serious injury by competent medical proof but plaintiff raised an issue on whether her lumbar injuries were exacerbated by the accident. The Court does not give the details of the proofs. Williams v Lettuere    


MVA   Comparative Fault   Admission  

Second Department
Plaintiff’s motion for summary judgment on liability and dismissal of comparative fault defense denied based on conflicting versions of how the accident occurred. The Court does not give the details of the proofs. Defendant’s denial that he made the statements attributed to him in the police report was a matter of credibility for a jury. Arnold v Shepitka    

About Matt McMahon

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