Premises Liab Sidewalk Vacate Default Service Reasonable Excuse
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. ✉
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Premises Liab Default Judgment Inquest Pain/Suffering Materially Deviates
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. ✉
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CPLR §306-b Service Untimely
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 ✉
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Child Victims Act Negligent Hiring Negligent Supervision Notice Foreseeability Conclusory
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 ✉
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Premises Liab Stairs Spoliation Preclusion Survelliance Video
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. ✉
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Malpractice Wrongful Death Accepted Practice Causation Experts Conclusory Speculation
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 ✉
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Labor Law §240 Ladder Spoliation Sanctions Indemnity
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. ✉
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Labor Law §240 Safety Devices Notice to Admit Premature Motion
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. ✉
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Labor Law §240 Labor Law §241 Industrial Code Notice Indemnity
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. ✉
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Labor Law §240 Ladder Recalcitrant Worker Sole Cause
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 ✉
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Labor Law §240 Scaffold Recalcitrant Worker
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 ✉
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Labor Law §240 Safety Devices Recalcitrant Worker Sole Cause
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. ✉
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Labor Law §241 Industrial Code Sole Cause Question of Fact
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 ✉
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Construction Liab. Create Condition Trivial Open/Obvious Comparative Fault
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 ✉
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Premises Liab Sidewalk Unknown Cause Experts Indemnity § 7-210 Building Code
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. ✉
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Premises Liab Sidewalk Trivial Experts Admissibility
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. ✉
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Serious Injury Causation
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 ✉
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Serious Injury Preexisting Degenerative Experts
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. ✉
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Premises Liab Stairs Unknown Cause
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. ✉
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MVA Duty
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. ✉
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MVA Bus Survelliance Video
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. ✉
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MVA Pileup
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 ✉
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MVA Bicycle There to be Seen
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 ✉
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MVA Rear End
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 ✉
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MVA BP Causation
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 ✉
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