November 8, 2022 | Vol. 338

(7 summaries)

Malpractice   Wrongful Death   Motion to Dismiss   Statute of Limitations  

First Department
Covid-19 executive orders tolled rather than suspended statutes of limitations between 3/20/20 and 11/3/2020, making plaintiff’s causes of action for wrongful death and conscious pain and suffering timely whether based on malpractice or negligence. Murphy v Harris    

Comment: The Court noted cases in the Second and Third Departments with similar holdings.

Malpractice   Set Aside Verdict   Preclusion   Experts   CPLR § 3101(d)   Accepted Practice   Causation   Admissibility   Waiver  

Second Department
Trial court improvidently precluded plaintiff’s expert from testifying that her necrotizing fasciitis originated during hysterectomy based on CPLR §3101(1)(i) disclosure for that expert noting departures as “failure to timely diagnose and appropriately treat a postoperative wound infection,” where other allegations in the disclosure and BP, alleging a festering infection and surgical site infection, made the disclosure “’not so inadequate or inconsistent with the expert’s [proposed] testimony as to have been misleading, or to have resulted in prejudice or surprise.’” Case remanded for new trial.

Trial court properly allowed defense to cross-examine plaintiff’s husband on conviction for assaulting his wife and permitted details of the assault to impeach plaintiff’s credibility after she opened the door. Plaintiff waived objections to admission of irrelevant prior lab results and counsel’s summation argument that other doctors’ actions in response to those lab results set the standard of care where she did not object at trial. Owens v Ascencio    

Premises Liab   Spoliation   Duty   Premature Motion  

First Department
Plaintiff’s spoliation motion against defendants, exterminators and landlord, for not preserving and producing records of 25-treatments for bed bug infestation she claimed caused her injury by exposure to toxic chemicals denied without prejudice to renew on a fuller record. Landlord had duty to preserve all infestation records, including violations and records to/from HPD, once plaintiff filed housing court case. Two Jackson affidavits provided by landlord were inadequate without details of ‘what efforts, if any, were made to preserve [the relevant documents], whether such records were routinely destroyed, or whether a search had been conducted in every location where the records were likely to be found,’ but plaintiff failed to show landlord’s culpable state of mind on the current record.

Plaintiff failed to show on the current record that exterminator’s missing records were her “sole means of establishing her claims or that their absence prejudiced her ability to prove causation” where exterminators testified to what each treatment consisted of and the chemicals used. Domingo v 541 Operating Corp.    

Assumption of Risk   Negligent Supervision   Comparative Fault  

Second Department
High school sophomore football player injured during off-season “weight test” when he lost control of 295 lb. weight during a squat lift, and assigned student-spotter failed to stop the weight from falling and crushing his finger, assumed risks inherent in football when he signed up for the team, but not the inherit risks of weightlifting. Getting into shape may be part of participating in football but it is not engaging in football. Infant-plaintiff’s knowledge of risks of weightlifting might go to comparative fault, but not assumption of risk.

School district also failed to eliminate questions of whether it increased the risk of weightlifting on the claim of negligent supervision by assigning a student spotter where it produced no evidence that the spotter was not negligent. Casual comment by infant-plaintiff during 50H that it happened “quickly,” insufficient to establish no degree of supervision could have prevented the accident. Annitto v Smithtown Cent. Sch. Dist.    

Comment: Same facts and result for a different student injured during the weight test. Aybar v US Tires & Wheels of Queens, LLC.

Motion to Dismiss   CPLR § 3126   Preclusion   Discovery   Willful/Contumacious   Sanctions  

Second Department
Plaintiff’s failure to appear for a continued deposition, provide photographs testified to at her first deposition, and HIPAA authorizations for specified medical providers in violation of court orders were properly deemed willful/contumacious, but lower court’s striking the Complaint was too drastic and modified to require plaintiff to appear for the supplemental EBT, provide the specified medical authorizations, preclude her from using any photographs not disclosed, and payment by her counsel personally of $3000 to defendant. Castillo v Charles    

Labor Law §240   Ladder   Industrial Code  

First Department
Defendants granted summary judgment dismissing Labor Law §§ 240(1) and 202 claims as window cleaner in commercial space who fell off ladder was not engaged in “cleaning” under §240 and failed to cite to violation of any industrial code for the §202 claim. Castillo v West End Towers LLC    

MVA   Bus   Causation   Survelliance Video  

First Department
NYCTA, its bus driver, and driver of car that struck rear of bus while attempting to parallel park granted summary judgment where bus driver’s testimony and bus video contradicted plaintiff’s claim bus struck a car and dragged it 10-20 blocks, showing bus stayed in its lane at all times. Plaintiff’s version failed to raise an issue of fact as it was ‘demonstrably false and incredible as a matter of law.” Vehicle that backed into rear of bus could not have been a cause of plaintiff’s injuries. Gaffney v New York City Tr. Auth.    

(24 summaries)

Labor Law §240   Scaffold   Set Aside Verdict   Directed Verdict   Causation   Degenerative   Experts   Waiver  

Second Department
Plaintiff’s motion to set aside verdict finding he fell from a makeshift scaffold while painting a stairwell but his fall was not the cause of his injuries as against the weight of evidence denied as it could be reached on fair interpretation of the evidence where jury could credit defendants’ 2-experts who opined the injuries were degenerative and plaintiff’s expert agreed they could be degenerative. Plaintiff waived issue of directed verdict without moving for directed verdict at the close of defendants’ case. Fernandez v Taping Expert, Inc.    

Battery   Set Aside Verdict   Preclusion   Prejudice  

First Department
Defendant’s motion to set aside verdict finding him 50% at fault for battery and assessing itemized damages denied as not against weight of the evidence where jury could credit plaintiff’s version of the incident. Court properly precluded defendant from cross-examining plaintiff on a prior inconsistent statement in the criminal complaint where defendant had moved to exclude the criminal complaint from evidence. Trial court’s judicial notice of agreement between nonparties tenant association and defendant’s father, which was irrelevant to the case, did not prejudice defendant and comments by plaintiff’s counsel that defendant deemed objectionable were partially unpreserved, brief, and did not go beyond bounds of zealous advocacy or deprive defendant of a fair trial. Matos v Hiraldo    

Premises Liab   Vacate Default   Reasonable Excuse  

Second Department
Plaintiff’s motion to vacate default in opposing or appearing on return date after motion was adjourned twice to afford plaintiff the opportunity to submit opposing papers denied as excuse that attorney failed to appear on 2-calendar-calls because she was appearing on another case in another part was not a reasonable excuse and plaintiff failed to provide any excuse for waiting 9-months after Notice of Entry before moving to vacate the default. Delucia v Mar Lbr. Co., Inc.    

Premises Liab   Building Code   Raised For First Time   Comparative Fault  

Second Department
Defendant’s claims that certificate of occupancy precluded lower court from finding negligence per se where plaintiff tripped over door saddle to his terrace and fell over parapet wall that was 9” lower than required by MDL §62, falling 4-stories, not considered where raised for the first time on appeal. Comparative fault issue was not decided and is still pending before the lower court. Zai Guang Chen v Tak Yung Cheng    

Malpractice   Informed Consent   Accepted Practice   Causation   Experts  

Second Department
Defendants met burden for summary judgment with medical records and opinions of 3-experts that they did not depart from accepted practice by discharging decedent from ER with diagnosis of pleuritic chest pain instead of pleural embolism, which decedent died of 8-days later, and internist’s opinion the treatment and care was not a cause of decedent’s death but plaintiffs expert raised an issue as to whether their treatment departed from accepted care and was a cause of the death. The Court does not give the details of the proofs.

Defendants granted summary judgment on informed consent where plaintiff did not oppose that portion of the motion. Clarke v New York City Health & Hosps.    

Labor Law §240   Labor Law §241   Labor Law §200   Gravity Risk   Causation   Industrial Code   Control   Create Condition   Notice  

First Department
Plaintiff’s trip on non-defective wooden plank on a sidewalk bridge, landing on a 2’ lower separate portion of the bridge, was not caused by height differential between the 2-portions, requiring dismissal of Labor Law §240(1) claims. Plaintiff failed to show how a ramp that used to exist between the portions of the bridge would have prevented him from tripping on the wooden plank.

Labor Law §241(6) claims dismissed as industrial code §§ 23-1.8(b)(2) and 23-5.1(j)(1) inapplicable where they applied only to the outside edges, ends, and open sides of sidewalk sheds and scaffolds and plaintiff tripped on interior portion of the sidewalk bridge and he testified there were significant barriers to prevent a fall off the sidewalk bridge. Contractor granted summary judgment dismissing Labor Law §200 and negligence claims of proof it did not create or have notice of any dangerous condition and did not control the injury-producing work. Polonia v 14 Sutton Tenants Corp.    

Labor Law §240   Labor Law §241   Labor Law §200   Question of Fact  

Second Department
Building owner’s motion for summary judgment dismissing Labor Law claims of worker who fell from scaffold when installing sheet rock denied as GC’s and subcontractor’s affidavits stating plaintiff was not an employee, did not work at the site on the date of the accident, and there were no accidents on that date failed to eliminate all questions of fact as they did not explain the basis of their claims, state they were at the work site on the day of the accident, or address plaintiff’s claim that a named employee of the GC hired and supervised him. Hernandez v High Rise Bldg. & Design, Inc.    

Labor Law §241   Scaffold   Industrial Code  

First Department
Port Authority’s motion for summary judgment dismissing Labor Law §241(6) claim of welder injured at Brooklyn Marine Terminal while moving a scaffold that got stuck in a hole denied where it leased that space to a non-party who contracted with plaintiff’s employer as it was the owner of the property and maintained significant control over the tenant’s use of the space, plaintiff’s work was protected under §241 which includes areas where materials are prepared for a construction project at a different location, and plaintiff’s testimony of debris, grease, and oil on the floor that caused her to slip when she tried to pull the scaffold out of the hole raised issues on the application of industrial code §§ 23-1.7(d) and (e)(2)(slipping hazards) and it was a “work area.” Musse v Triborough Bridge & Tunnel Auth.    

Labor Law §240   Labor Law §241   Gravity Risk   Safety Devices   Comparative Fault   Sole Cause   Experts   Speculation   Agent  

First Department
Plaintiff granted summary judgment on Labor Law §241(6) claim where gang box lid fell on him on proof gang box struts were missing and expert’s opinion they were safety devices to slowly open gang box lid and keep it open. Plaintiff was not required to show freedom from comparative fault for summary judgment and defendants’ speculative claim plaintiff was sole cause of accident for ordering workers to drill out locks did not raise an issue where locks were not near struts.

Defendants granted summary judgment dismissing Labor Law §240(1) claim as gang box lid was not a §240 safety device that required securing to lift a heavy load. One defendant’s claim they were not a proper Labor Law defendant rejected on owner’s manager’s testimony they were hired as the GC and were the owner’s agent. Cotroneo v Van Wagner Sign Erectors, LLC    

Labor Law §240   Labor Law §241   Labor Law §200   Scaffold   Ladder   Indemnity  

Second Department
Building framer denied summary judgment on Labor Law §240(1) where he claimed platform of scaffold surrounding detached garage he was on suddenly collapsed but his employer and the construction manager were informed he was on a ladder at time of accident and employer inspected the ladder and found it not defective. Construction manager granted summary judgment dismissing Labor Law §241(6) claim on plaintiff’s testimony scaffold planking was 2” thick as required by industrial code §23-1.22(c) but denied summary judgment on Labor Law §200 despite plaintiff’s testimony he did not meet with any of their employees where the construction management agreement required it to supervise the day-to-day activities at the work site, be responsible for maintaining safety, and the subcontract required it to supervise plaintiff’s employer’s work.

Employer’s motion for summary judgment on contractual indemnity claim against it denied even though the garage was not included within the scope of the contract as the work was part of the employer’s “trade” under the indemnity agreement and questions remained of whether the parties intended the work as a separate contract or part of the original contract. Torres v Accumanage, LLC    

Labor Law §240   Labor Law §200   Scaffold   Sole Cause   Comparative Fault   Control   Agent   Espinal   Raised For First Time   Indemnity  

First Department
Worker who fell when Baker scaffold he was working on overturned entitled to summary judgment on Labor Law §240(1) against building owner, manager, and tenant who was deemed an owner because it contracted for the work being performed. Plaintiff could not be sole cause of accident where no safety devices were provided and any negligence would have been only comparative fault.

Subcontractor granted summary judgment dismissing Labor Law §§ 240(1), 200, and negligence claims and crossclaims where there was no proof it had authority to supervise the injury producing work to be an agent of the owner or that it had assembled or owned the scaffold for Espinal claim it launched an instrumentality of harm.

As subcontractor was not negligent, common-law and contractual indemnity claims against it dismissed where the agreement only covered damages caused by subcontractor’s own work. Issues not raised below not considered and the Court declined to search the record. Otero v 635 Owner LLC    

Premises Liab   Sidewalk   § 7-210   Create Condition   Duty   Open/Obvious   Inherently Dangerous   Comparative Fault  

Second Department
Plaintiff denied summary judgment against tenant of abutting property for trip in hole on sidewalk as administrative code §7-210 does not apply to tenant and plaintiff failed to show tenant created the condition, voluntarily but negligently repaired the sidewalk, had a statutory duty to maintain the sidewalk, or wholly displaced the owner’s §7-210 obligation to maintain the sidewalk. Defendants failed to show condition was open/obvious and not inherently dangerous. Brady v 2247 Utica Ave. Realty Corp.    

Premises Liab   Elevator   Notice   Question of Fact   Res Ipsa Loquitor   Experts  

First Department
Plaintiff’s cross-motion for summary judgment denied where his testimony of prior problems with glass elevator doors was contradicted by hotel and service records which did not identify which of the 2-glass doors were serviced, raising questions of whether elevator company had notice of specific injury-producing problem. General awareness of a potential problem does not give notice of a specific condition. Questions of fact remained on conflicting testimony of whether employees were instructed to manually close the elevator doors, press the electronic sensors on the door edges, or call engineering to get inoperable door working, and the effect pushing the door would have. Conflicting expert opinions left questions of fact on res ipsa loquitor. Jimenez v PR Grand Hotel Owner Co., LLC    

Premises Liab   3rd Party Contractor   Espinal  

First Department
Building manager granted summary judgment dismissing claim of elevator mechanic who fell from A-frame ladder on top of disabled elevator due to water leaking from roof on proof that no Espinal exception applied where it did not launch an instrumentality of harm by creating or exacerbating the leaking roof, plaintiff could not have relied on manager’s contract to his detriment where there was no proof he knew of the contract and he was aware all repairs had to be preapproved by the building owner, and his employer and the parties testified the management agreement which placed responsibility for roof repairs on the manager was not followed and the building owner made all roof repairs and had to preapprove all repairs. Pollock v Cushman & Wakefield, Inc.    

Snow/Ice   Feigned Issue   Create Condition   Notice   Raised For First Time   NYC  

Second Department
NYC granted summary judgment dismissing claim of pedestrian who slipped on ice in triangular area not intended for vehicle or pedestrian traffic adjacent to traffic circle as plaintiff’s affidavit stating he saw NYC employees shoveling snow in the area the day before he fell directly contradicted his 50H testimony creating only a feigned issue. NYC also showed it did not have notice of the condition on plaintiff’s testimony he did not see the patch of ice until he slipped on it and climatological evidence that the temperature remained above freezing for 2-days before the accident and dropped below freezing in the morning before the accident, negating plaintiff’s claim the ice was a longstanding condition.

NYC’s argument it had no duty to clear snow/ice from the area because it was not intended for vehicle or pedestrian traffic not considered where raised for the first time on appeal. Nass v City of New York    

Serious Injury   ROM   Causation   Experts  

Second Department
Defendant’s experts failed to meet burden for showing plaintiff did not sustain a serious injury as a result of MVA where one of her experts found significant limitations of cervical and lumbar ROM, there was no indication he examined the thoracic spine ROM also claimed to have been injured, substantiate his opinion the limitations were self-imposed by competent medical evidence, and failed to show the spinal injuries were not caused by the accident. Mahler v Lewis    

Asbestos   Motion to Dismiss   Personal Juridiction  

First Department
Asbestos glove manufacturer’s motion to dismiss for lack of personal jurisdiction denied where decedent testified he thought his employer purchased defendant’s gloves in New York and was injured when they ripped, exposing him to the asbestos, and defendant’s officer’s affidavit stating their principal place of business was in Illinois and they did not have any offices or property in New York was insufficient to eliminate all questions of fact as it did not address whether they sold gloves to plaintiff’s employer, requiring further discovery. Matter of New York City Asbestos Litig.    

MVA   Bus   Emergency Doctrine  

Second Department
NYCTA’s motion for summary judgment on emergency doctrine where bus driver testified he stopped short to avoid a car entering the road from a side street without stopping at a stop sign denied where questions remained of how the accident occurred. NYCTA not precluded from relying on the emergency doctrine because it was not plead as bus driver gave detailed testimony regarding the stop, eliminating any claim of surprise. Shin v New York City Tr. Auth.    

MVA   Rear End   Comparative Fault   Nonnegligent Explanation   Premature Motion  

Second Department
Affidavit of plaintiff-driver that he was stopped when rearended by defendant’s vehicle entitled plaintiffs, driver and passenger, to summary judgment on liability and dismissing comparative fault defense. Defendant’s claim he did not see brake lights on plaintiffs’ vehicle was insufficient to raise a nonnegligent explanation. Defendant failed to show discovery was necessary to obtain relevant information or information solely withing plaintiffs’ knowledge since defendant had personal knowledge of the facts. Quintanilla v Mark    

MVA   Rear End   Pileup   Causation   Nonnegligent Explanation   Raised For First Time  

First Department
Lead vehicle in 3-vehicle pileup granted summary judgment where there was no dispute 3rd-vehicle rearended 2nd-vehicle which rearended lead vehicle and each driver felt only 1-impact. Claim lead vehicle suddenly cut in front of 2nd-vehicle did not raise an issue as 3rd-vehicle would not have rearended 2nd-vehicle if driver was maintaining a safe distance in the heavy traffic. The Court declined the 2nd-vehicle defendants’ request to search the record and grant them summary judgment where the issue was not raised below. Betances v DJB Intl. Ltd    

Settlement   Attorney Fees  

Second Department
Firm substituted shortly after action was commenced providently awarded $0 in quantum meruit where it failed to provide any documents or testimony of someone with personal knowledge from which their time and labor could be determined. Oz v GCPKOP, LLC    

MVA   Bus   Renew   Reasonable Excuse  

Second Department
Plaintiff’s motion to renew opposition to NYCTA’s motion for summary judgment denied where plaintiff’s excuse for not including the new facts on the original motion showed only neglect and not reasonable justification and, in any event, the new facts would not have changed the determination.

Appellate court declined to exercise its discretion to hear argument which could have been raised on the appeal from the original order which was dismissed for failure to prosecute. Seegopaul v MTA Bus Co.    

Premises Liab   Snow/Ice   Storm in Progress  

Second Department
Testimony of plaintiff who slipped and fell on snow/ice at 6 AM that snow started the day before and continued into the overnight hours accumulating 6″-12″ met defendant’s burden of showing they did not have sufficient time to ameliorate the condition after the snow stopped under storm in progress doctrine and plaintiffs failed to show defendants created or exacerbated the condition. Henenlotter v Union Free Sch. Dist. No. 23    

MVA   Bicycle   Turning Vehicle   There to be Seen   Survelliance Video  

Second Department
Plaintiff-bicyclist granted summary judgment where surveillance video showed he was riding on a sidewalk parallel to UPS truck and UPS truck made a turn and struck him after he entered cross walk, establishing UPS driver failed to see what was there to be seen. Kruter v United Parcel Serv. Gen. Servs. Co.    

(3 summaries)

Uninsured   Arbitration   Hearing  

Second Department
Injured party filing for uninsured arbitration met burden of showing contact between his vehicle and hit-and-run vehicle by his testimony he struck a light pole when he swerved to avoid the other vehicle which then struck his rear passenger side. Appellate court has broad power to review evidence at the hearing after the matter is determined. Matter of Government Employees Ins. Co. v Siouni    

Labor Law §240   Labor Law §241   Discovery   Premature Motion  

First Department
Plaintiff’s motion for summary judgment on Labor Law §§ 240(1) and 241(6) denied as premature where there was limited discovery and none of the parties had been deposed. The Court does not give the details of the proofs. Contreras v MDG Design & Constr. LLC    

Premises Liab   Wet Floor   Question of Fact  

Second Department
Defendants denied summary judgment of plaintiff’s claim for falling on water on bathroom floor of apartment where plaintiff raised questions of fact on ownership of the cooperative apartment. The Court does not give the details of the proofs. Carrion v 350-52 S. Fourth St. Hous. Dev. Fund Corp.    

About Matt McMahon

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