November 9, 2021 | Vol. 286

(4 summaries)

MVA   Highway Design   Qualified Immunity   Create Condition   Sole Cause   3rd Party Contractor   Espinal   Experts   NYC  

Second Department
NYC defendants granted summary judgment on qualified immunity for design of Queensboro Bridge ramp where decedent-passenger was killed when speeding, intoxicated defendant-driver lost control of vehicle as their traffic plan did not result from a plainly inadequate study or lack a reasonable basis. The ramp was analyzed in a 1998 study resulting in planned changed to increase sight distances and reduce traffic flow which were completed in January 2008 and the modifications neither created nor exacerbated any dangerous condition.

NYC defendants showed driver was sole proximate cause of accident by his testimony he lost control when he jerked the wheel because he didn’t react quickly enough to avoid a jersey barrier in a “T formation” at end of the ramp but that he had seen the barrier as he came off the bridge and knew he would have to make the turn, he drank wine, beer, and tequila before the accident, and defendants’ expert’s retrograde extrapolation of the driver’s blood sample showing a BAC of .15 at the time of the accident.

Contractors who placed jersey barrier and orange traffic barrels granted summary judgment as they did not launch an instrumentality of harm, create, or exacerbate a dangerous condition under Espinal. Rodriguez v Palacio    

MVA   Police   Set Aside Verdict   VTL §1104   Reckless   Admissibility   Jury Charge  

Second Department
Motion by county and police department to set aside verdict finding them 15% at fault for accident where codefendant struck and killed decedent during police chase granted as lower court erred in admitting department’s rules and regulations which imposed a higher standard than the reckless disregard standard of VTL §1104 without an appropriate instruction that they could be considered only as some evidence of negligence along with other factors. Case remanded for new trial. Foster v Suffolk County Police Dept.    

Labor Law §240   Labor Law §200   Negligent Hiring   Negligent Supervision   BP   Industrial Code   Untimely   Preclusion  

Second Department
Defendant precluded from using transcript of EBT noticed during CPLR §3214 automatic stay, objected to by plaintiff, and conducted without court approval or plaintiff’s counsel presence. Defendant granted summary judgment dismissing allegations in BP of negligent hiring, retention, and supervision where foreman handed plaintiff an unguarded portable saw/grinder that kicked back on him on proof defendant’s tenant, not defendant, hired the contractor and there was no proof either had knowledge of the foreman’s propensity to provide unguarded tools.

Plaintiff’s cross-motion for summary judgment on Labor Law §241(6) brought months after summary judgment deadline denied as untimely where issues were not identical to those raised in defendant’s summary judgment motion based on different industrial code provisions. Dojce v 1302 Realty Co., LLC    

Malpractice   Premises Liab   Motion to Dismiss   Personal Juridiction   Statute of Limitations   CPLR §205   Unknown Cause   Create Condition   Notice  

Second Department
Medical defendants granted dismissal on statute of limitations where prior federal case was discontinued reserving any rights under CPLR §205(a) but §205(a) inapplicable since plaintiff never served the medical center or filed a stipulation waving service on the nurse, required for personal jurisdiction under FRCP, making subsequent state action untimely. Plaintiff’s expert physician’s affidavit failed to raise issue of disability to toll statute under CPLR §208.

Plaintiff failed to raise issue in opposition to restaurant’s prima facie showing of entitlement to summary judgment by proof plaintiff could not identify cause of fall and that it did not create or have notice of a dangerous condition. The court does not give the details of the proofs. Xin Li v Mercy Med. Ctr.    

(13 summaries)


First Department
Defendants’ motion to change venue from Bronx to Westchester County granted on several documents showing plaintiff’s residence in Milton, NY prior to bringing suit and plaintiff failed to raise issue where she testified she stopped working in the Bronx 5-years before accident and recently applied for job using Milton address. Documents she submitted all predated the lawsuit except a magazine cover mailed to her former Bronx address but received after commencement of the suit. Appleyard v First Prestige Props., Inc.    

Labor Law §240   Falling Object   Foreseeability  

First Department
Plaintiff established foreseeability that concrete slab ceiling attached to the wall he was demolishing could collapse as part of his work by photographs showing it partially demolished, bringing him within protection of Labor Law §240(1) and failure to provide adequate safety devices entitled him to summary judgment. Guardrails on scaffold plaintiff fell from were inadequate to protect him. Superintendents’ testimony of inspections failed to raise issue without describing condition of ceiling. Mena v 485 Seventh Ave. Assoc. LLC    

Premises Liab   Sidewalk   Create Condition   3rd Party Contractor   Espinal   Collateral Estoppel  

First Department
Company that provided cleaning services at building adjoining sidewalk where plaintiff slipped on oil slick granted summary judgment on proof it did not launch an instrumentality of harm as plaintiff did not claim this defendant created the oil slick which was from a leaking tank on the property and cleaning company did not wholly displace owner’s responsibilities where contract reserved right of inspection and correction to owner and placed overall responsibility on owner. Defendant’s motion not subject to collateral estoppel by US District Court order that only addressed issue of subject matter jurisdiction. Lopez v Limpiex Cleaning Servs., Inc.    

Workers Comp Defense   Control  

Second Department
Forklift operator, employed by Jacob Javits Center, was special employee of defendants who were entitled to worker’s compensation exclusivity clause where plaintiff was assigned to help remove defendants’ exhibit and defendants “controlled and directed the manner, details, and ultimate result of the plaintiff’s work.” Berry v Viad Corp.    

MVA   Set Aside Verdict   Prejudice   NYC  

First Department
Verdict finding police officer not negligent was not against weight of evidence or legally insufficient as jury could reasonably find officer had green light entering intersection and plaintiff entered intersection through red light and the testimony was neither inconsistent nor unworthy of belief. Alternative claim of inflammatory/prejudicial comments by defense counsel rejected as defense counsel only attacked inconsistencies in plaintiff’s testimony and not his character. Bakain v City of New York    

Motion to Dismiss   Personal Juridiction   Service   Statute of Limitations   Amend Complaint   CPLR §306-b   Prejudice  

Second Department
LLC’s motion to dismiss on personal jurisdiction and statute of limitations where wrong LLC was named in Complaint denied and plaintiff’s cross-motion to amend Complaint to substitute correct LLC granted on proof both LLCs shared a registered agent and address and Complaint gave information, including Vin number and driver name, for correct LLC to know it was not named only because of clerical error and there was no proof of prejudice.

Defendant-driver’s motion to dismiss granted where he was served by person of suitable age and discretion but follow-up mailing was not done for 6-months, after defendants moved to dismiss, and was sent to last known address not actual place of residence or business. Plaintiff failed to offer “good cause” under CPLR §306-b for delay as attorney’s law office failure of not realizing follow-up mailing was not done is not good cause. Plaintiff’s lack of diligence in initially commencing suit until just before statute of limitations, and delays in service did not warrant extension in interest of justice. Jordan-Covert v Petroleum Kings, LLC    

Malpractice   Accepted Practice   Causation   Experts   Raised For First Time  

Second Department
Defendants granted summary judgment where plaintiff’s expert did not dispute defendants’ expert’s conclusions that diagnostic studies and subsequent autopsy did not show significant obstruction or that abnormalities on a stress test did not warrant immediate intervention. Opinion that defendants failed to diagnose coronary artery dissection did not raise issue where it was a new theory not alleged in the Complaint or BP. Mellon v Ribaudo    

Malpractice   Accepted Practice   Causation   Experts  

Second Department
Rehab center granted summary judgment of claim it should have provided plaintiff’s decedent with bed alarm, which the lower court incorrectly construed as an issue of negligence not malpractice, and plaintiff failed raise an issue without an expert opinion opposing defendant’s expert’s opinion of no departure or causation. Losak v St. James Rehabilitation & Healthcare Ctr.    

Premises Liab   Sidewalk   Create Condition   Indemnity  

First Department
Tenant granted summary judgment of plaintiff’s negligence claim and landlord’s cross claims for indemnity on proof it never repaired sidewalk hole with the asphalt patch that caused plaintiff to trip, and defendant-landlord had responsibility for repairing structural damage to sidewalk under lease. Diop v Getty Sq. Realty LLC    

Vacate Default   Reasonable Excuse   Meritorious Defense  

Second Department
Defendants showed reasonable excuse for failing to oppose plaintiff’s summary judgment motion where they served opposition papers on plaintiff, arranged opposition to be filed, and appeared for oral argument at 2:30 PM instead of 9:30 AM on return date, which was excusable law office failure on motion to vacate default. Defendant’s affidavit with different version of how accident happened provided potentially meritorious defense. Muhammed v Federal Express Corp.    

False Arrest   False Imprisonment   Malicious Prosecution   Assault   Battery   Notice of Claim   Probable Cause   Untimely   NYC  

First Department
Plaintiff’s Notice of Claim served more than 1-year after incident was untimely for State claims of assault, battery, false arrest, false and imprisonment and police had probable cause for arrest where officer observed plaintiff rubbing his groin against women, 2 of whom confirmed the contact, which is a complete defense to state/federal claims of malicious prosecution, false arrest, and false imprisonment. State/federal claims of assault, battery, and excessive force while handcuffing plaintiff dismissed as part of a lawful arrest and police officer was not personally involved in handcuffing plaintiff. Ortiz v City of New York    

Premises Liab   Create Condition   Notice   Experts   Conclusory   Speculation  

Second Department
Owner of building converted from warehouse to residences granted summary judgment where plaintiff fell off loading dock while stepping backwards during zombie game at Halloween party as owner neither created the condition, overhead light illuminating loading dock being turned off during the game, nor had notice of a dangerous condition. Plaintiff failed to raise issue by conclusory/speculative expert opinion. Savitz v Lido Knitting, Inc.    

Attorney Fees  

First Department
Judgment awarding former attorney 20% and 80% to substituted firm that obtained settlement of $2.5 million affirmed on finding that former attorney was not discharged for cause and substituted attorney’s arguments amounted only to differences in strategy. Medina v Millwood Mkt., LLC    

(1 summaries)

Labor Law §240   Labor Law §241   Safety Devices   Question of Fact   Indemnity  

First Department
Plaintiff’s motion for summary judgment on Labor Law §§240(1) and 241(6) denied on conflicting evidence of availability of safety devices. The Court does not give the details of the proofs. Summary judgment on contractual indemnity claims granted where policy was not limited to negligence and extrinsic evidence not permissible where policy language is clear. Straughter v Thor Shore Parkway Devs., LLC    

About Matt McMahon

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