October 1, 2019 | Vol. 178


MUST READS
(7 summaries)
NOTEWORTHYIF YOU MUST READ

Venue  

First Department
Motion to change venue from Bronx to Nassau County brought by company deemed employee of Nassau County denied where Nassau County was not a party and CPLR 504(1) requiring lawsuits against county be brought in defendant county is only for benefit of the County. Persaud v Transdev Servs., Inc.


Med Mal   Accepted Practice   Expert Aff  

Second Department
Hospital granted summary judgment where its internal medicine and geriatrics expert opined that fall prevention procedures instituted in emergency room were within accepted practice and not cause of plaintiff’s fall. Plaintiff failed to raise issue of fact by affidavit from PhD nurse practitioner because the expert was not a doctor. Boltyansky v New York Community Hosp.


Set Aside Verdict   Serious Injury   Pain/Suffering  

Second Department
$80,000 past pain/suffering verdict upheld where chiropractor opined on herniated disc and limited ROM without specifying what device was used to measure ROM but Court did not instruct jury there had to be a measuring device creating a rational path for the verdict. $220,000 future pain/suffering verdict set aside as chiropractor’s testimony was insufficient to make threshold under permanent category. Bell v Motor Veh. Acc. Indem. Corp.


MVA   VTL §1104   Reckless   NYC  

Second Department
NYC and firefighter’s motion and cross-motion for summary judgment against taxi defendants and plaintiff granted on proof that fire engine was responding to emergency with lights and siren on, either stopped or sufficiently slowed before entering the intersection, and was not reckless. Jobson v SM Livery, Inc.


Med Mal   Expert Aff   Accepted Practice   Informed Consent  

First Department
Plaintiff’s expert’s unsworn affirmation could not be considered an affirmation but was corrected by submission of a sworn verson at oral argument. Conflicting expert opinions regarding why guidewire broke during spinal surgery, all speculative, and whether injuries from having to correct the situation were caused by a departure from accepted practice raised issues of fact. Defendants granted summary judgment on informed consent claims. Stewart v Goldstein


Vacate Jud   Inquest  

Second Department
A defaulting defendant or one whose Answer is stricken admits all traversable allegations including basic allegations of liability but does not admit to plaintiff’s condition. The lower court erred in not allowing defendant to cross-examine plaintiff at hearing. Remitted for new inquest. Dejesus v H.E. Broadway, Inc.


MVA   Bicycle   Comparative Fault  

Second Department
Bicyclist’s motion for summary judgment denied where depositions raised issues as to plaintiff’s and defendant’s fault where bicyclist drove into car door opened by defendant. While a plaintiff does not have to show freedom from comparative fault for summary judgment, it may be decided where plaintiff raises the issue. Flores v Rubenstein

NOTEWORTHY
(25 summaries)
MUST READSIF YOU MUST READ

Late Notice of Claim   Actual Knowledge   Prejudice   Expert Aff  

First Department
NYCHH did not have actual knowledge of essential elements of claim where its records did not show on their face that infant-plaintiff’s injuries were caused by their negligence and plaintiff did not provide an expert affidavit. Plaintiff failed to meet its initial burden of showing no prejudice from 9-year delay where hospital’s records did not alert defendant to a potential claim and treating doctors’ records were destroyed by fire 10-months before application. M.M. v New York City Health & Hosp. Corp.


Venue  

First Department
Defendants’ motion to change venue from Bronx to Rockland County granted after hearing where judge found plaintiff’s testimony incredible and there was a lack of significant documentary evidence such as driver’s license, car registration, insurance policies, and tax returns. Morris v Greenberg


Serious Injury   Amend BP   Expert Aff   Speculation  

Second Department
Rather than address defendant’s arguments regarding serious injury on categories other than death, plaintiffs sought to vacate prior order precluding them from claiming decedent died as a result of the accident that aggravated her sickle-cell disease listed as the cause of her death for failure to amend BP to add that claim by a certain date, and to amend the BP to include the claim. By not addressing the other categories, plaintiff waived opposition to defendant’s motion and the motion to vacate the prior order and amend the BP were denied for failure to show a reasonable excuse for the delay and the validity of the claim. The physician’s opinion plaintiff submitted was speculative where it stated only that the accident “might” have led to decedent’s death. Cherry v Longo


Serious Injury   Preexisting   Degenerative   Causation   Expert Aff  

First Department
Plaintiff raised issue of fact in opposition to defendants’ showing that plaintiff’s lumbar injury requiring a discectomy was pre-existing and degenerative by treating doctor’s affirmation attributing traumatic cause based on plaintiff’s young age and lack of any prior complaints to lumbar spine. While 10-month gap in treatment was sufficient to eliminate “permanent” category, significant category did not require showing of permanency. Defendants granted summary judgment on neck and shoulder injuries where plaintiff did not show objective proof of injury and on 90/180-day category based on plaintiff’s testimony that he work several days in the months after the accident and that no doctor told him to refrain from working. Blake v Cadet


Premises Liab   Slip/Trip   Snow/Ice   Out of Possession  

Second Department
Building owners failed to show they were an out of possession landlord by not attaching copy of expired lease to show they did not have an obligation to clear snow/ice by contract or course of dealings (plaintiff did not allege statutory violation) where tenant became month-to-month tenant after expiration of the lease. Miske v Selvaggi


Vacate Default   Personal Juridiction   Service   Traverse Hearing  

Second Department
On process server’s testimony at hearing pursuant to motion to vacate default under CPLR R 5015 regarding person he served at church in evening, who he described as known to be the managing agent, found not to be proper service where he did not ask person his job and responsibilities and never testified that person identified himself as managing agent. Motion to vacate granted on improper service. Godwin v Upper Room Baptist Church


Premises Liab   Slip/Trip   Unknown Cause   Renew   Errata Sheet  

Second Department
Cleaner who slipped on “test board” on his way to turn on school stage lights was not engaged in correcting the very danger that caused him to fall where his duties were general cleaning and he could not begin that job until he turned on the lights. His testimony that he felt the board go flying under his foot as he stepped on it sufficiently identified the cause of his fall. Lower court properly granted renewal based on the appellate court’s decision striking errata sheets which significantly changed the testimony. Torres v Board of Educ. of the City of New York


Labor Law §240   Labor Law §241   Labor Law §200   Industrial Code   Control   NYC  

Second Department
NYC granted summary judgment on Labor Law §241(6) on proof that industrial code provisions relied upon by plaintiff were inapplicable and on Labor Law §240(1) on proof that risk of being struck by metal road plate being removed for repaving was not elevated height risk protected by §240. NYC also granted summary judgment on Labor Law §200 and negligence where claim was to negligent means and methods of contractor’s work and NYC had only general supervisory authority. Lombardi v City of New York


Labor Law §240   Scaffold   Question of Fact   NYC  

First Department
NYC and DOE’s motion for summary judgment based on documentary proof that plaintiff who fell from scaffold while jack hammering a stone face was not working on the day in question, Columbus Day, denied where plaintiff adamantly testified that he was working on that day raising an issue of fact. Wikiera v City of New York


Premises Liab   Slip/Trip   Sidewalk   Unknown Cause  

Second Department
NYCHA failed to show that plaintiff could not identify cause of her fall because plaintiff could not identify the exact spot of the fall at her 50-H on a photograph taken after NYCHA had covered area with plywood where plaintiff’s daughter’s testified she saw her mother fall on a crack or gap in the sidewalk with a height differential that she was familiar with. Moiseyeva v New York City Hous. Auth.


Premises Liab   Slip/Trip   Sidewalk   § 7-210  

Second Department
Owner and tenant of property proved that raised flag plaintiff tripped on was not abutting their property but denied summary judgment for failing to show that flagstone on their property was not causing the raised flag on the neighboring property. Zborovskaya v STP Roosevelt, LLC


Premises Liab   Slip/Trip   Wet Floor   Last Inspection   Notice  

Second Department
Building denied summary judgment where it failed to establish lack of constructive notice based on superintendent’s conflicting affidavit and deposition testimony of whether they followed their regular cleaning schedule on the date of the accident, necessary to rebut plaintiff’s testimony that he slipped on accumulated urine that he observed 4-hours hours earlier. Vanterpool v Crotona Terrace Apts., L.P.


Premises Liab   Slip/Trip   Snow/Ice   Sidewalk   § 7-210   Duty  

Second Department
Building owner granted summary judgment on proof building was not subject to administrative code §7-210 and therefore the owed no duty to plaintiff who slipped and fell on snow/ice on sidewalk. Defendant showed that they did not aggravate the condition through snow removal efforts and plaintiff failed to raise an issue in opposition. Colletti v Bauer


Premises Liab   Slip/Trip   Duty   § 7-210  

Second Department
Cooperative and management company granted summary judgment on proof plaintiff fell from defect on the curb rather than sidewalk and defendants did not make special use of the curb. Cavaretta v Michigan Coop. Corp.


§ 7-210   Slip/Trip   Sidewalk   Create Condition   NYC  

Second Department
NYC granted motion for summary judgment on proof that 1-3 family exception did not apply to abutting landowner and it did not create or exacerbate depression plaintiff tripped on. Photographs and plaintiffs 50-H testimony showed hole from removed parking meter in different section of sidewalk from where plaintiff fell. Gomez v New York City


Premises Liab   Slip/Trip   Wet Floor   Dangerous Condition   Notice  

First Department
Homeowners granted summary judgment where plaintiff slipped on wet stairs while carrying ladder where his only claim was that wetness on stairs from rain 1-2 hours earlier caused him to fall as “mere wetness on a walking surface due to rain does not constitute a dangerous condition.” Defendants establish they did not have notice of a dangerous condition and that the stairs were not slippery when wet. Absence of handrail irrelevant where plaintiff using two hands to carry ladder and plaintiff’s expert’s opinions were conclusory where he did not visit the site. Edwards v Levy


Strike Answer   Preclusion   Discovery   Prior Written Notice   Willful/Contumacious   Raised For First Time  

Second Department
Plaintiff’s motion to strike Town’s Answer or deem issue of prior written notice resolved against Town on claims it failed to notify plaintiff that it found a water main under roadway where defect plaintiff tripped on was located until deposition, about a year after superintendent found the water main by inspecting road with a metal detector, denied as its prior responses were appropriate and plaintiff failed to show that its actions were willful/contumacious. Arguments raised for the first time in reply were not considered. Lopez v Bell Sports, Inc.


Late Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice  

Second Department
Petition to serve late Notice of Claim commenced just prior to statute of limitations denied where even if NYC had actual knowledge of defect causing plaintiff’s fall, it did not have actual knowledge that someone had fallen. Failure to diligently investigate owner of property does not constitute a reasonable excuse and petitioner failed to show NYC would not be prejudiced by delay. Matter of Perez v City of New York


Premises Liab   Slip/Trip   Notice  

Second Department
Hertz granted summary judgment on proof that area of garage plaintiff slipped and fell on spot of oil was common area that parking company was solely responsible for and parking company granted summary judgment on expert affidavit showing that ceiling pipe plaintiff thought might be source of oil was not leaking and that it did not have notice of the oil on garage floor. Koutsiaftis v Alliance Parking Servs., LLC


Vacate Default   Reasonable Excuse  

Second Department
Plaintiff’s motion to vacate order granting defendants’ motion to dismiss for failure to provide discovery under CPLR 3216 denied where plaintiff’s attorney offered only statements that he thought motion would be moot since he provided responses prior to return date on claim of law office failure but never asked if motion was being withdrawn and third-party defendants sent letter specifically stating that his responses were insufficient and motion would not be withdrawn without sufficient responses. Seaman v New York Univ.


MVA   Turning Vehicle   Bicycle   There to be Seen  

Second Department
Motorist’s motion for summary judgment denied where depositions of both parties raised issues as to whether defendant kept a proper lookout and made the turn with reasonable care. Elkholy v Dawkins


Settlement   Motion to Dismiss  

First Department
Third-party defendant’s motion to dismiss based on signed stipulation denied where substitution of attorney signed prior to stipulation raised questions of whether attorneys had authority to sign stipulation. Del Rosario v Lexington Bldg. Co., LLC


MVA   Rear End   Question of Fact  

Second Department
Plaintiff made out entitlement to summary judgment on his testimony that he was braking for a light when his car was rear-ended but defendant raised issue of fact in opposition as to how accident happened and whether defendant was at fault. MD Sumsurzaha v Corso


Serious Injury   ROM   Preexisting   Degenerative   Expert Aff  

Second Department
Defendant met its burden on serious injury with competent medical opinion that plaintiff had normal ROM and injuries were pre-existing and degenerative but affirmed report of physician who examined plaintiff and found 50% ROM restriction in both cervical and lumbar spines raised issue of fact. Sepe v Barravecchio


Serious Injury   ROM   Causation   Expert Aff  

Second Department
Defendants failed to make out prima facie entitlement to summary judgment on serious injury where one of their examining doctors found significant ROM and documents submitted by defendant raised issue on whether the shoulder injury was caused by accident. Rodriguez v Wilson

IF YOU MUST READ
(2 summaries)
MUST READSNOTEWORTHY

Stay Arb   Uninsured  

Second Department
Uninsured carrier’s motion to stay arbitration granted to the extent of ordering a framed issue hearing having submitted prima facie proof that car that rear-ended injured parties was insured by disclaimer letter claiming car was stolen at time of accident and raised issue of fact on validity of disclaimer. Matter of Country-Wide Ins. Co. v Santos


Serious Injury  

Second Department
Plaintiff raised issue of fact in opposition to the defendant’s prima facie showing that plaintiff did not sustain a serious injury. The court does not give the details of the proofs. Walker v Miner

About Matt McMahon

Civil trials and appeals since 1984
Bookmark the permalink.

Comments are closed