| MUST READS (5 summaries) | |||
| NOTEWORTHY | IF YOU MUST READ | ||
 Motion for summary judgment and dismissal of wrongful death claims against NYC and police officer for excessive force where officer used a taser 3-times to subdue decedent, an emotionally disturbed person (EDP), granted under qualified immunity as it was not “clearly objectively unreasonable under the then-governing law” as the officer could objectively interpret decedent’s raising a Tabasco bottle over his head while screaming and acting erratically as threatening even if use of a taser was not the correct response. Plaintiff’s claim decedent did not subjectively intend to resist arrest not considered where raised for the first time on appeal and, in any event, a reasonable officer could have interpreted the actions as resistant. Galarza v City of New York ✉Comment: The incident occurred in 2016, 5-years before NYC did away with qualified immunity for excessive force and unreasonable search and seizure by granting a new civil right under Administrative Code §§ 8-802, 8-804, allowing for compensatory and punitive damages, costs, and attorney fees on an hourly basis (8-805), and providing a 3-year statute of limitation (8-806). The pending New York Police Accountability Act would not expressly remove qualified immunity but would set more specific standards for the use of force. |
 In a decision likely to set the standard for how photographs are reviewed to determine if a defect is trivial, the Second Department found defendants failed to meet their burden of showing the height differential between 2-sidewalk flags the injured plaintiff tripped on where there were no objective measurements or testimony of the actual or estimated height differential, an accurate estimate of the height differential could not be gleaned from the photographs as most had no “objects of known or standard size…, such as a coin, a shoe, a baseball, a soda can” in proximity to the defect from which the height differential could be inferred other than an orange construction cone placed where plaintiff fell that showed a height differential and shadows in a close up photo.The Court also found as a matter of first impression that defendants’ human factors expert’s opinions of triviality were conclusory and speculative without an objective measurement or at least a fairly inferable estimated height differential and explained that experts are held to a higher standard in providing opinions than the inferences jurors can draw. Snyder v AFCO Avports Mgt., LLC ✉ |
| Motion to serve late amended Notice of Claim asserting claims for negligent supervision, where original Notice of Claim only alleged the bleachers the student fell from during a PE class were defective, denied as defendants’ investigation reports that plaintiff was injured during a PE class did not provide actual knowledge of the essential facts of the negligent supervision claims and plaintiff failed to show a reasonable excuse or plausible argument that defendants were not prejudiced by the delay. Service of the amended Notice of Claim 1-year after the incident without leave of court was a nullity. Y. P. v City of New York ✉ |
| Building owner on subleased land granted summary judgment dismissing plaintiff’s claim for trip and fall on uneven sidewalk pavers on proof it did not owe a duty to maintain the sidewalk under administrative code §7-210 as it did not own or make special use of the sidewalk, plaintiff was not in privity with it, and it did not create or exacerbate the condition. Plaintiff failed to raise an issue in opposition on Espinal as the land tenant that subleased the property to defendant maintained and repaired the sidewalk, establishing the defendant did not entirely displace the landowner’s duty to maintain the sidewalk even if defendant was required to maintain the sidewalk under the land lease. Alfani v Rivercross Tenants Corp. ✉ Comment: The Court’s previous decision finding plaintiff raised a question of fact on the Espinal exception and remanding the case for further discovery was reported in Vol. 220. |
| Doctors’ motion to dismiss action for failure to serve them with a Notice of Claim, where action against NYCHHC had already been dismissed on that ground, granted on proof they were hospital employees entitled to representation and indemnity which required a Notice of Claim to commence a suit against them. Hospital’s earlier motion to dismiss did not bring the doctors’ motion within the 1-motion to dismiss rule as it was their first motion. Umeh v New York City Health & Hosps. Corp. ✉ Comment: The First Department overturned its rule that individual municipal defendants had to be served with a Notice of Claim in 2021, Wiggins v City of New York, reported in Vol. 288, but this is an exception to that rule under Unconsolidated Laws §7401(6) and GML §50-d. |
| NOTEWORTHY (16 summaries) | |||
| MUST READS | IF YOU MUST READ | ||
| Burlington Vermont Diocese’s motion to dismiss Child Victims Act case for lack of personal denied where plaintiff alleged he was sexually assaulted numerous time when he was 11-12 by a priest employed by the moving dioceses which placed the priest on a long-term assignment in NY to provide clergy services knowing he was a sexual predator, establishing long-arm jurisdiction and meeting the due process test of minimal contacts by its ‘purposeful activity’ in the state. Diocese denied it transacted business in NY but did not submit any evidence of its employment relationship with the priest or its ability to supervise and control him. V.Z. v Roman Catholic Diocese of Burlington ✉ |
| Elevator companies’ post-trial motion for judgment as a matter of law brought 56-days after a mistrial was declared providently denied as beyond the CPLR §4404 15-day time limit and they failed to show good cause for the delay. Appeal from denial of portion of motion that sought reargument of motion for a directed verdict dismissed as nonappealable. Bortugno v New York State Urban Dev. Corp. ✉ |
| Supreme Court providently denied plaintiff’s motion to appoint a temporary administrator for a deceased defendant and substitute that administrator as the party, even though it has to power to do so, where the plaintiffs failed to show what steps they took to have a personal representative appointed in Surrogate Court, that proceeding in Surrogate Court was unfeasible, that the case was trial ready, or that appointment of a temporary administrator was necessary to “avoid undue delay and prejudice.” Lopez v Jackson ✉ |
| Petition to serve late Notice of Claim providently granted on evidence prior counsel communicated with a MTA employee, sent a copy of the police report the employee within 90-days which had the petitioner’s statement and information required in a Notice of Claim, and the employee stated it was sent to NYCTA claims establishing actual knowledge within 90-days and a plausible argument that respondents were not prejudiced. Lower court properly considered police report and email which were not submitted with the petition but were efiled in a prior proceeding and referenced by docket numbers and attached to petitioner’s reply papers. Prior attorney’s attempt to serve a Notice of Claim on the wrong party was not a reasonable excuse but insufficient to deny the petition. Newly raised argument that petition should have been denied because the Notice of Claim attached to petition was not notarized was unpreserved and, in any event, rejected as an error that can be ‘excused or corrected.’ Matter of Dubuche v New York City Tr. Auth. ✉ |
| Motion to dismiss for failure to timely file Note of Issue in response to 90-day notice served by defendant-driver of vehicle with plaintiff as a passenger granted where plaintiff showed a reasonable excuse for the delay but failed to show a meritorious defense without proof she sustained a serious injury. Co-defendants, owner and driver of other vehicle, joined in motion but denied dismissal as they did not serve a 90-day notice. Cintron v Carter ✉ |
| Plaintiff’s expert raised issues by nonconclusory, nonspeculative opinions the rehab center departed from standards of care by negligent fall risk assessments in view of plaintiff’s fall history and missing or inaccurate information and caused her fall where she sustained a broken hip from lack of sufficient interventions. Expert’s opinions did not raise a new theory where BP alleged “departures from the standard of care by failing to implement an adequate fall prevention plan, provide adequate supervision and assistive devices to prevent accidents, and to implement proper interventions.” Plaintiff waived appeal from dismissal of gross negligence claim by not addressing it in her brief. Casiano v Riverdale SNF, LLC ✉ |
| Plaintiff granted summary judgment on Labor Law §241(6) predicated on industrial Code §§ 23-1.7(d) and 23-1.30 by his testimony he slipped on debris in a dark stairway where the temporary lights were off. Foreman’s written statement was inadmissible hearsay and defendants failed to address plaintiff’s CPLR §3126 preclusion claim. Incident report stating plaintiff was moving a washing machine was also hearsay and not an admission where the statement is attributed to the foreman, not the plaintiff, and not a business record without showing the foreman had personal knowledge of the fact. Issue of comparative fault does not preclude summary judgment. Oliveira v Top Shelf Elec. Corp. ✉ |
| Defendants’ motion for summary judgment dismissing Labor Law § 240(6) claims for fall on debris in elevator granted as to industrial code §23-7.3(elevator operation by competent persons) as that section “simply sets general safety standards and does not mandate compliance with concrete specifications” and as to §23-1.7 (e)(1)(passageways clear of debris) as the elevator was not a passageway. Defendants denied summary judgment based on §23-1.7 (e)(2)(floors clear of debris) which is sufficiently specific for a §241 claim and the elevator floor met the definition of a floor under the code. Issues of plaintiff’s credibility were for trial. The Court did not address plaintiff’s Labor Law §200 claims raised for the first time in his reply brief. Smith v Extell W. 45th LLC ✉ |
| Worker granted summary judgment on his testimony he fell when standing on the edge of a bathtub as he painted upper corners of the room and that he could not use the provided ladders because they did not fit when open. Accident description in WC form without translator certification and uncertified medical records also without a translator certification failed to raise an issue in opposition. Defendants’ expert who inspected the area 4-years post-accident failed to raise an issue on sole cause where he conceded he could not be sure the 4’ ladder he inspected was the 6’ one plaintiff testified he used and claim someone told him plaintiff was mistaken was hearsay. Mosquera v TF Cornerstone Inc. ✉ |
| Architect firm that provided ad hoc construction administrative services under contract with homeowners granted summary judgment dismissing Labor Law §§ 240(1) & 241(6) claims on its principal’s testimony and contract showing it did not control plaintiff’s work or have authority to do so and plaintiff’s injury occurred after they stopped providing any construction administrative services. Plaintiff’s claim he saw the architects on the job site did not raise an issue on control. Architect firm’s motion for summary judgment against GC for breach of contract for failure to it add it as additional insured on its policy granted as the language of the contract and addendum clearly required that the architect be added as an additional insured regardless of how much work it was doing. Chavarria v Bruce Nagel & Partners Architects, P.C. ✉ |
| Hotel failed to meet burden of showing it did not create or have actual or constructive notice that the 40-60 lb safe that fell on plaintiff from a high closet shelf was not dangerous as the 2-year old inspection report it submitted had no probative value and did contain details sufficient to show lack of notice. Hotel did not show how safes were inspected and what steps were taken to make sure safes were securely affixed to the wall, which could have been ascertained from a physical inspection. Swallows v W N.Y. Times Sq. ✉ |
| Motion to renew motion for summary judgment by owner of building where plaintiff slipped and fell on metal step as he entered a tenant’s liquor store on claim it was an out of possession owner denied where incomplete copy of lease submitted on the renewal motion would not have changed the prior determination. O’Connell v Los Compadres Liquors & Wines ✉ Comment: The Court previously upheld denial of summary judgment where this defendant only provided a copy of the lease in its reply below. Vol. 344. |
| MSG failed to meet burden for summary judgment dismissing plaintiff’s claim for trip and fall on sidewalk on claim plaintiff could not identify the cause of her fall where she identified the cause as a raised sidewalk and was able to identify the general location of her fall. Credibility issues were for the factfinder. MSG also failed to show the area was a curb or pedestrian ramp for which it would not be responsible under administrative code §7-210 where plaintiff testified she stepped over the curb, did not testify she tripped on a ramp, and plaintiff’s ability to photograph and investigate was hampered where bollards were installed on the sidewalk later that day. Reid v City of New York ✉ |
| Construction company met burden for summary judgment on proof it inspected Masonite board plaintiff tripped on outside elevator 40-minuts before she fell but plaintiff raised issues on whether their foreman saw the defect and whether they created it by moving equipment over the board bending the edges upward and not retaping it which plaintiff testified caused her to trip and fall. Building owner denied summary judgment without proof of an inspection. Molina v Loft 124 Condominium ✉ |
| Taxi defendant granted summary judgment dismissing passenger’s claim the driver should have avoided the accident where plaintiff agreed the dash cam video accurately showed the taxi driver was driving slowly in left turn only lane when a limousine made a sudden left turn from the right lane and struck the taxi, failing to right of way, and the taxi driver had only 2-seconds to react which was insufficient to take steps to avoid the accident. Aponte v Uber Tech., Inc. ✉ |
| Defendant failed to meet burden for summary judgment dismissing plaintiff’s claim for injuries when their vehicles collided in an intersection, controlled by a stop sign for plaintiff and no traffic device for defendant, where EBT testimony submitted by defendant left questions of whether plaintiff was in the intersection first and whether defendant could have taken steps to avoid the accident. Ventura v Sturino ✉ |
| IF YOU MUST READ (6 summaries) | |||
| MUST READS | NOTEWORTHY | ||
| Carrier providently granted stay of SUM arbitration pending framed issue hearing on whether insured’s $300,000 liability limit which included property damage exceeded offending vehicle’s $250,000 liability limit and court correctly declined to consider insured’s excess coverage in making the comparison. Matter of Berkley Ins. Co. v Schnall ✉ |
| Petition for leave to serve a MVIAC action by pedestrian struck when vehicle drove on sidewalk denied where police report identified the owner and driver of the vehicle and plaintiff started a separate action against them. Matter of Misir v Motor Veh. Acc. Indem. Corp. ✉ |
| Portion of third-party Complaint seeking common-law indemnity against plaintiff-construction worker’s employer dismissed where there was no allegation of a “grave injury” in the Complaint, BP, or third-party Complaint but contractual indemnity claims stayed pending arbitration pursuant to an ADR clause in the contract, including claims against the co-op owners claim they were third-party beneficiaries to the contract. Hernandez v Opera Owners, Inc. ✉ |
| Motion for leave to serve late Claim for slip and fall at state park providently denied where the Claim failed to describe the location and accident with sufficient specificity as required by Court of Claims Act §11(b) or to show a meritorious action. The Court does not give the details of the proofs. Hersh v State of New York ✉ |
| Lower court improperly denied petition to file MVIAC claim based on statement in uncertified, unauthenticated prehospital report and, in any event, petitioner’s affidavits, MV104, and EBT testimony raised issues on whether a hit and run vehicle struck him while riding his bicycle. Matter of Luna v Motor Veh. Acc. Indem. Corp. ✉ |
| Defendant failed to meet burden for summary judgment on serious injury without eliminating questions of fact on the 90/180-day category alleged in the BP. The Court does not give the details of the proofs. Delgado-Lara v Szozda ✉ |