October 10, 2023 | Vol. 386

(5 summaries)

Malpractice   Wrongful Death   Motion to Dismiss  

Second Department
Motion to dismiss by defendants, healthcare facilities which treated decedent before her death from COVID, granted as barred by immunity under the Emergency or Disaster Treatment Protection Act (EDTPA) where there were “no allegations that the defendants’ acts or omissions constituted willful or intentional criminal misconduct, gross negligence, reckless misconduct, or intentional infliction of harm” and none of the EDTPA exceptions applied. Mera v New York City Health and Hospitals Corporation    

Malpractice   Accepted Practice   Causation   Experts   Hearsay   Untimely  

First Department
Orthopedic surgeon and hospital met burden for summary judgment on expert orthopedic surgeon’s affirmation that the doctor did not depart from accepted practice in performing the osteotomy and injury to plaintiff’s Achilles tendon was “extremely unlikely” considering the instruments used and location of the procedure which was likely caused by an autoimmune condition and stress placed on the foot by activities shown in plaintiff’s social media posts. Expert was permitted to rely on inadmissible social media posts as they were not the only sources of his opinion.

Plaintiff’s podiatrist raised issues on his opinion the Achilles tendon tear he observed during a subsequent surgery was caused by defendant’s negligence during the original surgery, not from a rupture or any non-iatrogenic cause. While not a medical doctor, the podiatrist was qualified to render an opinion where he treated patients for the surgery involved and Achilles tendon tears and the import of his opinion was not the proper surgical technique but the cause of the tear.

Lower court providently declined to deny defendants’ motion as untimely where the bulk of the motion was timely filed with a placeholder for 1-exhibit which was provided to the plaintiff in advance of the time to respond. Vallone v Vulcano    

Premises Liab   Wrongful Death   Motion to Dismiss   Notice  

Second Department
Condominium deed and bylaws provided sufficient documentary evidence to establish condo and board of managers owed no duty to tenants of the individual unit owner to install window guards, dismissing that portion of the tenants’ claim for the fall and subsequent death of their 3-year-old daughter from their fifth-floor apartment, but did not conclusively establish they did not have a duty to provide notice of the right to request window guards under Administrative Code § 17-123(b). Kwan v Kuie Chin Yap    

Malpractice   Motion to Dismiss   Governmental Function   Governmental Immunity   Causation   Accepted Practice   NYC  

First Department
NYC’s motion to dismiss claim against its doctor who authorized hospital’s paramedics to administer a sedative to decedent granted as the doctor worked for FDNY as part of NYC’s emergency response system, acted only on request of frontline paramedics responding to 911 calls, and assessed the decedent in a pre-hospital setting within protocols set by an advisory committee, establishing that her actions were a governmental function entitled to governmental immunity.

Hospital met burden for summary judgment on expert’s affirmation that paramedics appropriately treated decedent but plaintiffs raised issues in oppositions by experts’ opinions that the paramedics failed to continuously monitor and address decedent’s post-seizure airway which was susceptible to depressed respiration and airway reflexes given the sedative and decedent’s age and weight. Hospital not surprised by plaintiff’s unpleaded theory where paramedic was asked about the issue at EBT and defendant’s expert opined on the issue. Artemiou v City of New York    

Assault   Governmental Function   Governmental Immunity   Control   Special Duty   Court of Claims  

Second Department
State granted summary judgment dismissing claim of assault by mental health participant on claimant, an incapacitated person, on proof the specific acts and omissions complained of, including licensing of the mental health program run by a NPO, were governmental functions and ownership of the building was only a general proprietary function not related to the claim where the state was not in control of the ‘location in which the injury occurred,’ and there was no special duty owed to the claimant. Talisaysay v State of New York    

(21 summaries)

Premises Liab   Snow/Ice   Set Aside Verdict   Causation  

Second Department
Plaintiff’s motion to set aside verdict which found building negligent for not clearing snow but not a proximate cause of her slip and fall in defendants’ parking lot denied as the issues of negligence and proximate cause were not ‘so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause’ and the jury could find negligence but not proximate cause on tenant’s manager’s testimony that plaintiff said she fell in a big hole while getting out of her car and testimony of property owner’s employee that they never sent anyone to check on the work of their snow removal contractor. Tafolla v Aldrich Management Co., LLC    

Premises Liab   Set Aside Verdict   Directed Verdict  

Second Department
Plaintiff’s motion to set aside defense verdict or for judgment as a matter of law denied where there was a rational path for the jury to find for defendant-homeowners on their testimony they placed linens in 72″x4″ floor opening between kitchen and dining room where they removed a half wall and arranged chairs to block the opening and the verdict was not against the weight of the evidence where it could be reached on a fair interpretation of the evidence. Plaintiff testified her foot got caught in the opening as she walked between the rooms. Sweet v Hazan    

Child Victims Act   Motion to Dismiss   Notice   Court of Claims  

Second Department
State’s motion to dismiss Child Victim Act claim for failing to comply with pleading requirements denied where claimant alleged she was sexually abused by 2-named counselors in group home for foster children between 1976-1978 which was sufficient for the State to promptly investigate the claim and assess its liability. Claimant was not required to provide a detailed explanation of how the State received notice of the abuse. Brown v State of New York    

Default Judgment   Waiver   Service   Motion to Dismiss   Personal Juridiction   CPLR §306-b  

First Department
Plaintiff waived appeal from order denying default judgment where she made no argument regarding the order in her brief and, in any event, failure to complete service justified denial of the motion for default judgment. Defendant’s cross-motion to dismiss granted where plaintiff did not offer proof of substituted service or filing of an affidavit of service within 20-days and plaintiff was not entitled to an extension of time to serve under CPLR §306-b for good cause or in the interest of justice. Morini v Thurman    

Premises Liab   Amend Answer   Amend Complaint   Untimely   Statute of Limitations   Note of Issue   Prejudice  

First Department
Defendants’ motion to amend their Answer to withdraw 1-defendant’s admission of ownership of property where plaintiff was injured providently denied where that defendant participated in the litigation for years, beyond the statute of limitations, and after Note of issue was filed and plaintiff would be prejudiced by withdrawal of the admission. Defendants’ motion to assert cross-claim against boiler contractor providently denied where the subcontractor did not have an opportunity to depose the moving defendants prior to the Note of issue and would be prejudiced.

Plaintiff’s motion to amend the Complaint to add a defendant providently granted where that defendant participated as a defendant for years and was on notice that plaintiff intended to include it as a defendant. Salcedo v Strathmore Constr. Mgt., LLC    

Attorney Fees   Hearing  

Second Department
Lower court improvidently granted firm that substituted original firm only 40% of fee on $725,000 settlement after hearing where evidence showed the substituting firm contributed 64%-67% of the overall hours, dealt with more complex issues requiring greater skill, and settled the case for more than the original firm’s highest offer, entitling it to 80% of the fee. Soriano v EAN Holdings, LLC    

Premises Liab   Stairs   Notice   Last Inspection   Settlement  

Second Department
Apartment building owner/manager failed to meet burden for summary judgment dismissing tenant’s claim for fall on interior stairs without proof of last time the stairwell was inspected or cleaned, leaving question on constructive notice. Defendant’s motion to enforce purported settlement under CPLR §2104 denied where email from defendant’s carrier to defendant’s attorney that the case was settled for $50,000, and emails between defendant’s attorney and plaintiff’s attorney requesting settlement documents be signed, did not contain all material terms of the settlement, necessary to establish a clear mutual agreement. Phipps v Conifer Realty, LLC    

Labor Law §240   Labor Law §241   Labor Law §200   Control   Sole Cause  

First Department
Defendants granted summary judgment dismissing Labor Law §240(1) claim of worker hired to install spikes and netting on building to cure a pigeon problem as work was not covered under §240 where it did not alter the building and reaffixing anchors to attach the netting was not a repair of a part of the building. Labor Law §241(6) claims dismissed as plaintiff was not involved in construction.

Building owner granted summary judgment dismissing Labor Law §200 claim without proof it supervised or controlled the injury producing work but pest control subcontractor denied summary judgment where it failed to show it did not have the ability to supervise or control plaintiff’s work. Plaintiff entitled to protections of §200 where he was independently hired by individual pest subcontractor contracted to do the work because he was “permitted or suffered to perform the work.”

Conflicting testimony left question on claim plaintiff was sole cause of his injuries. Castaneda v Amsterco 67, LLC    

Labor Law §241   Labor Law §200   Industrial Code   Notice   Last Inspection   Raised For First Time   Indemnity  

First Department
Motions for summary judgment by plaintiffs and defendants on Labor Law §241(6) denied based on industrial code §23-1.7(e)(1)(passageway) as questions remained of whether the area where plaintiff fell was a passageway under that section but granted dismissing claim based on industrial code §23-1.7(e)(2)(debris) where plaintiff fell in an uncovered hole that he didn’t see in front of the cart he was pushing, not because of scattered debris. Motions for summary judgment on Labor Law §200 and negligence against contractor by plaintiffs and defendants denied where plaintiff failed to submit proof of how long the uncovered hole existed to show constructive notice, and defendants failed to show the last time the area was inspected. Contractor’s daily logs not considered on its motion for summary judgment dismissing §200 claim where submitted in reply to plaintiff’s opposition to contractor’s motion.

Defendants’ and third-party defendant’s motion for summary judgment on contractor’s indemnity claim against electrical subcontractor denied where issues remained of the scope of the electrical subcontractor’s work and the contractor’s negligence, and whether the duty to indemnify was triggered by contract or common-law. Coon v WFP Tower B Co. L.P.    

3rd Party Contractor   Elevator   Duty   Notice   Experts  

Second Department
Elevator company met burden for summary judgment dismissing plaintiff’s claim for rapid descent and sudden stop of elevator on proof it lacked notice of a defect that could cause the elevator to descend rapidly but plaintiff raised issues on whether defendant was negligent in the inspection or maintenance of the elevator by, inter alia, her expert’s affidavit. An elevator company can be liable “for failure to correct conditions of which it has knowledge or failure to use reasonable care to discover and correct a condition which it ought to have found.” Jackson v Forest City Jay Street Associates, L.P.    

Premises Liab   Elevator   Motion to Dismiss  

First Department
Defendant’s motion to dismiss for failure to include a necessary party denied where there was no legal or factual basis to assert claims against the alleged necessary party whose interests were not relevant to the action and neither plaintiff nor defendant submitted evidence that the alleged necessary party had a duty to maintain the elevator or was negligent and there was no evidence that failure to join the alleged necessary party would deprive the parties from receiving full relief where defendant could file a third-party Complaint against the alleged necessary party. Hylton v WTC Tower 1 LLC    

Premises Liab   Create Condition   Duty  

First Department
NYCTA granted summary judgment on proof it did not lease the area where plaintiff fell, the area did not primarily serve as ingress/egress to a nearby subway station, and there was no evidence it assumed a duty by voluntarily clearing the area and heightening the hazard. Carrasquillo v New York City Tr. Auth.    

MVA   Bus   Emergency Doctrine   Survelliance Video  

Second Department
Town granted summary judgment dismissing claim of bus passenger thrown into the seat in front of him when the bus came to sudden stop on plaintiff’s 50H testimony, bus driver’s affidavit, and dash cam footage showing the bus driver acted reasonably when a vehicle suddenly entered the bus’s lane from a parking lot. Rasweiler v Town of Huntington    

MVA   Sole Cause   Emergency Doctrine   Conclusory  

Second Department
Defendants failed to meet burden for summary judgment on their driver’s affidavit that he didn’t have enough time to avoid the accident or take evasive action when plaintiff switched lanes as the affidavit was conclusory without articulating acts sufficient to support the conclusory claim. Woods v Burgos    

Premises Liab   Wet Floor   Survelliance Video   Admissibility  

Second Department
Defendant granted summary judgment dismissing plaintiff’s claim for slip and fall on wet floor in food court of Resorts World Casino on surveillance video showing the plaintiff tripped over his own feet, that there was no liquid on the floor at the time of his fall, plaintiff’s EBT testimony that he blurted that he tripped over someone’s leg at the time of the accident, and an affidavit from the food court supervisor that the floor was not wet immediately after the accident. Ventimiglia v Genting New York, LLC    

Premises Liab   Stairs   Create Condition   Notice   Last Inspection  

First Department
Defendants failed to meet burden for summary judgment dismissing claim of tenant who slipped and fell on exterior stairs where defendant testified she painted stairs with nonslip paint and had no previous problems with the stairs but failed to show the condition of the stairs on the day of the accident or the last time the stairs were clean/inspected. Plaintiff testified he observed standing water on the steps on the date of the accident and had previously asked the landlord to install safety strips because he and his daughter had previously fallen, leaving questions on actual or constructive notice. Iaccarino v Koenig    

Assault   Negligent Hiring   Negligent Supervision   Notice   Violent Propensity  

First Department
Employer’s motion to dismiss causes of action for negligent hiring and supervision of employee who assaulted plaintiff denied on affidavit of defendant’s foreman that employee had aggressive attitude and was extremely argumentative and plaintiff’s testimony that defendant’s other employees complained to him about employee’s hostility towards them. Hearsay statements were admissible on the motion for summary judgment for corroboration. Gupta v YM Pro Corp    

MVA   Turning Vehicle   There to be Seen  

Second Department
Owner and driver of vehicle that struck vehicle with plaintiff as a passenger failed to eliminate all questions of fact where there was conflicting testimony of whether turning vehicle had a green arrow, whether defendant driver had a red or green light when entering the intersection, and whether defendant could have avoided the accident even if he had a green light based on his testimony that he had an unobstructed view of the intersection. Schmitz v Pinto    

MVIAC   Admissibility   Uncertified Records   Hearsay  

First Department
Pedestrian’s petition for leave to file MVIAC claim granted on police report showing license plate on Cadillac that struck her after disobeying a traffic signal and hitting a BMW had a fake license plate and driver fled from the scene, establishing the owner and driver of the Cadillac were unknown. Uncertified police report inadmissible hearsay but considered where MVIAC relied on the report in its opposition. Although owner and driver of BMW were known, MVIAC’s argument that pedestrian had to start suit against them to exhaust her remedies before bringing action against MVIAC rejected without proof the BMW was at fault. Matter of Richardson v Motor Veh. Acc. Indem. Corp.    

Labor Law §200   Dangerous Condition   Create Condition   Experts  

First Department
Defendants denied summary judgment dismissing painter’s Labor Law §200 claim for fall from A-frame ladder on his expert’s opinion 1.8% slope of the patio was a dangerous condition that caused plaintiff to lose balance on the ladder and plaintiff raised questions of fact on whether defendants created the condition. Questions of credibility regarding discrepancies between plaintiff’s EBT and affidavit were for a jury. Carver v Artiles    

Serious Injury   ROM   Causation   Experts  

First Department
Conflicting opinions by plaintiff’s and defendant’s radiologists on whether MRIs showed traumatic injuries caused by the accident precluded summary judgment on serious injury for either side even though plaintiff’s doctor found limited ROM in his wrist and defendant’s orthopedist did not measure ROM. 90/180-day category dismissed where plaintiff testified he missed only 5-weeks of school and was unable to attend class “periodically.” Newby v Morales    

(4 summaries)

Preclusion   Reasonable Excuse   Meritorious Action  

Second Department
Lower court erred in granting defendant’s motion to enforce a conditional order of preclusion and granting defendant summary judgment based on the preclusion where plaintiff provided a reasonable excuse for not complying with the conditional order and the verified pleadings and documents submitted by plaintiff showed a meritorious action. The Court does not give the details of the proofs. Ortiz v 1818 Bath Avenue, LLC    

MVA   Motion to Dismiss   Collateral Estoppel   Settlement   General Release  

First Department
Pro se plaintiff’s action against carriers dismissed as barred by res judicata where 2-prior actions involving the same claims were settled and discontinued, plaintiff’s claim that his attorney fraudulently settled the case was collaterally estopped where he had a full/fair opportunity to litigate the issue and the court found he ratified the settlement by receiving the settlement, any claims for additional funds from 1-carrier were resolved by a prior decision, and claims against the other carrier were precluded by a signed release. Bizounouya v CNA Ins. Co.    

Negligent Supervision   Premises Liab   Notice  

Second Department
School district granted summary judgment dismissing claim for seventh-grader’s fall on wet grass in school playground on proof it provided adequate supervision and did not have actual or constructive notice of a dangerous condition. The Court does not give the details of the proofs. D.M. v Yonkers City Sch. Dist.    

Serious Injury   Causation  

Second Department
Defendants met burden for summary judgment but plaintiff raised an issue on whether his shoulder injury was a serious injury under the significant limitation category. Since defendants failed to plaintiff’s injury was not caused by the accident, the burden of proof on causation never shifted to plaintiff. Matter remitted for consideration of plaintiff’s summary judgment on liability. The Court does not give the details of the proofs. Chavez v Foley    

About Matt McMahon

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