October 12, 2021 | Vol. 282

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(5 summaries)

MVA   Products Liab   Personal Juridiction   Service   Motion to Dismiss  

Court of Appeals
The Court revisits the history of New York and SCOTUS decisions of jurisdiction-by-consent, finding New York’s precedents interpreting the requirement of foreign corporations to register and designate the Secretary of State or an agent for service of process relevant only to proper service and not conferring general personal jurisdiction. The Court expressed no opinion of whether consent-by-registration would have met the constitutional Daimler due process test. The dissent posits the New York and SCOTUS decisions referenced by the majority would confirm the New York legislative intent of conferring general jurisdiction as a condition for doing business in New York and the federal due process test.

A Ford Explorer was returning from a vacation when a Goodyear tire blew causing the SUV to roll over several times, killing 3-passengers and injuring 3-others. Aybar v Aybar    

Comment: The Second Department’s decision was reported in Vol. 143.

Negligent Hiring   Assault   Emotional Harm   Motion to Dismiss   Causation   CPLR 214-g  

Second Department
Plaintiff’s claims of negligent hiring and retention and intentional infliction of emotional harm, brought under the Child Victim Act (CPLR §214-g) where she was abducted when 7-years-old and brutally sexually assaulted by a man employed and/or under the supervision of the church and diocese, dismissed for failure to state a cause of action without any allegation she had prior contact with the attacker, any relationship with the defendants, or knew at time of the assault they employed the attacker failing to establish a nexus between the negligent hiring and retention or intentional/outrageous conduct of the defendants and her injuries.

Defendant-church’s motion to dismiss on documentary evidence of its Constitution and Canons denied as those placed responsibility for “hiring, transfer, and discipline of local priests” on the local church and diocese and it did not prove or disprove plaintiff’s factual allegations. Roe v Domestic & Foreign Missionary Socy. of the Prot. Episcopal Church    

MVA   Bicycle   Bus   Set Aside Verdict   Pain/Suffering   Materially Deviates   Preclusion   Prejudice  

First Department
$3,928,265.72 judgment including $783,000/$1,441,000 past/future pain/suffering, $1,332,000 future medical expenses (36.8) years, $107,677.07 interest, and $1,140.00 costs/ disbursements for 37-year-old bicyclist struck by rear of bus as it swerved into parking lane did not materially deviate from reasonable compensation where plaintiff sustained comminuted fracture of end of tibia, great toe and 2nd metatarsal fractures, tears of labrum and gluteus medius muscle in hip, tear of glenoid labrum, supraspinatus, and infraspinatus tendons of shoulder, and SLAP tear requiring 2-immediate surgeries and subsequent surgery to his shoulder, plaintiff needs cane, had chronic pain, depression, mental health treatment, and developed traumatic arthritis. Future medical expenses were supported by treating doctor.

Trial court providently precluded bus driver from testifying about his custom/practice when overtaking/passing a bicyclist as he was “not in control of all of the circumstances.” Preclusion, if error, was harmless as it was unlikely to have affected the verdict. Flores v New York City Tr. Auth.    

Comment: Time period for future pain/suffering was reduced from jury finding of 36.8 years to 10 years per CPLR 5041(e).

Serious Injury   Set Aside Verdict   Preclusion   Admissibility  

Second Department
Verdict of no serious injury set aside where lower court improvidently precluded treating doctor’s testimony of spinal injuries because he misidentified plaintiff’s spine MRI, which would only go to weight of testimony, and precluded same doctor’s testimony of future treatment and possible surgery which were addressed in his report, as well as improperly precluding other doctor’s medical records where defendant failed to timely object to CPLR 3122-a notice and that doctor’s office manager laid business record foundation. Possibility errors tainted jury required new trial. Benguigui v Racer    

Workers Comp Defense   Alter Ego   Admissibility   Control  

First Department
Affidavits submitted by defendants, not sworn “under the penalties of perjury,” were admissible under CPLR §2309(b) as that language is only required for affirmations under CPLR §2106, however the affidavits failed to establish defendants were plaintiff’s employer or an alter ego of the employer where affidavits were not stated to be upon personal knowledge which failed to lay business record foundation. Other submitted evidence failed to identify employer or show that one of the entities controlled “the day-to-day operations of the other.” Buffington v Catholic Sch. Region of Northwest & Southwest Bronx    

(10 summaries)

Premises Liab   Vacate Default   Reasonable Excuse   Meritorious Action  

First Department
Lower court providently denied motion to vacate order dismissing action under 22 NYCRR 202.27(b) for failure to appear at PC where plaintiff’s excuses did not stand up to scrutiny, plaintiff misrepresented court’s determination of prior motion for same relief, 20-month delay in making motion was not adequately explained, and plaintiff’s affidavit did not establish a meritorious action where she did not witness her deceased husband fall on defendants’ property. Rivera v Shypri Realty Corp.    

Negligent Supervision   Assault   Motion to Dismiss   Duty   Control   Punitive Damages  

Second Department
Defendant-husband’s motion to dismiss negligence claims of babysitter who alleged he was sexually assaulted by moving-defendant’s wife denied where Complaint and supplemental affidavit, viewed in light most favorable to non-moving party, established husband had duty to protect plaintiff based on status as plaintiff’s employer and allegation husband knew or should have known of alleged abuse. Claims of failure to control acts of third parties, negligent hiring, and failure to provide secure environment dismissed as duplicative of negligence claims. Punitive damage claim dismissed as allegations amounted to ordinary negligence not moral culpability. Moskowitz v Masliansky    

Labor Law §240   Ladder   Recalcitrant Worker   Sole Cause   Comparative Fault  

First Department
Worker granted summary judgment on Labor Law §240(1) when unsecured, closed a-frame ladder he was standing on to throw debris into dumpster shifted causing him to fall. Defendant’s claim of recalcitrant worker/sole cause for plaintiff failing to heed instruction not to use dumpster inapplicable where no adequate safety device was provided as instruction to use a safety practice is no substitute for an adequate safety device. Defendants failed to show there was no statutory violation and being in area where worker is not supposed to be is no more than comparative fault, not a defense under §240. Plaku v 1622 Van Buren LLC    

Malpractice   Set Aside Verdict   Directed Verdict   Causation  

Second Department
Verdict awarding $250,000 for decedent’s pain/suffering and $750,000 for wrongful death against allergist who discontinued decedent’s Lisinopril diagnosed as cause of allergic reaction, without notifying prescribing doctor, set aside and defendant granted judgment as a matter of law as any failure to inform prescribing doctor could not be a cause of decedent’s death from an anaphylactic reaction to Lisinopril where prescribing doctor did not treat decedent after he saw allergist and automatic refill of Lisinopril could not have been received by decedent until after he was unconscious in hospital. Hilt v Carpentieri    

Malpractice   Accepted Practice   Causation   Loss of Chance   Experts   Question of Fact   Raised For First Time   BP   Conclusory  

Second Department
Plaintiff’s expert internist’s opinion that gastroenterologists departed from accepted practice by failing to consider and refer decedent for tests to rule out vascular cause of decedent’s pseudo-obstruction and such departure deprived decedent of a chance of a better outcome raised issues in opposition to defendant-gastroenterologists’ gastroenterology expert’s opinion of no departure or causation. Plaintiff’s expert laid foundation for knowledge of gastroenterology standards without board certification in gastroenterology, the opinions were not vague or conclusory and addressed defendants’ expert’s opinion, and did not raise new theories for the first time but expounded on allegations of failure to perform tests in the BP. Maestri v Pasha    

Note of Issue   BP   Discovery   IME/DME   Prejudice   NYC  

First Department
Defendants’ motion to strike Note of Issue and require further EBT and IME/DME based on second supplemental BP and notice of medical expert witness served after Note of Issue alleging need for additional surgeries and treatments well beyond BP, served before Note of Issue, granted to extent of requiring new deposition and orthopedic IME limited to new allegations without striking Note of Issue as defendants didn’t show prejudice by allowing case to remain on trial calendar. Linares v City of New York    

MVA   Pedestrian   Question of Fact   There to be Seen   Admission   Feigned Issue   Hearsay   Uncertified Records  

First Department
Defendants failed to meet burden for summary judgment by submitting conflicting versions of accident, driver testifying infant banged head and arm on mirror of his stopped vehicle and infant testifying he was struck after taking 2-3 steps from parking lane, and questions remained of whether driver could have seen plaintiff and avoided accident. Infant did not clearly admit at EBT that he walked between parked cars and his subsequent affidavit that he crossed at intersection was not a feigned issue. Uncertified police report inadmissible where officer did not see accident and it contained hearsay statements on ultimate issues of fact. J.Z. v Salerno    

Malpractice   Accepted Practice   Causation   Experts  

Second Department
Plaintiffs’ expert’s opinion that plastic surgeon departed from accepted practice during skin graft from 9-year-old’s buttocks to cover removal of nevus from her knee, and departure was a cause of her injuries, raised issue in opposition. Photos relied on by plaintiff’ expert were authenticated by plaintiff’s father at EBT. The Court does not give the details of the proofs. N.S. v Freedman    

Assault   Building Security   Foreseeability   Control   3rd Party Contractor   Duty   Espinal  

Second Department
Bar owner granted summary judgment on proof it provided security personnel who immediately interceded in altercation at bar and plaintiff-patron was slashed by person not involved in the altercation showing attack was spontaneous and unforeseeable. Security company granted summary judgment on proof plaintiff was not a party to its contract with the bar and no Espinal exceptions were pleaded. Martinelli v Dublin Deck, Inc.    

MVA   Motion to Dismiss   Comparative Fault   Premature Motion   Speculation  

First Department
Plaintiff’s motion to dismiss comparative fault granted where defendant did not dispute liability or raise issue that plaintiff’s stopping in rain contributed to accident other than by conjecture. Motion not premature. Lopez-Cedeno v D.L. Peterson Trust    

(1 summaries)

Premises Liab   Sidewalk   Snow/Ice   Create Condition   Notice   NYC  

Second Department
NYC failed to meet burden for summary judgment without proof it did not create snow/ice condition or have notice in time to correct condition. The Court does not give the details of the proofs. Harris v City of New York    

About Matt McMahon

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