October 13, 2020 | Vol. 231

(8 summaries)

Set Aside Verdict   IME/DME   CPLR § 3101(d)   Noseworthy   Directed Verdict   Serious Injury  

First Department

Trial court erred in precluding IME watchdog testimony to rebut doctor’s testimony on exam length where watchdog’s presence at exam noted in doctor’s report and plaintiff would not have known that doctor would inflate time, but no prejudiced where doctor admitted time inflated on cross-examination and plaintiff’s direct continued and she could have testified about examination. Court could not review argument that defendants’ epileptologist should have been precluded for untimely and insufficient 3101(d) where it was not in record. Record did not show if plaintiff excepted to missing witness charge for not calling plaintiff’s neuropsychologist. Noseworthy charge properly denied since plaintiff could testify to some of the details of her accident.

Plaintiffs’ motion for directed verdict providently denied where defendants’ doctors provided rational path to verdict finding no serious injury. SSA finding that plaintiff disabled from date of accident was only some proof of 90/180-day category as she listed some non-accident related conditions. Everett v Timmins

Coverage   Settlement   Serious Injury   Expert Aff  

Second Department

Carrier’s summary judgment motion of bad faith claim where plaintiff obtained $300,000 judgment and took assignment of insured’s claims bad faith failure to settle within $100,000 policy granted on proof carrier had rational basis to believe a jury “could” find no serious injury, including its experts’ opinions of no nerve root impingement, a finding of bulge not herniation, and fact that plaintiff returned to work within 1-month and stopped medications and treatment within 2-years. Bad faith requires “‘gross disregard’ of the insured’s interests—that is, a deliberate or reckless failure to place on equal footing the interests of its insured with its own interests when considering a settlement offer.'” VanNostrand v New York Cent. Mut. Fire Ins. Co.

Ins. L. § 3420(a)(2)   Coverage  

Second Department

Plaintiff’s Summary judgment seeking declaratory judgment that carrier must pay underlying personal injury judgment of $292,250.30 granted under Ins. L. §3420 on proof judgment remained unsatisfied 30-days after notifying carrier and policy issued to defendant in underlying action provided coverage for judgment. Carrier’s cross motion on disclaimer for insured’s failure to cooperate denied. Carrier failed to meet “heavy” burden of showing an unreasonable and willful pattern of refusing to answer material questions or supply documents by insured’s principals where only principal they spoke with appeared and answered questions at a lengthy EBT. Statement that he would not appear for trial when no trial was scheduled did not raise issue of fact. DeLuca v RLI Ins. Co.

MVA   Motion to Dismiss   Default Judgment   Reasonable Excuse   Meritorious Action  

Second Department

Defendants’ motion to dismiss for plaintiff’s failure to move for default within 1-year under CPLR §3215 denied where plaintiff’s attorney’s letter to carrier before 1-year, advising them of the default, evinced plaintiff did not intend to abandon case and plaintiff showed reasonable excuse for delay in moving to compel an Answer or for default until shortly after the 1-year expired by law office failure. Defendants compelled to provide an Answer. Merilus v Nassau Inter County Express (NICE)

Note of Issue   Untimely   Reasonable Excuse   Raised For First Time  

Second Department

Lower court abused discretion in considering defendant’s motion for summary judgment made 30-days after time for summary judgment motions set by court where good cause for delay was raised for the first time in defendant’s reply and not contained in original moving papers. A court has discretion to set any deadline from summary judgment motions between 30 and 120 days after Note of Issue. O’Neil v Environmental Prods. Corp.

Attorney Fees   Lien   Informed Consent   Consolidation  

First Department

Defendant, former trial counsel, moved to vacate sua sponte stay of present action brought by client’s former guardian for breach of fiduciary duty in allowing client to obtain Peachtree loans which client did not understand due to limited English and questionable mental capacity and fee allocation proceeding pending determination of Peachtree’s action against defendant law firm to recover loans with interest on theory of unjust enrichment. In 2016 the Court voided the Peachtree agreements, and that matter was eventually settled with plaintiff paying Peachtree $55,000.00. Defendant had entered into a fee and charging lien stipulation with incoming counsel when replaced by the guardian and retained a portion of the Peachtree loans to cover its fee. The Court lifted the stay on condition defendant moves to consolidate the remaining cases within 60-days. Pieternelle v Smiley & Smiley, LLP

Premises Liab   Construction Liab.   Sidewalk   § 7-210   Indemnity   Notice   Vicarious Liab  

First Department

Plaintiffs granted summary judgment against abutting landowner where injured-plaintiff struck in head by construction door that “swung outward and was not recessed back from the sidewalk.” Court found administrative code §7-210 applicable. Plaintiff granted partial summary judgment against contractor who installed door despite discrepancy of whether it was plywood or metal.

Landowner’s motion for summary judgment on contractual indemnity against contractors denied were questions remained of whether landowner had notice of defect and was more than just vicariously liable. Spielmann v 170 Broadway NYC LP


First Department

Venue changed from Bronx to Nassau County based on choice of venue in nursing home admission agreement where there was no proof it was unreasonable or obtained by fraud or duress. Grant v United Odd Fellow

(21 summaries)

Premises Liab   Products Liab   Elevator   3rd Party Contractor   Espinal   Amend Complaint   Statute of Limitations   Indemnity   Collateral Estoppel   Res Ipsa Loquitor  

Second Department

Elevator maintenance company denied summary judgment where plaintiff injured when panel on elevator wall fell on her without prima facie showing that there was no defect, that it should not have found defect, or that it used reasonable care to discover defect, which are part of elevator maintenance company’s duty to passengers even though passenger are not party to the maintenance contract. Contractor that installed panel denied summary judgment on common-law indemnity and contribution claims where question remained of its own negligence. Contractual indemnity claim dismissed where only writing was invoice without mention of obligation to indemnify or obtain insurance.

Plaintiff’s cross-motion to amend Complaint to add products liability claim granted as original Complaint apprised elevator maintenance company of occurrence to be proved on products liability claim and was timely under relation-back doctrine. Carter v Nouveau Indus., Inc.

Comment: Contractor’s additional motion to dismiss indemnity and contribution claims on res judicata and collateral estoppel for products liability claim after plaintiff amended Complaint denied as above decision meant there was no final resolution of the claim. Carter v Nouveau Indus., Inc.

Set Aside Verdict   Pain/Suffering   Materially Deviates   Admissibility  

First Department

$75,000/$0 past/future pain/suffering verdict set aside to extent of ordering new trial on future pain/suffering as jury award of future medical expenses was inconsistent with $0 future pain/suffering and could not be reached on a fair interpretation of the evidence. Claim of inconsistent verdict not preserved where plaintiff did not raise it until after jury discharged but award of no future pain/suffering materially deviated from reasonable compensation. No error in allowing proof of subsequent accident where plaintiff made psychological claims and was recalled to testify that it caused him “desperation.” Paucay v D.P. Group Gen. Contrs./Devs., Inc.

Vacate Jud   Motion to Dismiss   Discovery   Reasonable Excuse   Meritorious Action   NYC  

First Department

Judgment dismissing action for failure to comply with several orders to produce documentary discovery over a 1.5 year period and the court’s grant of a final chance to comply affirmed where plaintiff failed to provide any excuse for the repeated failure to comply in either motion or to demonstrate a meritorious action. White v City of New York

Premises Liab   Slip/Trip   Snow/Ice   Late Notice of Claim   Actual Knowledge   Prejudice  

Second Department

Petition to serve late Notice of Claim made 5-months after plaintiff slipped and fell on ice in town parking lot denied where plaintiff failed to show town had actual knowledge of essential elements within 90-days. Plaintiff made plausible argument that town was not prejudiced by delay since icy condition was transitory and would not have been remained for the 90-days, but that fact alone insufficient to grant petition. Matter of Shumway v Town of Hempstead

Premises Liab   Slip/Trip   Sidewalk   Late Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice   50-H  

First Department

Incident report that made clear petitioner fell on sidewalk with photographs in the report showing a tripping hazard from cracked and raised portions of sidewalk and plaintiffs 50-H testimony that a security guard immediately called his supervisor to the scene established the college had actual notice within 90-days and respondents were not prejudiced. Petitioner’s attorney’s inexcusable failure to name correct party was not due to petitioner’s fault or delay and lack of reasonable excuse is not fatal to leave to serve late Notice of Claim. English v Board of Trustees of the Fashion Inst. of Tech.

Premises Liab   Labor Law §200   Foreseeability   Intervening Cause  

Second Department

School granted summary judgment of negligence and Labor Law §200 claims were movie set dresser injured when window opened into classroom as she was removing set items, striking her in the head. Window had been screwed shut but plaintiff’s coworker removed the screws to open it while they were working on the set on a particularly hot day and later closed it and reinserted the screws. On day of the accident the screws were missing and the window was partially open. The accident was unforeseeable since the school had purposely screwed the window shut and could not anticipate someone would remove numerous screws which was an intervening cause for which the school could not be held liable. Jones v Saint Rita

Premises Liab   Elevator   Untimely   Reasonable Excuse   3rd Party Contractor   Espinal   Expert Aff   Res Ipsa Loquitor   Indemnity  

First Department

Cross-motion for summary judgment by building owners denied as untimely where plaintiff was not a movant and they failed to show good cause for delay. Elevator company denied summary judgment where plaintiff’s expert rebutted claim elevator chains did not break because of their service work opining they should have replaced the chains after the vertical reciprocating conveyor jammed. The chains broke the day after the elevator company put the elevator back in service, launching an instrumentality of harm under Espinal. Elevator company failed to show res ipsa loquitor did not apply as elevators do not normally free fall absent negligence, they failed to show fall due to plaintiff’s negligence, and they were the only one who maintained the elevator even if the building owner could control it.

Contractual indemnity claim dismissed where outside of term of contract and there was no other writing and summary judgment on common law indemnity denied where there was question of negligence. Orea v NH Hotels USA

Med Mal   Spoliation   Negative Inference   Renew   Motion to Dismiss  

Second Department

Defendants’ attorney’s affirmation sufficient to show new facts that original chart defendant-doctor could not find was given to defense counsel to copy and provide b/w copy to plaintiff and subsequently found by doctor, that plaintiff given a color copy of original file and opportunity to inspect original file after it was found, but declined, warranting grant renewal of opposition to motion for spoliation sanctions that had been granted with adverse inference charge and on renewal motion for spoliation sanction denied. Original chart did not prove alleged fact that plaintiff received treatment at doctor’s private office before surgery for epidural lipomatosis was not a fact at all, motion to dismiss for failure to state a cause of action denied. Palmer-Williams v Rubin

Comment: Appeal from original order granting spoliation sanction dismissed as academic given above decision. Palmer-Williams v Rubin.

Med Mal   Accepted Practice   Causation   Expert Aff  

First Department

By not addressing absence of infection signs for the 3-weeks post-op plaintiff was under NYCHH’s care or when further testing for MRSA should have been done given that a CT scan and bloodwork was recently done, Plaintiffs’ expert failed to raise issue of fact even where defendant’s infectious disease doctor recommended testing, including another CT scan of the hip area to monitor for infection. Plaintiff’s expert also failed to make causal connection between a delay in diagnosis and plaintiff’s injuries. Linn v New York City Health & Hosps. Corp.

Products Liab   Motion to Dismiss  

Second Department

Washing machine manufacture’s motion to dismiss laundromat’s cross-claims under CPLR 3211(7) based on documentary evidence where child’s hand was cut on sharp edge of washing machine denied for failure to establish that any claimed material fact in cross-claims was not a fact at all and there was no significant factual dispute. Cajigas v Clean Rite Ctrs., LLC

Premises Liab   Construction Liab.   Espinal   Res Ipsa Loquitor   Workers Comp Defense   Amend Answer   Indemnity  

First Department

Greeter at Javits center was injured when a display fell on him while a television was being mounted on it. Res ipsa loquitor did not apply as neither defendant-decorating company that constructed display or electricians and carpenters it hired had exclusive control of display. Defendant-exhibitor made requests of decorating defendant, and its employees were present during installation, but it did not manufacture or install the tower. Questions remained on whether decorating company launched an instrumentality of harm by constructing tower without stabilizing feet included in design, whether exhibition-defendant had authority to control the work, and whether accident arose out of exhibitor’s use and occupancy of the property under its license with the Javits Center.Exhibitor’s motion to amend Answer to include workers compensation defense on special employee theory denied as devoid of merit where there was no evidence of special employment and claim it would have assumed supervisory control of plaintiff if accident did not occur was speculative. All defendants other than exhibitor and decorating company dismissed as they had no connection to the accident.

Exhibitor granted summary judgment of unpleaded claim of contractual indemnification against decorating company since it was aware of contract terms evinced by failed negotiations to take over exhibitor’s defense. Alonso v Reed Elsevier, PLC

Premises Liab   Slip/Trip   3rd Party Contractor   Espinal   Speculation  

Second Department

Cleaning service granted summary judgment on proof it did not transport grease, food, or oil in loading dock where plaintiff slipped on grease. Plaintiff’s claim that cleaning service launched instrumentality of harm speculative where she did not know where grease came from or who was responsible to clean area. Qoku v 42nd St. Dev. Project, Inc.

Labor Law §240   Ladder   Falling Object  

First Department

Plaintiff granted summary judgment on Labor Law §240(1) where metal debris fell causing unsecured ladder plaintiff was on during demolition work to move and plaintiff to fall as safety device was not adequate to ensure ladder would remain upright. Plaintiff was not required to show ladder was defective. Avila v Saint David

Premises Liab   Slip/Trip   Snow/Ice   Assumption of Risk  

Second Department

Owner of ski area granted summary judgment on assumption of risk where snowboarder fell on black ice as he stepped from snow to gravel at base of the mountain holding his snowboard. Plaintiff assumed risks inherent in snowboarding included slipping on black ice “in a designated athletic or recreational venue” that included area between slope and racks where snowboards were stored. Kannavos v Yung-Sam Ski, Ltd.

MVA   Highway Design   Dangerous Condition   3rd Party Contractor   Espinal   NYC  

First Department

NYC granted summary judgment where plaintiff did not identify any defect in the street other than poor lighting. A finding that lighting is necessary cannot be made absent a defect. Lighting company granted summary judgment where its contract did not establish it entirely displaced NYC’s obligations to maintain the lighting under Espinal. Camara v Appiah

MVA   Question of Fact   Nonnegligent Explanation  

Second Department

Driver of vehicle with plaintiff passenger made out prima facie entitlement to summary judgment of cross-claims and third-party Complaint on proof codefendants’ car was driving in reverse when it struck front of her stopped vehicle but codefendants raised issue of fact by statement that driver of reversing car was parallel parking and already angling into parking spot when other vehicle struck her car in the rear. Singh v Bisnath

Serious Injury   Causation   ROM   Expert Aff  

First Department

Defendant failed to meet burden on causation where submitted doctor reports conflicted on causation, including NF report stating injuries were causally related to accident. Defendant’s orthopedist found limitation of ROM but claimed it was subjective with no objective findings. Plaintiff’s testimony he had no pain after arthroscopic surgeries on lumbar spine, shoulder, and knee and stopped treatment despite fact he had insurance required dismissal of permanency claim. Plaintiff’s doctor’s finding of permanency on belated statement that future care would only be palliative speculative where it did not rebut plaintiff’s testimony. If jury finds serious injury, plaintiff can recover for all injuries. Perez-Vargas v Aarron

Serious Injury   Preexisting   Degenerative   ROM   Expert Aff  

First Department

Plaintiff’s doctors failed to raise issue in opposition to defendants’ entitlement to summary judgment on plaintiff’s medical records showing pre-existing lumbar degeneration for which plaintiff was already on disability and defendants’ radiologist’s opinion that x-ray of cervical spine after accident showed only minor degenerative change and no evidence of trauma where they did not address pre-existing condition or provide objective basis it was aggravated by the accident, and plaintiff submitted no evidence to rebut her medical record showing normal ROM in her cervical spine. Absent causation, plaintiffs 90/180-day claim fails, and she provided no evidence that she did not return to work because of a medically determined injury. Gomez v Drew

MVA   Settlement   Renew   Reasonable Excuse  

Second Department

Plaintiff’s motion to renew his motion for summary judgment and opposition to defendants’ motion to enforce settlement agreement reached while motion was pending based on photographs plaintiff claimed were not provided until after he moved for summary judgment denied. Defendants showed photographs were provided in time for plaintiff’s reply and plaintiff failed to give reasonable justification for not including them on his motion or show that they would have changed determination to enforce the settlement. Mooklal v Clermont Farm Corp.

Late Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice   Court of Claims  

Second Department

Motion to file late Claim made 3-years after accident, alleging violations of Labor Law §§240, 241, and 200, denied where claimant failed to show State had notice of essential facts within 90-days, provide a reasonable excuse, and show State was not prejudiced by delay. The court does not give the details of the facts. Winter v State of New York

Asbestos   Motion to Dismiss   Personal Juridiction   Collateral Estoppel  

First Department

Defendant’s motion to dismiss on personal jurisdiction barred on collateral estoppel by prior decisions from other cases finding it amenable to jurisdiction under successor jurisdiction and its claim that contract transferring its assets to another NY company did not contradict prior rulings. It offered no caselaw to support claim of change in law. Matter of New York City Asbestos Litig.

(2 summaries)

SUM   Res Judicata   Stay Arb  

First Department

Plaintiff’s motion to compel his SUM carrier to provide consent to settle action denied as carrier was not party to that action and claim against carrier barred by res judicata where Orange County order permanently stayed arbitration for untimely notice without opposition. Res judicata applies to judgments on default. Renewal denied. McGookin v Berishai

Motion to Dismiss   Premature Motion   Amend Complaint   NYC  

Second Department

Defendants’ motion to dismiss for failure to state a cause of action denied as premature where essential facts necessary to oppose motion were within defendants’ sole possession and plaintiff’s cross motion to amend Complaint granted. The court does not give the details of the proofs. Scarbough v Gonzalez

About Matt McMahon

Civil trials and appeals since 1984
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