October 15, 2019 | Vol. 180


MUST READS
(5 summaries)
NOTEWORTHYIF YOU MUST READ

Premises Liab   Slip/Trip   Sidewalk   Prior Written Notice   Big Apple Pothole   NYC  

First Department
NYC’s motion for summary judgment denied for failure to prove no prior written notice and, in any event, plaintiff’s expert and Big Apple map raised issue indicating raised or uneven portion of sidewalk. The map does not give precise details of the length of the defect leaving that issue for the jury. Sanchez v City of New York


Med Mal   Amend Answer  

Second Department
Defendant discontinued by plaintiff waived objection to hospital’s motion to amend Answer and deem it served nunc pro tunc, where originally served without leave of court, by providing Answer to amended Complaint. Discontinued defendant’s motion for so ordered stipulation of discontinuance granted and cross-claims for indemnity and contribution severed. Haughey v Kindschuh


Labor Law §240   Labor Law §200   Causation   Independant Contractor   Espinal   Indemnity  

First Department
Crane collapse made out prima facie entitlement to summary judgment on Labor Law §240(1) even though injury not from direct contact with crane but from attempting to avoid being struck. NYC and MTA defendants proper §240 defendants but crane company and Hudson Yards were not. Crane company as an independent contractor failed to meet burden for summary judgment on common law negligence against plaintiff and third-party Complaint where independent crane company concluded that improper maintenance contributed to wear of crane ropes and could be found to have launched an instrumentality of harm under Espinal. Indemnity claim against plaintiff’s employer who provided load to be hoisted properly dismissed as employer had no hoisting responsibility under the contract. DeGidio v City of New York


MVA   Pedestrian   Turning Vehicle   There to be Seen   Comparative Fault  

Second Department
While plaintiff is not required to show freedom from comparative fault for summary judgment, court may decide issue where plaintiff seeks dismissal of affirmative defense. Proof that plaintiff-pedestrian walked more than halfway across driveway entrance, her testimony that she looked both ways before attempting to cross, defendant’s testimony that he did not see her before feeling a bump at front middle of his vehicle when pulling into driveway, and eyewitness testimony that plaintiff turned to defendant’s vehicle and defensively raised her hands before being struck and propelled into the air established entitlement to summary judgment and dismissal of comparative fault affirmative defense. Higashi v M&R Scarsdale Rest., LLC


Assault   Battery   Motion to Dismiss   Statute of Limitations  

Second Department
Action for assault and battery on schizophrenic patient in hospital governed by 1-year statute of limitation for intentional tort and there is no cause of action for “negligent assault.” Schizophrenia in and of itself does not toll statute of limitations without proof of an overall inability to function in society. Potter v Zucker Hillside Hosp.

NOTEWORTHY
(12 summaries)
MUST READSIF YOU MUST READ

Construction Liab.   Create Condition   Open/Obvious   Inherently Dangerous  

First Department
Contractor’s president’s testimony that it never worked or had any employees at area were plaintiff fell over caution tape between cones at night failed to meet burden where there was an open permit for 1-of-2 adjoining buildings owned by company that hired contractor and president failed to explain why there was an open permit or that he searched the company’s records to see if work was done. Claim that contractor never used that type of cone or tape insufficient as president did not state they never used tape or cones from third parties who were also at the site. Pictures showed tape and cones to be readily observable during the day, but not sufficient to show it was open/obvious and not inherently dangerous at night when accident happened. Garcia v West 170th Realty Inc.


Med Mal   Accepted Practice   Causation   Expert Aff   Conclusory  

Second Department
Two defendants granted summary judgment on expert opinion that they did not depart from accepted practice and alleged departures were not a cause of infant-plaintiff’s injuries. Plaintiff’s expert’s affidavit, considered though not in compliance with CPLR 2309(c), failed to raise issue where facts relied on by expert were not supported by record. Two other defendants failed to meet their burden by their expert’s affidavit made only conclusory statements regarding absence of departures from accepted practice, failed to address plaintiff’s allegation that they repeatedly did not return calls, assumed the truth of disputed facts, and failed to explain the basis of some of his opinions. Stiso v Berlin


Med Mal   Accepted Practice   Causation   Expert Aff  

First Department
HHC granted summary judgment on pediatric neurologist’s opinion that brain imaging was not indicated based on 1-seizure with fever when presented at hospitals and that plaintiff’s injuries were not caused by arterial venous malformation (AVM). Plaintiff’s expert failed to raise issue where affidavit did not indicate that doctor possessed requisite knowledge to make these determinations and, in any event, did not contradict defendants’ expert’s opinions that imaging was not indicated or state that injuries were caused by HHC’s delay in diagnosing seizure condition or discovery of AVM. Lomax v New York City Health & Hosps. Corp.


Premises Liab   Construction Liab.   Workers Comp Defense   Indemnity   Grave Injury  

Second Department
Contractor hired by codefendant building owner to do work where its employee was injured granted summary judgment on Workers Compensation defense on showing it employed plaintiff and individual defendant was co-employee. Contractor failed to meet burden for summary judgment on building owner’s indemnity claim where it failed to show plaintiff did not sustain a grave injury. Eshonkulov v Rafiqul


Labor Law §240   Safety Devices   Severance  

First Department
Plaintiffs granted summary judgment on Labor Law §240(1) on proof that they fell from lift truck without guardrails to prevent their fall when it was struck by a passing car. Third-party defendant’s motion to sever granted where defendants waited until after discovery and just prior to trial to commence third-party action. South v Metropolitan Transp. Auth.


Med Mal   Informed Consent   Accepted Practice   Causation   Duty   Expert Aff  

Second Department
Gastroenterology fellow’s motion for summary judgment denied based on conflicting expert opinions regarding departure from accepted practice, causation, and whether he was required to exercise independent medical judgment, even though a fellow, for not retesting decedent’s blood coagulation profile prior to surgery where decedent’s liver was cut causing death. Cross motion by attending who did not participate in surgery also denied on conflicting expert opinions of departure and causation. Fellow granted summary judgment on informed consent claim, unopposed by plaintiff, because he had no duty to obtain informed consent since he was not involved with the surgery. Macancela v Wyckoff Hgts. Med. Ctr.


Premises Liab   Slip/Trip   Notice   Unknown Cause   Expert Aff   Raised For First Time  

Second Department
Homeowners denied summary judgment for plaintiff’s fall where her foot got caught between grass and step for failing to show they did not have actual or constructive notice of the condition, that they complied with all applicable codes and safety standards, and expert affidavit was unsworn. Sworn affidavit submitted in reply rejected because it addressed deficiencies in defendants’ motion and not plaintiff’s opposition. Plaintiff’s deposition stating that she fell when her foot got caught between grass and step sufficiently identified cause of fall. Jaklitsch v Kelly


Premises Liab   Slip/Trip   § 7-210   Create Condition  

First Department
Building owner denied summary judgment where plaintiff tripped and fell on sidewalk ramp. Building is not responsible for ramps under administrative code §7-210 unless it created the condition but superintendent’s testimony did not establish that it did not create the condition, relying solely on gaps in plaintiff’s proofs. Harvey v Henry 85 LLC


Premises Liab   Slip/Trip   Duty   Create Condition  

Second Department
Owner of building next to parking lot where plaintiff fell on defect, and Starbucks, granted summary judgment on proof they did not own, control or make special use of parking lot and did not create or aggravate defect. Dalpiaz v McGuire


Motion to Dismiss   Untimely   Note of Issue   Workers Comp Defense  

First Department
Lower court providently treated motion to dismiss on subject matter jurisdiction as motion for summary judgment where both parties made clear they were laying bare their proofs, and in denying motion as untimely since filed more than 120-days after Note of Issue. Motion to dismiss would have been denied as workers comp defense does not raise issue of fact on subject matter jurisdiction. Hernandez v 2075-2081 Wallace Ave. Owners Corp.


Serious Injury   ROM   Expert Aff  

Second Department
Defendants met burden for summary judgment on serious injury by orthopedist’s finding of normal ROM on examination and plaintiff’s testimony that she lost only 2-weeks of work. Affirmed report of plaintiff’s physiatrist showing pain level of 5-6 almost 4-years after accident insufficient to raise issue of fact on serious injury. Washington v County of Nassau


Renew   Reargument   Appealable Order  

First Department
Plaintiff’s motion to renew and reargue defendant’s summary judgment motion properly deemed motion to reargue as no new facts were introduced where plaintiff failed to show due diligence in attempting to obtain a physician’s affirmation prior to original opposition and appeal dismissed as there is no appeal from denial of a motion to reargue and plaintiff did not appeal the original grant of summary judgment to defendants. Smith v Pereira

IF YOU MUST READ
(3 summaries)
MUST READSNOTEWORTHY

Construction Liab.   Control  

First Department
Port Authority’s motion for summary judgment denied were parties agreed that New Jersey law applied and Port Authority as de facto landlord could be found responsible for injury to independent contractor’s employee where it retained control and its retention of authority to approve or disapprove of plans for work was sufficient control. Taylor v Port Auth. of N.Y. & N.J.


Premises Liab   Slip/Trip   Unknown Cause   Speculation  

Second Department
Defendants entitled to summary judgment on proof that plaintiff could not identify cause of her fall without speculation. The court does not give the details of the proofs. Segal v Haverstraw Mar. Corp.


Stay Arb   Uninsured   SUM   Personal Juridiction   Service  

First Department
UM/SUM arbitration temporarily stayed for hearing to determine jurisdiction, service, and compliance with insurance regulations of offending vehicle’s carrier. Matter of Elco Admin. Servs. v Bones-Rojos

About Matt McMahon

Civil trials and appeals since 1984
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