October 17, 2023 | Vol. 387

(5 summaries)

Premises Liab   Wet Floor   Strike Answer   Survelliance Video   Spoliation   Notice   Prejudice  

First Department
Plaintiff’s motion to strike hospital’s Answer granted where hospital received plaintiff’s letter to preserve 48-hours of surveillance video leading up to her slip and fall on a slippery substance within days of her fall, preserved the footage, but only provided 12-seconds of footage, failed to explain what happened to the remaining footage, and the footage was crucial to plaintiff’s proof of notice as it would have showed the origin of the substance and how long it existed. “[P]leadings may be struck for spoliation in the absence of court-ordered discovery.” Wagman v Morgan Stanley Children    

Malpractice   Respondeat Superior   Renew   BP  

Second Department
Hospital granted summary judgment dismissing claim that it was liable for the acts of doctor who implanted mesh that migrated on proof he was an independent doctor as respondeat superior does not attach by the mere referral of a patient by the hospital to an independent physician who sees the patient in the doctor’s private offices.

Plaintiffs’ motion to renew denied where based on a new Supplemental BP rather than new facts that could not be offered on the original motion. Ciceron v Gulmatico    

Comment: See related decision below.

Malpractice   Notice of Claim   Prejudice  

First Department
Petitioner providently granted leave to file late Notice of Claim against NYCHHC where the severe injuries from anassault that brought him to the hospital including a TBI, a stroke while in the hospitals resulting in hemiparesis, and a 15-month recovery that left him in a wheelchair prevented him “from taking any but the most rudimentary steps to protect [his] claim” and NYCHHC failed to make an adequate showing of prejudice. Matter of Benavides v New York City Health & Hosps. Corp.    

Attorney Fees   Lien  

Second Department
Motion by firm that substituted original firm before case was settled for $600,000 to quash original firm’s Jud. L. §475 charging lien providently denied where plaintiff’s “generalized dissatisfaction” with the original firm was insufficient to show the firm was discharged for cause. 75%/25% apportionment of contingency fee to original/substituting firm upon a referee’s report after a hearing upheld where original firm commenced the action, obtained summary judgment on liability, removed the case from the trial calendar for plaintiff’s surgery from injuries sustained in the accident, and timely moved to restore the action given the relative ‘time and labor required, the difficulty of the issues involved, the skill required to handle the matter, and the effectiveness of the legal work performed.’ Tirado-Sottosanyti v Crowley    

MVA   Motion to Dismiss   Estate   Note of Issue   Untimely   Prejudice  

Second Department
Lower court improvidently granted motion to dismiss action as abandoned under CPLR §3404 after Note of Issue had been filed as action was automatically stayed upon decedent’s death and CPLR §3404 was inapplicable where action was not stricken from the trial calendar.

Husband’s motion to substitute himself as administrator of his wife’s estate improvidently denied, even though 4-year delay in obtaining letters and almost 1-year delay in seeking substitution showed a lack of due diligence, where plaintiff had been granted summary judgment for the rearend collision prior to her death, showing a meritorious action, and there was no proof defendants were prejudiced by delay of the damage only trial. Hemmings v Rolling Frito-Lay Sales, LP    

(17 summaries)

MVA   Set Aside Verdict   Court of Claims  

First Department
Claimant’s motion to set aside judgment based on non-jury verdict apportioning 70%/30% liability against claimant/state and setting matter down for trial on serious injury and damages denied where court’s finding that claimant struck state’s vehicle instead of the other way around was supported by a fair interpretation of the evidence. Diaz v State of New York    

Child Victims Act   Negligent Hiring   Negligent Supervision   Motion to Dismiss   Statute of Limitations  

Second Department
Prep school’s motion to dismiss Child Victims Act claims of former student who alleged he was sexually abused by its football coach from 1969-1971, as barred by statute of limitations, denied since CPLR §214-g met due process as it was a reasonable response to remedy injustices to child abuse victims from statutes of limitations. Motion to dismiss for failure to state a cause of action denied as allegations of negligent hiring, retention, and supervision are not required to be pleaded with specificity and the Claim adequately pled these causes of action. Forbes v Poly Prep Country Day Sch.    

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 drugged and sexually abused by named employee at juvenile retention center in 1997 when she was approximately 15-years-old which was sufficient for the state to promptly investigate the claim and assess its liability. Ford v State of New York    

Labor Law §240   Scaffold   Admissibility   Hearsay  

First Department
Plaintiff met burden for summary judgment on Labor Law §240(1) where scaffold he was on collapsed. Affidavits of investigator and contractor that plaintiff ignored supervisor’s instruction not to use the scaffold but to wait for a safer scaffold failed to raise an issue of fact where they were based on an unsigned affidavit of the supervisor and the inadmissible hearsay was the only proof of defendants’ claim. Garcia v 122-130 E. 23rd St. LLC    

Malpractice   Informed Consent   Accepted Practice   Experts   Conclusory  

Second Department
Doctor who implanted mesh for hernia repair failed to meet burden for summary judgment on expert’s conclusory opinion of no departure from accepted practice as it failed to adequately address conflicting evidence of the mesh’s migration or refute the allegations in the BP. Allegation that the defendant failed to properly implant the mesh gave sufficient notice of plaintiff’s mesh migration theory.

Urologist granted summary judgment dismissing lack of informed consent claim where she aborted the radical prostatectomy when she discovered plaintiff’s prostate could not be safely removed due to the migration of the mesh from the hernia repair on the parties’ testimony, plaintiff’s medical records, signed consent form, and her expert’s opinion establishing plaintiff was apprised of the risks and alternatives to the surgery and that a reasonably prudent person in plaintiff’s position would not have declined the surgery if fully informed. Ciceron v Gulmatico    

Comment: See related decision above.

3rd Party Contractor   Elevator   Duty   Espinal   Indemnity   Sole Cause  

Second Department
Elevator company failed to meet burden for summary judgment dismissing Complaint, Third-Party Complaint, and building owners’ cross-claims for indemnity and for summary judgment on elevator company’s claim for indemnity against building owner even though the maintenance contract did not include the elevator hatch that fell on plaintiff where elevator company’s mechanic testified they disregarded that provision and previously repaired the elevator hatch, leaving a question of whether they wholly displaced the owner’s duty to maintain the elevator under Espinal, and failed to show there was no defective condition that they should have known about or that they used reasonable efforts to discover.

Elevator company not entitled to summary judgment on indemnity claim against building owner where contract excluded indemnity when accident resulted from elevator company’s sole negligence and questions remained on that issue. Barnes v Astoria Fed. Sav. & Loan Assn    

MVA   VTL §1104   Reckless   NYC  

Second Department
NYC and FDNY fire engine driver granted summary judgment on proof the fire engine was responding to an emergency with its lights and sirens on when it made a right hand turn from the second or third lane to plaintiff’s left and struck plaintiff’s vehicle, establishing defendants were entitled to the reckless standard of VTL §1104(e) and their driver was not reckless as it takes more than “a momentary judgment lapse” to show recklessness. Moore v City of New York    

Premises Liab   3rd Party Contractor   Espinal   Out of Possession   Control  

First Department
Janitorial service denied summary judgment dismissing claim of bank employee who fell on metal shelf from collapsed shelving unit where question remained of whether its employee launched an instrumentality of harm under Espinal by pulling on a shelf in the unit just before or while it collapsed. Companies that managed the building granted summary judgment where they did not did not launch an instrumentality of harm because they did not assemble the shelving unit and plaintiff’s testimony regarding the assembly of the unit was speculative.

Building owner granted summary judgment where it was an out of possession owner and there was no question that its obligation to clean portions of the building did not include the area where the accident occurred. Both the owner and management companies had only general supervisory control over the janitorial company. Caldwell v 4 NYP Ventures    

Premises Liab   Construction Liab.   Sidewalk   Unknown Cause   Speculation   Feigned Issue   NYC  

Second Department
NYC and excavation contractor it hired granted summary judgment dismissing plaintiff’s slip and fall on sidewalk on plaintiff’s testimony that she had difficulty walking on the sidewalk because of rocks and pebbles on the sidewalk but she was not certain if the rocks and pebbles caused her fall and she considered whether it was caused by construction netting instead, establishing that she could not identify the cause of her fall without speculation. Plaintiff’s affidavit raised only feigned issues where it attempted to correct the consequences of her EBT testimony. Belmonte v City of New York    

Premises Liab   Wet Floor   Last Inspection   Unknown Cause  

Second Department
Defendants granted summary judgment on bartender’s testimony he inspected the bathroom where decedent fell several hours before decedent arrived at the hall, decedent was the only person in the hall before he fell in the bathroom, bartender found the decedent on the floor of the bathroom snoring, there was no wet or slippery substance on the floor of the bathroom and the decedent’s clothes were not wet, and testimony of a volunteer bartender who came after the fall and also found decedent sitting on the bathroom floor, there was no wet or slippery substance on the floor, the decedent’s clothes were not wet, and both bartenders noticed plaintiff did not have his usual cane at the time of the accident, establishing that plaintiff could not show the cause of the fall without speculation. Cruz v Flatlands Christian Ctr., Inc.    

Premises Liab   Sidewalk   Unknown Cause   Trivial   Experts   Waiver  

First Department
Abutting landowner failed to show entitlement to summary judgment on claim sidewalk defect did not cause plaintiff’s accident where plaintiff consistently testified she tripped on uneven sidewalk flag raised approximately 1″ above the adjoining flag and identified the area on photographs at her EBT. Landowner also denied summary judgment on claim the defect was trivial where its expert testified the height differential between the 2-flags was 1/4″ but plaintiff’s expert concluded it was 3/4″ and a tripping hazard. Shapiro v 89th St. Dev. Co. LLC    

MVA   Bus   Emergency Doctrine  

First Department
NYCTA granted summary judgment dismissing claim of passenger who fell when bus braked on proof vehicle suddenly cut in front of the bus and bus driver acted reasonably in response to an emergency situation not of his own creation. Conflicting evidence of whether bus braked did not raise an issue of fact given uncontroverted evidence that the bus driver had to react to avoid hitting the vehicle that cut in front of him. Febres v Metropolitan Transp. Auth.    

Labor Law §240   Scaffold   Premature Motion  

First Department
Plaintiff granted summary judgment on proof scaffold he fell from had no guard rails or other safety devices. Motion not premature where defendant failed to show what discovery was necessary or what it would reveal. Velasquez v 94 E. 208 St. Partners LLC    

Labor Law §240   Labor Law §241   1-2 Family Exception  

First Department
Homeowners granted summary judgment dismissing Labor Law §§240(1), 241(6) claims of worker injured during construction of home on proof they intended to live in one of the units in the 2-family house, bringing them within the 1-2 family home exception to §§240, 241. Nava v Franklin    

MVA   Rear End   Nonnegligent Explanation   Indemnity  

Second Department
Owner and driver of vehicle with plaintiff as a passenger met burden for summary judgment dismissing cross-claims for indemnity and contribution on proof their vehicle was stopped when struck in the rear by codefendants’ vehicle but codefendants’ driver’s testimony that moving-defendants’ vehicle abruptly changed lanes and stopped in front of codefendants’ vehicle raised a nonnegligent explanation for the rearend collision. Balanta v Guo Lin Wu    

Serious Injury   ROM   Causation   Experts   Speculation  

First Department
Defendant met burden for summary judgment on his experts’ affirmed reports showing no limitation of ROM and plaintiff’s injuries had resolved. Plaintiff’s expert’s opinion plaintiff was injured as a result of the accident failed to raise an issue in opposition without addressing injuries from plaintiff’s prior accident 2-weeks earlier or that those injuries were different from the injuries claimed in the present case. Newell v Javier    

Prior Written Notice  

Second Department
Municipality met burden for summary judgment on proof it did not receive prior written notice of sidewalk defect plaintiff claimed caused her to fall because it was too steep and plaintiff failed to raise an issue on prior notice or its exceptions. Canaday v Village of Wappingers Falls    

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About Matt McMahon

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