October 18, 2016 | Vol. 24

MUST READS
(4 summaries)

Notice of Claim   Estoppel  

Second Deptartment

Plaintiff served a Notice of Claim on MTA for injuries sustained when the doors of a subway closed on her hand, but did not serve a Notice of Claim on the NYCTA. MTA responded with a letter with a “TA” claim letter and demanded a 50H hearing pursuant to “the power conferred on the New York City Transit Authority”. The 50 H hearing was conducted before a NYCTA examiner and the transcript was sent to the plaintiff’s attorney with a cover letter on a letterhead with the MTA logo and the words “New York City Transit.” The lower court granted NYCTA’s motion for summary judgment for failure to serve NYCTA with a Notice of Claim and the Second Department reversed. Although MTA and NYCTA are separate entities, NYCTA is equitably estopped from asserting failure to serve a Notice of Claim as plaintiff demonstrated that NYCTA engaged in conduct that misled the plaintiff to justifiably believe that service upon MTA was sufficient “and lulled her into sleeping on her rights to her detriment.” Konner v New York City Tr. Auth.

Comment: As the Court notes in the decision, this is a rare remedy for a failure to serve the proper party with a Notice of Claim


Premises Liab   Elevator   3rd Party Contractor   Out of Possession   Causation   Workers Comp  

Second Deptartment

Plaintiff, a porter at a nursing home, stepped on a crossbar on the top of a stuck freight elevator in order to call down to a coworker when the hoist cable snapped and the elevator dropped into the shaft the plaintiff to fall down the shaft. He sued the owner of the building, the nursing home tenant, and the elevator maintenance company. The elevator company was not entitled to summary judgment because it failed to show that it’s contract which required periodic inspections and Local Law #10 annual inspections did not create a duty to the plaintiff or that plaintiff’s actions when the elevator became stuck constituted a superseding cause of the accident.

The lower court providently exercised its discretion in granting the elevator company’s cross motion to strike the nursing homes answer based on spoliation for an alleged failure to allow them to inspect the elevator only to the extent of directing the nursing home to produce its expert for a deposition, since the elevator company had an opportunity to inspect and photograph the elevator on the day of the accident, failed to request a further inspection for several months after the accident, and failed to specify any evidence it sought from the further inspection.

The nursing home was entitled to summary judgment as its employee’s action against it was barred by workers compensation even though the employee was paid by a separate entity which was shown to be merely a payroll company. The payroll company was the “general employer” and the nursing home was the plaintiff’s “special employer.”

Building owner was entitled to summary judgment as an out of possession landowner which was not contractually obligated to maintain the premises, did not perform maintenance, and had no duty under Multiple Dwelling Law §78 since a nursing home is defined as a “hospital” under Public Health Law and does not constitute a multiple dwelling. Fajardo v Mainco El. & Elec. Corp.


Ins. L. § 3420(a)(2)  

Second Deptartment

Injured plaintiff sued defendant’s insured for injuries from a slip and fall accident and, upon defendant insured’s default, obtained a judgment in excess of $3 million. The plaintiff had notified the defendant carrier of the accident and provided a copy of the summons and complaint, medical records, and authorizations one year and eight months after the accident, and before taking the default judgment. Defendant carrier sent a disclaimer letter to both the plaintiff and defendant insured disclaiming coverage based on their insured’s failure to provide timely notice. The lower court granted summary judgment to the plaintiff against the carrier in the amount of their $1 million policy plus interest and the appellate court affirmed. Notice to the carrier can be given by either their insured or the injured plaintiff and, where given by the injured plaintiff, a disclaimer must specifically address the reasons for disclaiming coverage based on the injured plaintiff’s notice which was not done in the present case. Pollack v Scottsdale Ins. Co.

Comment: The lesson for plaintiff attorneys is always to send notice directly to the carrier and for Defendants is to make sure any disclaimer addresses notice or lack thereof by the insured and plaintiff.


Personal Juridiction   Products Liab   Wrongful Death   Motion to Dismiss  

Second Deptartment

Following the due process considerations set forth in US Supreme Court’s decisions in
Daimler AG v Bauman and Goodyear Dunlop Tires Operations, S.A. v Brown, needed to obtain personal jurisdiction against a foreign corporation under CPLR §301 it must be shown that “the corporations affiliations with the state in which suit is brought are so constant and pervasive to render [it] essentially at home in the forum state,” the lower court properly granted DaimlerChrysler’s motion to dismiss on personal jurisdiction grounds, after exchange of discovery, as plaintiff failed to show that the German corporation’s activities in New York fit within the test set forth by the US Supreme Court. Plaintiff also failed to show that DaimlerChrysler’s activities fit within CPLR 302(a)(1), transacting business within the state, which requires a “substantial relationship” or “articulable nexus” between the activities in the state and the cause of action. DaimlerChrysler did not manufacture the vehicle or alleged defective parts or sell the vehicle to plaintiff’s decedent. Fernandez v DaimlerChrysler, A.G.

NOTEWORTHY
(12 summaries)

Labor Law §240   Gravity Risk  

First

Defendant entitled to summary judgment on Labor Law §240(1) claim were plaintiff was struck by a pipe being flushed with a highly pressurized mix of air, water, and a rubber “rabbit” device. Movement within the pipe was not caused by the effects of gravity but by the intentional use of external forces and does not fall within the ambit of Labor Law §240(1) protection. Joseph v City of New York


Fireman Rule   GML §205-e   Premises Liab   Slip/Trip   Sidewalk  

Second Deptartment

Plaintiff, police officer, was injured when she tripped and fell on the sidewalk in front of defendant’s property when responding to a 911 call. Defendant was entitled to summary judgment on plaintiff’s common-law negligence cause of action which was barred by the firemen’s rule for risks inherent in her role as a police officer. The obligation to maintain a safe sidewalk, outside of New York City is generally on the municipality and not an abutting landowner unless the landowner created the defect, the defect resulted from the landowner special use, or the land owner breached a specific statute or ordinance obligating the owner to maintain the sidewalk which specifically states that the landlord will be liable to those injured. The village and town codes relied upon by the plaintiff did not impose a duty on the defendant running to the plaintiff.

The village and town codes, and the 2007 Property Maintenance Code of New York State did, however, constitute a sufficient predicate for liability under General Municipal Law §205-e even though these provisions did not provide a private cause of action. Lewis v Palazzolo


Premises Liab   Workers Comp   Alter Ego   Out of Possession   Burden of Proof  

Second Deptartment

Defendants’ motion for summary judgment on grounds that defendants were in a joint venture or alter ego of the plaintiff’s employer and an out of possession landlord with no obligation to maintain the premises was properly denied. Defendants failed to produce any evidence that they were the alter ego or in a joint venture with the plaintiff’s employer or that they were not contractually obligated to maintain the premises. Beeker v Islip U-Slip, LLC


Premises Liab   Stairs  

First

Defendants entitled to summary judgment on proof that stairs in their home, built in 1927, had never been worked on, there were no prior accidents or complaints, no violations or citations, and immediately after the accident they could find no defect. Plaintiff failed to raise a triable issue of fact. The lower court correctly ignored the unsworn statement of a witness since it was plaintiff’s only proof. Even if it had been considered, it did not show whether defendants had notice of the alleged defect and plaintiff’s expert failed to support his/her conclusion that the stairs did not comply with commonly accepted safety standards by pointing to any specific safety standards or practice applicable to the subject stairs and the expert failed to opine that the absence of a handrail or differential in the dimensions of the risers and threads made the stairs inherently dangerous. Lovell v Thompson


Premises Liab   Slip/Trip   Snow/Ice   § 7-210   Last Inspection  

Second Deptartment

Owner of mixed use property was not entitled to summary judgment upon his testimony that he regularly cleared snow from the sidewalk in front of his building during the winter months but had no memory of his snow removal efforts during the month of the accident which was insufficient to show lack of actual or constructive notice and that defendant did not create the condition. Kabir v Budhu


Med Mal   Wrongful Death  

Second Deptartment

Defendants were entitled to summary judgment dismissing stepchild’s claim for wrongful death since wrongful death statute, EPTL §5-4.1, only authorizes claims by distributees and a stepchild is not a distributee. Since wrongful death statute is in derogation with common-law it must be strictly construed. Martel v Southampton Hosp.


Notice of Claim   NYC   Motion to Dismiss   Amend Complaint  

Second Deptartment

In action to recover for injuries when plaintiff fell as the desk chair he was sitting on broke while attending LaGuardia Community College, New York City was entitled to summary judgment since, as conceded by the plaintiff, it was not a proper party. The proper party would be CUNY. Plaintiff did not serve a Notice of Claim on CUNY nor move within the statute of limitations to serve a late Notice of Claim on CUNY. Plaintiff’s motion to amend the complaint to include CUNY as a defendant was properly denied as the statute of limitations had already passed and no Notice of Claim had been served on CUNY. West v City of New York

Comment: It happens all too often that plaintiff’s mistakenly name NYC because CUNY refers to “City University of New York” whereas all CUNY schools are State schools.


MVA   Rear End   Nonnegligent Explanation  

First

Plaintiff entitled to summary judgment on proof that defendants’ vehicle rear ended the car in which they were passengers. Defendant’s claim that car plaintiffs were in stopped suddenly in an intersection does not provide a nonnegligent explanation sufficient to defeat summary judgment. Alvarez v Bryant


Med Mal   Renew  

Second Deptartment

Plaintiff’s motion to renew its opposition to a defendant’s prior cross motion for summary judgment which was granted was properly denied since plaintiff failed to show reasonable justification for failing to present the facts on the prior motion and that consideration of the new facts would have produced a different result. Whynn v Crapotta


False Arrest   Malicious Prosecution   1983 Action  

Second Deptartment

Defendant, county and two police officers, were not entitled to summary judgment on false arrest claims because they failed to eliminate triable issues of fact regarding probable cause for the plaintiff’s arrest. The same would be true for the police officers’ motion to dismiss the 1983 claims. Defendants, however, were entitled to summary judgment on the malicious prosecution claim because the underlying criminal action was not terminated in favor of the plaintiff. It was terminated for a facial insufficiency of the complaint and not on the merits. Semmig v Charlack


Premises Liab   Dogbite  

Second Deptartment

Defendant entitled to summary judgment on common law claim for negligence as New York does not recognize a negligence cause of action for domestic animal cases. Defendant landlord made out a prima facie entitlement to summary judgment on strict liability claims through deposition testimony showing that he did not have knowledge, nor should he have had knowledge of the dog’s vicious propensities, but plaintiff raised a triable issue of fact in opposition regarding the dog’s vicious propensity and whether the landlord knew or should have known of them. Kim v Hong


Asbestos   Burden of Proof  

First

Lower court applied the proper standard on summary judgment by denying the defendant’s motion which relied solely on perceived gaps in plaintiff’s proofs rather than evidence showing failure of the claim. Ricci v A.O. Smith Water Prods. Co.

IF YOU MUST READ
(1 summaries)

Fraud   Pain/Suffering  

Second Deptartment

Defendant entitled to summary judgment in fraud action where only damages claimed by the plaintiff were pain, suffering, and mental anguish. In a fraud action, plaintiff must show that she sustained actual pecuniary loss from the alleged fraud. Williams v Mann

About Matt McMahon

Civil trials and appeals since 1984
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