October 18, 2022 | Vol. 335

(4 summaries)

MVA   IME/DME   Discovery   Privilege  

Second Department
Plaintiffs’ motion to quash subpoenas duces tecum and ad testificandum for IME watchdog who accompanied plaintiff to medical and vocational rehabilitation defense exams providently granted. While not subject to attorney work product privilege of CPLR §3101(c) because the material was not prepared by an attorney, they were protected by material prepared in anticipation of litigation/trial privilege of CPLR §3101(d)(2) and defendant failed to show “substantial need of the materials in the preparation of the case and [that she] is unable without undue hardship to obtain the substantial equivalent of the materials by other means.” Bent-Anderson v Singh    

Default Judgment   Motion to Dismiss   Personal Juridiction   Service  

First Department
Plaintiff’s motion for default judgment denied and defendants’ motion to dismiss for lack of personal jurisdiction granted on proof service of Summons and Complaint were maliciously made on Jewish Sabbath in violation of GBL §13 and service on corporation by serving individual defendant on Sabbath also violated §13. Cieri v Halton    

Comment: GBL §11 also makes service of process on Sunday a nullity.

Discovery   Preclusion   CPLR § 3126   Reargument   Renew   Reasonable Excuse  

Second Department
Lower court providently granted conditional order of preclusion if defendant failed to provide requested post-EBT discovery by a certain date, despite fact plaintiff did not request preclusion, as the relief was ‘warranted by the facts plainly appearing on the papers on both sides,’ and granted plaintiff’s motion to preclude on proof defendant failed to provide the requested discovery. On reargument, defendant submitted a response it claimed to have provided showing it did not have the information requested, which plaintiff denied receiving, demonstrating it complied with the order and the lower court should have modified the order to preclude only evidence of items defendant did not produce.

Motion to renew opposition to plaintiff’s motions denied as the new facts would not have changed the determination and defendant offered no justification for not submitting the evidence on the prior motions. Robert v Azoulay Realty Corp.    

Malpractice   Vacate Default   Experts   Reasonable Excuse  

First Department
Plaintiff counsel’s explanation that they were unable to retain an expert to support plaintiffs’ malpractice claim on date for jury selection warranted dismissal and denial of motion to vacate default on grounds of law office failure where counsel’s efforts to obtain an expert were not inadequate and they had ample time to obtain an expert before trial. Tunell v Maynard    

(17 summaries)

MVA   Bus   Set Aside Verdict   Pain/Suffering   Materially Deviates   Intervening Cause  

First Department
Defendants’ motion to set aside verdict awarding $740,000/$315,000 past/future pain/suffering, $260,000 past lost earnings, and apportioning 80%/20% defendant/plaintiff fault denied as not against the weight of evidence where jury could find defendant’s articulated bus was not fully in lane adjacent to bus lane where plaintiff, a TLC inspector working with his emergency lights on, was struck and plaintiff reentering his vehicle as the bus passed was not so extraordinary or unforeseeable as to be a superseding cause.

Verdict did not materially deviate from reasonable compensation where plaintiff sustained a significant bimalleolar fracture requiring ORIF and subsequent surgery to remove hardware and repair tendon damage, hand lacerations, multiple hand fractures with loss of grip strength, and he could not return to work as a TLC inspector. Deguilme v New York City Tr. Auth.    

Discovery   Motion to Dismiss   CPLR § 3126   Willful/Contumacious   Waiver  

Second Department
Plaintiffs abandoned their appeal from order directing them to comply with discovery requests where they did not request that order be reversed or modified on appeal. Subsequent order striking the Complaint under CPLR §3126 for failure to comply with the earlier order providently granted where plaintiffs’ repeated failures to provide HIPAA authorizations and tax records and comply with the court’s order without adequate explanation showed a willful/contumacious pattern of conduct. Ashfaq v Ice Cream Depot Corp.    

Premises Liab   Sidewalk   Vacate Default   Reasonable Excuse   Prejudice   Meritorious Action  

First Department
Plaintiff counsel’s affirmation detailing their employee’s mistake in failing to enter status conference date in calendar system and that delay was partially caused by pandemic sufficient to establish reasonable excuse by law office failure without need for an affidavit from the employee. Defendant failed to show how it would be prejudiced by failure to show at 1 status conference and there was no pattern of delay. Plaintiff’s affidavit stating he reviewed the Complaint and found it to be true showed a potentially meritorious action. Feliciano v Los Chavales #2 Mini Mkt. Corp.    

Comment: The lower court did not explain its decision to vacate the default, but the appellate Court could make its own determination where the facts were laid out in the record on appeal.

Default Judgment   Reasonable Excuse   Prejudice   Meritorious Action  

First Department
Plaintiff failed to meet burden for default judgment without competent proof of facts establishing claim and, in any event, delay in answering caused by misbelief that defendant’s interests were being protected by carrier and confusion over which carrier insured defendant was reasonable, plaintiff failed to show any prejudice from delay, and defendant showed a potentially meritorious defense that plaintiff was injured in an area it did not own or manage and area it did own was not built at time of accident. Rector v BDG Gotham Residential, LLC    

1983 Action   False Arrest   False Imprisonment   Malicious Prosecution   Negligent Hiring   Statute of Limitations   Notice of Claim   Probable Cause   NYC  

First Department
While NY common law claims of false arrest and imprisonment accrue on release from custody, 1983 claims for false arrest and false imprisonment dismissed as untimely as they accrued when plaintiff was first held on charges and the action was brought more than 3-years later. Likewise, plaintiff’s claim of negligent hiring also accrued on date of her arrest and she neither filed a Notice of Claim within 90-days nor commenced the action within 1-year and 90-days.

Indictment raises a presumption of probable cause and plaintiff failed to plead specific facts to overcome presumption of probable cause on her malicious prosecution claim. McQueen v City of New York    

Malpractice   Accepted Practice   Experts   Speculation   Conclusory  

Second Department
Vascular surgeon, physician assistant, and hospital where failed popliteal bypass surgery was performed met burden for summary judgment on expert opinion they did not depart from accepted practice. Plaintiff’s expert agreed with moving defendants’ plan of treatment but opinions they departed from practice by not choosing a different vessel when they fount the popliteal artery was diseased, and that the bypass should have been done more distally, were conclusory and speculative where expert did not specify the vessel that should have been used. Opinion that they deviated by not verifying plaintiff had sufficient perfusion after the surgery was unsupported by the evidence. Coffey v Mansouri    

Malpractice   Accepted Practice   Respondeat Superior   Raised For First Time  

Second Department
Orthopedic surgeon’s motion for summary judgment dismissing plaintiff’s first cause of action alleging malpractice for causing a corneal abrasion during arthroscopic knee surgery granted where plaintiff agreed surgeon met burden for summary judgment and failed to submit an opposing expert opinion. Res ipsa loquitor claim first raised on appeal not considered.

Hospital granted summary judgment on proof it did not employ surgeon and plaintiff could not rely on ostensible agency theory where he was referred to defendant-surgeon by a private physician. Malefakis v Jazrawi    

Premises Liab   Dangerous Condition   Building Code   Experts  

Second Department
Church granted summary judgment dismissing claim of person who slipped and fell on drainage grate in parking lot that was wet from rain on proof drain did not violate any building code, was not defective, and was maintained in a reasonably safe condition. Fact drain gets wet from rain does not make it a dangerous condition and plaintiff’s expert’s opinion that parking lot was defectively designed did not raise an issue without citing to a violation of any building code or industry-wide code or accepted practice. Shuttleworth v Saint Margaret’s R.C. Church in Middle Vil.    

Labor Law §240   Scaffold   Renew  

First Department
Defendants’ motion to renew opposition to plaintiff’s motion for summary judgment based on testimony from plaintiff’s supervisor’s second deposition, conducted during pendency of appeal from order granting summary judgment, providently denied where defendants did not explain whey they could not elicit that testimony at the original deposition. Court reaffirmed it prior decision to uphold original order granting plaintiff partial summary judgment finding violation of Labor Law §240(1) where platform of Baker scaffold plaintiff was using fell and there was no proof he knew he was supposed to only use his employer’s scaffold reported in Vol. 256. Herrero v 2146 Nostrand Ave. Assoc., LLC    

Labor Law §240   Falling Object   Safety Devices  

First Department
Worker granted summary judgment on Labor Law §240(1) where 12′ metal beam fell 20′ from sidewalk bridge he and coworkers were dismantling on his testimony it was not part of what he was supposed to receive or catch while they dismantled the bridge, establishing he was injured from lack of safety devices to secure the beam. Defendants failed to raise an issue by affidavit stating it was not “common practice” to use safety devices to secure the beam. Linares v City of New York    

Labor Law §240   Gravity Risk   Safety Devices  

First Department
Worker granted summary judgment on Labor Law §240(1) where 4,500-6,000 lb. crane toppled off side of a 1’ ramp onto worker’s foot on proof the 3’-4’ wide ramp had no side barriers and was inadequate for safely moving the crane. Argument that supervisor negligently operated the remotely controlled crane was not a defense under §240. Correto v Onex Real Estate Partners    

Premises Liab   Snow/Ice   Notice   Recurring Condition  

Second Department
Plaintiff failed to meet burden for summary judgment for slip on ice on sidewalk/pathway as general awareness that puddles formed where plaintiff slipped and that water can turn to ice was insufficient to show constructive notice and plaintiff failed to show condition existed and was visible for sufficient time for defendant to discover and correct it or that her accident was caused by a recurring condition defendant had actual notice of. McDonnell v Our Lady of Mercy R.C. Church    

Prior Written Notice   Create Condition  

Second Department
County granted summary judgment dismissing claim of plaintiff who tripped on sidewalk curb of public road, and cross claims of abutting landowners, on uncontroverted proof it did not receive prior written notice of the defect. Plaintiff and remaining defendants failed to raise an issue of whether county affirmatively created the condition. Galardi v Town of Hempstead    

Prior Written Notice   Create Condition   Experts  

Second Department
City met burden for summary judgment on grounds it did not receive prior written notice of condition, but plaintiff’s affidavit describing large mounds of snow next to bicycle path that city had shoveled off boardwalk, and expert’s opinion that mounds melted and refroze raised issue on whether city fell within prior written notice exception that they created the condition. O’Sullivan v City of Long Beach    

Premises Liab   Open/Obvious   Inherently Dangerous  

First Department
Defendants granted summary judgment where woman fell from long temporary platform when she misjudged height of step down as condition was open/obvious and not inherently dangerous where it was bright yellow with anti-slip tape on edges and plaintiff was aware of the condition as she walked on it days before. Cardinale v Avalon W. Chelsea    

MVA   Bicycle   Comparative Fault  

Second Department
Bicyclist made out entitlement to summary judgment on his affidavit stating he was riding his motorized bicycle at 5-7mph 2’-3’ away from parked cars when defendant-driver suddenly opened his door into plaintiff’s path, but defendants raised an issue in opposition by their driver’s affidavit stating he saw nothing for 200’ down road before opening his door, door was open for 5-seconds before plaintiff struck it, and he smelled alcohol on plaintiff’s breath. Tucubal v National Express Tr. Corp.    

MVA   Discovery   CPLR § 3126   Strike Answer   Willful/Contumacious  

Second Department
Plaintiff’s second motion to strike Answer of defendants, owner and driver of one vehicle in 3-vechile MVA for driver’s failure to appear for EBT according to original conditional order striking Answer if driver did not appear within time set by court without good explanation granted to extent of again conditionally striking those defendants’ Answer if driver does not appear for EBT as per CPLR. Guardado v K.B.G. Commercial, Inc.    

(1 summaries)

Premises Liab   Sidewalk   Dangerous Condition   Create Condition  

Second Department
Defendant failed to meet burden of showing absence of dangerous condition on sidewalk where plaintiff fell or that it did not create or have notice of a dangerous condition where it submitted plaintiff’s EBT on its motion. The Court does not give the details of the proofs. Voloshin v Trump Vil. Section 3, Inc.    

About Matt McMahon

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