October 19, 2021 | Vol. 283

(4 summaries)

Malpractice   Venue   Admission  

Court of Appeals
the Court found 4/3 Bronx venue improper as not 1-defendant-doctor’s doctor’s primary place of business based only on his own affidavit specifying 75%/25% of his work was in Westchester/Bronx. Listing Bronx address with DOE did not establish it as doctor’s primary place of business as he was not required to identify primary place of business to DOE. Lividini v Goldstein    

Comment: First Department’s decision was reported in Vol. 173.

Malpractice   Arbitration   Prejudice   Waiver   Discovery  

First Department
NJ hospital’s motion to compel arbitration/mediation granted on signed arbitration agreement. Plaintiff’s equivocal statements she did “not believe” she signed arbitration agreement and signature did “not appear” to be hers were insufficient to raise an issue. Claim signature page may have been slipped into other documents was belied by fact she signed admission agreement 12-days before arbitration agreement and acknowledged on the form she had opportunity to consult with a representative. There was no prejudice in having to litigate against codefendants in various forums as the acts occurred at different times and were not so intertwined as to yield conflicting results.

Hospital did not waive arbitration agreement by participating in litigation as it contested only personal jurisdiction and raised arbitration as an affirmative defense. Neesemann v Mt. Sinai West    

Products Liab   MVA   Design Defect   Experts   Conclusory   Hearsay   Warnings   Causation  

First Department
Plaintiffs’ expert’s opinion Ford van that overturned after rear tire blew was unsafe and prone to rollovers failed to raise issue as testing he purportedly performed was described only in general statements and NHSTA reports concerning rollover properties of 15-passenger vans was inadmissible hearsay and pertained to a generic van. Defendant rebutted the reports showing plaintiffs’ van behaved differently than the generic van which plaintiff’s expert failed to address.

Failure to warn and foreseeable misuse inapplicable without a dangerous defect or proof of causation by misuse and evidence showed plaintiff’s decedent was aware tires were bad and needed replacement. Richards v Ford Motor Co.    

Assault   Police   Discovery   Renew   Reargument   NYC  

First Department
Assault; police; discovery; renew; reargue; in camera; NYC 1st, affd, pltf Police officer’s motion to compel disclosure of NYPD and CCRB personnel and disciplinary records of fellow officer who shot him when shooting at charging dog granted without in camera review on renewal/reargument where Civil Rights Act §50-a, protecting police and fire personnel files from disclosure without court order after in camera review, had been repealed shortly after original motion denied the disclosure. Junmei Zhang v City of New York    

Comment: Civil Rights Act §50-a was repealed on June 12, 2020, in response to the George Floyd murder.
(16 summaries)

MVA   Set Aside Verdict   Pain/Suffering   Materially Deviates   Admissibility  

First Department
Plaintiff’s motion to set aside verdict awarding $5000/$0 past/future pain/suffering granted to the extent of increasing past pain/suffering award to $250,000 where MRI films/reports showed 1-herniated and 2-bulging discs. MRI films/reports properly admitted as part of plaintiff’s treating doctor’s file and doctor’s opinion proper where based on films/reports as well as his own examination and tests. Jury could find plaintiff did not sustain fracture to ankle and additur was based on reasonable compensation for spinal injuries alone. Madia v Garcia    

Comment: Lower court additur to $250,000 was based on both spinal and ankle injuries.

Premises Liab   § 7-210   Homeowner Exception   Trivial   Prior Written Notice   Admissibility   NYC  

Second Department
Plaintiff who tripped on sidewalk raised from growing tree roots failed to meet burden for summary judgment on claim NYC was liable under administrative code provisions requiring it to maintain trees and prohibiting anyone else from cutting trees as other provisions permitted abutting landowners to request permission to repair sidewalk and cut or trim trees, leaving NYC protected by administrative code §7-210. Plaintiff failed to submit admissible proof defaulting-defendant LLC occupied premises and used it exclusively for residential purposes or that defect was actionable where he did not measure the height differential and photographs were not properly authenticated. Plaintiff failed to show NYC received prior written notice of the defect. Gallis v 23-21 33 Rd., LLC    

Labor Law §240   Labor Law §241   Labor Law §200   Falling Object   Industrial Code   Causation  

Second Department
Laborer struck by bricks thrown down a chute that ricocheted as he cleared debris outside chute granted summary judgment on Labor Law §240(1) as chute did not provide adequate protection from falling debris and there were no other safety devices. Defendants failed to show industrial codes relied on by plaintiff for Labor Law §241(6) were not applicable or not a cause of accident. Building owner granted summary judgment of Labor Law §200 claim. Rivas-Pichardo v 292 Fifth Ave. Holdings, LLC    

Premises Liab   Notice   Res Ipsa Loquitor   Building Code   Causation   Experts  

First Department
Photos and witness testimony of visible damage to concrete sidewalk slab for months/years before it collapsed left issue of whether defendant had constructive notice of dangerous condition and conflicting expert opinions of whether slab violated building code and deterioration caused to be dangerous required denial of summary judgment.

Defendant failed to show res ipsa loquitor inapplicable as sidewalks do not ordinarily collapse absent negligence, it failed to show it lacked exclusive control over maintenance/repair of slab, or that plaintiff caused the accident. Plaintiff’s failure to plead res ipsa loquitor was not fatal to the theory. Williams v Forward Realty Corp.    

Governmental Function   Police   Special Duty   Causation  

Second Department
Town and police officers who arrested driver for marijuana possession then had teenage passenger with limited license drive with 2-passengers denied summary judgment where vehicle slid off road injuring plaintiff-passenger without showing officers didn’t have reason to know limited-licensed driver would be violating law, increasing risk to passengers, who were lulled into a sense of security, and that officers’ action were not a cause of accident. Town police department granted summary judgment as it was merely a department of the town which was the proper party. Stevens v Town of E. Fishkill Police Dept.    

Premises Liab   Elevator   Duty   Create Condition   Notice   Experts   Speculation   Conclusory   Res Ipsa Loquitor   Raised For First Time  

Second Department
Plaintiff’s elevator expert raised issue where, agreeing with defendant’s expert that sudden elevator drop was caused when interlock got clipped while elevator was moving, disagreed that maintenance company could not have discovered problem through proper maintenance and inspection and that external factors such as debris could have clipped the interlock. Plaintiff also raised issue on res ipsa loquitor.

Building owner granted summary judgment on proof it did not create or have notice of condition and plaintiff’s theory owner delayed responding to alarm was new theory raised for first time in opposition. Syrnik v Board of Mgrs. of the Leighton House Condominium    

MVA   Emergency Doctrine   Comparative Fault   Nonnegligent Explanation  

First Department
Plaintiff’s motion for summary judgment dismissing affirmative defenses of emergency doctrine and comparative fault denied where defendant-driver who rear-ended plaintiff’s disabled car provided potential non-negligent explanation of not being able to see the disabled car, stopped partially in left shoulder/lane, until van in front of him changed lanes leaving inadequate time to see and stop. Claim of feigned issue rejected where defendant-driver’s statement in police report could potentially be reconciled with his affidavit. Issues remained of whether defendant-driver created the emergency situation, whether he had sufficient time to see and stop, and whether plaintiff’s warning lights were on or if he had available warning devices such as flares, and whether plaintiff could’ve pulled the car to the right shoulder or slower lanes. Romero v Valdez    

MVA   Pedestrian   Turning Vehicle   Emergency Doctrine   Assumption of Risk   Hearsay  

First Department
Defendant’s version of accident, that he looked and saw no one in crosswalk before slowly making left turn and only saw plaintiff in crosswalk after he felt impact, contradicting plaintiff’s claim she was struck while crossing in crosswalk with light raised issue on liability but affirmative defenses of emergency doctrine and assumption of risk dismissed as defendant did not react to an emergency and assumption of risk is inapplicable where pedestrian struck in crosswalk. Description of accident in police report prepared by office who did not witness accident was inadmissible hearsay. De Diaz v Klausner    

Motion to Dismiss   Police   Notice of Claim   Amend Complaint   Workers Comp Defense   GML §205-a-e   Statute of Limitations  

Second Department
Motion to dismiss by village and police officers where plaintiff-police officer was struck by taser as 1-defendant-sergeant demonstrated how to use it to other defendant-sergeant granted as barred by workers comp exclusivity clause. Plaintiff’s petition to serve late Notice of Claim and/or amend original Complaint to include claims of intentional torts denied as patently devoid of merit where barred by workers comp exclusivity which is not abrogated by GML §205-e and 1-year statute of limitations for intentional torts. Walsh v Knudsen    

Pothole Law   Prior Written Notice   Create Condition   NYC  

Second Department
NYC met burden for summary judgment on proof record search showed it did not receive prior written notice of hole in roadway plaintiff tripped on and it did not create an immediately dangerous condition, an exception to the prior written notice requirement. Plaintiff failed to raise issue on prior written notice by proof NYC made repairs in roadway 2-years before accident without proof it created an immediately dangerous condition. Caballero v City of New York    

Premises Liab   Duty   Assumption of Risk  

First Department
MSG granted summary judgment where plaintiff was hit by puck deflected over plexiglass barrier in front of plaintiff as the barrier in an area where pucks do not usually enter the stand, and multiple warnings of possibility of pucks entering stands, met MSG’s limited duty. Court rejected plaintiff’s attempt to make defendants an insurer of spectators’ safety. Cantor v Madison Sq. Garden Co.    

Premises Liab   Open/Obvious   Prejudice  

First Department
Supermarket failed to meet burden for summary judgment of claim legs attached to lowest shelf of display case protruded into aisle creating a tripping hazard as depositions, photographs, and surveillance video submitted showed plaintiff’s leg got caught by one of the legs and defendants failed to show it was open/obvious to a person “making reasonable use of his or her senses.” Claim was sufficiently pleaded in the Complaint and BP and defendants did not claim prejudice. Moss v Westside Supermarket LLC    

Premises Liab   Unsigned Transcript   Admissibility  

First Department
Unsigned transcript of one of moving defendant’s partners admissible where it submitted the transcript which was certified by the court reporter and plaintiff did not challenge its accuracy. Transcript showed moving-defendant was only a shareholder of defendant-tenant not personally responsible for maintenance of the premises and there were no allegations to support piercing the corporate veil. Cabrera v Liberty El. Co., Inc.    

Premises Liab   Stairs   Create Condition   Notice   Building Code   Experts   Unknown Cause   Feigned Issue  

First Department
Church granted summary judgment on testimony of no prior complaints of stairs leading to control booth and that stairs were not in a dangerous condition. Plaintiff’s expert’s opinion that fall was caused by worn carpet speculative where plaintiff could not identify part of carpet that caused him to fall and plaintiff’s claim his foot got caught on bunched up carpet was feigned issue contradicting his prior testimony that he did not know what caused him to fall. Donkor v First Ghana Seventh-Day Adventist Church    

Construction Liab.   Duty   Espinal   Experts  

Second Department
Conflicting expert opinions of whether contractor working on water main/sewer in street caused portion of brownstone façade to loosen and fall on plaintiff required denial of contractor’s motion for summary judgment. Separate contractor hired by building owner to fix broken pipe connected to sewer line failed to meet burden for summary judgment without proof it did not launch an instrumentality of harm where it did not submit an expert opinion that vibrations from its work did not cause façade to become loose. Payne v Murray    

False Arrest   Assault   Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice   NYC  

First Department
Petition for leave to serve late Notice of Claim providently denied where plaintiff failed to explain delay in seeking leave until more than 1-year after criminal charges were dropped, show that NYC had actual notice within 90-days or reasonable time thereafter, or meet burden of showing NYC was not substantially prejudiced by delay. Matter of Singleton v City of New York    

(0 summaries)

About Matt McMahon

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