Med Mal Motion to Dismiss CPLR § 3126 Willful/Contumacious
Defendants’ CPLR §3126 motions to dismiss for plaintiff’s repeated failure to fully comply with discovery granted. Plaintiff’s conclusory claim to have complied with all discovery rejected as some responses were late, in improper form, and missing items and EBT’s not completed. Failure to comply after several motions, good-faith affidavits, stipulations, and orders was proof of willfulness. Ruiz v Selzer
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Premises Liab Slip/Trip 90 Day Notice Vacate Default Reasonable Excuse Meritorious Action
Plaintiff’s motion to vacate default in filing Note of Issue within time set in certification order with effect of CPLR §3216 90-day notice as it warned failure to file Note of Issue could result in dismissal, and vacate sua sponte order dismissing the case granted as to owners of parking lot where plaintiff tripped and fell on proof of a reasonable excuse for delay in filing based on the law office failure and a meritorious action. Motions denied as to tenant where plaintiff failed to show a meritorious action against them. Colucci v Gardiners Props.
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Discovery Note of Issue Untimely
Defendant’s motion for further trial authorizations denied where it failed to show unusual or unanticipated circumstances after Note of Issue requiring further pretrial discovery and any outstanding necessary discovery was due to defendant’s own inaction. Trial with special preference should move forward without delay. Jenkins v Riverbay Corp.
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Premises Liab Bifurcation Set Aside Verdict
Plaintiff’s motion to set aside defense liability verdict denied on claim that trail should have been unified where plaintiff failed to show injuries were probative on question of liability. Interested witness charge for plaintiff’s employer, store tenant where ceiling collapsed on plaintiff, and coworkers providently denied without evidence they were involved in the negligence or had any interest in the case outcome. Plaintiff’s failure to request jury be polled or raise issue before jury dismissed failed to preserve issue. Rueda v Elmhurst Woodside, LLC
Comment: The Court reiterated that bifurcation, while encouraged, is not an absolute right.
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Set Aside Verdict Appealable Order
Trial court’s grant of motion to set aside defense verdict in summary jury trial (SJT) as inconsistent where jury found defendant’s negligence but not cause of accident, found defendant 49% at fault, and awarded no damages reversed as it ‘exceeded the boundaries of the parties’ agreement by setting aside the verdict.’ Conio v Talarico
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MVA Reckless Court of Claims
DOT granted summary judgment where driver looking for deer carcass went into bike lane at 30-35 mph without seeing plaintiff and sideswiping his moped which the court found negligent but which did not rise to reckless under VTL § 1103(b) as required for state vehicles “actively engaged in work on a highway” as driver did not act “in conscious disregard of a known or obvious risk that was so great as to make it highly probably that harm would follow.” Rascelles v State of New York
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False Arrest Malicious Prosecution 1983 Action Amend Complaint Statute of Limitations NYC
NYC’s motion to dismiss granted and plaintiff’s motion to amend the Complaint to assert claims against the police officer individually denied where the federal false arrest and malicious prosecution claims for time-barred when plaintiff moved to amend and not subject to the relation back theory as NYC has no vicarious liability for federal false arrest and malicious prosecution claims and is, therefore, not united in interest with police officers. The court disagreed with a prior federal District Court decision to the contrary. Leave to amend to further particularize the federal claims against NYC denied where they contained only general legal conclusions without factual allegations sufficient to survive a motion for summary judgment. Powell v City of New York
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Med Mal Accepted Practice Causation Expert Aff Conclusory Speculation
Anesthesiologist and employer granted summary judgment of claim anesthesiologist incorrectly placed catheter during epidural for childbirth, causing drop foot, on expert’s detailed opinion of no departure and no causation supported by record. Plaintiff’s expert failed to raise issue in opposition by conclusory and speculative opinions regarding placement of the catheter that relied on facts not in the record. Herrera v Sanroman
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Labor Law §200 Open/Obvious Inherently Dangerous Expert Aff Untimely
Defendants granted summary judgment on Labor Law §200 and negligence claims where photographs and testimony established handrail plaintiff’s lanyard got caught on, causing her to fall, was open and obvious and not inherently dangerous. Expert established it was prefabricated component that conformed to industry custom and practice and not a hazardous projection under OSHA. Codefendant’s motion for leave to cross-move for summary judgment after time expired providently granted, and summary judgment granted, on showing of good cause for delay. Mikenshina v Tishman Constr. Corp.
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Med Mal Notice of Claim Statute of Limitations Continuous Treatement
Plaintiff failed to show mammogram performed 3-months before plaintiff’s decedent returned to hospital with tender mass in her breast was part of a continuous treatment for the same condition resulting in it being time-barred for failing to file a Notice of Claim within 90-days of the mammogram. The remainder of plaintiff’s Complaint was reinstated. Ortiz v New York City Health & Hosps. Corp.
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Med Mal Accepted Practice Causation Vicarious Liab Expert Aff
Doctors and hospitals granted summary judgment on respective experts’ opinion of no departures from accepted practice and no causation where epidural abscess resulted in quadriplegia, respiratory failure, and death. Hospital could not be vicariously liable for doctors who were granted summary judgment as there is no primary liability to impute. Plaintiff’s experts failed to raise issues of fact with opinions that were speculative, conclusory, and not supported by the record.
Health center denied summary judgment of malpractice claims by nonphysician staff where it did not submit admissible evidence that nonphysician staff exercised no independent medical judgment in treating decedent’s bed sores but granted summary judgment of claims regarding residents on proof of no deviation from accepted practice or cause of decedent’s injuries. Longhi v Lewit
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MVA There to be Seen
Conflict in record showing question of whether plaintiff’s car heeded stop sign before slowly entering intersection before defendant’s vehicle which did not have a stop sign raised issues of whether defendant maintained a proper lookout before colliding with plaintiff’s vehicle. Barahona v Perez
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Premises Liab Assumption of Risk
Homeowners denied summary judgment on assumption of risk where 14 year old injured using their hover board in their driveway without helmet and elbow/knee pads. Assumption of risk limited to sporting events, sponsored athletic/recreative activities, or athletic and recreational pursuits at designated venues and did not apply. Scally v J.B.
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Premises Liab Slip/Trip Stairs Last Inspection
Failing to prove when steps plaintiff slipped on were last inspected/cleaned, defendant did not make out prima facie entitled to summary judgment. Proof of regular cleaning schedule is insufficient to show lack of constructive notice and fact stairs were to be cleaned that day, and plaintiff’s observation of debris at time he fell, proved it had not been cleaned. White v MP 40 Realty Mgt. LLC
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Premises Liab Slip/Trip § 7-210 Duty
Abutting landowners granted summary judgment on proof plaintiff tripped on curb, not sidewalk and landowners are not responsible for curbs under administrative code §7-210. Fact that landowners may have removed debris from curb did not create a duty without proof they made condition worse. Brown v New York City Dept. of Transp.
Comment: The court noted that abutting landowners are responsible for the intersection quadrant for corner property but not the curb.
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False Arrest False Imprisonment Malicious Prosecution Notice of Claim Probable Cause Renew Reasonable Excuse NYC
False arrest and false imprisonment claims dismissed for failure to serve a Notice of Claim within 90-days of plaintiff’s release on bail. Malicious prosecution claim dismissed where grand jury indictment created presumption of probable cause and plaintiff did not rebut presumption with proof it was obtained by fraud, perjury, suppression of evidence, or police misconduct. Motion to renew denied where plaintiff failed to show reasonable justification for not providing transcript on original motion and it would not have changed the result. Makropoulos v City of New York
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Motion to Dismiss Personal Juridiction Service Traverse Hearing
Defendants’ detailed affidavits rebutted process server’s affidavit requiring hearing at which plaintiffs bare burden of proof of showing good service which they failed to do. Turner v Sideris
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Negligent Supervision Assault Battery Vicious Propensity Respondeat Superior
Employer granted summary judgment of negligent supervision claim for work as it had no notice of violent propensities and prior to assault worker was considered a model employee. Employer is not responsible under respondeat superior where assault and battery was not part of employees job as an maintenance worker or in furtherance of the employer’s business. Jiraud v Barnes & Noble, Inc.
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Discovery Privilege
Plaintiff’s motion to compel defendant to produce nonparty medical records from nonparty treatment center denied and defendants’ motion for protective order granted where plaintiff did not show waiver of privilege even if records were relevant. Napoli v Bern
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