October 20, 2020 | Vol. 232

MUST READS
(5 summaries)
NOTEWORTHY IF YOU MUST READ

Med Mal   Statute of Limitations  

Second Department

Plaintiff’s claim for misdiagnosis of endometrial cancer that became time barred in March of 2014 dismissed on statute of limitations where it could not be revived by new cancer discovery rule in 2018 amendment to CPLR 214-a applicable to malpractice occurring on or after 7/31/15 or the revival provision for claims time barred after 3/31/17. McKinnon v North Shore-Long Is. Jewish Health Sys. Labs.


Premises Liab   Out of Possession   Duty  

Second Department

Defendant found to be out-of-possession landowner with no duty to repair based on owner’s and tenant’s testimony of an oral at will lease, requiring tenant to make repairs, with no set term, and no right of reentry. At will lease not void under statute of frauds and plaintiff failed to raise issue in opposition. Sawicka v Schwimmer


Premises Liab   Slip/Trip   Stairs   Wet Floor   Untimely   Discovery   Recurring Condition  

First Department

Homeless shelter’s employees’ affidavits stating they cleaned the interior stairs twice a day and did so before plaintiff’s accident and saw no debris could not be considered since these witnesses were not identified by defendant until the summary judgment motion was made despite prior request for all witnesses. If considered, plaintiff still raised issue of fact by wife’s and nonparty witnesses’ testimony that the milky substance from defendant’s employees dragging garbage bags down the stairs was constantly present and routinely left unaddressed. Verges v Concourse Residential Hotel, Inc.


MVA   Question of Fact   Note of Issue   Strike Answer   Untimely  

First Department

Defendants’ motion and plaintiff’s cross-motion for summary judgment denied on different versions of how fast defendant was driving and whether infant-plaintiff was visible in the roadway. Plaintiff’s motion to strike defendants’ Answer denied as waived where plaintiff did not move to strike until more than 30-days Note of Issue without reserving their rights or objections in the Note of Issue. Paulino v Xing Wu Chen


Premises Liab   Assumption of Risk  

Second Department

Association that sponsored sheaf-tossing competition, where a burlap bag stuffed with hay or grass is tossed over an increasingly high bar using a pitchfork, granted summary judgment of bystander’s claim she was struck by tossed sheaf as bystanders who place themselves in proximity to activity also assume the inherent risks. McKay v Rockland Gaelic Athletic Assn., Inc.

NOTEWORTHY
(19 summaries)
MUST READS IF YOU MUST READ

Med Mal   Motion to Dismiss   CPLR § 3126   Willful/Contumacious  

First Department

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


Premises Liab   Slip/Trip   90 Day Notice   Vacate Default   Reasonable Excuse   Meritorious Action  

Second Department

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.


Discovery   Note of Issue   Untimely  

First Department

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.


Premises Liab   Bifurcation   Set Aside Verdict  

Second Department

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.


Set Aside Verdict   Appealable Order  

Second Department

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


MVA   Reckless   Court of Claims  

Second Department

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


False Arrest   Malicious Prosecution   1983 Action   Amend Complaint   Statute of Limitations   NYC  

Second Department

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


Med Mal   Accepted Practice   Causation   Expert Aff   Conclusory   Speculation  

Second Department

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


Labor Law §200   Open/Obvious   Inherently Dangerous   Expert Aff   Untimely  

First Department

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.


Med Mal   Notice of Claim   Statute of Limitations   Continuous Treatement  

Second Department

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.


Med Mal   Accepted Practice   Causation   Vicarious Liab   Expert Aff  

Second Department

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


MVA   There to be Seen  

First Department

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


Premises Liab   Assumption of Risk  

Second Department

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.


Premises Liab   Slip/Trip   Stairs   Last Inspection  

First Department

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


Premises Liab   Slip/Trip   § 7-210   Duty  

First Department

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.


False Arrest   False Imprisonment   Malicious Prosecution   Notice of Claim   Probable Cause   Renew   Reasonable Excuse   NYC  

Second Department

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


Motion to Dismiss   Personal Juridiction   Service   Traverse Hearing  

Second Department

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


Negligent Supervision   Assault   Battery   Vicious Propensity   Respondeat Superior  

First Department

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.


Discovery   Privilege  

First Department

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

IF YOU MUST READ
(2 summaries)
MUST READS NOTEWORTHY

Premises Liab   Sidewalk   Indemnity  

First Department

Commercial tenant granted summary judgment dismissing landlord’s cross-claim for contractual indemnification where provision in lease rider required landlord, not tenant, to make structural repairs and, by its terms, the conflict between rider and body of lease had to be resolved in favor of the rider. Negron v Marco Realty Assoc., L.P.


Serious Injury   BP  

Second Department

Defendants’ motion for summary judgment denied where they failed to meet burden on permanent consequential and significant limitation categories alleged in the BP. The Court does not give the details of the proofs. Mitacchione v Ibarra-Alonso

About Matt McMahon

Civil trials and appeals since 1984
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