| MUST READS (4 summaries) | |||
| NOTEWORTHY | IF YOU MUST READ | ||
 Plaintiff’s motion to restore action and substitute herself as administrator, made within 1-year of order from different judge dismissing action without prejudice to restore within 1-year, denied and hospital’s motion to dismiss on statute of limitations granted as original order was not law of the case and original judge did not have authority to extend the CPLR §205(a) 6-month period to commence a new action. Gomez v Mount Sinai Hosp. ✉ |
| Defendants failed to show statute of limitations barred malpractice claim as the continuous treatment doctrine applied during the 34-month gap between knee replacement postop visit and plaintiff’s next complaint of pain where she did not see another orthopedic during that period and the defendant-surgeon determined the knee needed revision surgery. Summary judgment dismissing claim of departure for using minimally invasive surgery on both knees granted where raised for the first time in opposition and not included in the Complaint or BP or addressed at EBT. Informed consent claim dismissed where plaintiff’s expert conceded defendant-surgeon warned of the risks of knee replacement and claim he should have warned of risk of minimally invasive surgery was raised for the first time in opposition. Karanevich-Dono v Haas ✉ |
 Highway superintendent who entered intersection without looking and struck plaintiff’s vehicle while driving back to his office after inspecting snow conditions not entitled to qualified immunity for ordinary negligence under VTL §1103(b) as “traveling between work sites and not actively performing any protected task on the road itself “ is not being actually engaged in highway work. Orellana v Town of Carmel ✉ |
| Motion to vacate default judgment against police officers providently granted where their history of defaults and delays could be explained by law office failure, the preference to decide actions on the merits, and potential prejudice to the officers and the lower court’s grant of monetary sanctions and a special trial preference mitigated any prejudice to plaintiff. Argument that it was a successive motion not considered where raised for the first time on appeal. Walton v Perez ✉ |
| NOTEWORTHY (17 summaries) | |||
| MUST READS | IF YOU MUST READ | ||
| Plaintiff’s motion for summary judgment for trip and fall within 12” of sidewalk grate she claimed defendants owned based exclusively on a deemed admission by not responding to a notice to admit sent by email at the beginning of Covid and never addressed in subsequent discovery conferences denied as the failure to respond was inadvertent and the lower court took judicial notice of defendants’ witness’s testimony it was a utility company grate not owned by NYCTA and plaintiff subsequently commenced suit against the abutting owner and utility company and could not claim prejudice. Minahan v New York City Tr. Auth. ✉ |
 Plaintiff motion for a default judgment denied where he submitted proof of service on the secretary of state as required by VTL §253 but failed to show required service on the defendant by certified or registered mail, return receipt requested. Dalrymple v JBJ Auto Trading, LLC ✉ |
| Defendant’s motion to vacate default judgment denied under CPLR §317 where president’s affidavit with a general claim of lack of knowledge of the defect was insufficient to show a meritorious defense and under CPLR §5015(a) as not updating address with secretary of state for 19-years was not reasonable excuse. CPLR §3012(d) not applicable. Hasnat v ADP Realty Ltd. ✉ |
| Defendant’s motion to dismiss Child Victims Act claim for sexual abuse at a summer camp in Pennsylvania denied where plaintiff alleged he was a NY resident at the time of the abuse, defendant offered no contrary proof, and a Child Victims Act claim of a NY resident is not an extraterritorial application where the abuse takes place outside the state. Huebner v Goodman ✉ |
| Worker who fell from ladder when struck by 20-30 beams that fell from ceiling above granted summary judgment on Labor Law §240(1) but denied summary judgment on Labor Law §241(6) as industrial code §23-1.7(a)(1)(overhead planking protection) did not apply and questions of whether the structure supporting the concrete forms was complete and erected as designed remained on §23-2.2(a), (b) and (c)(1). Contractual indemnity claims of owner and GC barred by anti-subrogation rule where they were additional insureds on the CGL policy but available if liability exceeds that policy. Urquia v Deegan 135 Realty LLC ✉ |
| Steam fitter met burden for summary judgment on Labor Law §240(1) by testimony, coworker affidavit, and employee claim form showing he was struck when a shield affixing a section of pipe broke and fell on him, causing him to fall from an elevation. Plaintiff was not required to show the object was being hoisted or secured and it could not be a permanent part of the structure since it was just installed. Molina v 114 Fifth Ave. Assoc., LLC ✉ |
| Defendant-company whose assets and liabilities were purchased by another company failed to meet its burden for dismissal on purchasing company officer’s affidavit which is not documentary evidence for a motion to dismiss and did not attach the purchase agreement to show the scope of the acquisition. Plaintiff’s testimony and photos showing moving-defendant’s advertisement and contact information on the side of the truck that collided with her vehicle and defendant’s admission it was a viable company raised issued of fact. Defendant-truck-lessor failed to show the Graves Amendment applied where it submitted separate leases with moving-defendant and the purchasing company but did not identify if they included the truck involved or if the accident happened within the term of the leases. Plaintiff’s negligent maintenance theory was supported by factual allegations sufficient to deny lessor summary judgment. Kurtaj v Borax Paper Prods., Inc. ✉ |
| NYCTA failed to eliminate all issues of whether the vertical post plaintiff tripped on was open/obvious, not inherently dangerous, and not “an unreasonably dangerous trap for the unwary” where the photographs they submitted showed that it would not be visible until he stepped down onto the landing to make a right hand turn. Motion to amend the BP to include new theories of liability denied where the allegations were not in the Notice of Claim and may not be added after the 1-year and 90-day statute of limitations. Basturan v New York City Tr. Auth. ✉ |
| Building owner granted summary judgment dismissing police officer’s claim for fall down stairs from being pushed while responding to a 911 call as his description that he fell due to the slippery, old, marbly surface without any loose/unstable stairs, debris, or slippery substances was insufficient to establish an actionable defect or statutory violation under GML §205-e. Plaintiff’s expert failed to raise an issue by speculative deviations from industry standards where he did not inspect the stairs and relied solely on undated, unauthenticated photos whereas defendant’s expert inspected the stairs and measured the coefficient of friction. Criminal act of pushing officer down the stairs was a superseding cause. Coyle v Dos-Santos ✉ |
| Abutting landowner failed to meet burden for summary judgment dismissing plaintiff’s claim for trip and fall over oil hose placed across sidewalk by a third-party contractor where questions remained of whether its super saw the hose before the fall with sufficient time to correct the condition and whether the hose was open/obvious and not inherently dangerous where it was partially obscured in shade. Owner could not pass its nondelegable administrative code §7-210 duty to maintain the sidewalk onto the 3rd-party-contractor. Blackwood v E.S.F. Transp., Inc. ✉ |
| Hospital failed to meet burden for summary judgment where it submitted plaintiff’s testimony that a nurse ran from his room when they heard gunshots, knocking over a pitcher of water and leaving the door open casing him to slip on the water when he went to close the door to protect himself, raising questions of whether the hospital created or had actual or constructive notice of the condition. Plaintiff identified the cause of his fall without speculation. Second motion for summary judgment did not violate 1-motion rule, and was not barred by law of the case, where original motion was denied as premature, even if the order did not specifically state it was without prejudice to make a subsequent motion. Malaspina v Westchester Med. Ctr. Health Care Corp. ✉ |
| Plaintiff failed to meet burden for a protective order from the demands of her former law firm in an underlying personal injury case and was directed to provide the requested medical authorizations and collateral source information where her legal malpractice claims included failure to timely commence collection proceedings against a named defendant who defaulted and failure to name an additional defendant with an interest in the property the records were relevant to whether the unnamed defendant had any defenses to the amount of damages and whether it would have defaulted. Payne v Rosenberg, Minc, Falkoff & Wolff, LLP ✉ |
| Plaintiff’s expert’s conclusory opinion that her preexisting lumbar and knee injuries were aggravated by the accident was speculative and failed to raise an issue where he did not review the previous medical records. Finding of limited cervical ROM by plaintiff’s doctors raised issues on serious injury and causation where there was no indication of degeneration, prior injury, or prior complaints to her cervical spine. Gap in treatment insufficient to show no serious injury where she treated for 2-years, question of permanency remained, and plaintiff could show serious injury for nonpermanent “significant” limitations. Burgos v Diamond Bricks Inc. ✉ |
| Synagogue’s motion to dismiss Child Victims Act claim of sexual abuse by its youth directed on due process denied as the CVA’s revival of civil claims “was a reasonable response to remedy the injustice to child sexual assault survivors caused by application of the relevant statute of limitations. The Complaint adequately pled causes of action for negligence, negligent hiring, retention, and supervision and it would be premature to find the allegation of willful/wanton conduct for punitive damages at the early stage of the litigation. Spira v National Council of Young Israel ✉ |
| NYCTA granted summary judgment dismissing plaintiff claim for collision between his truck and bus based on defendant-driver’s testimony and video showing the bus stayed in its lane and plaintiff’s truck struck the side of the bus as it moved out of the bus lane where it was parked. Plaintiffs testimony was contradictory and contradicted by the video. Kanuteh v New York City Tr. Auth. ✉ |
| Building owners granted summary judgment dismissing negligent hiring, retention, and supervision claims where there was no proof they had knowledge their super had a propensity for violence but denied summary judgment on respondeat superior where super’s testimony raised issues of whether he was acting within the scope of his employment during the altercation. Case remanded for consideration of spoliation sanctions against plaintiff. Kerr v Garcia ✉ |
| Defendant-drivers of vehicles that struck co-defendant’s vehicle after that and plaintiff’s vehicle pulled over to the shoulder from an earlier collision granted summary judgment where plaintiff testified he was standing on the shoulder when the second collision happened and he was not hit again by the vehicle that originally rear-ended him. Tapia v Bravo ✉ |
| IF YOU MUST READ (1 summaries) | |||
| MUST READS | NOTEWORTHY | ||
| Motion for summary judgment dismissing Complaint and cross-claims denied on conflicting versions of collision in intersection controlled by stop signs for each defendant. St. Colin v Perry ✉ |