Premises Liab Labor Law §200 Dangerous Condition Notice
 The Court disagreed with the First Department’s ruling that ANSI standards cannot be used as evidence of negligence because they are not a statute, ordinance, or regulation with force of law. Nonetheless, plaintiff failed to show that defendant had actual or constructive notice of dangerous condition and the Court upheld the grant of summary judgment to the defendant. Bradley v HWA 1290 III LLC
Comment: This is a direct rejection of the rule that standards can only be used to show evidence of negligence if they have force of law required by statute, regulation, or ordinance which has been a trend in the First and Second Departments. The Appellate Division decision was reported in Vol. 92 of the New York Torts Weekly.
|
Med Mal Late Notice of Claim Actual Knowledge Prejudice
 Petitioner-Guardian’s motion for leave to serve late Notice of Claim made a year after claimant became mentally incapacitated as a result of malpractice denied where petitioner failed to show HHC had actual knowledge of the essential facts constituting the claim within 90 days or a reasonable time thereafter. Having failed to show that HHC had actual knowledge, petitioner failed to meet initial burden of showing that HHC was not prejudiced. Matter of Rayson v New York City Health & Hosps. Corp.
Comment: This decision seems to establish a Second Department rule that failure to show municipality had actual knowledge within 90 days or reasonable time thereafter automatically shows prejudice. Given prior cases where lack of prejudice could be shown when municipality investigated or everything necessary to investigage still existed, the intended rule may not be as broad.
|
Dental Mal Motion to Dismiss Statute of Limitations
By establishing a continuous course of treatment for periodontal disease plaintiff raised an issue of fact on continuous treatment tolling the statute of limitations. It is not necessary to allege or prove that misdiagnosis was made within the statute of limitations where there is continuous treatment for the same condition. Dentist who retired subject to continuous treatment doctrine for treatment by other dentists within the practice after he retired. Cohen v Gold
|
MVA Vacate Default Compel Acceptance Personal Juridiction
Because an improperly served Summons and Complaint does not confer jurisdiction and subsequent proceedings are a nullity, the court must first deal with the issue of personal jurisdiction before deciding a motion to vacate a default. Defendant did not show excuse for the delay in answering or moving to vacate a default but proof that they moved from building more than 8-months before they were served, that building remained vacant, and that they had no relative matching description of person allegedly served was sufficient to show lack of personal jurisdiction coupled with the fact that plaintiff did not show that defendant had provided the address to the police and plaintiff did not include a DMV abstract showing defendant had failed to change their address with DMV. Itshaik v Singh
|
Labor Law §240 Workers Comp Defense Foreseeability Safety Devices Admissibility Hearsay
Contractor whose president testified that plaintiff was not its employee entitled to summary judgment on Worker’s Comp. exclusivity clause where workers comp board found contractor to be the employer, contractor paid workers compensation benefits, and issue of coverage was not left open.
Plaintiff’s motion for summary judgment on Labor Law §240(1) denied where plaintiff did not show that collapse of the roof was foreseeable and would have required safety devices to prevent fall. Plaintiff’s statement that he was told that roof collapsed because beams were cut was inadmissible hearsay. Paguay v Cup of Tea, LLC
|
MVA Stay Arb Admissibility Hearsay
 In affirming permanent stay of UM arbitration, the court found that deposition testimony of driver and passenger were admissible as present sense impression and past recollection recorded exceptions to hearsay. They took a photograph of the license plate of the car which struck them and left the scene which they showed to the police and which was corroborated by injured party’s description of the vehicle. Lower court providently refused continuance where driver who left the scene failed to show despite notice of the hearing, and hearing had previously been adjourned. Matter of State Farm Fire & Cas. Co. v Jackson
|
Assault Motion to Dismiss Independant Contractor Respondeat Superior Untimely
Plaintiffs’ claim against MetLife that its investigator physically assaulted them while investigating their claim dismissed based on documentary evidence and failure to state a cause of action. Contract between MetLife and investigation company utterly refuted any claim that investigator could be anything other than independent contractor not subject to vicarious liability under respondeat superior. Incidental control of the results, as in investigative guidelines provided in contract, may be set forth for both employees and independent contractors without evoking respondeat superior.
Lower court providently granted renewal of its prior order denying the motion as untimely where court raises timeliness issue sua sponte raised providing a reasonable excuse for failing to provide evidence on the original motion that plaintiff agreed to extend time to answer. McHale v Metropolitan Life Ins. Co.
|
MVA Stay Arb Vacate Default Reasonable Excuse Discovery
Lower court providently exercised discretion in vacating a permanent stay of UM arbitration granted on default on plaintiff’s reasonable excuse for failing to appear at the hearing based on law office failure and the medical condition of attorney’s wife. Lower court should not have referred matter to intake port for a preliminary conference, but the court does not give the reason. Matter of Progressive Direct Ins. Co. v Spicer
|
Labor Law §240 Labor Law §241 Ladder 1-2 Family Exception
Homeowner entitled to summary judgment on Labor Law §§ 240(1) & 241(6) on proof that he intended to live on the 2nd floor of building where the ladder slipped, and plaintiff did not allege or prove that homeowner directed or controlled work. Plaintiff failed to put forth proof that homeowner intended to rent out second floor. Marquez v Mascioscia
|
Premises Liab Dangerous Condition Open/Obvious Inherently Dangerous Warnings Create Condition
Store denied summary judgment based on conflicting stories of how accident occurred where defendant failed to show that racks of clothing as arranged made the leg of the rack plaintiff tripped on open and obvious and not inherently dangerous. Photographs submitted with the motion were not identified as accurately representing the conditions on the day of the accident and defendant failed to show that employees did not create condition by placing racks too close together and loading them with so much merchandise that it hid the leg from plaintiff as she pushed through the racks. Stadler v Lord & Taylor LLC
|
Premises Liab Slip/Trip Unknown Cause Feigned Issue Speculation
Patron’s change of the cause of accident from tripping on a carpet to tripping on a step inside the diner threshold in his amended BP and affidavit in opposition, after defendant testified that plaintiff must have tripped over the step which others had tripped over, demonstrated that he could not identify the cause of his accident without speculation. Pasqualoni v Jacklou Corp.
|
Premises Liab Unknown Cause Feigned Issue Speculation
Plaintiff’s affidavit saying that rusted metal shard on a fire escape cut her hand causing her to fall directly contradicted her deposition testimony that her hand flew off the fire escape and she did not know why and was a feigned attempt to defeat summary judgment. Without knowing what caused her to fall, dangerous conditions and code violations alleged by plaintiff as a cause of the accident were speculation. Burns v Linden St. Realty, LLC
|
Default Judgment Compel Acceptance Reasonable Excuse
Plaintiff’s motion for default judgment denied and defendant’s motion to compel acceptance of late Answer granted where court found that ongoing negotiations to settle the action prior to Answer was a reasonable excuse. Manne v Berkowits Sch. of Electrolysis, Inc.
|
Amend Notice of Claim Late Notice of Claim Actual Knowledge Reasonable Excuse Prejudice Statute of Limitations
Motion to amend Notice of Claim to add new theories denied as amendment under GML §50-e(6) is “only to correct good faith and nonprejudicial technical mistakes, omissions, or defects.” Motion to serve late Notice of Claim to add new theories of negligence when case was ready for trial denied where Town lacked actual knowledge within 90 days, plaintiff failed to show that delay was caused by infancy and that Town was not prejudiced. Mother’s new theories barred by statute of limitations. Palacios v Town of N. Hempstead
|
Premises Liab Create Condition Notice Res Ipsa Loquitor
Movie theater granted summary judgment on proof that it did not create nor have actual or constructive notice of condition where seat dislodged when patron pushed it down causing the plaintiff to fall through the seat. Res ipsa loquitor did not apply where plaintiff failed to show that condition could not have been caused by a previous patron. Newisky v United Artists Kaufman Astoria 14 Regal Cinemas
|
Premises Liab Slip/Trip Snow/Ice § 7-210 Duty Renew
Plaintiff’s motion to renew opposition to defendant’s motion for summary judgment that had been granted by the lower court denied. Deposition testimony which was not available for prior motion because witness was not disclosed until shortly before motion was made would not have changed the outcome because it did not disprove that plaintiff’s fall happened within the 7 AM-11 AM window that an abutting landowner has to clear sidewalk after snowfall occurring after 9 PM under NYC administrative code §16-123(a). Defendant did not have a duty to remove snow at time of plaintiff’s fall. Ghoneim v Vision Enters. Mgt., LLC
|
MVA Comparative Fault
Plaintiff’s motion for summary judgment where defendant admitted that he got behind the wheel while he was too tired to drive and subsequently fell asleep while driving granted. Under recent case law plaintiff no longer has to prove absence of comparative fault. Chan v Choi
|
MVA Question of Fact Sole Cause
Assess-a-ride and plaintiff, passenger in vehicle assess-a-ride came in contact with, both denied summary judgment on conflicting stories of how accident occurred, assess-a-ride claiming that other vehicle reversed into assess-a-ride and other vehicle claiming that it was stopped when assess-a-ride struck it while trying to maneuver around it. Irregularity in out-of-state affidavit, regarding venue, was properly ignored. Logan v Apex Express, Inc.
|
Amend Complaint Amend BP Punitive Damages Law of the Case
Lower court providently granted plaintiff’s motion to amend Complaint and BP to include demand for punitive damages which was not palpably improper and did not prejudice or surprise defendant. Prior denial of motion was not law of the case binding on the Appellate Division. Lee v Allen
|
Venue
Defendant’s motion to change venue from Kings to New York County on the ground that a fair and impartial jury could not be obtained in Kings County granted in discretion of the court. The court does not give the details of the proofs. Sowell v Gansburg
|
Untimely Reasonable Excuse
Defendant’s motion for summary judgment on counterclaims denied as untimely where defendant did not provide a reasonable excuse for the delay. The court does not give the details of the proofs. Miller v Ball
|
Serious Injury
Defendant met his burden for summary judgment on serious injury by competent medical proof but plaintiff raised issues of fact that her injuries met serious injury under permanent consequential and significant limitation categories. The court does not give the details of the proofs. Pickle v Johnson
|
Serious Injury
Defendant met his burden for summary judgment on serious injury by competent medical proof, but plaintiff raised issues of fact that his injuries met serious injury under permanent consequential and significant limitation categories. The court does not give the details of the proofs. Walcott v Smilchensky
|
Serious Injury
Defendant met her burden for summary judgment on serious injury by competent medical proof, but plaintiff raised issues of fact that his injuries met serious injury under permanent consequential and significant limitation categories. The court does not give the details of the proofs. Almonte v Rost
|
