October 24, 2023 | Vol. 388

(6 summaries)

Child Victims Act   Motion to Dismiss   Court of Claims  

Second Department
State’s motion to dismiss Child Victims Act action for failure to satisfy the “time when” pleading requirement of Court of Claims Act §11(b) for sexual assault at a children’s psychiatric facility granted where claimant failed to correctly identify the range of dates when the state’s negligence occurred, depriving the court of subject matter jurisdiction and “a jurisdictionally defective claim may not be cured by amendment.” Musumeci v State of New York    

Malpractice   Wrongful Death   Accepted Practice   Causation   Experts  

First Department
Conflicting expert opinions on whether perforation of the renal artery during peripheral artery procedure was a known and accepted risk of the procedure precluded summary judgment for defendants. Claim that decedent’s non-covid injuries were caused by subsequent hospital’s delay in treatment rejected as “[m]alpractice in treating an injury is a foreseeable consequence of that injury, which does not supersede the causal role of the initial tort.”

Defendants granted summary judgment dismissing wrongful death claim on proof decedent died of complications from Covid, not arterial perforation injuries and plaintiffs’ expert failed to rebut defendants’ arguments. Murphy v Chinatown Cardiology, P.C.    

Pothole Law   Prior Written Notice   Big Apple Pothole   Admissibility   NYC  

Second Department
NYC met burden for summary judgment dismissing plaintiff’s claim for fall on defective sidewalk curb based on 2013 Google Map image showing that any defects listed on a 2004 Big Apple map were not present in 2013. Lower court properly took judicial notice of Google Map image and plaintiff failed to raise an issue in opposition by a 2015 work permit for curb repair as work permits are not prior written notice and the permit was for work at a different location. Ryabaya v City of New York    

MVA   Rear End   Amend Complaint   Punitive Damages   Appealable Order  

First Department
Lower court improvidently denied plaintiffs’ motion to amend the Complaint to add punitive damage claim against truck driver who testified he knowingly drove the truck with defective brakes, horn, and an inoperable windshield wiper, and was reaching for his cell phone on the floor when he rear-ended plaintiffs’ vehicle as a jury might find the truck driver acted with conscious and willful disregard of the interests of others. Owens v STD Trucking Corp.    

MVA   Motion to Dismiss   Service   CPLR §306-b  

Second Department
Defendants’ motion to dismiss on grounds of a prior action denied where the prior action was never served on the defendants. Quinones v Z & B Trucking, Inc.    

Comment: Prior action dismissed for failure to serve within 120 days under CPLR §306-b and plaintiff failed to show entitlement to extensions for good cause or in the interest of justice where no attempt at service was made. Quinones v Z & B Trucking, Inc..

MVA   Motion to Dismiss   Governmental Immunity   Waiver   Estoppel   Statute of Limitations  

Second Department
New Jersey Transit’s motion to dismiss action for lack of subject matter jurisdiction where its vehicle struck plaintiffs’ vehicle in NY granted as New Jersey Torts Claim Act ‘is not an express consent to suit in courts of a sister state,’ its litigation conduct did not waive the sovereign immunity defense, and plaintiff failed to show NJ adopted a hostile policy in derogation or the full faith and credit clause or unconstitutionally infringed on NY’s legitimate public policy.

Plaintiffs’ request to estop NJT from raising a statute of limitations defense in any case brought in NJ denied. Nizomov v Jones    

(21 summaries)

MVA   Motion to Dismiss   Personal Juridiction   Service   CPLR §306-b  

Second Department
Defendant’s motion to dismiss for lack of personal jurisdiction granted where plaintiff served the Summons and Complaint 8-months after it was filed and plaintiff was not entitled to CPLR §306-b extension for good cause as waiting to file the action until the statute of limitations almost ran and then waiting 8-months to serve it showed lack of due diligence. Plaintiff failed to show entitlement to an extension in the interest of justice. Marzan v Petit-Frere    

Child Victims Act   Negligent Hiring   Negligent Supervision   Motion to Dismiss   Duty  

Second Department
Defendants’ motion to dismiss negligence, negligent hiring, retention, and supervision causes of action in Child Victims Act case on affidavit showing moving Big Brothers & Sisters corporations were not incorporated until 7-years after the sexual abuse of the plaintiff when he was 11-years-old denied as an affidavit is not “documentary evidence” under CPLR §3211(a)(1) and the affidavit did not conclusively prove the moving defendants were not the successors of the Big Brother corporation in existence at the time of the abuse. Varricchio v Big Bros. Big Sisters of Am., Inc.    

Highway Design   Notice of Claim   NYC  

First Department
Plaintiff’s motion to amend his Notice of Claim to include “delineators and bollards” as part of what NYC negligently designed, installed, and maintained granted as it added only specific facts to the original claim of negligence and was not a new theory. Burnes v City of New York    


Second Department
Defendant’s motion to enforce a purported settlement based on defense counsel’s email regarding a ‘tentative resolution’ denied where the email was from the party who sought to enforce the agreement, did not evince a clear meeting of minds, and there was no responsive email from plaintiff’s counsel. Vlastakis v Mannix Family Mkt. @ Veteran’s Rd., LLC    

Malpractice   Accepted Practice   Causation   Experts   Conclusory   Speculation  

Second Department
Companies that provided home nursing services to decedent met burden for summary judgment dismissing malpractice and wrongful death claims on affirmation of expert physician and affidavit of expert registered nurse opining the services were within accepted practice and any departures were not a cause of decedent’s injuries. Plaintiff failed to raise an issue in opposition by physician’s conclusory, speculative affirmation that did not address defendants’ experts specific assertions and failed to lay a foundation that the physician was familiar with the applicable standards of nursing care. Blank v Adiyody    

Labor Law §240   Falling Object   Causation  

First Department
Worker’s testimony that an unknown object hit him on the head as he worked on an outrigging platform on the 25th floor, he heard workers stripping wood on the floors above him, and photographs showing a large hole in the safety net was sufficient to show entitlement to summary judgment on Labor Law §240(1). Plaintiff was not required to identify what hit him, where I came from, or why it fell where there was a lack of safety devices. Harsanyi v Extell 4110 LLC    

Labor Law §240   Labor Law §241   1-2 Family Exception   Raised For First Time  

Second Department
Motion for summary judgment dismissing Labor Law §§ 240(1), 241(6) claims for decedent’s fall from roof and subsequent death as barred by 1-2 family exception denied where plaintiff submitted evidence that building owners rented the property before the accident and listed it for sale after the accident, leaving questions of whether the property was intended to be used solely for commercial purposes at the time of the incident. Defendants could not rely on their affidavits submitted in reply to establish a prima facie case and, in any event, the affidavits failed to raise an issue of fact. Pawelic v Siegel    

Premises Liab   Workers Comp Defense  

First Department
Building owner’s motion for summary judgment on claim it was an alter ego of plaintiff’s employer entitled to the Worker’s Comp. exclusivity clause denied even though it was a wholly owned subsidiary of its tenant, plaintiff’s employer, where they operated as separate entities, had a lease defining landlord and tenant responsibilities, had different bank accounts, and filed separate taxes. Alberico v Riverside Unit C, LLC    

Malpractice   Accepted Practice   Causation   Experts  

Second Department
Lower court correctly found plaintiffs’ expert raised an issue on accepted practice but erred in finding plaintiffs’ expert’s opinion that decedent died prematurely of arteriosclerotic cardiovascular disease as a result of the defendants’ failed to raise an issue on causation. Defendants’ motion for summary judgment denied. Persuad v Hassan    

Premises Liab   Snow/Ice   Storm in Progress   Create Condition  

First Department
Plaintiff’s experts’ findings that the last measurable snow fall was 6-hours before plaintiff slipped and fell on snow/ice on defendants’ exterior stairs raised an issue on whether there was a storm in progress or a significant lull in the storm. Plaintiff also raised an issue on whether defendants’ snow removal efforts the night before was a cause of her accident. Gill v Bk Bryant Ave. HDFC., Inc.    

Premises Liab   Snow/Ice   Storm in Progress   Notice   Experts   Speculation  

First Department
Defendant granted summary judgment on proof 5” of snow accumulated on the date of the accident and plaintiff’s testimony that it was snowing all day and there were flurries 1/2 hour before she fell on the exterior stairs. Plaintiff’s expert failed to raise issues in opposition on speculative opinion the condition was caused by a leak in the walls as unsupported by the photographs and he failed to explain how leaking in the wall caused the condition on the staircase. Maintenance records showing leaks in other areas insufficient to raise an issue on constructive notice. Escobar v New York City Tr. Auth.    

Premises Liab   Dangerous Condition   Create Condition   Experts  

Second Department
Premises owner denied summary judgment where conflicting experts’ opinions on whether the shelving unit where plaintiff was resettling products had been modified by installing a bolt to increase the shelf’s pitch so products could move more easily to the front, left questions of whether the shelf was modified creating the dangerous condition that caused the shelf to fall on plaintiff. De La Cruz v NJE Enters., Inc.    

Premises Liab   Notice  

First Department
Plaintiff met burden for summary judgment on proof she complained about leaking ceiling in her apartment for years before it fell on her and that the building made intermittent repairs. Superintendent and his wife’s testimony that they did not recall receiving plaintiff’s complaints was insufficient to raise an issue on notice, especially where they hired a plumber 5-days before the accident, but defendant raised issues on whether it took reasonable steps to investigate to correct the condition by the plumber’s invoice showing they inspected the bathrooms above plaintiff’s apartment and found no leaks. Repair invoice after the accident raised questions of whether a leak found in an upstairs bathroom after removing the wall caused plaintiff ceiling to fall. Osario v NYSandy4 NBP19 LLC    

Premises Liab   Elevator   Building Code   Res Ipsa Loquitor   Raised For First Time   Experts   Indemnity  

First Department
Conflicting expert opinions, testimony, and evidence required denial of both plaintiff’s and Con Ed’s motions for summary judgment for fall of freight elevator gate on plaintiff on common-law negligence and res ipsa loquitor causes of action. Plaintiff’s claimed violation of the Safety Code for Elevators and Escalators American (ASME A17.1) not considered where not pled, raised in the lower court, or included in her experts’ reports.

Con Ed’s motion for summary judgment on contractual indemnity claim against plaintiff’s employer, and employer’s motion to dismiss contractual indemnity claim denied where issues of negligence remained but Con Ed granted summary judgment on its failure to procure insurance claim against plaintiff’s employer where insurance did not cover Con Ed for the location of the accident or for its own negligence. Lowman v Consolidated Edison Co. of N.Y., Inc.    

MVA   Rear End   Nonnegligent Explanation   Comparative Fault   Premature Motion  

Second Department
Plaintiff met burden for summary judgment and dismissal of comparative fault defense on his 50H testimony that he was stopped at a stop sign, inched forward and stopped again when he was rear ended by defendants’ vehicle. Defendants’ claim plaintiff was negligent for stopping a second time when there was no traffic in front of him did not raise an issue where plaintiff showed he stopped because of traffic coming from his left.

Motion not premature where defendant-driver had personal knowledge of the facts. Guralenko v New York City Tr. Auth.    

Premises Liab   Open/Obvious   Inherently Dangerous  

First Department
Defendants met burden of showing step was open/obvious and not inherently dangerous when approached from the front, but denied summary judgment where questions remained of whether it presented an unreasonably dangerous trap under the circumstances. Chopra v Gyu-Kaku Japanese BBQ    

Comment: The step was to a platform for a dining booth at a restaurant and the injured-plaintiff fell off of the platform as he stepped back to allow his wife to exit the booth.

Wrongful Death   Pain/Suffering   Motion to Dismiss   Workers Comp Defense  

Second Department
Decedent’s employer’s motion to dismiss action brought by pro se plaintiff for decedent’s pain/suffering and wrongful death granted where documentary evidence showed decedent was covered by and received workers compensation benefits for 18-years after his injuries and an award upon his death, conclusively establishing the action was barred by the workers compensation exclusivity clause. Omwathath v Frank E. Basil, Inc.    

MVA   There to be Seen   Survelliance Video   Premature Motion  

Second Department
Toll worker granted summary judgment against taxi owner and driver on his affidavit and surveillance video showing he was wearing a bright green vest while standing next to the taxi which was stopped at the tollbooth when the taxi move forward onto his foot, showing as a matter of law that the taxi failed to avoid the accident by seeing what was there to be seen. Claim of comparative fault insufficient to defeat plaintiff’s summary judgment as a plaintiff does not need to prove freedom from comparative fault for summary judgment.

Defendants failed to show motion was premature without showing what information solely within plaintiff’s knowledge was necessary to oppose the motion. Vasquez v Vullis Corp.    

MVA   Duty   Causation  

Second Department
Owner and driver of vehicle picking up plaintiff in response to Uber app, and Uber, denied summary judgment where question remained of whether driver violated duty to provide a safe place to board the vehicle by stopping 2′ from the curb in violation of 34 RCNY 4-11(c) and plaintiff’s cross motion for summary judgment denied where issues remained on causation. Porcasi v Oji    

Premises Liab   Prior Written Notice  

Second Department
Village and village police department granted summary judgment dismissing plaintiff’s action for trip and fall in hole in grassy area of village property on proof it did not receive prior written notice of the defect as required by local law. Mitchell v Village of Monroe    

Motion to Dismiss   Appealable Order  

Second Department
Appeal from order which did not address cross-motion to dismiss by NYCTA and MTA dismissed where the cross-motion was not addressed in the order appealed from and remained undecided and pending. Braithwaite v City of New York    

(4 summaries)

SUM   Arbitration   Hearing  

Second Department
Carrier’s motion to permanently stay its insured’s SUM arbitration on claim other vehicle involved in the accident had a supplemental liability policy (SLP) under a car rental agreement, partially supported by its insured, denied after a hearing which found the driver purchased the SLP for several days of the rental but not for the day of the accident and, therefore, plaintiff had exhausted all other available policies. Matter of Travelers Home & Mar. Ins. Co. v Miller    

Premises Liab   Dangerous Condition   Unknown Cause   Speculation  

Second Department
Plaintiff failed to meet burden for summary judgment for trip and fall in defendant’s store on her testimony which left questions of whether there was a dangerous condition, whether she could identify the cause of her fall, and whether she misstepped. The Court does not give the details of the proofs. Pezzolla v Family Fruit 2, Inc.    

Premises Liab   Notice  

First Department
Defendants failed to show as a matter of law that they did not have constructive notice of the unsecured ceiling tile that fell on plaintiff and, in any event, plaintiff raised issues of fact in opposition. The Court does not give the details of the proofs. Davis v Brookfield Props. Mgt., LLC    

Serious Injury   BP  

Second Department
Defendant failed to meet burden for summary judgment on serious injury without eliminating questions of fact on 90/180-day category as alleged in the BP. The Court does not give the details of the proofs. Anagnostopoulos v Rosenman    

About Matt McMahon

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