October 25, 2016 | Vol. 25

MUST READS
(3 summaries)

Notice of Claim   Service   50-H  

First

A notice of claim served within 90 days of the incident by regular mail was deemed sufficient under the savings clause of Gen. Mun. L. §50(e)(3)(c) which states that service of a notice of claim in a manner other than in compliance with 50(e) is valid if the municipality demands that the claimant be examined regarding the notice of claim. Lapsley-Cockett v Metropolitan Tr. Auth.


MVA   Highway Design   Qualified Immunity  

Second Deptartment

A cargo van with 12 unrestrained passengers drove into the concrete pillar of a pedestrian bridge killing three passengers and injuring the remaining nine. Defendants, State of New York and New York State Thruway Authority were entitled to summary judgment, on qualified immunity, because the state, following a deliberate decision making process regarding the guard rail which was designed under the New York State Department of Transportation standards, was entitled to qualified immunity. Plaintiff’s claim that defendants should have installed a longer guardrail came under the decision-making process employed by the defendants. Ramirez v State of New York


Med Mal   CPLR § 3101(d)   Motion in Limine   Untimely  

Court of Appeals

Trial court did not abuse its discretion if refusing to preclude the defendant’s expert from testifying on causation based on the delay in making the motion to preclude, made just before defendant’s expert testified. Defendant’s expert disclosure indicated that the expert would testify to causation without giving any detail of the expert’s opinions or anticipated testimony. In upholding the jury’s verdict finding the defendant liable for failing to place the plaintiff’s decedent in an area with continuous monitoring, but awarding $0 for conscious pain and suffering, the Court of Appeals noted that the motion to preclude was based solely on the timeliness of the motion and not the sufficiency of the 3101(d). Evelyn Rivera v. Montefiore Medical Center

NOTEWORTHY
(15 summaries)

Amend Complaint   Service  

First

The lower court properly denied plaintiff’s motion for an extension of time to serve NYC nunc pro tunc and to add NYC as a party after realizing that it only named defendant NYC Department of Parks and recreations. The misnomer exception was inapplicable since NYC was never served and the relation back doctrine is inapplicable because it does not apply to a mistake of law. Gil v City of New York


Labor Law §241   Industrial Code   Negligence per se  

First

Defendant’s motion for summary judgment on Labor Law §241(6) claim based on industrial code provisions should have been denied as defendant did not meet its initial burden of proof. Defendant failed to show that the Bobcat was not backing up when it ran over plaintiff’s foot, that the Bobcat was equipped with a backup alarm, and defendant’s affidavit was not based on an inspection of the Bobcat or maintenance records. Plaintiff was not entitled to summary judgment as an alleged violation of an industrial code provision does not establish negligence per se but is merely some evidence of negligence. Sawicki v AGA 15th St., LLC


Labor Law §240   Labor Law §241   Industrial Code   Amend Complaint  

Second Deptartment

Defendant failed to overcome the heavy burden necessary to deny a motion to amend the complaint, which should be freely granted absent prejudice or surprise. Amendment merely corrected a typographical error regarding the date of the accident. Plaintiff was entitled to summary judgment on Labor Law 240(1) claim by showing that the 45-pound concrete block fell from a scaffold 5.5’ above the ground and that there were no pulleys, hoists or other safety devices present. Plaintiff also entitled to summary judgment on Labor Law §241(6) for violation of 12 NYCRR §23-1.7 (protection from general hazards-falling hazards). Cortes v Jing Jeng Hang

Comment: Since a violation of an Industrial Code provision is just some evidence of negligence, it is rare for a court to award summary judgment under Labor Law §241(6).


Snow/Ice   Premises Liab   Motion to Dismiss  

First

Defendant not entitled to dismissal for failure to state a cause of action as complaint stated a cause of action, climatic records do not constitute documentary evidence under CPLR 3211(a)(1), and records do not conclusively establish a defense. Lower court did not treat motion as one for summary judgment. Lowenstern v Sherman Sq. Realty Corp.


MVA   Common Carrier   Unknown Cause  

Second Deptartment

A common carrier is held to the “reasonable care” standard. For disabled passengers, the duty is the give reasonable assistance reasonably required by the disability. Defendants were entitled to summary judgment upon showing that the access-a-ride driver used a lift to raise the disabled plaintiff and her scooter to the van entrance without incident, that the plaintiff operated her scooter independently, and “somehow” lost balance while the operator was outside the van, and plaintiff’s testimony that she did not “know what happened.” Plaintiff failed to raise triable issue of fact. Houston v New York City Tr. Auth.


Premises Liab   Pain/Suffering   Zone of Harm   Wrongful Death  

First

Defendant not entitled to summary judgment because there were triable issues as to whether defendant created or had notice of the hazardous conditions which caused the Norway spruce to fall on the plaintiff’s decedent’s car and crush him. Autopsy report indicating that decedent slowly suffocated to death created issue as to conscious pain-and-suffering and fact that his widow raced out of her house and discovered her husband crushed by the tree had a cognizable claim for negligent infliction of emotional distress for being in the zone of danger. Emenike v Ginsburg Dev. Cos., LLC


Premises Liab   Open/Obvious   Inherently Dangerous   Sidewalk   Create Condition   Notice  

First

Defendant’s testimony that there was a space large enough for at least one person to walk along the sidewalk with 30 unbroken, tied garbage bags was sufficient to make out a prima facie case for summary judgment. Plaintiff failed to raise a triable issue of fact by claim that she tripped over a garbage bag and then slipped on a wet condition on the sidewalk without proof that the defendant created or had notice of the condition. Ruiz v 221-223 E. 28th St., LLC


Premises Liab   De Minimus   Expert Aff  

First

Defendant entitled to summary judgment on deposition testimony, photographs, and expert affidavit showing that defect was trivial at 7/8” wide, 3/16” deep and 4” long and constituted a “spall” or chip of the ceramic tile of the tile floor and that there were no prior complaints or incidents. Plaintiff testified that lighting was adequate and that the defect was not visible against the darker colored grout. Plaintiff’s expert’s opinion that the heel of the plaintiff’s shoe got caught and remained in the defect was insufficient to raise a triable issue of fact. Lovetere v Meadowlands Sports Complex


MVA   Personal Juridiction   Motion to Dismiss   Rear End  

Second Deptartment

Plaintiffs were passengers in a car owned and operated by a New York resident that was struck in the rear in New Jersey by a vehicle operated by a New Jersey resident. The New Jersey resident was personally served and moved to dismiss on jurisdiction after plaintiff rejected the answer as untimely. The Appellate Division reversed the lower court’s grant of an order directing the out-of-state defendant to reserve the answer without the affirmative defense of personal jurisdiction as there is no grounds to exercise law on jurisdiction under CPLR 302. An out-of-state defendant’s prior ownership of real property in New York did not create jurisdiction as the action did not arise out of such ownership. Hopstein v Cohen


Legal Mal   Personal Juridiction   Motion to Dismiss  

Second Deptartment

Plaintiff carries the initial burden of showing that the defendant is subject to the personal jurisdiction before the burdens switches back to the moving defendant. Defendant, California attorneys representing the New York plaintiff in a Florida legal malpractice claim, did not purposely project themselves into New York by availing themselves of the benefits and protections of the law. Communications with New York domiciliary involving an action in Florida where the injury took place is insufficient. Bloomgarden v Lanza


Res Ipsa Loquitor  

First

Plaintiff not entitled to summary judgment on res ipsa loquitor grounds where paramedics’ testimony that one of them tripped while moving a stair chair to a stretcher and that the chair never felt to the ground conflicted with the plaintiff’s testimony that they dropped him while he was strapped into the chair being lifted into an ambulance. Res ipsa loquitor is only available where the facts are undisputed. Aponte v City of New York


Serious Injury   Expert Aff   ROM  

First

Defendant’s orthopedic and radiologic experts’ affidavits made out prima facie entitlement to summary judgment on serious injury with opinions that there was multilevel degenerative disc disease on the MRI, that the right knee MRI showed no evidence of traumatic injury, and that the first treating orthopedist after the accident did not find any limitation in range of motion of the right knee. Plaintiff’s orthopedist’s affirmation opined that there was an exacerbation of a chronic condition without explaining why the degeneration shown in the plaintiff’s records was not the cause of the lumbar injury and therefore did not provide an objective basis other than plaintiff’s history for his opinion. Marino v Amoah


Venue  

Second Deptartment

Plaintiff, a teacher injured when a cabinet in the school fell on her head, commenced suit in the Bronx against NYC and later commenced a separate action against the manufacturer and installer of the cabinet in Queens. The Queens defendant moved to consolidate the action in Queens County, which the lower court granted in the Appellate Division reversed. Absent special circumstances the consolidation of actions should be in the county where the first action was commenced. Tieshmaker v EMB Contr. Corp.


Statute of Limitations   Estoppel   Raised For First Time   Motion to Dismiss  

Second Deptartment

Defendant showed that the action was commenced after the applicable statute of limitations passed and plaintiff failed to raise a triable issue of fact. Plaintiff’s argument that defendant should be equitably estopped from raising statute of limitations was not considered as it was raised for the first time in opposition to the motion. Pepenella v Brumar Day Spa Corp.


Med Mal   Discovery   Motion to Dismiss   Sanctions  

First

The Appellate Division reinstated plaintiff’s complaint which was dismissed after failure to fully comply with the lower court’s fifth and final discovery order as being too harsh of a remedy. Although plaintiff failed to supplement the bill of to give details of the alleged malpractice and special damages, and failed to provide HIPAA authorizations, the 77-year-old plaintiff’s partial, late response, to most of the provisions of the order renders striking the complaint too harsh. Instead, the Appellate Division imposed a $1500 sanction and gave the plaintiff an additional 45 days to fully comply. Viruet v Mount Sinai Med. Ctr. Inc.

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About Matt McMahon

Civil trials and appeals since 1984
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