October 25, 2022 | Vol. 336

(7 summaries)

Coverage   Settlement  

First Department
Pavia’s “gross disregard” standard for determining insurer bad faith applies equally to excess carrier’s claim against primary carrier. Primary carrier granted summary judgment where it tried to settle case for $900,000 and excess verdict was “objectively improbable” as no one expected it to go over the policy. Zurich Am. Ins. Co. v Insurance Co. of the State of Pa.    

Premises Liab   Amend Complaint   Statute of Limitations   Indemnity   Reasonable Excuse   Create Condition   Notice  

First Department
Managing agent that assigned its contract to manage building 2-years before accident denied summary judgment as it failed to establish it did not create or have notice of loose threshold that caused plaintiff’s fall. Plaintiff’s cross-motion to amend the Complaint to add owner and successor management companies granted after statute of limitations where the claims arose from the same occurrence, the parties were united in interest by vicarious liability of the indemnity agreements and all of entities shared a chief officer, failure to initially name the proposed defendants was a mistake, and there is no requirement to show a reasonable excuse for the mistake in order to apply the relation-back doctrine. Ellis v Newmark & Co. Real Estate, Inc.    

MVA   Bus   Amend Complaint   Statute of Limitations  

Second Department
Plaintiff’s motion to amend Complaint after statute of limitations to add Metropolitan Transit Authority Bus Company denied as it was not united in interest with defendant NYCTA which is a separate entity. “In a negligence action, ‘the defenses available to two defendants will be identical, and thus their interests will be united, only where one is vicariously liable for the acts of the other.'” Chandler v New York City Tr. Auth.    

Discovery   CPLR § 3126   Vacate Default   Reasonable Excuse   Meritorious Action   Willful/Contumacious  

Second Department
Plaintiff’s motion to vacate default in opposing defendant’s CPLR §3126 motion to dismiss for failure to provide discovery, claiming delay resulted from misbelief that plaintiff’s counsel’s motion to withdraw brought more than a year before defendant’s motion stayed the action denied where plaintiff failed to show a meritorious action and her repeated failure to provide discovery for 17-months without a valid excuse raised an inference of willful/contumacious conduct which plaintiff’s conclusory statement that it was not willful and contumacious was insufficient to rebut. After receiving defendant’s motion to dismiss, plaintiff’s counsel again moved to withdraw but did not oppose the motion. Follors v TI Ozone Park Stor., LLC    

Malpractice   Wrongful Death   Accepted Practice   Causation   Experts   Speculation  

Second Department
Plaintiff’s expert raised issues in opposition to summary judgment motion by pain management doctor and his practice on opinions that treatment of decedent with opioids departed from accepted practice and was a cause of decedent’s suicide. Although death certificate was prima facie evident that accidental overdose was cause of death, plaintiff’s expert’s opinion that it was suicide was not speculative where supported by medical records showing decedent suffered from depression with suicidal ideations as recent as 1-month before his death. Zomber v Forde    

MVA   Motion to Dismiss   Comparative Fault  

Second Department
Motion by rear passenger injured during collision with defendant’s vehicle to dismiss affirmative defenses based on culpable conduct providently granted on proof she did not contribute to happening of accident but lower court improvidently granted dismissal of failure to state a cause of action defense which a plaintiff cannot move to dismiss as it would be a test of the sufficiency of plaintiff’s own claim. Ochoa v Townsend    

MVA   Highway Design   Qualified Immunity   3rd Party Contractor   Espinal   Sole Cause   NYC  

Second Department
NYC granted summary judgment dismissing intoxicated driver’s claim that exit ramp of Queensboro bridge was negligently designed, redesigned, and maintained on proof the traffic plan resulted from a study to improve safety that neither “evolved without adequate study nor lacked a reasonable basis,” entitling the NYC defendants to qualified immunity. Plaintiff-driver’s plea to DWI, BAC of 0.13, proof he drank for several hours before the accident and didn’t remember driving, and that he drove 10-30 mph above the speed limit established he was sole proximate cause of the accident. Riddell v City of New York    

Comment: Construction company and engineer for construction work near exit ramp granted summary judgment as they owed no duty to plaintiffs, passengers in car, who were not parties to their contract and they did not launch an instrumentality of harm under Espinal. NYC defendants granted summary judgment on qualified immunity and all defendants entitled to summary judgment where driver of car they were in was sole cause of the accident. Cohen v City of New York.
(20 summaries)

Malpractice   Attorney Disqualification   Estate  

First Department
Decedent’s son and brother of administratrix not disqualified as plaintiff’s counsel even though he was decedent’s health care proxy where administratrix represented she would not call him as a witness as he had no relevant information regarding the allegations of the Complaint, facts regarding the allegations were within the medical records, and the son’s only interactions with the nursing home had to do with the father’s condition and not the allegations in the Complaint. Patterson v Beth Abraham Nursing Home    

Malpractice   Motion to Dismiss   Statute of Limitations   Estate  

Second Department
Administrator of the estate of dentist who died before action was commenced met burden to dismiss on statute of limitations with proof Amended Complaint adding administrator after stay was lifted was filed 4-years after date of last treatment, but plaintiff raised an issue of the applicability of relation back doctrine where there was no dispute claims against the practice and the administrator involved the same conduct, transactions, or occurrences, defendants were united in interest where plaintiff affirmed she was assigned to the administrator’s decedent by the practice’s receptionist, and the administrator could not have reasonably concluded failure to file within the statute of limitations evidenced an intent not to sue the decedent where the decedent had rendered the treatment and plaintiff’s counsel had communicated with the doctor’s malpractice carrier before the statute of limitations expired. Marcotrigiano v Dental Specialty Assoc., P.C.    

Malpractice   Motion to Dismiss   Statute of Limitations   Continuous Treatement   Notice of Claim  

Second Department
Municipal Hospital’s motion to dismiss malpractice claims for period of hospitalization where plaintiff developed decubitus ulcers granted on proof action was commenced more than 1-year and 90-days after plaintiff was discharged and plaintiff failed to show he returned to complain about and receive treatment for the same condition, or that further treatment was anticipated by plaintiff or defendant before the expiration of the statute of limitations for continuous treatment to apply. His later return was for either unrelated conditions or on his wound specialist’s referral. Continuous treatment doctrine would also have extended the time to file the Notice of Claim if proven. Baltzer v Westchester Med. Ctr.    

Premises Liab   Vacate Default   Reasonable Excuse   Meritorious Action   Out of Possession   Appealable Order  

First Department
Defendant’s motion to vacate default judgment denied where affidavit of meritorious defense did not identify relation of affiant to defendant and claimed defendant was an out of possession landlord with no notice of the condition in a conclusory fashion. Defendant’s explanation that it did not receive the Summons and Complaint because it failed to keep its address current with the Secretary of State was not a reasonable excuse.

Appeal from sua sponte order dismissed as not appealable as a matter of right. Castillo v 2460 Tiebout Ave. Assoc., LLC    

CPLR §306-b   Motion to Dismiss   Personal Juridiction   Service   Reasonable Excuse  

Second Department
CPLR §306-b motion for extension of time to serve Summons and Complaint after court found process server’s testimony of original service by suitable age and discretion incredible denied where plaintiffs failed to show they made reasonably diligent efforts to effectuate service for good cause good cause and failed to show entitlement to an extension in the interest of justice. Turner v Sideris    

Prior Written Notice   Sidewalk  

Second Department
Village failed to meet burden for summary judgment dismissing claim of pedestrian who tripped on uneven sidewalk flags on prior written notice statute where codefendants, abutting landowners, had submitted an application under the village’s “Sidewalk Improvement Program” to repair damage caused by street trees, followed up with several emails, and village indicated the sidewalk was slated for repair a year before the accident. Vaisman v Village of Croton-on-Hudson    

Premises Liab   Renew  

First Department
Plaintiff’s motion to renew opposition to NYCHA’s motion for summary judgment that was granted on finding NYCHA lacked notice of hanging light cage denied as plaintiff failed to show reasonable justification why new facts plaintiff’s counsel found “buried” in NYCHA’s opposition to a motion to strike its Answer could not with due diligence have been discovered and included in original opposition. Boglin v New York City Hous. Auth.    

Labor Law §240  

First Department
Worker who fell 3′-4′ from plank onto second story balcony as he crossed from sidewalk shed granted summary judgment on Labor Law §240(1) as there were no rails or netting and fact that he was walking instead of standing on the plank to do work did not take it out of §240 protection. Gonzalez v Broadway 371, LLC    

MVA   Police   VTL §1104   Causation   Reckless   NYC  

First Department
NYC granted summary judgment where GPS data confirmed driving-officer’s testimony that he did not go above 32 mph during the pursuit before hitting bump in the road that caused him to lose control of the car, establishing he was not a cause of plaintiff-passenger’s injuries. Plaintiff failed to raise an issue in opposition without disputing driving-officer’s testimony that they terminated the pursuit 1-1.5 blocks before the accident or submitting evidence that initiating/continuing the chase was reckless under VTL §1104(e). Pierce v City of New York    

MVA   Rear End   Nonnegligent Explanation   Comparative Fault  

First Department
Plaintiffs, driver and passenger in box truck that rear-ended tractor-trailer during the early morning, granted summary judgment on their testimony and testimony of other witnesses that the tractor-trailer had no lights illuminated in violation of the VTL. Plaintiff-driver entitled to summary judgment even if issues of comparative fault existed and there was no evidence that plaintiff-passenger was negligent. Franklin v Chalov    

Labor Law §240   Ladder  

Second Department
Plaintiff who was given free rent in exchange for maintaining property with multiple apartments granted summary judgment on his testimony and affidavit that he fell from ladder when it kicked back because it was missing one of its leveling feet as he went to inspect the roof to repair a leak . Defendant failed to raise an issue in opposition. Exley v Cassell Vacation Homes, Inc.    

Premises Liab   Motion to Dismiss   § 7-210   Create Condition  

First Department
Abutting landowner’s motion to dismiss claim of plaintiff who fell in tree well that landowner had no duty to maintain under administrative code 7-210 denied where plaintiff alleged owner created a dangerous defect in the tree well, defendant’s manager’s affidavit was not “conclusive ‘documentary evidence,” and it failed to attach most of the documents referred to in the affidavit. Manglani v City of New York    

Premises Liab   Stairs   Create Condition   Notice  

Second Department
Library granted summary judgment where plaintiff fell on stairs by proof, including its employee’s testimony, establishing it did not create or have notice of the condition. Plaintiff’s observation of “old dirty water” on the stairs after she fell was insufficient to raise a question of whether the condition existed for sufficient time for defendant to discover and correct the condition. McGahan v Brooklyn Pub. Lib.    

Premises Liab   Wet Floor   Create Condition   Notice   Last Inspection  

Second Department
Building owner failed to meet burden for summary judgment where it submitted testimony of plaintiff and superintendent with conflicting versions of how accident occurred, leaving issues of whether owner created or had notice of the puddle in the lobby plaintiff slipped on and when the area was last inspected. Clarke v 1710, LLC    

Malpractice   Discovery  

First Department
Plaintiff in malpractice action required to provide emails, correspondence, and texts between him and defendants as party statements but not required to provide records of medical treatment with defendants where there was no proof they were unavailable to defendants. Names and address of any and all witnesses to plaintiff’s medical conditions was palpably overbroad and burdensome. Defendants not entitled to employment records where plaintiff withdrew lost earnings claim but could renew that request if depositions revealed relevance. Fusco v Mace Ave. Med., P.C.    

Discovery   Prejudice   Raised For First Time  

First Department
Further deposition of one plaintiff providently limited ‘to the 4-corners’ of a video where that plaintiff was questioned amount still photographs from that video at her initial EBT and defendants failed to show prejudice. Further deposition of second plaintiff providently limited to questions not raised at her initial deposition where defendants failed to show why late disclosure of psychiatric records required further deposition on all damages. Defendants’ argument they needed full deposition of second plaintiff because she was added after the initial depositions not considered where raised for the first time on appeal. Marrero v Modern Food Ctr. Inc.    

MVA   Pedestrian   Turning Vehicle   Premature Motion  

Second Department
Plaintiff granted summary judgment on his affidavit stating he was crossing in crosswalk with light in his favor when defendants’ vehicle struck him while making a left hand turn. Defendants failed to raise an issue in opposition or show motion was premature without an evidentiary basis that discovery might lead to relevant evidence or facts to oppose the motion were solely within plaintiff’s knowledge. Cromer-Walker v Singh    

MVA   VTL §1104   Reckless  

Second Department
Defendants granted summary judgment where fire chief responding to a bush fire emergency was entitled to reckless standard of VTL §1104 and his driving was not reckless. Plaintiff failed to raise an issue in opposition. De Corona v Village of Val. Stream    

MVA   Causation   Survelliance Video  

Second Department
Moving defendant, plaintiff’s mother who was driving her daughter-plaintiff, granted summary judgment where dash cam video established codefendants owner/driver of the van abruptly cut into lane moving defendant was in as it expanded into both a travel and exit lane and struck moving defendants driver side as she entered the exit ramp lane. Vigdorchik v Vigdorchik    

MVA   Pedestrian   MVIAC   No-Fault  

First Department
Petition for permission to bring action against MVIAC denied where plaintiff was able to identify the owner/operator of vehicle that hit him as a pedestrian. Leave to seek first party benefits from MVIAC denied as premature as plaintiff must first pursue no-fault benefits against owner/operator with MVIAC being the remedy of last resort. Nakamura v Motor Veh. Acc. Indem. Corp.    

(1 summaries)

Premises Liab   Stairs   Create Condition   Dangerous Condition   Notice   Unknown Cause  

Second Department
Homeowner denied summary judgment where plaintiff fell on interior staircase without submitting proof there was no dangerous condition, defendant had no notice of a dangerous condition, or that plaintiff could not identify the cause of her fall. The Court does not give the details of the proofs. Dilorenzo v Nunziatto    

About Matt McMahon

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