October 26, 2021 | Vol. 284

(4 summaries)

MVA   Rear End   Nonnegligent Explanation   Attorney Disqualification  

First Department
Plaintiffs’ counsel disqualified even though interests of driver and passenger were not necessarily conflicting where counsel failed to get prior written consent as required by Rules of Professional Conduct.

Defendant-driver’s affidavit stating accident was caused by plaintiff-driver’s unsafe lane change raised issue in opposition to plaintiffs’ affidavits that defendants’ truck rear-ended their vehicle, and police report and accident photos left questions of credibility for jury. Sanyang v Davis    

Discovery   Preclusion   Sanctions   Attorney Fees  

First Department
Plaintiff’s motion for sanctions and costs granted and after hearing defense counsel ordered to pay plaintiff $15,959.09 in attorney fees/costs and Lawyers’ Fund $10,000 for frivolous conduct of bringing motion to extend time to conduct non-party EBTs the day before a conditional order of preclusion would take effect, unilaterally taking several of the NPDs after the preclusion took effect, and moving to reargue and filing a Notice of Appeal “based on the improperly obtained transcripts of the NPDs.” CPLR §3013(b), relied on by defendant, is not “an automatic discovery-deadline extension device.” Singh v New York City Hous. Auth.    

Default Judgment   Compel Acceptance   Reasonable Excuse   Meritorious Defense   Prejudice   Sanctions  

First Department
Plaintiff’s motion for default denied and NYCTA’s cross motion to deem Answer served more than 1-year late timely served nunc pro tunc granted on reasonable excuse of law office failure under CPLR §3012(d), lack of prejudice to plaintiff, and policy favoring cases be decided on merits conditioned on defendant paying plaintiff $3,500.00 to cover costs of making motion and extensive attempts to have defendant serve an Answer. Velasquez v New York City Tr. Auth./MTA    

Comment: From the motion papers, the law office failure excuse consisted of a statement that the firm was inundated with new Complaints to respond to without any explanation of why repeated calls and emails requesting an Answer were unheeded.

Labor Law §200   Falling Object   Safety Devices   Experts  

Second Department
Worker standing at ground level struck in head by 200 lb. soccer board that slid off forklift raised 8′-9′ as he and coworkers tried to slide board into truck granted summary judgment on Labor Law §240(1) and defendants’ motions for summary judgment denied. Removal of heavy soccer boards used to form walls of indoor soccer fields was both demolition as defined in 12 NYCRR 23-1.4(16) and altering of a structure entitled to protection under §240. The heavy boards were an object that required securing and it was not necessary to show they were being hoisted or secured at time of accident. Plaintiff’s testimony and expert’s affidavit established defendants failed to provide an adequate safety device where ‘load guides and/or guide rails’ on the forklift were removed to fit through a doorway. Hensel v Aviator FSC, Inc.    

(10 summaries)

Vacate Default   Reasonable Excuse   Meritorious Action   Willful/Contumacious   NYC  

First Department
Plaintiff’s motion to vacate dismissal for not appearing at scheduled conference denied where counsel had signed so-ordered stip containing conference date, failed to explain non-appearance at that and subsequent conferences, or explain delay of more than 2-years in seeking to vacate default. Given plaintiff’s persistent, willful inaction, issue of meritorious action moot. Langomas v City of New York    

Malpractice   Set Aside Verdict   Accepted Practice   Experts  

Second Department
Plaintiff’s motion to set aside verdict finding defendant did not depart from accepted practice by ordering chest x-ray instead of CT scan where decedent died of lung cancer denied as verdict could be reached on fair interpretation of evidence including competing expert opinions, resolving credibility issues in favor of defendant. Abbene v Conetta    

Sepulcher   Question of Fact   Appealable Order   Raised For First Time  

Second Department
Summary judgment motions to dismiss right of sepulcher action by not-for-profit providing funeral services for the indigent, a funeral home, and funeral chapel denied where daughter noticed sticker identifying different person on casket just before it was interred, her father’s body was in second of three burials performed by not-for-profit’s Rabbi that day, disinterred and buried in the proper grave with a religious ceremony. Defendants failed to show they did not interfere with plaintiff’s absolute right of possession of her father’s body and the ‘solace and comfort in the ritual of burial,’ where the body was misplaced for some amount of time. Chapel claimed it only rented space to the not-for-profit, but questions remained of whether it had any part in identifying which body was to be buried in which grave.

The Court declined to search record and grant plaintiff summary judgment where questions remained on each defendant’s liability and question of liability against non-appealing defendants was not raised below. Gutnick v Hebrew Free Burial Socy. for the Poor of the City of Brooklyn    

Labor Law §241   Labor Law §200   Industrial Code   Causation   NYC  

Second Department
Defendants failed to meet burden for summary judgment on Labor Law §200 and negligence claims of laborer who tripped on pipe concealed under vapor barrier sheet where issue remained of whether placement of sheet on top of pipe instead of under it was an inherent hazard of plaintiff’s work. Defendants granted summary judgment of Labor Law §241(6) claims as industrial code §23-1.7(d)(slipping) inapplicable even though foreman testified to slippery condition as plaintiff tripped rather than slipped, §23-1.7(e)(1) inapplicable as area was not a passageway, and vapor barrier was neither debris nor scattered as required for application of §23-1.7(e)(2). Fonck v City of New York    

Premises Liab   Snow/Ice   Storm in Progress   Admission   Experts   Espinal   Indemnity  

First Department
Plaintiff’s testimony he felt rain falling while on ground after he fell, and had not seen or felt rain or ice on ground for an hour before accident, confirmed by meteorological data and defendants’ expert established a storm in progress. Espinal exception inapplicable without proof of creation or exacerbation of condition and contractual indemnity denied were duty to remove snow/ice was never triggered. Murphy v Goldman Sachs Group, Inc.    

Premises Liab   Open/Obvious   Duty   Question of Fact   Feigned Issue  

First Department
Plaintiff’s EBT testimony, taken before defendant’s motion for summary judgment, raised issue of whether loft was unsafe and was not designed to avoid summary judgment or incredible as a matter of law. Defendant’s argument condition was open/obvious did not overcome obligation to maintain premises in reasonably safe condition. Hutchison v Estate of Kursh    

Premises Liab   Wet Floor   Notice   Recurring Condition  

First Department
Defendants failed to eliminate questions of notice of recurring condition of snow, ice, water accumulating outside hotel, and that it would be tracked into lobby, as submissions did not show lack of accumulation plaintiff testified existed or that defendants acted reasonably in response to the recurring condition. Braendgaard v KSSNY Inc.    

Pedestrian   Bicycle   Nonnegligent Explanation   Respondeat Superior   Comparative Fault  

First Department
Proof that bicyclist riding wrong way on 1-way street struck pedestrian made out entitlement to summary judgment and defendant failed to offer a nonnegligent explanation. Employer responsible as delivery person was acting within scope of employment and accident was unintentional.

Plaintiff not required to show freedom from comparative fault for summary judgment but it may be considered by jury on issue of damages. Montague v Shun Lee Palace Rest., Inc.    


First Department
Plaintiff’s pre-action CPLR §3102(c) petition to preserve and produce bus video from accident granted only to extent of requiring NYCTA to preserve video as plaintiff clearly had sufficient information to frame her Complaint. Desire to explore other theories of liability is not permitted under §3102. Matter of White v New York City Tr. Auth.    

Serious Injury   Degenerative   ROM   Experts  

First Department
Defendants met burden for summary judgment on serious injury by radiologist’s opinion that MRIs showed only degenerative conditions and IME/DME orthopedist’s finding of no limited ROM. Plaintiff’s expert’s finding of limited ROM 17-months after accident failed to raise issue as it was too remote to be connected to accident. Blake v Sanchez    

(1 summaries)

Malpractice   Accepted Practice   Experts  

Second Department
Second hospital which discharged decedent from ER with complaint of difficulty breathing granted summary judgment where decedent died the next day of bilateral thromboemboli from DVT on expert’s opinion of no departure from accepted practice and plaintiff failed to raise an issue in opposition. The court does not give the details of the proofs. Carradice v Jamaica Hosp. Med. Ctr.    

About Matt McMahon

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