Premises Liab Labor Law §241 Labor Law §200 1-2 Family Exception
Owner of 4-story brownstone with 2-commercial offices on bottom floor granted summary judgment under homeowner’s exception for claims by worker injured by a mill grinder while demolishing stairs to build a porch outside owner’s kitchen as the work was solely for a residential purpose that did not enhance any commercial purpose of the property. Ovalle v Buckwalter
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Premises Liab Open/Obvious Inherently Dangerous Notice Unknown Cause Admissibility Hearsay
Defendants’ proof that mudsill under pole of sidewalk shed in NYCHA complex was open/obvious and not inherently dangerous made out prima facie entitlement to summary judgment and they were not required to prove lack of notice. Affidavit of witness that plaintiff told her she tripped on mudsill which she did not see because of poor lighting, contradicting testimony at plaintiff’s 50-H hearing, raised an issue of fact as an excited utterance made under the stress of plaintiff’s fall. Plaintiff died before the motion was made. Hayward v Zoria Hous., LLC
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Med Mal Statute of Limitations Foreign Object
Stent placed in plaintiff’s ureter to aid passing kidney stones, intended to remain for 2-4 weeks, was a fixation device, not a foreign object even though a treating physician referred to it as a foreign object, was not subject to tolling under CPLR §214-a, and barred by statute limitations. Gaylord v Gentile
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Amend Answer Collateral Estoppel Res Ipsa Loquitor Workers Comp Prejudice
Defendants’ motion to amend Answer to include collateral estoppel/res judicata defense based on Worker’s Compensation decision granted as not palpably devoid of merit. Plaintiff’s argument he would be prejudiced because it would change trial strategy rejected where plaintiff knew of the decision for years. Rodriguez v Extell W. 57th St. LLC
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Negligent Hiring Notice NYC
NYC granted summary judgment of negligent hiring, training, and retention on successive motion made 9.5 years after initial motion denied. Successive motions disfavored but properly entertained when valid and granting of motion would eliminate unnecessary burden on court. The case was 22-years old when successive motion was granted on proof that NYC did not have notice of any propensity of the detective to improperly handle service revolver before he showed it to plaintiff in a bar where it went off striking plaintiff in the face. Barton v City of New York
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Labor Law §240 Labor Law §200 Falling Object Comparative Fault Create Condition Control Indemnity
Worker struck in head, while standing at ground level, by metal baluster dislodged by subcontractor’s employee on third floor entitled to summary judgment on Labor Law §240(1) against subcontractor and on Labor Law §200 and negligence where there was no dispute that subcontractor’s employee dislodged the baluster. Claim plaintiff was not supposed to be in the area at time of accident was at most comparative fault, not a defense under §240. Summary judgment against general contractor denied on §§240 and 200 where subcontractor’s superintendent testified general contractor’s superintendent instructed the employee to cut the baluster raising question of whether general contractor supervised work.
General contractor granted conditional summary judgment on contractual indemnity claim pending determination of its own negligence. Plaintiff’s employer denied summary judgment on subcontractor’s claim for contractual indemnity on testimony that plaintiff was not supposed to be in area raising issue on indemnity claim. Hewitt v NY 70th St. LLC
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Labor Law §200 Labor Law §241 Industrial Code Control Notice Indemnity
Defendants denied summary judgement on Labor Law §§ 200 and 241(6) based on industrial code §23-1.7(d)(slipping hazard) where worker twice slipped and fell on ice going to excavator along only path available. Argument that plaintiff failed to prove defendants created or had notice of dangerous condition attempted to switch defendants’ burden to plaintiff. Defendants’ submission, including plaintiff’s testimony raised question on creation and notice and there was no dispute that defendants controlled the work site. Climatological records submitted by defendants did not show it impossible for the icy condition to have been present as a matter of law.
Snow removal contractor granted summary judgment of third-party claims for contractual indemnity on proof contracts did not require it to remove snow/ice in area where plaintiff fell. It was denied summary judgment of common law indemnity claims where it could be found that it, not other defendants were at fault at trial. Zukowski v Powell Cove Estates Home Owners Assn., Inc.
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Labor Law §240 Labor Law §241 Labor Law §200 Industrial Code Expert Aff
Defendants denied summary judgment on Labor Law §§240(1) and 200 on testimony of prior cracks in the floor and expert’s opinion that a proper inspection would have revealed the condition and the foreseeable risk floor overloading would cause collapse that injured plaintiff. Summary judgment denied on Labor Law §241(6) where questions of fact remained on violation of industrial code 23-2.1(a)(2)(storage of materials on floor). Sinera v Bedford-Webster LLC
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Premises Liab Set Aside Verdict Dangerous Condition Unknown Cause Raised For First Time
Judgment after nonjury trial affirmed where witness testified that plaintiff was told to stop joking and playing around on platform he fell from on defendants property while at work as there was no evidence of a dangerous condition and plaintiff could not identify what caused him to fall. Claim of res ipsa loquitor not preserved where not raised at trial. Calero v Statewide Stor. Sys., Inc.
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Premises Liab Slip/Trip Sidewalk Prior Written Notice § 7-210 Create Condition NYC
NYC granted summary judgment where plaintiff conceded NYC did not create a dangerous condition or have prior written notice of defect of metal cover of pull box used to control traffic lights and claim NYC had duty to maintain cover under 34 RCNY 2-07(b)(maintain 12″ from grate or cover) regardless of prior written notice rejected as duty under administrative code §7-210 requires prior written notice for liability against NYC. Use of pull box was solely for controlling traffic devices for the public and not a “special use” conferring benefit to NYC. Funkelstein v City of New York
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Premises Liab Causation Foreseeability Expert Aff Speculation Conclusory
Building owner and manager granted summary judgment on FDNY fire marshals’ reports and testimony, and affidavit of fire investigator, establishing apartment fire that killed plaintiff’s decedent was caused by portable electric heater coming in contact with combustible material and not the electrical system as there was no evidence of arcing, melting, beading, or other hallmarks of an electrical fire. The fire was not a foreseeable result of defendant’s failure to provide heat.
Plaintiffs’ expert professional engineer and electrical engineer opinions admissible even though not certified fire investigators but failed to raise triable issues where conclusory, speculative, not supported by the record, and they failed to address defendants’ experts’ assertions. Ponomareva v 1439 Realty, LLC
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False Arrest False Imprisonment Malicious Prosecution Battery Probable Cause Notice of Claim NYC
NYC and police officers failed to meet burden of showing probable cause to arrest plaintiff for criminal possession of a weapon where plaintiff flagged down police, said he was shot by drug dealer, and that he had drug dealer’s gun raising issue of temporary lawful possession. Even if defendants could have proved probable cause on uncharged offenses, they failed to do so.
Claims of assault and battery based on denial of treatment while in custody not pleaded in Notice of Claim or Complaint dismissed and plaintiff’s inconsistent testimony on this point failed to raise an issue in opposition. Claim of excessive force for being handcuffed, photographed, fingerprinted, and searched was duplicative of assault and battery claims. Idelfonso v City of New York
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Premises Liab Slip/Trip Stairs Snow/Ice Notice Recurring Condition
Defendants failed to meet burden of showing that snow accumulated on awning partially covering stairs, melting and refreezing on the steps, was not a recurring condition and that they did not have notice of the condition. D’Amato v Vitale
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Med Mal Accepted Practice Causation Expert Aff Raised For First Time
Defendants made out entitlement to summary judgment on expert opinions that infant plaintiff’s care while on ventilator did not deviate from accepted practice and that plaintiff did have any brain injury caused by oxygen deprivation but were congenital. Plaintiff’s expert failed to raise issue in opposition by not addressing plaintiff’s care while on ventilator or cause of the injuries and did not rebut or undermine defendants’ experts’ opinions. Defendants sufficiently rebutted plaintiff’s expert’s observation of changes between brain MRIs in expert affirmation on reply. Plaintiff’s claim regarding failure to diagnose secondary pulmonary hypertension not considered where not raised in lower court. Olivia R. v Morris
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Labor Law §240 Scaffold Safety Devices Sole Cause Preexisting
Plaintiff who fell from side of scaffold with no safety rail and was not provided any other safety devices made out entitlement to summary judgment on Labor Law §240(1). Defendants’ argument that plaintiff’s pre-existing condition was sole cause of accident rejected as a pre-existing condition cannot be a sole proximate cause in light of lack of safety devices. Deschaine v Tricon Constr., LLC
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Premises Liab Slip/Trip Snow/Ice Stairs Storm in Progress
NYCHA granted summary judgment on expert opinion based on climatological data and grounds supervisor’s testimony of an ice storm in the hours before plaintiff fell on stairs establishing a storm in progress. Plaintiff’s claim that NYCHA’s ice removal exacerbated condition rebutted by her testimony that stairway had not been shoveled, sanded, or salted at time of her accident. Giron v New York City Hous. Auth.
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MVA Bus Dangerous Condition
MTA bus and NYCTA granted summary judgment where plaintiff testified that driver stopped at bus stop within 10″ of sidewalk and neither bus nor curb were defective. 6″-10″gap between bus and sidewalk after driver lowered bus to 5″ above ground did not raise issue of fact and there was no proof that plaintiff appeared unable to negotiate the distance. MTA granted summary judgment as it is not a proper party. Archer v New York City Tr. Auth.
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Motion to Dismiss Attorney Fees Collateral Estoppel Res Ipsa Loquitor
Motion to dismiss liaison counsel’s claims of attorney fees owed based on private agreement of engagement with defense counsel in cases for 9/11 victims denied as not preempted by Air Transportation Safety and System Stabilization Act of 2001 since her claims did not arise under that act and Federal District judge’s decision refused to hear those claims and stated that plaintiff was not barred from bringing them in state court which made collateral estoppel and res judicata inapplicable. Mishkin v Mascolo
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Premises Liab Discovery Premature Motion
Defendant’s motion for summary judgment made days after plaintiff left deposition before it was completed and defense counsel refused to allow plaintiff to depose defendants, one of whom was present at plaintiff’s deposition, was premature as plaintiff had insufficient testimony to oppose motion and plaintiff’s attorney was not at fault for not completing the depositions. Tamburello v Rubino
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Premises Liab Premature Motion
Motion by 2-defendants for summary judgment dismissing action and cross claims denied as premature where depositions had not been completed. The court does not give the details of the proofs. Vasquez v Zion Lutheran Church
Comment: Lower court decision discusses what information might be solely within the movant’s possession necessary to oppose the motion, including depositions of witnesses from a prior action of which the opposing defendants were not parties.
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MVIAC Admissibility Hearsay Uncertified Records
Petitioner met burden of showing she was a qualified person for MVIAC on statement that she was injured in an accident involving a motorcycle, the owner of the motor vehicle could not be identified, she did not own a motor vehicle, and the daughter she lived with was not an insured person. DMV abstract relied on by MVIAC to claim she lived with insured relatives was unclear on its face and was inadmissible hearsay where not certified or authenticated. Matter of Brioso v Motor Veh. Acc. Indem. Corp.
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Serious Injury BP
Defendant failed to meet burden on serious injury for 90/180-day category alleged in BP where plaintiff’s testimony failed to identify plaintiff’s usual pre-accident activities or compare them to post accident activities. Hall v Stargot
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MVA Rear End Nonnegligent Explanation
Defendant-driver’s testimony that she was fully stopped when hit in the rear and pushed into plaintiff’s car in front of her established nonnegligent explanation entitling defendants to summary judgment and plaintiff failed to raise an issue in opposition. Holmberg v Bevcon Group Inc.
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Labor Law §240 Sole Cause Control Notice
Defendants granted summary judgment of Labor Law §240(1) claim on proof plaintiff was sole proximate cause of the accident which precludes a finding of a Labor Law violation. The court does not give the details of the proofs. Defendants also granted summary judgment on Labor Law §200 and negligence on proof they did not have authority to control plaintiff’s work and did not have constructive notice of a dangerous condition. Ahmed v F & G Group, LLC
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