October 27, 2020 | Vol. 233

(7 summaries)

Dogbite   Vicious Propensity   Notice   Duty   Accepted Practice   BP  

Court of Appeals

When a veterinarian returned a dog to the defendant-clinic’s waiting room after a medical procedure and it attacked plaintiff after slipping its collar get at plaintiff’s cat. Lower court granted clinic summary judgment where there was no notice the dog had vicious propensities, believing the 2006 Court of Appeals decision in Bard v. Janke barred all claims for dog attacks other than strict liability based on vicious propensity. Appellate Division affirmed and Court of Appeals modified to deny summary judgment noting that no one argued the Bard rule which was not applicable to non-owners, including a veterinary clinic which can be liable under a negligence standard, like landlords who rent to pet owners, based on their special knowledge of the needs and behaviors of animals and where they may create conditions that increase aggressiveness such as by bringing a pet into a room crowded with people and pets while in pain or agitated after a medical procedure. A veterinarian does not need the protection of requiring notice of vicious propensities and the Court noted it is not suggesting they could be liable under strict liability.

A concurring opinion joined by 3-judges went through the history of animal liability in New York in detail and the change from dual liability under strict liability and/or negligence before the 2006 Bard decision. It points out that Bard was never intended to apply to non-owners of the animal and that “[t]he inequity of the Bard rule in the context of pet-owner liability sharply cautions against extending that rule a whit.” Malpractice claim of failing to give appropriate medication in violation of standard of care stricken from supplemental BP as it was a new theory without notice in the Complaint. Hewitt v Palmer Veterinary Clinic, PC

MVA   Bus   Amend Complaint   Negligent Hiring   Punitive Damages   Notice of Claim   Statute of Limitations   Prejudice  

Second Department

Plaintiff’s motion to amend Complaint to add negligent hiring and punitive damages against defendant, Liberty Lines, providently granted where hiring claim was beyond statute of limitations but Liberty Lines had its deceased employee’s personnel records from time of the accident and the new theory was based on information in those records. Negligent hiring, retention, and supervision was in original Notice of Claim.Personnel file showed Liberty Lines had notice of its deceased employee’s prior accidents, and complaint of aggressive driving 9-months before accident that required retraining justifying punitive damage claim.

Argument that Liberty Lines could not be sued for punitive damages since it was driving a bus owned by Westchester County, since municipalities are not subject to punitive damages, rejected as Liberty Lines was a private employer. Roberts v Liberty Lines Tr., Inc.

Med Mal   Set Aside Verdict   Frye   Preclusion  

First Department

Plaintiff’s verdict set aside where lower court improvidently precluded any testimony on defendants’ main theory that plaintiff’s decedent had a amniotic fluid embolism (AFE), after a “quasi-Frye” hearing where lower court ignored evidence that hypoxia might not be seen where patient is intubated, she had other symptoms of AFE and most of the risk factors, and hypoxia is not seen in some cases of AFE which the First Department found met Frye test. Lower court erred in deciding issue instead of determining if there was support for the theory. Defense verdict for 1-defendant allowed to stand. Hudak v Good Samaritan Hosp. of Suffern, N.Y.

Assault   Battery   Collateral Estoppel   Admissibility   Preclusion   Dead Man Statute   Waiver  

Second Department

Plaintiffs, mother and daughter, attacked by mother’s brother failed to meet burden for summary judgment on collateral estoppel where brother’s plea allocution did not contain facts of harassment charge to see if they met assault and battery elements and judge refused to make him detail physical actions. Large portions of plaintiffs’ testimony could not be considered under dead man’s statute, CPLR §4519, and defendant’s use of portions of decedent’s testimony, and providing information during discovery, did not open the door. Preclusion based on dead man’s statute is determined at trial and such testimony cannot be used to support a motion for summary judgment but can be used to oppose one. Kuznitz v Funk

Premises Liab   Res Ipsa Loquitor   Notice   Notice of Claim  

First Department

Plaintiff’s testimony she lived in apartment for 19-years, would contact NYCHA for issues with circuit box that exploded and caught fire burning her, and fact NYCHA inspected, maintained, and repaired the circuit box raised triable issues on the applicability of res ipsa loquitor. Constructive notice may be inferred under that doctrine. Failure to allege res ipsa loquitor in Complaint or Notice of Claim not fatal as it is an evidentiary rule, not a separate theory, ‘that involves “‘a common sense application of the probative value of circumstantial evidence’.” Townsend v New York City Hous. Auth.

Attorney Fees   Vacate Jud   Sanctions  

Second Department

After the Second Department confirmed an arbitration award splitting a contingency fee with $600,000 to outgoing counsel, Finkelstein & Partners, LLC, and $133,254 to incoming counsel, The Flomenhaft Law Firm, PLLC, incoming counsel again moved to modify or vacate the arbitration award claiming outgoing counsel failed to timely file a retainer statement, moved to reargue the denial of that motion, and appealed. Second Department affirmed the judgment noting their prior decision was not an invitation for additional motions and found outgoing counsel’s appeal frivolous ordering a $3,000 sanction to be paid to the client security fund. David v Byron

Med Mal   Venue  

First Department

Emergency physician service’s motion to change venue from New York to Oneida County, where plaintiff-based venue on corporation’s listing New York county as principal office with Secretary of State denied. Biennial statement filed with Secretary of State indicating its principal office was in New Jersey does not control for purposes of venue even if it does not have an office in New York County since it was not designated in a certificate or amended certificate of incorporation. Sultana v St. Elizabeth Med. Ctr.

(24 summaries)

Premises Liab   Labor Law §241   Labor Law §200   1-2 Family Exception  

First Department

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

Premises Liab   Open/Obvious   Inherently Dangerous   Notice   Unknown Cause   Admissibility   Hearsay  

Second Department

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

Med Mal   Statute of Limitations   Foreign Object  

First Department

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

Amend Answer   Collateral Estoppel   Res Ipsa Loquitor   Workers Comp   Prejudice  

First Department

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

Negligent Hiring   Notice   NYC  

Second Department

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

Labor Law §240   Labor Law §200   Falling Object   Comparative Fault   Create Condition   Control   Indemnity  

First Department

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

Labor Law §200   Labor Law §241   Industrial Code   Control   Notice   Indemnity  

Second Department

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.

Labor Law §240   Labor Law §241   Labor Law §200   Industrial Code   Expert Aff  

First Department

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

Premises Liab   Set Aside Verdict   Dangerous Condition   Unknown Cause   Raised For First Time  

Second Department

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.

Premises Liab   Slip/Trip   Sidewalk   Prior Written Notice   § 7-210   Create Condition   NYC  

First Department

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

Premises Liab   Causation   Foreseeability   Expert Aff   Speculation   Conclusory  

Second Department

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

False Arrest   False Imprisonment   Malicious Prosecution   Battery   Probable Cause   Notice of Claim   NYC  

First Department

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

Premises Liab   Slip/Trip   Stairs   Snow/Ice   Notice   Recurring Condition  

Second Department

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

Med Mal   Accepted Practice   Causation   Expert Aff   Raised For First Time  

First Department

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

Labor Law §240   Scaffold   Safety Devices   Sole Cause   Preexisting  

First Department

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

Premises Liab   Slip/Trip   Snow/Ice   Stairs   Storm in Progress  

First Department

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.

MVA   Bus   Dangerous Condition  

First Department

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.

Motion to Dismiss   Attorney Fees   Collateral Estoppel   Res Ipsa Loquitor  

First Department

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

Premises Liab   Discovery   Premature Motion  

Second Department

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

Premises Liab   Premature Motion  

Second Department

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.

MVIAC   Admissibility   Hearsay   Uncertified Records  

First Department

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.

Serious Injury   BP  

Second Department

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

MVA   Rear End   Nonnegligent Explanation  

First Department

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.

Labor Law §240   Sole Cause   Control   Notice  

First Department

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

(3 summaries)

Uninsured   Stay Arb   Untimely   Discovery  

First Department

Uninsured carrier failed to meet burden of showing hit-and-run accident did not occur at hearing and arbitrator’s finding it did occur was supported by evidence. Carrier’s 3-month delay in disclaiming was unreasonable where the grounds were readily apparent from the demand for arbitration, and the carrier failed to show that it made any demand for discovery prior to filing the petition to permanently stay arbitration. Matter of Government Empls. Ins. Co. v Pellot

Serious Injury   Causation  

Second Department

Defendant met initial burden for summary judgment on serious injury by competent medical proof, but plaintiff raised an issue in opposition and burden on causation did not shift to plaintiff as defendant failed to establish lack of causation. The court does not give the details of the proofs. Reyes v Kashem

Uninsured   Stay Arb  

Second Department

Carrier failed to show vehicle that struck plaintiff’s vehicle was insured, requiring denial of petition to permanently stay arbitration. The court does not give the details of the proofs. Matter of Country-Wide Ins. Co. v Adams

About Matt McMahon

Civil trials and appeals since 1984
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