October 29, 2019 | Vol. 182


MUST READS
(7 summaries)
NOTEWORTHYIF YOU MUST READ



Late Notice of Claim   Emotional Harm   Zone of Harm  

Second Department
Motion on behalf of 3-infant-plaintiffs who suffered emotional harm after fellow student was killed when heavy log they were carrying overhead during football practice fell, for leave to serve the late Notice of Claim made 10-months after incident denied with Second Department finding that claim was patently meritless since plaintif’s were not immediate family of decedent as required for zone-of-harm cause of action. In addition, school showed it had no authority to continue paying for outside counseling and continued to provide staff counseling. Matter of Kmiotek v Sachem Cent. Sch. Dist.


Negligent Supervision   Negligent Hiring   Late Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice   Statute of Limitations  

Second Department
Mother’s motion for leave to serve late Notice of Claim for derivative cause of action for child’s sexual abuse by social studies teacher granted on showing of reasonable excuse for the delay, school district had actual knowledge of essential elements of case within reasonable time after the 90-day period, and school was not prejudiced by delay. Court noted that statute of limitations for this type of sexual assault under Education Law § 3813[2], [2-b] was 1-year, not 1-year-end 90-days, but that the application was made within the statute of limitations. Matter of D.S. v South Huntington Union Free Sch. Dist.


Serious Injury   ROM   Expert Aff  

First Department
Defendant established entitlement to summary judgment on serious injury by emergency medicine expert’s opinion that hospital and EMT records were not consistent with injuries to spine and shoulder. Plaintiff’s treating physicians’ affirmed reports showing spasms and quantified limited ROM, without specifying objective instrument used, raised issue of fact of continuing limitations for more than a year after accident on “significant” category but failed to submit evidence regarding permanency. Plaintiff’s physicians not required to rebut no-fault IME/DME doctor’s finding that injuries had resolved where no-fault doctor conceded injuries were caused by the accident. De Los Santos v Basilio

Comment: This case is a good example of differences between how the First and Second Departments address serious injury. The First department does not require that ROM be measured with a goniometer or other objective test, the Second Department does. Where the second Department finds an issue of fact on any serious injury category the entire motion is denied whereas the First department will grant summary judgment dismissing any category were an issue of fact is not raised.

Venue  

Second Department
Third-party defendant’s motion to change venue from Kings to Westchester County denied where it proved that Kings County was an improper venue but failed to show that Westchester County was a proper venue because its articles of incorporation, the only basis for residency for an LLC, designated Putnam County as its residence. Guerrero v BRE Park Ave. Tower Owner, LLC


False Arrest   Malicious Prosecution   1983 Action   Directed Verdict   Set Aside Verdict  

First Department
Directed verdict granted dismissing plaintiff’s 1983 right to fair trial action after plaintiff’s testimony reversed as a directed verdict cannot be granted until after the plaintiff’s case. Cromedy v City of New York


Med Mal   Mistrial   Costs/Disbursements   Motion to Dismiss  

Second Department
Plaintiffs providently awarded 50% of expert costs after mistrial because defendants’ expert could not appear due to medical problems. Dismissal of plaintiff’s action under 22 NYCRR 202.27 for failure to proceed with trial after plaintiff’s written and oral motions for adjournment denied upheld where plaintiff failed to give reasonable excuse for failure to proceed with trial. Johnson v Aguwa


MVA   Coverage   Fraud  

Second Department
Pennsylvania carrier’s motion for summary judgment to declare it was not obligated to defend or pay plaintiffs denied where it properly rescinded Pennsylvania policy based on policyholder’s fraud of claiming to be a Pennsylvania resident when in fact he was a New York resident, but under Pennsylvania law that rescission does not apply to plaintiffs who were not part of the fraud. Williams v Janvier

NOTEWORTHY
(21 summaries)
MUST READSIF YOU MUST READ



Serious Injury   Causation   ROM   Expert Aff  

First Department
Defendants made out entitlement to summary judgment on serious injury by radiologists and emergency medicine experts’ opinions that MRI and emergency room records showed no evidence of traumatic injury. Plaintiff raised issue of fact on “significant” injuries to his lumbar spine by treating doctor’s affirmation that he sustained bulging and herniated discs requiring the discectomy and documented limited ROM before and after the surgery. Plaintiff failed to raise issue of fact on “permanency” or 90/180-day categories and made no attempt to raise issue on knee injury. Court noted that a jury could award for injuries that did not meet the serious injury threshold if they found for plaintiff on the significant category. Arias v Martinez

Comment: This case highlights that even where injuries may have resolved they can still meet the “significant” category.

Labor Law §240   Labor Law §241   Gravity Risk   Industrial Code  

First Department
Plaintiff granted summary judgment on Labor Law §240(1) where 300 lb. AC coil secured to 2-dollies fell from truck liftgate onto plaintiff where weight of coil presented significant gravity risk even if distance was small and required either hoisting equipment or that it be secured so as not to tip over. Labor Law §241(6) claims dismissed as industrial code provisions relied on by plaintiff were inapplicable. Ali v Sloan-Kettering Inst. for Cancer Research


Late Notice of Claim   Motion to Dismiss   Court of Claims   Statute of Limitations  

Second Department
State’s motion to dismiss untimely claim granted, and plaintiff’s cross motion for leave to serve late Claim denied where plaintiff filed Claim within 90-days of accident but did not serve it on Atty. Gen. until 93rd day and statute of limitations had expired by then. Court has no authority to grant leave to file a late Notice of Claim after statute of limitations has expired. Dorr v State of New York


Med Mal   Accepted Practice   Causation   Expert Aff   Informed Consent   Vicarious Liab   Raised For First Time  

First Department
Plaintiff’s expert’s opinion that placenta could and was disrupted by inserting probe for transvaginal ultrasound (TVU) into vagina raised issue of fact on accepted practice and causation where defendants’ experts opinion that it could not since it never entered the cervix was based on TVU still photos at discrete times that did not dispositively eliminate possibility that it entered the cervix in between photos. Hospital granted summary judgment on informed consent because it was not their responsibility to obtain but denied summary judgment on vicarious liability claims for its employees where plaintiff raised issue of fact of independent acts of negligence. Hospital granted summary judgment for vicarious liability for individual doctors who had previously been dismissed. TVU requisition form showing it was ordered by attending not considered where it was submitted for the first time in reply. A a v St. Barnabas Hosp.


Premises Liab   Slip/Trip   Sidewalk   Snow/Ice   Notice of Claim   50-H   Create Condition   NYC  

Second Department
NYC granted summary judgment where Notice of Claim did not allege subsequent theory testified to at 50-H hearing and inserted in Complaint that NYC created the condition by allowing a recurring backup of sewerage onto pedestrian ramp which then froze. Rubenstein v City of New York


Labor Law §240   Labor Law §241   Labor Law §200  

First Department
Co-op and general contractor granted summary judgment on Labor Law §§240(1) & 241(6) because plaintiff’s work of installing window shades was not “altering” necessary to fall within §240 and co-op owners had removed window shades from general contract, contracting directly with plaintiff’s employer to be done after construction was completed. Labor Law §200 and negligence claims dismissed for failure to show negligence on behalf of co-op or GC. Topoli v 77 Bleecker St. Corp


MVA   Rear End   Serious Injury   CPLR §306-b   Reasonable Excuse   Meritorious Action   Statute of Limitations  

Second Department
Plaintiff denied extension of time to serve Summons and Complaint under CPLR 306-b due to her extreme lack of diligence in filing Summons and Complaint on last day of statute of limitations, making no attempt to serve within 120-days, and waiting over a year to move for extension of time to serve. Plaintiff offered no reasonable excuse for delays and while offering proof of rear-end collision, she failed to offer proof of a serious injury to set out a meritorious action. Butters v Payne


Premises Liab   Slip/Trip   Stairs   Notice of Claim   Create Condition   Notice  

First Department
NYCHA granted summary judgment where plaintiff’s original Notice of Claim had wrong address, he testified to correct address but wrong stairwell at 50-H and did not identify correct stairwell until EBT 2-years later. Because plaintiff never sought to amend Notice of Claim, NYCHA was not required to show prejudice. NYCHA also showed it did not create the condition or have notice of it and plaintiff failed to raise an issue of fact where plaintiff did not see the condition before he fell and was not aware of any prior complaints. Scott v New York City Hous. Auth.


Labor Law §240   Labor Law §241   Ladder   Industrial Code   Workers Comp Defense  

First Department
Plaintiff denied summary judgment on Labor Law §240(1), although his submission showed he fell from 14’ ladder while entering dust collector tank he was in process of removing, based on coworker’s testimony that plaintiff was involved in only cleaning and maintenance of the tank not covered by §240. Plaintiff failed to show industrial codes relied on were applicable. Worker’s Comp. defense dismissed on proof the plaintiff was hired and supervised by third-party building supply company. Terc v 535 Coster Realty Inc.


Serious Injury   Preexisting   Degenerative   Expert Aff  

First Department
Plaintiff raised issue of fact on significant and permanent consequential categories in opposition to defendants’ showing of entitlement to summary judgment by treating physicians’ affirmed reports showing spinal injuries were causally related to the accident, there was limited ROM shortly after accident to recent exam, and physician did not have to show freedom from pre-existing conditions where they were not contained in plaintiff’s medical records. Plaintiff explained gap in treatment where no-fault ended and her doctor did not accept Medicare. Plaintiff failed to raise issue of fact on bilateral knee injuries where pre-existing degenerative conditions were noted in her medical records, she testified about prior knee injury, and her doctors did not address prior knee injury or degeneration. Jenkins v Livo Car Inc.


Serious Injury   Preexisting   Degenerative   Causation   Expert Aff  

First Department
Plaintiff raised question of fact on “significant” category in opposition to defendant’s showing of entitlement to summary judgment on serious injury by treating physician’s affirmed report showing “meaningful limitations” 1-year and 9-months after accident, contemporaneous treatment within 2-weeks of accident, and MRI finding of synovial cyst, findings of spasms, nerve root irritation and/or radiculopathy provided objective proof of serious injury. Un-affirmed MRI report admissible where relied on by defendants. Montoya v Rosenberger


Serious Injury   Expert Aff  

Second Department
Plaintiff raised issue of fact in opposition to defendant’s showing of entitlement to summary judgment on serious injury by opinion of physician who examined plaintiff and reviewed his records that plaintiff sustained ‘a permanent partial disability reflecting the consequential limitation of use of the lumbar spine’ causally related to the accident. Gobin v Singh


Serious Injury   Preexisting   Degenerative   Expert Aff  

First Department
Defendants’ granted summary judgment on serious injury on proof that knee injury was pre-existing osteoarthritis and there were no records of contemporaneous treatment or complaints for her knee. Treating orthopedist’s operative report showing severe osteoarthritis before and after surgery did not raise issue of fact and his opinion that the knee condition was aggravated was not based on objective proof as it did not show any injury other than the prior condition. Unsworn medical records submitted by plaintiff on spine and shoulder injuries insufficient to raise issue of fact. Moctezuma v Garcia


Serious Injury   Admissibility   Preexisting   Expert Aff   Conclusory  

First Department
Defendants made prima facie case for summary judgment on serious injury by radiologist’s and orthopedist’s opinions that x-rays, MRIs, and medical records showed pre-existing injuries and no trauma and they could rely on unsworn medical records in reaching their opinions. Conclusory statements and plaintiffs treating doctor’s reports insufficient to raise issue of fact where the they never addressed findings of pre-existing and degenerative conditions contained in the plaintiff’s medical records. Williams v Laura Livery Corp.


Premises Liab   Slip/Trip   § 7-210   Premature Motion  

Second Department
Premises liability; slip/trip; §7-210; 1-3 family exception; premature motion Second, reversed, defendant Abutting landowner granted summary judgment on his testimony, deed, property transfer report, and certificate of occupancy proving it was an owner occupied 3-family home used exclusively for residential purposes not subject to administrative code §7-210. Motion was not premature as plaintiff failed to show what information exclusively within the possession of the defendant was necessary to oppose the motion. Castro v Rodriguez


Premises Liab   Duty   Create Condition   Notice   3rd Party Contractor   Espinal  

First Department
Building owner and manager granted summary judgment on proof they did not create the temporary unsafe condition or have notice of it where they were not informed of and did not give gave permission for construction materials to be carried in elevator while plaintiff was a passenger. Independent contractors with exclusive control over elevators denied summary judgment where their contract wholly displaced owner’s responsibilities over elevator and they could be found to have launched an instrumentality of harm under Espinal. Rivera v 11 W. 42 Realty Invs., L.L.C.


Building Security   Notice   Foreseeability  

First Department
Building met its duty to provide minimal security where it provided locking exterior doors, a buzzer and intercom system, and video surveillance cameras and there was no history of prior robberies or violent crimes in the building. Plaintiff’s reliance on vague testimony of unknown police activity and claimed drug sales, robberies, and violent crimes insufficient to raise an issue of fact. Plaintiff did not claim assailant was not an invited guest or that there were any deficiencies with the security systems installed. Lawyer v City of New York


Motion to Dismiss   50-H   Reasonable Excuse  

Second Department
In false arrest and false imprisonment case, defendants’ motion to dismiss for plaintiff’s failure to appear for 50-H hearing granted. Plaintiff made no attempt to reschedule the hearing or provide a reasonable excuse for not complying with the 50-H notice. Cardella v Suffolk County Police Dept.


Default Judgment   Reasonable Excuse   Prejudice   Meritorious Defense   Compel Acceptance  

First Department
Plaintiff’s motion for default judgment denied and defendant’s motion to compel plaintiff to accept Answer granted but affirmative defense of personal jurisdiction stricken where delay was minimal, not willful, and plaintiff was not prejudiced by denial of motion. Defendant was not required to show meritorious defense since no default had been granted. Pichardo v 969 Amsterdam Holdings, LLC


Premises Liab   Slip/Trip   Stairs   Duty  

Second Department
Medical practice that was tenant in building where plaintiff slipped on exterior stairs granted summary judgment on proof that building and not tenant had the sole duty to maintain the stairs under the lease. Arshinov v Gr 10-40, LLC


MVA   Question of Fact  

First Department
Defendants denied summary judgment on conflicting testimony about whether driver of their car put hazard lights on after pulling to the left shoulder of highway when plaintiff was struck while assisting in changing a flat tire and whether a portion of the car was in the left lane. Jackson v Insoo Lah

IF YOU MUST READ
(1 summaries)
MUST READSNOTEWORTHY

Uninsured   Stay Arb  

Second Department
Permanent stay of UM arbitration granted were plaintiff failed to report accident to police within 24 hours as required by policy. Matter of Progressive Direct Ins. Co. v Ostapenko

About Matt McMahon

Civil trials and appeals since 1984
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