October 29, 2024 | Vol. 441


MUST READS
(5 summaries)
NOTEWORTHYIF YOU MUST READ



Assault   Police   Set Aside Verdict   Bifurcation   Pain/Suffering   Materially Deviates  

Second Department
County’s motion to set aside $150,000/$160,000 past/future pain/suffering verdict for inmate’s assault by several correction officers denied. Trial court providently granted plaintiff’s request to unify the trial after jury selection where his injuries, including a fractured rib, were “inextricably intertwined” with liability as consistent with plaintiff’s claim one of the officers kicked him in the ribs. The verdict was not against the weight of the evidence as the jury could reasonably credit plaintiff’s testimony that the officers assaulted him after he returned an insult to one of them and was not required to accept the officers’ version just because they each documented the altercation contemporaneously and consistently. Trial court properly allowed plaintiff to read portions of officers’ EBTs during his case which is specifically authorized by CPLR§3017(a)(2), even where defendants intended to call those witnesses on their case. Pain/suffering award did not materially deviate from reasonable compensation. Mujica v Nassau County Corr. Facility    


Governmental Function   Governmental Immunity   Special Duty   NYC  

Second Department
Motion to dismiss action for brain damage from delay of treatment by sending BLS instead of ALS in response to a 911 call of difficulty breathing and delay in transporting plaintiff to the hospital for intubation granted as a municipality’s emergency response in a classic governmental function entitled to governmental immunity for discretionary acts and the actions of the dispatcher, EMTs, and paramedics were all discretionary acts. Because the acts were all discretionary, the issue of special duty was moot. Walker-Rodriguez v City of New York    


Discovery   Notice  

Second Department
Plaintiff’s motion to compel NYCTA to provide “documents related to all gap-related studies, reports, accidents, and/or injuries occurring anywhere within the New York City subway system” for 10-years prior to plaintiff’s fall between subway station gap providently granted limited to 3-years where plaintiff showed the requested documents may lead to relevant information on defendants’ notice of the condition that caused her accident. Chacon v New York City Tr. Auth.    


Assault   Motion to Dismiss  

First Department
Motion to dismiss defendant’s counterclaims for sexual assault under the Adult Victims Act revival statute (CPLR §214-j) denied as the START Act, permitting vacatur of criminal convictions of victims of sex trafficking for participation in criminal activity, does not shield the person from civil liability. Giuffre v Oh    

Comment: Plaintiff and defendant both claimed to be victims of Jeffrey Epstein sex trafficking.

MVA   Motion to Dismiss   Personal Juridiction  

Second Department
Motion to dismiss by Vermont mechanics who repaired rental car plaintiff was injured in granted for lack of personal jurisdiction. Even if plaintiff could show they committed a tortious act outside the state that caused injury in NY there was no proof they “regularly did or solicited business, or engaged in any other persistent course of conduct, or derived substantial revenue from goods used or consumed or services rendered in New York” as required by CPLR §302(a)(3)(i), which would also have failed to show minimum contacts with NY for due process. Trotman v Priority Auto, Inc.    

NOTEWORTHY
(16 summaries)
MUST READSIF YOU MUST READ

Construction Liab.   Sidewalk   Errata Sheet   Untimely   Speculation  

First Department
Motion to strike plaintiff’s errata sheet that corrected portion of 50H testimony where she mis-marked where she fell on a photograph, that was not signed or notarized and did not give the reason for the change, providently granted only to the extent of extending plaintiff’s time to submit a proper errata sheet as her EBT testimony explained the marking mistake at the 50H which was held at the beginning of the Covid pandemic and was consistent with her 50H testimony that she tripped on a metal plate and tar that secured the plate on the sidewalk and the building’s incident report, leaving only questions of credibility.

Contractor failed to meet burden for summary judgment where plaintiff’s testimony of what caused her to fall was not speculative. Orenstein v 301 E. 78 St. Owners Corp.    



Vacate Default   Reasonable Excuse   Meritorious Action   NYC  

First Department
Plaintiff’s motion to vacate default judgment dismissing the Complaint against NYC providently denied where plaintiff showed a meritorious action, his counsel provided a reasonable explanation for not responding to the hard copy of the motion, but did not give a reasonable excuse for failing to e-file a notice of appearance until long after he notified NYC of his representation, which would have ensured he received notice of NYC’s motion to dismiss, and counsel’s actions were part of a larger pattern of neglect including several prior attorneys not timely responding to discovery orders, his present counsel not sending plaintiff a letter after he couldn’t reach him, and not bringing the motion to vacate for nearly 1-year. Bey v City of New York    


Premises Liab   Strike Answer   Jury Charge   Spoliation   Survelliance Video  

First Department
Plaintiff’s motion to strike building owner’s Answer for failure to preserve pre-accident and accident videos that were erased after 30-days granted to the extent of an adverse inference charge where defendant was aware of the need to preserve the video but took no affirmative steps to do so. Striking defendant’s Answer inappropriate where plaintiff could prove her case without the video. Acosta-Romero v Suiyeng Hung Fong    


Construction Liab.   Motion to Dismiss   Admissibility  

First Department
Electrical contractor’s motion to dismiss plaintiff’s claim that he was electrocuted while working for a plumber on a construction project based on its affidavit that it did no work on that site denied as factual affidavits are not documentary evidence, the affiant did not show personal knowledge, and internet documents it included did not utterly refute the allegations in the Complaint. Juman v Cape Church Assoc., LLC    


Assumption of Risk  

Second Department
School defendants failed to meet burden of showing high school cheerleader’s TBI was barred by primary assumption of risk where infant-plaintiff and her teammate testified that the cheerleader they were throwing into the air landed on the infant-plaintiff several times, knocking her to the ground where she hit her head, that the coach observed this during several of the instances and directed them to continue practicing the move, leaving questions of whether defendants enhanced the risks normally associated with cheerleading. Ohlsen v William Floyd Sch. Dist.    


Labor Law §240   Safety Devices   Admissibility   Hearsay   Experts  

First Department
Plaintiff who fell 10’-12’ while stripping concrete forms inside an elevator shaft when the unsecured plank he was on shifted granted summary judgment on Labor Law §240(1) where there was no overhead attachment point for his yo-yo lifeline. Defendants failed to raise an issue by an accident report and medical forms that were inadmissible hearsay without proof the translation of plaintiff’s statements were ‘provided by a competent, objective interpreter whose translation was accurate’ and their expert’s did not address plaintiff’s expert’s opinion that lack of an overhead attachment point prevented the lifeline from engaging, causing plaintiff to fall 10’-12′. De Souza v Hudson Yards Constr. II LLC    


Labor Law §240  

First Department
Worker who fell 10’ from platform on concrete truck as he was cleaning the chute after having made a concrete delivery granted summary judgment on Labor Law §240(1) as his work was incidental to his §240 work that involved alteration of the building and was a continuation of that work. Rodriguez v Riverside Ctr. Site 5 Owner LLC    


Labor Law §240   Falling Object  

First Department
Worker struck when a 150-200 pound metal panel he and his coworkers were removing fell on him granted summary judgment on Labor Law §240(1) on proof the panel was a load that required securing and he was not provided with enumerated safety devices to protect him from the elevation-hazard. Macaulay v New Line Structures & Dev. LLC    


Child Victims Act   Negligent Supervision   Notice   Foreseeability   Intervening Cause  

Second Department
Summer camp where plaintiff was sexually assaulted when she was 7-years-old by an adult visitor in a staff residence established it had no knowledge of the visitor’s propensity for sexual assault but failed to show as a matter of law that it provided adequate supervision as questions remained of whether the assault was foreseeable and not an intervening cause based on its policy of allowing adult visitors to stay in staff residences and prohibiting campers from entering staff residences. Volkel v Smithtown Gospel Tabernacle    


Malpractice   Directed Verdict   Accepted Practice   Causation  

Second Department
Hospital properly granted judgment as a matter of law at the close of plaintiff’s case where plaintiff’s expert testified the nursing staff departed from accepted practice by not notifying the surgeon that plaintiff’s BP had significantly dropped for 2-hours, until it again dropped significantly, but did not testify that this delay was a cause of the amputation of her leg to address a blood clot after she had undergone emergency surgery for sepsis. Without an opinion on causation there was no rational path to find for plaintiff. Whitehall v Andrade    


Malpractice   Wrongful Death   Causation   Experts  

Second Department
Law firm which represented plaintiffs in federal torts claim wrongful death action that was dismissed on summary judgment granted summary judgment dismissing plaintiffs’ legal malpractice claim for not including medications as a cause of decedent’s death on the federal torts claim form (SF-95) where defendants’ experts in the federal action opined Zofran did not contribute to decedent’s death from multiple ailments and that giving Narcan was not an indication of an overdose as it is routinely given to patients in cardiac or respiratory arrest. As plaintiffs’ experts could not refute defendants’ experts in the underlying case, plaintiffs could not show they would have succeeded in the underlying case absent malpractice. D’Angelo v Kujawski    


MVA   Sole Cause   Admissibility   Admission   Premature Motion  

First Department
Van owners’ met burden for summary judgment dismissing plaintiff’s claim for defective condition of van that rolled backwards when he left it in neutral and severed his foot which got caught in the driver side door when he opened it to try and stop the van on their affidavit and testimony the van was in good condition, they received no complaints about its condition, and plaintiff’s statements in the police report that suggested he was the sole cause of the accident. Defendant’s affidavit in English admissible where he acknowledged he received a Spanish version and plaintiff’s statements in the certified police report admissible as a business record and an admission.

Plaintiffs raised issues in opposition by his testimony that he knew of the defects and reported them to defendants and his categorical denial of having made the statements in the police report. Motion was also premature as several garage attendants and defendants’ assistant needed to be deposed. Krohn v Reyes    



Construction Liab.   Res Ipsa Loquitor  

First Department
Plaintiff denied summary judgment on res ipsa loquitor where water filled barrier topped with chain link fencing covered in fabric fell over on her from a powerful gust of wind that caught the fabric and acted like a sail as the contractor’s meteorologist’s opinion that the gust was unexpected and strong enough to topple the heavy barrier raised questions on whether the accident could have happened absent negligence. Rivera v F&S Contr., LLC    


MVA   Rear End   Turning Vehicle   Nonnegligent Explanation   Comparative Fault   NYC  

First Department
Plaintiff granted summary judgment on liability and dismissal of comparative fault defense on proof defendants’ vehicle rear ended his vehicle as he was making a right hand turn. Defendants failed to provide a nonnegligent explanation without proof they maintained a safe distance or “could have ‘reasonably expected that traffic would continue unimpeded’ and plaintiff’s sudden turn, failure to signal, and a wet roadway were not nonnegligent explanations. Defendants failed to show plaintiff double-parking before the accident or having his hazard lights on while moving caused the accident or that plaintiff abruptly changed lanes. Perez v City of New York    


MVA   Bus   Survelliance Video   Sole Cause   Premature Motion  

Second Department
Vehicle owner and driver that struck bus plaintiff was in as the bus pulled out of a bus stop into the vehicle’s lane granted summary judgment based on dashcam video showing bus negligently entered the lane, failing to yield the right of way, and that the bus driver was the sole cause of the accident as the vehicle did not have enough time to avoid hitting the rear side of the bus. Motion not premature where bus driver knew the facts and the dashcam video was clear. Woodham v New York City Transp. Auth.    


Premises Liab   Stairs   Out of Possession   Raised For First Time   Building Code  

Second Department
Building owner granted summary judgment dismissing plaintiff’s claim for slip and fall on water on interior stairs that leaked from a defective door on its lease and statements from the owner’s and tenant’s representatives establishing it was an out of possession owner with no duty to maintain the door. Plaintiff’s claimed violations of the New York State Property Maintenance Code not considered where raised for the first time in opposition and not included in the Complaint or BP. Greco v St. Bridget    

IF YOU MUST READ
(1 summaries)
MUST READSNOTEWORTHY

MVA   Bus   Causation   Raised For First Time  

Second Department
Bus passenger’s cross-motion for summary judgment finding NYTA negligent for striking vehicle in front of it after that vehicle switched its right blinker to its left blinker and stared to make a left turn denied. The Court does not give the details of the denial. Plaintiff’s claim that liability and causation were so inextricably interwoven that NYCTA would have to be a proximate cause if found negligent not considered where raised for the first time appeal. Niles v City of New York    

About Matt McMahon

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