October 3, 2017 | Vol. 74

(3 summaries)

Late Notice of Claim   Reasonable Excuse   Actual Knowledge   Prejudice   50-H  

Second Deptartment

Plaintiff’s motion to serve late Notice of Claim on NYCHA after discovering at NYC 50 H hearing that the trip/slip occurred within a housing complex and not a public sidewalk denied as failure to properly investigate location does not provide a reasonable excuse. Plaintiff also failed to explain why he waited 7 months after the 50-H hearing to make the motion, did not provide evidence or an argument that NYCHA was not prejudiced by the delay, and waited until a little over a month before the statute of limitations to seek leave. The late Notice of Claim was not actual notice provided within a reasonable time after the 90 days. Kelly v City of New York

Comment: Relief should have been sought by a special proceeding and not a motion in a case where NYCHA was not a party but for purposes of the appeal the Appellate Division treated the motion as a special proceeding.

MVA   VTL §1104   Reckless   Police   NYC  


NYC entitled to summary judgment on proof that officer was responding to an emergency “man with a gun” call and activity complained of, straddling and crossing double yellow line, was protected activity under VTL §1104, requiring proof of recklessness. Officer’s testimony that she straddled the double yellow line to avoid cars on the right and tried to avoid the plaintiff who was standing on the double yellow line, which plaintiff corroborated, showed that she was not reckless. Failure to engage lights and sirens did not constitute recklessness and was not necessary for imposition of the recklessness standard under VTL §1104. Green v Zarella

Labor Law §240   Safety Devices   Recalcitrant Worker   Causation   Comparative Fault   Question of Fact  


Worker who testified that supervisor instructed him to climb the side of a sidewalk bridge and that he was not provided with a ladder or other safety device granted summary judgment for injuries sustained when he lost his grip and fell to the ground. Direct supervisor’s testimony that he did not instruct plaintiff that morning but that somebody else may have, did not raise a triable issue of fact nor did it support defendants’ claim that worker was instructed not to go on top of sidewalk bridge and was assigned to pick up debris from the ground. An unsworn injury report did not raise a triable issue of fact as defendants’ witness denied knowing where the information in the report came from. Without proof that the worker was instructed to use a ladder and that one was available, defendants’ recalcitrant worker defense failed. Defendants’ claim that the accident was caused by the plaintiff’s own bad decisions and “size,” did not present a defense to the Labor Law §240 (1) claim as it is at best comparative fault. Cardona v New York City Hous. Auth.

(9 summaries)

Serious Injury   ROM  


Defendants’ motion for summary judgment on serious injury granted only to the claims for shoulder, wrist, and knee injuries based on defendants’ experts’ findings of normal or near normal ROM which plaintiff did not dispute by any medical evidence. Motion denied as to lumbar and cervical spine injuries as defendants failed to meet their initial burden of showing that plaintiff did not sustain new injuries or exacerbate injuries from a prior accident where defendants’ experts’ opinions that that the injuries from the accident were superimposed on prior injuries, and resolved, was contradicted by their own findings of significant limitations in ROM and they failed to compare the MRI results from after the accident, with the MRI results from the previous accident. If the jury finds that plaintiff’ sustained a serious injury for the lumbar or cervical spine, plaintiff is entitled to recover for all injuries, not just those found to be serious. Karounos v Doulalas

Late Notice of Claim   Statute of Limitations   50-H   Estoppel   Raised For First Time  


Lower court order denying NYCHA’s motion for summary judgment for failure to serve a timely Notice of Claim and granting plaintiff’s cross motion to serve the late Notice of Claim reversed as the lower court did not have the power to grant leave to serve the late Notice of Claim after the statute of limitations had expired. Litigating and conducting a 50-H hearing was not a reason to estop NYCHA from raising the Notice of Claim issue and plaintiff’s claim that the saving clause of GML §50-e (3)(c) applied was raised for the first time on appeal and not preserved. Lozano v New York City Hous. Auth.

Late Notice of Claim   Negligent Supervision   Actual Knowledge   Reasonable Excuse   Prejudice  

Second Deptartment

Petition to serve late Notice of Claim on school district for alleged negligent supervision of child who fell while climbing stairs to slide during recess, brought 5 months after the incident, denied as notification of injury form prepared by school nurse did not state how or why the child fell from the stairs and, therefore, did not contain the essential elements necessary to give actual notice. Neither the child’s infancy nor plaintiff’s claim that she did not know which entity needed to be served provided a reasonable excuse. Plaintiff met its burden on prejudice and defendant failed to rebut by detailed information but the lack of any one factor is not sufficient to deny summary judgment. McClancy v Plainedge Union Free Sch. Dist.

Respondeat Superior   Notice to Admit   Negligent Hiring   Notice  


Employer of bicyclist who struck and killed pedestrian in Central Park granted summary judgment on showing that employee was acting outside the scope of his employment, while engaged in a weekend biking event, on his own bicycle, and was not engaged in any work activity. Employee’s belief that there was some work component to the bicycle ride, and his unsworn response to a notice to admit did not raise triable issues of fact. Request to admit facts which the requester knows are contested are improper. The direct claim against the employer for negligent hiring was also dismissed absent evidence that it knew or should have known of the employee’s dangerous propensity for riding his bicycle in Central Park. Fein v Cook

Construction Liab.   Labor Law §241   Agent   Hearsay  


Construction manager’s testimony that electrical contractor was working on the floor at time plaintiff was injured may have been hearsay but his further testimony that that electrical contractor continued to work on the job site until the time of plaintiff’s accident raised triable issue and contractor’s motion was denied except as to the claims under Labor Law §240 which plaintiff agreed did not apply. If the Labor Law §241(6) violations arose from work assigned to the electrical contractor which it was able to control, it was an agent of the owner or a general contractor. Schaefer v Tishman Constr. Corp.

Premises Liab   Wet Floor   Duty   Last Inspection   Expert Aff  


Building granted summary judgment upon proof that it had mats covering portions of the marble lobby floor, assigned porters to routinely inspect and mop up wet areas on the floor, and that the area where the plaintiff fell was dry 10 minutes before the accident. Building did not have duty to continuously mop up areas with water tracked in by people from the outside or to place mats over the entire floor. Kelly v Roza 14W LLC

Asbestos   Products Liab   Foreseeability  

Second Deptartment

Defendants’ motions for summary judgment in products liability case where asbestos was released into plaintiff’s workplace atmosphere when doors containing asbestos cores were cut to be used as paneling, as defendants failed to produce any evidence, expert or lay, that the cutting and resizing of the doors for this purpose was not foreseeable. All Craft Fabricators, Inc. v ATC Assoc., Inc.

Venue   Raised For First Time  


Defendant’s motion to move venue from New York to Suffolk County denied where they failed to provide the names and addresses of witnesses willing to testify, the substance of their testimony and why New York County would be inconvenient. New facts raised for the first time in defendant’s reply were not considered. Thomas v Kane Constr. Group Inc.

Serious Injury   Renew  


Plaintiff’s motion to renew opposition to defendant’s motion for summary judgment on serious injury denied where plaintiff failed to include the medical evidence from the initial motion making it impossible to determine if the motion should be denied if renewal granted and plaintiff failed to show why he did not submit the affirmed medical reports in response opposition to the original motion despite numerous adjournments. Russell v Dewan

(0 summaries)

About Matt McMahon

Civil trials and appeals since 1984
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