October 3, 2023 | Vol. 385

(5 summaries)

Premises Liab   Motion to Dismiss   Negligent Supervision   Indemnity  

Second Department
Motion to dismiss third-party Complaint against mother of 2-year-old plaintiff whose finger got caught in baggage carousel at airport granted as a parent cannot be held secondarily liable for contribution for failure to supervise a child under Holodook v Spencer and third-party plaintiffs did not allege facts to show exception of negligent entrustment. R. F. v County of Westchester    

Comment: Contribution against parent also barred by GOL §3-111.

Labor Law §240   Labor Law §241   Labor Law §200   Malpractice   Consolidation   Venue  

First Department
NYCHHC’s motion to consolidate Labor Law action commenced in Kings County with malpractice action for treatment after the accident, commenced in New York County, and transfer of consolidated action to New York County denied where legal principles of Labor Law and malpractice are “so dissimilar that joinder or consolidation pursuant to CPLR 602(a) would not be beneficial and would likely result in jury confusion,” there were additional injuries in the Labor Law action not presented the malpractice action, and there were no common defendants. Licona-Rubio v New York City Health & Hosps. Corp.    

MVA   Dram Shop   Duty   Control  

Second Department
Bar failed to meet burden for summary judgment dismissing dramshop (GOL §11-101) and serving a minor (GOL §11-100) action of passenger injured in vehicle driven by person who was under 21 when served by bar but granted summary judgment dismissing common-law negligence claim which can only be maintained where the injury occurred on defendant’s property where defendant had the ability and was aware of the need to control the intoxicated person. Filc v 221 Someplace Else, Ltd.    

MVA   Arbitration   Preclusion  

First Department
Plaintiff’s motion to stay arbitration denied and Uber’s motion to compel arbitration granted on proof Uber’s 2016 app registration process gave an “explicit and unequivocal agreement” to arbitrate that plaintiff agreed to. Uber was not precluded from relying on the 2016 agreement where it only referred to its 2021 agreement in its notice of intention to arbitrate. Question of unconscionability of 2021 agreement is issue for arbitrator under the delegation cause of the agreement. Mejia v Linares    

Attorney Fees   Duty  

First Department
Law firm granted summary judgment against its former associate who referred a matter to another law firm while still employed by the firm and received a $140,000 referral fee as “[a] for-profit referral, without plaintiff’s knowledge or consent, violates defendant’s duty of loyalty and, at a minimum, entitles plaintiff to the referral fee.” Barasch & McGarry, PC v Marcowitz    

Comment: Under the firm’s policy, associates were required to bring all cases into the firm, would share in any resultant referral fee, and the defendant had shared in such referral fees in the past.
(28 summaries)

Labor Law §241   Set Aside Verdict   Directed Verdict   Industrial Code  

Second Department
Plaintiff’s motion to set aside defense verdict and for judgment as a matter of law on Labor Law §241(6) claim based on industrial code §23-1.7(e)(1)(tripping hazard) for tripping over allegedly uncovered holes on construction site denied where there was a rational path for the jury verdict which could be reached on a fair interpretation of the evidence, jury could credit foreman’s testimony that their practice was to cover all holes, that he walked the area several times before the accident and found no uncovered holes, and jury could find the accident was caused solely by the plaintiff’s own fault. Garcia v 1000 Dean, LLC    

Premises Liab   Motion to Dismiss   Notice of Claim   NYC  

Second Department
NYC’s motion to dismiss claim for 12 year-old’s fall granted where the Notice of Claim gave the address of the playground where the accident happened but only alleged the location as on “the track which runs around the ballfield located thereat” and the 50H testimony of the infant and her mother was conflicting and confusing, depriving NYC of the ability to conduct a timely and meaningful investigation. A. A. v City of New York    

Premises Liab   Motion to Dismiss   Estate   Untimely   Reasonable Excuse   Meritorious Action  

Second Department
Defendants’ motion to dismiss for failure to timely substitute decedent’s administratrix pursuant to CPLR §1021 granted where plaintiff failed to explain 5-year delay in seeking letters of administration and counsel’s affirmation and pleadings did not establish a meritorious action where counsel had no personal knowledge of the facts. Mesniankina v 302 BBA, LLC    

MVA   Bus   Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice  

First Department
Petition to file late Notice of Claim where petitioner served a Notice of Claim 95-days after she was injured when defendants’ bus stopped short denied as bus driver seeing plaintiff fall did not provide actual knowledge of the essential elements of plaintiff’s claim that she was injured, or the extent of her injuries, plaintiff’s excuse that she was unaware of the Notice of Claim requirement nor her counsel’s claim of law office failure provided a reasonable excuse as counsel admitted he was retained before the 90-day expiration and offered no excuse for not timely serving the Notice of Claim. Plaintiff also failed to produce evidence or a reasonable argument for why defendants would not be prejudiced by the delay. Matter of Salazar v Metropolitan Transp. Auth.    

Malpractice   CPLR §306-b   Reasonable Excuse   Meritorious Action  

Second Department
Plaintiff’s motion to extend time to serve defendant-doctor for good cause under CPLR §306-b providently denied where 1-attempt at service during 120 days was insufficient to show due diligence and lack of due diligence within 120-days and 10-month delay in seeking extension before COVID pandemic began precluded entitlement to extension in the interest of justice as due diligence is a factor to be considered. Plaintiff also failed to show a meritorious action against the doctor or rebut the inference of substantial prejudice from the significant delay. Pierre v Grueso    

Premises Liab   Sidewalk   Errata Sheet  

First Department
Defendant’s motion to strike plaintiff’s errata sheet providently denied where plaintiff provided an adequate reason for the substantive changes which only raises issues of credibility at trial. Mojica v Church of the Immaculate Conception    

Malpractice   Discovery   Preclusion   Willful/Contumacious   Prejudice   Raised For First Time  

First Department
Lower court providently precluded malpractice defendants from offering their rules/regulations and employment records without finding willful/contumacious failure to provide them as preclusion or monetary sanctions are less drastic than striking an Answer. Defendants failed to submit a Jackson affidavit of someone with personal knowledge of the existence or search for the records and could not be prejudiced by preclusion if they do not exist. Insufficiency of good faith affirmation argument not considered where raised for the first time on appeal. Guenzburger v Fernandez    

Emotional Harm   Vacate Default   Reasonable Excuse  

First Department
Defendant’s motion to vacate default judgment denied for lack of a reasonable excuse where inadmissible letters and emails from his treatment providers, even if considered, failed to show he was hospitalized or incapacitated when served with the Summons and Complaint or when plaintiff moved for default judgment or that he was in prison when served. Seitzer v McFadden    

Labor Law §240   Gravity Risk   Safety Devices  

First Department
Worker who fell down 20′-25′ temporary ramp covering stairs at construction site for the movement of materials granted summary judgment on Labor Law §240 (1). Although the ramp was not a substitute for a ladder or scaffold, it was being used for construction and covered by §240 given the significant height differential without any safety devices to prevent workers from falling. Liu v Whitestar Consulting & Contr., Inc.    

Labor Law §241   Labor Law §200   Homeowner Exception   Control  

Second Department
Homeowner failed to meet burden for summary judgment dismissing Labor Law §§ 241(6), 200, and negligence claims of worker injured while removing boards from the deck at defendant’s home where plaintiff’s testimony, submitted by defendant, was that he was employed at defendant’s business performing carpentry on decks, defendant told him which boards to remove and replace on defendant’s deck, and defendant provided all tools and materials for the work on his home leaving questions of the applicability of the homeowners exception where defendant directed and controlled plaintiff’s work and whether defendant controlled the means and methods of the injury producing work. Walsh v Kenny    

Labor Law §241   Labor Law §200   Industrial Code   Notice of Claim   Control   NYC  

First Department
NYC’s motion to dismiss Labor Law §241(6) claim of worker injured by a live wire when installing conduits to relocate ConEd’s utilities as part of NYC’s water main project granted as industrial code §23-1.13(a) precludes application of § 23-1.13 for operations subject to the jurisdiction of the Public Service Commission which covers the city’s water distribution operation and plaintiff’s argument that his claim related to the roadway and not the water main rejected.

NYC granted summary judgment of Labor Law §200 and negligence claims where there was no proof it had actual or constructive notice of the dangerous electrical condition and its on-site inspectors had no more than a general awareness of the condition, insufficient to impute notice. ConEd’s motion to dismiss §200 and negligence claims denied where issues remained of whether the cable was adequately carded or insulated and plaintiff’s foreman testified ConEd instructed him what work was to be performed each day and at times specified what equipment was to be used leaving issues of ConEd’s control of the injury producing work. Burchill v City of New York    

MVA   VTL §1104   Reckless  

Second Department
County denied summary judgment for MVA where there was limited view of streets entering intersection, road was wet, and police vehicle failed to stop before entering intersection against red light, leaving questions of whether officer was reckless under VTL §1104. Injured-plaintiff’s testimony that she did not hear siren before accident also left question of whether officer activated siren before entering intersection. Robinson v County of Suffolk    

MVA   Bus   Turning Vehicle   Emergency Doctrine   Comparative Fault  

Second Department
NYCTA and bus driver met burden for summary judgment dismissing plaintiff’s claim for injuries when bus stopped short on proof codefendant driver cut in front of the bus to make a right hand turn without signaling, leaving the bus driver little or no time to respond under the emergency doctrine but codefendant driver’s testimony, submitted by plaintiff, raised issues on whether her turn signal was on and the bus driver and codefendant were both at fault.

Plaintiff’s cross-motion for summary judgment properly not considered where arguments could have been raised on plaintiff’s original motion for summary judgment dismissing comparative fault defense as successive motions for summary judgment should not be entertained without newly discovered evidence or sufficient cause. Wilson v New York City Tr. Auth.    

Serious Injury   Causation   ROM   Preexisting   Admissibility   Experts  

First Department
Defendant met burden for summary judgment on serious injury with orthopedic surgeon’s report finding no or only slight limitations of ROM and opinion that the injuries had resolved, radiologists’ opinions that the MRIs showed only pre-existing injuries not caused by the accident, plaintiff’s medical record documenting pre-existing and degenerative conditions, and evidence plaintiff claimed a prior work injury to his spine.

Admissible medical report submitted by plaintiff showing limited ROM 7-years after the accident insufficient to raise an issue of fact. Plaintiff’s doctor’s personal review of the MRIs, adopting the findings of the previous radiologist’s, made the reports admissible but fact that defendant’s experts reviewed the other medical reports did not make them admissible. Failure of plaintiff’s doctor to address preexisting conditions in plaintiff’s medical records or explain how they could not be a cause of his injuries failed to raise an issue on causation. Torres v Rivera    

Malpractice   Accepted Practice   Causation   Experts  

Second Department
Defendants met burden for summary judgment dismissing patient’s claim for paralysis and organ damage due to delay in repairing aortic transection on proof they complied with accepted practice by delaying surgery where the patient was hemodynamically stable, there was a mortality risk of immediate repair, and their alleged malpractice did not proximately cause plaintiffs paralysis. Plaintiff’s expert’s contrary opinions raised issues of fact in opposition and were not outside the area of the expert’s specialization. Lee v Westchester County Health Care Corp.    

Labor Law §241   Industrial Code   Raised For First Time   Comparative Fault  

First Department
Worker met burden for summary judgment on Labor Law §241(6) based on industrial code §23-1.7(e)(2) (tripping hazard) on his testimony that he slipped on wood on staircase at construction site and photographs from a day after the accident that he authenticated, establishing he fell on debris in a passageway under the industrial code. Defendants’ argument that plaintiff’s testimony was inconsistent, raised for the first time on appeal, was considered but rejected as a statement to his foreman that he fell without mentioning the wood was not an inconsistent statement and the gap in seeking treatment did not impugn his credibility where he explained he thought it would get better with ice. Contradictory reports from codefendant that plaintiff heard a noise and looked up causing his fall insufficient to deny summary judgment as plaintiff is not required to show freedom from comparative fault. Piedra v 111 W. 57th Prop. Owner LLC    

Labor Law §240   Scaffold   Admissibility   Hearing   Admission   Premature Motion  

First Department
Plaintiff granted summary judgment on Labor Law §240 (1) on his testimony that Baker scaffold he was descending shook, moved, and tipped over for no apparent reason causing him to fall backward landing on a pile of slippery sheet-metal that caused him to fall onto the floor. Plaintiff was not required to show the scaffold was defective, making arguments that his or defendant’s inspections showed no defects irrelevant. Documentary evidence failed to raise issue in opposition without proof it was made in the regular course of business and it was the regular course of the business to make the report at the time of the accident or reasonably thereafter and it contained multiple layers of hearsay. Statements in medical reports inadmissible where not germane to medical diagnosis nor admissions against interest.

Defendants failed to show plaintiff’s motion was premature without evidence of what discovery was necessary or what it would show. Cafisi v L&L Holding Co., LLC    

Premises Liab   3rd Party Contractor   Espinal   Raised For First Time  

First Department
Building management company denied summary judgment where plaintiff alleged Espinal exception that defendant entirely displaced her employer’s duty to maintain lighting system that malfunctioned and caused her to trip on a chair as she went to be reset the system, defendant raised issue of whether plaintiff was aware of the management agreement for the first time on appeal and, in any event, her testimony raised issue on her knowledge of the agreement. Plaintiff could rely on Espinal exceptions where defendant raised the displacement argument on its motion but did not raise claim to be prejudiced by plaintiff’s late inclusion of the detrimental reliance Espinal exception. Long v Cushman & Wakefield, Inc.    

Premises Liab   Unknown Cause   Speculation  

Second Department
Store, building owner, and management company denied summary judgment on claim plaintiff could not identify cause of his fall as he moved bicycles he was assembling to garage when it started to rain where plaintiff’s testimony that he saw numerous oil spots in the area where he fell, he fell on a mixture of oil and water, and the building had no piping to direct rainwater from downspouts away from the area, leaving questions on the cause of the accident. Weldon v Wal-Mart Stores E., LP    

MVA   Pedestrian   Dead Man Statute   Admissibility   Uncertified Records   Hearsay  

First Department
Defendants granted summary judgment on their driver’s testimony she was driving slowly in traffic when she heard a thump on the side of the car and observed her passenger side mirror smashed, consistent with decedent having walked into the side of defendants’ vehicle. Administratrix failed to submit admissible evidence contradicting defendants’ version of the accident. Defendants attaching administratrix’ EBT transcript did not waive dead man’s statute objection and plaintiff failed to offer any other admissible evidence to dispute defendants version. Melendez v Perlberger    

Comment: Uncertified police report submitted by plaintiff below was inadmissible and, in any event, plaintiff failed to show any hearsay exception for the statements in the police report.

Dogbite   Vicious Propensity   Experts   Speculation  

Second Department
Dog owners granted summary judgment on their affidavits that to the best of their knowledge their dog did not exhibit behavior of dangerous propensities and plaintiffs failed to raise an issue in opposition. Plaintiff’s expert’s opinions that excessive veterinarian visits, a skin condition, and the dog’s habit of scratching his own body showed vicious propensities was speculative where not supported by citing any authority. Zimmer v Maxwell    

MVA   Bus   Comparative Fault   Admission   Burden of Proof   Nonnegligent Explanation   Emergency Doctrine  

Second Department
Bus passenger met burden for summary judgment on his affidavit that the bus driver lost control of the bus and swerved into the median, it was snowing before the bus left the station, he heard no horns or breaks before the bus swerved only, heard the bus driver say ‘it’s bad,’ and the police report containing defendant-driver’s admission that he lost control of the bus because of a slippery Highway. Once a passenger establishes a driver lost control of the vehicle, the burden to show a nonnegligent explanation shifts to the driver. The bus driver’s written statement not considered where not in admissible form. Bing Kang Chen v S & F Travel, Inc.    

MVA   Motion to Dismiss   Graves Amendment   Renew   Reasonable Excuse  

First Department
Defendants’ motion to renew their prior motion to dismiss based on the Graves Amendment providently denied where they failed to provide a reasonable justification for not including their new evidence on the original motion and, in any event, issues remained on whether the brakes on the rented box truck were properly maintained, if it was the vehicle rented to codefendant, and who employed codefendant. Rosado v Cepeda    

Negligent Supervision   Foreseeability   Notice   Feigned Issue  

Second Department
School district granted summary judgment dismissing sixth-grader’s claim for injuries caused by bullying/harassment while on a school trip on proof the bullying/harassment was unforeseeable where they did not have actual or constructive notice of similar incidents involving the offending students. Plaintiff’s EBT testimony raised only feigned issues where it contradicted his 50H testimony. Burdo v Cold Spring Harbor Cent. Sch. Dist.    

Labor Law §240   Labor Law §241   Labor Law §200   Motion to Dismiss   Agent   Control   Causation  

First Department
Motion to dismiss Labor Law §§ 240(1) and 241(6) claims by worker sprayed by power washer by defendant that rented aerial lift which malfunctioned granted as it was not an owner or contractor or agent of the owner under Labor Law where it did not have the ability to control or supervise plaintiff’s work. Motion to dismiss negligence claim denied where Complaint adequately pled negligence causing malfunction, 50H testimony submitted by defendant was not documentary evidence and did not refute plaintiff’s negligence claim. Kull v Ahern Rentals, Inc.    

MVA   Pedestrian   Turning Vehicle   Comparative Fault  

First Department
Plaintiff granted summary judgment on proof she entered crosswalk with walk sign in her favor after looking both ways and was struck on her right side from behind by defendant’s vehicle as it made a left hand turn. Comparative fault affirmative defense dismissed as plaintiff could not be at fault for failing to see defendant’s vehicle where she was hit from behind on the right side. Shin v Ljulja    

MVA   Rear End   Nonnegligent Explanation   Comparative Fault  

Second Department
Plaintiff granted summary judgment against owner and driver that struck her vehicle which was parked on the shoulder and defendants failed to offer a nonnegligent explanation. Defendants’ claim plaintiff violated RCNY rules on stopping in lanes went only to comparative fault which was not part of the motion and did not preclude summary judgment on liability. Whaley v Carvana N.Y. City    

MVA   Serious Injury   Turning Vehicle  

Second Department
Defendant met burden for summary judgment on serious injury but plaintiff raised an issue in opposition. The Court does not give the details proofs.

Plaintiff’s motion for summary judgment, denied as academic by the lower court, denied by the Court where issues remained of whether plaintiff made his left hand turn after the light turned green while the defendant’s vehicle had already entered the intersection with the green light. Sanchez v Tropp    

(5 summaries)

Malpractice   Accepted Practice   Experts   Speculation   Conclusory  

Second Department
Internist granted summary judgment on proof he did not depart from accepted practice in treating plaintiff’s MI. Plaintiff’s expert failed to raise an issue on speculative and conclusory opinions that were not supported by the record. The Court does not give the details of the proofs. Getselevich v Ornstein    

SUM   Arbitration   Hearing  

First Department
Carrier’s motion to permanently or temporarily stay arbitration pending a hearing on whether respondent primarily resided with the policyholder in PA when his Citibike was struck head-on by a vehicle granted to temporarily stay the arbitration pending a hearing where respondent showed he had rented an apartment in NY in anticipation of his employer reopening their office after COVID but continued to work remotely from his mother’s home in PA, staying at his NY apartment about 40% of the time. Matter of United States Auto. Assn. v Mickens    

SUM   Arbitration   Notice   Uninsured   Reasonable Excuse  

Second Department
Carrier’s motion to permanently stay SUM arbitration for failure to give timely notice as required by policy granted on proof carrier did not receive notice of SUM claim until 4-months after the accident and insured failed to provide a reasonable excuse with the delay. Matter of Travelers Personal Ins. Co. v Dratch    

Vacate Default   Uninsured   Arbitration   Reasonable Excuse   Meritorious Action  

Second Department
Petitioner’s motion to vacate order permanently staying uninsured arbitration on petitioner’s failure to oppose or appear on motion or oppose notice of settlement of order denied where petitioner’s excuse he thought vehicle that struck him might have been insured was not a reasonable excuse for failing to oppose the original motion. The court did not need to look at meritorious action. Matter of Owens v Integon Natl. Ins. Co.    

Uninsured   Arbitration   Hearing   Vicarious Liab  

Second Department
Carrier’s motion to permanently stay uninsured arbitration denied but proceedings dismissed after hearing which found based on testimony of person who rented van that he was not familiar with persons seen on video abandoning van after it was damaged, establishing the van was stolen. Matter of Government Empls. Ins. Co. v Maio    

About Matt McMahon

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