October 31, 2023 | Vol. 389

(4 summaries)

Labor Law §240   Set Aside Verdict   Jury Charge   Waiver   Admissibility   Hearsay   Causation   Pain/Suffering   Materially Deviates  

First Department
Where building owner requested order of arrest for plaintiff’s coworker’s uncooperative testimony in a Labor Law §240(1) damage only trial, defendant failed to preserve claim that trial court erred in keeping the witness in handcuffs during his testimony or give a jury instruction regarding the issue where it did not raise the issue during the trial even though there was no basis for keeping the witness handcuffed as the error did not deprive the defendant of substantial justice.

Trial court providently limited defendant’s continuance request to 2-days for defendant to find and allow new counsel to prepare when counsel became ill as the parties had already expended significant resources and a mistrial would have resulted in a 7-month delay in a retrial.

Trial court properly redacted accident portions of medical records as hearsay where they were not germane to treatment or diagnosis nor attributable to plaintiff. Claim plaintiff failed to show a causal connection between accident and injuries rejected where jury could credit plaintiff’s experts and discredit defendant’s experts regarding the lumbar and knee injuries. Plaintiff proved future medical expenses to a reasonable degree of certainty and defendant waived argument that future medical expenses for 33-years was inconsistent with future pain/suffering for 20-years by not raising the issue before the jury was disbanded. Oain/suffering awards did not materially deviate from reasonable compensation. Marquez v 171 Tenants Corp.    

Comment: From verdict extract, jury awarded $683,300/$1,366,600 past/future pain/suffering, $357,266.32/$3,490,299 past/future medical expenses, and $149,277/$100,469 past/future lost earnings.

Child Victims Act   Motion to Dismiss   Amend Complaint   Statute of Limitations  

Second Department
Complaint filed 4-weeks before Child Victims Act revival window closed referring to abuser’s first name as “Doe” adequately apprised the gym teacher that she was an intended defendant within the applicable statute of limitations but the Second Department majority did not specifically rule whether the plaintiff was also required to show diligent efforts to ascertain the defendant’s true first name prior to the statute of limitations running, finding instead that plaintiff’s claim of diligent efforts by searching “Google, online yearbooks, Lexis Public Records, the New York State teacher license database, and the White Pages” were sufficient and rejected defendant’s claim that plaintiff failed to sufficiently detail those efforts where it was raised for the first time in reply and found defendant was not prejudiced where the Complaint was amended to add the correct first name prior to the 120-days for service. There were two dissenters. DeMarzo v Cuba Hill Elementary Sch.    

Comment: The majority also held plaintiff could have added the first name by CPLR §305(c) which allows the Summons to be supplemented without showing diligent efforts.

Child Victims Act   Emotional Harm   Negligent Supervision   Negligent Hiring   Motion to Dismiss   Statute of Limitations   Notice   Foreseeability   Causation  

Second Department
Motion to dismiss Amended Child Victims Act Complaint by school, its dean, and nurse on statute of limitations denied where commenced within the revival window of the CVA. Motion to dismiss for failure to state causes of action for negligent hiring, retention, and supervision denied where plaintiff adequately pled defendants had knowledge of the propensity of the dean and nurse to commit the abusive conduct and for intentional infliction of emotional harm by the dean and nurse as plaintiff adequately pled extreme and outrageous conduct and a causal connection between that conduct and her injuries. Kaul v Brooklyn Friends Sch.    

Comment: Consolidated action for breach of contract for failing to follow school’s handbook on bullying dismissed on statute of limitations ran from the original breach regardless of whether the harm was later discovered and the action was not commenced within 6-years of the original breach. Kaul v Brooklyn Friends Sch.

Settlement   Waiver   Indemnity  

First Department
While mediation agreement stated building owner’s carrier reserved its rights against tenant’s excess carrier in addition to specifying the amounts the carriers would pay to plaintiff and that the parties released each other “from all claims or liability arising from the matter,” owner’s counsel’s subsequent emails confirming that all direct and third-party claims were resolved without reserving any specific claim waived its third-party claim for contractual indemnification against the tenant as the emails contained the material terms of the settlement including that all claims had been resolved. The release of claims against the owner was sufficient consideration for waiver of its third-party claim. Nash v Walker Mem. Baptist Church, Inc.    

(10 summaries)

Child Victims Act   Motion to Dismiss   Negligent Hiring   Negligent Supervision  

Second Department
School district’s motion to dismiss Child Victims Act case for failure to state causes of action for negligent hiring and supervision by former student denied where plaintiff adequately pled that he was abused when he was 14-16-years-old by a cafeteria worker, the incidents happened while plaintiff was within the care and custody of the school, the cafeteria worker was employed by the school district, and that the school district knew or should have known of the worker’s propensity for the conduct. Medeiros v Scarsdale Union Free Sch. Dist. Bd. of Educ.    

Dram Shop  

First Department
Lounge manager’s testimony regarding general employee training but that he was unaware if any customers were intoxicated or asked to leave because of intoxication on the date of the incident and that they kept no records of intoxicated patrons was insufficient to eliminate questions of whether they violated the dramshop act (GOL §11–101) by serving visibly intoxicated persons. It could not meet burden for summary judgment by pointing to gaps in plaintiff’s proofs. Bauseman v Pamdh Enters. Inc.    

MVA   Rear End   Comparative Fault   Sole Cause   Appealable Order   Court of Claims  

Second Department
Claimant granted summary judgment on liability and dismissal of comparative fault defense on her and state’s driver’s testimony establishing claimant was stopped in traffic when struck in the rear by the state’s dump truck. Dump truck driver’s testimony that plaintiff made a sudden stop failed to raise an issue in opposition where he conceded he took his eyes off the road and his foot off the brake and that claimant was stopped in front of him when he looked back.

Appeal from interlocutory judgment dismissed as premature. Tenezaca v State of New York    

MVA   Rear End  

First Department
Plaintiff denied summary judgment on his testimony that he did not see the vehicle struck by the vehicle he was in before his driver made a turn into an intersection and he did not know if the other vehicle was stopped or moving when it was hit as it did not show his driver failed to maintain a safe distance from the car she struck and, in any event, photographs showed the impact was to rear driver’s side panel, not the rear bumper as claimed by plaintiff. McDowell v Rodriguez    

Asbestos   Products Liab   Conclusory   Raised For First Time  

First Department
Porsche Cars failed to meet burden for summary judgment on its employee’s conclusory affidavit claiming it did not distribute asbestos-containing products prior to 1984 based on a review of unspecified documents between unspecified entities and its effort to correct this issue on reply was rejected. In any event, decedent’s and his coworker’s testimony raised issues on whether decedent worked with defendant’s asbestos-containing products in 1984 and through 1988. Carboni v Alfa Romeo USA    

MVA   Bus   Comparative Fault   Premature Motion  

First Department
Plaintiff granted summary judgment on liability where he testified defendants’ bus driver lowered the handicap ramp onto the sidewalk when it was unsafe and the bus driver testified he saw the plaintiff get hit by the ramp but plaintiff denied summary judgment dismissing the comparative fault defense as questions remain based on the bus driver’s testimony that he yelled out warnings before lowering the ramp which itself had an excruciating beeping sound.

Motion not premature where bus driver was present and aware of the facts. Prendergast v New York City Tr. Auth.    

MVA   Comparative Fault   There to be Seen  

Second Department
Plaintiff granted summary judgment on liability on his affidavit that he struck defendants’ vehicle after it entered the intersection controlled by a stop sign without yielding the right-of-way and met burden for summary judgment dismissing comparative fault defense but defendant-driver’s affidavit that he stopped at stop sign, started forward then stopped again for 10-20 seconds with the front of his vehicle partially past the stop sign due to low visibility when his vehicle was struck by plaintiff’s vehicle left questions of whether plaintiff took reasonable steps to avoid the accident. Jones v Haifeng Zuo    

Premises Liab   Out of Possession  

First Department
Church that owned building where plaintiff slipped in hallway leased to her employer met burden of showing it was an out of possession owner with no obligation to maintain the area based on the lease and affidavits of the church’s pastor and plaintiff’s employer establishing plaintiff’s employer had the sole responsibility to maintain the hallway and plaintiff’s claim the tile she slipped on had a waxy buildup and was slippery was not a structural or design defect violating a specific statute. Plaintiff’s claims that she routinely saw defendant’s personnel using the hallway and that it was her “understanding” the church had recently replaced the hallway floor were irrelevant. Rodriguez v Trinity Evangelical Lutheran Church    

Assault   Battery   1983 Action   Motion to Dismiss   Statute of Limitations   Negligent Supervision   Respondeat Superior   Discovery   Good Faith Aff   NYC  

First Department
Defendants’ motion to dismiss assault and battery claims granted where action was started more than 4-years after plaintiff’s arrest, beyond the 1-year 90-day statute of limitations, and on plaintiff’s 1983-action for excessive force during the arrest beyond the 3-year statute of limitations and the continuing wrong doctrine did not apply where the continuing consequences were not distinct wrongs. Plaintiff failed to state a Monell claim cause of action on allegations of law-enforcement mistreatment of minority groups without pointing to any specific policy that deprived him of his rights. The negligent hiring and retention claims dismissed where officers were acting within the scope of their employment and NYC would be responsible under respondeat superior.

Defendants’ motion to compel discovery providently granted where defendants’ good faith affirmation showed efforts to obtain discovery plaintiff refused to provide for years. Jorge v City of New York    

Malicious Prosecution  

First Department
Defendant granted partial summary judgment dismissing malicious prosecution claim where plaintiff, and not defendant, called the police, defendant gave information and signed a supporting deposition that plaintiff agreed was truthful, and defendant did not implore the prosecutors to continue the case. Rubin v Di Dimatteo    

(1 summaries)

Labor Law §241   Amend Complaint   Industrial Code   Court of Claims  

Second Department
Claimants’ motion to amend the Claim for injuries sustained while wheeling a generator to replace decks on the Tappan Zee Bridge to include violations of specific industrial code provisions providently denied where they “were palpably insufficient and patently devoid of merit.” The Court does not give the details of the proposed industrial code provisions. Jones v New York State Thruway Auth.    

About Matt McMahon

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