October 4, 2016 | Vol. 22

MUST READS
(5 summaries)

Law of the Case  

First

Lower court’s grant of a directed verdict in favor of defendants at the end of the evidence was reversed. In a previous appeal the Appellate Division had found that the no-knock search warrant was invalid. That finding became law of the case and could not be re-examined by the lower court or the appellate court absent subsequent evidence or change of law. It was not error for the court to allow the defendants to put in proof regarding the validity of the search warrant in an attempt to show subsequent proof, but such proof was substantially similar to the proofs submitted on the original motion for summary judgment. The appellate court’s finding remained valid and was binding on the lower court. By granting the directed verdict, the lower court acted as an appellate court over the Appellate Division. There were 2 dissents. Delgado v City of New York


Labor Law §240   Labor Law §241   Labor Law §200   Safety Devices  

Second Deptartment

Defendant owners and contractor were entitled to summary judgment on Labor Law §240(1) claim where sheet rock which had been stored against a wall on the sixth floor near an extension cord fell on plaintiff’s head as he climbed the stairs from the fifth to the sixth floor because the sheet rock was not in the process of being hoisted or secured and did not necessarily need to be secured at the time of the accident, and plaintiff failed to show that the sheet rock fell due to the failure to use or inadequacy of a safety device enumerated in labor Law §240(1). Defendants were not entitled to summary judgment on Labor Law §241(6) claim that they violated 12 NYCRR §23-1. 8(c)(1) [safety hats] when walking through an area where falling objects or head bumps are anticipated, because defendant failed to eliminate all triable issues of fact as to whether the work involved a “hard hat” area and whether plaintiff’s failure to wear a hard hat was a proximate cause of the injury. Defendant owners entitled to summary judgment on labor Law §200 claims upon showing that they did not create or have actual or constructive notice of the alleged dangerous condition, but contractor failed to establish its prima facie entitlement to judgment by failing to show that it did not create or have constructive notice of the condition alleged dangerous condition. Seales v Trident Structural Corp.

Comment: The Second Department again uses the “in the process of being hoisted or secured ” language, relying on the Court of Appeals case of Fabrizi v 1095 Ave. of the Ams., L.L.C., 22 NY3d 658, 662-664 (2014). The Court of Appeals, however, has specifically held that “As our holding in Outar v City of New York indicates,’falling object’ liability under Labor Law § 240(1) is not limited to cases in which the falling object is in the process of being hoisted or secured (5 N.Y.3d 731 [2005], affg 11 A.D.3d 593 [2d Dept 2004]).” Quattrocchi v. F.J. Sciame Constr. Co., 11 N.Y.3d 757, 759 (2008). This language can confuse the issue which is more correctly stated as whether the object fell because of the absence or inadequacy of an enumerated safety device.


Premises Liab   De Minimus   Stairs   Handrail  

First

The 1/8” to 1/4″ height differential between a marble step and the bull nosing on which plaintiff caught her heel was found to be trivial as a matter of law and did not constitute a trap or nuisance. Surrounding circumstances did not magnify the danger, however, there was a question of fact as to whether failure to install handrails under the administrative code was a proximate cause of plaintiff’s injuries. Atkinson v Key Real Estate Assoc., LLC

Comment: It is rare for the First Department to declare a specific height differential as trivial instead of discussing the details of whether it constitutes a trip hazard.


MVA   Venue   Raised For First Time   Serious Injury  

First

Defendants, Westchester County and Liberty Lines, were not entitled to a change of venue from Bronx to Westchester, where the accident occurred, absent a showing that Westchester County was not merely a “nominal party.” County attorney’s affirmation submitted for the first time on reply was improper and failed to include any documentary evidence supporting claim regarding indemnification contract.

Plaintiff’s proof that she suffered a fractured rib was sufficient to make showing of entitlement to partial summary judgment on serious injury. Basden v Liberty Lines Tr., Inc.


Med Mal   Frye  

Second Deptartment

Lower court’s grant of motion in limine precluding plaintiff’s expert and in effect granting summary judgment to defendants, was reversed by the appellate court. The purpose of a Frye hearing is to determine if the expert’s opinions are based on sufficiently established principles that have gained general acceptance as to reliability. It does not require that a majority of scientists agree but only that the expert espousing the theory has followed generally accepted scientific principles and methodology in evaluating data to reach a conclusion. Deductions, extrapolations and drawing inferences from data are not novel methodologies but are accepted stages of scientific process. Plaintiff’s expert’s opinion was not based on novel theories and did not want warrant a preliminary Frye-type hearing. Krackmalnik v Maimonides Med. Ctr.

NOTEWORTHY
(13 summaries)

Train   Speculation   Set Aside Verdict   Burden of Proof  

First

Plaintiff, a methadone patient who had admitted to a psychologist postaccident that he was high on Xanax and Klonopin at the time of the accident, entered a subway and was found 45 minutes later on the tracks after having been struck by a train. In that period of time 3 trains went through the station, the first had bloodstains on some of the cars. The driver of the second train noticed sneakers on the tracks just prior to stopping and called in a report of a possible obstruction on the tracks which caused the driver of the third train to enter the station slowly where she saw passengers pointing to the plaintiff on the tracks. The jury returned a verdict in favor of the plaintiff finding NYCTA 40% at fault. The lower court set aside the verdict and granted the defendant summary judgment for plaintiff’s failure to make out a prima facie case as to both negligence and causation and was affirmed.

Plaintiff’s claim that the second train driver’s observation of the sneakers provided sufficient time for him to apply the emergency brake was pure speculation. In fact the evidence leaned in favor of plaintiff having been struck by the first train since the first train had evidence of blood. In addition, plaintiff’s expert’s opinion that the second driver would have had 3.5 to 7.5 seconds to apply the emergency brakes after observing the sneakers was based on speculation as there was no evidence as to how far away the train driver had seen the sneakers. Dismissal upheld with 1 dissent. Obey v City of New York


Labor Law §241   Labor Law §200   Industrial Code  

First

Question of fact existed regarding application of 12 NYCRR §23-1.22 (b)(1)[ runways and ramps] where plaintiff’s expert opined that unsecured wooden planks served as a “temporary construction ramp.” General contractor not entitled to summary judgment on Labor Law §200 and common-law negligence claims based on plaintiff’s testimony that one of Turner’s employees instructed him to use a pile of wood planks for the 1 foot height differential between the temporary loading dock and delivery truck trailer. Rohan v Turner Constr. Co.


MVA   Turning Vehicle   Red Light   There to be Seen  

Second Deptartment

Defendant driver not entitled to summary judgment where there were conflicting stories regarding how the accident occurred. Plaintiff’s testimony was that she saw the defendant vehicle stopped at a red light in the next intersection and was 10’ into her turn when she saw the defendant vehicle go through the red light and strike her car. Defendant testified that she went through the green light at her intersection and that plaintiff made the left turn failing to yield the right-of-way. There can be multiple causes of an accident and even where a party legally enters an intersection they can still be found to have been partially at fault for not observing what was there to be seen. Gobin v Delgado


Labor Law §200   Defect   Comparative Fault  

Second Deptartment

Motions and cross-motions for summary judgment by defendants and third-party defendants on Labor Law §200 and common-law claims, and contractual indemnity claim, properly denied for failure to meet initial burden of proof. Defendants failed to eliminate all triable issues of fact as to who was the plaintiff’s employer, whether the injury was in the course of his employment, and the role of each defendant in the renovation of the restaurant. When a defendant lends defective equipment to a worker it must show that it neither created the danger or defect nor had constructive or actual notice of the defective condition. Moreover, third-party plaintiff’s motion on contractual indemnity was properly denied since they failed to show that they were free from negligence. Lam v Sky Realty, Inc.


Late Notice of Claim   Leave of Court   Prejudice  

Second Deptartment

Lower court providently exercised its discretion in denying motion for leave to serve the late notice of claim, or deem a late notice of claim timely served, in malpractice action. Plaintiff’s ignorance of 90 day notice of claim requirement is not a reasonable excuse and plaintiff failed to show that defendant had actual knowledge of the essential facts constituting the claim within 90 days or a reasonable time thereafter and that defendant was not prejudiced by delay. Unsubstantiated claims by plaintiff and her attorney regarding contents of police accident report and medical records were not sufficient proof. Humsted v New York City Health & Hosps. Corp.


Premises Liab   Inherent Risks  

Second Deptartment

Contractor preparing estimate to repair back porch was injured when a portion of the porch collapsed. Defendant’s motion for summary judgment contending that plaintiff was injured by the exact condition he had been hired to estimate should have been denied as plaintiff was only preparing an estimate and not engaged to fix the condition. Arcabascio v Bentivegna


Discovery   Subpoena   Note of Issue  

First

Denial of motion to quash subpoena affirmed because plaintiff demonstrated “unusual or unanticipated circumstances” and “substantial prejudice” to justify discovery after note of issue. Attorney statement that the importance of the nonparty witness’ testimony was realized after note of issue was filed was sufficient. Massa v Lower Manhattan Dev. Corp.


MVA   Comparative Fault  

First

Driver who was struck on the rear driver’s side of his car by a tractor-trailer as it attempted to change lanes was entitled to summary judgment upon testimony that defendant driver stayed in his lane, was driving 40-45 mph, and periodically checked his rearview mirror. Defendant driver had right-of-way and there was no evidence that he had time to react to tractor-trailer’s change of lane even if rear passenger in defendant’s car observed the truck in the middle lane at some point prior to the accident. Mitchell v Smith


Dram Shop  

Second Deptartment

Bar owner made out initial burden for summary judgment from testimony of bartender that defendant car driver was not visibly intoxicated when served at the bar. Plaintiff, however, raised triable issue of fact through defendant driver’s plea allocution where he admitted to having drank at least 13 beers and 7 shots of Jack Daniels at the bar and that his blood alcohol content (BAC) after the accident was .18%, and a verified statement from the arresting officer that defendant driver had glassy eyes and impaired speech and motor coordination. The plea allocution was a sworn statement akin to an affidavit. Sherwood v Otto Jazz, Inc.


Labor Law §240   Safety Devices   Sole Cause  

First

Plaintiff not entitled to summary judgment on Labor Law §240 claim because of questions of fact regarding whether scaffold covering opening of a flocculation tank was an adequate safety device and, if so, if it was removed by the plaintiff from the opening before he fell. McManus v City of New York


Med Mal   Statute of Limitations   Premature Motion  

Second Deptartment

Defendant treated plaintiff on several occasions, including two surgeries, through May of 2008. Plaintiff commenced action in February 2012. Defendant met its initial burden that the action was commenced after the statute of limitations and plaintiff failed to raise an issue of fact regarding continuous treatment. Lower court erred in denying motion as premature since there was no allegation that she relied on any misconduct by the defendant in failing to timely file. Campone v Panos


MVA   Sudden Stop   Bifurcation  

Second Deptartment

Plaintiff was not entitled to a unified trial because she failed to show that the nature and extent of her injuries was necessary to show whether she fell inside the defendant’s bus. Unified trials should only be held when the nature of the injuries has an important bearing on liability and rests in the sound discretion of the trial court. The court does not give the details of how the plaintiff contended the injuries bore on the issue of liability. Wright v New York City Tr. Auth.


Legal Mal   Attorney Disqualification  

First

Plaintiff’s attorney’s testimony was necessary regarding representation on a prior appeal alleging damages caused by defendant’s discovery violations, but defendant failed to meet its heavy burden of showing on its motion to disqualify plaintiff’s counsel, that the attorney’s testimony would be adverse to his client’s interests. Carnegie Assoc. Ltd. v Lerner, Arnold & Winston

IF YOU MUST READ
(1 summaries)

No-Fault   EUO  

First

Lower court’s grant of injunction declaring that the defendant was not entitled to no-fault benefits because of the defendant’s failure to appear for EUO’s was vacated, without prejudice to renew, for failure to show that the requests for EUO were timely mailed. Plaintiff also failed to make out a prima facie case of defendant’s failure to appear for EUO’s as submitted transcripts were uncertified and unsworn. Liberty Mut. Insurance Co. v K.O. Med., P.C.

About Matt McMahon

Civil trials and appeals since 1984
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