October 4, 2022 | Vol. 333

(5 summaries)

Labor Law §241   Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice   NYC  

Second Department
While difficulty in ascertaining that state Dormitory Authority (DASNY) was a proper party due to COVID was not a reasonable excuse for failing to timely serve a Notice of Claim on it, petition for leave to serve a late Notice of Claim on DASNY granted where NYS gave notice of the Notice of Claim timely served on NYS, containing the date, time, and location of the accident caused by construction debris, to DASNY’s carrier 70-days after the accident. Notice to DASNY’s carrier provided actual knowledge to DASNY within 90-days and provided some evidence or plausible argument that DASNY would not be prejudiced by the delay. DASNY failed to make a particularized showing of prejudice.

Leave to serve late Notice of Claim on NYC denied where claim that it may have acquired actual knowledge as owner of the property was speculative. Claim NYC had actual knowledge because it created the condition not considered where raised for the first time on appeal and material improperly submitted for the first time in reply not considered. Matter of Joseph v City of New York    

Premises Liab   Personal Juridiction   Motion to Dismiss  

First Department
Kalahari Resorts’ motion to dismiss for lack of jurisdiction granted as its participation in Macy’s Thanksgiving parade was a nationally televised event that would attract customers throughout the country, not just NY, solicitation of business alone is not a sufficient basis for finding corporate presence, nor is a website where reservations can be made online from NY. Fact that plaintiff was bit by bedbugs in NY from bedbugs in his belonging in PA did not provide situs jurisdiction. Peldman v Kalahari Resorts, LLC    

Negligent Supervision   Assumption of Risk  

Second Department
Gymnastics facility failed to meet burden for summary judgment dismissing negligent supervision claim of 3.5 year-old who fell off a balance beam where evidence taken in light most favorable to the non-moving party left questions of whether the supervision was adequate and whether the incident happened so quickly that no degree of supervision could have prevented the accident.

Defendants’ assumption of risk argument rejected as 3.5 year-old is too young to understand or assume the risks involved (non sui juris). M.R. v Nastics Next Generation, Inc.    

Premises Liab   Dangerous Condition   Notice   Last Inspection   Survelliance Video   Espinal  

First Department
Janitorial service denied summary judgment where plaintiff slipped on entry grate to escalator because of slippery combination of water tracked in from rain and construction dust as surveillance video was too high above area to eliminate possibility of dust condition or contradict plaintiff’s testimony of the condition and moving-defendant janitorial service failed to eliminate constructive notice by showing last time area was inspected prior to the accident, relying only on its cleaning/inspection routine. While moving defendant was not required to constantly mop area to remove tracked in water from rain, the combination of rain and construction dust presented a dangerous condition beyond tracked in water. Dakers v BFP Tower C Co., LLC    

Comment: From lower court order, janitorial service conceded it wholly displaced owner’s maintenance responsibilities under Espinal.

MVA   VTL §1104   Reckless  

Second Department
Proof defendant police officers conducted chase at excessive speeds through residential areas, going through traffic control devices, knowing van they were chasing was occupied by minors raised issues of fact on whether they were driving recklessly under VTL §1104(e) and should have terminated the pursuit. Defendants’ motion for summary judgment of negligence claims of driver killed when van drove wrong way on one way street and struck her vehicle denied. Kelly v City of Yonkers    

Comment: Defendants’ motion for summary judgment dismissing claims of infant-passenger killed in van denied on the same grounds. S.L. v City of Yonkers.
(14 summaries)

Assault   Battery   Vacate Default   Reasonable Excuse   Raised For First Time  

First Department
Ex-husband’s motion to vacate default judgment awarding ex-wife $5-million for assault/battery after inquest denied where record of communications with his prior counsel contradicted his claim, raised for the first time on appeal, that he was unaware of dates for judicial medication, trial, and inquest and he admitted he was served with the proposed judgment after inquest but waited a year to move to vacate. Based on defendant’s default and neglect pattern, any negligence of his counsel can be imputed to him. Fact prior counsel never moved to withdraw so defendant could represent himself was not a ground to vacate the default. Bardwil v Bardwil    

Comment: Plaintiff was granted summary judgment below on res judicata where a criminal jury found defendant guilty of assault and battery.

MVA   Vacate Default   CPLR § 3126   Discovery   IME/DME   Reasonable Excuse   Willful/Contumacious   Speculation   Conclusory  

Second Department
Plaintiff’s motion to vacate order dismissing action at a conference for plaintiff’s failure to appear for IME/DMEs as scheduled under an order that clearly stated no adjournments were allowed without leave of court, failure to comply would be considered willful/contumacious and could result in preclusion or dismissal denied as she failed to give any excuse for not appearing at the scheduled IME/DMEs. Her attorney’s proffered excuse that it was due to China’s COVID restrictions was speculative and conclusory. Court did not need to look at issue of meritorious action. Xiaomeng Yang v Amirshoev    

Malpractice   Loss of Services   Accepted Practice   Causation   Experts   Speculation   Conclusory   Raised For First Time  

First Department
Defendants’ expert failed to make out entitlement to summary judgment on conclusory and speculative opinions that her urinary issues “can” and may “likely” be caused by conditions other than transection of her ureter during hysterectomy, he never addressed patient-plaintiff’s psychological injuries, and that there was no causation for her spouse’s loss of consortium claim as such ureter injuries are not related to the ability to have sex, without citing to any objective evidence. Defendants’ expert’s more detailed affidavit not considered where submitted for the first time in reply. Hoffman v Taubel    

Labor Law §240   Sole Cause   Admissibility   Appealable Order  

First Department
Plaintiff granted summary judgment on Labor Law §240(1) on proof he fell from slanted roof without places to tie off. Defendants’ sole cause claim for failure to use an installed protection system failed to raise an issue where based on unauthenticated records and vague testimony and, in any event, there was no proof plaintiff was trained in its use.

Appeal from denial of plaintiffs’ motion to renew/reargue dismissed as they only sought reargument and no appeal lies from denial of a motion to reargue. Yocum v United States Tennis Assn. Inc.    

Labor Law §240   Gravity Risk  

First Department
Worker granted summary under Labor Law §240(1) on evidence that 10’ section of hose for pouring concrete caused wooden guardrail it was on to collapse with hose falling 10’ and hitting him on the head and plaintiff’s expert opined hose was not adequately secured for the work. Tinti v Alpha Omega Bldg. & Consulting Corp.    

MVA   VTL §1104   Question of Fact  

First Department
Ambulance driver and company denied summary judgment under VLT §1104(b)(1) for parking in a no standing zone, a protected activity, where questions remained of whether the ambulance lights and sirens were on as required by VLT §1104(c). Taveras v Almodovar    

Premises Liab   Notice   Last Inspection  

Second Department
Landlord met burden for summary judgment on proof its property manager inspected the window only days before the upper sash fell on plaintiff and found it opened and closed without difficulty, showing it had no notice of the condition. Tuck v Surrey Carlton Hous. Dev. Fund Corp.    

MVA   Pileup   Nonnegligent Explanation   Appealable Order  

First Department
Third-vehicle-defendants in 3-vehicle pileup had standing to appeal dismissal of second-vehicle-defendants, which plaintiff did not oppose, as they were aggrieved by the dismissal where second-vehicle-defendants failed to provide a nonnegligent explanation for rear ending plaintiff and conflicting versions of the sequence and severity of the impacts left questions of fact. Cross claims against second vehicle reinstated. Ortiz v Maxon    

Malpractice   Motion to Dismiss   Duty   Respondeat Superior  

First Department
Pre-Answer motion to dismiss pro-se malpractice claim against hospital’s president and COO granted as there were no allegations president ever treated plaintiff as corporate officers are not personally liable for torts of corporation’s employees. Plaintiff’s motion for default judgment denied as pre-Answer motion to dismiss was timely. Schwartz v Mount Sinai Hosp.    

MVA   There to be Seen   Survelliance Video  

Second Department
Defendants failed to meet burden for summary judgment where 12-second dash-cam video contradicted defendant-driver’s affidavit which claimed plaintiff suddenly cut in front of him where it showed plaintiff’s vehicle pointing into defendants’ lane for 5-seconds in slow moving traffic while defendant-driver was looking to his left and he did not look back until impact. Cheese v Ferguson    

Pothole Law   Prior Written Notice   NYC  

First Department
NYC granted summary judgment on proof it did not receive prior written notice of construction gravel on roadway. Plaintiffs failed to raise an issue with corrective action reports for an asphalt trench near the accident site as notice of one defect does not give notice of another and the reports did not identify gravel or a hazardous condition. DeLaCruz v City of New York    

Serious Injury   Preexisting   Degenerative   ROM   Causation   Experts  

First Department
Plaintiff failed to raise an issue in opposition to defendants’ showing that plaintiff did not sustain a serious injury as defendant’s orthopedist’s report finding limited ROM on suboptimal effort submitted by plaintiff did not address causation or proof of degeneration and preexisting condition from a prior accident. Lyons v New York City Tr. Auth.    

MVA   Motion to Dismiss   Respondeat Superior  

First Department
Employers’ motion to dismiss action by pedestrians struck by their employee denied where taking allegation that employee was acting within the scope of his duties as true, plaintiffs stated a cause of action for respondeat superior. Hong Jin v Herman    

Construction Liab.   Sidewalk   Premature Motion  

First Department
Exterior work contractor granted summary judgment on proof it did not work on sidewalk plaintiff tripped on and it had no duty to maintain the sidewalk. Plaintiff offered only speculation that depositions might lead to relevant information. Severinghaus v TUFCO, Inc.    

(2 summaries)

Assault   Battery   Vacate Default   Reasonable Excuse   Meritorious Defense  

Second Department
Lower court providently granted defendant’s motion to vacate judgment awarding plaintiff $16,662.50 after inquest resulting from defendant’s failure to show at a conference on finding defendant provided a reasonable excuse for the nonappearance and a potentially meritorious defense. The Court does not give the details of the proofs. Damsky v Williams    

Serious Injury   Causation  

Second Department
Defendant met burden for summary judgment on competent medical proof that plaintiff did not sustain a serious injury, that his injuries were not caused by the accident, and that he did not meet the 90/180-day category of serious injury. Plaintiff failed to raise an issue in opposition. The Court does not give the details of the proofs. Adolphus v Marchiony    

About Matt McMahon

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