October 5, 2021 | Vol. 281

(6 summaries)

Highway Design   Vacate Default   Motion to Dismiss  

Second Department
County’s motion to vacate wrongful death default judgment 8-years later under CPLR §5015(a)(2), claiming recent grant of summary judgment to town was newly discovered evidence showing County was free from fault, and in interest of substantial justice, denied as the decision in favor of the town would not have produced a different result at trial and County failed to show mistake, inadvertence, surprise, or excusable neglect necessary to vacate in the interest of substantial justice. Borrie v County of Suffolk    

Comment: County’s original pre-Answer motion to dismiss had been denied as it was in default at time of motion, and plaintiff’s cross motion for default judgment was granted.

Construction Liab.   Set Aside Verdict   Pain/Suffering   Materially Deviates   Appealable Order   Raised For First Time   NYC  

Second Department
Jury award of $2,000,000/$2,343,108 past/future pain/suffering, $322,264/$569,454 past/future lost earning, $297,635 lost social security, $349,840 future pain management, $374,949 for future medications, $105,612 for future orthopedic visits, $100,000 for future spinal surgery, $171,554 for future physical therapy, and $49,506 for future diagnostic tests materially deviated from reasonable compensation to extent of reducing future pain/suffering from $2,000,000 to $1,000,000, past/future lost earnings from $322,264/$569,454 to $207,000/$211,434, loss of social security from $297,635 to $40,000, and future pain management from $349,840 to $55,763 for a total reduction from $6,683,922 to $4,315,818. Plaintiff sustained a fractured shoulder requiring surgery, cervical and lumbar injuries with severe neck/back pain, 5-epidural injections, herniated C4-C5 requiring fusion that resulted in a non-union.

Defendants failed to preserve for appellate review claims that future pain/suffering should have been set aside in its entirety as it was not raised in their post-trial motion and contentions that court was biased against them or that plaintiff’s counsel made improper remarks. Masmalaj v New York City Economic Dev. Corp.    

Comment: See companion decision on summary judgment under Noteworthy.

Set Aside Verdict   Pain/Suffering   Materially Deviates   Preclusion   CPLR § 3101(d)   Experts   Appealable Order  

First Department
Award of $300,000/$300,000 past/future pain/suffering where plaintiff’s physician testified he would need 1-2 future shoulder replacement surgeries did not materially deviate from reasonable compensation and was supported by legally sufficient evidence. Jury could credit evidence supporting plaintiff’s injuries and reject contrary evidence.

Although lower court granted motion in limine to preclude testimony of cost of future surgeries not mentioned in a CPLR §3101-d response or narrative report, defendants’ failure to object to the testimony at trial failed to preserve issue for appeal. Gontarek v New York City Tr. Auth.    

Premises Liab   Directed Verdict   Question of Fact   Causation   Experts   Prejudice  

Second Department
Judgment of $204,000 with 9% interest on damage only jury verdict after grant of directed verdict for plaintiffs at close of evidence, finding NYCHA’s negligent in treatment of prolonged bedbug infestation that was a cause of plaintiff’s injuries, reversed and new trial ordered as there was a rational process for a jury to find in favor of NYCHA on liability and causation based on competing expert opinions and evidence. Violations of municipal ordinances are some evidence of negligecnce for the jury’s consideration, but not negligence per se.

Plaintiffs failed to show the error did not “prejudice a ‘substantial right’ of NYCHA (CPLR 2002), or that jury’s verdict ‘would have been the same’ if not for the error. Aponte v New York City Hous. Auth.    

Vacate Jud   Personal Juridiction  

First Department
Portion of judgment entered against law firms representing defendants after defendants failed to make payments under settlement agreement vacated as firms were never parties to the action and court lacked jurisdiction over them. There was no conceivable theory where law firms could be liable for their clients’ failure to comply with the settlement agreement. Lanausse v Daval Tr., Inc.    

Serious Injury  

First Department
Defendants granted summary judgment on serious injury 90/180-day category where plaintiff testified she returned to work a few days after the accident and BP alleged she was unable to work for 15-days and totally disabled for 3-weeks. Motion to strike economic damages on plaintiff’s testimony that she did not lose wages denied where she testified she lost future compensation and promotion because of her injuries. Coombs v Zelekowitz    

(18 summaries)

Premises Liab   Wet Floor   Out of Possession   Notice   Last Inspection   Duty   Espinal  

Second Department
Building owner’s evidence that its general manager had office in building, was in tenant’s space every day, had contracted for, oversaw, and approved installation of HVAC that leaked causing puddle tenant’s employee slipped on, and general manager’s practice of contacting the chief engineer anytime there was a problem with the system failed to show it was an out-of-possession landlord. Owner also failed to show lack of actual/constructive notice of dangerous or recurring condition where complaints were recorded by someone other than general manager and he didn’t know if that person received any complaints or when cleaning contractor last cleaned/inspected area. Defendant management company failed to show it owed no duty to plaintiff or that it lacked notice of the condition.

Evidence submitted by defendant AC contractor showed it contracted with owner for installation and tenant for maintenance of system 8-months before accident but failed to show system was not source of leak and that it did not launch an instrumentality of harm under Espinal. Taliana v Hines REIT Three Huntington Quadrangle, LLC    

Amend BP   Note of Issue   Notice  

First Department
Plaintiff’s supplemental BP served 3.5 years after Note of Issue struck as it was in fact an amended BP that could not be served without leave of court where it alleged new injuries and economic damages expanding on the extent and nature of the injuries. Appellate court took judicial notice of EBT testimony from record on prior appeal which did not support plaintiff’s claim defendants were on notice of injuries from that EBT. Matias v West 16th Realty LLC    

Venue   Burden of Proof  

First Department
Nursing home’s motion to change venue from Bronx to Westchester County granted on admission form specifying Westchester venue. Plaintiff’s conclusory claim agreement violated public policy rejected without proof of fraud, overreaching, or that it would deprive estate of day in court. Defendants not required to provide proof of circumstances of signing as burden of proving fraud or overreaching is on party contesting agreement. Caio v Throgs Neck Rehabilitation & Nursing Ctr.    

Set Aside Verdict   Preclusion   Hearsay   Appealable Order   Raised For First Time  

First Department
Plaintiff’s motion to set aside defense verdict as against weight of evidence denied where plaintiff gave conflicting versions of what caused her fall and bus driver and inspector both testified she did not fall in front of tree-well as she testified. Trial court providently redacted plaintiff’s statement in incident report, even though defendants raised recent fabrication, as it did not state she fell in front of the tree-well and it’s reduction would be harmless error as jury likely knew content of statement from other references to it during trial. Plaintiff failed to preserve argument that defense counsel made improper statements during summation without motion for mistrial at time of summation and Court found no misconduct as counsel is given wide latitude during summation. Adika v New York City Tr. Auth.    

Labor Law §240   Duty   Control   Agent  

First Department
While Verizon’s telephone pole was structure under Labor Law §240 and work cable-service repairman was performing when he fell from ladder propped up against the pole, including replacing broken cable equipment and reconfiguring its support system, was a “repair,” but his motion for summary judgment was denied and Court searched record and dismissed the Complaint against Verizon as there was no evidence it contracted for or benefited from the work, acted as owner agent, or had authority to control plaintiffs work or insist he follow proper safety procedures. Villalta v Consolidated Edison Co. of N.Y., Inc.    

Labor Law §240   Labor Law §241   Labor Law §200   Falling Object   Duty   Control   Indemnity  

Second Department
Construction manager failed to meet burden of showing it owed no duty to plaintiff without proof it did not have authority to control means/methods of plaintiff’s work or establish and maintain safety procedures where plaintiff, employee of subcontractor hired by construction manager, was struck by falling 7′ 2 x 4. Summary judgment on indemnity claim against subcontractor denied where questions remained of construction manager’s liability. Jin Gak Kim v Kirchoff-Consigli Constr. Mgt., LLC    

Labor Law §240   Gravity Risk   Feigned Issue  

First Department
Plaintiff’s affidavit stating he was standing on makeshift 3′ high apparatus when he fell failed to raise issue as it directly contradicted his deposition testimony that he was standing on floor at the time of accident, but the 275 lb. carpet and pipe 3′ above the ground raised issue of ‘a risk arising from a physically significant elevation differential.’ Powers v River Ctr. LLC    

Informed Consent   Question of Fact   Experts  

First Department
Testimony and affidavit of plaintiff, testimony of his uncle who overheard doctor’s explanation to plaintiff before surgery, and conflicting expert opinions sufficiently contradicted doctor’s claim he gave plaintiff the ‘alternatives . . . and . . . reasonably foreseeable risks and benefits involved’ resulting in denial of summary judgment on informed consent. Miller v Mount Sinai Hosp.    

Labor Law §240   Scaffold   Safety Devices   NYC  

Second Department
Carpenter who fell 5′-6′ from Baker scaffold while installing ceiling tracks as he tried to move the scaffold while standing on its platform and saw, after he fell, that one of the wheels had detached granted summary judgment on Labor Law §§ 240(1) and 241(6) on proof he was directed to use the scaffold, it was only available scaffold, and his foreman inspected the scaffold after the fall finding it had been attached only by a wire without any nuts or bolts, and had detached. Plaintiff’s submission of supporting affidavits of persons with knowledge of facts and no other proofs such as EBT transcripts was not procedurally defective. Masmalaj v New York City Economic Dev. Corp.    

Comment: See companion decision on pain/suffering under Noteworthy.

Labor Law §241   Amend BP   Note of Issue   Prejudice   Industrial Code   Causation   Indemnity  

Second Department
Building owner’s motion for summary judgment of Labor Law §241(6) claim denied, and plaintiff’s cross motion to amend BP to allege violation of industrial code §23-1.5(c)(3)(good condition of safety devices) after Note of Issue where plaintiff had included it in a supplemental BP after post Note of Issue discovery was completed granted. Defendant was not prejudiced by amendment which did not include new factual allegations or theories of liability and owner failed to show §23-1.5(c)(3) was not applicable or not a cause of plaintiff’s injuries sustained when his broken knee pad shifted while applying adhesive during flooring installation. Plaintiff’s testimony that his supervisor told him he needed new pads 2-months before accident raised only a question of fact.

Question of fact remained on whether general contractor was negligent requiring denial of summary judgment on owner’s indemnity claim. Palaguachi v Idlewild 228th St., LLC    

Motion to Dismiss   Governmental Immunity   Waiver   Raised For First Time  

First Department
NJ transit waived subject matter jurisdiction defense based on sovereign immunity by invoking the New York courts’ jurisdiction through extensive litigation over 6-years without raising the defense. Defendant’s argument sovereign immunity defense was not available until the Hyatt decision in 2019 rejected as sovereign immunity has always been available as defense. Full Faith and Credit argument not considered where raised for first time on appeal and claim of change of law not applicable as First Department’s prior rulings were not a change of law. Fetahu v New Jersey Tr. Corp.    

Premises Liab   Vacate Default   Reasonable Excuse   Meritorious Defense   Create Condition   Notice  

First Department
Fact that third-party administrator lost track of case and failed to advise carrier to assign counsel provided reasonable excuse for failing to Answer, potentially meritorious defenses on creation of defect and notice, and policy in favor of deciding cases on merits justified vacating order granting default and damages after inquest. Schwartz v Port Imperial Ferry Corp.    

Premises Liab   Snow/Ice   Unknown Cause   Notice   Last Inspection   Experts   Speculation  

First Department
Defendant failed to show plaintiff could not identify cause of fall where he testified he saw a patch of hard ice larger than his foot immediately after fall, and also failed to establish ice could not have existed where its own meteorological expert acknowledged multiple black ice warnings starting day before fall and that ice informed due to radiation cooling. Meteorological data showed snow remained on ground for more than a month after heavy snowfall, but defendants failed to show any efforts to remove snow prior to accident. Plaintiff’s expert would have raised issue by nonspeculative opinion ice was formed by improper snow removal and confirming National Weather Service black ice warnings. McRae v New York Flower, LLC    

Police   Motion to Dismiss   Notice of Claim  

First Department
Detectives’ motion to dismiss for failure to serve a Notice of Claim granted as Notice of Claim requirement applies to municipal employees as well as municipalities. Needleman v McFadden    

Labor Law §240   Labor Law §241   Labor Law §200   Amend Complaint   BP   Notice  

First Department
Plaintiffs’ motion to amend Complaint to include Labor Law §§240, 241, and 200 claims denied as devoid of merit where she was performing routine cleaning of ground outside premises which is not a protected activity under Labor Law, and supplemental BP served 12-years after action commenced did not give defendants notice of theory as it only serves to expand existing claims and not assert new theories. Sahmanovic v Kingsbridge Realty Assoc., LLC    

Serious Injury   BP   Experts  

First Department
Plaintiff’s physician’s affidavit stating she was totally disabled and unable to work for more than 90-days after accident raised issue in opposition to defendants’ serious injury motion based on BP which alleged plaintiff was confined to bed for only 3-weeks right after the accident and 1-month after surgery. If jury finds for plaintiff on 90/180-day category, she can recover for all injuries caused by the accident. Kaakyire v Soto    

Amend Complaint   Estate   Appealable Order  

First Department
Neither lower nor appellate court had jurisdiction to decide plaintiff’s motion to proceed under a pseudonym where 1-defendant had died and estate was not substituted. Court indicated it would have affirmed grant of motion to proceed as pseudonym if it had power to do so. Thomas v Rubin    

False Arrest   False Imprisonment   Malicious Prosecution   Probable Cause   NYC  

First Department
Police had probable cause for arrest and prosecution of defendant for menacing based on pedestrians who flagged down police officers about defendant threatening to kill them with what appeared to be a knife and eyewitness identification of defendant. Instrument defendant had was needle nose pliers, not knife. Gann v City of New York    

(0 summaries)

About Matt McMahon

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