October 6, 2020 | Vol. 230

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MUST READS
(6 summaries)
NOTEWORTHY IF YOU MUST READ

Strike Answer   Discovery   Willful/Contumacious  

First Department

Answer of defendants MTA, NYCTA, Access-A-Ride and CBT Para Transit, Inc. stricken for failure to produce their witnesses for depositions violating 7-orders over 3-years without offering any excuse. The pattern of conduct showed willful/contumacious conduct. Cooper v Metropolitan Transp. Auth.

Med Mal   Products Liab   Vacate Default   Untimely   CPLR § 2004   Reasonable Excuse   Appealable Order   Renew  

Second Department

In combined medical malpractice/products liability action, where plaintiff fell off exercise bike during physical therapy, plaintiffs’ opposition to defendants’ summary judgment motions, submitted beyond final submit date set by court after 4-adjournments, providently rejected and motions granted on default. Plaintiffs’ request for additional adjournment on claim expert had not yet signed affidavit providently denied for failing to show good cause for extension or reasonable excuse for not timely submitting opposition other than plaintiffs’ own lack of diligence. Plaintiffs never moved to vacate default and no appeal lies from a motion granted on default. Vassiliou-Sideris v Nautilus, Inc.

Comment: Motion to renew opposition to motions for summary judgment denied where no opposition was timely filed upon which renewal could be granted and plaintiffs failed to offer new evidence that would change the result. Vassiliou-Sideris v Nautilus, Inc..

Premises Liab   Vacate Default   Venue  

Second Department

Defendants’ motion in Nassau Supreme to vacate New York Supreme order granting default judgment against 1-defendant one day after New York Supreme ordered transfer of venue to Nassau County on grounds New York Supreme lacked subject matter jurisdiction denied. A motion to vacate has to be made court issuing order and Nassau Supreme had no authority to vacate New York Supreme order. Since Supreme Court has statewide jurisdiction it had subject matter jurisdiction to entertain default motion wherever action is pending after order to transfer venue. London v 107 (160) Realty, LLC

Labor Law §240   Labor Law §241   Labor Law §200   Scaffold   Control   Industrial Code  

Second Department

Plaintiff who fell 6′ from scaffold without guardrails denied summary judgment on Labor Law §240(1) for failure to eliminate questions of whether scaffold provided proper protection as “the absence of guardrails on a scaffold six feet in height does not necessarily constitute a violation of Labor Law §240(1).” Landowner granted summary judgment of Labor Law §200 and negligence claims where injury resulted for manner of work and owner did not have authority to control work. Landowner denied summary judgment of Labor Law §241(6) based on industrial code §23-5.1(b)(Scaffold footing or anchorage) for failure to show provision was inapplicable or not violated. Medina-Arana v Henry St. Prop. Holdings, LLC

Motion to Dismiss   CPLR § 3126   Discovery   Vacate Default   Reargument   Renew   Reasonable Excuse   Meritorious Action  

Second Department

Plaintiffs’ motion to vacate order dismissing action on default for failure to comply with discovery orders denied where associate’s affirmation that hard copy of motion was never received and paralegal assigned to calendar motions had been terminated was insufficient to show law office failure without affirmation of managing partner whose email address was used for EF notifications, or an indication of personal knowledge regarding that email. Plaintiffs also failed to show meritorious opposition to CPLR §3126 motion for failure to comply with court ordered discovery. Renewal providently denied where new facts would not have changed result and plaintiffs offered no justification for not including them in original motion. Prakope v Public Stor.

Med Mal   Informed Consent   Accepted Practice   Expert Aff  

First Department

Plaintiff’s expert raised issues in opposition to defendant’s entitlement to summary judgment opining it was a departure to extract 6-teeth that could have been saved with alternative treatment, failing to refer plaintiff to a periodontist, and, on informed consent, failure to discuss periodontal scaling and root planning which was not cost prohibitive. Fact plaintiff’s’ expert did not indicate he/she reviewed plaintiff or husband’s EBT’s did not negate opinion as they were not necessary to form an opinion on appropriateness of treatment. That teeth would have required additional treatment if not extracted, and that plaintiff subsequently had a denture installed, were irrelevant to motion. Defendant granted summary judgment as to 1-tooth plaintiff’s expert did not address. Castro v Yakobashvilli

NOTEWORTHY
(21 summaries)
MUST READS IF YOU MUST READ

MVA   Graves Amendment   Admissibility   Hearsay  

Second Department

Truck lessor’s motion for summary judgment on Graves amendment denied where it’s employee’s affidavit failed to lay business record foundation for lease, accident did not occur within period covered by lease, and there was no proof lease was extended. The employee affidavit failed to prove as a matter of law that the truck was not negligently maintained where it did not provide basis of the employee’s knowledge. Alfaro v Lavacca

Premises Liab   Dangerous Condition   Building Code   Expert Aff  

Second Department

Defendants granted summary judgment where plaintiff tripped on speaker wire in his apartment and fell out window onto sidewalk on proof window was not a dangerous condition and they were not obligated to install window guards to protect an adult. Plaintiff’s expert failed to raise issue in opposition where opinion was not based on any rules, regulations, codes, standards, or the record. Fraser v Reclaim Hous. Dev. Fund Corp.

Labor Law §200   Assumption of Risk  

Second Department

Defendants granted summary judgment of Labor Law §200 and negligence claims where excavation laborer injured when shovel struck portion of rail not covered while shoveling concrete debris in subway tunnel under renovation as duty to provide safe workplace does not extend to hazards worker was specifically hired to correct. Pacheco v Judlau Contr., Inc.

Labor Law §240   Labor Law §241   Labor Law §200  

Second Department

Contractor granted summary judgment of Labor Law §§§240, 241, and 200 brought by apartment building owner’s property manager, who was sole member of the owner corporation, for injuries when stairs under construction collapsed as he was not a person entitled to protection under §§§240, 241, and 200. Bosconi v Thomas R. Stachecki Gen. Contr., LLC

Premises Liab   Out of Possession  

Second Department

Building owner granted summary judgment where supermarket employee fell through floor opening for bakery lift on proof it was an out of position owner and pleadings did not allege a statutory violation. Gallina v 7901-11 13th Ave. Realty Corp.

MVA   Bus   Emergency Doctrine  

First Department

NYCTA granted summary judgment on proof bus driver was faced with emergency situation not of his own making when a double parked vehicle made an illegal U-turn 5’ in front of him and that he acted reasonably driving no more than 15 mph, honked his horn to warn the double parked car, and held his foot hovering over the brakes. Driver not required to anticipate a sudden, illegal maneuver. Santana-Lizardo v New York City Tr. Auth.

False Arrest   Malicious Prosecution   Battery   Late Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice   NYC  

Second Department

Timely Notice of Claim by co-participant in altercation with Lyft driver where petitioner was arrested did not provide actual knowledge of essential elements of petitioner’s claim where [from lower court’s decision] it recited that petitioner left scene after driver called 911 without any mention of petitioner being arrested. Petitioner’s claim of ignorance of 90-day Notice of Claim requirement was not a reasonable excuse and he failed to show NYC was not prejudiced by delay. Matter of Beaton v City of New York

Labor Law §200   Control   Create Condition  

First Department

Defendants denied summary judgment of Labor Law §200 and negligence claims where plaintiff fell from tractor-trailed while manually rolling tarp to cover trash on the trailer due to defective tarping mechanism as plaintiff testified defendant directed him to cover the trash and there was a question of whether defendant caused the defect by allowing the trailer to be overfilled. Landron v Wil-Cor Realty Co. Inc.

Premises Liab   Assumption of Risk   Create Condition   Foreseeability  

Second Department

Village denied summary judgment where 11-year-old injured when tire swing collided with railing on lack of proof it was not negligently designed which would unreasonably increase the risk above those inherent in playing on a tire swing and question on whether 11-year-old with limited experience with the tire swing was fully aware of and appreciated the risks of it being able to contact the railing. Village also failed to show they did not create the condition, have notice, or that the accident was unforeseeable. Berrin v Incorporated Vil. of Babylon

Premises Liab   Slip/Trip   Snow/Ice   Storm in Progress   Duty  

Second Department

Owner and snow contractor granted summary judgment where plaintiff slipped/fell on snow/ice in parking lot open to elements on 3-sides on proof there was a storm in progress. Temporary lull in the storm did not trigger a duty to remove snow before storm ended. Defendants’ experts showed there were blizzard conditions over a 24-hour period, a winter storm warning, a State Disaster Emergency declaration, and that the conditions were consistent with plaintiff’s testimony that it was snowing when he was put into the ambulance. Pennino v Brooklyn Kings Plaza, LLC

Med Mal   Informed Consent   Accepted Practice   Causation   Uncertified Records   Raised For First Time   Expert Aff  

Second Department

Defendants granted summary judgment on expert affidavit that they did not depart from accepted practice and injuries were not caused by any departures or lack of informed consent. Plaintiff’s argument that medical records relied upon by defendants were uncertified rejected as raised for the first time on appeal and plaintiff relied on the same records in opposition. Without submitting an expert affirmation, the plaintiff failed to raise an issue of fact in opposition. Benedetto v Tannenbaum

Premises Liab   Slip/Trip   Snow/Ice   Open/Obvious   Comparative Fault  

First Department

Plaintiff granted summary judgment on liability and dismissal of comparative fault where he tripped and fell on fence posts he saw removed and placed on the ground 2-months before accident, in anticipation of a blizzard, which were covered by snow at time of his fall. That fence posts were covered in snow and plaintiff testified he did not see them in the weeks leading up to his accident eliminated question of whether they were open/obvious. Paget v PCVST-DIL, LLC

Premises Liab   Slip/Trip   Unknown Cause  

Second Department

Restaurant granted summary judgment on plaintiff’s EBT testimony that she did not know what caused her foot to get stuck in carpet, failingto raise an issue of fact on causation without speculation. Plaintiff’s attorney’s affirmation insufficient to raise issue of fact. Colini v Stino, Inc.

Premises Liab   Slip/Trip   Wet Floor   Create Condition   Notice   Vicarious Liab  

Second Department

Hotel granted summary judgment where plaintiff, employee of cleaning contractor, slipped on soapy water in area not open to public that was spilled by carpet cleaning contractor 10-minutes before accident as hotel is not liable for independent contractor’s actions and did not create the condition or have notice in time remedy it. Diaz v LaGuardia Express, LLC

Serious Injury   BP  

Second Department

Defendant failed to meet burden on serious injury for 90/180-day category alleged in BP where plaintiff’s testimony failed to identify plaintiff’s usual pre-accident activities or compare them to post accident activities. Reid v Edwards-Grant

Serious Injury   ROM   Causation   Expert Aff   Degenerative   Conclusory  

First Department

Defendants entitled to summary judgment on serious injury on neurologist’s report showing normal ROM, that alleged injuries resolved, and emergency physician’s report stating that ER records were inconsistent with claimed injuries. Plaintiff’s doctor failed to raise issue by recent finding of limited ROM without addressing degeneration in plaintiff’s MRI report or explaining why it was not related to degeneration. Testimony that plaintiff confined to bed/home for 6-weeks sufficient for summary judgment dismissing 90/180-day category claim. Stickney v Akhar

Serious Injury   Degenerative   Causation  

Second Department

By failing to address defendants’ radiologist’s findings that spine injuries were degenerative, plaintiff’s expert failed to raise an issue in opposition to defendants’ prima facie entitlement to summary judgment. Holmes v Parkinson

Assault   1983 Action   Motion to Dismiss   Police   NYC  

First Department

Motion to dismiss by NYC and police officer denied where plaintiff sufficiently pleaded an intentional assault and battery without probable cause, and no criminal charges were filed. Motion to dismiss 1983-action denied as assault and battery can form the basis of a constitutional violation by police officers acting under color of law. Corcoran v City of New York

Premises Liab   Slip/Trip   Stairs   Dangerous Condition   Raised For First Time   Prejudice   Expert Aff   Conclusory   Speculation  

First Department

Defendants granted summary judgment on proof handrail plaintiff claimed was unstable was not defective, including video showing handrail did not move and that plaintiff was distracted and missed a step. Design defect theory raised for the first time in opposition was not considered where not pleaded. Plaintiff’s expert’s opinions were conclusory and speculative. Minor v East Harlem Tutorial Program, Inc.

Premises Liab   Elevator   Unsigned Transcript   Res Ipsa Loquitor  

Second Department

Plaintiff did not dispute that elevator company made out entitlement to summary judgment with deposition testimony that plaintiff did not see suspected misalignment that caused his shoulder to pop out as he was pulling an ICU bed out of the elevator but assumed it misleveled, instead arguing that testimony should not be considered because it was unsigned. That argument was rejected as raised for the first time on appeal. Kachele v Nouveau El. Indus., Inc.

MVA   Renew  

Second Department

Defendants in MVA denied leave to renew denial of prior motion for summary judgment where new facts offered would not have changed the determination. The court does not give the details of the proofs. Jian Feng Zhang v Roman

IF YOU MUST READ
(2 summaries)
MUST READS NOTEWORTHY

Premises Liab   Slip/Trip   Question of Fact   Indemnity  

First Department

Landlord denied summary judgment on contractual indemnity claim against tenant for slip/fall on sidewalk absent proof of connection between lease obligations for contractual indemnity and accident. Lease obligation to procure insurance does not control. Landlord’s contractor’s work on sidewalk months before accident left questions of landlord’s own negligence. Williams v 2897 Third Ave., Inc., LLC

Serious Injury  

Second Department

Defendant granted summary judgment on serious injury on competent medical evidence and plaintiff failed to raise an issue in opposition. The court does not give the details of proofs. Jay C. Carlisle II v Garcia

About Matt McMahon

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