October 8, 2019 | Vol. 179

(4 summaries)

Premature Motion   Amend Answer   Motion to Dismiss   Prejudice   Statute of Limitations  

Second Department
Defendant’s motion 27-months after Answer to amend Answer to replace their admission that they owned the building where the ceiling collapsed on plaintiff and substitute a denial and, if granted, for dismissal based on documentary evidence showing that they were not the owner at the time of the accident or for summary judgment denied. A motion to amend an Answer should not be granted where it would unfairly prejudice or surprise a party. Since the statute of limitations had run, there would be extreme prejudice to the plaintiff if granted and defendant failed to show when it first learned it was not the owner at the time of the accident. Adduci v 1829 Park Place, LLC

MVA   Rear End   Judicial Admissions   Sole Cause   Serious Injury   BP  

Second Department
Plaintiff’s attorney’s argument in prior motion that codefendants’ negligence was the “sole proximate cause” of the accident was admissible as an informal judicial admission and plaintiff failed to raise an issue on causation in opposition as to moving defendants. Summary judgment granted on admission. Moving defendants failed to meet burden on serious injury where it did not address head injuries alleged in BP. Rosales v Rivera

Attorney Fees   SUM  

Second Department
Substituted attorney entitled to 80% of fee on both $25,000 settlement and $9,000 SUM settlement based on stipulation in $25,000 case. Attorney discharged without cause is entitled to a fee on any recovery including recovery in a separate action such as a SUM claim. Dzhurinskiy v Moore

1983 Action   Set Aside Verdict   Pain/Suffering   Materially Deviates   NYC  

First Department
Award of $0 for past pain/suffering could not be reached on fair interpretation of evidence and materially deviated from reasonable compensation where plaintiff’s nose and frontal bone were fractured when hit by police shield when entering apartment to execute search warrant and set aside for new damage trial unless defendant stipulated to increase award to $200,000. There was a rational basis for jury to award $0 for future pain/suffering where jury could find injuries had healed. Plaintiff waived argument that verdict was inconsistent. Shimukonas v City of New York

(11 summaries)

MVA   Respondeat Superior  

Second Department
Employer denied summary judgment on testimony of employee who was driving his own vehicle at time of collision that raised issues as to whether employee was using his vehicle for purposes necessary or incidental to his employment. Alkhabbaz v Best

Comment: Employee’s appeal regarding same issue also granted denying employer’s motion for summary judgment. Attar v Best.

Premises Liab   Slip/Trip   Unknown Cause   Speculation  

Second Department
Building where plaintiff fell in lobby granted summary judgment on plaintiff’s deposition stating she did not see defect she assumed caused her fall either before or after accident raising only speculation. Phillips v LSS Leasing Ltd. Liab. Co.

Premises Liab   Slip/Trip   Sidewalk   Snow/Ice   Notice   Expert Aff  

First Department
NYCHA’s motion for summary judgment claiming it did not create or have actual or constructive notice of ice condition plaintiff slipped on based on climatological data and expert opinion that it was impossible for precipitation from morning before to have frozen before accident denied where testimony of 2 NYCHA employees and logbook showed NYCHA employees were in process of deicing area at time of accident and enhanced photograph of area taken moments after plaintiff fell raised issues of fact on whether there was ice and how long it existed. Dixon v New York City Hous. Auth.

Late Notice of Claim   False Arrest   Assault   Actual Knowledge   Reasonable Excuse   Prejudice  

Second Department
Petition to serve late Notice of Claim 5-months past 90-day period denied where supporting deposition filled out by seasonal Park Ranger did not alert County to possible actionable conduct, petitioner’s excuse that he was waiting for underlying criminal case to be dismissed was not a reasonable excuse for the delay, and plaintiff failed to show that the county was not prejudiced by the delay. Matter of Torres v County of Westchester

Vacate Default   Compel Acceptance   Amend Complaint   Reasonable Excuse   Conclusory  

Second Department
Plaintiff’s motion to enter default judgment and set matter down for inquest granted and defendants’ motion to vacate default and compel acceptance of Answer denied where defendants’ conclusory statement that failure to answer was due to delays by insurance carrier did not provide reasonable excuse for failing to timely answer. Amendment to Complaint 2-days after it was filed to substitute plaintiff’s legal first name for her Yiddish name was not addition of a new party. Glanz v Caterers

Labor Law §240   Ladder   Indemnity  

First Department
Plaintiff granted summary judgment on Labor Law §240(1) on plaintiff’s testimony that ladder moved causing him to fall. Building owner entitled to summary judgment on common law indemnity claim against general contractor whose representative was present on site, actively engaged in supervising work, insisted that plaintiff, employee of subcontractor, wear their uniform, and plaintiff regarded them as “the bosses.” Rivera-Astudillo v Garden of Prayer Church of God in Christ, Inc.

MVA   Duty   Causation  

Second Department
Paratransit van operated as access-a-ride granted summary judgment on proof that disabled plaintiff’s decedent had not yet boarded the van or traversed any dangerous area because she was injured before the van pulled to the curve. Caruso v Premier Paratransit, LLC

False Arrest   Malicious Prosecution   1983 Action   Notice of Claim   Statute of Limitations   Probable Cause   NYC  

First Department
Plaintiff’s State claims dismissed for failure to serve timely Notice of Claim, commencement of action beyond statute of limitations, and the existence of probable cause. Issues of fact remained on 1983 action for body cavity search, even if not well pled, with appellate court nostra sponte conforming pleadings to the proofs. Beauvoir v City of New York

MVA   VTL §1104   Reckless   Sole Cause   NYC  

Second Department
NYC granted summary judgment where plaintiff was struck while getting out of parked car by a vehicle driving through adjoining parking spot that had been pursued by police for a traffic stop due to excessively tinted windows. NYC showed that police officers had terminated chase and lost sight of offending vehicle before the accident, were not reckless under VTL §1104, and offending vehicle was sole cause of the accident. Alexander v City of New York

Serious Injury   Expert Aff  

Second Department
Plaintiff failed to raise issue of fact in opposition to defendant’s entitlement to summary judgment on serious injury on orthopedist’s finding of normal ROM using goniometer where plaintiff’s chiropractor found 60% limitation of ROM but failed to indicate objective instrument used. Gersbeck v Cheema

Labor Law §240   Labor Law §241  

Second Department
One of 2 truck leasing companies plaintiff sued claiming they owned the truck plaintiff was using when he fell from tailgate entitled to summary judgment where plaintiff did not address defendant’s claims that they did not own or lease the truck and plaintiff failed to make out a prima facie case of negligence. Elam v Ryder Sys., Inc.

(1 summaries)

MVA   Bicycle   MVIAC  

Second Department
Lower court’s denial of motion to bring claim against MVIAC without a hearing reversed where bicyclist’s initial identification of license plate for pickup truck proved to be incorrect raising question of whether vehicle could be identified requiring a hearing. Matter of Quiridumbay v Motor Veh. Acc. Indem. Corp.

About Matt McMahon

Civil trials and appeals since 1984
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