October 8, 2024 | Vol. 438


MUST READS
(4 summaries)
NOTEWORTHYIF YOU MUST READ





Amend Complaint   Bankruptcy   Motion to Dismiss   Statute of Limitations   CPLR §205   Appealable Order  

Second Department
Lower court properly sua sponte vacated a prior so-ordered voluntary stipulation of discontinuance plaintiffs signed without prejudice where they failed to list the action in their Chapter 7 bankruptcy, restored the action, and substituted the bankruptcy trustee as plaintiff where the bankruptcy court reopened the bankruptcy and directed the trustee to handle the personal injury action as NY courts will allow substitution to follow bankruptcy court instructions as a matter of comity. Stipulation of discontinuance vacated because it conflicted with the instructions of the bankruptcy court and it was executed upon a unilateral mistake.

Notice of Appeal from sua sponte order deemed an application for leave to appeal and leave granted. Pergament v 1210 Troy Schenectady Rd., LLC    


Comment: Defendants’ motion to dismiss subsequent action brought beyond the statute of limitations on claim it was not entitled to the 6-month time to commence a new action under CPLR §205(a) due to the voluntary dismissal denied as moot where the voluntary dismissal was vacated. Gaetano v 1210 Troy Schenectady Rd., LLC .

Police   Discovery   Experts   Appealable Order   NYC  

First Department
Lower court improvidently granted defendants’ motion for a protective order prospectively precluding plaintiff from asking hypothetical questions at the EBT of the medical examiner who performed decedent’s autopsy as the propriety of such questions “should be made only after a specific question has been asked and its answer refused” and the M.E.’s testimony was relevant on plaintiff’s claim the police stuffed plastic bags with drugs in decedent’s mouth causing him to suffocate. The M.E. can be questioned on her findings and opinions.

Notice of appeal from EBT ruling deemed an application for leave to appeal and application granted. Diaz v City of New York    



MVA   Venue   Estate  

First Department
Motion by Suffolk County Public Administrator (PA), as administrator of estate of individual defendant, to move venue from NY County to Suffolk County under CPLR §504(1) that requires trials against a county to be in that county granted where the PA established and plaintiffs did not refute it was a department of the county and plaintiff failed to show NY County was more convenient for the witnesses or better served the interests of justice to warrant a discretionary denial of the motion as the MVA occurred and plaintiffs and all witnesses resided in Suffolk Count. Fernandez v Suffolk County Pub. Admr.    

Comment: The action was brought in NY County based on Lyft’s principal place of business.

Child Victims Act   Discovery   Law of the Case   Raised For First Time  

First Department
Archdiocese’s motion to vacate order directing it to provide personnel files of 9-former employees, including monsignors, priests, and religious sisters and brothers, providently denied where nun was unable to give meaningful testimony of relationship between archdiocese and school at EBT because she was not properly prepared to answer those questions and repeatedly directed not to answer based on an order 4-months earlier denying plaintiff’s request for the personnel files and the judge the parties called for a ruling during the EBT indicated the files might be relevant in light of the witnesses’ response and, therefore, disclosure was not barred by law of the case. The 9-employees, most of whom were deceased, were named by plaintiff as having knowledge of the abuse of 70-victims of sexual abuse by a school janitor between 1958-1992.

Archdiocese’ appeal from portion of order directing it to provide a new witness not considered where only raised in its reply brief, and in any event, the nun they originally produced was not sufficiently knowledgeable. John Doe XIII v Archdiocese of N.Y.    


NOTEWORTHY
(17 summaries)
MUST READSIF YOU MUST READ





Premises Liab   Vacate Default   Amend Complaint  

Second Department
Motion by owner of building where plaintiff was injured in tenant’s restaurant to vacate $1,192,295 judgment entered on default granted where plaintiff added owner as a defendant in an Amended Complaint 7-months after the original Complaint without leave of court or stipulation as required by CPLR §1003, making the Amended Complaint a nullity. Plaintiff’s motion to compel owner and non-party to comply with information subpoena denied. Braylovskaya v Skazka Rest.    


Motion to Dismiss   Emotional Harm   Discovery   HIPAA   Preclusion  

First Department
Defendant’s cross-motion to dismiss the Complaint or compel plaintiff to provide 5-years of her entire mental health records or preclude her from seeking damages for emotional injuries denied where her general claims of “depression, anxiety, fear, emotional harm, and curtailment of her daily life activities” did not put her entire mental health history in issue and defendant failed to show ‘the interests of justice significantly outweigh[ed] the need for confidentiality.’ Duran v East 185th St. Realty Corp.    


Child Victims Act   Motion to Dismiss   Personal Juridiction   Discovery  

First Department
General Board of the Global Ministries of the United Methodist Church Inc.’s motion to dismiss for lack of personal jurisdiction granted where only ground for long-arm jurisdiction alleged was its alleged role in participating in the management and control of the church based on unsupported assumptions it had a duty and power over the hiring, retention and training of the church’s boxing instructor because it held a mortgage on the property. These allegations were insufficient to make a ‘sufficient start’ to show the need for jurisdictional discovery. Fields v General Conference of the United Methodist Church    


Child Victims Act   Amend Complaint   Statute of Limitations  

Second Department
In a Child Victims Act action claiming sexual abuse by 2-other children in foster home when plaintiff was 11-yers-old, plaintiff’s motion to amend the Complaint to add the organization that certified the foster parent, brought beyond the CVA statute of limitations and 11-months after the defendant-county commenced a third-party suit against the organization for contribution and indemnity, denied without evidence the organization was ever aware a CVA action was brought against the county to show that absent mistake it know or should have known it would have been included in the suit, necessary to meet the third prong of the relation back doctrine. Patterson v Nassau County Social Servs. Dept.    


Premises Liab   Strike Answer   Subsequent Repairs   Willful/Contumacious   Raised For First Time  

First Department
Plaintiff’s motion to strike defendants’ Answer for failure to provide court-ordered discovery or compel defendants to provide the discovery providently denied where plaintiff’s demand for post-accident repairs to the staircase where plaintiff fell would not be admissible or lead to admissible information as it was not the only means or proving her case where she could prove her case by her and defendant’s testimony and photographs taken within days of the accident. Claim that post-accident investigation records would be admissible not considered where raised for the first time on appeal and, in any event, there was no proof such investigation was made. Defendants’ responses to demands were slightly delayed but completed before plaintiff’s motion and were not willful/contumacious. Lamerique v Columbia Univ.    


Malpractice   Discovery   CPLR § 3126   Willful/Contumacious  

Second Department
Grant of motion to strike Complaint for failure to provide discovery improvidently granted where plaintiff provided most of the records to defendants’ prior counsel 3-years earlier after the court found the original responses incomplete, plaintiff’s conduct was not willful/contumacious, and public policy favors resolution on the merits. Gibson v Delemos    

Comment: The Court previously reversed grant of motion to strike and remanded the matter for questions of whether the responses were complete and whether plaintiff’s actions were willful/contumacious, reported in Vol. 158.

Premises Liab   Motion to Dismiss   Amend Complaint   Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice  

Second Department
NYCHA’s motion to dismiss plaintiffs’ claim for exposure to mold for failure to timely serve a Notice of Claim providently granted and plaintiffs’ cross-motion to deem late Notice of Claim timely served nunc pro tunc denied where plaintiffs failed to show NYCHA had timely actual knowledge of the essential facts that the infant-plaintiff was injured from NYCHA’s negligence, that infancy was the cause of the delay, or that NYCHA was not substantially prejudiced by the delay. Amended Complaint served beyond the 20-day time to amend as of right dismissed as a nullity and plaintiffs’ motion to amend denied.

Motion to dismiss Human Rights claims for failure to state a cause of action granted without allegation of retaliation for opposing a practice prohibited by the NYCHRL or that a requested reasonable accommodation was not provided. J. B. v City of New York    



Malpractice   Discovery   BP   HIPAA   Appealable Order  

First Department
Defendants’ motion to compel pro se plaintiff-attorney to respond to demands for a BP, authorizations, and medical records, preclude plaintiff from deposing defendants, and for a protective order for interrogatories served on nonparty doctors granted as plaintiff waived the physician-patient privilege by putting her medical condition in issue, the motion court previously compelled defendants to respond to plaintiff’s interrogatories and noted plaintiff waived EBTs, a party is not entitled to interrogatories and EBTs absent court order, and interrogatories can only be served on parties.

Plaintiff’s requests for sanction not considered where plaintiff did not cross move for that relief below and to vacate prior orders not appealable where plaintiff did not appeal the prior orders. Schwartz v Mount Sinai Hosp.    



Labor Law §240   Labor Law §241   Gravity Risk   Industrial Code   Indemnity  

First Department
Plaintiff’s motion for summary judgment on Labor Law §§ 240(1) & 241(6) denied and cross motion for summary judgment by defendants, building owner and tenant, granted where plaintiff’s 4’-fall from flatbed truck as he deliberately stood on an unsecured 2×4 that flipped was not a significant elevation risk protected by §240 when compared to cases with a 10’ elevation and plaintiff failed to show violation of an industrial code provision with a concrete specification for §241.

Tenant-hotel operator granted conditional summary judgment for contractual indemnity against contractor based on broad language of agreement subject to a determination of negligence by the contractor, its subcontractors, or their employees. Contractor granted summary judgment dismissing owner’s contractual indemnity claim where it was not a party to the indemnity agreements nor identified as a contract beneficiary. Pitang v Beacon Broadway Co., LLC    



Labor Law §241   Industrial Code  

Second Department
Plaintiff’s motion for summary judgment on Labor Law §241(6) where a pile of vertically stacked steel railings fell on him denied as industrial code §23-1.7(e)(2)(tripping hazard) was inapplicable and he failed to eliminate questions of whether the area was a ‘passageway, walkway, stairway or other thoroughfare’ covered by §23-2.1(a)(1)(material piles). Shewprasad v KSK Constr. Group, LLC    


Labor Law §240   Falling Object   Agent   Control  

First Department
Plaintiff granted summary judgment on Labor Law §240(1) where the heavy wooden panel that fell from a cured concrete ceiling was a load that required securing, defendants failed to show safety devices would have defeated the task, and construction company was the GC or owner agent as it hired plaintiff’s employer and had authority to control the injury producing work whether or not it exercised that authority. Plaintiff’s inability to explain how the panel fell did not preclude summary judgment and his version was not “inherently incredible or physically impossible.” Tejada-Rodriguez v 76 Eleventh Ave. Prop. Owner LLC.    


MVA   Comparative Fault   Emergency Doctrine  

Second Department
Plaintiff granted summary judgment on liability and dismissal of affirmative defenses of comparative fault and emergency doctrine on his affidavit he entered intersection not controlled by a traffic device in his directions at 15-20 mph, under the speed limit, and saw defendant’s vehicle that entered the intersection without stopping at the stop sign only 1-2 seconds before impact, establishing defendant was the sole cause of the accident and not entitled to the emergency doctrine because he created the emergency. Hsin Cheng v Adami    


MVA   Emergency Doctrine   Sole Cause  

First Department
Defendants’ motion for summary judgment dismissing the Complaint on emergency doctrine, where their vehicle struck plaintiff’s vehicle which was making an illegal U-turn, denied as defendant-driver’s admission he was speeding before the collision and contradictory testimony about the position of plaintiff’s car on the shoulder left questions of fact on whether plaintiff was the sole cause of the accident or whether defendant-driver contributed to the accident. Cox v Seniorcare Emergency Med. Servs., Inc.    


Premises Liab   Sidewalk   § 7-210   3rd Party Contractor   Create Condition   Premature Motion  

Second Department
Landscaper granted summary judgment dismissing plaintiff’s claim for trip and fall in sidewalk tree well on proof it did no work on the tree well where plaintiff fell and did not create the condition. Speculation that discovery might lead to relevant information does not make the motion premature. Carmona v Preston    

Comment: Abutting landowners granted summary judgment as they had no duty to maintain a tree well under administrative code §7-210 and did not create the condition. Motion not premature. Carmona v Preston.

Premises Liab   Out of Possession   Duty   Experts  

First Department
Building owner granted summary judgment on proof it was only responsible to maintain the outside of the property under the lease and plaintiff’s expert failed to show violation of any applicable safety provision, establishing owner was an out of possession owner even though it had a right to reenter the property. Betancourt v Burnside Mews Assoc., L.P.    


Premises Liab   Out of Possession   Building Code   Feigned Issue   Spoliation  

Second Department
Building owner granted summary judgment dismissing plaintiff’s claim for trip and fall when her foot got caught on a penny-sized protrusion from stair landing on proof it was an out of possession landlord and the defect was not a significant structural or design defect that violated a specific statutory provision. The statutes plaintiff alleged did not apply to the staircase, plaintiff’s affidavit raised only feigned issues where it contradicted her EBT testimony, and summary judgment could not be denied on claim of spoliation where plaintiff did not make a CPLR §3126 motion for spoliation. Kavenaght v 498 Seventh, LLC    


Note of Issue   Discovery   Waiver  

First Department
Defendants’ motion to strike the Note of Issue and to compel plaintiff to provide medical records and appear for a further EBT denied where filed beyond the 20-day time to move to strike, they failed to show a basis for disclosure of medical records of conditions not placed in issue, and waived the further EBT by not taking steps to reschedule it for 3-years. Adams v Legacy Carting Corp.    

IF YOU MUST READ
(2 summaries)
MUST READSNOTEWORTHY

Uninsured   Arbitration   Uncertified Records  

Second Department
Carrier’s petition for permanent stay of uninsured arbitration or temporary stay pending a framed issue hearing on claim insured’s vehicle was struck by an e-bike which does not meet the definition a motor vehicle denied as uncertified police report listing offending vehicle as an e-bike was insufficient to meet carrier’s burden of providing sufficient evidentiary facts to justify the stay. Matter of Government Empls. Ins. Co. v Enriquez    


Premises Liab   Sidewalk   § 7-210   Homeowner Exception  

Second Department
Abutting landowners’ motion for summary judgment on homeowner’s exception to administrative code §2-710 and plaintiff’s cross motion for summary judgment denied as questions remained on whether the abutting property was a 1-3 family home occupied by the homeowners and used exclusively for residential purposes. The Court does not give the details of the proofs. Wechsler v City of New York    

About Matt McMahon

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