September 1, 2020 | Vol. 226

(3 summaries)

Dram Shop   Directed Verdict  

Second Department

Judgment on verdict finding bar/restaurant 30% and customer 70% at fault for MVA, awarding $6.2 million total damages reversed as trial court should have granted bar/restaurant’s motion for directed verdict at close of evidence where plaintiff did not put forth evidence that customer was served alcohol “while visibly intoxicated” as required by GOL § 11-101(1). Only proof was customer’s plea allocution which plaintiff conceded could not be used as an admission against the bar/restaurant and did not establish the customer was served while visibly intoxicated. Sherwood v Otto Jazz, Inc.

Med Mal   Causation   Unknown Cause   Expert Aff   Speculation   Conclusory  

Second Department

Defendants made out entitlement to summary judgment on deposition, records, and expert affirmation establishing no departure and no causation. Plaintiff’s expert’s opinion was conclusory, speculative, not supported by record, and failed to raise an issue of fact on causation where no autopsy was performed and the cause of death was not determined. Erkomaishvili v Volovoy

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

Second Department

Mall owner and operator granted summary judgment under storm in progress rule based on evidence that storm ended at noon establishing as a matter of law that there was insufficient time to remedy the snow/ice in the elevator plaintiff slipped in, located in an area near exposure to the elements, when plaintiff fell 8.5 hours after the precipitation ended. Bryant v Retail Prop. Trust

(6 summaries)

MVA   VTL §1104   Reckless  

Second Department

Plaintiff granted summary judgment where defendants failed to establish ambulance driver engaged in conduct privileged under VTL §1104 and was therefore not entitled to reckless standard, and failed to establish that their driver was not negligent. The Court does not give the details of the proofs. Edwards v Menzil

Premises Liab   Slip/Trip   Prior Written Notice   Create Condition  

Second Department

Municipality granted summary judgment on proof it did not receive prior written notice of the sidewalk defect as required by local law, did not affirmatively create the condition, and did not receive a benefit from a special use of the sidewalk. D. D. v Incorporated Vil. of Freeport

Premises Liab   Slip/Trip   Sidewalk   § 7-210   Indemnity   Preexisting  

Second Department

Building tenant granted summary judgment dismissing building owners’ third-party complaint for contractual indemnity where lease required tenant to make only nonstructuaral repairs and defect that caused plaintiff to trip was structural. Administrative code §7-210 applies to owners, not tenants of property adjoining sidewalk. Tenants taking property “as is” have no duty to repair preexisting structural conditions. Mannapova v Aufrichtig

Med Mal   Public Health §2801-d   Discovery   Privilege  

Second Department

Plaintiff denied class action status in action alleging his mother died as result of substandard nursing care in facility as common questions of law or fact did not predominate over causation questions of proposed class members and class action was not shown as better alternative to individual lawsuit. Plaintiff’s demand for confidential health information of other residents denied but defendants required to comply with demands for documents relating to decedent’s meals, bed changing, movement, change of position, and documents related to the her care, staffing, and complaints or investigations of alleged substandard care or abuse involving the decedent.

Defendants’ failure to object to demands within CPLR 3122(a)(1) time not fatal to challenges of demands that were palpably improper. Olmann v Willoughby Rehabilitation & Health Care Ctr., LLC

MVA   Pileup   Serious Injury   Causation  

Second Department

Owner and driver of one car in multi-vehicle accident failed to eliminate all questions of fact on serious injury and liability, including whether their rear-end collision of one of the other vehicles was a cause of plaintiff’s injuries. The Court does not give the details of the proofs. Karaseva v EAN Holdings, LLC

Malicious Prosecution   Probable Cause  

Second Department

Bank’s motion for summary judgment of malicious prosecution claim of bank customer arrested on bank manager’s statement to the police that customer was the only signatory and remotely deposited fraudulent checks denied where questions remained on probable cause, including whether the manager “went beyond merely furnishing information” to the police, and whether the criminal case was terminated in plaintiff’s favor. Plaintiff testified he was in fact not the only person who could deposit the fraudulent checks remotely and the criminal complaint did not detail if others could use the remote scanner. The criminal charge was dismissed in plaintiff’s favor and the ADA testified that the “closed” notation on their file was the significant notation and the words “without prejudice” were not intended to preserve the right to reopen the case. Goldenberg v Capital One Natl. Assn.

(2 summaries)

Uninsured   Stay Arb  

Second Department

While an oral report to a police officer may satisfy 24-hour reporting requirement in uninsured policy, plaintiff’s unsubstantiated testimony was insufficient to establish the oral report by credible evidence requiring permanent stay of arbitration. Matter of Nationwide Ins. Co. v Aquilla

Uninsured   Stay Arb   Appealable Order  

Second Department

Injured party’s appeal from order dismissing his uninsured carrier’s petition to permanently stay arbitration, permitting arbitration to go forward, dismissed as injured party was not aggrieved by the order even if he disagreed with the finding. Matter of Allstate Ins. Co. v Dewar

About Matt McMahon

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