| MUST READS (3 summaries) | |||
| NOTEWORTHY | IF YOU MUST READ | ||
 Bar owners met burden on motion to dismiss Amended Complaint as barred by statute of limitations where initial Complaint alleged an accident date 1.5-years beyond the statute of limitations and the Amended Complaint, filed as a matter of right after defendants’ first motion to dismiss, was filed more than a month after the statute of limitations for the corrected date. Because the initial Complaint did not provide notice of the need to defend against the allegations in the Amended Complaint and was not based on the same transaction because the dates were different, the relation-back doctrine did not apply. Randolph v Brazen Fox ✉ |
| School’s motion to dismiss Child Victims Act case, commenced by Notice without a Complaint, for failure to timely serve a Complaint after a demand denied where plaintiff’s motion to proceed anonymously had not been decided within the 20-days after the demand for the Complaint, providing a reasonable excuse for the delay. Miller v Stony Brook Sch. ✉ |
| Carrier granted permanent stay of uninsured arbitration of pedestrian struck by e-bike after a framed issue hearing where police report identified the vehicle as an e-bike with no license plate and indicated there were no motor vehicles involved in the accident, establishing the e-bike was not a motor vehicle for purposes of uninsured coverage. Matter of Government Empls. Ins. Co. v Bermeo ✉ |
| NOTEWORTHY (17 summaries) | |||
| MUST READS | IF YOU MUST READ | ||
| Plaintiff’s motion to vacate default in opposing summary judgment motion which dismissed Labor Law §241(6) claim providently denied where bare allegations of law office failure were insufficient to provide a reasonable excuse and plaintiff’s motion to amend the Complaint to plead a new industrial code violation providently denied where discovery was complete, Note of Issue had been filed, plaintiff offered no excuse for the delay in seeking the amendment, and the proposed industrial code raised a new theory of liability. Plaintiff’s appeal from grant of unopposed motion dismissed as no appeal lies from an order on default of the appealing party. Benegas v Ardsley Country Club, Inc. ✉ |
| Petition to serve late Notice of Claim granted where construction authority which placed tarp over hole in floor petitioner-schoolteacher slipped on had actual knowledge of the essential facts through its Worker’s Comp. administrator, Gallagher Bassett, which acknowledged the accident within days, received the employee’s injury report within 30-days of the incident, and subsequently conducted an investigation. Petitioner met burden of showing lack of substantial prejudice even if the construction authority did not conduct an investigation where it could have, the results of its agent’s investigation were within its ‘peculiar knowledge,’ and it would’ve been in the same position as the petitioner due to the transitory nature of the condition. Lack of a reasonable excuse for the 4-month delay in seeking leave was insufficient to deny the petition. Matter of Benedetto v New York City Sch. Constr. Auth. ✉ |
| Motion to dismiss for failure to meet pleading requirements of Court of Claims Act §10(6) granted and claimant’s cross motion to amend the Claim denied where claimant only identified the road and town where she was struck by a state trooper in the original Claim and failed to give sufficient location or details of how the state was negligent to satisfy the pleading requirements which was a jurisdictional defect that cannot be cured by amendment. Cross-motion to serve late Claim denied without proof NYS timely received actual knowledge of the essential facts in order to investigate, claimant failed to show a meritorious action without proof she sustained a serious injury, and she conceded she had an alternative remedy. Pressley v State of New York ✉ |
| Petition to serve late Notice of Claim denied where undated, unauthenticated photos of road defect that caused petitioner to trip and fall failed to give NYC actual knowledge of the essential facts and there was no evidence the condition was not changed before the photos were taken. Petitioner failed to show a reasonable excuse for not serving a timely Notice of Claim without medical evidence of claim she was unable to leave her apartment for 90-days after her accident due to her ankle fracture, any excuse for the additional 5-months before the petition, or any proof or argument that NYC was not prejudiced by the delay. Matter of Ionescu v City of New York ✉ |
| Schoolteacher’s petition to serve late Notice of Claim denied as her injury report stating a student elbowed her in the eye and scratched her arm and hand did not give DOE actual knowledge of the essential facts. Claim she was unaware of how serious her injuries were belied by fact she saw doctor on day of incident and was to return in 2-days and delay in diagnosis was unsupported by medical evidence. Petitioner failed to provide a reasonable excuse for the significant delay in seeking leave or to meet burden of showing no substantial prejudice by the delay. Mallor v City of New York ✉ |
| Plaintiffs’ motion to compel hospital to comply with subpoena to provide original pathology slides of breast biopsy to their expert in Massachusetts providently denied and defendants’ motion for a protective order limiting disclosure of the slides to an onsite inspection at one of the defendant-hospital’s facilities granted in accordance with the hospital’s policy of not releasing slides outside of its facility.
Oleynik v Rozenfeld ✉ |
| Portion of owner’s motion for summary judgment dismissing construction worker’s claim for injuries during demolition denied as premature with leave to remove at the completion of discovery where plaintiff showed discovery might lead to relevant information to oppose the motion. Plaintiff’s motion to amend the Complaint to add 2-additional parties after the statute of limitations granted where plaintiff submitted proof the moving defendant and proposed additional defendants ‘intentionally or not, often blurred the distinction between them,’ meeting the second prong of the relation back doctrine. Sarceno v Manhattan View, LLC ✉ Comment: The order appealed from granted the moving defendant’s motion to dismiss on proof it had transferred the property prior to the date of the accident but denied the motion for summary judgment without prejudice. |
| Plaintiff’s motion to consolidate 2-actions where injuries to the injured-plaintiff in separate car accidents 2-days apart providently denied for failure to show common issues of fact or law. Claim that injuries from both accidents overlapped not considered without medical evidence and appellate court declined to consider allegations in the BP or treating physician’s report that were not submitted below. Orman v Khedr ✉ Comment: Same result in action for second accident. Orman v Zhi Yun Won. |
| Lower court properly precluded plaintiff from offering expert opinion on malpractice and informed consent claims for failure to timely provide a CPLR §3101(d) notice of expert prior to trial but erred in dismissing negligence cause of action as plaintiff could prove the standard of care and known risks of hair removal that caused him scarring and second degree burns by his treating physician, records, or other evidence. Mishli v Advanced Dermatology Laser & Cosmetic Surgery, P.C. ✉ |
| Hospital and emergency physician granted summary judgment dismissing malpractice and wrongful death claim for decedent’s treatment from 3-gunshot wounds on their expert’s opinion of no departure from accepted practice or causation. Plaintiff’s cardiology expert failed to raise an issue in opposition without showing familiarity with the standards in emergency medicine and with conclusory, speculative opinions unsupported by the record. Quinones v Winthrop Univ. Hosp. ✉ |
| Landlord whose super negligently caused a fire by roasting a pig in the basement, resulting in plaintiff having to evacuate the building, granted summary judgment dismissing claim she slipped and fell on icy sidewalk on her way back to the building after waiting in and moving her car as the risk from the super’s negligence was not the same as the risk that caused her to fall and was a superseding cause. Abutting homeowners granted summary judgment on proof they did not create or have notice of the icy condition and plaintiff failed to raise an issue without speculation where she was unable to describe the size or shape of the icy condition. Bristol v Biser ✉ |
| Homeowner who allowed plaintiff to live in a bedroom in her home met burden for summary judgment dismissing plaintiff’s claims for injuries when he attempted to put out a fire in the home on reports of 2-fire departments indicating the origin of the fire was undetermined but plaintiff’s expert raised issues in opposition by his opinion that the fire was caused by defective wiring. The expert’s factual findings that conflicted with portions of the plaintiff’s affidavit were not speculative or conclusory where they were supported by the record evidence. Defendant failed to show plaintiff’s choice to enter the house to put out the fire was a superseding cause where he reasonably thought the fire was only in on the outside of a window AC unit which was not ‘”so obviously fraught with danger that its very nature evidences a wanton disregard for the actor’s own personal safety or well-being.”’ Cameron v Palmeri ✉ |
| Gastroenterologists met burden for summary judgment on their affidavits and decedent’s medical records establishing they did not depart from accepted practice when treating decedent for GI-bleeding. Plaintiff’s gastroenterology expert failed to raise an issue in opposition without indicating familiarity with post-procedure treatment in a hospital setting. Hannen v Nici ✉ |
| Building owner granted summary judgment dismissing Labor Law §240(1) claim of cable employee who fell from ladder while installing cable services for a tenant as there was no nexus between the owner and plaintiff’s work. Acevedo-Espinosa v RH 250 Sherman Ave., LLC ✉ |
| Costco granted summary judgment dismissing customer’s claim for slip and fall on food on the store floor on its employees testimony and “Floor walk / Safety Inspection” log showing no hazardous condition when last inspected no more than 1-hour and 13-minutes before the fall and the employee would have cleaned any substance had one been found. Arbit v Costco Wholesale Corp. ✉ |
| NYC granted summary judgment on proof it did not receive prior written notice of the asphalt depression near a manhole plaintiff claimed tripped on and the burden of showing NYC created the condition was on plaintiff, not the municipality. Images of the area over time were “inherently speculative” to show NYC made repairs to the area and her expert’s claim the condition developed over time would not meet burden of showing it ‘immediately resulted in the creation of the alleged defect’ through an act of negligence. Goodman v City of New York ✉ |
| Utility company granted summary judgment dismissing plaintiff’s claim for trip and fall on broken concrete on a sidewalk on proof its installation of a guy wire anchor to support a utility pole in the 1960’s and its special use of the sidewalk did not create the dangerous condition. Lopez v Central Hudson Gas & Elec. Corp. ✉ |
| IF YOU MUST READ (3 summaries) | |||
| MUST READS | NOTEWORTHY | ||
| Plaintiff denied summary judgment on Labor Law §§ 240(1) and 241(6) where he testified he fell from an unsecured ladder but his and defendants’ submissions left questions of credibility on whether the accident could have happened as he said, whether the ladder was secured, or if it violated industrial code 23-1.21(b)(4)(ii)(firm ladder footings). The Court does not give the details of the proofs. Injai v Circle F 2243 Jackson (DE), LLC ✉ |
| Landowner’s motion for summary judgment denied as premature where his EBT was not held and plaintiff showed discovery might lead to relevant information of whether owner’s snow removal efforts created or exacerbated the condition. The Court does not give the details of the proofs. Rosenblum v City of New York ✉ |
| Defendants failed to meet burden for summary judgment on serious injury without eliminating questions on the 90/180-day category alleged in the BP and failed to show the spinal injuries were not caused by the accident. The Court does not give the details of the proofs. Scott v Ali ✉ |