September 19, 2017 | Vol. 72

MUST READS
(5 summaries)
NOTEWORTHY IF YOU MUST READ

Construction Liab.   Materially Deviates   Pain/Suffering   Punitive Damages   Admissibility  

First

Judgment awarding damages after an 11 month trial in the 91st Street crane collapse that killed 2 workers modified to reduce the awards to the first plaintiff from $7.5 million for preimpact terror to $2.5 million, $8 million for pain/suffering to $5.5 million, and $24 million for punitive damages to $8 million and for second plaintiff from $7.5 million for preimpact terror to $2 million, $24 million for pain/suffering to $7.5 million (4 hours), and $24 million for punitive damages to $9.5 million. The trial court’s preclusion of 1 of the defendants’ proposed experts affirmed as it was not based on evidence. The court also affirmed the piercing of the corporate veil against the defendants who owned and leased the crane based on his running multiple companies without regard to corporate distinctions. Matter of 91st St. Crane Collapse Litig.

Comment: This case gives a great playbook for proving pre-impact terror, conscious pain and suffering, and the rare punitive damages.


Wrongful Death   Estate   Motion to Dismiss   CPLR § 3126  

Second Deptartment

Motions to dismiss for lack of standing by home healthcare companies taking care of plaintiff’s decedent at the time of his fall granted where plaintiff administrator failed to comply with order to produce letters of administration and she did not apply for letters of administration until 1 month after the case was dismissed and more than 2 years after decedent’s death. The unique and special circumstances necessary to justify granting vacating and ordering the interests of justice were not present. Kleynerman v MJGC Home Care


Premises Liab   Notice of Claim   50-H   Dangerous Condition   Open/Obvious   Inherently Dangerous  

Second Deptartment

School’s motion for summary judgment denied where plaintiff tripped on rolled mat several feet outside of school door in a poorly lit area due to a power outage. Statement in the Notice of Claim that fall was caused due to a rolled up mat gave sufficient notice for the school to investigate and was further supplemented at the 50-H hearing where the low lighting was identified. Incident report by school employee also referred to area as “dark” due to power outage. Power outage did not relieve school of its responsibility to maintain premises in a reasonably safe condition and school failed to meet its burden of showing that the condition was open/obvious and not inherently dangerous. Lipani v Hiawatha Elementary Sch.


Med Mal   Late Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice  

Second Deptartment

Petition to deem a late Notice of Claim served more than a year after the alleged malpractice timely, granted on medical records and affirmation of physician who reviewed medical records opining that there was a departure from accepted practice in not recommending radiation or chemotherapy after a hysterectomy for a cervical tumor of unknown depth and size which proved that the medical records contained proof of the departure. The hospital’s “tumor board”, had discussed plaintiff’s decedent’s tumor 6 months after the hysterectomy at the time that plaintiff’s decedent started treating at a different facility. The lack of a reasonable excuse for the delay was not sufficient to deny the petition. Matter of Breslin v Nassau Health Care Corp.


MVA   Warnings   Comparative Fault  

Second Deptartment

Plaintiff denied summary judgment of wrongful death claim where the estate failed to eliminate a question of fact as to comparative fault based on its submission of the defendant’s expert’s report which opined that the plaintiff’s decedent, whose car was stopped in the lane of traffic after it ran out of gas, failed to warn drivers of his presence by keeping on his headlights or putting out other warnings. Palmer v Ecco III Enters., Inc.

NOTEWORTHY
(8 summaries)
MUST READS IF YOU MUST READ

Construction Liab.   Labor Law §241   Set Aside Verdict   Directed Verdict   Jury Charge  

Second Deptartment

Jury verdict for defendant on Labor Law §241(6) where plaintiff allegedly tripped on debris at construction site and defendant impeached plaintiff on inconsistencies in his version of the accident which was not reported for more than 2 months affirmed as it was based on a fair interpretation of the evidence. Plaintiff’s claim of insufficiency of evidence was unpreserved because plaintiff did not move for a directed verdict and his objection to a jury charge was unpreserved because he did not object to the charge on that ground at trial. Thompson v East Coast 6, LLC


Premises Liab   Sidewalk   Duty   Dangerous Condition  

Second Deptartment

NYCTA denied summary judgment where papers it submitted showed that defect plaintiff tripped on was within 12” of a manhole cover owned by NYCTA who, under 34 RCNY § 2-07(b), is required to inspect and maintain the area 12” from a manhole cover in a flush condition. Nyack v City of New York


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

Second Deptartment

Defendants’ motion to dismiss false arrest, malicious prosecution, and 1983 action, granted by lower court based on finding probable cause from a grand jury indictment, modified to deny the motion except as to the false arrest and false imprisonment claims based on statute of limitations. The presumption of probable cause from a grand jury indictment was overcome by affidavit of single eyewitness who identified plaintiff as a shooter, stating that he was pressured into giving a false and identification by the police and an unnamed ADA and was not a feigned issue as it did not contradict any testimony by the eyewitness or statements by the plaintiff. Accrual of false arrest and false imprisonment causes of action began on date of the plaintiff’s release and were untimely whereas malicious prosecution claim accrued when charges were dropped and were timely. Three year statute of limitations for a 1983 action had not expired by the time the action was commenced. Failure to name individual officers in the Notice of Claim did not render it defective although the court recognized a split in this requirement among the departments. Williams v City of New York


Premises Liab   Causation  

Second Deptartment

Condominium granted summary judgment where its workers who were performing work outside the condominium waved to defendant, which she interpreted to mean that she could not continue on the one-way street, after which she reversed, hitting and killing the plaintiff’s decedent in an intersection. Condominium workers merely furnished the condition or occasion for the accident and were not a cause of the accident. Goldstein v Kingston


Lead Poisoning   Preclusion   Vacate Default   HIPAA   Reasonable Excuse   Meritorious Action  

Second Deptartment

Plaintiffs’ motion to vacate their 12 day default in providing HIPAA authorizations pursuant to a conditional order of preclusion granted, and defendants’ cross motion for summary judgment denied. Law office failure was a reasonable excuse for the short delay and plaintiffs showed a meritorious action. C.C. v Vargas


Premises Liab   Slip/Trip   Notice  

Court of Appeals

Walmart’s motion for summary judgment denied where it failed to eliminate question of fact on notice of a dangerous condition and adequate time to correct the condition. Parietti v Wal-Mart Stores, Inc.


Legal Mal   Motion to Dismiss   Causation   Judiciary Law §487  

Second Deptartment

Law firm’s motion to dismiss for failure to state a cause of action on legal malpractice claim granted where plaintiff failed to plead specific facts necessary to show that absent the attorney’s error the case would have been resolved in plaintiff’s favor or more favorably to plaintiff. Judiciary Law §487 claim also dismissed for failure to plead specific facts from which attorney’s deceit could be inferred. Maroulis v Sari M. Friedman, P.C.


False Imprisonment   Motion to Dismiss   Appealable Order  

Second Deptartment

Plaintiff’s appeal from lower court’s grant of oral motion to dismiss for failure to prosecute dismissed as there is no appeal from an order not on notice. Ali v City of New York

IF YOU MUST READ
(0 summaries)
MUST READS NOTEWORTHY

About Matt McMahon

Civil trials and appeals since 1984

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