September 19, 2023 | Vol. 383

(5 summaries)

MVA   Discovery   Experts  

Second Department
Defendants’ motion to compel plaintiff to produce her cell phone for data to be copied by defendants’ expert granted to the extent that the data can be copied for a 3-hour period on the date of the accident where defendants’ expert’s affidavit established that the metadata on the phone or in the cloud would likely provide sufficient information to determine plaintiff’s location, lane of travel, and speed before, during, and after the accident. Pulgarin v Richmond    

Comment: Plaintiff testified she was using a GPS enabled program (Google Maps) to navigate at the time of the accident which according to defendants’ expert would save the information necessary to calculate location, direction of travel, and speed. Given the use of numerous cellphone applications that use GPS and cell towers to navigate, it is likely that this type of inquiry will become commonplace at deposition and through discovery demands by defendants and plaintiffs. Most vehicles built since 2014 have Event Data Recorders and the manual for any vehicle built since 2012 must state whether it has an EDR.

MVA   Default Judgment   Personal Juridiction   Service   Collateral Estoppel   Hearing  

Second Department
In reversing the lower court’s grant of a default judgment against defendant bus-driver and remanding the case for a hearing on whether proper service was made, the Second Department overturned its prior holdings that failure to update drivers’ addresses with DMV is alone sufficient to estop a defaulting defendant from raising improper service where service is made on the address listed with DMV, holding that collateral estoppel requires proof defendant intended to avoid service of process such as by giving a false address in addition failing to update DMV records. Castillo-Florez v Charlecius    

Motion to Dismiss   Statute of Limitations  

Second Department
Lower court improperly denied defendants’ motion to dismiss on statute of limitations where plaintiff brought the action 228 days after the COVID tolls were lifted but there had been only 156 days left on the statute of limitations when the COVID tolls went into effect. The COVID tolls suspended the statute of limitations for 228 days but did not add an additional 228 days to statutes of limitations after the tolls were lifted. Ruiz v Sanchez    

Child Victims Act   Motion to Dismiss   Foreseeability   Duty   Governmental Immunity  

Second Department
County’s motion to dismiss Child Victims Act case for failure to state a cause of action denied where Complaint adequately pled county breached its duty to protect plaintiff in placement and supervision of foster care when she was 4-6 years old and that repeated sexual assaults on her were foreseeable as county knew or should have known of foster parents’ propensity to abuse children in their care. “Governmental immunity does not bar recovery for negligent supervision in foster care.” Grabowski v Orange County    

Premises Liab   Motion to Dismiss   Duty   Open/Obvious   Inherently Dangerous   Emotional Harm   Alter Ego   Default Judgment   Appealable Order  

Second Department
Pre-answer motion to dismiss by LLC that owned building where plaintiff-tenant slipped in shower granted as there is “no common-law or statutory requirement imposing a duty… to provide nonslip surfacing or grab bars in a shower or shower stall” or a duty to install such devices without an allegation i was hazardous for ordinary use and the slippery condition of a shower floor is open/obvious and not inherently dangerous.

Causes of action for gross negligence, intentional and negligent infliction of emotional harm, breach of warranty of habitability, alter ego liability against LLC members, and loss of consortium also dismissed. Weiss v Vacca    

Comment: Appeal from order granting plaintiffs a default judgment dismissed as academic. Weiss v Vacca
(16 summaries)

Discovery   HIPAA   Appealable Order  

Second Department
Defendants’ motion to compel plaintiff to answer questions posed at EBT on drug and alcohol use providently granted where relevant to plaintiff’s life expectancy on his claims of future economic loss, plaintiff testified to alcohol and illegal drug use at his initial EBT, and toxicology report for lumbar surgery was positive for illegal drugs.

.Plaintiff’s appeal from portion of order denying defendants’ request for authorizations for alcohol and drug records with leave to renew dismissed as plaintiff was not aggrieved by the order. Hogdahl v LCOR 55 Bank St., LLC    

MVA   Bicycle   Raised For First Time   Prejudice  

Second Department
Owner and driver of vehicle infant-plaintiff struck on his bicycle granted summary judgment on proof the infant failed to yield the right of way under VTL §1143, applicable to bicyclists under VTL §1231, by entering the roadway midblock in front of a parked van and defendant-driver was going 15-20 mph with at most 2-seconds to react.

Lower court erred in not considering defendant-driver’s EBT cited to in defense counsel’s affirmation which listed it as an exhibit, counsel submitted the transcript in reply explaining it was omitted by clerical error, and plaintiff did not claim prejudice, establishing that the driver’s testimony was not submitted for the first time in reply. A. B. v Waring    

Discovery   Sanctions   Note of Issue   Willful/Contumacious  

Second Department
Defendant’s motion for discovery sanctions providently denied where plaintiff provided photographs and videos contained in court order 1-month late but before defendant was deposed or Note of Issue was filed, negating any inference the delay was willful/contumacious. Ferjuste v 437 BMW, LLC    

Default Judgment   Inquest   Appealable Order  

Second Department
Lower court erred in dismissing Complaint after damage inquest as defendant’s default “admitted ‘all traversable allegations in the complaint, including the basic allegation of liability,'” and the only issue before the lower court was damages. Case remanded. Znojewski v Mamczur    

MVA   Negligent Supervision   Motion to Dismiss   Consolidation  

Second Department
Defendants’ motion to dismiss action that claimed they negligently trained and supervised their employee whose vehicle plaintiff was injured in as a passenger on the grounds that another action for the accident was pending (CPLR §3211[a][4]) and for failure to include necessary parties (CPLR §3211[a][10]) denied without “substantial identify of the parties” where none of the defendants in the present case were defendants in the original case arising from the same accident and consolidation of the cases for joint trial remedied any failure to join necessary parties. Ashwood v Uber USA, LLC    

Labor Law §240   Labor Law §241   Default Judgment   Appealable Order  

Second Department
Appeal from order denying plaintiff’s motion for summary judgment on Labor Law §§ 240(1), 241(6) dismissed as academic where the Court had previously reversed an order vacating the default judgment against defendant, reinstating the default judgment. Caguana v Beach 22, LLC    

Comment: Decision reversing order vacating default judgment reported in Vol. 250.

Labor Law §240   Labor Law §200   Scaffold   Gravity Risk   Control   Raised For First Time  

Second Department
Plaintiff who was injured trying to avoid falling from scaffold when the plank he was standing on shifted granted summary judgment on Labor Law §240(1) as whether the plaintiff actually fell is irrelevant as long as the device did not provide adequate protection against the gravity risk. Defendants granted summary judgment dismissing Labor Law §200 claims on proof the claim arose from the means and methods of plaintiff’s work and the owner and lessees exercised no supervisory control over plaintiff’s work and the GC had at most general supervisory authority. Plaintiff’s argument that the GC acted as a gatekeeper as to which equipment plaintiff could use not considered where raised for the first time on appeal. Wilson v Bergon Constr. Corp.    

MVA   Turning Vehicle   Sole Cause   Feigned Issue   Renew  

Second Department
Defendants granted summary judgment on testimony of the parties and plaintiff’s passenger, dashcam video, certified police report, and mechanical engineer’s report establishing plaintiff was the sole cause of the accident as he attempted to pass the defendants’ garbage truck on the right as it was making a right-hand turn into a driveway in violation of VTL §1123. Plaintiff’s affidavit raised only a feigned issue designed to avoid summary judgment by contradicting his prior testimony.

Plaintiff’s motion to renew providently denied as counsel’s excuse for failure to submit a 22 NYCRR 202.8-g response and counterstatement of material facts was mere neglect, not law office failure, and did not include new facts that would change the determination. Singleton v Summus    

Premises Liab   Dangerous Condition   Experts   Building Code  

Second Department
Defendant granted summary judgment dismissing plaintiff’s claim that the door between the ferry’s stairs and car deck where the tip of his finger was severed when it got caught in the door hinge on proof the door was not defective and plaintiff’s expert’s opinion that the door should have had a hinge guard failed to raise an issue in opposition without citing to any regulation or industry-standard. Clark v Bridgeport & Port Jefferson Steamboat Co.    

Premises Liab   Sidewalk   § 7-210   Causation   Experts   Appealable Order  

Second Department
Plaintiff granted summary judgment against property owner on her testimony that she tripped on raised portion of sidewalk flag outside owner’s property, photographs depicting the raised flag she identified at her EBT which the owner’s witness agreed accurately depicted the condition he testified existed for a year prior to the accident, and plaintiff’s expert’s opinion on inspection that the flag was raised 3/4″ and caused plaintiff to trip. Property manager’s appeal dismissed as it was not aggrieved by order granting summary judgment against owner. Shiu Ya Luo v Croyden Apts., Inc.    

Premises Liab   Open/Obvious   Inherently Dangerous  

Second Department
Village granted summary judgment on plaintiff’s testimony that she was aware boardwalk she rode off of when she glanced to see if anyone was next to her was elevated and nothing else caused her to ride off the boardwalk and photographs of the area establishing that the condition was open/obvious and not inherently dangerous. Ferruzzi v Village of Saltaire    

Premises Liab   Notice   NYC  

Second Department
NYC and DOE failed to meet burden for summary judgment dismissing teacher’s claim that defective cart she was pushing suddenly stopped injuring her foot where plaintiff testified she complained about the cart to her principal 5-months before the accident and the assistant principal saw her struggling with the cart 1-month before the accident and told her she would tell the principal it wasn’t working properly. Assistant principal’s conflicting testimony that she didn’t recall plaintiff making complaints about the cart left questions of fact of whether defendants had actual or constructive notice of the condition. Rossi v City of New York    

MVA   Bus   Rear End   Pileup   Appealable Order  

Second Department
Plaintiff granted summary judgment against NYCTA and bus driver on testimony of all 3-drivers establishing the bus driver struck the rear of codefendant’s car which was pushed into plaintiff’s car which was stopped at a red light. NYCTA and bus driver failed to raise an issue in opposition.

Appeal from order granting second vehicle summary judgment after searching the record dismissed as NYCTA and bus driver were not aggrieved by the order. Graham v New York City Tr. Auth.    

MVA   Comparative Fault   There to be Seen  

Second Department
Plaintiff granted summary judgment on proof his vehicle collided with defendants’ vehicle which stopped at the stop sign on the intersecting corner but failed to yield the right-of-way by pulling partially into the intersection while sight of oncoming vehicles was blocked by a parked truck. Plaintiff’s motion to dismiss comparative fault defense denied where questions remained of whether he could have seen defendants’ vehicle with sufficient time to stop or avoid the collection. Andrade-Fuentes v Iglesia Cristiana Valle De Jesus, Inc.    

MVA   Nonnegligent Explanation   Emergency Doctrine   Premature Motion  

Second Department
Plaintiff met burden for summary judgment on his testimony that he was in the left lane when defendants’ vehicle swerved from the far right lane, across the middle Lane, into plaintiff’s lane in violation of VTL §1128(a). Defendant-driver’s affidavit stating he quickly steered into the left lane after glancing to his left and plaintiff attempted to pass him failed to provide a nonnegligent explanation and he failed to provide proof of an emergency.

Plaintiff’s motion was not premature where defendants had personal knowledge of the facts and circumstances of the accident. Elfe v Roman    

Battery   Set Aside Verdict   Appealable Order  

Second Department
Defendants appeal from verdict on battery case against hem dismissed as no appeal lies from and extract of a clerk’s minutes of trial. Doe v Doe    

(2 summaries)

Premises Liab   Unknown Cause   Indemnity  

Second Department
Hardware store failed to meet burden for summary judgment dismissing plaintiff’s claim for fall on broken curb between parking lot and sidewalk where proof did not show plaintiff was unable to identify the cause of her fall. The Court does not give the details of the proofs. Building owner granted summary judgment on contractual indemnity claim against hardware store tenant and tenant failed to raise an issue in opposition. Gasparik v Pirraglia Realty Corp.    

Serious Injury   Causation  

Second Department
Defendants met burden for summary judgment by competent medical proof that plaintiff’s injuries were not serious injuries under no-fault law and were not caused by the accident. Plaintiff failed to raise an issue in opposition. The Court does not give the details of the proofs. Austin v Nunez    

About Matt McMahon

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