September 20, 2016 | Vol. 20

MUST READS
(3 summaries)

Premises Liab   Slip/Trip   Unknown Cause   Last Inspection  

First

Defendant building entitled to summary judgment on proof that it did not create or have notice of the alleged dangerous condition, it’s doorman’s testimony that he observed the carpet less than an hour before the incident and did not see any corner curled up as alleged by the plaintiff, and plaintiff’s testimony that he did not see any defect in the carpet before his incident and that he was unsure of the exact cause of his fall.

Photographs taken by the plaintiff and his girlfriend several days after the accident were not probative because they unrolled a carpet that was against a wall, rolled it out, and took the photos with the assumption that it was the same carpet. Reeves v 1700 First Ave. LLC

Comment: In the decision the Court states that “plaintiff’s postaccident observations of the carpet are mere speculation, and failed to create a triable issue of fact as to whether a dangerous condition existed before his fall.” (Citations omitted). Since plaintiffs often do not see the defect which caused the fall until after they have fallen, the language of this holding can be quite significant in slip/trip and fall cases in the future although its application would likely be limited to similar facts.


NYC   Wrongful Death   Police   Set Aside Verdict   Attorney Disqualification  

First

Plaintiff’s decedent was shot and killed by the defendant police officer who claimed that the decedent had a knife and was attacking other people. One of plaintiff’s witnesses testified that he saw the shooting but did not see the decedent holding the knife that was recovered at the scene. Jury found for the plaintiff but defendants moved for judgment notwithstanding verdict or a new trial based on transcriptions of telephone calls made shortly before the trial where the plaintiff’s witness told his friends, while imprisoned, that he had seen the defendant’s decedent with the knife and that he would be testifying falsely to help the decedent’s family with a monetary expectation. The lower court found the subject transcriptions sufficient new evidence to warrant setting aside the verdict and correctly denied the defendant’s motion for judgment notwithstanding the verdict based on a different witness who would testify that he saw the incident, had a view of the decedent’s hands, and never saw a knife.

Conditional sua sponte order disqualifying plaintiff’s attorney in the event that the first witness was called as a witness in the second trial was a provident exercise of discretion as the possibility of the attorney being called as a witness would only occur if the first witness was recalled. Disla v City of New York


Labor Law §240   Labor Law §241   Industrial Code  

Second Deptartment

Defendants entitled to summary judgment on labor law §240(1) upon evidence that the piece of cold board which broke and struck plaintiff was not “in the process of being hoisted or secured and did not required securing,” and did not fall on the plaintiff because of a missing or defective device under §240(1). Defendant also showed that the industrial code provisions relied upon by plaintiff were inapplicable as the area was not one where workers were normally exposed to falling objects. Plaintiff failed to raise triable issue in response. Vatavuk v Genting N.Y., LLC

Comment: While the court employs the “in the process of being hoisted or secured” and “need for securing” language, those tests have generally been held not applicable on §240(1). Showing that an object fell from the lack of an adequate enumerated safety device, however, is the overall standard. Quattrocchi v. F.J. Sciame Constr. Co., 11 N.Y.3d 757 (2008).

NOTEWORTHY
(15 summaries)

Med Mal   Statute of Limitations  

Second Deptartment

Defendant dermatologist treated plaintiff for numerous skin lesions through 2009. Over the course of nine years he periodically sent plaintiff to a separate defendant dermatologist for Mohs surgery. Lower court improperly granted summary judgment to the first dermatologist and denied plaintiff’s cross motion to dismiss the statute of limitations defense against first dermatologist where there was clear continuous treatment until shortly before the complaint was filed.

Second dermatologist met prima facie entitlement to summary judgment because each surgery was a separate incident with no anticipation of continuous treatment, but plaintiff raised a triable issue by showing that during that period he complained about and sought treatment for an earlier scalp surgery. Plaintiff’s cross motion to dismiss the Statute of Limitations defense as to the second dermatologist was properly denied. Pichichero v Falcon


Serious Injury   MVA   ROM   Set Aside Verdict  

Second Deptartment

Motion to set aside verdict in favor of defendant on serious injury properly denied where jury could find significant defects in range of motion of the lumbar spine, shoulder and knee were not caused by the accident. Plaintiff admitted to conviction for filing false statements and that he had experienced shoulder and back pain in prison which he never told the treating or examining doctors. Yuzary v Hafif


Premises Liab   Unknown Cause  

Court of Appeals

Appellate Division’s decision reversing summary judgment for defendants affirmed on certified question for failure to meet initial burden. From First Department decision, Taveras v 1149 Webster Realty Corp., at deposition plaintiff was able to mark where the accident happened and describe the defect on the ramp leading to defendant’s store in sufficient detail to avoid defendant showing that the cause of the accident was unknown. Store owner had a duty to maintain safe ingress/egress. Hector Taveras v. 1149 Webster Realty Corp.


Med Mal   Expert Aff   Accepted Practice   Res Ipsa Loquitor  

Second Deptartment

Lower court properly denied plaintiff’s motion for summary judgment, premised on res ipsa loquitur, and granted defendant’s motions for summary judgment. Plaintiff, claimed that defendant’s use of Monocryl Plus sutures instead of monarch Monocryl stated a cause of action for negligence and not malpractice. Since the choice of sutures was an integral part of rendering medical treatment, it falls under malpractice. Plaintiff’s failure to submit an expert affidavit on her motion or in opposition to the defendants’ motions which relied upon expert affidavits entitled defendants to summary judgment. Koster v Davenport


Premises Liab   Fire   Premature Motion  

First

Defendant building owner moved for summary judgment relying on a transcript of the plaintiff from a related action which showed that he was awakened in the middle of the night by someone knocking on his door and told to evacuate because of a fire at an adjacent building. He climbed through his living room window and down the fire escape to the second-story platform but because the smoke was so heavy he could not see the ladder and jumped injuring himself. The transcript from the related action did not negate his claim that the absence of working smoke detectors may have delayed his exit to a point where the smoke was too strong to see the method of safe egress and summary judgment should have been denied. Gomez v Kozot Realty Corp.


MVA   Wrongful Death  

Second Deptartment

Defendant cab driver and owner which pulled over in the right lane of traffic to drop plaintiff passenger off and waited as plaintiff walked in front of his car to cross the street was not entitled to summary judgment when plaintiff was struck by a second cab traveling in the same direction because plaintiff and codefendant raised a question of fact as to whether defendant’s partial blocking of the traffic lane obstructed the view of the second cab driver. There was one dissent who would have reversed and granted summary judgment. O’Connor v Ronnie Cab Corp.


Service   CPLR §306-b   Motion to Dismiss   Legal Mal  

Second Deptartment

The court did not obtain personal jurisdiction over the defendants where they were served beyond 120 days after the filing of the complaint and the objection was raised in the defendant’s pre-answer motion. Denial of plaintiff’s cross motion to extend time to serve the summons and complaint was properly denied for plaintiff’s lack of diligence in commencing the action and failing to show a meritorious cause of action. Brown v Sanders


Discovery   MVA   Wrongful Death   EMT   Police  

Second Deptartment

In wrongful death action where it is claimed that the defendants, EMT and Police, failed to properly respond to the accident, provide first aid treatment, and timely transport the injured party to a hospital, the Second Department modified the lower court’s denial of the Plaintiff’s motion after an in camera inspection finding 2 of the documents consisting of emergency recordings relevant and permitted depositions of all responding EMT personnel because the 2 EMT depositions conducted to date did not contain enough information and the further depositions would likely provide additional relevant and material information. Cea v Zimmerman


Slip/Trip   Dangerous Condition   Notice   Discovery  

Second Deptartment

Defendant restaurant and building owner granted summary judgment on deposition testimony of restaurant employee that he saw no defects on the sidewalk and plaintiff’s deposition that she visited the restaurant at least 10 times in the year before her accident without observing sidewalk defects. Plaintiff described the defect as cracks radiating from a 1.5” deep hole with a diameter larger than a silver dollar. The description does not, by itself, prove the length of time that the defect would have existed sufficient to create constructive notice. Lower court properly refused to consider plaintiff’s granddaughter’s affidavit since she was never disclosed as a witness and plaintiff did not offer a valid excuse for the failure to disclose. Gallway v Muintir, LLC


Slip/Trip   Snow/Ice   Last Inspection   Premises Liab   Res Ipsa Loquitor  

Second Deptartment

Defendant failed to meet its initial burden of proof by failing to offer some evidence as to when the area was last cleaned or inspected prior to the accident. General cleaning routines are not sufficient to show lack of constructive notice. Plaintiff’s reliance on res ipsa loquitur to show entitlement to summary judgment, claiming that the ice was caused by a sprinkler system exclusively in the defendant’s control, was insufficient because plaintiff’s evidence failed to show that the accident was not partly the result of any voluntary action or contribution on his part. Giantomaso v T. Weiss Realty Corp.


Premises Liab   Notice   Create Condition  

Second Deptartment

Defendant should have been granted summary judgment on proof that they did not create or have actual or constructive notice of the alleged conditions causing plaintiff’s injuries and that they did not have authority to supervise or control the means and methods of plaintiff’s work in common-law negligence case. Plaintiff failed to raise a triable issue. Wejs v Heinbockel


Spoliation   Strike Answer   Negative Inference  

Second Deptartment

Lower court’s grant of motion striking defendant’s answer for negligently disposing of a video of the underlying accident was an improvident exercise of discretion because it did not fatally compromise the plaintiff’s ability to prove his case. The appropriate sanction was to direct an adverse inference charges trial.
Peters v Hernandez


BP   Discovery   Willful/Contumacious  

Second Deptartment

Plaintiff did not appear for a stipulated further EBT, resulting from Plaintiff’’ supplemental BP served after filing a note of issue, in anticipation of a mediation the next day. Defendant’s motion to strike the supplemental BP and preclude plaintiff from serving further supplemental BPs should have been denied as the supplemental BP did not allege new injuries and therefore was not a de facto amended BP without leave of court. The lack of any prior discovery abuse by the plaintiff and the excuse proffered by the plaintiff’s counsel, pending mediation, shows that the conduct did not rise to the level of willful and contumacious. Alicino v Rochdale Vil., Inc.


Default Judgment   Compel Acceptance  

Second Deptartment

Plaintiff’s motion for default judgment for failing to answer amended complaint denied where plaintiff only alleged that he received burns which was not sufficient proof to make out a valid cause of action and the amended complaint was only verified by the end attorney. Roy v 81E98th KH Gym, LLC


MVA  

Second Deptartment

Defendant submitted transcripts of both plaintiff and defendant drivers’ depositions which told different versions of how the accident occurred. Where issues of credibility are presented, summary judgment is not appropriate.
Chimbo v Bolivar

IF YOU MUST READ
(1 summaries)

Coverage   Additional Insured  

First

The First Department, with one judge dissenting, found that the limitation in a commercial policy that additional insureds are limited to situations where the named insured has a contract with the additional insured, a “additional insured-by written contract” clause valid. Gilbane Bldg. Co./TDX Constr. Corp. v St. Paul Fire & Mar. Ins. Co.

About Matt McMahon

Civil trials and appeals since 1984
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