September 20, 2022 | Vol. 331

(3 summaries)

False Arrest   Appealable Order  

Court of Appeals
Appeal from non-final order denying plaintiff’s motion for summary judgment, brought up on appeal from judgment after verdict in favor of city-defendant, dismissed as 2-justice dissent in Fourth Department was not on a matter of law that would “necessarily affect the judgment.” Shaw v City of Rochester    

Comment: A non-final order that removes an issue depriving a party from further litigating it would be an example of an order that necessarily affects a judgment.

Premises Liab   Motion in Limine   Admissibility   Building Code   Experts   Appealable Order  

Second Department
Trial court improvidently granted motion in limine to preclude plaintiff’s engineer from testifying to coefficient of friction of stairs UPS worker slipped on. While building codes cited by the expert were not relevant, eliminating breach of a statutory duty, he could testify that the coefficient of friction violated American Society for Testing Materials standards and that those standards, although not law, represented industry standards and customs from which a jury could find common-law negligence. “A defendant may be held negligent for departing from generally accepted customs and practices even when the allegedly defective condition is in compliance with the relevant codes and ordinances.” Martell v Dorchester Apt. Corp.    

Comment: Defendants’ appeal from order denying their motion for summary judgment dismissed as right to appeal terminated on entry of judgment. Martell v Dorchester Apt. Corp..

MVA   Bicycle   Turning Vehicle   Comparative Fault   Serious Injury   Uncertified Records  

Second Department
Plaintiff granted summary judgment on proof defendants’ vehicle made right hand turn in front of bicyclist when it was unsafe to do so, failing to yield right-of-way, but plaintiff failed to eliminate all questions of fact on comparative fault where she submitted EBTs with different versions of accident. Plaintiff met burden for summary judgment on serious injury with proof she sustained knee fracture but defendants raised an issue in opposition with uncertified ER records of knee x-ray that was unremarkable. Defendants may rely on uncertified records and reports of plaintiff’s treating providers. Kirby v Davis    

(12 summaries)

Construction Liab.   Set Aside Verdict   Jury Charge   Res Ipsa Loquitor   Experts  

Second Department
Trial court properly refused to charge res ipsa loquitor where plaintiff’s expert testified it was reasonably likely that children in pediatric waiting room would tamper with dust shield that fell on plaintiff, establishing the contractor did not have exclusive control of the shield. Motion to set aside as against weight of evidence denied where it could be reached on a fair interpretation of the evidence and jury could adopt one expert and discount the other. Berlich v Maimonides Med. Ctr.    

Labor Law §240   Labor Law §241   Untimely   Note of Issue   Discovery   Reasonable Excuse  

Second Department
Lower court properly found that need for defendant’s deposition after Note of Issue was required to be filed despite outstanding discovery provided good cause for plaintiff filing late motion for summary judgment but improvidently found no good cause for 5-month delay in bringing motion where defendant failed to comply with post EBT discovery demands but lower court deemed those demands irrelevant to the motion. Information sought was relevant to defendant’s claim plaintiff was conducting unauthorized work which can be a defense to Labor Law §§240(1), 241(6). Fuczynski v 144 Div., LLC    

Premises Liab   Untimely   Note of Issue   Discovery   Reasonable Excuse  

Second Department
Defendants’ motion to extend time to file summary judgment motion, brought 90-days after 60-day limit from Note of Issue (Kings County), denied where defendants waited 2.5 months after the post Note of Issue nonparty EBT and failed to show good cause for the delay. Claim EBT transcript was not received for 6-weeks after EBT did not provide good cause without an explanation for the delay in obtaining the transcript. Torres v Serlin Bldg. Ltd. Partnership    

Malpractice   Set Aside Verdict   Directed Verdict   Accepted Practice   Causation   Loss of Chance   Experts  

Second Department
Defendants’ motion to set aside verdict and grant defendants judgment as a matter of law denied where plaintiff’s expert’s opinion that defendant-physician departed from accepted practice by failing to send plaintiff to interventional radiology to confirm Huber needle was properly positioned after her metaport was accessed and chemotherapy with Adriamycin, which can burn healthy tissue it comes in contact with, was infused as there was a rational path for jury’s verdict and evidence was legally sufficient for jury to find the departure diminished plaintiff’s chances of a better outcome. Verdict was not against weight of the evidence where it could be reached on a fair interpretation of the evidence weighing the credibility of the witnesses, including conflicting expert opinions. Grullon v Thoracic Surgical, P.C.    

MVA   Set Aside Verdict  

Second Department
Plaintiff’s motion to set aside defense verdict denied as not contrary to weight of evidence where jury could reach its verdict on fair interpretation of the evidence assessing the credibility of both drivers who claimed they each had a green light entering the intersection. Williams v Illinois Tool Works, Inc.    

Premises Liab   Assumption of Risk   Duty   Notice   Control   Speculation  

Second Department
Primary assumption of risk not applicable for use of homeowner’s backyard trampoline. Homeowners showed they did not assume duty to supersize 12-year-old injured while jumping on the trampoline with their daughter on proof they were not at home or aware their daughter invited her friend to use the trampoline, had instructed their daughter never to use the trampoline unless they were home, the daughter was not allowed to have guests without first getting their permission, the friend’s mother had instructed her daughter to go a recreational facility after school and was unaware she was going to defendants’ home, told her daughter never to use the trampoline unless the homeowners were present, and never spoke to the defendants about using the trampoline.

Because homeowners did not know infant-plaintiff would be at their house, they did not have the opportunity to control the safe use of the trampoline necessary for plaintiffs’ negligence claim. Testimony of nonparty that she observed homeowners’ daughter using the trampoline with and without supervision and speculating she may have jumped with other friends insufficient to raise issue on notice where she did not observe the daughter jumping with friends and never advised the homeowners the trampoline was being used unsafely. Bell-Moran v Pena    

Labor Law §240   Labor Law §241   Labor Law §200   Control   Hearsay   Raised For First Time   Notice   Sole Cause   Grave Injury   Indemnity  

First Department
Tenant with net lease for all residential units in building and building owners denied summary judgment of Labor Law §§240(1), 241(6), 200 and negligence claims of electrician electrocuted while terminating live bus duct before building inspection the next day. Tenant’s resident manager’s testimony he instructed decedent not to work on system until he returned with rubber insulation when he would turn off power to the building and that decedent was a “cowboy” who often worked on live equipment was refuted by decedent’s daughter’s testimony that resident manager told her decedent had to work with power on because of the pending building inspection and to not cut off services such as elevators for the 36 sub-tenants, which was a party admission and not hearsay, proof that none of the protocols for turning off service were followed before the work was begun, and fact resident manager opened the mechanical room for decedent and allowed him to stay after the manager left. Manager’s statement would have been admissible even if hearsay as defendants addressed it below and it was not the only evidence. Claim that it was an admission, raised for the first time on appeal, considered as it was determinative and sufficiently included in the record for review.

Issues of fact remained on whether 10’ A-frame ladder decedent got on premises was adequate for work 15’-20’ above floor, whether other safety devices were required, whether defendants violated industrial code §23-1.13(b)(4) by not de-energizing the equipment, whether defendants had constructive notice of the risks of the uncapped bus duct, whether the tenant controlled the means and methods of decedent’s work, and whether decedent was the sole proximate cause of his injuries.

Employer’s motion for summary judgment dismissing common law indemnity claims denied as the prior court ruling finding no basis for a wrongful death claim did not address whether decedent who lived for 9-months before dying suffered a grave injury and the parties agreed at a workers comp hearing that he died from his injuries. Rosa v 47 E. 34th St. (NY), L.P.    

Premises Liab   Snow/Ice   Survelliance Video   Experts   Premature Motion  

Second Department
Plaintiffs met burden for summary judgment prior to completion of discovery on surveillance video that showed that ice on sidewalk plaintiff slipped on was caused by a defective drainpipe from the roof which was detached from the sewer system, photographs which showed the condition existed for several years, and their expert’s opinion that the condition violated NYC administrative code. Defendants failed to show further discovery would likely reveal relevant information or information to oppose the motion was exclusively within plaintiff’s knowledge.

Plaintiff failed to meet burden for summary judgment against neighboring property where their respective experts gave conflicting opinions. Sloan v 216 Bedford Kings Corp.    

Labor Law §240   Gravity Risk  

Second Department
Plaintiffs and defendants failed to meet their burden for summary judgment on Labor Law §240(1) where questions remained of whether worker, injured when portion of caisson pipe suddenly sprang into the air and hit him, was the result of a gravity risk protected by §240 or the sudden release of tension from the strap tightly holding the pipe to keep it from falling to the ground after it was cut. Lima v HY 38 Owner, LLC    

MVA   Feigned Issue  

Second Department
Defendants granted summary judgment on EBT testimony of both parties establishing defendants’ vehicle entered intersection with green light when plaintiffs’ vehicle entered the intersection against a red light and defendant had little time to react, establishing plaintiff’s negligence per se for violation of VTL §1110(a). Plaintiff-driver’s affidavit raised only feigned issues where it contradicted her deposition testimony. Kirby v Lett    

MVA   Turning Vehicle   Comparative Fault   Premature Motion  

Second Department
Plaintiff granted summary judgment on liability and dismissal of comparative fault defense where his affidavit and affidavit of eyewitness showed defendants’ vehicle made a left-hand turn in front of plaintiff’s motorcycle in violation of several VTL provisions, establishing negligence per se, plaintiff attempted to avoid the accident, and there was no emergency justifying defendant-driver’s actions. Defendants failed to show discovery might lead to relevant information or that information solely within plaintiff’s knowledge was necessary to oppose the motion on argument motion was premature. Higgins v Stelmach    

MVA   Turning Vehicle   Question of Fact  

Second Department
Driver and owner of vehicle entering intersection without traffic control device met burden for summary judgment on proof they had right of way when plaintiff’s vehicle entered the intersection to make a left-hand turn from an intersection with a stop sign and defendant-driver had no time to react as he could not see plaintiff’s vehicle until it entered the intersection because codefendant’s truck sticking halfway into street plaintiff was turning from blocked his view, but codefendant’s affidavit that defendants’ vehicle was speeding before entering the intersection raised an issue of fact. Lemanowicz v Zhenneng Wu    

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About Matt McMahon

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