September 21, 2021 | Vol. 279

(3 summaries)

Construction Liab.   Workers Comp   Collateral Estoppel   Causation   Amend Answer   Notice   Prejudice  

Second Department
Second Department gives detailed explanation of when a workers compensation decision is entitled to collaterally estoppel, finding defendants met their burden of showing identity of parties, liability, and damage issues, and plaintiff failed to show lack of full/fair opportunity to litigate where he testified at hearing and administratively appealed finding that accident did not occur or did not occur in manner that could cause claimed injuries. Recognizing Court of Appeals precedent that negligence actions are ‘much broader in scope’ then WC proceedings as they are ‘intended to make an injured party whole for the enduring consequences of his or her injury—including . . . lost income and future medical expenses,’ the decision emphasizes the need for the WC board to have decided on the merits the precise issue(s) that would bar the tort action. Collateral estoppel not applicable where there are injuries or potential causes not decided on by WCB, issues such as identity of employer were not considered, or WCB decision was based on procedure alone. But “non-occurrence of an injury-producing accident is a dagger in the heart of the plaintiff’s entire personal injury action.”

CPLR §3211(e) waiver of collateral estoppel defense where not raised by Answer or pre-Answer motion can be corrected by motion to amend even long after filing of Note of Issue as there was no surprise or prejudice. Lennon v 56th & Park(NY) Owner, LLC    

Comment: While personal jurisdiction and service defect defenses cannot be resurrected by leave of court, collateral estoppel, res judicata, statute of limitations, discharge in bankruptcy, infancy or other disability, legal capacity, arbitration and award, payment, release, and statute of frauds can be the subject of motion to amend Answer. GMAC Mtge., LLC v Coombs.

Governmental Function   Governmental Immunity   Special Duty   Intervening Cause   Pain/Suffering   Discovery  

Second Department
Town and police officers denied summary judgment where plaintiff’s decedent was shot and killed by husband after defendants gave husband back his confiscated handgun because he was a retired police officer which was non-discretionary ministerial function, not a governmental function, where husband did not produce gun license of proper ID under Law Enforcement Officers Safety Act; questions of fact remained of whether harm was foreseeable from return of gun and decedent justifiably relied on it not being returned, and there was direct contact between defendants and decedent raising issue of assumption of special duty. Questions remained on whether shooting was intervening cause where “the risk of the intervening act occurring is the very same risk which renders the actor negligent.”

Where decedent was shot in the front of her body questions remained on pre-impact terror of whether she perceived grave injury before she was shot. Defendants’ demand for decedent’s communications not to, from, or about defendants denied as overbroad, burdensome, and irrelevant. Santaiti v Town of Ramapo    

Reargument   Appealable Order   Untimely  

Second Department
Lower court lacked jurisdiction to decide motion to reargue where plaintiff served OSC by overnight mail 2-days after date for service specified in OSC. Service requirements in OSC are jurisdictional and require strict compliance. Appeal dismissed as no appeal lies from denial of a motion to reargue. Khan v Khan    

Comment: See companion case in Noteworthy.
(5 summaries)

Premises Liab   Stairs   GML §205-a-e   Dangerous Condition   Experts   Conclusory  

Second Department
Homeowner entitled to dismissal of GML §205-a claim where firefighter fell from stair on proof that dangerous condition was not ‘a specific structural or design defect giving rise to liability under the Administrative Code,’ and plaintiff’s expert’s legal conclusions were inadmissible and failed to raise issues of fact. Homeowner not entitled to dismissal of negligence claims which have been permitted for firefighters and police since the adoption of GOL §11-106 in 1996. Pomilla v Bangiyev    

Labor Law §240   Labor Law §241   Labor Law §200   Industrial Code   Causation   Notice to Admit   Premature Motion  

First Department
Plaintiff’s Labor Law §240(1) claim for fall by stepping on wet 2x4s while walking at worksite dismissed as not caused by elevated height risk. Labor Law §241(6) claim dismissed where industrial code §23-1.7(e)(2)(tripping hazard) insufficient predicate as tree guard worker’s eye got impaled on was not related to work being performed and §23-5.1(h)(scaffold) inapplicable as lack of designated supervisor was not a cause of accident.

Dismissal of Labor Law §200 and negligence claims premature where defendants admitted they installed tree guard in response to Notice to Admit, contradicting affidavit that they had nothing to do with tree guard submitted with motion prior to discovery, showing facts necessary to oppose motion might be within defendants’ exclusive knowledge. Corona v HHSC 13th St. Dev. Corp.    

Labor Law §240   Labor Law §241   Labor Law §200   Homeowner Exception   Control   CPLR § 3126   Preclusion   Renew  

Second Department
Labor Law §§ 240(1) and 241(6) claims properly dismissed under homeowner exception on proof property where plaintiff’s decedent fell from roof was 1-family home and defendant did not direct or supervise work. Homeowner met burden of showing he did not create condition or have actual or constructive notice for dismissal of Labor Law §200 and negligence claims and plaintiff failed to raise issue in opposition.

Plaintiff’s failure to comply with expert discovery demands according to court’s order justified preclusion of expert testimony or affidavit. Plaintiff’s cross motion to renew opposition to preclusion order denied where plaintiff failed to allege new facts. Khan v Khan    

Comment: See companion case in Must Reads.

MVA   Bus   Vacate Default   Serious Injury   Reasonable Excuse   Meritorious Action  

Second Department
Plaintiffs’ motion to vacate order dismissing action under 22 NYCRR 202.27 for failure to appear at final trial conference denied where plaintiffs provided reasonable excuse for not appearing but failed to submit any medical evidence of serious injury to establish a meritorious action. Defendants’ unopposed motions for summary judgment were denied by lower court as moot on dismissal for plaintiffs’ failure to appear. Sutton v Metropolitan Tr. Auth. Bus Co.    

MVA   Rear End   Question of Fact  

Second Department
Conflicting versions of how accident occurred submitted by defendants, including plaintiff’s testimony he was rear-ended while in middle lane of BQE and defendants’ driver’s testimony and affidavit that plaintiff side-swiped his truck while abruptly changing lane, failed to eliminate questions of fact on liability. Abdenbi v Walgreen Co.    

(0 summaries)

About Matt McMahon

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