MVA Default Judgment Reasonable Excuse Meritorious Action
Plaintiff’s motion for default judgment granted on proof of proper service, default in answering, and meritorious action. Defendants, municipality and its employee who was driving his own car as part of his employment, failed to give a reasonable excuse for not timely answering. Attorney’s conclusory statement that file was misplaced, and office understaffed insufficient excuse and court need not consider whether there was a meritorious defense. Maldonado v Mosquera
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IME/DME
Defendant’s motion to compel plaintiff to appear for neuropsychological exam without a third-party watchdog present, after defendant’s neuropsychologist refused to go forward with the examination, denied as plaintiff is entitled to have a representative present during an examination as long as the representative does not interfere. Gonzalez v Red Hook Container Term., LLC
Comment: The court notes that this is the rule in the Second, First, and Fourth Departments.
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Negligent Supervision Late Notice of Claim
Municipality’s motion to dismiss claims not contained in original Notice of Claim granted and motion to amend Notice of Claim denied where proposed Notice of Claim not attached to motion and would add new theories. Lower court should not have sua sponte dismissed father’s claim for loss of services and medical expenses where no party requested that relief and original Notice of Claim included claims for medical expenses. C.D. v Goshen Cent. Sch. Dist.
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Vacate Default Reasonable Excuse Meritorious Defense
Defendants’ motion to vacate default in answering denied where attorney’s conclusory affidavit that delay in answering was caused by carrier insufficient to provide reasonable excuse and court did not have to look at question of meritorious defense. Plaintiff was carrier with assignment of injured insured’s claim. Rochdale Ins. Co. v Fairview Nursing Care Ctr., Inc.
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Premises Liab Slip/Trip Elevator Notice Expert Aff
Plaintiff raised issues of fact in opposition to defendant’s showing of entitlement to summary judgment by affidavit of her mother, a building resident, stating that elevator misaligned on a daily basis for a month before accident, condominium board member acknowledged the problem in her presence, documentary evidence of similar incidents of misalignment, and unsatisfactory inspection report 3-days before incident that experts on either side disagreed on whether it could cause misalignment. Napolitano v Jackson “78” Condominium
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Labor Law §240 Directed Verdict Gravity Risk Safety Devices
Defendant granted directed verdict on Labor Law §240(1) at close of plaintiff’s case where plaintiff was injured when a tool he was using to rotate steel beams weighing 600-1000 lbs at ground level slipped and struck him in the head as not the result of “a physically significant elevation differential.” There was no rational path for a jury to come to a different conclusion giving plaintiff the benefit of all reasonable inferences. Lemus v New York B Realty Corp.
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Med Mal Accepted Practice Causation Expert Aff Conclusory
Plaintiff’s expert’s opinion that primary physician remained plaintiff’s-decedent’s physician while she was in extended care facility based on examination and care treatment plan prepared by primary physician at the facility, that the primary physician deviated from accepted practice causing plaintiff’s injuries and death raised questions of fact in opposition to the physician’s prima facie showing of entitlement to summary judgment. Plaintiff’s decedent developed bedsores, required hospitalization, and died 6-days later from cardiopulmonary arrest due to coronary artery disease and hypertension, with urosepsis a significant contributing factor. Rosario v Our Lady of Consolation Nursing & Rehabilitation Care Ctr.
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Labor Law §240 Labor Law §241 Falling Object Safety Devices Industrial Code Indemnity
Worker struck by unsecured HVAC duct causing him to fall 1-story from beam granted summary judgment on Labor Law §240(1). Owner and general contractor denied summary judgment on Labor Law §241(6) based on industrial code §NYCRR 23-1.8(c)(1)(hardhat) where they failed to show it was not a hardhat job and that lack of head protection did not play a role in worker’s injury.
Subcontractor’s motion for summary judgment on indemnity claim for amounts less than available excess insurance denied as premature. Aguilar v Graham Terrace, LLC
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Venue Renew Amend Complaint Motion to Dismiss Default Judgment Res Ipsa Loquitor
Nassau judge’s grant of plaintiff’s motion to renew opposition to Bronx judge’s grant of motion to change venue to Nassau adhering to original decision affirmed. Plaintiff’s motion to amend Complaint to correct “misnomer” where it named defendant as Freeman Company instead of Freeman Expositions granted where correct defendant was properly served and not prejudiced even though the motion to amend made after statute of limitations. Plaintiff’s motion for default judgment denied as defendant’s motion to dismiss served within 30-days of service was a timely appearance. Defendant’s motion to dismiss denied as its documentary proof did not utterly refute plaintiff’s allegations and the allegations of the Complaint stated a cause of action based on res ipsa loquitor. Duncan v Emerald Expositions, LLC
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MVA Consolidation
Motion by defendant driver in the first accident to sever cross-claim of defendant from second accident, made before discovery and BP, denied where medical records provided by plaintiff showed common questions of fact and law on whether injuries from first accident were exacerbated by second accident. While severance is within discretion of trial court it should be granted sparingly. Mejia v Doe
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MVA Consolidation
One defendant’s motion to consolidate action with 3-other actions already consolidated providently denied where summary judgment had already been granted against moving defendant and matter was scheduled for damage only trial. Hilarion-Mahotiere v Metz
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MVA Admission Premature Motion
Plaintiff’s motion for summary judgment denied as premature based on her affidavit that she was struck by defendants’ car while making while it was making a dangerous lane change and police report with defendant driver’s statement that he “struck” the plaintiff’s vehicle on the driver’s side. Defendant driver’s statement was an acknowledgment that the collision occurred and not an admission of liability. Cordero v Escobar
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MVA Turning Vehicle Untimely
Defendants failed to meet burden for summary judgment where deposition testimony submitted contained conflicting stories of whether plaintiff began to turn and what lane accident occurred in. Lower court improvidently reviewed plaintiff’s opposition submitted after return date, but it was harmless error since defendants failed to meet their burden of proof. Elusma v Jackson
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Dogbite Notice
Building owner’s proof dog that bit infant plaintiff was owned by tenant’s guest and lease recited that tenant did not have a pet was sufficient to make out prima facie case that dog did not belong to a tenant, was not regularly on the premises, and building owner had no notice of its presence. Plaintiff did not file opposition. J.R. v Poonam Apts., LLC
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Serious Injury Sanctions
Lower court’s sanction of denying defendants’ motion for summary judgment on serious injury as sanction for failing to serve plaintiff with order scheduling settlement conference, causing plaintiff not to appear at conference, reversed as not a proper sanction under 22 NYCRR §202.27. Case remanded for decision on serious injury motion. Charalabidis v Elnagar
Comment: This is a companion decision to the Court’s decision on the lower court’s failure to sign the transcript of the motion to disqualify plaintiff’s attorney reported in this volume.
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Serious Injury ROM Causation BP
Defendants failed to meet burden of proof on serious injury where one of their doctors found significant limitation of ROM and failed to show that injuries were not caused by the accident. Plaintiff’s testimony, relied upon by defendants on the 90/180-day category, failed to identify plaintiff’s usual pre-accident activities or compare them to post accident activities. Williams v Maleachern
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Premises Liab Create Condition Notice
Landowner granted summary judgment on proof it did not create or have notice of condition of curb that crumbled when plaintiff stepped on it and plaintiff failed to raise an issue of fact in opposition. Fields v New York City Hous. Auth.
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Lead Poisoning Late Notice of Claim Duty Meritorious Action NYC
Petition to serve late Notice of Claim on NYC 6-years after infant was found to have elevated lead blood levels denied where patently devoid of merit as NYCHA not NYC owned, operated, and controlled the building. Matter of K.G. v City of New York
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Lead Poisoning Late Notice of Claim Duty Meritorious Action NYC
Petition to serve late Notice of Claim on NYC 9-years after infant was found to have elevated lead blood levels denied where patently devoid of merit as NYCHA not NYC owned, operated, and controlled the building. Matter of S.M. v City of New York
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Vacate Jud
Pro se plaintiff’s motion to vacate judgment after defense verdict denied as trial court providently exercised its discretion in allowing a defense witness to testify during plaintiff’s case to accommodate the witness and gave an appropriate instruction. Claims of ineffective assistance of counsel in a civil matter are not considered absent extraordinary circumstances. Pines v New York City Dept. of Educ.
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