September 24, 2019 | Vol. 177


MUST READS
(3 summaries)
NOTEWORTHYIF YOU MUST READ



MVA   Products Liab   Motion to Dismiss   Personal Juridiction  

Second Department
Plaintiff failed to rebut Goodyear’s showing that it’s affiliations with New York were not “so continuous and systematic as to render them essentially at home in” New York. Registering to do business in New York and designating Secretary of State for service is not consent to general jurisdiction. The court does not give the details of the proofs. Aybar v Goodyear Tire & Rubber Co.


Med Mal   Discovery   CPLR §3124   CPLR § 3126   Preclusion   Strike Answer   Willful/Contumacious  

Second Department
Plaintiffs’ demand for names, last known addresses, and color photographs of all personnel who worked on nursing home floor where plaintiff’s decedent was treated denied as overbroad and unduly burdensome, requesting palpably irrelevant information. Challenge beyond time 20-day period to object under CPLR R 3122(a)(1) permitted where demands are palpably improper. “[D]isclosure demands may be palpably improper where they seek irrelevant information, are overbroad and burdensome, or fail to specify with reasonable particularity many of the documents demanded…” Kiernan v Booth Mem. Med. Ctr.

Comment: Plaintiffs’ motion to preclude nursing home from producing evidence at trial and striking its Answer denied where defendants complied with proper demands and plaintiffs failed to show conduct was willful/contumacious. Kiernan v Booth Mem. Med. Ctr.

Med Mal   Statute of Limitations  

Second Department
Hospital’s motion to dismiss action commenced just under 3-years after plaintiff’s decedent was injured while allowed to roam hospital in a confused state denied where it failed to show that any doctor had ordered decedent be restrained leaving open issue of whether claim was for malpractice or negligence. Wesolowski v St. Francis Hosp.

NOTEWORTHY
(9 summaries)
MUST READSIF YOU MUST READ

Premises Liab   Slip/Trip   Snow/Ice   Prior Written Notice   Create Condition  

Second Department
Town’s motion for summary judgment claiming it did not have prior written notice of icy condition on asphalt track in park denied where it showed it did not receive prior written notice but failed to show it did not create condition without addressing allegations in Notice of Claim, Complaint, and BP that it piled snow/ice on side of track which melted and froze on track. Kabia v Town of Yorktown


Labor Law §240   Labor Law §200   Sole Cause   Safety Devices   Control   Indemnity  

Second Department
Plaintiff who fell from scaffold granted summary judgment on Labor Law §240(1) where he was not provided with a safety line or other safety devices and high school failed to raise an issue on whether he was sole cause of the accident. School’s motion for summary judgment on Labor Law §200 denied as it failed to show its representative who was often at the site did not have authority to control work where representative testified that they would urge subcontractors to comply with safety regulations. Motion for summary judgment on contractual indemnity denied for question of defendant’s own negligence. Roblero v Bais Ruchel High Sch., Inc.


Premises Liab   Elevator   Duty   Espinal   Conclusory  

First Department
Elevator company entitled to summary judgment on proof it did not have contract with owner and could not have entirely displaced owner’s duty. Owner’s motion for summary judgment denied where president was unable to say if there was a contract for the maintenance of the elevator or if the elevator was ever inspected. ‘A conclusory affidavit or an affidavit by an individual without personal knowledge of the facts does not establish the proponent’s prima facie burden.’ Plaintiff’s motion for summary judgment denied. Saunders v J.P.Z. Realty, LLC


Premises Liab   Slip/Trip   Sidewalk   Prior Written Notice   Big Apple Pothole   NYC  

Second Department
Plaintiffs’ motion for summary judgment denied on questions of fact as to exact location where he fell and whether area was depicted on the Big Apple pothole map submitted to the Department of Transportation. Arutyunov v City of New York


Vacate Default   Compel Acceptance   Sanctions  

Second Department
County’s second motion to vacate default in answering granted where it misconstrued court’s original directive to serve Answer by personal service, having served it by mail, making its failure to Answer not willful and County showed meritorious defense. County’s unexplained 2-month delay in seeking to again vacate the default, until just days before the inquest, warranted $250 sanction. Moorer v County of Nassau


MVA   Turning Vehicle  

First Department
Tractor-trailer granted summary judgment on proof the front driver side of car plaintiff was a passenger in as it pulled out from parking spot struck the right rear tire of the tractor-trailer, establishing as a matter of law that the tractor-trailer was not at fault and was consistent with photographs showing impact damage to driver front, not side, of the car. There was 1-dissent. Nunez v Nunez


Premises Liab   Negligent Supervision   Causation  

Second Department
School granted summary judgment on proof that groundcover and monkey bars infant plaintiff fell from were not defective and were properly maintained, that they provided adequate supervision, and that their supervision was not proximate cause of infant plaintiff’s fall. Plaintiff failed to raise an issue in opposition. The court does not give the details of the proofs. I.S. v City of New York


Serious Injury   Preexisting   ROM   Expert Aff   Raised For First Time  

Second Department
Defendants made out prima facie entitlement to summary judgment for both plaintiffs on competent medical proof showing normal ROM and radiology reports opining that injuries were pre-existing. Treating orthopedist’s affirmation for 1-plaintiff raised issue on opinion that knee injury was not visible on her prior MRI and that goniometer showed 33% loss of ROM. Plaintiffs failed to raise issue as to other plaintiff’s wrist injury. Defendants’ gap in treatment argument raised for first time in reply was not considered. Diaz-Montez v JEA Bus Co., Inc.


Serious Injury   Expert Aff  

Second Department
Plaintiff raised issue of fact in opposition to defendants’ showing of entitlement to summary judgment on serious injury. Defendants’ expert’s opinion that the resolved injuries were causally related to the accident never shifted burden of proving causation or explaining any gap in treatment to plaintiff. Cortez v Nugent

IF YOU MUST READ
(1 summaries)
MUST READSNOTEWORTHY

Serious Injury  

Second Department
Plaintiffs failed to raise issue in opposition to defendants’ showing of entitlement to summary judgment on serious injury based on competent medical proof. The court does not give the details of the proofs. Bassi v Greco

About Matt McMahon

Civil trials and appeals since 1984
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