| MUST READS (2 summaries) | |||
| NOTEWORTHY | IF YOU MUST READ | ||
 Lower court providently denied plaintiff’s motion to strike defendants’ Answers, preclude them from testifying at trial, or to compel the continued EBT of defendant-ophthalmologist where plaintiff failed to show good cause to extend the 22 NYCRR 202.20-b(a)(2) 7-hour EBT time limit where doctor was already deposed for 10-hours, the transcript showed no “significant delay caused by improper conduct or obstruction by the deponent or her attorney,” and plaintiff failed to show that 7-hours was insufficient for the EBT. Given plaintiff’s lack of a good faith affirmation, defendants granted a protective order barring the continued EBT. Wanliss v Retina Assoc. of N.Y., P.C. ✉ |
| Orthopedic surgeon’s motion to strike plaintiff’s first Amended BP and second Amended BP, incorrectly termed a Supplemental BP, granted to the extent of striking allegations of malpractice in performing a knee replacement surgery and precluding testimony on that issue as these were new causes of action not raised in either the Complaint or original BP but plaintiff granted leave to serve a Supplemental BP with malpractice allegations for post-surgical physical therapy as those merely amplified the allegations in the Complaint. Plaintiff’s appeal from denial of her motion for leave to serve a third Amended BP denied as an attempt to reargue and no appeal lies from denial of a motion to reargue. Quinones v Long Is. Jewish Med. Ctr. ✉ |
| NOTEWORTHY (12 summaries) | |||
| MUST READS | IF YOU MUST READ | ||
| Cable company’s motion to set aside plaintiff verdict and for judgment as a matter of law granted as there was no rational process for the jury to find against the defendant for plaintiff’s trip on an exposed trench in a crosswalk where the defendant cut a trench in the crosswalk and restored it 18-years before plaintiff tripped, 16 years before plaintiff claimed the trench became exposed. There was no evidence that defendant’s work or maintenance of the area more than 10-years earlier created a defect that caused her fall. Kelly v Consolidated Edison Co. of N.Y., Inc. ✉ |
| Defendants’ motion to dismiss on personal jurisdiction denied as failure to timely file the affidavit of service by personal of suitable age and discretion is a mere irregularity that goes only to defendants’ time to answer which is not jurisdictional. Defendants failed to rebut the presumption of proper service from the process server’s affidavit. Palma v Apatow ✉ |
| Petition for leave to serve late Notice of Claim, filed by order to show cause within time to serve a Notice of Claim considering Covid tolls, granted as NYCTA had actual knowledge of the facts of the bus/vehicle accident from a police report, Covid and the delay in signing the order to show cause provided a reasonable excuse for the delay which was not due to petitioner’s conduct. Matter of Ortiz v New York City Tr. Auth. ✉ |
| NYCTA’s motion to dismiss respondeat superior claims denied where plaintiff’s allegations alleged defendants had sufficient control over the taxi they hired to provide transportation services for her. Pascall v New York City Tr. Auth. ✉ Comment: The taxi was provided under the Access-a-Ride program. |
| Lower court improvidently granted plaintiff’s motion to reargue, vacating dismissal on statute of limitations, where plaintiff failed to show ‘the court overlooked or misapprehended the relevant facts or misapplied any controlling principle of law.’ Garcia v Cali CW Realty Assoc., L.P. ✉ |
| Building owners failed to meet burden of showing they were out of possession owners without a duty to clear snow/ice from the front stairs where their tenant slipped and fell on snow/ice where they submitted plaintiff’s testimony that one of the owners shoveled snow from the stairs, including the day before plaintiff’s fall, leaving questions of whether they assumed a duty through their course of conduct. Pereira-Labra v Massey ✉ |
| In response to municipality’s showing it did not receive prior written notice of the condition, injured-plaintiff raised issue on creation exception to prior written notice by photographs and expert opinion that snow mound on sidewalk she slipped on was caused by the municipality’s snow plowing operations. Spouse’s loss of consortium claim dismissed where it was not raised in the Notice of Claim. Reynolds v City of Poughkeepsie ✉ |
| Defendants met burden for summary judgment on serious injury by their IME/DME orthopedist’s report showing no serious injury based on normal ROM as measured by a goniometer and plaintiff’s expert failed to raise an issue in opposition without identifying the method used to measure ROM. Mitchell v A & A Tr., Inc. ✉ |
| Construction manager granted summary judgment dismissing GC-employee’s Labor Law §§ 240(1) and 241(6) claims for fall off roof on proof it did not control the means and methods of the injury producing work and was not an owner agent as its principal’s testimony it could stop work if it observed unsafe work established only general supervisory authority of the work progress and not supervisory control of the injury producing work. Proposal for separate larger renovation project, limited to preconstruction services, that was abandoned did not raise an owner agent issue. LLC that owned the 1-family home granted summary judgment under 1-2 family exception to §§240 & 241 on testimony of one of its members and the construction manager that at the time the work was being done the member intended to live in the home with her husband after the renovation which was related to her plans to reside in the home and the planned larger renovation project did not take it out of the exception as that plan was later abandoned. Lower court was not required to deem construction manger’s statement of facts admitted where plaintiff failed to provide a paragraph by paragraph response, even before the mandatory language of 22 NYCRR 202.8-g was removed. Argueta v Hall & Wright, LLC ✉ |
| Plaintiff’s periodontal expert’s opinion that the wisdom tooth which went into plaintiff’s skull as the defendant-dentist was removing it could not have become dislodged absent a departure from accepted practice raised an issue contradicting defendant’s expert’s opinion of no departure. Periodontist showed ‘requisite skill, training, education, knowledge or experience’ to opine on the extraction and any lack of skill or experience goes to weight not admissibility. Gordon v Zeitlin ✉ |
| Plaintiff granted summary judgment on liability and dismissal of comparative fault defense on his affidavit that defendant FedEx vehicle coming in the opposite direction crossed over the double yellow line in violation of VTL §1126(a) and struck him while riding his e-bike. Motion not premature as defendants had knowledge of the facts and failed to offer evidence that discovery might lead to relevant information. Walker v Edwards ✉ |
| Owner of school bus parking lot where school bus driver tripped and fell in pothole after exiting her bus failed to show it was an out of possession owner without proof it transferred full possession and control to the tenant bus company and it failed to show it neither knew or should have known of the pothole. Williams-McKay v Parkgate Communications, Inc. ✉ |
| IF YOU MUST READ (3 summaries) | |||
| MUST READS | NOTEWORTHY | ||
| Store and building owner granted summary judgment dismissing plaintiff’s claim for trip and fall on walkway on plaintiff’s testimony which showed she was unable to identify the cause of her fall without speculation and her affidavit raised only a feigned issue where it contradicted her deposition testimony. Plaintiff’s expert failed to raise an issue of fact on speculative theory of an ADA violation. The Court does not give the details of the proofs. Barretta v Michaels Stores, Inc. ✉ |
| Landlord failed to meet burden for summary judgment dismissing plaintiff’s claim for injuries when garbage room door closed on her foot without establishing the condition was not dangerous and that it did not create or have constructive notice of a dangerous condition. The Court does not give the details of the proofs. Saunders v Nostrand 1543, LLC ✉ |
| Construction company denied summary judgment where its affidavit failed to eliminate questions of whether it did work in the crosswalk where plaintiff tripped and fell on a defect that may have existed for 7-years. The Court does not give the details of the proofs. Barnes v City of New York ✉ |