September 26, 2017 | Vol. 73

MUST READS
(4 summaries)
NOTEWORTHY IF YOU MUST READ

Notice of Claim   Estoppel   50-H  

First

MTA Bus Co.’s motion to dismiss for failure to serve a Notice of Claim (or Demand) denied upon the First Department’s finding that it is equitably estopped from claiming that it is not the proper party. Singh v Metropolitan Transp. Auth.

Comment: While the Appellate Court does not give the details of the estoppel, from the lower court papers it appears that MTA Bus had sent 50-H notices on its letterhead claiming that the hearings were required on behalf of the MTA Bus Co., thus misleading plaintiff into believing that a separate Notice of Claim did not have to be served on MTA Bus Co.


MVA   Serious Injury   Set Aside Verdict   Directed Verdict   Admissibility   Missing Witness Charge   Materially Deviates  

Second Deptartment

Defendants’ motions to set aside verdict finding that passenger sustained a serious injury and awarding $150,000/$50,000 past/future (1year) pain/suffering denied where plaintiff’s expert neurologist testified that plaintiff had a 50% loss of lumbar ROM and opined based on his examination and review of her MRI that the herniated disc was caused by the accident. Defendants’ diagnostic radiologist’s opinion that the herniated disc was caused over several years from degeneration raised issues which the jury resolved in favor of the plaintiff. There was a rational path for the jury to come to its conclusion, precluding a directed verdict, and the verdict was based on a fair interpretation of the evidence. Defendants were properly precluded from introducing evidence of the plaintiff’s treating non-testifying doctor’s fraud as the plaintiff’s expert’s opinions were not based on that physician’s records and were therefore irrelevant. Defendants’ motions for a missing witness and missing document charge for not calling plaintiff’s non-testifying treating physician were properly denied. Eastman v Nash


Products Liab   Negligent Supervision   Amend Answer  

Second Deptartment

Manufacturer’s motion to amend its Answer to include a counterclaim against the plaintiff-mother of the 4-year-old plaintiff who was injured by the blades of a handheld stick blender she left on a counter she got something from the freezer denied as palpably devoid of merit because it was a claim of negligent supervision by a parent, impermissible under Holodook v. Spencer, 36 NY2d 35 (1974.) Siragusa v Conair Corp.

Comment: The prohibition against imputing a parent’s negligence to a child’s claim is codified in Gen Oblig § 3-111.


Assault   Motion to Dismiss   Venue  

Second Deptartment

The lower court providently exercised its discretion in dismissing the action for an assault which took place on an airplane at JFK where both parties were citizens and residents of South Korea, the plaintiff was treated in Seoul and criminal charges were brought in Seoul. The movant has the burden of proving that public or private interest factors weigh against the action being brought in New York. Here all potential witnesses were in South Korea. Park v Heather Hyun-Ah Cho

NOTEWORTHY
(7 summaries)
MUST READS IF YOU MUST READ

Premises Liab   Res Ipsa Loquitor   Notice   Raised For First Time  

Second Deptartment

Landlord failed to meet its burden for summary judgment where plaintiff testified that she complained about the damaged ceiling to the superintendent, including her concern that it would fall on her head. Superintendent’s testimony that no such complaints were made to him raised a question of credibility for a jury to determine and defendant’s claim on appeal that superintendent was only a tenant with no authority to receive complaints was not considered as it was raised for the first time on appeal. Res ipsa loquitur did not apply as the plaintiff was in possession of the apartment for a year prior to the accident precluding a finding that the ceiling was in the exclusive control of the landlord. Correa v Matsias


Premises Liab   Wet Floor   Notice   Last Inspection  

Second Deptartment

Restaurant failed to meet its burden for summary judgment on issue of constructive notice by its employee’s testimony regarding general cleaning principles without proof of the last time that the area where the plaintiff fell was cleaned or inspected. General cleaning principles are insufficient for defendant to show lack of constructive notice. Lombardo v Kimco Cent. Islip Venture, LLC


Med Mal   Discovery  

Second Deptartment

Medical Center required to disclose agreement it had with non-party president of defendant anesthesiology corporation in his individual capacity, and produce witness with knowledge of the agreement, where president of anesthesiology corporation testified at deposition that such an agreement existed prior to and regarding the formation of the anesthesiology corporation. Redmond v Hanypsiak


Assault   False Arrest   Venue  

Second Deptartment

Lower court’s order denying defendant’s motion to move venue from Kings County to Westchester County, where plaintiff was detained by employees at the Empire Casino in Yonkers, and instead moving venue to Bronx County based on plaintiff’s deposition testimony that at the time of the commencement of the action he resided in the Bronx and not in Kings County reversed. By bringing the action in an improper venue, plaintiff lost the opportunity to designate the County of venue and failed to show that Westchester was an improper venue. Absent a cross motion to move venue to Bronx County, the lower court had no authority to move venue to the Bronx. Nunez v Yonkers Racing Corp.


Labor Law §240   Labor Law §241   Labor Law §200   Control   Premature Motion  

Second Deptartment

Contractor granted summary judgment where it proved that it had been hired for an entirely different project at the site where the plaintiff was injured when he was trapped between a boom railing and an elevated steel beam he was painting, and that they had completed all work before the plaintiff’s accident. Plaintiff failed to show that discovery was necessary. Haidhaqi v Metropolitan Transp. Auth.


Labor Law §240   Sole Cause   Premature Motion  

Second Deptartment

Plaintiff met burden for summary judgment on Labor Law §240(1) by his testimony that scaffold moved causing him to fall but defendants showed that motion was premature where 1 defendant had not deposed plaintiff, and no defendants had been deposed, and defendants showed that depositions were necessary on issue of whether plaintiff was the sole cause of the accident. Antonyshyn v Tishman Constr. Corp.


False Arrest   Battery   1983 Action   Probable Cause  

Second Deptartment

Plaintiffs, mother and her 2 teenager children who were handcuffed for 2 hours during a no knock warrant to search for weapons, failed to raise a question of fact in opposition to the defendants’ showing that they conducted the search on a valid warrant which raises a presumption of probable cause barring plaintiff’s claims of false arrest, false imprisonment, and violation of civil rights. Plaintiffs’ claim that defendants failed to obtain adequate corroboration of confidential informant’s information that weapons would be found in the home were insufficient to overcome the presumption of probable cause because the requirement of corroboration in a criminal context does not arise in a civil context. The police officers were allowed to use reasonable force in executing the warrant and handcuffing the plaintiffs while conducting the search was a reasonable use of force. Harris v City of New York

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About Matt McMahon

Civil trials and appeals since 1984

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