September 26, 2023 | Vol. 384

(5 summaries)

Products Liab   Motion to Dismiss   Personal Juridiction  

Second Department
Plaintiff failed to show general jurisdiction in opposition to press brake manufacture’s motion to dismiss as designation of a NY agent for service by a foreign corporation is not consent to NY jurisdiction, defendant’s contacts with NY were not so ‘continuous and systematic’ to make it at home in NY, and it was not an ‘exceptional case’ that would subject defendant to jurisdiction outside its state of incorporation.

Proof that the particular press brake was manufactured in Japan by an Japanese company to be used solely in Japan and that property defendant owned in NY was unrelated to plaintiff’s claims was sufficient to show no basis for specific jurisdiction. Plaintiff failed to show any nexus between defendant’s NY activities, that defendant was involved in the press brake coming to NY through the ‘gray market,’ or that his claim arose from defendant’s NY property for long arm jurisdiction. Defendant’s use of the NY courts in an unrelated action did not create personal jurisdiction in this case absent proof of purposeful activity related to the present case. Vaval v Stanco, LLC    

False Imprisonment   Causation   Waiver  

Second Department
Town’s motion for summary judgment dismissing claims of false imprisonment and negligence for 2.5-months of incarceration after the ADA sent a request to the town to release plaintiff from jail as it was not putting the matter before a grand jury denied. While CPL §180.80 requires the individual to request release, there was no dispute that plaintiff was entitled to release at the time of the request and the question of whether the ADA’s request was a “joint application pursuant to CPL 180.80” based on the town’s standard procedures precluded summary judgment.

Plaintiff’s eventual guilty plea to a lesser charge for ‘time served’ did not waive his right to sue for imprisonment after the request to release and the period of “time served” was never defined. McKay v Town of Southampton    

MVA   Arbitration   Raised For First Time  

First Department
Plaintiff’s motion to stay arbitration of personal injury claim denied and Uber’s motion to compel arbitration granted where proof of email and in-application popup screen notifying plaintiff of changed terms of service with prominent hyperlinks to the terms gave plaintiff adequate inquiry notice and she did not affirmatively deny actual notice. Issues of validity and unconscionability of terms were for arbitrator under the terms of the agreement. Claim of fraud in the execution not considered where raised for the first time on appeal. Wu v Uber Tech., Inc.    

Malpractice   Wrongful Death   Motion to Dismiss   Statute of Limitations   Continuous Treatement  

Second Department
Hospital’s motion to dismiss on statute of limitations granted where action was commenced 3.5-years after decedent’s last treatment at the hospital and 3-years after decedent’s death, beyond 2.5-year medical malpractice and 2-year wrongful death statutes of limitations even adding the 90-days left on the statutes of limitations when the COVID tolls went into effect.

Plaintiff knew or reasonably should have known of the alleged malpractice at the time of last treatment under CPLR 214-a(b)(ii) where the diagnosis in the discharge summary was malignant lung tumor. Lastella v St. Joseph    

Attorney Fees   Lien   Appealable Order  

Second Department
Law firm retained by adult plaintiff’s mother while he was in the hospital which commenced an action denied Jud. L. §475 charging lien on a second case commenced by a different firm retained by the adult son as it had not authority to represent the adult son. Appeal from order denying charging lien dismissed as academic where a cross-motion to dismiss the first action was granted leaving no “live controversy” and there was “no enduring consequence” from denial of the motion for a charging lien. First law firm not entitled to reimbursement of expenses where retainer provided firm was responsible for expenses regardless of outcome, including dismissal. Symonov v Quanhao Lin    

(12 summaries)

Premises Liab   Stairs   Discovery   Strike Answer   Subsequent Repairs   Admissibility  

Second Department
Plaintiffs’ motion to strike NYCTA’s Answer for failure to provide response to discovery demands granted to extent of requiring defendant to provide repair records and list of employees and contractors who worked on stairs the infant-plaintiff fell on for 2-years prior to plaintiff’s fall and NYCTA granted a CPLR §3103(a) protective order against the same demands for 1-year after the accident as palpably improper since subsequent repairs are inadmissible and there was no issue on NYCTA’s maintenance and control of the stairs. C.B. v New York City Tr. Auth.    

Premises Liab   Wet Floor   Strike Answer   Spoliation   Survelliance Video  

Second Department
Plaintiff’s motion to strike school’s Answer for preserving only 51-seconds of video of school dance where infant-plaintiff slipped on a liquid on the dance floor denied where the assistant principal affirmed he reviewed the video shortly after the dance and preserved the relevant clip according to the school’s “normal business practices,” the tape was automatically erased after 21-days, and plaintiff did not notify the school of her claim until 3-months after the accident. ‘In the absence of pending litigation or notice of a specific claim, a defendant should not be sanctioned for discarding items in good faith and pursuant to its normal business practices,’ the assistant principal’s affidavit showed a good faith effort to preserve relevant footage, there was no proof of negligence in destroying the remaining footage, and plaintiff failed to show that failure to preserve the entire video deprived her of the ability to prove her claim. M.B. v St. Francis Preparatory Sch.    


Second Department
Motion to compel plaintiff to provide authorizations for Facebook and social accounts beginning 2-years before the accident, wife’s E-Z Pass records from date of accident, a copy of plaintiff’s passport, and all photos taken on plaintiff’s cell phone since the accident providently denied where defendants failed to show these were “reasonably likely to yield relevant evidence regarding the severity of the alleged injuries.” Sereda v A.J. Richard & Sons, Inc.    

Premises Liab   Default Judgment   Inquest   Appealable Order  

Second Department
Lower court erred in dismissing Complaint after damage inquest as defendant’s default “admitted ‘all traversable allegations in the complaint, including the basic allegation of liability,'” and the only issue before the lower court was damages. The Court deemed the appeal from the order directing dismissal of the Complaint to be an application for leave to appeal and granted leave. Abad v Francis Lewis, LLC    

Premises Liab   Sidewalk   Vacate Default   Reasonable Excuse  

Second Department
Plaintiff’s motion to vacate orders granting defendants’ motions for summary judgment on plaintiff’s default in appearing for oral arguments denied where excuse that plaintiff’s counsel was aware of part rules but failed to see they required parties to check e-courts for appearance dates was not a reasonable excuse and plaintiff had failed to timely submit opposition to a prior motion that resulted in a default order that was previously vacated. Rudsky v Schechtman    

MVA   Motion to Dismiss   Graves Amendment  

Second Department
Car dealer’s motion to dismiss based on Graves Amendment denied as its employee’s affidavit stating the vehicle was in good working order when it was rented was not documentary evidence under CPLR §3211(a)(1) and, in any event, did not show plaintiff’s allegation that defendants’ vehicle was negligently maintained “was not a fact at all.” Holmquist v Orphanides    

Labor Law §241   Indemnity   Control  

Second Department
Second third-party-defendant engineering firm failed to meet burden for summary judgment dismissing common-law contribution and indemnity claims against it where its contract and affidavit of its vice president who was present at the job site failed to eliminate all questions of whether it fit within the engineer exception under Labor Law §241(9), had the authority to control the means and methods of the injury producing work, and contributed to the accident. Flood v Ahern Painting Contrs., Inc    

Malpractice   Accepted Practice   Causation   Experts   Speculation   Conclusory  

Second Department
OB/GYN met initial burden for summary judgment on expert’s opinions that he did not depart from accepted practice and any departures did not cause plaintiff’s delivery of a stillborn fetus but plaintiff raised issues of fact by her expert’s contrary opinions that failure to take steps to treat plaintiff’s hypothyroidism and anemia, perform additional ultrasounds given lab results and complaints, and induce labor in light of complaints of discomfort were departures from accepted practice and that had defendant referred plaintiff for labor induction at either of 2-appointments the fetus would have been born alive. Plaintiff’s expert’s opinions were not speculative or conclusory. Rudenco v Abboud    

Premises Liab   Sidewalk   Create Condition  

Second Department
Abutting landowner granted summary judgment dismissing claim for trip and fall on hole in grassy area between sidewalk and curb on proof no statute imposed an actionable duty to maintain the sidewalk on the landowner, landowner did not create the condition or cause the condition through special use. Periodically trying to fill in the hole was not a negligent repair that caused the dangerous condition when the hole reappeared and landowner had no duty to mow the grass around the hole. Xiao Jin v City of New York    

Premises Liab   Wet Floor   Create Condition   Notice   Last Inspection  

Second Department
Defendants failed to meet burden for summary judgment dismissing claim for slip and fall on water tracked into building lobby where their supervisor testified to general cleaning/inspection practices, not the last time the lobby was cleaned/inspected, leaving questions of whether they had constructive notice of the condition. Yarmak v LSS Leasing Corp.    

MVA   Rear End   Turning Vehicle  

Second Department
Plaintiff granted summary judgment on his affidavit that defendants’ vehicle rear ended his vehicle as plaintiff was making a left hand turn and defendants’ vehicle was attempting to make a left turn from the lane to the left of plaintiff but instead went straight and struck plaintiff’s vehicle. Flores v Decker    

MVA   Bus   There to be Seen   Emergency Doctrine   Causation  

Second Department
MTA Bus Co. failed to meet burden for summary judgment dismissing claim of bus passenger injured when bus made a sudden stop as co-defendant’s vehicle made a right turn in front of the bus as bus was pulling out from a bus stop where questions of fact remained on whether the bus driver had sufficient time to avoid the accident and was negligent and a cause of the accident. Greene v MTA Bus Co.    

(2 summaries)

Premises Liab   Create Condition   Notice   Dangerous Condition   Feigned Issue  

Second Department
Defendants’ motion for summary judgment dismissing plaintiffs’ claim for trip and fall on mat inside store granted on injured-plaintiff’s testimony showing the mat was not hazardous and defendants did not create or have notice of a hazardous condition. Plaintiff’s affidavit raised only feigned issues where it contradicted his testimony. The Court does not give the details of the proofs. Meade v Hampton Diaries, Inc.    

Serious Injury  

Second Department
Plaintiffs met burden for summary judgment on issue of serious injury but defendants raised an issue in opposition. The Court does not give the details of the proofs. Tuba v Hersch    

About Matt McMahon

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