September 27, 2022 | Vol. 332

(2 summaries)

Burden of Proof   Pothole Law   Snow/Ice   Prior Written Notice   Create Condition   Espinal   Experts   Conclusory   Speculation   NYC  

Second Department
In a thorough review of burden of proof shifting once a defendant has made out prima facie entitlement to summary judgment, the Second Department clarified and overruled its prior precedents and held that once a municipality with a prior written notice requirement meets its burden of showing it did not receive prior written notice, the burden of raising an issue on one of the 2-exceptions shifts to the plaintiff even where plaintiff pleaded the exceptions.

NYC showed it did not receive prior written notice of the ice plaintiff slipped on while leaving a construction site but did not affirmatively prove it did not immediately create a dangerous condition by plowing snow into mounds and not applying salt/sand to the walkway. The lower court found NYC did not meet its burden without showing it did not create the condition but the Second Department found NYC met its burden, shifting the burden of proving the exception to plaintiff. Plaintiff’s expert’s opinion based on an inspection 2-years after the incident was conclusory and speculative, failing to raise an issue of whether NYC created the condition.

Defendant-contractors’ met their burden for summary judgment on proof plaintiff was not a party to their contracts, shifting the burden of showing an Espinal exception to plaintiff and plaintiff failed to raise an issue on any of the Espinal exceptions. Smith v City of New York    

Comment: This case sets a broad rule for the shifting of burden of proof on summary judgment motions that will likely not be limited to instances of prior written notice and Espinal exceptions.

Malpractice   Amend Complaint   Wrongful Death   Estate   Reasonable Excuse   Prejudice   Meritorious Action   Statute of Limitations  

Second Department
Motion to lift stay from death of plaintiff, substitute executor, and amend Complaint to include wrongful death claim denied as 3-year delay in seeking letters testamentary was unreasonable under CPLR §1021, affirmation of counsel without personal knowledge, proposed amended Complaint, and Certificate of Merit failed to show a meritorious wrongful death cause of action, and plaintiff failed to show lack of prejudice to defendants. Wrongful death claim was barred by 2-year statute of limitations under EPTL §5-4.1 which was not tolled during application for letters. Byner v Murray-Taylor    

(5 summaries)

CPLR § 3126  

Second Department
Lower court improvidently struck plaintiff’s Complaint where she provided trial authorizations 3-4 weeks after date set by the court but before trial, defense counsel did not provide good faith affirmation and in fact did not make any good faith efforts to resolve the matter before motion practice, and plaintiff’s failure to provide the authorization by the due date was not willful/contumacious for such a short delay. Steele v Samaritan Found., Inc.    

Premises Liab   Vacate Default   Compel Acceptance   Reasonable Excuse   Prejudice   Meritorious Defense   Service  

Second Department
Lower court improvidently granted building owner’s motion to vacate default in answering, compelling plaintiff to accept her Answer under CPLR §§ 5015(a)(1) and 317 as even if her excuse that the Summons and Complaint affixed to her door while she was on vacation was not there when she returned, she failed to explain how she did not receive the original and a follow up mailing of the papers. A conclusory statement of non-receipt is insufficient. There was 1-dissent. Gray v Goodluck-Hedge    

Malpractice   Accepted Practice   Causation   Experts   Conclusory   Speculation  

Second Department
Podiatrist and practice met burden for summary judgment on expert opinion she did not depart from accepted practice or cause the death by treating the 81-year old patient for a second degree burn with Silvadene cream and prophylactic Augmentin, referring him to a hospital wound clinic when the ulcer did not heal where they initially continued the same treatment until he developed a wound infection that required a partial foot amputation for gangrene and he died 3-months later of a heart attack. Plaintiff’s expert’s opinion that the podiatrist departed from accepted practice by not immediately referring decedent for emergency care given his significant comorbidities, that it was a third degree burn based on a photo taken by a family member, and that the stress of the amputation caused his heart attack 3-months later did not raise an issue as it was conclusory and speculative where the hospital continued the same treatment given by the podiatrist and the medical records did not show any causal connection between the amputation and the heart attack. There was 1-dissent. Templeton v Papathomas    

CPLR § 5003-a   Settlement   General Release   Compel Acceptance   Indemnity   Lien  

Second Department
AMC’s motion to vacate clerk’s judgment which included costs and interest under CPLR §5003-a and to compel plaintiff to accept its previously tendered check that did not include costs and interest denied as AMC’s release required indemnity for Medicare liens, which AMC paid directly, but did not make payment of the lien a condition precedent of the settlement payment. Levine v American Multi-Cinema, Inc.    

MVA   Turning Vehicle   Comparative Fault  

Second Department
Plaintiff’s motion for summary judgment on liability granted on his affidavit and certified police report showing defendants’ vehicle made a left-hand turn in front of plaintiff’s motorcycle when it was unsafe, establishing defendants failed to yield the right of way. Plaintiff denied summary judgment dismissing comparative fault where defendants raised issue on their driver’s affidavit that plaintiff’s motorcycle hit their vehicle’s rear bumper 2-3 seconds after defendants’ vehicle entered the turn with a green light and no vehicles in sight. Marangoudakis v Suniar    

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About Matt McMahon

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