September 29, 2020 | Vol. 229

(6 summaries)

MVA   Rear End   Uncertified Records   Police   Hearsay   Admissibility  

Second Department

Second Department clarified that a party admission in an uncertified police report cannot be used as affirmative proof on a motion for summary judgment as it fails the initial business record hearsay exception, expressly holding that prior case law finding it admissible against that party no longer applicable. The Court did not address if it can still be used in opposition where it is not the only evidence. Plaintiff’s affidavit stating his vehicle was rear-ended while stopped made out prima facie entitlement to summary judgment but defendant driver’s affidavit that plaintiff was double parked and moved forward when the driver tried to pass him raised an issue in opposition. The court did not consider whether the affidavit contradicted driver’s statement in police report since it was inadmissible. Yassin v Blackman

MVA   Pedestrian   Turning Vehicle   Comparative Fault   Respondeat Superior   Collateral Estoppel   Admissibility   Reargument   Renew  

Second Department

Plaintiff’s motion for summary judgment declaring Uber driver was employee of Uber based on NYS unemployment decision finding certain claimants to be Uber employees denied as Labor Law §623(2) expressly states appeal board decisions cannot be given collaterally estoppel effect. Uber failed to establish admissibility of its driver’s English-affidavit where a prior affidavit had to be translated for him into Bengali. That affidavit and a similar affidavit by an Uber executive stating the driver logged off the Uber app 40-minutes before accident did not by itself meet burden of showing driver was not acting within scope of his employment.

Appeal from denial of motion to reargue denied as no appeal lies from denial of a motion to reargue. Uber’s motion to renew denied where it did not submit new facts that would have changed the determination. Uy v Hussein

Comment: Plaintiff granted summary judgment against drive on driver’s plea to a charge of criminally negligent assault for striking plaintiff-pedestrian while driver was making a left-turn. Plaintiff is no longer required to prove freedom from comparative fault. Uy v Hussein.

Coverage   Untimely   Sanctions  

Second Department

Primary carrier’s motion for summary judgment and sanctions for frivolous action denied where excess carrier’s reservation of rights against primary carrier for bad faith in not notifying excess carrier of claim or that tender of primary policy was rejected until 6-weeks before trial preserved claim for amount excess carrier contributed to settlement and was not barred by voluntary payment doctrine. The voluntary payment doctrine does not apply to claims of bad faith with a reservation of rights as it would benefit the primary carrier’s own wrongdoing. Metropolitan Prop. & Cas. Ins. Co. v GEICO Gen. Ins. Co.

Med Mal   Motion to Dismiss   Pain/Suffering   Wrongful Death   Notice of Claim   Late Notice of Claim   Statute of Limitations   Estoppel   Prejudice   NYC  

Second Department

HHC granted summary judgment on grounds plaintiff did not serve a Notice of Claim on it and service of Notice of Claim on NYC is not service on HHC. Court was without power to grant cross-motion to serve late Notice of Claim, even if time of request was dated to opposition to HHC’s motion and not subsequent cross-motion, as 1-year-90 statute of limitations for pain/suffering from time of malpractice and 2-year statute of limitations after death had both expired. Plaintiff failed to show any misstatements by HHC that resulted in his delaying seeking leave to file a late Notice of Claim necessary for equitable estoppel. Watts v City of New York

Comment: NYC’s motion to dismiss claims for emergency treatment denied where plaintiff sufficiently pleaded the existence of a special relationship. Prehospital care report summaries and computerized automated dispatch report were not documentary evidence. Watts v City of New York.

Strike Answer   CPLR § 3126   Discovery   Willful/Contumacious  

Second Department

Third-party’s Answer stricken where client’s representative spoke with their attorney but willfully refused to go forward with depositions scheduled after 2-ordered stipulations, showing refusal was willful/contumacious despite attorney’s efforts to obtain client’s compliance through an investigator. Carmona v HUB Props. Trust

90 Day Notice   Note of Issue   Reasonable Excuse   Meritorious Action  

Second Department

Plaintiffs’ motion to vacate order dismissing 21-year-old action for failure to prosecute after they did not file a Note of Issue within 90-days of the 90-day notice, or within additional 90-days court granted in conditional order of dismissal. Plaintiff’s attorney’s unsubstantiated claim of law office failure did not provide a reasonable excuse and the court did not need to look at whether there was a meritorious action. Tarzia v Brookhaven Natl. Lab.

(12 summaries)

Premises Liab   Notice   Foreseeability  

Second Department

Homeowners failed to meet burden of showing that “loose roof brace” in attic of home they bought 4-years before it shifted when HVAC mechanic grabbed it while doing routine maintenance on 2-AC units did not exist for sufficient time to discover and remedy it and that it was a latent defect that would not have been discovered by reasonable inspection. Defendants’ claim it was an extraordinary accident that could not be guarded against because the attic was a remote portion of the house rejected without proof that the presence of an HVAC mechanic who could use the roof brace in areas without flooring was not foreseeable. Vargas v Lamberti

Labor Law §241   Labor Law §200   Industrial Code   Comparative Fault  

Second Department

Subcontractor’s employee injured when part of tower crane he was constructing swung during hoisting and pinned him against pipe granted summary judgment on Labor Law §241(6) based on industrial code §23-8.1(f)(2)(i)(sudden movement of crane during hoisting) even though he was sole witness. Comparative fault does not preclude summary judgement under §241(6). Defendants granted summary judgment on §241(6) based on §23-8.1(f)(1)(iv)(examination prior to hoisting and §23-8.2(c)(3)(tag lines) based on plaintiff’s testimony load was properly inspected before hoisting and tag lines were used during the operation. Contractor granted summary judgment on Labor Law §200 on proof it only had general supervisory control of the job site and injuries arose from manner of plaintiff’s employer’s work. Wein v East Side 11th & 28th, LLC

Premises Liab   Slip/Trip   Wet Floor   Create Condition   Open/Obvious   Duty   Warnings   Foreseeability   Intervening Cause   Sole Cause  

Second Department

Without proof of what caused restaurant floor to be flooded with 1”-2” of water defendant failed to show it did not create the condition. Defendant’s claim it warned or did not have to warn plaintiff of open/obvious condition did not address duty to maintain property in reasonably safe condition. Plaintiff’s walking on flooded floor “was not so extraordinary, culpable, or unforeseeable as to supersede the defendant’s alleged negligence and constitute the sole proximate cause of the accident.” Valentin v New Docs, LLC

MVA   False Arrest   1983 Action   Notice of Claim   VTL §1104   Respondeat Superior   Foreseeability   Intervening Cause   NYC  

Second Department

Plaintiff’s failure to include claims of false arrest and excessive force in Notice of Claim required summary judgment dismissing those claims. Plaintiff’s 1983-action based solely on vicarious liability for police officers pursuit of vehicle plaintiff was a passenger in dismissed as a 1983-action cannot be based solely on vicarious liability. Claims of negligent operation of police vehicle dismissed as privileged under VTL §1104, officer’s action was not reckless, and it was not foreseeable that plaintiff would jump from the car at high speed. Lawhorn v City of New York

Labor Law §240   Falling Object   Gravity Risk   Safety Devices   Recalcitrant Worker   Sole Cause  

Second Department

Plaintiff’s cross motion for summary judgment on Labor Law §240(1) where portion of duct being removed during asbestos removal bent, struck scaffold, and caused plaintiff to fall, denied where plaintiff testified duct he was cutting was light enough to hold by hand raising questions of whether it required securing or posed an elevated related risk and that he was provided with a hoist he declined to use raising issues on recalcitrant worker and sole proximate cause. He failed to show the scaffold was inadequate for his work. Wiski v Verizon N.Y., Inc.

Med Mal   Accepted Practice   Causation   Expert Aff  

Second Department

Dentist denied summary judgment for missing diagnosis of rare bacterial infection based on conflicting expert affirmations on accepted practice and causation. Plaintiff’s expert’s affirmation sufficiently established his qualifications to render the opinions and any lack of skill or expertise goes to weight of the evidence to be judged by the trier of fact. Defendant’s expert failed to differentiate which opinions were to a reasonable degree of dental or maxillofacial surgery. Lesniak v Huang

MVA   Turning Vehicle   Bicycle   There to be Seen   Causation  

Second Department

Vehicle driver who could not recall where he was looking as he turned left into carwash, and did not see plaintiff-bicyclist before bicycle impacted rear driver side of car failed to make out prima facie case as question remained of whether driver was partially at fault. Carias v Grove

MVA   Pedestrian   MVIAC   Admission   Speculation   NYC  

Second Department

NYC granted summary judgment and plaintiff denied summary judgment where plaintiff admitted to police and in MVIAC claim that he could not describe vehicle that struck him as he crossed street in the crosswalk, and that he received $50,000 on the MVIAC claim. NYC submitted proof that it’s snowplow did not strike the plaintiff who provided no proof that the snowplow struck him other than mere speculation. Gomez v City of New York

False Arrest   Malicious Prosecution   1983 Action   Negligent Hiring   Emotional Harm   Probable Cause   NYC  

Second Department

NYC and detective granted summary judgment of false arrest, imprisonment, and malicious prosecution claims on proof identified citizens provided information accusing plaintiff of specific crimes and plaintiff failed to rebut presumption of probable cause from grand jury indictment. 1983-action dismissed where plaintiff could not show it was result of a policy, custom, or practice of the police department. Negligent hiring and intentional infliction of emotional harm claims dismissed as plaintiff didn’t plead facts showing negligent hiring or retention and there can be no claim for intentional infliction of emotional harm against a municipality. Rapuzzi v City of New York

MVA   Bicycle  

Second Department

Bicyclist granted summary judgment on his affidavit showing defendant opened car door into moving traffic when it was not safe to do so in violation of VTL §1214 and defendant failed to raise issue in opposition. Rincon v Renaud

Premises Liab   Slip/Trip   Sidewalk   § 7-210   Homeowner Exception   Create Condition  

Second Department

Abutting landowner where plaintiff tripped on sidewalk defect granted summary judgment on proof it was a 2-family owner occupied home used exclusively for residential purposes exempted from administrative code §7-210 and that they did not create the condition and it was not the result of their special use of the sidewalk. Osipova v London

Serious Injury   BP  

Second Department

Defendants failed to meet burden of proof on serious injury on 90/180-day category alleged in BP where plaintiff’s testimony failed to identify plaintiff’s usual pre-accident activities or compare them to post accident activities. Jong Cheol Yang v Grayline NY Tours

(1 summaries)

Premises Liab   Slip/Trip   Sidewalk   Unknown Cause  

Second Department

Taking plaintiff’s proofs in the light most favorable to her, she raised an issue of fact in opposition to defendants’ prima facie showing that she could not identify the cause of her fall on the sidewalk abutting defendants’ property. The court does not give the details of the proofs. Economos v Bloom

About Matt McMahon

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