Premises Liab Notice Foreseeability
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
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Labor Law §241 Labor Law §200 Industrial Code Comparative Fault
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
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Premises Liab Slip/Trip Wet Floor Create Condition Open/Obvious Duty Warnings Foreseeability Intervening Cause Sole Cause
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
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MVA False Arrest 1983 Action Notice of Claim VTL §1104 Respondeat Superior Foreseeability Intervening Cause NYC
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
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Labor Law §240 Falling Object Gravity Risk Safety Devices Recalcitrant Worker Sole Cause
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.
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Med Mal Accepted Practice Causation Expert Aff
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
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MVA Turning Vehicle Bicycle There to be Seen Causation
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
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MVA Pedestrian MVIAC Admission Speculation NYC
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
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False Arrest Malicious Prosecution 1983 Action Negligent Hiring Emotional Harm Probable Cause NYC
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
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MVA Bicycle
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
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Premises Liab Slip/Trip Sidewalk § 7-210 Homeowner Exception Create Condition
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
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Serious Injury BP
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
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