September 3, 2019 | Vol. 174

(4 summaries)

Premises Liab   3rd Party Contractor   Espinal   Create Condition   Notice   Intervening Cause   Emergency Doctrine  

Second Department
Estates of teenagers who died of asphyxiation after one fell in cesspool and other jumped in to save him raised questions of fact in opposition to homeowner’s proof that he did not create a dangerous condition or have notice of one by expert’s opinion that cover was improperly replaced when serviced the day before, leaving soil between concrete cover and cesspool, allowing teenager to slip his fingers under cover and lift it, and in opposition to the cesspool servicer’s proof that it was a 3rd party contractor without duty outside of its contract on plaintiffs’ proof that servicer launched an instrumentality of harm under Espinal. Teenager’s attempt to rescue friend was not intervening cause because ‘[d]anger invites rescue.’ Calderon v Cruzate

Med Mal   Motion to Dismiss   Capacity to Sue  

Second Department
Plaintiff’s unopposed motion to be appointed guardian of her husband who remained in a coma after a colonoscopy granted and defendants’ motion to dismiss for lack of capacity to sue denied where suit was commenced in wife’s name as “proposed guardian” of husband. While better practice would have been to bring suit in name of husband and then move for appointment of guardian, an incapacitated person can sue or be sued and a guardian appointed at any time during the suit. Linghua Li v Xiao

Med Mal   Estate   Capacity to Sue   CPLR §205(a)   Raised For First Time  

First Department
“Voluntary administrator” of estate does not have capacity to enforce action for personal injury or wrongful death, but issuance of letters of administration on last day of 6-month savings clause under CPLR 205(a) required denial of motion to dismiss second action. Lower court’s calculation of 6-month period using wrong date of dismissal, raised for the first time on appeal, considered as it raised a legal issue on the face of the record and could not be avoided if raised below. Rodriguez v River Val. Care Ctr., Inc.

Labor Law §240   Falling Object   Labor Law §241   Industrial Code   Labor Law §200   Create Condition   Notice   Bifurcation   Amend Answer   Prejudice  

Second Department
Labor Law §240(1) claims of 3-plaintiffs injured when temporary fence blew over and struck them dismissed as recovery for falling objects under §240 requires showing that object “either was being hoisted or secured, or required securing for the purposes of the undertaking.” Labor Law §241(6) claim of 1-plaintiff predicated on industrial codes §23-1.7(b)(1)(hazardous openings) and §23-4.2(h)(open excavation) dismissed as open excavation was protected by railing and plaintiff did not fall into opening. NYC’s motion for summary judgment on Labor Law §200 claims denied where it failed to show it did not create the dangerous condition or have notice of it.

Employer, 3rd Party Defendant, granted summary judgment on contractual indemnity claims where contract only required it to indemnify for its own negligence and it proved it was not negligent relative to the temporary fence. Gurewitz v City of New York

Comment: In a separate decision, plaintiffs’ motion to bifurcate trial with separate damage trials before joint liability trial denied as plaintiffs failed to show it “would assist in clarification or simplification of the issues or a more expeditious resolution of the action.” NYC’s motion to amend Answer to cross claim against GC denied where GC showed prejudice by foregoing discovery and refraining from questions at depositions based on fact NYC did not cross claim. Gurewitz v City of New York.
(7 summaries)

Late Notice of Claim   Reasonable Excuse   Actual Knowledge   Prejudice  

Second Department
Petitioner failed to show reasonable excuse for late Notice of Claim served 25-days after 90-day period based on claim she didn’t realize her shoulder injury was serious until surgery after 90-day period where medical records showed she consulted doctor about inability to use shoulder before 90-day period. FDNY EMS report showing they asked NYPD to remove petitioner from ambulance as they worked on her friend and that she was treated for shoulder injury from possible fall did not give actual knowledge of possible wrongdoing of police officer who petitioner claimed threw her to the ground. Matter of Galicia v City of New York

Late Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice  

Second Department
Petition to serve late Notice of Claim against NYC denied where injury and sick leave reports were served on BOE, a distinct entity, and did not give facts showing that petitioner fell due to negligence of NYC. Late discovery that NYC was responsible for paving and maintaining roadway was not reasonable excuse, but lack of due diligence in investigation, and transitory nature of alleged defect prejudiced NYC’s ability to investigate. Matter of Miskin v City of New York

Premises Liab   Assumption of Risk   Raised For First Time  

Second Department
University granted summary judgment on primary assumption of risk where injured plaintiff jumped for a frisbee and hit an exposed crossbeam during a swim team ultimate frisbee game. Plaintiff’s claim that assumption of risk did not apply because of the “inherent compulsion doctrine” not considered as raised for the first time on appeal. Maida v St. Bonaventure Univ.

Med Mal   90 Day Notice   CPLR § 3126   Willful/Contumacious   Sanctions  

Second Department
Absent service of 90-day notice by party or court, court was without authority to dismiss under CPLR §3216. Dismissal under §3126 for plaintiff’s failure to limit extensive list of witnesses to be deposed, contrary to court orders, not warranted where it was not willful/contumacious. Remanded to lower court with suggestion that plaintiff be precluded from further discovery. Rezk v New York Presbyt. Hospital/N.Y. Weill Cornell Ctr.

Discovery   Strike Answer   CPLR § 3126   Sanctions   Willful/Contumacious  

Second Department
Plaintiff’s motion to strike defendant’s Answer to extent of precluding it from producing any evidence at trial granted where repeated refusal to produce representative for deposition over a long period of time without explanation showed conduct was willful/contumacious. Giraldo v Highmark Ind., LLC

Premises Liab   Slip/Trip   Sidewalk   § 7-210   Duty   Create Condition   Renew  

Second Department
Appellate Division’s prior decision reversing grant of summary judgment for restaurant on issue of trivial defect did not preclude lower court from granting reargument or renewal on issues not addressed by lower court or Appellate Division in prior decisions. Restaurant granted summary judgment where, as tenant, it owed not duty to maintain sidewalk under Administrate code §7-210, did not make special use of sidewalk, and was not required to maintain sidewalk under lease. Padarat v New York City Tr. Auth.

Premises Liab   Slip/Trip   Sidewalk   Prior Written Notice  

Second Department
Town failed to meet burden for summary judgment where affidavit and testimony submitted showed they searched Dept. of Public Works records but did not show that they searched Town Clerk’s records, both of whom were authorized to receive notice. Ortiz v Town of Islip

(1 summaries)

Attorney Fees  

Second Department
Where former attorney, substituted 11-weeks after suit commenced, elected to receive portion of contingency fee instead of hourly rate, award of $1,500.00 fee on $50,000.00 settlement 2-years later was provident given relative time, effort, skill, and effectiveness. Former attorney requested 40% of fee. Pyong Woo Ye v Pasha

About Matt McMahon

Civil trials and appeals since 1984
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