| MUST READS (4 summaries) | |||
| NOTEWORTHY | IF YOU MUST READ | ||
 Pharmacy’s motion to dismiss claim it negligently filled opiate prescriptions where Complaint did not allege it exercised independent professional judgment or that it did not fill the prescriptions as prescribed denied where the facts sufficiently alleged “the prescriptions were so clearly contraindicated that ordinary prudence required the pharmacy to take additional measures before dispensing the medication.” Bistrian v Gibson ✉ |
 In a thorough review of express and implies federal preemption, the First Department reversed denial of summary judgment to the manufacturer of cylinder and valve of a compressed gas tank that unexpectedly activated while plaintiff was maintaining it, finding plaintiff’s claims for negligence, design defect, and inadequate warning were expressly preempted by the clear language of the Hazardous Materials Transportation Act which expressly and broadly defined the preemption. Preemption defense not waived by failing to raise it before Note of Issue as it can be raised at any time. Malerba v New York City Tr. Auth. ✉ |
| Trial court providently denied plaintiff’s request for initial verdict sheet used by the jury after they were given a new verdict sheet at their request to make corrections, , which the parties agreed should be destroyed without being looked at when replaced, as absent ‘good cause, jurors should be protected against posttrial efforts to browse among their thoughts in an effort to invalidate their verdict’ and plaintiff failed to show good cause. Motion to set aside verdict as against weight of evidence denied where finding that snow piled in a crosswalk and along sidewalk was unusually dangerous but the county’s snow plowing did not negligently create the condition was supported by a fair interpretation of the evidence. Motion to set aside verdict in the interest of justice denied where plaintiff did not object to the jury charge or verdict sheet at trial. Madigan v Putnam County ✉ |
| Town’s motion to dismiss 2-separate claims for falls down a gang blank due to a defect or slippery condition at different times on the same date granted where the nearly identical Notices of Claim did not sufficiently describe the location or cause of the falls as “[c]laims of roadway, sidewalk, or similar defects must be set forth with great specificity because of their transitory nature.” 50H testimony did not correct the deficiency because the town was deprived of a prompt and meaningful investigation of the transitory condition. Behrens v Town of Huntington ✉ |
| NOTEWORTHY (17 summaries) | |||
| MUST READS | IF YOU MUST READ | ||
| Petition for leave to serve late Notice of Claim on NYCHHC for malpractice during mother’s and infant’s treatment, brought 3.5 years after the infant was diagnosed with cerebral palsy and encephalomacia denied. Hospital’s medical records which did not show their staff “inflicted an injury attributable to malpractice” did not give it actual knowledge of the essential facts, petitioner failed to meet initial burden of showing NYCHHC was not prejudiced by the delay, or provide a reasonable excuse for the delay. Matter of Aime v New York City Health & Hosps. Corp. ✉ |
| Plaintiff’s appeal from judgment entered on order granting rehab center summary judgment dismissed where plaintiff’s appeal from the order of dismissal was dismissed for failure to perfect and the issues could have been raised on the original appeal. The Court declined to award sanctions for frivolous conduct on the appeal. Osby v Spring Cr. Rehabilitation & Nursing Care Ctr. ✉ |
| Lower court erred in granting restaurant summary judgment on proof it did not create or have actual or constructive notice of slippery condition on floor that plaintiff slipped on without first considering plaintiff’s motion to strike their Answer or for an adverse inference at trial for spoliation where the surveillance video, which plaintiff showed was present, active, and pointed at the area where she fell, was automatically erased 72-hours later as spoliation sanctions would impact defendants’ ability to show entitlement to summary judgment. Case remanded for consideration of spoliation motions. Appeal from denial of reargument dismissed as no appeal lies from denial of a motion to reargue. Hudesman v Dawson Holding Co. ✉ |
| Defendants failed to show plaintiff’s untimely disclosure of a non-party witness affidavit was willful/contumacious on their motion to strike the Complaint or preclude the witness’ testimony where the affidavit was disclosed prior to Note of Issue. Edwards v Freedom Church of Revelation ✉ |
| Worker granted summary judgment against university under Labor Law §240(1) on proof he fell from an unsecured scaffold at an elevated height and against construction manager as it was an owner agent where it had ‘the ability to control the activity which brought about the injury.’ Defendants failed to show plaintiff was the sole proximate cause of his injuries as a recalcitrant worker and claim of comparative fault for working beyond work hours was not a $240 defense. Motion was not premature where filed after the Note of Issue and defendants failed to diligently pursue the EBT they claimed was necessary to oppose the motion. Ramirez v Pace Univ. ✉ |
| Homeowner failed to meet burden for summary judgment where plaintiff testified she fell off single riser from deck because she was blinded by the sun and reflections of several shinny surfaces on the property, leaving questions of fact on whether the condition was open/obvious and not inherently dangerous due to the surrounding circumstances. Plaintiff’s testimony she used the step before did not conclusively show a superseding cause which must be extraordinary and unforeseeable. Beier v Giglio ✉ |
| Abutting landowner and tenant granted summary judgment dismissing plaintiff’s claim for trip and fall on raised edge of metal plate on sidewalk on proof the plate was placed and owned by Con Ed who opened the sidewalk to run electrical cables and moving defendants did not create the condition, negligently maintain the sidewalk, or make special use of the metal plate. They had no duty to maintain the area around the plate under administrative code §2-710 as Con Ed was solely responsible for maintaining 12” around the plate under 34 RCNY §2-07(b). Samodurova v Consolidated Edison Co. of N.Y., Inc. ✉ |
| Plaintiff-driver that struck defendants’ vehicle which entered the intersection from a road controlled by a stop sign in order to make a left-hand turn showed that the defendant-driver failed to yield the right of way to plaintiff’s vehicle that was already in the intersection or so close as to make it an immediate hazard but failed to meet burden for summary judgment dismissing defendants’ counterclaim as questions remained on whether plaintiff-driver was also negligent for failing to take reasonable steps to avoid the accident where defendant-driver testified he was inching forward after stopping at the stop sign due to blocked visibility, plaintiff-passenger testified she saw the defendants’ vehicle several seconds before impact with enough time to warn the plaintiff-driver who testified he was looking straight with an unobstructed view but didn’t see defendants’ vehicle before impact. Roderick v Golden ✉ |
| Defendant who was stopped at a red light when struck by co-defendants’ vehicle after it struck another co-defendant’s vehicle with plaintiffs as passengers granted summary judgment as moving defendant’s certified but unsigned EBT was admissible where he acknowledgment its accuracy by submitting it on his motion and there were no objections to the unsigned but certified EBTs of the other parties. Lower court erred in finding moving defendant’s EBT inadmissible and that police report raised an issue of fact on his liability. Gironza v Macedonio ✉ |
| LIU failed to meet burden for summary judgment dismissing plaintiff’s claim for being knocked down when campus door abruptly closed on her without proof the door was not in a dangerous condition and that it did not have actual or constructive notice where it did not submit any inspection or maintenance logs to show when it was last inspected/maintained. Ogletree v Long Is. Univ. ✉ |
| Landlord granted summary judgment dismissing Labor Law §200 and negligence claim of tenant’s worker who was hit by a flying piece of lumber from a coworker’s table saw on proof it was an out of possession landowner with no duty to maintain the premises. Reserved right of reentry did not create a duty where the condition did not violate a specific statute and was not a significant structural or design defect. Labor Law §§ 240(1), 241(6) inapplicable where there was no construction, excavation, or demolition. Miranda v 1320 Entertainment, Inc. ✉ |
| Building owner granted summary judgment on proof it released all control of the operations of the hotel including the obligation to maintain the property in a reasonably safe condition to the hotel management company by its management agreement and course of conduct. Right to inspect and approve structural repairs did not create a duty to hotel’s employee who tripped on defective stair nosing since it did not have employees or a presence at the hotel. Wahid v HMC Times Sq. Hotel, L.P. ✉ |
| Municipality granted summary judgment dismissing infant-plaintiff’s claim for injuries when he fell through metal panels covering a water meter pit in a public park on proof it did not have actual or constructive notice as the defect was latent and undiscernible and it did not create the condition. K. B. v City of Mount Vernon ✉ |
| Co-plaintiff-driver granted summary judgment on liability and dismissal of comparative fault defense and counterclaim where he was stopped for traffic when defendant’s vehicle rear ended his vehicle. Defendant’s affidavit that he owned the vehicle that left the scene of the accident but was not driving it then was insufficient to overcome the VTL §388(1) presumption of permissive use. Co-plaintiff’s appeal from denial of summary judgment dismissed where brief was submitted only on behalf of co-plaintiff driver. Kashyap v Dasilva ✉ |
| Owner of vehicle that struck plaintiff’s vehicle failed to meet burden for summary judgment on claim the vehicle was stolen as ‘the uncontradicted testimony of a vehicle owner or a vehicle owner’s employee that a vehicle was operated without the owner’s permission does not, by itself, overcome’ the VTL §388(1) presumption of permissive use. Mater v Anniversary Corp. ✉ |
| Homeowner granted summary judgment dismissing claim for fall on snow/ice on plaintiff’s testimony and certified weather reports showing a storm in progress at the time. Homeowner was not required to prove any snow removal efforts during the storm where reasonable where nothing in the record showed such efforts were made. Polis v City of New York ✉ |
| Homeowner granted summary judgment dismissing claim for slip/fall where plaintiff left shoveled path to cross on snow covered back yard area that was not intended to be traversed as condition was open/obvious and not inherently dangerous. Kerr-Inniss v Williams ✉ |
| IF YOU MUST READ (0 summaries) | |||
| MUST READS | NOTEWORTHY | ||