September 4, 2018 | Vol. 122

(4 summaries)

Negligent Hiring   Negligent Supervision   Emotional Harm   Notice  

Second Deptartment

Employers are under no common-law duty to conduct specific investigation (criminal background) when hiring absent circumstances that would lead a reasonably prudent person to do so. Fencing club did not know or have reason to know of instructor’s propensity to have inappropriate sexual conduct with minor students before he was hired or during employment. Massages and sexual comments to the students were never reported to employer, most communication was by cell phone, and sexual contact was outside of club premises. Without notice of propensities claims of negligent hiring and supervision were dismissed and since instructor’s actions were not in furtherance of the employer’s business respondeat superior did not apply. Club did not breach any duty under theory of negligent infliction of emotional harm. KM v Fencers Club, Inc.

Negligent Supervision   Notice   Intervening Cause   Spoliation   Strike Answer  

Second Deptartment

School granted summary judgment on proof that student who assaulted infant-plaintiff had no prior violent history or history of altercations with the infant-plaintiff. Prior non-violent disciplinary history was insufficient. Negligent loss of video of incident, viewed by all parties before loss, did not require defendant’s Answer be stricken since plaintiffs could still prove their case without video. Francis v Mount Vernon Bd. of Educ.

Premises Liab   Slip/Trip   Snow/Ice   Storm in Progress   Espinal  

Second Deptartment

Property owner denied summary judgment on storm in progress despite meteorological data showing snow at JFK based on plaintiff’s testimony, included in defendant’s motion, that it had not snowed at property location. Snow removal contractor granted summary judgment on showing it owned no duty to plaintiff under contract and plaintiff had not pleaded any Espinal exceptions. Plaintiff’s conclusory statements that contractor launched an instrumentality of harm and entirely displaced the owner’s duty to maintain did not raise an issue of fact where contract only provided for snow removal. Laronga v Atlas-Suffolk Corp.

MVA   Turning Vehicle   Causation  

Second Deptartment

Defendant-driver on through road without stop sign failed to eliminate all questions of fact where he had unobstructed view of intersection but did not see plaintiff’s vehicle until 1 car length from intersection and could not say whether he took evasive action. Town failed to show that foliage obscuring stop sign was in County’s not Town’s right-of-way and that plaintiff who was lost and unfamiliar with area “had all the warning, all the notice of danger, that a stop sign would have afforded.” Plaintiff had limited memory of the accident. Rivera v Town of Wappinger

(8 summaries)

Labor Law §240   Labor Law §241   Labor Law §200   1-2 Family Exception   Agent   Control   Default Judgment   Indemnity  


Church granted summary judgment on Labor Law §§ 240(1) and 241(6) under 1-2 Family Dwelling exception where worker fell from detached rectory garage used for residential and church purposes. Claim that it was used by school teachers was unsupported. Labor Law §200 and negligence claims dismissed because defendants did not control means and methods of work and archdiocese was not owner’s agent with authority to control work. Defendants granted default judgment against contractor on contractual indemnity for attorney fees. Bautista v Archdiocese of N.Y.

Med Mal   Accepted Practice   Causation   Expert Aff   Conclusory  

Second Deptartment

Defendants denied summary judgment where expert’s affirmation recounted plaintiff’s treatment at emergency room, where his college athletic trainer sent him with a suspicion of compartment syndrome in his leg during basketball tryout, and gave only conclusory opinion that treatment did not depart from accepted practice, regardless of the sufficiency of plaintiff’s opposition. Kelly v Rosca

Premises Liab   Dangerous Condition   Open/Obvious   Inherently Dangerous  

Second Deptartment

Defendant failed to show that pillar of metal railing on top of exterior staircase with narrow opening to stairs was not inherently dangerous even though it was open/obvious. Summary judgment denied. Dudnik v 1055 Hylan Offs., LLC

Premises Liab   Sidewalk   Create Condition   Causation  

Second Deptartment

Cafe granted summary judgment on proof it did not create hole in brickwork of public sidewalk, did not create condition by special use including placing tables and chairs on cement portion of sidewalk, and did not violate a statute or ordinance imposing liability. Finocchiaro v Town of Islip

Premises Liab   Unknown Cause  

Second Deptartment

Four-year-old’s complaints that she fell and hurt her arm on inflatable slide at play facility, unwitnessed by her parents, dismissed as parents could not identify the cause of the accident. Harris v Live, Play & Bounce Corp.

Dogbite   Vicious Propensity   Prejudice   Admissibility   Raised For First Time  

Second Deptartment

Plaintiff’s neighbor’s affidavit stating that defendant twice warned him to “be careful near the dog because he bites” raised an issue in opposition to defendant’s proof that he had no knowledge of dog’s vicious propensities. Lack of certificate of conformity under CPLR 2309(c) did not render affidavit inadmissible as defect is not fatal and defendant was not prejudiced. Claim that affidavit should not be considered because neighbor was not noticed as a witness was not considered since it was raised for the first time on appeal. Lipinsky v Yarusso

Serious Injury  

Second Deptartment

Plaintiff failed to raise issue in opposition to defendant’s entitlement to summary judgment on serious injury where neither she nor her doctor offered a reasonable explanation for more than 1-year gap in treatment. Atken v Jackson

Vacate Default   Service  

Second Deptartment

Corporation’s motion to vacate default claiming it did not receive Summons and Complaint served on Secretary of State sent to correct address, with return receipt returned as “unclaimed,” denied. While non-receipt after non-personal service is a ground to vacate under CPLR 317, and service on Secretary of State is not personal service, a mere denial of receipt is insufficient. Corporation failed to explain how it did not receive the notice to claim the Summons & Complaint or the other letters sent to the same address. Stevens v Stepanski

(0 summaries)

About Matt McMahon

Civil trials and appeals since 1984
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