September 5, 2017 | Vol. 70

MUST READS
(5 summaries)
NOTEWORTHY IF YOU MUST READ

MVA   Pedestrian   Set Aside Verdict   Pain/Suffering   Materially Deviates   Admissibility   Hearsay   Preclusion  

Second Deptartment

Jury verdict awarding $1 million/$2 million past/future pain and suffering and $350,000 future medical expenses modified only to the extent of reducing the future medical expenses to $17,800 consistent with the evidence. The lower court providently denied the defendant’s attempt to call the detective who found the surveillance video upon which the plaintiff and an eyewitness identified the defendant struck, as the offer of proof showed that the testimony only related to collateral matters. Shepherd v T.I.A. of N.Y., Inc.


Attorney Fees   Vacate Default   Reasonable Excuse   Prejudice   Meritorious Action  

Second Deptartment

Lower court improvidently exercised its discretion in denying former attorney firm’s motion to vacate order which denied its request for an extension to submit proof of the work performed, and deemed its claims for a charging lien pursuant to Judiciary Law §475 abandoned. Former attorney had submitted proof of its work on the original motion but current attorney did not. Lower court set a deadline for both firms to submit proof of the work they performed and both firms failed to submit by that deadline. The former attorney requested an extension of time by fax on behalf of both firms stating that it had only recently received a copy of the order containing the deadline and moved to vacate the order when that request was denied claiming that it missed the deadline because of an associate that recently left the firm (law office failure). The Appellate Division found that there was no prejudice as the current firm also did not submit its proofs and would receive the entire fee despite not having submitted proof of its work, that the delay was minimal, and that the former attorney showed a meritorious action. Young Su Hwangbo v Nitro


Med Mal   Untimely   Reasonable Excuse   Statute of Limitations   Continuous Treatement   Informed Consent  

First

Lower court’s refusal to consider merits of defendants’ motions for summary judgment brought on by orders to show cause that were filed on or before the court’s deadline for summary judgment motions, but not signed until after the deadline, was an improvident exercise of discretion as a severe storm that prompted the governor to suspend all legal deadlines provided a good faith basis for the delay.

Defendants’ motions for summary judgment on statute limitations denied by the Appellate Division, with 1 dissent, where plaintiff’s testimony showed that she complained of headaches during her monthly visits to the doctor which a jury could find were related to her subsequently diagnosed meningioma. Informed consent claims dismissed, and not opposed by plaintiff, as a failure to diagnose cannot be the basis of informed consent claim without an invasive procedure. Lewis v Rutkovsky


Premises Liab   Building Security   Notice  

Second Deptartment

Building granted summary judgment on proof that there were no prior incidents of break-ins in the building. Building owners are required to provide “minimal security” against “reasonably predictable” criminal activity. Where there are no prior incidents, the duty to provide minimal security does not arise. Golub v Louis


Vacate Jud   Vacate Default   Reasonable Excuse   Meritorious Action  

Second Deptartment

Plaintiff’s motion to vacate judgment from unopposed motion for summary judgment, where plaintiff requested and was granted an initial adjournment but second request for adjournment was rejected, denied for failure to show a reasonable excuse for the failure to oppose the motion and a meritorious action. Plaintiff’s expert’s affidavit gave conclusory statements as to the causes of delay in providing an affidavit necessary to oppose the motion. Jin Chengri v Su Yonh Choi

NOTEWORTHY
(11 summaries)
MUST READS IF YOU MUST READ

CPLR §306-b   Service   Statute of Limitations   Meritorious Action   Prejudice  

Second Deptartment

Lower court’s denial of plaintiff’s motion to extend time to serve Summons and Complaint where original timely service was deemed improper was improvident exercise of discretion as defendant had notice of the claim within 120 days, plaintiff showed a meritorious action, and there was no prejudice to the defendant from the delay even though the statute of limitations had expired before plaintiff moved to extend the time to serve. Singh v Trahan


Dental Mal   Strike Note of Issue  

Second Deptartment

Plaintiff’s motion to strike her Note of Issue where accompanying Certificate of Readiness stated that discovery was not completed, that there were outstanding discovery requests, and that the case was not ready for trial granted as the Certificate of Readiness failed to comply with 22 NYCRR 202.21[b], [e] and the motion was made within 20 days of filing the Note of Issue. Slovney v Nasso


Attorney Fees  

Second Deptartment

Grant of former attorney firm’s motion to confirm referee report finding it was entitled to 35% of contingency fee modified to deny the motion and grant former attorney firm 15% of fee where settling attorney had conducted discovery, prepared for trial, and obtained a liability verdict before the action was settled for $145,000 at the beginning of the damages trial. Galante v Reid


Discovery   Note of Issue   CPLR §3124  

Second Deptartment

Plaintiff’s motion to compel discovery first requested 4 months after Note of Issue was filed denied where plaintiff failed to show “unusual or unanticipated circumstances” arising after the Note of Issue was filed. Macaluso v Glengariff Corp.


MVA   Rear End   Nonnegligent Explanation   Serious Injury   ROM   Expert Aff  

Second Deptartment

Plaintiff and defendant owner/driver of vehicle in which plaintiff was a passenger when it was struck in the rear by defendant UPS denied summary judgment were depositions submitted on plaintiff’s motion, including deposition testimony of UPS driver that codefendant driver changed lanes right before impact and there wasn’t time to avoid the accident, failed to make out a prima facie entitlement to summary judgment. Changing lanes shortly before impact, even where car is stopped at the time it is rear-ended, provides a nonnegligent explanation. UPS’ cross motion on serious injury denied where it’s examining neurologist found limited ROM. Greenidge v United Parcel Serv., Inc.


Premises Liab   Sidewalk   Slip/Trip   Snow/Ice   Prior Written Notice   Create Condition  

Second Deptartment

Town granted summary judgment on proof that it had not received prior written notice of the ice condition on which plaintiff fell and plaintiff failed to show that the town actively created the condition. Failure to remove snow/ice is passive and does not meet the test set forth in San Marco v Village/Town of Mount Cisco of creating the condition. Morreale v Town of Smithtown


Premises Liab   Lead Poisoning   Notice  

Second Deptartment

Local Law Number One of the City of New York, in effect at the time that the infant plaintiff was exposed to lead, provided that a landlord has constructive notice of a hazardous lead condition when it has actual notice that a child 6 or under resides in the apartment. Landlord’s papers showed that it had actual notice that a child 6 or under lived in the apartment and it therefore it failed to meet its initial burden of entitlement to summary judgment. Matute v New York City Hous. Auth.


MVA   Causation  

Second Deptartment

Defendants, driver/owner of vehicle struck by codefendants’ vehicle that entered intersection against stop sign, failed to meet their initial burden for summary judgment by eliminating questions regarding whether movant was partially at fault for causing the accident when her car veered to the right after impact, mounted the sidewalk, and struck the plaintiff on the sidewalk. Cole v Gotham Chem. Corp.


MVA   Bicycle   Causation   Question of Fact  

Second Deptartment

Summary judgment for truck that was reversing into and blocking bicycle lane causing plaintiff to go around truck and strike codefendant vehicle denied where there were differing accounts of accident in deposition testimony submitted by movant raising questions of fact. Searless v Karczewski


MVA   Rear End   Premature Motion  

Second Deptartment

Defendant, owner and operator of vehicle that struck codefendant’s vehicle in which plaintiff was a passenger, denied summary judgment before any depositions were conducted as premature since affidavits of moving defendant and codefendant gave differing accounts of the accident. ‘A party should be afforded a reasonable opportunity to conduct discovery prior to the determination of a motion for summary judgment.’ Bernstein v New York City Tr. Auth.


Asbestos   General Release  

First

Under FELA and Admiralty law, the defendant supplier of asbestos related products contained in ships on which the plaintiff’s decedent worked for 37 years had the burden of showing that the previous release complied with the Jones Act and FELA which prohibits boilerplate releases in favor of requiring a showing that the releasor was aware of the specific risks being released. The $1750 payment for a previous release at a time when plaintiff’s decedent was not diagnosed with mesothelioma or any specific cancer was deemed to violate the Jones Act and FELA. There was 1 dissent. Matter of New York City Asbestos Litig.

Comment: While this is a significant decisionm it is limited to FELA and Admiralty cases.

IF YOU MUST READ
(2 summaries)
MUST READS NOTEWORTHY

Serious Injury   Expert Aff  

Second Deptartment

Defendants made a prima facie showing that plaintiff’s cervical and shoulder injuries did not meet the serious injury threshold but plaintiff raised triable issue of fact in opposition. The court does not give the details of the proofs. Baulete v L&N Car Serv., Inc.


Serious Injury   Expert Aff  

Second Deptartment

Defendants met their burden for summary judgment based on competent medical evidence but plaintiff raised triable issues of fact on whether his spine injuries met the threshold for serious injury. The court does not give the details of the proofs. Mateo v Vazquez

About Matt McMahon

Civil trials and appeals since 1984

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