September 6, 2016 | Vol. 18

(3 summaries)

Comparative Fault   Burden of Proof   Summary Jud  


The First Department lays out a clear answer to the question of whether a plaintiff seeking summary judgment must prove that he/she was free from comparative fault. Analyzing the long history of cases in both the First and Second Departments, the court sets a clear precedent that freedom from comparative fault is part of the plaintiff’s burden of proof on a motion for summary judgment, at least where defendant raises factual issues regarding comparative fault. There was one dissent. Rodriguez v City of New York

Labor Law §240   Labor Law §241   Labor Law §200   Contractor Liab   Control   Notice  

Court of Appeals

Upon granting leave to appeal to the Court of Appeals, the Court affirmed the Second Department’s affirmance of the lower court’s grant of summary judgment for defendants who were not owners, general contractors, agents of the owners, or general contractors with authority to supervise and control the work of the injured plaintiff under §§240 & 241, and claims under §200 where the defendants did not create or have notice of the condition, or authority to supervise or control the methods or material of the plaintiff’s work. Joseph Bennett v. Michael Hucke Alan Kirk

Civil Rights Law §51  


Karen Gravano, daughter of Sammy ‘the bull’ Gravano, and Lindsay Lohan both brought actions for violation of Civil Rights Law §51 alleging that their image, likeness, and story, were used in the popular videogame “Grand Theft Auto V.” The lower court’s denial of the defendant’s motion to dismiss and for sanctions was modified to grant part of the motion to dismiss because the defendants did not use the plaintiffs’ “name, portrait, or picture,” and a videogame does not fall within the definition of advertising or trade required under Civil Rights Law §51. Gravano v Take-Two Interactive Software, Inc.

(6 summaries)

Attorney Fees   Res Judicata   Med Mal  

Second Deptartment

Disbarred attorney was barred from seeking attorney fees and disbursements from subsequent counsel in medical malpractice action because he had previously been found not to be entitled to the same for failure to comply with the requirements of signing and filing a retainer statement under 22 NYCRR §691.20(a)(1). Matter of Grossbarth v Danker, Milstein & Ruffo, P.C.

Premises Liab   Snow/Ice   Out of Possession  

Second Deptartment

Lower court’s denial of summary judgment to out of possession owner reversed on showing that owner had no duty under statute or regulation, the terms of the lease, or a course of conduct. A landlord’s reservation of right to enter for inspection/repairs does not create a duty to make repairs. Plaintiff failed to raise a question of fact in opposition. Keum Ok Han v Kemp, Pin & Ski, LLC

Espinal   Burden of Proof  


In a property damage case, the lower court’s denial of defendant, management company’s motion for summary judgment was upheld finding that there were questions of fact whether the management company ‘launched a force or instrument of harm’ under Espinal by the plumbers it sent to repair a minor leak on several occasions culminating in a flood of water into the plaintiff’s apartment. The dissent argued that the burden of proof for showing an exception to Espinal lies with the defendant when the exception is pled by the plaintiff and that the management company, which merely hired independent plumbers, did not itself launch a force or instrument of harm. Karydas v Ferrara-Ruurds

Premises Liab   Coverage   Declaratory Jud   Res Judicata  

Second Deptartment

After the lower court had granted declaratory judgment in favor of the insurer against plaintiff’s claim that carrier was required to defend and indemnify the defendant, which was affirmed on appeal, the plaintiff commenced a subsequent action seeking a declaration that the carrier was obligated to satisfy the judgment in the personal injury action. The court found that the issues raised in the subsequent action, based on specific insurance forms in the policy, could have been raised in the original declaratory judgment action and, therefore, were barred by res judicata. Lyons v Lancer Ins. Co.

Slip/Trip   NYC   Set Aside Verdict  

Second Deptartment

Denial of motion to set aside verdict as against the weight of the evidence was upheld. Whether a verdict should be set aside requires a ‘discretionary balancing of many factors.’ Jury’s finding that defendant did not create hazardous condition that caused the infant plaintiff to fall was supported by fair interpretation of the evidence. Mardakhayev v City of New York

Premises Liab   Slip/Trip   Unknown Cause  

Second Deptartment

The lower court’s denial of defendant’s motion for summary judgment was reversed upon plaintiff’s deposition testimony showing that she was unable to identify the cause of her fall on Lord & Taylor’s marble floor. Scimone v LT Propco, LLC

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About Matt McMahon

Civil trials and appeals since 1984
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