September 6, 2022 | Vol. 329

(3 summaries)

MVA   Amend Complaint   Prejudice   Court of Claims  

Second Department
State’s motion for summary judgment granted as both timely served Notice of Intention to Claim and Claim failed to allege any injuries, making claim defective under Court of Claims Act §11(b). Claimant’s motion to amend Claim to include injuries denied as it was a jurisdictional defect the court lacked power to correct even though defendant was not prejudiced in its ability to investigate. Correa v State of New York    

MVA   Set Aside Verdict   Pain/Suffering   Materially Deviates   Serious Injury   Untimely  

Second Department
Jury award of $5,000/$0 past/future pain/suffering and $10,000/$0 past/future medical expenses for passenger injured when vehicle he was in was struck by police vehicle set aside as against weight of evidence where jury found plaintiff sustained a permanent consequential limitation but awarded no future damages and amounts awarded materially deviated from reasonable compensation. New trial ordered unless plaintiff stipulated to increase of award to $80,000/$100,000 past/future pain/suffering and $40,000/$100,000 past/future medical expenses. Carter v City of New Rochelle    

Comment: Lower court denied plaintiff’s original motion to set aside verdict as inconsistent for plaintiff’s failure to raise the issue before the jury was discharged, and denied his motion to reargue finding the jury could award no future damages despite finding permanency based on plaintiff’s multiple preexisting medical condition. While a motion to set aside a verdict as inconsistent must be made before the jury is discharged, it can still be set aside as against the weight of the evidence where the jury could not reach its verdict on a fair interpretation of the evidence.

Premises Liab   Duty   Notice   Experts   Speculation  

Second Department
Abutting landowner and town met burden for summary judgment on proof there were no visible signs of decay observable from the ground that could give constructive notice that tree limb which fell on plaintiff’s vehicle presented a danger. Plaintiff’s expert’s opinion that there would have been visible damage on the top of the tree limb 12’ above ground failed to raise an issue as it would not have been readily visible from the ground, would have required a close inspection, and was speculative and not supported by the evidence where expert inspected the tree 2-years after the accident and it had been cut and painted over.

The duty for abutting landowners for branches outside of their property, and for municipalities for trees adjacent to roads only arises when there are signs of decay readily visible from the ground. A homeowner is not required to constantly check for nonvisible decay. Sasso v Village of Bronxville    

(9 summaries)

Vacate Default   Reasonable Excuse   Meritorious Action  

Second Department
Plaintiff-attorney’s conclusory and unsubstantiated affirmation stating its motion clerk incorrectly calendared defendants’ summary judgment return date as ‘on for the first time’ after 2-adjournments did not provide a reasonable excuse for failing to submit opposing papers on assumption the motion would be adjourned at the appearance. Without a reasonable excuse, the court did not need to look at meritorious action issue in denying motion to vacate default. Melamed v Adams & Co. Real Estate, LLC    

MVA   Serious Injury   Discovery  

Second Department
Defendant’s motion to compel plaintiff to provide authorizations for social media accounts for 3-years prior to the MVA accident to present providently granted as the social media postings were “reasonably likely to yield relevant evidence regarding her alleged injuries and loss of enjoyment of life.” Defendants were not required to show such accounts existed. Gentile v Ogden    

MVA   Bicycle   There to be Seen   Experts   Survelliance Video  

First Department
Bicyclist granted summary judgment dismissing claim of pedestrian he hit when she suddenly stepped off curb at intersection on proof he was riding 14 mph in 25 mph bicycle lane with green light, had only 2-seconds to react, applied his brakes to try and stop, his expert’s opinion it was reasonable not to try and swerve because of dangers on both sides of bike lane, the average speed for bicyclists going through the intersection was 7.6-22 mph based on his expert’s site inspection, and surveillance video refuted plaintiff’s claim she looked both ways before stepping off curb. Plaintiff’s expert’s opinion that 14 mph was unreasonable based solely on calculation it was 4-6 mph faster than 2-other bicyclists in the surveillance video without a site inspection was conclusory and speculative. Two dissenters would have found a question of fact. Min Zhong v Matranga    

Premises Liab   Dangerous Condition   Building Code   Experts   Speculation   Premature Motion  

Second Department
Movie theater granted summary judgment dismissing claim for 15-year-old’s injuries where he was improperly riding escalator by sitting on one rail with his feet on the opposite rail, leaning against the wall that eventually ended causing him to fall on proof the escalator was not a dangerous condition because it violated no applicable statutes or regulations and plaintiff failed to raise an issue on his expert’s expert speculative affidavit. Mere hope or speculation that discovery will uncover something is not grounds to deny motion as premature. Boris L. v AMC Entertainment Holdings, Inc.    

MVA   Rear End   Comparative Fault   Nonnegligent Explanation   Premature Motion  

Second Department
Plaintiff granted summary judgment on liability and dismissal of comparative fault defense on his affidavit that he was slowing in traffic when suddenly rear-ended by defendant’s vehicle. Defendant’s claim plaintiff stopped short, in and of itself, was insufficient to raise a nonnegligent explanation as a driver must maintain a safe distance from other vehicles and anticipate having to stop in traffic. Defendant’s claim motion was premature rejected without proof discovery might lead to essential facts or facts necessary to oppose the motion that were exclusively within plaintiff’s possession and mere speculation was insufficient. Mahmud v Feng Ouyang    

MVA   Bus   Rear End   Emergency Doctrine   Survelliance Video  

Second Department
Defendants granted summary judgment where bus’s surveillance video conclusively established plaintiff-driver suddenly cut in front of bus and abruptly stopped while light at the next intersection was green, contradicting plaintiffs’ 50h testimony they were stopped at a red light for 10-15 seconds before being rear ended by the bus. Bus driver was faced with unexpected emergency with insufficient time to stop. Pappas v New York City Tr. Auth.    

MVA   Rear End   Nonnegligent Explanation  

Second Department
Second vehicle in 3-vehicle accident granted summary judgment on parties’ EBTs providing nonnegligent explanation that he was safely stopped behind lead vehicle at a red light when third vehicle rear ended his vehicle and pushed it into the lead vehicle. Polonia v Frasca    

MVA   Turning Vehicle   Comparative Fault   Nonnegligent Explanation   Speculation   Raised For First Time  

Second Department
Plaintiff granted summary judgment on proof defendant made left turn from street with stop sign and struck plaintiff’s driver’s side door as it entered intersection on street with no stop sign, establishing negligence per se for violation of VTL §1142(a). Defendant’s claim plaintiff was speeding failed to raise a nonnegligent explanation where he testified he didn’t see plaintiff until impact and would go to comparative fault, not defendant’s liability. Premature motion issue not considered where raised for the first time on appeal. Orellana v Mendez    

MVA   There to be Seen   Sole Cause  

Second Department
Defendants denied summary judgment where EBT testimony of both drivers they submitted on motion had conflicting versions of accident, leaving questions of whether defendant-driver failed to see what was there to be seen while entering intersection and whether plaintiff was sole cause of accident by failing to stop at stop sign. Brunson v Korkovilas    

(0 summaries)

About Matt McMahon

Civil trials and appeals since 1984. Retired partner McMahon | McCarthy.
Bookmark the permalink.

Comments are closed.