Premises Liab Vacate Jud Motion to Dismiss Personal Juridiction Service CPLR §306-b Reasonable Excuse Meritorious Action
Lower court providently denied plaintiff’s motion for extension of time to serve defendants under interest of justice standard of CPLR §306-b as plaintiff failed to show due diligence in commencing the action, waiting 2-years after plaintiff’s decedent’s death to be appointed administrator, filing the action on the last day of the statute of limitations, and failing to show a meritorious action. Plaintiff did not rebut building owner’s showing it did not have notice of the Complaint for 7-months after the statute of limitations. Fink v Dollar Mart
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MVA Late Notice of Claim Actual Knowledge Reasonable Excuse Prejudice
Police officer injured when her patrol vehicle with lights and sirens on was struck in intersection by a sheriff’s vehicle that failed to yield the right-of-way granted leave to serve late Notice of Claim. While police report does not normally provide actual knowledge, where the municipal employee is involved in the accident and the report or investigation shows actual knowledge, leave to serve late Notice of Claim is appropriate. State trooper report indicated sheriff driver committed potentially actionable wrong by not yielding the right-of-way and that plaintiff was injured, county’s FOIL response included photographs taken at the scene, sheriffs’ reports and activity logs showed it had actual knowledge within 90-days and could not claim prejudice. Defendants failed to make a particularized showing of prejudice. The lack of a reasonable excuse was not sufficient to deny leave. Matter of McVea v County of Orange
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Labor Law §240 Ladder Safety Devices Sole Cause Comparative Fault Indemnity
Plaintiff denied summary judgment on Labor Law §240(1) where permanently affixed ladder vibrated, but did not shift or sway, causing him to fall which created question of fact on whether the ladder adequately protected him. Plaintiff’s work to correct loose cables striking and causing damage to other cables, which lasted several weeks, was repair entitled to §240 protection, not routine maintenance. Defendants did not show plaintiff knew he was required to wear a harness while climbing ladder or that he ignored specific instructions to do so on their claim of sole cause and, in any event, failure to wear a harness is at best comparative fault not a defense to §240. Two defendants who plaintiff did not contest were not owners or statutory agents granted summary judgment.
Building owner’s contractual indemnity claim against elevator company dismissed on proof elevator company completed work which passed building department inspection before accident, had not received any complaints, and there was no proof cause of the accident existed at time of elevator company’s work. Kehoe v 61 Broadway Owner LLC
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Med Mal Accepted Practice Causation Expert Aff
By 7/2 Court agreed that plaintiff’s expert raised issues of fact in response to defendants’ showing of entitlement to summary judgment affirming First Department majority decision reported in Vol. 191. Two-dissents would have voted to reverse based on dissent in First Department. Barry v Lee
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MVA Vacate Default Service Reasonable Excuse Meritorious Action
Affidavit of son of deceased sole shareholder of 1-defendant corporation established address where service was attempted, listed with the Secretary of State, was no longer valid as the corporation ceased doing business after the father died 2-years before attempted service and, therefore, the corporation was not personally served and did not receive notice of the action in time to defend under CPLR §317. The affidavit also provided a potentially meritorious defense sufficient to vacate the default in answering. Leader v Steinway, Inc.
Comment: This is one of 3-decisions on this case reported in this volume, each involving a different defendant.
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False Arrest Motion to Dismiss Discovery CPLR § 3126 Reasonable Excuse Willful/Contumacious NYC
Defendants’ motions to dismiss under CPLR §3126 granted for plaintiff’s failure to comply with discovery, including responsive BPs and authorizations, and disobeying orders for the same, granted where plaintiff failed to provide a reasonable excuse for not complying with discovery. Ewa v City of New York
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Med Mal Motion to Dismiss Statute of Limitations
Action against doctor and hospice for misdiagnosis of leptomeningeal carcinomatosis disease dismissed as barred by statute of limitations where brought more than 2.5 years after patient discharged from hospice and plaintiff did not seek further treatment from them for this condition. Action against hospital timely when commenced at same time, presumably under continuous treatment doctrine. Badr v Blumberg
Comment: Amended complaint adding separate doctor timely where served 2-years and 9-months after misinterpretation of MRI as it related back to the same cause of action in the original complaint that was timely served. Defendant’s motion for summary judgment remanded for decision by the trial court even though appellate court had the authority to decide it.Badr v Blumberg.
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MVA Renew Reasonable Excuse Reargument
One-defendant’s motion to renew denied where new facts offered were available at time of original opposition and it failed to show reasonable justification for not including them. Defendant also failed to show new facts would have changed prior determination. No appeal lies from a denial of a motion to reargue. Leader v Steinway, Inc.
Comment: This is one of three decisions on this case reported in this volume, each involving a different defendant.
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Serious Injury ROM Expert Aff
Defendants failed to meet burden for summary judgment on serious injury as to 1-plaintiff where their expert found significant limitations in ROM. They met initial burden as to other plaintiff who raised an issue in opposition. The court does not give the details of the proofs. Pierre v Wagner
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