September 25, 2018 | Vol. 125

MUST READS
(5 summaries)
NOTEWORTHY IF YOU MUST READ

Premises Liab   Stairs   Building Code   Notice   Unknown Cause   Causation  

First

Building denied summary judgment even though it complied with all building codes regarding handrail because National Fire Protection Association (NFPA) section advocating that handrails be over 42″ “was listed in the ‘Generally Accepted Standards Applicable to the State Building Construction Code’ in effect at the time of the hotel’s construction” and was some evidence of breach of common-law standard of negligence. Defendant failed to show that it did not have actual or constructive notice because it did not receive any violations where it was clearly aware that handrail was less than 42″ for a long period of time. Fact that plaintiff could not identify what caused him to fall did not require summary judgment since defective handrail was claimed proximate cause of injuries. Sussman v MK LCP Rye LLC

Comment: This is an important case demonstrating the difference between a building code violation and the common-law standard of care. The growing trend in both the First and Second Departments has been to grant summary judgment absent violation of a mandatory standard that has the force of law. This shows that written standards “listed” or referenced in building codes can be used as some evidence of negligence.


MVA   Question of Fact   Admissibility   Hearsay   Police  

Second Deptartment

Defendants who claimed that their truck was parked at time of accident failed to eliminate questions of fact where they submitted testimony of plaintiff and her husband, their employee, and police officer on their motion for summary judgment. Checkbox on police report assessing fault only against plaintiff, testified to by police officer who did not witness accident, was inadmissible hearsay where the source of the information was not identified, and it could not be determined if source was under a duty to make the statement. Ardanuy v RB Juice, LLC


Labor Law §241   Industrial Code   Renew  

Second Deptartment

Summary judgment for defendant on Labor Law §241(6) affirmed where Second Department found that First Department case holding that industrial code §23-1.5(c)(3) was sufficiently specific to warrant liability, contrary to Second Department’s precedent, did not provide a “change of law” in the Second Department warranting renewal. Opalinski v City of New York


Premises Liab   Sidewalk   § 7-210   Prior Written Notice   Create Condition   NYC  

Second Deptartment

Abutting landowner granted summary judgment because base of lamppost constructed by Con Ed did not fit within administrative code §7-210 definition of “sidewalk” and plaintiff failed to prove that landowner created condition or condition was caused by special use. NYC granted summary judgment where plaintiff failed to show prior written notice of defect or that it created the condition.

Con Ed’s motion for summary judgment denied where it included abutting landowner’s testimony with its motion showing that the lamppost base was installed by Con Ed. Con Ed’s evidence that search failed to show that they installed the lamppost base was insufficient to meet burden of proof given abutting landowners testimony. Madonia v City of New York


Premises Liab   Amend Complaint   Statute of Limitations   Alter Ego  

Second Deptartment

Plaintiff showed that defendant he sought to add by amended Complaint was united in interest where allegations involved the “same conduct, transaction, or occurrence as the claims asserted against” existing defendant and the 2 entities often blurred the distinction between them. Relation back theory applied to allow amended Complaint. Uddin v A.T.A. Constr. Corp.

Comment: In companion decision, the court addresses summary judgment motions for common-law and contractual indemnity. Uddin v A.T.A. Constr. Corp.

NOTEWORTHY
(8 summaries)
MUST READS IF YOU MUST READ

Negligent Supervision   Late Notice of Claim   Reasonable Excuse   Actual Knowledge   Prejudice  

Second Deptartment

Petition to serve late Notice of Claim for infant-plaintiff who claimed that she was injured during PE class denied where she failed to show that her injuries which healed within 90 days or her infancy hindered her ability to timely file a Notice of Claim. Incident report and email from PE teacher did not establish that school had actual knowledge of essential facts of negligent supervision claim, only that they were aware of her injury. Petitioner failed to meet initial burden of showing evidence or “a plausible argument” of lack of prejudice. Matter of Zelin v Blind Brook-Rye Union Free Sch. Dist.


Premises Liab   Sidewalk   Circumstantial Evidence   Speculation  

Second Deptartment

By submitting deposition of nonparty eyewitness who could identify location of the accident because she saw the plaintiff fall, although she could only see above the plaintiff’s waist, and could identify the spot on photographs, the adjoining landowner was unable to meet its prima facie burden for summary judgment. Proximate cause may be proved by circumstantial evidence but not mere speculation. Eisenstein v Block 5298, Inc.


MVA   Sole Cause   Expert Aff   Speculation  

Second Deptartment

Defendant whose vehicle was stopped in turning lane when it was struck by motorcycle traveling in opposite direction that crossed into the turning lane and struck the defendants’ vehicle granted summary judgment based on defendant driver’s testimony and eyewitness testimony and statements that plaintiff’s motorcycle crossed into the turning and struck defendant’s stopped vehicle. Plaintiff’s expert’s opinion was based solely on speculation and did not raise an issue of fact. Galano v ILC Holdings, Inc.


MVA   Pedestrian   Sole Cause   Comparative Fault  

Second Deptartment

Traffic enforcement worker walking in street in opposite direction of traffic to check inspection stickers granted summary judgment where defendant took his eyes off road for a moment and struck plaintiff and a parked car. Lack of comparative fault is no longer a requirement for partial summary judgment. Outar v Sumner


Highway Design   Special Duty  

Second Deptartment

Town granted summary judgment where infant-plaintiffs were struck by car while crossing road without a crosswalk or traffic control device that was owned by the county and not by the town. Town’s duty ceased once the infants left the town’s property where the concert and fireworks show was held. Janas v Town of Oyster Bay


Discovery   Vacate Default   Preclusion   Reasonable Excuse   Meritorious Action   Amend BP  

Second Deptartment

Lower court’s denial of plaintiff’s motion to vacate default in providing work authorizations until 30 days after time provided in conditional order of preclusion was an improvident exercise of discretion where delay was caused by law office failure of plaintiff’s former attorney, delay was very short, she demonstrated a meritorious action, and there was no prejudice to the defendant. Plaintiff’s motion to amend her BP to include property damage should have been granted since it was not palpably improper and there was no prejudice to the defendant. Liese v Hennessey


Motion to Dismiss   Bankruptcy  

First

Defendants’ motion to dismiss unless plaintiff amends her Chapter 13 bankruptcy plan to include the lawsuit in her list of assets granted where she indicated in bankruptcy petition that there were no other assets. Guzman v Promesa Admin. Servs. Org., Inc.


MVA   Question of Fact  

Second Deptartment

Conflicting deposition versions of how accident occurred failed to eliminate questions of fact. Stafford v Allied Bldg. Prods. Corp.

IF YOU MUST READ
(2 summaries)
MUST READS NOTEWORTHY

MVA   Coverage  

Second Deptartment

In direct action by plaintiff against carrier of defendant-motorists, carrier’s delay in disclaiming was not “as soon as is reasonably possible” under Ins. L. § 3420(d)(2) and carrier was required to indemnify defendant motorists for plaintiff’s judgment. Robinson v Global Liberty Ins. Co. of N.Y.


Emotional Harm   Outrageous Conduct  

Second Deptartment

Former wife granted summary judgment of case alleging prima facie tort and intentional and negligent infliction of emotional harm. New York does not recognize a cause of action for intentional infliction of emotional harm for acts occurring during the marriage and acts did not rise to the level of extreme and outrageous behavior. Chen v Dehjung Deborah Wang