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PLAINTIFF’S EXPERT DID NOT PRESENT ANY EVIDENCE DEMONSTRATING THE REMOTELY OPERATED CRANE COULD FEASIBLY BE MADE SAFER; THEREFORE DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS PRODUCTS LIABILITY CASE WAS PROPERLY GRANTED (THIRD DEPT).

The Third Department determined plaintiff’s expert did not raise a question of fact in this products liability case. Plaintiff’s decedent was killed by a crane operated remotely by plaintiff’s decedent. Defendants’ experts attributed the accident to plaintiff’s decedent’s acts of leaning into the path of the crane and bending over with the remote attached to his hip, causing the crane to be activated inadvertently. Both leaning into the path of the crane and bending over with the remote attached were known to be dangerous and plaintiff’s decedent had trained others accordingly. Although plaintiff’s expert averred that a dead man’s switch would have prevented the accident, he did not present any supporting evidence:

“An expert’s [Darby’s] affidavit — offered as the only evidence to defeat summary judgment — must contain sufficient allegations to demonstrate that the conclusions it contains are more than mere speculation, and would, if offered alone at trial, support a verdict in the proponent’s favor” … . Initially, although Derby alleged that he inspected the remote, his affidavit was not supported by facts of his own independent testing of the device; rather, he relied on deposition testimony of other witnesses to explain the functions of the remote … . Furthermore, although Derby averred that the remote could be made safer by adding a dead man’s switch or by implementing joysticks, he offered no proposed designs that could feasibly be installed … , and, moreover, he pointed to no industry standards or data to support his conclusion that the absence of a dead man’s switch rendered the remote unsafe … . After all, “[a] factual issue regarding design defect is not established merely by pointing to efforts within the industry to make a safer product, without providing some detail as to how the current product is not reasonably safe and how a feasible alternative would be safer” … . Given Derby’s failure to elaborate, and mindful of the testimony of multiple witnesses for defendants who averred that they were not aware of any remote controls in the industry that use a dead man’s switch for crane operations, plaintiff’s proof was insufficient to raise a triable issue regarding design defect … . Darrow v Hetronic Deutschland GMBH, 2020 NY Slip Op 01543, Third Dept 3-5-20

 

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BENEFICIARY OF DECEASED CLAIMANT IS ENTITLED TO THE REMAINING WEEKS OF CLAIMANT’S NONSCHEDULE PERMANENT DISABILITY AWARD WHERE CLAIMANT’S DEATH WAS NOT RELATED TO THE COMPENSATED INJURY (THIRD DEPT).

The First Department, in a full-fledged opinion by Justice Colangelo, reversing the Workers’ Compensation Board, in a matter of first impression, determined that claimant’s surviving child was entitled to the weeks of the nonschedule permanent disability award which remained upon claimant’s death, where claimant’s death was not related to the compensated injury:

“With respect to schedule injuries, SLU [schedule loss of use] awards are made to compensate for the loss of earning power or capacity that is presumed to result, as a matter of law, from permanent impairments to statutorily-enumerated body members” … . “By contrast, compensation for a permanent partial disability that arises from a nonschedule injury, i.e., an injury to a body member not specifically enumerated in subsections (a)-(u) [of Workers’ Compensation Law § 15 (3)], is based on a factual determination of the effect that the disability has on the [worker’s] future wage-earning capacity” … . In that regard, whereas an SLU award “is not allocable to any particular period of disability and is independent of any time that the [worker] might lose from work” … , a nonschedule permanent partial disability award under Workers’ Compensation Law § 15 (3) (w) requires a calculation of a worker’s weekly rate of compensation using the worker’s average weekly wages and wage-earning capacity and “specifies the [duration or maximum] number of weeks the worker will receive that weekly sum[] based upon the [worker’s] percentage of lost wage-earning capacity” … . * * *

Until now, we have not had the occasion to address whether any remaining portion or weeks of a nonschedule permanent partial disability award is payable to the beneficiaries identified in Workers’ Compensation Law § 15 (4) upon a claimant’s death “arising from causes other than the [established] injury”… . Subdivision (3) includes both SLU [schedule loss of use] and nonschedule permanent partial disability awards … , and the unqualified language of subdivision (4) — which pertains to “[a]n award made to a claimant under subdivision three” … — neither distinguishes SLU awards from nonschedule permanent partial disability awards, nor contains any limiting language excepting nonschedule permanent partial disability awards from its scope. Given the unambiguous and unqualified language of subdivision (4) … , we see no basis to distinguish SLU and nonschedule awards where the plain language of subdivision (4) applies to any and all awards made under Workers’ Compensation Law § 15 (3). Accordingly, the language employed in Workers’ Compensation Law § 15 (4) reflects that the Legislature intended this subdivision to apply to all permanent partial disability awards made pursuant to subdivision (3) — that is, both SLU and nonschedule permanent partial disability awards … . Matter of Green v Dutchess County BOCES, 2020 NY Slip Op 01546, Third Dept 3-5-20

 

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ICE ON SIDEWALK MAY HAVE PRE-EXISTED RECENT SNOW; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PURSUANT TO THE STORM IN PROGRESS RULE SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined there was a question of fact whether the ice on which plaintiff slipped and fell pre-existed the recent snow fall. Plaintiff slipped and fell at around 7:30 am and, pursuant to the New York City Administrative Code, defendant had until 11 am to clear the recent snow (storm in progress rule):

Because it snowed overnight, defendant had until 11 a.m. to clear any fresh snow and ice … . However, an issue of fact exists regarding whether the ice on which plaintiff slipped was preexisting. Plaintiff testified and submitted witness affidavits to the effect that the ice was dirty and trod upon, and had been present for days … .

Moreover, while defendant submitted certified climatological records from Central Park in reply and in opposition to plaintiff’s cross motion, defendant cannot remedy a fundamental deficiency in its moving papers with evidence submitted in reply … , although they may be considered in opposition to plaintiff’s cross motion. In any event, the records show that the temperatures remained below or only slightly above freezing during much of the six days after defendant asserts that the last snow fall occurred, and defendant offers only speculation that such temperatures would have melted previous accumulations of snow and ice. Ruland v 130 FG, LLC, 2020 NY Slip Op 01558, First Dept 3-5-20

 

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$10.5 MILLION VERDICT FOR CONSCIOUS PAIN AND SUFFERING DEEMED EXCESSIVE IN THIS PEDESTRIAN TRAFFIC ACCIDENT CASE; PLAINTIFF ASKED TO STIPULATE TO $3 MILLION (FIRST DEPT).

The First Department, in a decision which does not discuss the relevant facts, determined the $10.5 million verdict for conscious pain and suffering was excessive and ordered a new trial unless plaintiff stipulates to $3 million. Plaintiff’s decedent was crossing the street when she was struck by defendant’s van:

The jury’s finding that defendant was solely at fault for the decedent’s death is supported by legally sufficient evidence and is not against the weight of the evidence … . Plaintiff’s evidence established that the decedent was crossing the street with the right-of-way when she was struck by a van operated by defendant’s employee making a left turn. Defendant presented no evidence to rebut plaintiff’s evidence. Its argument that the decedent may have been crossing the street outside of the crosswalk is speculative, given that its employee did not see the decedent until after the accident … . “[T]he position of [the decedent’s] body after impact is not probative as to whether she was walking in the cross-walk prior to being struck” … . In light of this determination, we do not reach defendant’s arguments about the propriety of testimony elicited, and statements made by plaintiff’s counsel, about its hiring practices generally and its hiring of the driver involved in the accident specifically.

We find the award for the decedent’s conscious pain and suffering excessive to the extent indicated … . Martinez v Premium Laundry Corp., 2020 NY Slip Op 01557, First Dept 3-5-20

 

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A WORN MARBLE STEP IS NOT AN ACTIONABLE DEFECT; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s slip and fall action should have been dismissed. The cause of the fall was alleged to be a worn marble step, which is not actionable:

Defendants established their entitlement to judgment as a matter of law in this action where plaintiff was injured when, while descending interior stairs in defendants’ building, she slipped and fell on a marble step that had a worn tread. A worn marble tread, without more, is not an actionable defect …

In opposition, plaintiff failed to raise a triable issue of fact. Having abandoned her claim that defendants were negligent in keeping the stairs free of moisture, plaintiff cannot now argue that the existence of moisture on the stairs would be an actionable condition. Nor did plaintiff’s experts establish that in addition to the worn marble stair treads, they lacked adequate slip resistance, as the coefficient of friction value that the experts used as a standard value was not shown to be an accepted industry standard … . Nor did the experts’ affidavits raise a triable issue of fact, since the opinions concerning the cause of plaintiff’s slip were speculative … . DeCarbo v Omonia Realty Corp., 2020 NY Slip Op 01555, First Dept 3-5-20

 

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LINEUP IDENTIFICATION WAS UNDULY SUGGESTIVE, CONVICTION REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the lineup identification procedure was unduly suggestive:

… [W]e agree with the defendant’s contention that the hearing court erred in finding that the pretrial identification procedure, a lineup, was not unduly suggestive. The defendant was the only person in the lineup with dreadlocks, and dreadlocks featured prominently in the description of one of the assailants that the complainant gave to the police. In addition, the dreadlocks were distinctive and visible despite the fact that the defendant and the fillers all wore hats … . Accordingly, the lineup identification should have been suppressed. The error was not harmless as it cannot be said that there is no reasonable possibility that the error might have contributed to the defendant’s conviction … . Therefore, we reverse the judgment of conviction and order a new trial. People v Colsen, 2020 NY Slip Op 01514, Second Dept 3-4-20

 

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PLAINTIFF’S SOLE REMEDY FOR HIS ON THE JOB INJURY IS WORKERS’ COMPENSATION; PLAINTIFF WAS NOT GRAVELY INJURED AND THERE WAS NO AGREEMENT WITH HIS EMPLOYER TO CONTRIBUTE, INDEMNIFY OR INSURE; THE EMPLOYER’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant-employer’s motion for summary judgment should have been granted. Plaintiff was injured while acting within the scope of his employment. Workers’ Compensation, therefore, was his exclusive remedy unless he was gravely injured or there was agreement with the employer:

Workers’ Compensation Law § 11 prohibits third-party claims for contribution or indemnification against an employer unless the employee has sustained a “grave injury” or there is a written contract entered into prior to the accident or occurrence by which the employer had expressly agreed to contribution to or indemnification of the third-party claimant … .

Here, in support of its motion, A.B.C. Tank established, prima facie, that there was no written agreement between the parties that required it to contribute, indemnify, or procure insurance … . Further, A.B.C. Tank established, prima facie, that the plaintiff was injured in the course of his employment and that the plaintiff’s injuries did not constitute a “grave injury” within the meaning of Workers’ Compensation Law § 11 … . McIntosh v Ronit Realty, LLC, 2020 NY Slip Op 01485, Second Dept 3-4-20

 

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THE BANK’S MOTION TO RESTORE THE 2009 FORECLOSURE ACTION WHICH HAD BEEN ADMINISTRATIVELY, BUT NOT FORMALLY, DISMISSED SHOULD HAVE BEEN GRANTED; THE BANK HAD PREVIOUSLY STATED ITS INTENTION TO DISCONTINUE THE 2009 FORECLOSURE BUT THE MOTION TO RESTORE WAS NOT PRECLUDED BY THE JUDICIAL ESTOPPEL DOCTRINE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank should have been allowed to restore a 2009 foreclosure action which had been administratively, but not formally, dismissed. The court noted that the bank’s prior statement of its intention to discontinue the 2009 action did not trigger the judicial estoppel doctrine:

While, in an effort to successfully prosecute the 2015 foreclosure action, the Bank represented that it would seek to discontinue the 2009 action, it is not judicially estopped from changing its position. ” [A] party who assumes a certain position in a prior legal proceeding and secures a favorable judgment therein is precluded from assuming a contrary position in another action simply because his or her interests have changed'” … . The Bank did not obtain a favorable judgment in the 2015 foreclosure action.

The Supreme Court should have granted that branch of the Bank’s motion which was to restore the 2009 action to the active calendar. The 2009 action was never formally dismissed, as the marking-off procedures of CPLR 3404 do not apply to pre-note of issue actions such as this one … . Since the 2009 action could not properly be marked off pursuant to CPLR 3404, the Bank was not required to move to restore within any specified time frame and was not obligated to demonstrate a reasonable excuse and a potentially meritorious claim … . Further, there was neither a 90-day notice pursuant to CPLR 3216 … , nor an order dismissing the complaint pursuant to 22 NYCRR 202.27 … . Finally, [defendant] does not contend that the 2009 action was dismissed pursuant to CPLR 3215(c). Deutsche Bank Natl. Trust Co. v Gambino, 2020 NY Slip Op 01476, Second Dept 3-4-20

 

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PLAINTIFF APPARENTLY SLIPPED AND FELL BECAUSE OF LEAVES ON THE STAIRWAY; THE CONDITION WAS NOT BOTH “OPEN AND OBVIOUS” AND “NOT INHERENTLY DANGEROUS” AS A MATTER OF LAW; PLAINTIFF’S NEGLIGENCE IN DESCENDING THE STAIRWAY FURNISHED THE OCCASION FOR THE ACCIDENT, BUT WAS NOT THE PROXIMATE CAUSE OF THE ACCIDENT (SECOND DEPT).

The Second Department determined the verdict in this slip and fall case was not contrary to the weight of the evidence. Plaintiff descended a stairway which had leaves on it:

The plaintiff’s testimony sufficiently identified the condition that caused her to fall … . The evidence at trial failed to establish, as a matter of law, that the condition at issue was both open and obvious and not inherently dangerous … . …

A jury’s finding that a party was at fault but that such fault was not a proximate cause of the accident is inconsistent and against the weight of the evidence only when the issues are so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause” … . Here, the jury could have reasonably concluded that the plaintiff was negligent in choosing to descend the stairway despite the presence of leaves, but that her negligence merely furnished the occasion for the accident … . Accordingly, the jury’s determination that the plaintiff’s conduct was not a substantial factor in causing the accident was not contrary to the weight of the evidence. Brennan v Gormley, 2020 NY Slip Op 01473, Second Dept 3-4-20

 

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