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PLAINTIFF WAS INJURED BY A FALLING TREE LIMB; THE CITY AND COUNTY, AS PART OWNERS OF THE TREE, CANNOT BE LIABLE BECAUSE THERE WERE NO VISIBLE SIGNS OF DECAY; THE PRIVATE PARTY WHOSE NEIGHBOR WAS INJURED BY THE FALLING LIMB, HOWEVER, MAY BE LIABLE BECAUSE HE WAS AWARE THE LIMB WAS WEAK (THIRD DEPT). ​

The Third Department, reversing (modifying) Supreme Court, determined that the city and county defendants (part owners of the tree) could not be held liable for injuries caused by a falling tree limb because there were no visible signs of decay. The defendant property-owner, whose neighbor was struck by the limb, however, may be liable because […]

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PLAINTIFF WAS NOT PROVIDED WITH A SECURED A-FRAME LADDER AND WAS NOT PROVIDED WITH ANYTHING TO SECURE THE PIPE HE WAS ATTEMPTING TO REMOVE WHEN IT FELL AND STRUCK THE LADDER; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION; THE “RECALCITRANT WORKER” AND “FAILURE TO FOLLOW SAFETY INSTRUCTIONS” ALLEGATIONS DID NOT RAISE A QUESTION OF FACT (FIRST DEPT).​ ​

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on the Labor Law 240(1) cause of action. Plaintiff was standing on an unsecured A-frame ladder when a piece of pipe he was attempting remove fell and struck the ladder. The unsecured ladder was not an adequate safety device and no safety […]

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PLAINTIFF FELL FROM A SCAFFOLD WITH NO GUARDRAILS; DEFENDANTS’ AFFIDAVIT ALLEGING GUARDRAILS WERE AVAILABLE WAS NOT BASED ON FIRST-HAND KNOWLEDGE AND THEREFORE DID NOT RAISE A QUESTION OF FACT; PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on the Labor Law 240(1) cause of action in this scaffold-fall case. The scaffold had no guardrails. The affidavit presented by the defendants stating that there were guardrails available did not raise a question of fact because the affiant was not at […]

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PHOTOS SUBMITTED AS A NOTICE TO ADMIT DID NOT SHOW THE METAL OVER WHICH PLAINTIFF ALLEGEDLY TRIPPED AND FELL; ALTHOUGH THE PHOTOS ARE DEEMED TO SHOW THE PROJECT SITE ON THE DAY OF THE FALL, THERE WAS NO EVIDENCE THE PHOTOS DEPICTED THE CONDITION OF THE SITE AT THE TIME OF THE FALL OR IMMEDIATELY PRIOR TO THE FALL (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined plaintiff was entitled to summary judgment on the Labor Law 240(1) cause of action. Plaintiff alleged he tripped on metal debris and fell. Defendants submitted three photographs alleged to depict the project site on the day of the plaintiff’s fall as a notice to admit. The photos […]

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AFTER SKIING ALL DAY AND RETURNING THE EQUIPMENT, CLAIMANT SLIPPED AND FELL ON ICE AND SNOW IN A PARKING LOT; THE ASSUMPTION OF THE RISK DOCTRINE DOES NOT APPLY; THE COURT NOTED THAT INADMISSIBLE HEARSAY, HERE AN INCIDENT REPORT, MAY BE CONSIDERED ON A SUMMARY JUDGMENT MOTION IF IT DUPLICATES NON-HEARSAY (THIRD DEPT). ​

The Third Department, reversing (modifying) the Court of Claims, determined that the assumption of the risk doctrine did not apply to claimant who had finished skiing for the day and was walking to his car in the parking lot when he sipped and fell on ice and snow. The court noted that inadmissible hearsay, here […]

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DEFENDANTS IN THIS REAR-END COLLISION CASE WERE ENTITLED TO SUMMARY JUDGMENT; DEFENDANTS’ STOPPED VEHICLE WAS HIT FROM BEHIND AND PUSHED INTO PLANTIFF’S VEHICLE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the Menegos defendants were entitled to summary judgment in this rear-end collision case. The Menegos defendants demonstrated their vehicle had come to a stop behind plaintiff’s vehicle before it was struck from behind and pushed into plaintiff’s vehicle: “A defendant moving for summary judgment in a negligence action […]

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IN A MEDICAL MALPRACTICE ACTION, A SPECULATIVE AND CONCLUSORY EXPERT AFFIDAVIT WILL NOT SUPPORT SUMMARY JUDGMENT IN FAVOR OF DEFENDANT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant (Andre) was not entitled to summary judgment dismissing the medical malpractice action because defendant’s expert’s affidavit was “speculative and conclusory:” The affidavit and supplemental affidavit of Andes’s expert physician, Reed E. Phillips, were insufficient to establish the absence of any departure from good and accepted medical practice […]

INSTALLING ELECTRIC CABLES IS CONSTRUCTION WORK WITHIN THE MEANING OF LABOR LAW 241(6); PLAINTIFF, WHO WAS STRUCK IN THE EYE BY A CABLE, SUFFICIENTLY DEMONSTRATED THE EYE-PROTECTION-EQUIPMENT REGULATION IN THE INDUSTRIAL CODE APPLIED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant, Kamco, was not entitled to summary judgment dismissing plaintiff’s Labor Law 241(6) cause of action. Plaintiff (Lopez) alleged he was struck in the eye by an electrical cable as he was attempting to connect it. Plaintiff (Lopez) alleged Kamco violated the Industrial Code by failing to provide […]

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IN A CHILD VICTIMS ACT CASE AGAINST A TEACHER ALLEGED TO HAVE SEXUALLY ABUSED A STUDENT IN THE 60’S, THE BARE ALLEGATION IN THE COMPLAINT THAT THE EMPLOYER KNEW OR SHOULD HAVE KNOWN OF THE TEACHER’S PROPENSITY WAS NOT SUFFICIENT TO STATE A CAUSE OF ACTION; COMPLAINT DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court in this Child Victims Act case, determined the complaint did not state a cause of action for negligent retention or negligent supervision of a teacher alleged to have sexually abused plaintiff in the 60’s. An allegation which merely states a bare legal conclusion is not entitled to consideration on […]

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A CONTRACT BETWEEN A LANDOWNER AND A TOWN THAT PURPORTS TO BIND TOWN BOARDS ELECTED IN THE FUTURE WITH RESPECT TO A PETITION FOR REZONING VIOLATES THE TERM LIMITS RULE; A CONTRACT WHICH PURPORTS TO LIMIT A TOWN’S REZONING REVIEW PROCESS VIOLATES THE PROHIBITION AGAINST CONTRACT ZONING (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Christopher, determined the contract entered into between plaintiff property owner and the town board and town planning board violated the term limits rule and the prohibition against contract zoning. The contract purported to prohibit the town from terminating its review of the petition to rezone the […]

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