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PLAINTIFF WAS INJURED WHEN HE ATTEMPTED TO AVOID A FALL FROM A SCAFFOLD WHEN THE PLANK HE WAS STANDING ON SHIFTED; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff was entitled to summary judgment on the Labor Law 240(1) cause of action. Plaintiff was injured when he attempted to avoid a fall from a scaffold when a plank he was standing on shifted: … [T]he plaintiff made a prima facie showing of entitlement to judgment as […]

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A PROPERTY OWNER DOES NOT HAVE A DUTY TO INSTALL A NON-SLIP FLOOR OR A GRAB BAR IN A SHOWER STALL; THEREFORE THE NEGLIGENCE AND NUMEROUS OTHER CAUSES OF ACTION IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court in this slip and fall case, determined that the facts alleged, a shower-stall floor that was slippery when wet, and the absence of a grab bar in the shower, did not state a cause of action for negligence because the allegations did not describe a duty owed to plaintiff: … […]

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WHATEVER TIME REMAINS ON THE APPLICABLE STATUTE OF LIMITATIONS WHEN THE COVID TOLL BEGAN IS ALL THAT IS LEFT WHEN TO TOLL IS LIFTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined that, although the statute of limitations in this personal injury action was subject to the COVID toll, the three-year statute just picked up at the end of the toll where it left off at the beginning of the toll. Therefore plaintiff was not entitled to simply add on […]

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CONFLICTING EVIDENCE ABOUT WHETHER DEFENDANT WAS MADE AWARE OF THE DANGEROUS CONDITION PRECLUDED SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the Department of Education (DOE) did not demonstrate a lack of constructive knowledge of the condition of a cart used by plaintiff teacher to move materials out of a classroom. The cart stopped suddenly and the plaintiff’s foot was injured. There was conflicting evidence about whether plaintiff and others […]

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​DEFENDANTS IN THIS TRAFFIC ACCIDENT CASE WERE ENTITLED TO DISCOVERY OF GEOGRAPHICAL DATA (SPEED, LOCATION) RECORDED ON PLAINTIFF’S CELL PHONE DURING A THREE-HOUR PERIOD LEADING UP TO THE TIME OF THE ACCIDENT (SECOND DEPT).

The Second Department, modifying Supreme Court in this traffic accident case, determined the defendants’ motion to inspect and collect geographical data recorded on plaintiff’s cell phone leading up to the time of the accident was properly granted but should have been limited to a specific time (1 to 4 pm): … [T]he defendants’ motion papers […]

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IT WAS AN ABUSE OF DISCRETION TO DENY FATHER’S MOTION TO VACATE HIS DEFAULT IN THIS CUSTODY CASE; THE USUAL RULES FOR VACATION OF A DEFAULT ARE RELAXED IN CHILD CUSTODY MATTERS (SECOND DEPT).

The Second Department, reversing Family Court, determined it was an abuse of discretion to deny father’s motion to vacate his default in this custody proceeding. The Second Department noted that the strict rules surrounding vacation of a default are relaxed in custody matters: Although the determination of whether to relieve a party of an order […]

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PLAINTIFF WAS HIRED BY THE CITY TO INSTALL A SEWER AND DISCOVERED 45,000 TONS OF CONTAMINATED SOIL; DEFENDANT, WHO CAUSED THE CONTAMINATION, REFUSED TO REMEDIATE; PLAINTIFF, WHO REMEDIATED THE CONTAMINATION, STATED A CAUSE OF ACTION FOR UNJUST ENRICHMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the unjust-enrichment cause of action should not have been dismissed. Plaintiff was hired by the city to install a sewer. Plaintiff discovered 45,000 tons of contaminated soil in the process. Defendant, who was responsible for the contamination, refused to remediate. Plaintiff remediated the contamination and sued defendant for […]

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THE LETTER OF INTENT WAS NOT A BINDING REAL ESTATE CONTRACT; THE MOTION TO DISMISS THE BREACH OF CONTRACT, BASED ON “DOCUMENTARY EVIDENCE,” SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the letter of intent was a non-binding agreement-to-agree, not a contract for the sale of real property. The letter of intent constituted “documentary evidence” which warranted dismissal of the breach of contract action: … [T]he defendant submitted the letter of intent which conclusively established that the parties did […]

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THE RULES OF THE ROAD APPLY TO BICYCLISTS; HERE THE BICYCLIST DARTED OUT INTO TRAFFIC FROM IN FRONT OF A PARKED VAN; THE DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPARTMENT).

The Second Department, reversing Supreme Court, determined the rules of the road apply to bicyclists who suddenly dart out into traffic from in front of a parked car. Defendants’ motion for summary judgment should have been granted: Vehicle and Traffic Law § 1143 provides that a driver entering or crossing a roadway “from any place […]

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IN THIS CONSTRUCTION ACCIDENT CASE, DEFENDANTS WERE ENTITLED TO COMPEL PLAINTIFF TO ANSWER DEPOSITION QUESTIONS ABOUT HIS DRUG AND ALCOHOL USE; THE INFORMATION MAY BE RELEVANT TO LIFE AND/OR WORK-LIFE EXPECTANCY (SECOND DEPT). ​

The Second Department, in this construction accident case, determined defendant’s were entitled to compel plaintiff to answer deposition questions about his alcohol and drug use: “Although physician-patient communications are privileged under CPLR 4504, a plaintiff in a personal injury action will be deemed to have waived the privilege when he or she has affirmatively placed […]

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