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DEFENDANT CONSTRUCTION MANAGER WAS A STATUTORY AGENT OF THE OWNER AND WAS THEREFORE LIABLE FOR PLAINTIFF’S INJURY PURSUANT TO LABOR LAW 240 (1); THE ARTICULATING LIFT USED BY PLAINTIFF WAS A SAFETY DEVICE WHICH FAILED TO ADEQUATELY PROTECT AGAINST AN ELEVATION-RELATED RISK (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined defendant which entered a construction management agreement with the Port Authority was a statutory agent of the Port Authority and was liable for plaintiff’s injury pursuant to Labor Law 240 (1). Plaintiff was injured when he lost control of an articulating lift when backing down a ramp:

Plaintiffs demonstrated that defendants can be held liable as a statutory “agent” of the Port Authority based on the contract documents that they submitted on the motion. Those documents impose not only the responsibility to coordinate the work but also a broad responsibility for “overall job site safety,” including the implementation of the Port Authority’s Safety Health and Environmental Program, as well as measures to ensure worker safety, thereby granting the construction manager “the ability to control the activity which brought about the injury” … .

Moreover, plaintiffs are entitled to summary judgment on the Labor Law § 240(1) claim. As the motion court found, plaintiff’s testimony established prima facie that the articulating lift was a safety device and that it’s failure to protect him from the elevation-related risk that he faced was the proximate cause of his injury. Lind v Tishman Constr. Corp. of N.Y., 2020 NY Slip Op 01026, First Dept 2-13-20

 

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ALTHOUGH DOCUMENTARY EVIDENCE IS ADMISSIBLE NOTWITHSTANDING THE DEAD MAN’S STATUTE, HERE THE DECEDENT’S SIGNATURE ON THE GUARANTY WAS NOT AUTHENTICATED BY SOMEONE OTHER THAN AN INTERESTED WITNESS; THEREFORE PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON THE GUARANTY SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the personal guaranty signed by decedent was not authenticated. Therefore plaintiff was not entitled to summary judgment on the guaranty:

We modify, however, with respect to the cause of action under the personal guaranty purportedly signed by the decedent, because although documentary evidence is admissible notwithstanding the dead man’s statute, it must be “authenticated by a source other than an interested witness’s testimony” … . Having failed to authenticate the guaranty through “a source other than an interested witness’s testimony,” plaintiff was not entitled to summary judgment on the guaranty. Galpern v Air Chefs, L.L.C., 2020 NY Slip Op 01021, First Dept 2-13-20

 

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DESPITE THE BRAKE-FAILURE ALLEGATION IN THIS REAR-END COLLISION CASE, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED; DEFENDANT DID NOT PRESENT SUFFICIENT EVIDENCE TO RAISE A QUESTION OF FACT ABOUT BRAKE FAILURE (FIRST DEPT).

The First Department, reversing Supreme Court, determined the plaintiff’s motion for summary judgment in this rear-end traffic accident case should have been granted. Defendant did not raise a question of fact about the brake-failure allegation:

” … [D]efendants’ contention that their vehicle’s brake failure was the cause of the accident was insufficient to raise a triable issue of fact as to liability. Defendants failed to satisfy the two-pronged showing that the accident was caused by an unanticipated problem with the vehicle’s brakes, and that they exercised reasonable care to keep the brakes in good working order … .

Summary judgment in plaintiff’s favor is not premature. Both plaintiff and defendant driver had firsthand knowledge of the accident, and submitted affidavits. However, defendants did not submit any evidence concerning maintenance of their vehicle. Defendants only speculate that there may be facts supporting their opposition to plaintiff’s motion which exist but cannot yet be stated … . Quiros v Hawkins, 2020 NY Slip Op 01020, First Dept 2-13-20

 

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ALTHOUGH THE EXCUSE WAS NOT ADEQUATE PETITIONER’S APPLICATION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED; RESPONDENTS HAD TIMELY NOTICE OF THE INCIDENT AND DEMONSTRATED NO PREJUDICE FROM THE DELAY (FIRST DEPT).

The First Department, reversing Supreme Court, determined petitioner’s application for leave to file a late notice of claim should have been granted. Although the excuse was inadequate, the respondents had timely notice of the incident and were not prejudiced by the delay:

In determining whether to grant an extension, the key factors to consider are: (1) “whether the movant demonstrated a reasonable excuse for the failure to serve the notice of claim within the statutory time frame”; (2) “whether the municipality acquired actual notice of the essential facts of the claim within 90 days after the claim arose or a reasonable time thereafter”; and (3) “whether the delay would substantially prejudice the municipality in its defense” … .

Here, although petitioners failed to offer any reasonable excuse for their failure to timely serve a notice of claim, this failure is not, standing alone, fatal … . Indeed, petitioners sufficiently demonstrated that respondents acquired actual notice of the event within a reasonable time thereafter, and that respondents would not be substantially prejudiced in their defense by the delay. Specifically, there is a surveillance video of the accident [which]  … the claims administrator … acknowledged having in its possession approximately six months after the accident. Moreover, the operator of the lift that injured petitioner was employed by respondents.

In addition, the correspondence … suggests that … only one month after plaintiff’s accident, respondents’ insurers were aware that the claims administrator anticipated that petitioner would be asserting a claim based on the … . … Our conclusion is further supported by the relatively short delay in petitioners’ moving for leave to file a late notice of claim. Matter of Sproule v New York Convention Ctr. Operating Corp., 2020 NY Slip Op 01015, First Dept 2-13-20

 

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VERDICT AWARDING $0 DAMAGES FOR FUTURE AND PAIN SUFFERING SHOULD HAVE BEEN SET ASIDE, $100,000 WOULD BE REASONABLE COMPENSATION (FIRST DEPT).

The First Department, reversing Supreme Court, determined the damages verdict awarding $0 for future pain and suffering should have been set aside:

The jury’s award of damages for past pain and suffering deviates materially from what would be reasonable compensation (see CPLR 5501[c]). Plaintiff sustained a bimalleolar ankle fracture and underwent two surgeries, the first involving implantation of hardware in the ankle and the second involving arthroscopy and removal of the hardware and some scar tissue. Comparing this matter to similar cases … , we find that $275,000 is reasonable compensation … .

The award for future damages also deviates materially from what would be reasonable compensation (CPLR 5501[c]). Defendant’s expert agreed that plaintiff’s injury is permanent and that he has developed arthritis in his left ankle, which may require treatment in the future, including the possibility of an ankle replacement. In light of the foregoing, we find that $100,000 for future pain and suffering is reasonable compensation … . Thomas v New York City Hous. Auth., 2020 NY Slip Op 01001, First Dept 2-13-20

 

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JUDGE PROPERLY SET ASIDE THE VERDICT AWARDING $0 FOR FUTURE PAIN AND SUFFERING IN THIS LABOR LAW 240 (1) ACTION DESPITE PLAINTIFF’S FAILURE TO OBJECT TO THE VERDICT AS INCONSISTENT (FIRST DEPT).

The First Department determined Supreme Court properly set aside the verdict awarding $0 for pain and suffering in this Labor Law 240 (1) action, despite plaintiff’s failure to object to the verdict as inconsistent:

… [P]laintiff’s failure to object to the jury’s award of $0 for both past and future pain and suffering as inconsistent with the jury’s awards for past and future lost earnings and future medical expenses did not preclude the court from deciding whether ” the jury’s failure to award damages for pain and suffering [wa]s contrary to a fair interpretation of the evidence and constitute[d] a material deviation from what would be reasonable compensation'” … . Natoli v City of New York, 2020 NY Slip Op 00988, First Dept 2-11-20

 

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CHILD WAS ASLEEP DURING THE INCIDENT INVOLVING FATHER, NEGLECT FINDING REVERSED (FIRST DEPT).

The First Department, reversing Family Court, determined the evidence did not support finding father had neglected the child. The child was asleep during the incident:

The Family Court’s finding that the father neglected the subject child lacks a sound and substantial basis in the record because a preponderance of the evidence does not demonstrate that the child’s physical, mental or emotional condition was impaired or in danger of becoming impaired, or that the actual or threatened harm to the child was a consequence of the father’s failure to exercise a minimal degree of care in providing her with proper supervision or guardianship during the February 14, 2016 incident …  Although the mother’s and the father’s fact-finding testimony established that the child was in the home when the incident occurred, petitioner failed to establish a prima facie case of neglect because their testimony also established that the child was sleeping in another room in the apartment and was unaware of what occurred, which testimony was supported by the testimony of the responding police officer … . Matter of K. S. (Dyllin S.), 2020 NY Slip Op 00979, First Dept 2-11-20

 

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CONTINUOUS TREATMENT DOCTRINE NOT AFFECTED BY A YEAR AND THREE MONTH GAP IN TREATMENT, DEFENDANTS’ SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED IN THIS MEDICAL MALPRACTICE ACTION (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this medical malpractice action should not have been granted. Although the alleged malpractice (the failure to follow up on a detection of a mass) occurred in 2006, the continuous treatment doctrine tolled the statute of limitations. A year and three month gap in treatment did not preclude application of the continuous treatment doctrine:

Plaintiff raised an issue of fact as to whether Dr. Woo continuously treated the decedent for conditions related to renal cell carcinoma. Plaintiff’s expert, Dr. Feit, opined that Dr. Woo treated the decedent for symptoms of back pain, hypertension, and insomnia, all of which were symptoms of and related to renal cell carcinoma, a diagnosis that should have been considered given the findings in the 2006 MRI of a renal mass.

Plaintiff sufficiently established that such treatment continued through the decedent’s hospitalization in July 2012. * * *

The one-year-and-three month gap between the April 2011 visit and the July 2012 note does not preclude application of the continuous treatment doctrine … . Dookhie v Woo, 2020 NY Slip Op 00975, First Dept 2-11-20

 

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ACCELERATION OF A DEBT DOES NOT AFFECT THOSE INSTALLMENT PAYMENTS DUE MORE THAN SIX YEARS BEFORE THE ACTION ON THE NOTES WAS COMMENCED, ACTION ON THOSE PAYMENTS IS TIME-BARRED (FIRST DEPT).

The First Department, reversing Supreme Court, determined that installment payments due prior to six years before the action on the notes could not be recovered despite the allegation that the debt had been accelerated:

Acceleration causes those future installment payments that are not yet due and payable to become immediately due and payable. It enables a lender to advance the due date for the future installment payments and thus, the statute of limitations runs on the balance of the debt … . It does not change the due date of those past due installment payments to that of the date of acceleration … .

Accordingly, plaintiffs demonstrated, prima facie, that defendant breached each of the notes by submitting evidence of the duly executed notes and defendant’s failure to make payments in accordance with their payment terms … . Defendant, however, demonstrated prima facie, that the unpaid installment payments due prior to June 1, 2012 were time-barred. Cannell v Grail Partners, LLC, 2020 NY Slip Op 00973, First Dept 2-11-20

 

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ARBITRATOR’S AWARD IN FAVOR OF DONALD J TRUMP FOR PRESIDENT INC VACATED AS VIOLATING PUBLIC POLICY AND EXCEEDING THE ARBITRATOR’S AUTHORITY (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined the arbitrator’s award in this action based upon a non-disclosure, non-disparagement agreement (NDA) was against public policy and exceeded the arbitrator’s authority. Plaintiff was employed by defendant, Donald J. Trump For President, Inc. She signed the NDA as a condition of her employment. Plaintiff brought an employment discrimination action in Supreme Court alleging a hostile work environment, sexual discrimination, defamation and intentional and negligent infliction of emotional distress. Pursuant to the NDA defendant demanded arbitration. Plaintiff then started a federal lawsuit seeking a declaration that the NDA was void and unenforceable and defendant, pursuant to the NDA again demanded arbitration. The arbitrator found plaintiff had breached the NDA by disclosing confidential information in the federal action and making disparaging comments on her GoFundMe pages and on her Twitter account. The First Department held the information disclosed in the federal action was protected by privilege and the comments posted on the Internet were not part of the defendant’s demand for arbitration:

Plaintiff’s negative statements about defendant, for which the arbitrator made an award, were made in the context of the federal action in which she sought a declaration that the NDA was unenforceable … . By concluding that the allegations in the federal action are tantamount to disclosure of confidential information violative of the NDA, the arbitrator improperly punished plaintiff for availing herself of a judicial forum. Defendant is hard-pressed to explain how plaintiff could have pursued her rights without setting forth necessary factual statements for the federal court to consider.

The remainder of the award was based upon certain Twitter “Tweets” and statements on a GoFundMe page. The nature of the Demand to Arbitrate, however, was limited to statements made “in connection” with this state action. * * * Defendant relies on plaintiff’s actions subsequent to the date of its Demand to Arbitrate in an effort to have the arbitration award confirmed. Since the award takes into account events occurring after the demand, which could not have been legitimately considered at arbitration, the award was made in excess of the arbitrator’s enumerated authority. Denson v Donald J. Trump for President, Inc., 2020 NY Slip Op 00923, First Dept 2-6-20

 

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