Plaintiff’s Motion to Amend Complaint Granted when Defendants Could Not Establish Delay or Prejudice
Pitt v. The Hague Corp., et al, 2021 N.Y. Slip Op. 00730 (4th Dept., February 5, 2021)
Plaintiff, Veronica Pitt, allegedly sustained injuries when she slipped in water that leaked from a vending machine located in a building owned by defendant, The Hague Corporation, and managed by defendant, Flaum Management Company, Inc. After a medical diagnosis, plaintiff moved for leave to amend the complaint to assert a claim of aggravation of a pre-existing condition. The Supreme Court granted the motion and defendants appealed.
The Court rejected defendants’ arguments because leave to amend the pleadings shall be freely given absent prejudice or surprise resulting directly from the delay, and defendants failed to meet their burden of establishing prejudice or surprise. Defendants failed to establish that they had been hindered in the preparation of their case or prevented from taking some measure in support of their positions. The need for additional discovery or additional time to prepare a defense did not constitute prejudice sufficient to justify denial of plaintiff’s motion.
The Court found that plaintiff established that reasonable cause existed for the delay in asserting a claim that the slip and fall aggravated her pre-existing condition. Plaintiff was not experiencing symptoms of the condition prior to her accident, was not aware of the condition prior to diagnosis, and sought leave to amend promptly after diagnosis, prior to the relevant dates in the scheduling order. Further, plaintiff’s verified bill of particulars was not inconsistent with, or contradicted by, her new symptoms and complaints of pain upon which the diagnosis was based. Accordingly, the order was unanimously affirmed.
Storm in Progress Defense Unsuccessful when Defendants Failed to Prove that Plaintiff’s Injuries Were Sustained due to an Icy Condition Existing during the Storm
Sax v. Women and Children’s Hospital of Buffalo, et al, 2021 N.Y. Slip Op. 00736 (4th Dept., February 5, 2021)
Plaintiff, Jaclyn Sax, alleged she sustained injuries due to a slip and fall on snow and ice on the defendants’ property. The Supreme Court granted defendants’ motion for summary judgment, which argued that there was a storm in progress at the time of plaintiff’s accident.
Plaintiff testified at her deposition that it had snowed the night before the accident and it was not snowing at the time of her accident, 10:00 a.m. the following morning. She also testified that the steps on defendants’ property were still snow-covered, even though the sidewalks and ramp up the staircase had been cleared of snow. The Fourth Department found that defendants failed to establish that plaintiff’s injuries were sustained as a result of any icy condition occurring during an ongoing storm or for a reasonable time thereafter, and unanimously reversed the Supreme Court’s order.
All Three of Plaintiff’s Appeals Denied following Delay in Enforcing Pre-Suit Order in Internet Installation Contract
Steffen v. DirecTV, Inc., 2021 N.Y. Slip Op. 00702 (4th Dept., February 5, 2021)
Plaintiff, Patrick Steffen, allegedly sustained injuries when installing a satellite dish on the roof of a private residence to provide internet service for non-party, WildBlue Communications, Inc. (WildBlue). Plaintiff was an employee of non-party, MasTec North America, Inc. (MasTec), a subcontractor of WildBlue. Before bringing this lawsuit, plaintiff obtained a court order requiring MasTec to provide documents related to the satellite dish installation project and DirecTV and MasTec’s relationship. MasTec only provided a work order and plaintiff did not seek enforcement of the pre-suit order before bringing suit.
The Fourth Department dealt with plaintiff’s three appeals of decisions by the Supreme Court, and affirmed all three orders. Regarding Appeal 1, the Fourth Department held that defendant, DirecTV’s motion for summary judgment was properly granted as defendant met its burden of establishing that it was not an owner, contractor, or agent under Labor Law §§ 240(1) and 241(6). Defendant demonstrated that it had no involvement in the installation of the satellite dish and that plaintiff was not working for it at the time of the accident.
Regarding Appeal 2, the Fourth Department found that the Supreme Court did not abuse its broad discretion in granting defendant’s motion for a protective order precluding further depositions. At that point in discovery, the work order had already been sent from WildBlue to MasTec, there was no showing that DirecTV was involved in the project, and plaintiff had identified WildBlue as an involved entity. Thus, no further disclosure was needed for plaintiff to ascertain these parties’ relationships.
Lastly, regarding Appeal 3, the Fourth Department found that the Supreme Court did not abuse its discretion in declining to hold MasTec in civil contempt for failure to comply with the pre-suit disclosure order. To establish civil contempt, the plaintiff was required to show by clear and convincing evidence that there was a lawful order of the court with a clear and unequivocal mandate, that the order had been disobeyed, that MasTec had knowledge of the court’s order, and that plaintiff was prejudiced. Plaintiff waited five years before seeking to hold MasTec in contempt, which was “excessive”, and plaintiff was not prejudiced because he was at all times aware of WildBlue’s involvement.
Plaintiff Entitled to Summary Judgment on Issue of Negligence, but not on Issue of Serious Injury, when Defendant Failed to Observe Plaintiff in Parking Lot Motor Vehicle Accident
McCarthy v. Hameed, 2021 N.Y. Slip Op. 00962 (4th Dept., February 11, 2021)
Plaintiff, Lynne McCarthy, allegedly sustained injuries as she was walking toward her vehicle in a Costco parking lot when a vehicle operated by defendant, Maysaa Hameed, struck a flatbed shopping cart operated by plaintiff’s friend on the access lane in front of the store, causing a box on top of the cart to fall off and strike plaintiff.
Plaintiff moved for summary judgment on the issues of defendant’s negligence, plaintiff’s serious injury, and plaintiff’s alleged comparative negligence. The Supreme Court granted the parts of the motion on the issues of defendant’s negligence and serious injury, and denied the part of the motion on the issue of plaintiff’s comparative negligence. First, the Fourth Department affirmed the order on the issue of defendant’s negligence. The Court found that defendant had a common-law duty to see that which should have seen through the proper use of her senses. Deposition testimony established that plaintiff stopped to look for traffic before crossing the lane, a nearby driver stopped and motioned for her to cross, and then defendant’s vehicle turned and struck the cart, causing the box to fall off and strike plaintiff.
Second, the Court affirmed the order on the issue of plaintiff’s comparative negligence. Such an issue “almost invariably” raises a factual issue for resolution by the trier of fact and plaintiff failed to establish a total absence of her comparative negligence. Third, the Court modified the order on the issue of serious injury. Plaintiff alleged elbow and leg fractures, but only submitted an unsworn medical report of an examining physician. Thus the Court concluded that plaintiff was not entitled to summary judgment on the issue of serious injury because she did not submit medical proof in admissible form.
Prepared by Daniel J. Cercone