April 10, 2018 | Vol. 101

MUST READS
(5 summaries)
NOTEWORTHY IF YOU MUST READ

Comparative Fault   Question of Fact  

Court of Appeals

The 4/3 majority eliminated the plaintiff’s burden to prove freedom from comparative fault for summary judgment on liability. Finding that comparative fault is not a “complete defense,” the majority reasoned that it is not a “defense” as contemplated by the CPLR but goes solely to diminish damages. The burden to prove freedom from comparative fault arose in the appellate departments from Thoma v Ronai, 82 NY2d 736 (1993) which the majority explained was premised on the plaintiff’s concession that it was her burden to prove freedom from comparative fault and, therefore, the issue was never addressed. The majority gave examples of where imposing this extra burden can cause unjust results such as where a plaintiff proves liability as a matter of law, but a jury subsequently finds for the defendants. Rodriguez v City of New York

Comment: Under CPLR R 2221(e)(2) a motion to renew is appropriate where there is a change of law if the change would have required a different result. The change can be from legislation or a court decision, especially from the Court of Appeals. Motions to renew are generally timely if made before entry of final judgment and expiration of the time to appeal. See, e.g., Dinallo v. DAL Elec., 60 A.D.3d 620 (2nd Dept. 2009).


Med Mal   Motion to Dismiss   Accepted Practice   Expert Aff   Battery   Statute of Limitations  

Second Deptartment

Causes of action based on battery for performing C-Section without patient’s consent barred by 1-year statute of limitation even though couched in terms of malpractice. Plaintiff denied summary judgment on claimed malpractice for lacerating her bladder where she did not proffer an expert’s opinion. Defendants’ motions to dismiss, converted by the lower court to motions for summary judgment, and plaintiff’s cross motion for summary judgment for defendants’ determination that a C-Section was necessary and that they departed from accepted practice in not providing plaintiff with a patient advocate and convening a bioethics panel, denied based on conflicting expert affirmations on departure.

Claims under PHL § 2803-c(3)(e)(patient’s rights) dismissed as this section does not apply to hospitals and 10 NYCRR 405.7(b)(10) (patient’s rights), which does apply to hospitals but does not provide a private right of action. Dray v Staten Is. Univ. Hosp.

Comment: Companion decision at Dray v Staten Is. Univ. Hosp.


Med Mal   Late Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice   Expert Aff  

First

Plaintiff granted leave to file a late Notice of Claim for HHC’s failure to diagnose a brain tumor based on plaintiff’s expert’s affirmation that subsequent MRIs showed the large mass on plaintiff’s brain, HHC agreed that it was in possession of the MRI taken at Lincoln hospital but failed to produce it, and HHC did not offer the opinion of an expert to rebut plaintiff’s expert’s opinion that HHC had actual knowledge of the facts underlying plaintiff’s theory of departure and causation. Nine-month delay in diagnosing the tumor that required 2 surgeries provided a reasonable excuse and HHC’s records provided sufficient details of her treatment so as not to be prejudiced by the delay. Claim that one doctor employed by HHC was now living in California and did not remember the plaintiff did not constitute prejudice where that doctor was a party to the action represented by counsel and available to testify. Harris v New York City Health & Hosps. Corp.


Battery   Negligent Supervision   Notice  

First

Since there were no prior complaints of sexual misconduct about BOE employee, and plaintiff failed to raise an issue in opposition, BOE granted summary judgment on negligent supervision and retention. Complaint of alcohol abuse that led to employee being fired was not notice of a propensity for sexual misconduct nor could it be inferred from instances where infant former student was seen on the school grounds by a security guard, had once asked a guard if she could see the employee and ran away when questioned by the guard, or that the employee once said that a student liked him. McBride v City of New York


IME/DME   Discovery  

First

Defendant’s motion to preclude plaintiff from being accompanied to an IME/DME by a non-attorney representative denied. Defendant conceded that the recent case of Santana v Johnson, 154 AD3d 452 (1st Dept 2017) eliminated any need for plaintiff to show special circumstances.Plaintiff’s motion to declare that defendant waived its right to an IME/DME because of unreasonable restrictions in the notice denied as the restrictions were consistent with current case law. Martinez v Pinard

NOTEWORTHY
(15 summaries)
MUST READS IF YOU MUST READ

Med Mal   Set Aside Verdict   Prejudice  

Second Deptartment

Jury’s verdict finding that doctors and hospital did not depart from accepted practice in recommending Methotrexate to terminate a suspected ectopic pregnancy upheld. Trial court’s reprimanding and holding plaintiffs’ attorney in contempt “precipitated by the unprofessional, boorish, and, at times contemptuous conduct of the plaintiffs’ attorney” were appropriate and did not deprive plaintiffs of a fair trial. Xiao Yan Chen v Maimonides Med. Ctr.


Med Mal   Accepted Practice   Causation   Expert Aff   Conclusory  

First

Plaintiff’s expert’s opinion that the administration of heparin caused intracranial bleeding was conclusory, failed to address defendant’s expert’s conclusions that the cause of the intracranial bleeding was unknowable as all patients suffering ischemic stroke are at risk for hemorrhage with or without heparin, and plaintiff’s expert contradicted himself by first noting that plaintiff was not taking Plavix but then opining that the heparin combined with the Plavix caused the hemorrhage. Einach v Lenox Hill Hosp.


Construction Liab.   Question of Fact   Hearsay   Admissibility  

First

Accident report relied upon by plaintiff to raise an issue of fact in opposition to defendant’s prima facie entitlement to summary judgment stating that the platform “must have been moved during demolition and trench work . . .” was hearsay and speculative because it did not indicate if it was based on firsthand knowledge of a person engaged in the work with a business duty to report. The same is true of a statement that the platform was dislodged by Con Ed’s employees where employees of numerous contractors and delivery companies were in the area. 76th & Broadway Owner LLC v Consolidated Edison Co. of N.Y. Inc.


Labor Law §240   Sole Cause   Indemnity  

First

Electrician who fell from a makeshift wooden ladder while unloading materials at ground level to a first-floor slab 5’ above on uncontested proof that the A-frame ladder he was using in the morning could not be used because the ground was covered in dirt, debris, and rocks. Use of the makeshift ladder, used by other workers, was not the sole cause of the accident since he was never told not to use it. Facts that his boots may have been untied and that he descended the ladder backwards were also not the sole cause where no safety device was provided.

Since building owner did not control the work, it could not be negligent and was entitled to summary judgment on contractual indemnity against plaintiff’s employer. Summary judgment on indemnity denied other sub-contractor where its workers may have built ladder. Jarzabek v Schafer Mews Hous. Dev. Fund Corp.


Labor Law §240   Safety Devices  

First

Plaintiff granted summary judgment on Labor Law §240(1) where scissor-lift tilted and toppled, tilt alarm failed to sound, and automatic stop failed to work. Issues were preserved by facts and general theory disclosed during depositions and expert opinion. Harrigan v G-Z/10UNP Realty, LLC


Med Mal   Expert Aff   Speculation  

First

Defendants’ granted summary judgment on expert opinion that images defendant doctor ordered and reviewed prior to performing spinal fusion did not show Zenker’s Diverticulum (ZD), that dysphagia was a well-known risk of spinal fusion surgery, that ZD did not cause or contribute to plaintiff’s dysphagia, and that a reasonable patient with plaintiff’s symptoms having been informed of possible laryngeal complications, contained on the consent form he signed, would have consented to the surgery. Plaintiff’s expert’s opinions were stated in terms of possibilities and not with reasonable certainty. Torres v Sharan


Construction Liab.   Espinal   Expert Aff  

First

Plaintiff’s expert’s opinion that scaffolding company placed vertical scaffold supports too close to where bus passengers disembark without warnings or padding raised an issue of fact on whether it launched an instrument of harm under Espinal. Benitez v City of New York


Premises Liab   Slip/Trip   Snow/Ice   Espinal  

Second Deptartment

Snow removal contractor granted summary judgment because failure to remove snow/ice or apply salt/sand does not come within the launch a force or instrument of harm exception under Espinal. Trombetta v G.P. Landscape Design, Inc.


Workers Comp   Lien  

First

It was error for the lower court to hold off on calculating the WC carrier’s lien on a settlement where injured party was classified with permanent partial disability until determination of reclassification. Past benefits were quantifiable and undisputed at the time of the settlement. Matter of Adebiyi v New York City Hous. Auth.

Comment: Under the Court of Appeals decision in Matter of Terranova v Lehr Constr. Co., 30 NY3d 564 (2017) reported in Vol. 86, the carrier’s share of litigation costs and attorney fees can be adjusted once the future benefits are quantifiable.


Serious Injury   Expert Aff   Speculation  

First

Defendants granted summary judgment where IME/DME doctor found no significant limitations, negative clinical results, and opined that plaintiff had resolved sprains. Minor limitation in one plane of shoulder insufficient to defeat defendants’ prima facie entitlement to summary judgment. Plaintiff’s treating doctor failed to explain her findings of normal ROM the day after and for 2 months after the accident which conflicted with her opinions in her affirmation. Plaintiff failed to explain gap in treatment after 5 months where he was covered by Medicare and continued to see his primary. Extended gap rendered his doctor’s opinion of causation based on ROM 3 years after accident speculative. Alverio v Martinez


Amend Complaint   Statute of Limitations   NYC  

First

Plaintiff’s motion to amend Complaint to substitute names of officers for fictitious names denied after statute of limitations ran because officers are not united in interest with NYC, plaintiff did not show that failure to name officers was a mistake and failed to show diligent efforts to identify officers before statute of limitations. Diaz v City of New York


Attorney Fees  

First

Plaintiff, an associate attorney at a law firm, who was to receive 50% of the fee of all matters he originated and worked on properly stated causes of action for breach of an express (oral) contract, implied contract, unjust enrichment, and quantum meruit. Since plaintiff was an at-will employee the contract was capable of being performed within 1 year and not barred by the statute of frauds. Goldfarb v Romano


Battery   Negligent Hiring   Respondeat Superior   Statute of Limitations  

First

Claims that plaintiff was assaulted by defendant’s employee sounded in battery and not negligence and were barred by a 1-year statute of limitations. Motion to amend Complaint to include negligent hiring denied as palpably improper because respondeat superior claim precludes negligent hiring claim. Williams v 268 W. 47th Rest. Inc.


False Arrest   Malicious Prosecution   Probable Cause  

First

Defendant granted summary judgment where illegal drugs and paraphernalia were in plain view observed by officers during search of apartment with search warrant, giving probable cause for the arrest and prosecution. Anderson v City of New York


Untimely   Reasonable Excuse  

First

Defendant’s motion for summary judgment filed long after time allowed in preliminary conference order denied as untimely, even though subsequently assigned to a different judge, absent subsequent order changing the time to file the motion. Lower court providently found that defendant failed to show good cause for the delay. Encore I, Inc. v Kabcenell

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About Matt McMahon

Civil trials and appeals since 1984
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