December 19, 2017 | Vol. 85

MUST READS
(6 summaries)
NOTEWORTHY IF YOU MUST READ

Med Mal   Statute of Limitations  

Court of Appeals

In a case of first impression the Court of Appeals affirmed the lower courts’ findings that the statute of limitations for the costs of extraordinary care for failing to advise the plaintiff parents of potential birth defects, depriving them of the opportunity to elect not to conceive the child or carry the child to full term, accrues at the time of birth and not at the time of the alleged malpractice. The cause of action for extraordinary expenses only becomes certain when the child is born. If the child is not born, there would be no extraordinary expenses, which are the only damages allowed for this unique cause of action. To the extent that this conflicts with CPLR 214-a, which states that all malpractice actions must be commenced within 2 1/2 years of the “the act, omission or failure,” the Court pointed to prior case law where it held that a child’s claim for malpractice during prenatal care accrues at birth because the child would not have standing to sue prior to birth, as well as the fact that the statute was enacted prior to the Court’s acknowledgment of the extraordinary care cause of action. There was 1 dissent. B.F. v Reproductive Medicine Assoc. of N.Y., LLP


Labor Law §240  

Second Deptartment

Building owner denied summary judgment and plaintiff granted summary judgment on Labor Law §240 where plaintiff fell from loading dock platform where all construction workers were required to check in before being allowed into the building. Plaintiff painter had been working on the site for a month and fell from the loading dock overcrowded with workers trying to sign in as required by the building’s rules and regulations in its leases. The fact that the accident happened while painter was attempting to gain access to the building, instead of being engaged in the act of painting, did not defeat the Labor Law §240(1) claim because the court must look to the context of the work and not the isolated moment of the injury. There was 1 dissent. Hoyos v NY-1095 Ave. of the Ams., LLC


SUM   Negative Inference  

First

SUM arbitration permanently stayed where underlying claim was settled without the SUM carrier’s consent. The claimant’s attorney did not testify at the hearing justifying the adverse inference regarding whether he knew of the policy provision requiring consent which was mandated by regulation. Matter of Travelers Indem. Co. of Am. v McGloin


Premises Liab   Slip/Trip   Sidewalk   De Minimus   Set Aside Verdict   Admissibility  

Second Deptartment

Jury verdict in favor of defendant in slip and fall on uneven portion of sidewalk set aside and a new trial ordered where the lower court precluded plaintiff from introducing photographs of the defect. Plaintiff testified that the photographs were taken within a few days of the accident and that they fairly and accurately depicted the condition at the time of the accident, which was sufficient to lay a foundation for the photographs. Preclusion of the photographs was not harmless error as they were highly relevant to the main issues in the case including whether the defect was trivial. Davidow v CSC Holdings, Inc.


False Arrest   Malicious Prosecution   Assault   1983 Action   Vicarious Liab  

First

Claim that individuals participated in the action of the group as basis for 1983 action is legally insufficient because there is no vicarious liability among individual police officers. Illegal tint gave probable cause for stop, smell of marijuana and visible joint gave probable cause for arrest and search entitling defendants to summary judgment on false arrest, malicious prosecution, and assault (handcuffs) claims. Fowler v City of New York


Defamation   Motion to Dismiss  

First

Well known political strategist, media pundit, and writer had her libel per se action against then candidate Donald Trump dismissed for failing to state a cause of action. Although the appellate court did not give the details of the statements tweeted by Trump, from the lower court’s decision they referred to her as a “dummy” and “loser” claiming that she had sought a job with his campaign and went negative when they turned her down twice. Her claim was that she withdrew from consideration. The court found that taken in context the tweets would be seen by the average reader as statements of opinion not subject to being proven true or false and that they did not impugn her in her trade, profession, or business. Jacobus v Trump

NOTEWORTHY
(14 summaries)
MUST READS IF YOU MUST READ

Labor Law §241   Slip/Trip   Industrial Code  

First

Steamfitter granted summary judgment on Labor Law §241(6) where he slipped on a piece of muddy insulation while monitoring heating fans and pipes to make sure that there were no problems with the work done by his company during the day. Industrial code 23-1.7(e) (tripping hazard) applied because the ramp was a “passageway” under 23-1.7(e)(1) and a “working area” under section 23.1.7(e)(2). The section applies to slips as well as trips. Fitzgerald v Marriott Intl., Inc.


Premises Liab   Assumption of Risk   Amend Complaint   Punitive Damages  

Second Deptartment

Defendant failed to meet its initial burden for summary judgment by submitting plaintiff’s deposition testimony showing that she fell from a rock climbing wall and was injured when her foot fell in a gap between the mats covered by Velcro. Questions of fact remained on the primary assumption of risk defense regarding whether the gap was a concealed risk or an inherent risk of rock climbing. Plaintiff’s cross motion to amend Complaint to include a claim for punitive damages properly denied. Lee v Brooklyn Boulders, LLC


Discovery   Spoliation   Preclusion   NYC  

Second Deptartment

Plaintiff’s motions for sanctions against NYC, ambulance driver, van owner, and van driver for spoliation of event data recorders (EDR) referred back to the lower court for a determination of whether the ambulance that collided with the van tipping it over onto the plaintiff’s decedent who was standing on the sidewalk was equipped with an EDR, whether the defendants were aware of the need to preserve the EDR for litigation, and whether they were intentionally or negligently destroyed. Lower court’s order precluding defendants from offering any evidence on liability or damages at trial if they do not complete remaining discovery within 60 days affirmed. Saeed v City of New York


MVA   Pileup   Rear End   Admissibility   Hearsay   Admission  

First

Plaintiff denied summary judgment where she testified that she was hit in the rear and pushed into the lead vehicle based on a statement attributable to her in the police report that she hit the lead vehicle first. Statement in police report was an admission. Liburd v Lulgjuraj


Premises Liab   Slip/Trip   Stairs   Create Condition   Expert Aff  

First

Plaintiff’s expert’s opinion that the stair tread that caused plaintiff to fall was loose and unstable and had been improperly repaired with a rubber adhesive long before the accident, based on an inspection 1 month after the accident, rebutted defendant’s expert’s opinion that any movement was imperceptible and superintendent’s and manager’s testimony that they did not create the condition because there had been no repairs to the steps in the 3.5 years since it purchased the building. Del Marte v Leka Realty LLC


Labor Law §240   Scaffold   Safety Devices  

First

Plaintiff granted summary judgment on Labor Law §240(1) on his testimony that scaffold without railing wobbled causing him to fall. Defendant failed to show that any safety device was provided. Berisha v 209-219 Sullivan St. L.L.C.


Duty   Dangerous Condition  

Second Deptartment

Restaurant granted summary judgment under the “reasonable expectation” doctrine where infant plaintiff was injured by hot soup spilled on him when pushed by his younger brother. Defendant showed that the soup was served between 140-165° as required by the NYC Department of Health and that the child’s mother had warned the child to be careful because the soup was hot, proving that it was not unreasonably dangerous and was a danger reasonably contemplated by the average consumer. Sekkat v Huitres NYC, Inc.


Dental Mal   Statute of Limitations   Motion to Dismiss   Premature Motion  

First

The 2 root canal procedures were isolated and discrete events not triggering continuous treatment to toll the statute of limitations for the 9 years before plaintiff commenced the action. Motion was not premature where court allowed plaintiff to examine doctor on the issue of continuous treatment, plaintiff had the full medical records, and would have known the facts at the time of the motion. Greenstein v Sol S. Stolzenberg, D.M.D., P.C.


Premises Liab   Slip/Trip   Sidewalk   De Minimus   Notice   Circumstantial Evidence  

First

Property owners failed to show prima facie that they lacked constructive or actual notice where a jury could infer from plaintiff’s photographs that the condition existed for a sufficient period for the owner to discover and repair it. Photographs showed the condition to be well-worn with cracks between slabs sufficient to cause plaintiff to trip and fall. Flanders v Sedgwick Ave. Assoc., LLC


Premises Liab   Slip/Trip   Snow/Ice   Storm in Progress  

First

Building owners granted summary judgment on storm in progress based on their expert’s opinion and meteorological records. Plaintiffs failed to show that storm had ended long enough for owner to clear snow and under NYC code landlord has 4 hours, not including 9pm to 7am, after storm. Testimony of witness that it wasn’t snowing at 5pm only showed a lull in the storm. Jakubowski v Axton Owner LLC


Respondeat Superior   Negligent Hiring   Outrageous Conduct   Defamation  

Second Deptartment

While School District would not be liable under respondeat superior for offensive comments by a janitor to a middle school child if he worked for an independent contractor as the school district claimed, the district failed to submit admissible proof of a current contract with janitor company and that janitor was employed by them. Summary judgment denied on negligent hiring but granted on intentional infliction of emotional harm claim because comments were not outrageous even if offensive. They were also expressions of opinion and not actionable as slander. Gadson v City of New York


Premises Liab   Open/Obvious   Inherently Dangerous   Speculation   Conclusory  

Second Deptartment

Muddy ground in spectator area of town baseball field near dugout was open and obvious and not inherently dangerous entitling defendant to summary judgment. Plaintiff’s expert’s opinion was speculative, conclusory, and lacked an independent factual basis sufficient to raise a question of fact. Sirianni v Town of Oyster Bay


Premises Liab   Causation   Expert Aff  

Second Deptartment

Plaintiff’s expert failed to use objective standards in opining that mold in plaintiff’s apartment was capable of causing plaintiff’s injuries or that it was the actual cause of his illness and injuries. Kamel v Mukhopady


Amend Complaint   Punitive Damages  

First

Plaintiff’s motion to amend his complaint to include a demand for punitive damages where defendant failed to fill in a trench on the side of a road before the accident and joked about it, denied as insufficient to show a conscious or deliberate disregard for the rights of others. Britz v Grace Indus., LLC

IF YOU MUST READ
(3 summaries)
MUST READS NOTEWORTHY

Serious Injury  

Second Deptartment

Defendants made out their entitlement to summary judgment on serious injury by competent medical proof, but plaintiff raised a question of fact in opposition. The court does not give the details of the proofs. Byun v McCarthy


Serious Injury  

Second Deptartment

Defendants made out their entitlement to summary judgment on serious injury by competent medical proof, but plaintiff raised a question of fact in opposition. The court does not give the details of the proofs. Hagans v Jaber


Serious Injury  

Second Deptartment

Defendants made out their entitlement to summary judgment on serious injury by competent medical proof, but plaintiff raised a question of fact in opposition. The court does not give the details of the proofs. Thomas v Pascal

About Matt McMahon

Civil trials and appeals since 1984
Bookmark the permalink.

Comments are closed