Med Mal Negligent Hiring Amend Complaint
 Plaintiff’s motion to amend Complaint to include allegations of negligent hiring, retention, and supervision after doctor’s motion to disqualify hospital’s attorney revealed his disciplinary history in 5 states prior to being hired by the hospital as well as 6 pending malpractice suits, granted as the hospital failed to show that the amendment was palpably devoid of merit. Gomez v Buena Vida Corp.
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Serious Injury Causation ROM Expert Aff BP Raised For First Time
 In reversing denial of defendant’s motion for summary judgment on serious injury where defendant’s orthopedist found no limited ROM in the arm or wrist, and plaintiff’s claims of carpal tunnel syndrome were not in the BP or raised prior to his opposition to the defendant’s motion, the court explained from its prior decisions that failure to treat for a condition for more than 15 months after the initial emergency room visit was too long to establish a qualitative assessment of an injury soon after the accident and establish causation. In prior case law, the court had held that 5 1/2 months was too long to establish causation. Santos v Traylor-Pagan
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Set Aside Verdict VTL §1104 Police NYC
Judgment on jury verdict in favor of defendant where police captain was following the car in which the plaintiffs were occupants, in the course of his duties, affirmed as the jury could reach their verdict on a fair interpretation of the evidence finding that the police captain did not act with reckless disregard. Trial court properly excluded NYPD patrol guide as it imposed a standard higher than that imposed by law. Johnson v City of New York
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Med Mal Wrongful Death Pain/Suffering Late Notice of Claim
Motion to dismiss pain/suffering claim on argument that Notice of Claim filed by the decedent’s wife as “proposed guardian” before his death denied. The Notice of Claim can be filed by any interested party which in this case included the wife and, therefore, was valid. Matter of Dolce v State of New York
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Premises Liab Sanctions
The lower court providently exercised its discretion in denying the defendant fuel company’s motions for sanctions under 22 NYCRR 130-1.1(c), while granting summary judgment to the defendant, finding that the plaintiff brought the action for nuisance based on a new theory but did not support that theory with evidence in admissible form. The high burden of showing frivolity for sanctions is that the position taken must lack any merit in law and cannot be supported by an argument for an extension of existing law. The lower court found a lack of evidence, not a lack of merit or an argument for an extension of existing law. West Hempstead Water Dist. v Buckeye Pipeline Co., L.P.
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Lead Poisoning Set Aside Verdict Causation Juror Confusion
The jury awarded $250,000 for past pain and suffering after finding the building owner negligent but that the building owner’s negligence was not a substantial factor in causing the injuries. Before discharging the jury, the court reinstructed the jury explaining that to award damages they would have to answer “yes” to the substantial factor question. During the second deliberation, the jury asked for further instructions on how to answer the damage question if they chose to find that the negligence was not a substantial factor. The trial court instructed them to follow the instructions on the sheet and they then answered the substantial factor question “yes”. The Appellate Division found that the second verdict was unreliable based on the failure of the trial judge to give further instructions and could be the result of juror confusion or frustration and remanded the case for a new trial rather than reinstating the first verdict. Cleveland v Djeu
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Late Notice of Claim Actual Knowledge Reasonable Excuse Prejudice
Sanitation worker’s proffered excuse that he was unaware of the need to file a Notice of Claim was not a reasonable excuse. Line of duty reports had details of the injury when petitioner fell from the step but not the essential elements of the allegations such as that the step was dangerous or defective, and supervisor noted in report that the step was not defective, therefore, reports did not give actual notice within 90 days or reasonable time thereafter. Petitioner’s attorney’s argument that the municipality was not prejudiced because they were fully aware of the accident was not evidence or a “plausible argument” establishing lack of prejudice. Petition for leave to serve late Notice of Claim denied. Matter of Maldonado v City of New York
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Labor Law §240 Ladder Renew Reargument
Grant of summary judgment to plaintiff based on his testimony that he was standing on a ladder which gave out beneath him causing him to fall reversed on motion to renew/reargue where defendants’ testimony showed that plaintiff’s employer did not begin work at the defendants’ location until 3 weeks after the accident mentioned in a hospital report. Patriarca v Oreckinto
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Premises Liab Snow/Ice Slip/Trip CPLR § 3126 Strike Answer Willful/Contumacious 3rd Party Contractor Raised For First Time
Plaintiff’s motion to strike defendants’ Answers for willful/contumacious failure to comply with discovery orders granted in case where condominium resident slipped on ice on 2 separate days outside of her townhouse. Snow removal contractor’s motion to strike defendants’ Answers also granted. Repeated delays and failures to comply with discovery orders and insufficient responses showed willful/contumacious behavior warranting striking of the Answers. Snow removal contractor granted summary judgment against plaintiff on proof that there was no privity and, therefore, it owed plaintiff no duty. Studer v Newpointe Estates Condominium
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Serious Injury ROM Preexisting Expert Aff
Plaintiff failed to introduce any medical evidence in opposition to the findings of the defendants’ doctors of pre-existing degeneration in her shoulder, cervical, and lumbar spine which was also noted in her own MRI reports, and offered only the report of a doctor who examined her the day after her accident in opposition to the defendants’ orthopedist’s opinion that her knee condition was caused by arthritis and not trauma and that she showed no limited ROM after her surgery. Santos v Manga
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Serious Injury Unaffirmed Report ROM Expert Aff
Defendant met its burden for summary judgment on serious injury by competent medical evidence that plaintiff’s claims of headaches and pain did not constitute a serious injury and plaintiff’s physician’s unaffirmed report opining that the accident exacerbated the chronic condition, and failure to compare ROM to normal ROM, was insufficient to raise a question of fact. Campbell v Wendt
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Battery Defamation Motion to Dismiss
Defendants’ motion to dismiss battery claim denied where plaintiff alleged that condominium board member yelled at her saying that she wasn’t allowed in the pool because her maintenance fees were overdue and then grabbed her by the arm without provocation or permission which stated a cause of action for battery. Motion to dismiss defamation claim granted where plaintiff’s allegation was that notices posted showing that she was in arrears were true. Gutierrez v McGrath Mgt. Servs., Inc.
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Serious Injury BP
Defendants failed to meet their initial burden by addressing the plaintiff’s claims in the BP on the 90/180-day category by competent medical evidence and it was unnecessary to consider the plaintiff’s opposition. Fils-Aime v Colombo
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Serious Injury BP
Defendants failed to meet their initial burden by addressing the plaintiff’s claims in the BP on the 90/180-day category by competent medical evidence and it was unnecessary to consider the plaintiff’s opposition. Lerner v Shah
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