July 18, 2017 | Vol. 63 - New York Torts Weekly

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Set Aside Verdict Pain/Suffering Materially Deviates Serious Injury Directed Verdict Admissibility

First

Defendant’s motion to set aside $500,000/250,000 past/future (10 years) pain and suffering verdict as against the weight of the evidence and excessive granted only to the extent of ordering a new damage trial if plaintiff did not stipulate to reduce award to $300,000/$150,000. Directed verdict on serious injury properly granted on plaintiff’s radiologist’s reading of MRI, not in evidence, showing a fractured fibula. MRI was subpoenaed to court and reviewed by defendant’s radiologist who they did not call. Ahumada v Drogan

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Med Mal Accepted Practice Judgment Rule Expert Aff BP

Second Deptartment

Podiatrist denied summary judgment where his expert opined that it was not against accepted practice to choose an initial Austin bunionectomy (to be followed by a later Akin bunionectomy) as a choice between various acceptable procedures. Plaintiff’s expert raised a question of fact by opining that it was a departure to initially perform an Austin bunionectomy and that the proper procedure would have been an open base wedge bunionectomy (as claimed by the plaintiff) “or an equivalent procedure.” The open base wedge bunionectomy was not an unplead theory as plaintiff alleged that the podiatrist performed the “wrong surgery” in the BP. Osipova v Silverberg

Premises Liab Open/Obvious Inherently Dangerous Causation

Second Deptartment

Homeowner failed to make out prima facie case for summary judgment where plaintiff fell backwards down a flight of stairs when she stepped backward on a landing landing while trying to close a bedroom door. Defendant failed to show that the condition, even if open/obvious, was not inherently dangerous under the allegations that the landing was too small to allow the door to be closed safely and that the stairs lacked handrails. Defendant also failed to eliminate questions of proximate cause. Lee v Acevedo

MVA Pedestrian Turning Vehicle

Second Deptartment

Pedestrian established prima facie entitlement to judgment as a matter of law on liability by proof that he was struck while walking within an unmarked crosswalk, that he had observed the conditions of approaching traffic before crossing, and that the defendant driver was negligent in failing to yield the right-of-way. Gandarillas v EAN Holdings, LLC

MVA Rear End Nonnegligent Explanation

Second Deptartment

Defendant driver’s testimony that he was stopped in a travel lane for a mechanical failure, not caused by his fault, when he was struck in the rear by the plaintiff’s car entitled defendants to summary judgment. Plaintiff’s failed to show a nonnegligent explanation for the rear end collision and the nonparty’s affidavit did not raise a nonnegligent explanation. Nowak v Benites

Defamation Privilege Motion to Dismiss

First

Doctor’s defamation claim against former employer for filing an Adverse Action Report with a federal agency was protected by a qualified privilege and plaintiff failed to show actual malice. Brook v Peconic Bay Med. Ctr.

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July 18, 2017 | Vol. 63

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