Wrongful Death Espinal Pain/Suffering Materially Deviates Raised For First Time Amend Answer Prejudice
 Defendant, which maintained private garbage truck that crushed and killed plaintiff’s decedent, only raised issue of lack of duty under Espinal for the first time on appeal. It was not included in the jury charge, not before the jury, and not preserved for appeal. Espinal would not have applied since the evidence showed that the interlock system which was not installed when the truck was released by the defendant was considered by the employer and defendant as an integral protection for the employees who were therefore third party beneficiaries to the oral maintenance agreement.
Verdict set aside as materially deviating from reasonable compensation unless plaintiff stipulated to reduce the $1,000,000 for pre-impact terror to $250,000; the $2,000,000 for conscious pain and suffering to $750,000; the $2,000,000/$1,000,000 for past/future pecuniary loss for 16 years to $650,000/$350,000. Parties agreed that truck would have struck plaintiff’s decedent in less than a second and he would have experienced pain/suffering for 1-2 minutes.
Lower court should have allowed defendant to amend Answer to include GOL §15-108(a) settlement setoff as a defense as plaintiffs could not show that they would not have entered into the substantial settlement if the defense was in the Answer. Vargas v Crown Container Co., Inc.
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Premises Liab Create Condition Notice Circumstantial Evidence
 In a 4-3 decision from a letter submission, the Court of Appeals found that plaintiff raised questions of fact in opposition to the defendant’s prima facie showing of entitlement to summary judgment where plaintiff tripped on a cord tied to a barrel in a parking lot. The lower court found that plaintiff presented only circumstantial evidence that the defendant created the condition or had notice of it, which it held was insufficient to raise a question of fact. The majority disagreed finding that plaintiff raised questions of fact. There were 3 dissenters. Lau v Margaret E. Pescatore Parking, Inc.
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Labor Law §240 Ladder Admissibility Hearsay
 Defendants’ argument that discrepancies between plaintiff’s testimony regarding his fall from a ladder and details in his medical records, such as whether the ladder was wooden or metal, the height he fell from, and whether the ladder slipped or a rung cracked, did not raise questions of fact because they were not “germane to diagnosis and treatment’ necessary to overcome the hearsay objection. Nor were they party admissions since there was no proof that they were attributable to the plaintiff. Hearsay may be used to defeat summary judgment but only when it is not the only proof and it was the only proof offered by defendants. Mosqueda v Ariston Dev. Group
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Dental Mal Informed Consent Accepted Practice
Dentists and oral surgeon they referred plaintiff to for a tooth extraction granted summary judgment on malpractice claim since there was no departure from accepted practice in the extraction of the tooth but denied summary judgment on informed consent where plaintiff claimed that they extracted the wrong tooth. Plaintiff had previously treated with the dentists for an infected tooth (#4) but deferred having root canal because of the cost. Subsequently she fractured a different tooth (#2) and testified that she elected to have tooth #2 removed. The referral to the oral surgeon identified tooth #4 not tooth #2 and there was a dispute between the oral surgeon and the plaintiff as to whether they spoke before she signed the boilerplate consent form and before the extraction. The cause of action for informed consent does not necessarily need a deviation from accepted practice where, as here, the wrong body part is operated on. Since all experts agreed that root canal for the extracted tooth was a viable option, there was actionable harm. Godel v Goldstein
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Ins. L. § 3420(a)(2) Motion to Dismiss
Motion to dismiss cause of action under Ins. L. §3420 to collect $20 million verdict, which was reduced to $7.3 million, against carriers for DHL who hired defendants under a cartage agreement denied. The Court of Appeals clarified that the term “issued or delivered” in Ins. L. §3420(a) includes situations where both insureds and risks are located in New York. Carriers and DHL were both located outside of the state, job and cartage company were in New York. There was 1 dissent. Carlson v American Intl. Group, Inc.
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Statute of Limitations
Answering certified questions from the Second Circuit, the Court of Appeals clarified that public benefit corporations, like political subdivisions, do not have the capacity to challenge the constitutionality of a state enacted law in a case involving a constitutional challenge to the revival statute extending the statute of limitations for 911 first responders to a year after the enactment of the statute. The Court further defined the standard of constitutional review under the New York State Constitution as a reasonable, not arbitrary, remedy to address an apparent injustice which can include reviving actions barred by a statute of limitations. Matter of World Trade Ctr. Lower Manhattan Disaster Site Litigation.
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