November 7, 2017 | Vol. 79

MUST READS
(4 summaries)
NOTEWORTHY IF YOU MUST READ

Med Mal   Attorney Fees  

Second Deptartment

Plaintiff firm’s motion for an enhanced fee after a medical malpractice trial under Jud. L. § 474-a denied where $376,198.50 fee for 970 hours over 7.5 years, including 9 days of trial, did not represent an exceptionally low hourly rate or cause the law firm any financial detriment. Siu Kiu Lam v Loo


Med Mal   Products Liab   General Release   Agent   Independant Contractor  

Second Deptartment

Motions to dismiss based on documentary evidence, general release, res judicata, and failure to state a cause of action brought by the doctors and hospitals involved in an experimental bariatric procedure where manufacturer of the device being implanted had obtained a general release from the plaintiff to include all of manufacturer’s “agents, . . . independent contractors, representatives, . . . and all other related entities or persons who can ever be liable for the incident,” denied as defendants failed to show that they fell within the group being released or that there was identity of parties in the separate federal action sufficient for res judicata to apply. Burgos v New York Presbyt. Hosp.


MVA   General Release   Agent  

First

Macy’s and a volunteer at its Thanksgiving Day Parade granted summary judgment on proof that plaintiff agreed to release all liability as part of her application to volunteer at the parade. Other volunteer was an agent of Macy’s. O’Connell v Macy’s Corporate Servs., Inc.


Construction Liab.   Workers Comp Defense   Alter Ego   Sole Cause  

First

Lessee corporation that was formed to lease the premises, maintained separate address and bank accounts, and paid for renovations failed to show that it was the alter ego of plaintiff’s employer for the workers comp. defense even if there was overlap in ownership and management. Carpentry contractor and construction manager denied summary judgment where there were questions of fact regarding whether they created or contributed to the dangerous condition. It was not unforeseeable that plaintiff would travel over construction area where other exits were blocked. It was a matter of comparative fault, not sole cause. Reaves v Lakota Constr. Group, Inc.

NOTEWORTHY
(17 summaries)
MUST READS IF YOU MUST READ

Med Mal   Causation   Expert Aff  

First

Ophthalmologist who diagnosed the infant plaintiff with a cataract the only time he saw him granted summary judgment on proof that subsequent ophthalmologists did not perform cataract surgery because the condition was a congenital condition that could not be corrected by surgery instead of because of any alleged delay in treatment. A.M. v Andrade


Premises Liab   Elevator   3rd Party Contractor   Notice  

Second Deptartment

Building owner and outgoing and incoming elevator maintenance companies granted summary judgment where maintenance worker fell down empty elevator shaft on proof that none of the parties had notice of a dangerous condition and neither of the elevator maintenance companies failed through reasonable care to discover the condition. An elevator maintenance company that contracts to maintain an elevator in a safe condition can be liable to passengers for conditions it has notice of or which it failed to discover through reasonable care. Nunez v Chase Manhattan Bank


Labor Law §240   Labor Law §241   Scaffold   Industrial Code  

Second Deptartment

Judgment upon verdict in favor of defendant upheld where lower court denied plaintiff’s motion for summary judgment on Labor Law §§240(1) and 241(6) claims based on plaintiff’s conflicting versions of how the accident occurred. Industrial code provision 23-5.18[b] (manually propelled scaffolds) requires guardrails on all 4 sides of manually propelled scaffolds but plaintiff admitted that there were guardrails on all 4 sides. Solorzano v Skanska USA Bldg., Inc.


Labor Law §240   Labor Law §241   Labor Law §200   Industrial Code   Sole Cause  

Second Deptartment

Where defendant instructed plaintiff to remove a scaffold he had erected to paint a 4-family house and told him to paint the house quickly because a building inspector was coming, and plaintiff fell from a makeshift scaffold attached to fire escapes, defendant’s motion for summary judgment on Labor Law §§240(1), 241(6), and 200 were denied but because the plaintiff gave differing accounts of the accident, plaintiff’s motion for summary judgment on Labor Law §240(1) was also denied. Defendant’s evidence failed to show that the fall was not caused by a violation of Labor Law §240(1) or that the plaintiff’s own actions were the sole cause of the fall. Because the action arose out of the means and methods of work being performed and there was a question of fact as to whether the defendant had authority to supervise the plaintiff, defendant failed to meet its burden on Labor Law §200. Industrial code provision providing that safety harnesses and belt shall not allow worker to fall more than 5’ (23-1.16[b]) was sufficiently specific for Labor Law §241(6). King v Villette


Med Mal   Accepted Practice   Causation   Expert Aff   CPLR § 3101(d)  

Second Deptartment

Defendants met their prima facie burden for summary judgment in case where the infant plaintiff’s appendicitis was not timely diagnosed resulting in a burst appendix with subsequent abscesses which plaintiff claimed required removal of the kidney 10 months later, by their experts’ affirmations that there was no departure from accepted practice nor causation for the plaintiff’s injuries and specifically the nephrectomy. Plaintiff’s expert’s opinion raised an issue of fact that the kidney infection resulting in the nephrectomy was caused by a walled off hematoma from the open appendectomy that later became infected. The plaintiff’s expert’s affirmation with redacted name was not deficient as the original with the name unredacted was offered to the court in camera. Stucchio v Bikvan


Serious Injury   Expert Aff   Degenerative  

First

In opposition to defendants’ radiologist’s and orthopedists’ opinions that plaintiff’s lumbar and knee injuries were degenerative, plaintiff’s psychiatrist’s and orthopedist’s opinions showed recent severe limited ROM of the lumbar spine and the orthopedist’s review of the MRI’s and observations during surgery directly addressed defendants’ expert’s opinions, finding several objective signs of degeneration missing in the lumbar spine. Plaintiff failed to raise an issue of fact on causation of the knee injury and cannot recover for the knee even if the jury finds serious injury for the back. Taylor v Delgado


MVA   Duty   Intervening Cause  

Second Deptartment

By waving a pedestrian to cross a street the driver of the shuttle assumed a duty of care but the unforeseen actions of the driver of another car, speeding into the crosswalk without slowing or stopping, was an intervening cause entitling the shuttle bus and driver to summary judgment. Esen v Narian


Premises Liab   Sidewalk   Snow/Ice   Storm in Progress   Expert Aff  

First

Defendants’ climatological records and meteorologist affidavit established that a winter storm was in progress at the time of plaintiff’s fall on ice on the sidewalk and plaintiff’s claims that he did not notice any precipitation falling or on the ground did not raise a question of fact as it would at most amount to a lull as shown by the detailed records and opinion. Wexler v Ogden Cap Props., LLC


MVA   Turning Vehicle   Premature Motion  

First

Plaintiff granted summary judgment on liability on proof that he was making a right-hand turn from a designated right-hand lane when defendant made a right-hand turn from the lane to the left of the plaintiff, entered his lane, and struck him. Relying solely on pleadings and arguments of counsel, defendant failed to raise an issue of fact. The motion was not premature as the facts were within the knowledge of the defendant and the defendant was obligated to step up with the facts. Thompson v Pizzaro


MVA   Set Aside Verdict   Causation   There to be Seen  

Second Deptartment

Plaintiff’s and car defendant’s motions to set aside verdict as against the weight of the evidence denied where the jury found the tow truck defendant negligent in pulling out from a parked space without making sure it was safe but that such negligence was not a cause of the accident and that the car defendant’s failure to see what was there to be seen to avoid the accident was the sole cause of the accident. The issues of causation and negligence were not inextricably interwoven as to make the verdict inconsistent and there was a rational basis upon which the jury could reach its verdict. Gibson v Singh Towing, Inc.


Med Mal   Statute of Limitations   Accepted Practice   Causation   Expert Aff  

Second Deptartment

Medical Center met its initial burden of showing that the action was commenced beyond the statute of limitation, but plaintiff raised a triable issue of fact as to whether subsequent admissions to the medical center constituted continuous treatment. Likewise, the medical center met its initial burden on accepted practice and causation, but plaintiff raised triable issues of fact by his expert’s opinion that defendants departed from accepted practice by leaving a metallic object inside the plaintiff during the first surgery and that such departure was a proximate cause of plaintiff’s injuries. Gray v Wyckoff Hgts. Med. Ctr.


Labor Law §200   Dangerous Condition  

First

Defendant granted summary judgment on Labor Law §200 and negligence claims where plasterer hit his head on a scaffold tie-in as there was no proof that the tie-in constituted a dangerous condition. Alvarez v City of New York


BP   Discovery   Preclusion  

First

Because BP had only vaguely pled the need for future surgery, defendants entitled to limited discovery on claimed need for future surgery in supplemental BP even though no new injury was alleged. Olivo v Nazario


MVA   Pileup   Feigned Issue  

First

Moving defendants in 4 car pileup denied summary judgment based on inconsistencies between statements given to the police on the date of the accident and statements in the moving defendant’s affidavit. Saxon v Ramirez


Premises Liab   Stairs  

First

Ambulette and home health aide service denied summary judgment where plaintiff’s decedent who suffered from Alzheimer’s fell down stairs at her home when left unattended after being transported home and left in the care of an aide, based on questions of fact as to how the accident happened. Sutherland v Comprehensive Care Mgt. Corp.


MVA   Comparative Fault   Causation  

Second Deptartment

Defendants denied summary judgment on testimony of plaintiff and defendant driver who told different stories of how the vehicles came into contact when plaintiff merged from the middle lane to the right lane where defendant’s vehicle was getting ready to make a right-hand turn. There can be more than 1 cause of an accident and to be entitled to summary judgment the defendant must prove that the plaintiff was negligent and that the defendant was free from comparative fault. Bermejo v Khaydarov


Personal Juridiction   Service   Vacate Default   Traverse Hearing  

First

Defaulting defendants entitled to a traverse hearing based on defendant’s affidavit that she did not hear the doorbell ring or find any papers attached to her door. Richardson v Lopez

IF YOU MUST READ
(2 summaries)
MUST READS NOTEWORTHY

Med Mal   Accepted Practice   Causation   Expert Aff  

Second Deptartment

Physical therapy company made out prima facie entitlement to summary judgment on expert medical opinion that it’s staff did not depart from accepted practice and that no departure was a cause of the plaintiff’s decedent’s injuries but plaintiff’s expert’s opinion in opposition raised triable issues of fact. The court does not give the details of the proofs. Reustle v Petraco


Serious Injury  

Second Deptartment

Defendants made out the prima facie entitlement to summary judgment on serious injury but competent medical proof, but plaintiff raised a triable issue of fact in opposition. The court does not give the details of the proofs. D. R. v Kazachok

About Matt McMahon

Civil trials and appeals since 1984
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