Asbestos Products Liab Set Aside Verdict Pain/Suffering Materially Deviates CPLR Art. 16
 Opinion of plaintiff’s expert at trial that mesothelioma was caused by exposure to asbestos dust from using a grinder on automobile brake linings was sufficient to sustain verdict and award as reduced by the lower court to $5 million/$4 million past/future pain-and-suffering and did not materially deviate from reasonable compensation. Jury finding of 86% liability against manufacturer of grinder, under Article 16 apportionment, was supported by the evidence. Matter of New York City Asbestos Litig.
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Med Mal Accepted Practice Causation Expert Aff Conclusory
Defendants granted summary judgment on proof that their administration of Propofol and remedial measures taken after a venous reaction to the IV without infiltration or leakage into the surrounding tissues met with accepted practice and was not the cause of the plaintiff’s CRPS. Plaintiff’s experts’ opinions were conclusory in that they opined that there was a partial infiltration but could not quantify an amount of leakage of the Propofol or pinpoint when it occurred and put forth no medical explanation or support for their claim that the CRPS was caused by the injection. Plaintiff’s expert failed to address defendants’ experts’ opinions that the measures taken including elevation and warm compresses were a departure from accepted practice or why the expert’s alternatives were more appropriate. Rivera v New York Pain Care Ctr., P.C.
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Premises Liab Warnings Jury Charge Set Aside Verdict
 Plaintiffs’ motion to set aside defense verdict based on claim that court failed to charge portion of PJI regarding warnings denied as jury found there was no dangerous condition muting the question of warnings. LaMorte v CFG Profile, Inc.
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Train Assault
NYCTA’s motion for summary judgment in case where plaintiff was pushed into an oncoming train on a subway platform denied. While NYCTA addressed plaintiff’s claims of lack of security to prevent the assault, it failed to eliminate questions of fact regarding whether the train was speeding and whether there was sufficient time for the operator to stop before striking the plaintiff. Linhart v Rojas
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Labor Law §240 Labor Law §200 Control
Plaintiff sustained injuries from the repetitive work of grabbing buckets from a higher level which subjected him to the risks of construction work but not the extraordinary risks of elevation protected by Labor Law §240(1). Labor Law §200 and negligence claims dismissed against general contractor who exercised only general oversight with the means and methods of plaintiff’s work solely determined by his employer. Ciechorski v City of New York
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MVA Duty There to be Seen
Defendant granted summary judgment on proof that he was driving 5-10 mph and that infant plaintiff ran out between parked cars. Proof that a driver is aware that children frequent the area does not automatically create a question of fact and plaintiff failed to raise a question of fact on whether defendant should have seen the infant before impact. A.C. v Ajisogun
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Vacate Default Compel Acceptance Motion to Dismiss
Plaintiff’s motion for default judgment denied and defendant’s cross motion to dismiss the complaint as abandoned for not taking a default within 1 year denied. There was sufficient evidence that plaintiff’s failure to take the default within 1 year was due to law office failure. Defendants were allowed to submit a late Answer because they promptly responded to plaintiff’s correspondence, made efforts to investigate the claim, and there was proof that defendants never received the Summons and Complaint. Gause v 2405 Marion Corp.
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MVA Sole Cause Comparative Fault
Driver and owner of car where infant plaintiff was a passenger denied summary judgment for failing to eliminate question of fact as to their own fault while making a left turn with a green light when they were struck by a vehicle that ran a red light. Driver with the right-of-way can anticipate that other drivers will yield but defendants failed to show that they used reasonable care to avoid the accident. Fargione v Chance
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Emotional Harm Amend Complaint Statute of Limitations Respondeat Superior Raised For First Time
In action for intentional infliction of emotional distress plaintiff’s motion to substitute individual sheriffs for “John Does” granted even after the statute of limitation expired as plaintiff met burden of showing applicability of relation back doctrine, that the claim arose out of the same transactions, the sheriffs were united in interest with the original parties, and that they knew or should have known that absent a mistake they would have been included in the original suit. The same sheriffs were involved in a federal lawsuit involving the same transactions brought by the estate of the plaintiff’s brother which the parties sought to consolidate and in which discovery proceeded along with discovery in this suit. That portion of the plaintiff’s motion which sought to add a negligent hiring cause of action against the County properly denied as plaintiff conceded that he was seeking to add respondeat superior and not negligent hiring which was only raised for the first time in a reply. Eriksen v County of Suffolk
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1983 Action Notice of Claim Amend Complaint Statute of Limitations Respondeat Superior
Plaintiff’s motion to amend the Complaint to include a 1983 action denied as the claim was sought to be added after the 3-year statute of limitations expired, the relation back doctrine did not apply, and the proposed amendment was palpably insufficient as it did not adequately allege that the constitutional violation of rights was the result of a governmental custom, policy, or usage. Plaintiff’s motion to substitute officer for John Doe also denied as plaintiff could not meet the criteria for the relation back doctrine as a municipality cannot be vicariously liable for 1983 violation eliminating “unity of interest.” Thomas v City of New York
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