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| NOTEWORTHY | IF YOU MUST READ | ||
 Maternal fetal medicine physician granted summary judgment on expert’s opinion that there was no medical basis to show that failure to diagnose fetal ventriculomegaly on a second trimester sonogram, delaying abortion until third trimester after which plaintiff’s decedent died of amniotic fluid embolus, caused or increased risk of developing amniotic fluid embolus. Rather than providing a conflicting opinion, plaintiff cross moved to amend Complaint and BP to add new theory that decedent died of failure to diagnose infection resulting in septic shock. Cross-motion to amend denied as plaintiff cannot raise new theory for the first time in opposition and plaintiff failed to give a reasonable excuse for not raising new theory until defendant moved more than 3-years after action commenced and 6-months after Note of Issue. Anonymous v GleasonComment: Lower court’s grant of motion to amend, reversed on appeal, was conditioned upon plaintiff reimbursing defendant’s $9,000 in costs. |
| Action commenced in name of deceased party not a “nullity” but subject to dismissal on motion for lack of capacity to sue and, upon dismissal, entitled to 6-month savings clause of CPLR §205(a). Defendants’ claim that identical suit commenced within 6-months of dismissal was not entitled to savings clause because lower court stated it was dismissed for “failure to prosecute,” an exception to §205(a), rejected where only reason previously given when dismissing original suit was judge’s statement that it was a “nullity” during oral arguments. Lower court can only make changes to an order under CPLR §5019 to correct clerical errors, not to change theories that would effect a party’s substantial right. Sokoloff v Schor Comment: Dismissal of identical action brought before initial action was dismissed was providently dismissed as savings clause of CPLR §205(a) cannot be invoked before an action is dismissed.Sokoloff v Schor. |
| School made out prima facie entitlement to summary judgment on negligent supervision by proof it provided adequate supervision during recess where infant plaintiff fell from monkey bars and that no amount of supervision could have prevented unexpected fall but failed to meet its burden on claim it maintained monkey bars and ground cover in a reasonably safe condition where it’s expert’s statement opining that it met all Consumer Product Safety Commission and American Society for Testing and Materials standards stated that the monkey bars and ground cover had been removed before she inspected the area. Without evidence of the height of the monkey bars and ground conditions at the time of the accident, expert’s opinion was speculative and conclusory. V.W. v Middle Country Cent. Sch. Dist. at Centereach |
| Plaintiffs’ pediatric emergency expert’s opinions on defendants’ departures from accepted practice in treating adolescent-plaintiff’s testicular torsion and causation for loss of his testicle was admissible even though expert only licensed to practice medicine in Connecticut and not a urologist or surgeon. Plaintiff’s expert laid a foundation for his expertise as expertise and experience in treating testicular torsion and his opinions on departures were based on an adequate standard of care which need not be in the exact locality but can be based on a minimum local, statewide, or nationwide standard. M.C. v Huntington Hosp. |
| Defendants granted summary judgment on proof that snowplow operator was engaged in snowplowing operation on Highway when plaintiff’s vehicle struck snowplow and was not operating the snowplow with reckless disregard required for liability under VTL §1103(b)(hazard vehicles). Plaintiff’s claim that plow was not down and engaged in plowing raised only a feigned issue as it contradicted plaintiff’s 50-H testimony as was his mother’s claim that defendants were not engaged in plowing which contradicted portions of her 50-H testimony that she did not see the snowplow prior to the accident and the fact that she had cataract surgery the day before the incident and was wearing a patch on one eye with blurry vision in the other. Ventura v County of Nassau |
| Subcontractor who poured self-leveling concrete later covered by separate contractor entitled to summary judgment on proof its contract was not so pervasive as to displace the contractor or owner’s maintenance obligations under Espinal. Contractor who covered concrete with warped Masonite that plaintiff tripped on failed to eliminate questions of fact on whether it launched an instrumentality of harm under Espinal. Mall’s operational director’s testimony of what he, “normally would do” and “probably would have” done during his inspection on the morning of the accident was insufficient to eliminate questions of fact on constructive notice. Pinto v Walt Whitman Mall, LLC |
| NOTEWORTHY (12 summaries) | |||
| MUST READS | IF YOU MUST READ | ||
| Judgment on jury verdict finding NYCTA 65% at fault and plaintiff’s decedent, who had BAC of .27, 35% at fault set aside and judgment granted as a matter of law on finding that there was no rational path for jury to find defendants’ negligence in leaving intoxicated plaintiff on the train as it entered a relay area to switch from southbound to northbound tracks could be a proximate cause of his death. It was unknown how decedent came to be between 2-cars when he fell on tracks. Williams v New York City Tr. Auth. |
 Defendants failed to meet burden of showing that Bronx was improper venue because doctor-defendant had his principal office in Westchester based on doctor’s affirmation that he resided in Westchester, without any documentary proof, and failed to rebut plaintiff’s proof that doctor listed only his Bronx office on his license filing, evidenced by Department of Education website printout, his letterhead, and his testimony that he had offices in Westchester and Bronx and saw significant patients in the Bronx office, St. Barnabas Hospital, and clinics operated by St. Barnabas. Individual-owned businesses can be resident of all counties where they have offices. Lividini v Goldstein |
| Defendants granted summary judgment where plaintiff fell from sidewalk with 17″ drop to adjacent train tracks covered with 10+” of snow without warnings of the elevation drop, on proof that it was a storm in progress and warnings were not necessary. The court does not give the details of the proof on warnings. Plaintiff failed to raise issue in opposition where her expert’s opinions were speculative, conclusory, and did not refer to any specific safety standard. Strickland v Long Is. Rail Rd. |
| Plaintiff’s testimony, submitted by defendants on their motion for summary judgment, that he felt the front of his foot make contact with “break” in sidewalk and his identification of area and crack where he fell on photograph his daughter showed him several days after accident and told him it was where he fell sufficiently showed that he could identify the cause of his fall without speculation. Padilla v CVS Pharmacy |
| Motion for leave to serve late Note of Claim made 2.5 years after plaintiff injured during construction of Tappan Zee Bridge denied where plaintiffs failed to provide a reasonable excuse, demonstrate that NYSTA had notice of essential facts, that NYSTA had an opportunity to investigate the claim (a factor under Court of Claims Act § 10[6]), and make their initial showing of no prejudice. Tucker v New York State Thruway Auth. |
| JHO had authority under CPLR §3104 to decide motion to dismiss for failure to prosecute since plaintiff demonstrated that 90-day notice was sent prior to completion of discovery, and plaintiff’s cross-motion to restore case and compel depositions granted. Ruiz v Darren Corp. |
| Parking lot management company granted summary judgment on proof it did not own, occupy, control, or make special use of the parking lot, that it owed no duty to the plaintiff, who slipped and fell on ice, under its contract and that none of the Espinal exceptions applied in that its management agreement was not so comprehensive and exclusive as to displace the owner’s responsibility to maintain the property. Reeves v Welcome Parking Ltd. Liab. Co. |
| Defendants failed to meet initial burden of showing that plaintiff’s choice of venue in Kings County was improper because no party resided in Kings County and the corporate defendant’s principal place of business designated in the certificate of incorporation was in Nassau County where they failed to submit the certificate of incorporation and submitted an uncertified print out from the Secretary of State’s division of Corporation website without laying a foundation for it as a business record. O.K. v Y.M. & Y.W.H.A. of Williamsburg, Inc. |
| NYCTA denied summary judgment where it failed to eliminate questions of whether bus stopped in area with dangerous road condition that required plaintiff to walk over dangerous area to get to bus in violation of common carrier’s duty to provide safe entrance to bus. Nowak v City of New York |
| Pedestrian in crosswalk with traffic signal granted summary judgment where bus made left turn striking her in crosswalk, showing that bus failed to yield right-of-way. Absent proof that evidentiary material exclusively within plaintiff’s knowledge or possession was necessary to oppose the motion, the motion was not premature. Rodriguez-Garcia v Bobby’s Bus Co., Inc. |
| Homeowner granted summary judgment where tenant tripped on marble door saddle that was 2″ higher than hardwood living room floor as condition was open/obvious by persons reasonably using their senses and not inherently dangerous. Locke v Calamit |
| Plaintiff’s motion to strike defendant’s Answer or for spoliation sanctions denied where defendant provided video footage of accident and plaintiff failed to show that 2-hour missing period deprived him of ability to prove his case. Hirschberg v Winthrop-University Hosp. |
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