MVA Pedestrian Serious Injury Preclusion
 Lower court properly precluded plaintiff’s expert neuropsychiatrist from testifying regarding the history of the accident and complaints, and a last-minute physical examination conducted on the eve of trial without notice to the defendants. A non-treating expert may not testify regarding history or complaints in the medical records as related by the plaintiff but may testify regarding a physical examination, where appropriate. Jury’s finding of no serious injury supported by defendant’s radiologist and behavioral neurologist. Scariff v Wall St. Mail Pick Up Serv., Inc.
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Discovery Appealable Order
 Defendants appeal from a compliance conference order which limited the infant plaintiff’s EBT solely to the issue of damages was dismissed. There is no appeal from an order which did not decide a motion on notice and defendant did not take a motion seeking leave to appeal. Biton v Serour
Comment: This is an important reminder that preliminary conference orders, compliance conference orders, and status conference orders not deciding motions made on notice are not automatically appealable. If a party wishes to appeal something from the order, they should move on notice or make a motion for leave to appeal.
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Summary Jud Late Filing
The lower court properly denied defendant’s motion for summary judgment as filed beyond the time set in her part rules. Defendant’s argument that they were unaware that Judge Guzman was assigned to the case was incredible since their notice of motion noted her assignment. Chmielowiec v Blackwood
Comment: While the general rule in Bronx Supreme Court is that you have 120 days after note of issue to file for summary judgment each justice may set his/her own time for summary judgment motions. It would appear that at the present time the only justice with a shorter time (60 days) is Justice Willa Guzman. Bronx Part Rules.
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Med Mal Pain/Suffering Materially Deviates Set Aside Verdict
The court ordered a new trial unless plaintiff stipulated to reduce $2,000,000 award for past pain-and-suffering to $900,000 and $1,500,000 award for future pain and suffering for 28 years to $200,000 and sustained the lower court’s reduction of $1 million for the ex-wife’s loss of services claim to $100,000. The court does not discuss the details of the case but, per the lower court’s opinion, the jury found that the defendant doctor had misdiagnosed the plaintiff’s cataplexy as myasthenia gravis, subjecting plaintiff to unnecessary major surgery and prolonged unnecessary drug treatment resulting in significant weight gain and compromise of his immune system. The court saw no reason to set aside liability verdict. Wyble v Lange
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MVA Respondeat Superior
Plaintiff was injured, while driving her own car, in an accident with a car driven by an individual defendant and owned by her husband. In addition to suing the individual defendants, plaintiff sued the County of Suffolk and Suffolk County Child Protective Services whom the defendant driver was working for at the time of the accident. The county defendants moved for summary judgment on the ground that the individual defendant was an independent contractor and not an employee based on proof that they had minimal control over the individual defendant and that she was an independent contractor for tax purposes. Respondeat superior does not apply against independent contractors. Plaintiff failed to raise a triable issue in opposition and its claim that the individual defendant’s work was the same as when she was an employee of the Suffolk County Child Protective Services previously was insufficient to render her an employee without a showing of substantial control. Meehan v County of Suffolk
Comment: After dismissal of the case in chief against that the county defendants, the individual defendants brought a third-party complaint against them for breach of a contract provision to provide car insurance. The county’s motion to dismiss the third-party action was denied, the third-party suit was severed, and the individual defendant’s insurance carrier, State Farm, was joined in the severed action. Meehan v County of Suffolk
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Med Mal Accepted Practice Judgment Rule Expert Aff
Defendants made out prima facie entitlement to summary judgment by expert’s opinion that the plaintiff mother was not a candidate for cerclage and that peer-reviewed studies showed progesterone to be more effective at avoiding preterm birth where there is cervical incompetence. The child was born at 23 weeks with significant brain damage. Plaintiff’s expert opined that both were acceptable treatments within good and accepted practice but that cerclage was “preferable.” Absent an opinion from plaintiff’s expert that the doctor departed from accepted practice, plaintiff failed to raise a triable issue of fact under the judgment rule. A.C. v Sylvestre
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3rd Party Contractor Espinal Burden of Proof
Defendant, boiler maintenance company, who had a contract for the maintenance of the codefendant’s residential boiler were not entitled to summary judgment in case where plaintiff, home health worker, was injured while trying to adjust the water level in the boiler, because they failed to meet their burden of showing that their contract was not comprehensive and exclusive, one of the exceptions under Espinal. Arana v Kish
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Vacate Default Personal Juridiction Service Venue
Two defendants moved to vacate defaults and to change venue from Bronx to Suffolk County. The lower court ordered a hearing regarding service and denied change of venue without prejudice. The appellate court modified to deny change of venue with prejudice since the LLC defendant sought to vacate only on CPLR 317 and 5015(a)(1), which presume jurisdiction, and not CPLR 5015(a)(4). Having waived any issue of improper service defendant was not entitled to move for change of venue. Lower court, however, properly granted motion to vacate for LLC under CPLR 317 as proofs showed that the Secretary of State mailed copies to the wrong address and that the local postal carrier did not follow certified mail rules. Lower court vacated only the damage portion of the judgment as against the other defendant who did not appear at the hearing regarding motion to vacate. The judgment was very large and could result in inconsistent results for the LLC at trial. Non LLC Defendant is entitled to present evidence to mitigate damages and evidence of comparative fault at trial. Darbeau v 136 W. 3rd St., LLC
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Premises Liab Out of Possession
Infant was struck by a piece of wood that fell from a sukkah, a temporary structure for eating meals during the Sukkot holiday, erected on a second-floor balcony by the tenant. Landlord was entitled to summary judgment upon a showing that it was an out of possession landlord. Although landlord had the right to enter and repair the premises, there was no statutory or contractual obligation to repair the temporary structure. Chalouh v Lati, LLC
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Labor Law §240 Industrial Code
Plaintiff who was injured when a screw he was driving into sheet rock kicked back into his eye raised a triable issue of fact regarding industrial code 12 NYCRR §23-1.8(a)(operation which may endanger the eyes). Since Labor Law §200 claim was dismissed, there was no bar to owner and management companys’ claim against contractor for indemnity which, under the contract, required indemnity “to the fullest extent permitted by law…,” since owner/management company’s liability was purely vicarious. Paulino v Bradhurst Assoc., LLC
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Med Mal Accepted Practice Expert Aff
Parents of 17-year-old who died of cardiac arrest sued hospital, doctors, and ambulance company for not diverting their son to Montefiore Hospital, which was a tertiary care facility. Defendants were entitled to summary judgment on showing that they complied with the applicable Westchester Regional Paramedic Protocols in bringing the patient to the nearest “appropriate facility.” Although St. Joseph’s Hospital was not a tertiary care center, it was an appropriate facility under the protocols and plaintiff’s expert’s opinion merely stated that Montefiore would be a “preferable” facility, not that St. Joseph’s was inappropriate. Liburd v St. Joseph
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Med Mal Burden of Proof Expert Aff
Defendant radiologist failed to meet his burden of showing that he did not depart from accepted practice or that his departures were not the proximate cause of plaintiff’s decedent’s injuries based solely on his own affidavit which was conclusory in that it did not address the specific allegations raised by the plaintiffs and he failed to show how he came to his conclusions based on a limited number of images from a video sonogram which he could not locate and his initial report. Ross-Germain v Millennium Med. Servs., P.C.
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Asbestos Statute of Limitations Discovery Rule
Plaintiffs’ allegations that defendant failed to advise them that there was asbestos in wood panels and doors installed in their facility was not entitled to the 3 year from discovery statute of limitations under CPLR §214-c, because the harm was caused at the time they were delivered and not by exposure thereafter. Defendant entitled to summary judgment on statute of limitations. All Craft Fabricators, Inc. v Syska Hennessy Group, Inc.
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Premises Liab Notice
A Plaintiff in a ceiling collapse case is entitled to summary judgment if it can show that a ceiling had leaked for a period of time and that the landlord had actual or constructive notice of the leak and did not repair it. Here the plaintiff showed that the ceiling had leaked and was repaired on numerous occasions over several years, that the ceiling had previously collapsed, and that she had notified the superintendent of the leak three days prior to the ceiling collapsing on her, and that it was not repaired. Defendant failed to raise a triable issue of fact. Toussaint v Ocean Ave. Apt. Assoc., LLC
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MVA Rear End Premature Motion Discovery Nonnegligent Explanation
Plaintiffs entitled to summary judgment on showing that defendant’s vehicle hit theirs in the rear while they were stopped at a red light. Defendant failed to proffer a nonnegligent explanation and claim that depositions were necessary is unavailing since any claim of a nonnegligent explanation would be within defendant’s own knowledge. Castaneda v DO&CO N.Y. Catering, Inc.
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Premises Liab Elevator Workers Comp Defense Indemnity
Defendant employer was entitled to summary judgment based on plaintiff’s W-2s, plaintiff EBT, and employer’s testimony regarding company organization. Name of employer given by plaintiff at EBT was a tradename of the defendant corporation. Employer was also entitled to contractual indemnity against elevator maintenance company conditioned on proving that employer was not negligent. Antoniak v P.S. Marcato El. Co., Inc.
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Labor Law §240 Untimely
Plaintiff fell from a ladder while descending from a scaffold and was granted summary judgment under Labor Law §240(1). Defendant appealed solely on the ground that the motion was untimely since it was filed more than 120 days after note of issue. The note of issue, however, had been vacated during the pendency of the motion and was therefore properly considered. Mills v City of New York
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Discovery Strike Note of Issue Motion in Limine
Lower court properly denied defendant’s motion to strike note of issue, for additional discovery, and to preclude plaintiff from testifying at trial, since motion was filed more than 20 days after the note of issue and defendant did not give a reasonable excuse for the delay or proof that substantial injustice would result. Defendant’s attempt to get around the 20-day limitation by claiming it was a motion in limine was rejected as failure to obtain any discovery was due to defendant’s own inaction. Allen v Hiraldo
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NYC Late Notice of Claim Leave of Court Nullity
Defendant New York City and New York City Department of Education were entitled to summary judgment where plaintiff served a late notice of claim without leave of court, which was a nullity. Mosheyev v New York City Dept. of Educ.
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Premises Liab Dangerous Condition Create Condition Notice
Defendant showed by deposition testimony of the hospital employee and plaintiff, and plaintiff’s 50H hearing that the accident was not caused by a dangerous condition when plaintiff sat in a chair with wheels that rolled out from under him while at a pain management clinic. Wilks v City of New York
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Vacate Default Service Meritorious Defense
Third-party defendant was not entitled to vacate default under CPLR 317 and 5015(a)(1) because it had not updated its address for service with the Secretary of State for more than three years and cannot show a reasonable excuse for failing to answer. In addition, third-party defendant failed to show a meritorious defense. Vengrenyuk v Exxonmobil Oil Corp.
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Premises Liab Open/Obvious Inherently Dangerous
Defendant entitled to summary judgment where plaintiff testified that he saw a pile of Christmas trees before tripping over one of the trunks, and where plaintiff failed to rebut defendant’s testimony that there was no dangerous obstruction to the sidewalk. The condition was open and obvious and not inherently dangerous. Barchi v Rudin E. 55th St. LLC
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Serious Injury Expert Aff Treatment Gap ROM 1983 Action
Defendant made out prima facie showing for summary judgment on serious injury by radiologist’s opinion that there was only a glenoid labrum tear, which he opined was a degenerative condition, and no supraspinatus tear, which would be traumatic, and neurologist’s affirmation that plaintiff made no complaints of shoulder pain for 4 months. Plaintiff raised triable issues of fact by medical records showing that she had complained of shoulder pain 6 days after the accident and throughout physical therapy and by her orthopedist’s opinion that the MRI showed both glenoid labrum and supraspinatus tears which required arthroscopic surgery, with resulting limitations of range of motion. Defendant’s claim that gap in treatment for shoulder injury after being diagnosed defeated serious injury was overcome by plaintiff’s explanation that the delay was due to her pregnancy and baby care. Acosta v Ramos
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Serious Injury
Defendant entitled to summary judgment on serious injury on affirmed reports of radiologist and orthopedist that plaintiff had a congenital abnormality which predisposed him to degeneration also present on the MRI. Plaintiff’s orthopedist did not address defendants’ opinions or explain how plaintiff’s condition was related to the accident and not the congenital condition. Brown v Bawa
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Question of Fact
Ambulette company was not entitled to summary judgment where evidence showed that they had been told that the patient could not be left unattended. Driver briefly left plaintiff’s decedent unattended while going to open the door, at which point she fell. There were questions of fact which could only be resolved by a jury. Jackson v Happy Care Ambulette, Inc.
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Service Vacate Default Raised For First Time
Order denying defendant’s motion to vacate default, compel acceptance of an answer. and dismiss for lack of service was properly denied as defendant failed to give a reasonable excuse for his failure to answer the complaint which was served on his office at the same address listed in his motion papers. Claims of ill health and late filing of affidavit of service were not raised below and were not considered. Antiohos v Morrison
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