April 12, 2022 | Vol. 308

(6 summaries)

Set Aside Verdict   Materially Deviates   Admissibility  

First Department
Trial court providently permitted plaintiff to call radiologist on rebuttal to impeach testimony of defendants’ radiologist even though she could have been called on direct case and her testimony could not be used as affirmative evidence. Trial court has discretion to allow rebuttal that should have been on direct case after party rests in civil cases.

Award of $5 million future economic loss set aside unless plaintiff stipulated to reduction to $3,598,706.20. Reinoso v New York City Tr. Auth.    

Malpractice   Accepted Practice   Causation   Experts  

First Department
Plaintiff’s expert’s opinion raised an issue by contradicting defense expert’s opinion that doctor supervising PA signing off on PA’s hospital record note was merely administrative, opining instead that failure to review record, discover and correct discharge instructions which did not instruct plaintiff to obtain follow-up imaging to rule out breast cancer as stated in the PA’s note was departure from accepted practice. Conflicting versions discharge instructions, where written instructions mentioned breast cyst and had name of breast clinic but did not instruct plaintiff to follow-up, and questions of whether triage nurse saw plaintiff at discharge required denial of defendants’ motions for summary judgment. Defendants made no attempt to show loss of chance of better outcome from 13-month diagnosis delay and plaintiff’s expert showed at least a 13% loss of chance. Almonte v Shaukat    

Premises Liab   Snow/Ice   Estate   Motion to Dismiss  

Second Department
Public administrator’s motion to dismiss on letters of administration showing administrator was appointed 4-months after plaintiff fell on sidewalk outside decedent’s property granted as administrator owned no duty to plaintiff at time of fall and letters of administration were undeniable judicial records qualifying as documentary evidence for motion to dismiss. Constant v Public Adm’r of Queens County    

Comment: Proper party would have been distributees.

Premises Liab   Frye   Preclusion   Causation  

First Department
Plaintiff’s experts precluded from testifying that low level gas leaks caused hypoxia, triggering early onset of genetic Huntington’s Disease, a condition for which plaintiff had a predisposition, after a Frye hearing where they admitted there were no scientific studies supporting that claim nor supporting claim low levels of gas could cause hypoxia. Defendants subsequent motion for summary judgment granted.

Plaintiff’s experts’ use of an “inverse approach” to opine she must have had toxic exposure based on her symptoms has long been rejected. Allen v Consolidated Edison of N.Y.    

Strike Answer   Discovery   Willful/Contumacious   Reargument   Appealable Order  

Second Department
Lower court providently granted guardian’s motion to strike group home’s Answer as home’s repeated failure to fully respond to discovery demands and a conditional order was willful/contumacious. Home’s argument that motion to reargue should have been treated as a motion to renew rejected and no appeal lies from denial of a motion to reargue. Sanabria v NYSARC, Inc.    


First Department
Lower court providently refused to apply maritime law as flight from Newport, RI to East Hampton, NY that crashed in ocean was not a “function traditionally performed by waterborne vessels” where neither airport was on an unbridged island. Maerov v Long Is. Airline, LLC    

(16 summaries)

Premises Liab   Out of Possession   Amend Complaint   Statute of Limitations  

Second Department
Port Authority granted summary judgment of plaintiff’s claim for slipping on ice at JFK terminal where lease showed it was an out of possession owner with no responsibility to maintain area. Plaintiff’s motion to amend Summons and Complaint to add tenant, brought after statute of limitations, denied without proof tenant was united in interest with Port Authority and knew or should have known it would be named absent mistake and proof plaintiff was provided with the lease 9-months before the statute of limitations ran. Leung v Port Auth. of N.Y. & N.J.    

MVA   Pedestrian   Discovery   Privilege   NYC  

First Department
NYC required to provide records of its driver’s guilty plea to an unclassified misdemeanor, who also pleaded guilty to VTL §1146 failure to yield traffic violation, as CPL §160.55 (sealing of conviction records of traffic infractions/violations) does not apply to unclassified misdemeanors and that record was never sealed. Lu-Wong v City of New York    

Labor Law §240   Labor Law §241   Labor Law §200   Control  

Second Department
Contractor denied summary judgment of Labor Law §§ 240(1), 241(6), and 200 claims by drywall finisher injured during renovation project where it was unclear if contractor was the GC and would be responsible for plaintiff’s work under Labor Law. Londono v Dalen, LLC    

Premises Liab   Wet Floor   Dangerous Condition   Unknown Cause   Create Condition   Notice   Building Code   Experts   Hearsay  

Second Department
Defendants failed to meet burden for summary judgement where plaintiff slipped on stair landing with thin layer of water on composite surface from melting snow piled on exterior walkway on claim landing was not dangerous as affidavit of tile manufacturer’s employee they submitted relied on hearsay documents not authenticated by business record exception instead of personally performing slip-resistance tests. Defendants’ engineering expert inspected site but did not conduct tests, improperly relying on manufacturer employee’s inadmissible affidavit. Expert’s claims that surface installation contractor represented tiles were slip-resistance and complied with building codes inadmissible hearsay.

Defendants failed to show they did not create or have notice of the condition or that plaintiff could not identify the cause of her fall. San Antonio v 340 Ridge Tenants Corp.    

Labor Law §240   Labor Law §241   Labor Law §200   Industrial Code   Sole Cause   Comparative Fault   Create Condition   Notice  

First Department
Defendants denied summary judgment of Labor Law §§ 240(1) and 241(6) claims as elevator mechanic was engaged in repair, not routine maintenance, where he spent 40-minutes removing and rewiring elevator call buttons to make sure elevator did not open onto renovation work, and was engaged in alteration where coworker sealed the elevator door with sheetrock. Plaintiff tripped and fell from a wooden ramp into an excavation hole created by a different sidewalk renovation project and defendants failed to show as a matter of law that tripping or leaning on a barricade was the sole cause of the fall and not just comparative fault.

Questions remained of whether lack of safety railing for a hazardous opening required by industrial codes §§ 23-1.7(b)(1)(i) and 23-1.15(a) was a cause of the accident where it was undisputed the opening was not protected “by a substantial cover fastened in place.” §23-1.18(c)(1) inapplicable since no structure was to be constructed or demolished.

Sidewalk subcontractor denied summary judgment of Labor Law §§ 240(1), 241(6), and 200 claims where testimony it was responsible for all aspects of sidewalk renovation under subcontract, including safety raised questions of whether it was an owner agent, even though the subcontract was not submitted, and there were questions of whether it created or had notice of the dangerous condition. Rooney v D.P. Consulting Corp.    

MVA   Police   Respondeat Superior   NYC  

Second Department
NYC denied summary judgment on its claim off-duty police officer returning home from work on motorcycle when he collided with plaintiff’s motorcycle was not acting in scope of employement where evidence that officer and fellow officers following plaintiff attempted to pull him over raised issue of whether they were engaged in police action at time of accident. Llorente v Wnorowski    

Labor Law §240   Labor Law §241   Labor Law §200   Create Condition   Notice   Last Inspection   Sole Cause   Indemnity   Workers Comp Defense   Grave Injury  

First Department
Building owner denied summary judgment of Labor Law §§ 240(1), 241(6), 200 and negligence claims of security installer injured when stack of sheet rock leaning against wall fell on him as he tried to move them where there was evidence sheetrock was there before plaintiff started work, owner failed to show last time area was inspected, and that it did not create or have notice of the condition. Questions remained on whether sheetrock fell because it was not secured by a § 240 safety device or if plaintiff’s disregard of instructions not to move sheetrock was sole cause of the accident. Issue remained of whether boards were safely stored under industrial code §23-2.1(a)(1) and whether it was a “passageway, walkway, stairway or other thoroughfare.”

Plaintiff’s employer denied dismissal of owner’s contractual indemnity claim where issues remained on whether owner was negligent but common-law indemnity and contribution claims were barred by workers comp exclusivity clause as plaintiff did not suffer a grave injury. Padilla v Touro Coll. Univ. Sys.    

Malpractice   Accepted Practice   Causation   Experts  

Second Department
Gastroenterologist met burden for summary judgment with expert opinion that he did not depart from accepted practice or cause decedent’s injuries or death when he correctly diagnosed adenocarcinoma during an endoscopy, confirmed by pathology, and a gastrointestinal stromal tumor (GIST) discovered when he removed the stomach mass 4-months later, and that he resolved any issue of whether the first pathology samples were switched with another patient’s by comparing DNA samples. Decedent was treated only for the GIST after it was diagnosed and a repeat endoscopy 8-months later found adenocarcinoma from which he died 8-months later. Plaintiff’s expert raised issues in opposition contradicting the defense expert’s conclusions, opining defendant’s departure in not performing an endoscopic ultrasound initially caused decedent’s injuries and death. Buch v Tenner    

Malpractice   Accepted Practice   Causation   Experts   Question of Fact  

First Department
Defendants did not meet burden for summary judgment where issues existed of whether 6-month delay in treating decedent’s breast cancer, failure to remove cancerous breast tumor at that time, and 3-month delay in treating remaining tumor were departures from accepted practice. Defendants failed to eliminate question of whether cancer was terminal State IV when they first saw her and whether treatment delay caused it to worsen. Plaintiff’s experts’ opinions that cancer was Stage IA when originally treated and became Stage IV 9-months later, and the effects this change had on plaintiff’s prognosis raised issues on causation. Muroff v Heerdt    

Negligent Supervision   Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice  

Second Department
Petition to deem late Notice of Claim timely served nunc pro tunc brought more than 1-year after infant fell on charter school stairs denied as school did not have actual knowledge of essential elements within 90-days as nurse’s call to mother did not include any details that would show lack of supervision, school employee mother spoke with 2-months later had no knowledge or information of the details, and letters sent by plaintiffs’ attorney did not disclose the essential facts of the claim.

Plaintiffs’ infancy excuse rejected without showing delay was caused by infancy and law office failure excuse was unsubstantiated. Plaintiffs also failed to offer evidence or a plausible argument that school was not prejudiced by delay. J. G. v Academy Charter Elementary Sch.    

MVA   Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice  

Second Department
Petition to serve late Note of Claim denied where police report did not show respondents had actual knowledge of essential elements of negligence claim for petitioner’s fall while exiting a county bus and a no-fault application does not satisfy the actual knowledge requirement. Ignorance of law and delays by unsubstantiated medical treatment do not provide a reasonable excuse. Petitioner failed to provide evidence or a plausible argument that respondents were not prejudiced by delay. Matter of Clarke v Veolia Transp. Servs., Inc.    

Premises Liab   Stairs   Experts  

First Department
Plaintiff denied summary judgment where he gave different versions of what step he slipped on in subway station, claimed water on step was from leaking overhead beam but his expert opined commuters tracked the leaking water to the stair, and NYCTA’s expert opined the leaking beam was inches in front of the bottom step and could not have caused the step plaintiff slipped on to be wet, and opined that step was wet because commuters tracked rain in from outside. Moser v New York City Tr. Auth.    

Malpractice   Motion to Dismiss   Causation  

First Department
Plaintiffs’ legal malpractice claim for discontinuance of underlying medical malpractice action against radiologist dismissed as they failed to plead proximate cause. Expert affidavit from underlying action did not correct pleading. Breach of fiduciary duty claim dismissed as duplicative of malpractice claim and it failed to plead proximate causation. Ozimek v DiJoseph    

MVA   Comparative Fault   Speculation  

First Department
Plaintiff granted summary judgment and dismissal of comparative fault defense on her affidavit that defendant pulled out from parking space into moving traffic and defendant admitted she did not see plaintiff’s vehicle before contact, making defendant’s claim plaintiff was speeding speculative. Ramroop v Stein    

Serious Injury   Causation  

Second Department
Defendant met burden for summary judgment on serious injury by competent medical evidence and plaintiff failed to raise an issue in opposition. Defendants did not meet burden on causation so burden never shifted to plaintiff on that issue. The Court does not give the details of the proofs. Williams v Nairwattie    

Dangerous Condition  

First Department
Con Ed and contractor that worked on a service box 3-years before plaintiff fell from her bicycle granted summary judgment on photographs showing service box, which plaintiff described as a big metal plate, was not raised or defective and plaintiff testified surrounding pavement which showed some broken pavement was not involved in the accident. Mizrahi v Consolidated Edison Co. of N.Y. Inc.    

(3 summaries)

SUM   Arbitration   Settlement   General Release   Service  

First Department
Offending car’s carrier granted permanent stay of SUM arbitration on release signed by injured party for $500 settlement specifically waiving any UM/SUM claims. Motion to stay timely based on carrier’s receipt of AAA letter where injured party failed to show service of proper arbitration demand 5-months earlier. Matter of Nationwide Affinity Ins. Co. of Am. v Ortiz    

Premises Liab  

Second Department
Town made out prima facie entitlement to summary judgment of claim it failed to construct and maintain stone seating area safely, injuring infant-plaintiff, and plaintiff failed to raise an issue in opposition. The Court does not give the details of the proofs. G. O. v Town of Orangetown    

Serious Injury  

Second Department
Defendant met burden for summary judgment on serious injury by competent medical evidence and plaintiff failed to raise an issue in opposition. The Court does not give the details of the proofs. Horowitz v Santiago    

About Matt McMahon

Civil trials and appeals since 1984. Retired partner McMahon | McCarthy.
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