Med Mal Directed Verdict Set Aside Verdict Accepted Practice Causation Expert Aff Pain/Suffering Materially Deviates
 Directed verdict for defendants reversed where plaintiffs’ experts’ testified defendants departed from accepted practice by not performing continuous electronic fetal heart monitoring (EFM) after mother fell at 37 weeks gestation and that fetomaternal transfusion caused extreme anemia and loss of oxygen availability to baby’s brain resulting in cerebral palsy, providing rational path for jury’s verdict on departure from accepted practice and causation. Denial of plaintiff’s motion to set aside damage verdict awarding $0 for past/future pain/suffering and future lost earnings reversed as materially deviating from reasonable compensation where infant suffered catastrophic injuries. Case remanded for new trial on damages. Larkin v Wagner
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Motion to Dismiss 50-H NYC
A 3/2 majority upheld dismissal for not complying with Gen. Mun. Law §50-H where plaintiffs appeared for 50-H hearing but refused to go forward unless both driver and passenger could sit in at each hearing claiming absolute right to be present under statute. Second Department found 5–H language “he or she is entitled to have such examination in the presence of his or her own personal physician and such relative or other person as he or she may elect” applied only to physical examinations and that NYC did not make a knowing waiver of hearing. Two dissenters found NYC waved 50-H hearing and that quoted language pertained to both oral and physical examinations. Colon v Martin
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Med Mal Accepted Practice Causation Expert Aff Speculation Conclusory
Plaintiff raised issue of fact by unsworn expert affidavit where defendants waived issue of unsworn affidavit not being competent evidence by not raising it below. Plaintiff’s expert opined defendants improperly allowed cystoscope or ureteroscope to extend beyond surgical field into bladder dome causing plaintiff’s injuries. Defendant surgeon’s testimony not stated to a reasonable degree of medical certainty did not render plaintiff’s expert’s opinion speculative or conclusory. Lefkowitz v Kelly
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MVA Intervening Cause Reckless
NYCTA and MTA granted summary judgment where plaintiff’s decedent was intoxicated, jumped onto tracks, walking into tunnel, and remained there for 2-hours before being struck by train. Defendants showed reasonable care as a matter of law by sending police officers on trains in both directions, driving slowly, looking for plaintiff’s decedent. Decedent’s actions were “so obviously fraught with danger” as to be reckless and wanton creating an intervening cause breaking the chain of causation. Nelson v New York City Tr. Auth.
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Asbestos Vacate Jud CPLR Art. 16 Workers Comp Grave Injury
 Judgment allocating 30% liability against Con Ed as found by jury increased to 65% to include jury’s finding of 35% liability against employer who plaintiff was barred from suing by workers compensation while Con Ed could pursue indemnity based on grave injury. Argument that finding against employer was for periods of exposure while plaintiff worked for other companies or as a manufacture was not clear from record and Con Ed as proponent of claim had burden of proof. Matter of New York City Asbestos Litig.
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MVA Venue
Out-of-state resident properly brought action in Queens County where accident occurred under 2017 amendment to CPLR 503 designating “the county in which a substantial part of the events or omissions giving rise to the claim occurred” as a basis for venue and defendant failed to meet burden of showing plaintiff’s choice of venue improper. Defendant also failed to show inconvenience of witnesses and her own inconvenience is not a factor in changing venue. Marrero v Mamkin
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Med Mal Informed Consent Admissibility Dead Man Statute Accepted Practice Causation Expert Aff
Orthopedic surgeon who performed arthroscopic knee surgery on plaintiff’s decedent who stopped breathing and died from cardiac arrest while being transferred from operating room granted summary judgment on medical malpractice and informed consent claims. Detailed affidavit from surgeon’s expert showed surgery was not contraindicated, performed within accepted practice, surgeon did not administer anesthesia, was not responsible for obtaining informed consent as to anesthesia, and that surgery was not a proximate cause of death.
Surgeon’s expert’s reliance on consent form for arthroscopic surgery signed by plaintiff’s decedent 2-years before death was not barred by Dead Man statute, CPLR §4519, which does not apply to written documents authenticated by source other than interested witness. Plaintiff’s reliance on attorney’s affirmation in opposition insufficient to raise questions of fact. Wright v Morning Star Ambulette Servs., Inc.
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Labor Law §240 Workers Comp Defense Recalcitrant Worker Sole Cause
Worker entitled to summary judgment under Labor Law §240(1) for fall from ladder that moved for no apparent reason and dismissal of affirmative defense of “recalcitrant worker,” which the court explained would be part of a sole proximate cause defense, because claim that plaintiff placed ladder on drop cloth would be no more than contributory negligence, not a defense under §240(1). Defendant’s motion for summary judgment under exclusivity clause of workers comp claiming that it was alter ego of maintenance company plaintiff worked for denied where defendant failed to show that it operated as a single integrated entity with management company which, although related, was formed as a separate corporation, maintained its own bank accounts, paid its own expenses, filed separate tax returns and schedule Cs, entered into management agreement with maintenance company for several properties, maintenance company paid its own employees, performed work and hired contractors, and management company’s employees were unaware that the property and management company were owned by the defendant, and that plaintiff was not a “special employee” of the defendant where plaintiff was paid for and his work controlled exclusively by the maintenance company. Salinas v 64 Jefferson Apts., LLC
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Interest
Judgment runs from date of order granting summary judgment until amount is paid, tendered, or paid into court under 11 NYCRR 60-1.1(b) and carrier’s offer to pay policy, while mentioned in policy as a ground to halt interest, is not enforceable since it is less favorable than regulation. Gyabaah v Rivlab Transp. Corp.
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Premises Liab Set Aside Verdict Labor Law §200 Snow/Ice Storm in Progress Pain/Suffering Wrongful Death Materially Deviates
Judgment on verdict awarding $500,000 for decedent’s pre-impact terror, $3,000,000/$3,000,000 for husband’s past/future pain/suffering, $1,495,000 for his past economic loss, and $1,440,000 for decedent’s past/future economic loss reduced by 50% except for decedent’s pre-impact terror which remained at $500,000. Front door of building under construction where plaintiffs were hired to install wallpaper was closed so they drove through a gate onto a rooftop parking lot covered with ice causing car to skid and fall into a ravine killing wife. Husband jumped out before car went through steel cable guardrail and watched it drop into ravine with his wife screaming his name as she was dying. Lower court providently put issue of storm in progress to jury which found no storm in progress and in any event, there were other theories of liability including violation of Labor Law §200, failure to maintain property in a reasonable condition including creating a dangerous condition by plugging drains and having notice of condition. Award as reduced did not materially deviate from reasonable compensation. Simon v Granite Bldg. 2, LLC
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Premises Liab Foreseeability Assumption of Risk Causation Intervening Cause Expert Aff
NYCHA failed to meet burden for summary judgment where 11-year-old who climbed onto play house outside NYCHA building and fell onto asphalt surface. Infant’s and mother’s testimony that children often climbed on play house and that she had complained about surface to NYCHA, submitted by NYCHA on motion, failed to eliminate questions of fact on foreseeability that children would climb on play house contrary to their expert’s opinion that it was not intended to be climbed on, did not require a padded surface, and that lack of padded surface was not cause of injuries. NYCHA also failed to establish infant fully appreciated risks of falling from the play house to asphalt versus impact resistance surface, necessary for primary assumption of risk, or that her actions were so reckless and unforeseeable as to break chain of causation. J.R. v City of New York
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Med Mal Duty
Bariatric surgeon granted summary judgment on claims he failed to resume plaintiff’s Lexapro after surgery in ICU resulting in agitation necessitating wrist restraints that resulted in wrist drop. Physician’s duty limited to functions undertaken by physician and relied on by patient and surgeon was justified in relying on ICU staff to manage patient’s nonsurgical medications. O’Toole v Goodman
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Asbestos Vacate Jud Causation Expert Aff
$1,791,772.56 judgment against Caterpillar vacated where plaintiff was unable to quantify degree of exposure to asbestos from Caterpillar’s products, failing to provide scientific basis for his expert’s opinions on causation. Corazza v Amchem Prods., Inc.
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Negligent Supervision Causation
School district granted summary judgment where 8th grader fell when her shin struck knee-high fence her and her friends jumping over as part of game at recess as it was age-appropriate activity and lack of supervision was not a proximate cause of accident. Chiauzzi v Sewanhaka Cent. High Sch. Dist.
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Negligent Supervision Foreseeability Notice of Claim
School district granted summary judgment for injuries to student attacked by fellow student in classroom as teacher was in hall directing students where to go, fight lasted only 20-30 seconds, and school district had no actual or constructive notice of student’s propensity for violence. Claims other than negligent supervision not mentioned in Notice of Claim not considered. Meyer v Magalios
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Pothole Law Prior Written Notice NYC
Departmental searches showing no complaints of sunken catch basin for 2-years prior to accident established no prior written notice of defects required under pothole law and telephone customer service reports were not prior written notice. Work orders created in response to the customer service reports were not written acknowledgments of defect because they referred to different corner and notice of defect at a different location in the area is not notice of a defect to the other area. Hued v City of New York
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Premises Liab Res Judicata Estoppel Amend Complaint Punitive Damages
Questions of fact on whether elevator dropped in free fall and whether elevator maintenance company had notice of roughing (metal corrosion) condition of hoist cable identified in violation 4-months before accident precluded summary judgment for plaintiff. Building’s guilty plea to general safety administrative code did not have res judicata or collateral estoppel effect because it did not admit notice of the condition. Plaintiff’s testimony that elevator dropped, violation for cable corrosion, and dispute over whether contract was extended raised issues precluding maintenance company’s summary judgment. Amendment of Complaint to include punitive damages denied where allegations did not show reckless disregard. Shannon v New York Times Bldg., LLC
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Forum non conveniens
New York resident properly commenced action in New York and defendant who resided in the Bronx failed to show that New Jersey witnesses would be inconvenienced by having to travel to New York given the short distance between New York and New Jersey and defendant’s inconvenience is irrelevant. Anastasio v Port Auth. of N.Y. & N.J.
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Med Mal Accepted Practice Expert Aff
Plaintiffs raised issues of fact on accepted practice in response to OB/GYNs’ and OB/GYN practice’s motion for summary judgment by affirmation of board-certified OB/GYN opining that each of the defendants departed from accepted medical practice in the prenatal care and delivery of the infant plaintiff. Summary judgment inappropriate where there are conflicting expert opinions. Kovacic v Griffin
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Vacate Default Motion to Dismiss Personal Juridiction Service
Defendants’ motion to vacate default in answering, after inquest and entry of judgment, and to dismiss for lack of personal jurisdiction granted where process server’s due diligence prior to nail/mail were all during times when defendants would be expected to be at work or in transit to work and did not make reasonable inquiries into defendant’s whereabouts and place of employment. Due diligence must be strictly adhered to because there is less of a chance that defendants will receive the service by mail/mail. Coley v Gonzalez
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Premises Liab Slip/Trip Wet Floor Create Condition Notice
School granted summary judgment on proof it did not create or have notice of wet condition on bottom of staircase where plaintiff fell while picking up her child from after-school program, including testimony of 2-employees who did not see water or liquids in area at or just before accident. School had put out warning signs and mat at top of stairs as precaution and not in response to any complaints of water in area where plaintiff fell. General awareness that floor may become wet after rain is not sufficient for constructive notice. Diaz-Martinez v King of Glory Tabernacle
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Premises Liab Motion to Dismiss Duty Create Condition
Contractor inspecting building to put in a bid who entered basement through hatch in lobby opened by building’s superintendent owed no duty to tenant who fell through hatch based on documentary evidence establishing that contractor did not own, occupy, control, or make special use of the premises. Argument that contractor created dangerous condition by not closing it as he left basement did not establish creation of a dangerous condition because he did not know if others had to access the hatch and superintendent stated in affidavit that he did not ask anyone to close the hatch. Tilford v Greenburgh Hous. Auth.
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Med Mal Set Aside Verdict Jury Charge
Jury interrogatories did not improperly restrict evidence jury could consider and were consistent with experts’ testimony. M v Gratch
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Legal Mal Notice
Personal injury law firms denied summary judgment on claim they failed to timely identify carriers and provide notice to them resulting in disclaimer. Questions of fact existed on whether they could have provided timely notice to avoid disclaimer. McGlynn v Burns & Harris
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Negligent Supervision Causation
Preschool granted summary judgment where toddler attendee fell hitting her chin on a 2 ½’ high toy. Teacher supervising only 5-children showed accident happened so quickly that no amount of supervision could have prevented it and any lack of supervision was not cause of the accident. O’Hanlon v Kids of Mount Sinai, LLC
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Premises Liab Slip/Trip Snow/Ice Storm in Progress NYC
Plaintiff raised issues of fact in opposition to defendants’ showing of storm in progress by meteorological data and expert opinion showing that storm began between 9-10 AM on testimony of caretaker that precipitation didn’t begin until after 10 and that there was ice in area which is why she was called in early. Lugo v City of New York
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Premises Liab Slip/Trip Snow/Ice Storm in Progress Create Condition Notice Speculation Conclusory
Cooperative and maintenance company granted summary judgment on climatological data and expert’s opinion of storm in progress, which plaintiff did not dispute, and plaintiff failed to show that she slipped on ice under snow that had formed prior to storm. Plaintiff’s expert’s opinions as to when ice formed were speculative and conclusory. Ryan v Beacon Hill Estates Coop., Inc.
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Premises Liab Slip/Trip Storm in Progress Create Condition Dangerous Condition
Defendants granted summary judgment where plaintiff slipped on accumulation of rock salt on walkway during snowstorm under storm in progress defense and defendant’s use of rock salt did not create a dangerous condition or increase hazard of a condition from the storm. Rivera v New York City Health & Hosp. Corp.
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Premises Liab Duty Causation Circumstantial Evidence
Tenant at Fulton Fish Market failed to meet burden of showing it did not owe duty under lease to plaintiff’s decedent where decedent tripped over broken cement barriers on sidewalk and street owned by NYC. There was sufficient circumstantial evidence raising questions of fact as to the liability of each defendant. Weiss v City of New York
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Med Mal Motion to Dismiss Statute of Limitations
Claims that hospital failed to properly assess plaintiff’s need for supervision sounded in medical malpractice, not negligence, and was barred by statute of limitations where brought after 2 1/2 years. Kim v New York Presbyt.
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Negligent Supervision Emotional Harm Causation
School granted summary judgment because infant plaintiff’s emotional harm did not result directly from negligent supervision where she saw body of suicide victim in softball field dugout as it was unforeseeable. Emotional harm must be direct not consequential result of breach of a duty and have some guarantee of genuineness. McDonagh v Carmel Cent. Sch. Dist.
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MVA Feigned Issue
Plaintiff granted summary judgment on defendant’s admission against interest in police report that he backed up into plaintiff’s vehicle and plaintiff’s affidavit consistent with police report. Defendant’s affidavit was designed to avoid summary judgment by contradicting his statement in the police report and conflicted with the photographs and damage to plaintiff’s vehicle. Thompson v Coca-Cola Bottling Co.
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Products Liab Vacate Default Renew Estoppel
Equipment company’s motion to vacate default in opposing third-party defendant manufacturer’s motion for summary judgment denied where order granting summary judgment was not made on default as equipment company appeared at oral argument and argued motion and lower court’s decision does not state it was on default. Also denied as motion made more than 1-year after service of Notice of Entry and alternative request to renew motion denied where there were no new facts or law. Motion to dismiss plaintiff’s breach of warranty and products liability claims denied on collateral estoppel where equipment company had full opportunity to litigate on plaintiff’s motion to amend Complaint. Vaca v Village View Hous. Corp.
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MVA Rear End Nonnegligent Explanation Premature Motion
Plaintiff granted summary judgment on his affidavit that he was stopped at red light at T-intersection and struck in the rear when the light turned green. Defendants failed to offer nonnegligent explanation and motion was not premature. Montalvo v Cedeno
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False Arrest Malicious Prosecution Probable Cause NYC
Information from confidential informant as to 2 marijuana buys and location of marijuana at plaintiff’s hair salon, which police found pursuant to search warrant, provided probable cause requiring dismissal of false arrest and malicious prosecution case. Brown v City of New York
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Default Judgment Compel Acceptance Reasonable Excuse Meritorious Action
Plaintiff’s motion for default judgment on defendants’ failure to Answer Summons/Complaint served on Secretary of State granted and defendants’ motion to compel acceptance made 5-months after service denied where defendants failed to offer reasonable excuse or show meritorious defense. Jacob v Siberian Ice, LLC
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MVA Causation Dangerous Condition
Vespa dealer and repair shop granted summary judgment on proof that rear shock absorber plaintiff claimed was defective causing Vespa to wobble and fall was not defective after they repaired the scooter after a prior incident involving a pothole and that repairs were not negligent or a cause of the accident. Dickler v Vespa Brooklyn
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