April 20, 2021 | Vol. 258


MUST READS
(5 summaries)
NOTEWORTHYIF YOU MUST READ





Set Aside Verdict   Pain/Suffering   Materially Deviates   Prejudice  

First Department
Again declining to limit the amount plaintiffs can ask juries for (anchoring), the First Department reduced a verdict of $10,500,000/$75,250,000 past/future pain/suffering, where the lower court had reduced the future pain/suffering to $30,100,000, to $5mil/$15 mil past/future pain/suffering finding the awards as reduced by the lower court materially deviated from reasonable compensation. Plaintiff sustained a severe TBI with permanent encephalomalacia, cerebral atrophy, traumatic epilepsy, chronic pain and headaches, cognitive deficits, depression, anxiety, and post-traumatic stress, and increased risk of neurological disease. $5,154,038 award for future lost earnings for 43 years, reduced by lower court to $1,920,000 for 24 years, and $10,732,661 award for future medical and custodial costs were upheld as supported by the record.

Claim of prejudicial statements by plaintiff’s counsel during summation were not preserved and in any event did not “create a climate of hostility that so obscured the issues as to have made the trial unfair.” Perez v Live Nation Worldwide, Inc.    


Comment: The First Department initially declined the request from multiple amicus curiae to prohibit anchoring in January of 2021 in Hedges v Planned Sec. Serv. Inc., reported in Vol. 245.

Building Security   Duty   Intervening Cause  

Second Department
NYCHA granted summary judgment, where plaintiff’s decedent was targeted by gang members who entered NYCHA building through unlocked side door, on evidence that assailant was so intent on assault that it would not be thwarted by minimal security provisions, making it an intervening cause. The Court responds to the recent Second Department decision in Scurry v New York City Hous. Auth. which broke with the First Departments ruling. Estate of Murphy v New York City Hous. Auth.    

Comment: Scurry v New York City Hous. Auth. was reported in Vol. 247.

MVA   Set Aside Verdict   Serious Injury   Pain/Suffering   Materially Deviates  

Second Department
Plaintiff was not aggrieved by verdict finding she sustained a serious injury under 90/180-day category but not under significant limitation or permanent consequential limitation categories as she can recover for all injuries as long as 1-category is met. $75,000/$0 past/future pain/suffering materially deviated from reasonable compensation where plaintiff underwent arthroscopic knee surgery and 2-surgeries for cervical discectomy, but jury could decline future damages on a fair interpretation of the evidence. Verdict set aside unless defendants agreed to increase past pain and suffering to $200,000. Kapassakis v Metropolitan Transp. Auth.    


MVA   Bus   Preclusion   Discovery   CPLR § 3101(d)   Untimely   Note of Issue  

First Department
Expert CPLR §3101(d) disclosure was timely where provided after Note of Issue but before trial was scheduled, but defendant was precluded from offering expert’s testimony at trial where opinions were based entirely on bus’s EDR recording system that had not been disclosed despite a demand and court orders requiring its disclosure, defendant denied its existence, and never updated its response to the EDR demand. Louise v Hampton Jitney, Inc.    


Governmental Function   Governmental Immunity   Police   Judgment Rule   NYC  

Second Department
NYC granted summary judgment where police responded to altercation between mother and adult son but did not arrest son who beat his sister and mother the following day with a baseball bat, causing mother’s death, as officer determined only a violation, not a crime, was committed and the police manual did not mandate that the son be arrested for a violation.

Governmental immunity attaches when an officer exercises a reasoned judgment between authorized alternatives but would not attach where there is a violation of the municipality’s rules and no exercise of judgment. Devlin v City of New York    


NOTEWORTHY
(10 summaries)
MUST READSIF YOU MUST READ

Venue   Hearsay   Raised For First Time  

First Department
Defense counsel’s affirmation insufficient to establish justification for change of venue from Bronx to New York County as it contained only hearsay statements of proposed nonparty witnesses and their affidavits were not considered where submitted for first time in reply. Claim it would be more convenient for treating medical staff to testify in lower Manhattan than Bronx insufficient to justify change of venue. Poyodi v Go N.Y. Tours, Inc.    


Amend Answer   Bankruptcy   Collateral Estoppel  

Second Department
Defendant’s motion to amend Answer to include judicial collateral estoppel defense and for summary judgment where plaintiff failed to notify bankruptcy court of case while bankruptcy case was pending, granted as not devoid of merit and case dismissed on judicial collateral estoppel. Issue of lack of capacity to sue moot in light of dismissal. Flanders v E. W. Howell Co., LLC    


Malpractice   Accepted Practice   Causation   Experts   Conclusory   Speculation   Feigned Issue  

Second Department
Internist granted summary judgment where plaintiff’s expert failed to raise issue in opposition on accepted practice or causation as opinion was not supported by record, was conclusory and speculative, and plaintiff’s affidavit contradicted her previous testimony raising only feigned issues. Pulmonologist denied summary judgment where plaintiff’s expert raised issues of whether pulmonologist departed from accepted practice by failing to inform internist and plaintiff’s decedent of lung nodule on CT scan or give options for further testing and treatment. Increase in nodule size in 2-years between scans raised at least an issue on causation. Tardio v Saleh    


MVA   Police   VTL §1104   Reckless   Question of Fact   NYC  

Second Department
NYC met burden for showing VTL §1104(b) applied to police officer responding to officer in need of assistance call when she went through a red light, requiring a reckless standard, but plaintiff raised issue on whether officer was in fact responding to officer in need of assistance at the time, leaving a question of whether the negligence standard applied. Modica v City of New York    


Premises Liab   Sidewalk   Duty   Control   Notice   3rd Party Contractor   Foreseeability  

First Department
Landowner granted summary judgment where plaintiff tripped over lengthy oil delivery hose crossing sidewalk on proof it did not control means and methods of work by oil delivery company employees, did not know when deliveries would be made, and had no notice of a potentially dangerous condition where oil delivery company had history of taking proper safety measures and there were no prior complaints. Oil company’s negligence was not reasonably foreseeable. Linder v United Metro Energy Servs. Corp.    


Malpractice   Informed Consent   Foreign Object   Accepted Practice   Causation   Experts  

Second Department
Defendants made out entitlement to summary judgment on expert opinions that residual “magnetic susceptibility artifact” from her knee surgery which allegedly caused foot drop was an ordinary result of the surgery, but plaintiff’s expert raised issue in opposition by opinion it was a macroscopic piece of metal left in the plaintiff’s knee. Plaintiff also raised issue on informed consent by parties’ depositions and generic consent form leaving questions of whether defendant disclosed risks a reasonable practitioner would have disclosed and whether a reasonably prudent patient would have undergone the surgery if fully informed. Friedberg v Rodeo    


Negligent Supervision   Causation  

Second Department
School district granted summary judgment where fourth-grader was pushed to the ground by another student while standing outside with his friends on proof the incident happened so fast that “the most intense supervision” could not have prevented it, establishing that lack of supervision was not a cause of the incident. I.S. v Hempstead Union Free Sch. Dist.    


Labor Law §241   Labor Law §200   Industrial Code   Control   Indemnity  

First Department
Owner and GC granted summary judgment on Labor Law §241(6) as raised floor plaintiff tripped on was integral to his work, making industrial code §23-1.7(e)(1) inapplicable. GC granted summary judgment on Labor Law §200 and negligence claims on proof it did not control work of subcontractor that installed the raised floor. Contractual indemnity claims of floor installation subcontractor and subcontractor plaintiff was doing work for were triggered as injury was caused by the performance of the work. Cresser v 345 Park Ave., L.P.    


Building Security   Spoliation   Survelliance Video   Duty   Foreseeability   Dram Shop  

Second Department
Owner of live entertainment venue granted summary judgment for assault on plaintiff in rear alleyway on proof assault was “sudden, unexpected, and unforeseeable,” and that it did not violate Drams Shop act. Plaintiff’s motion for spoliation of surveillance footage denied without proof venue was aware it had obligation to preserve footage which was routinely overwritten, or that the surveillance video would have supported plaintiff’s claim. Security companies also granted summary judgment. The Court does not give the details of the security companies’ proofs. Garda v Paramount Theatre, LLC    


Premises Liab   Survelliance Video   Spoliation  

First Department
Supermarket’s motion for summary judgment where plaintiff slipped on blueberries denied as incident report from day of accident had box checked indicating there was surveillance video of area where accident occurred which needed to be preserved. Testimony of defendant’s employee stating he did not ‘know of’ any surveillance cameras failed to eliminate question of notice. Banks v Bogopa, Inc.    

IF YOU MUST READ
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About Matt McMahon

Civil trials and appeals since 1984
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