| MUST READS (4 summaries) | |||
| NOTEWORTHY | IF YOU MUST READ | ||
 In a case of first impression, the First Department found that IVF procedures, including retrieving, fertilizing, and grading eggs and preparing embryos for cryopreservation implicate malpractice with a 2.5-year statute of limitations. Once cryopreserved, there is only an administrative duty to maintain the tanks which sounds in negligence even if the storage tanks are monitored by embryologists, stopping the continuous treatment doctrine. Defendants granted summary judgment dismissing malpractice claims where embryos were later found to be missing and degraded as untimely but denied dismissal of negligent storage of the embryos claim.Questions remained on whether the embryos were negligently stored where defendants contradicted their experts’ opinions they could be degraded for various reasons, and their experts’ opinions that the storage tanks were properly maintained were not supported by the record where the logs of inspections for 2-years were not available, and testimony that no tanks malfunctioned or triggered alarms did not establish the embryos were ‘routinely monitored and appropriately cryopreserved.’ Claim there was no, or only inconsequential, loss of chance of a successful pregnancy belied by fact that only 4 of 9 embryos were viable. Bledsoe v Center for Human Reproduction ✉ |
 Where Lebanese bank was previously found subject to NY jurisdiction for claims it assisted Hizbollah based on transacting business in NY, it was later found to be a ‘primary money laundering concern,’ and plaintiffs adequately stated claims for aiding-and-abetting terrorist attacks in 2006, a separate Lebanese bank that brought all of the assets and liabilities of the original bank was subject to NY jurisdiction for claims from the same 2006 terrorist attacks as the issue is whether the predecessor company had sufficient contacts with NY, not whether the successor company had sufficient NY contacts or was an alter ego of the predecessor, and the successor company was fully aware of the predecessor’s liabilities when it made the purchase. Lelchook v Société Générale de Banque au Liban SAL ✉ |
 Motion to dismiss negligent hiring, retention, and supervision claims of NY resident who participated in football camps in Vermont and Massachusetts owned by former professional football players Joe Namath and John Dockery, brought under the Child Victims Act for sexual abuse between 1971-1975, on claim action was barred by statute of limitations because the abuse took place outside of NY making CPLR §214-g inapplicable denied. Since the CVA only revived claims previously barred by the statute of limitations, did not make the conduct illegal, and was intended to protect NY residents, where the acts occurred was not relevant as long as they were against a NY resident at this time. Smith v Pro Camps, Ltd. ✉Comment: This brings the Second Department rule in line with the First and Third Departments. |
| Emergency department doctor who supervised PA that treated plaintiff denied summary judgment as a doctor supervising a healthcare professional such as a PA assumes a physician-patient relationship with the patient and plaintiff alleged malpractice by negligent supervision of the PA. Ellis v Mollette ✉ |
| NOTEWORTHY (24 summaries) | |||
| MUST READS | IF YOU MUST READ | ||
| Motion for judgment as a matter of law and to set aside verdict finding OB/GYN departed from accepted practice by ordering methotrexate for patient on day she presented to hospital without follow up hCG tests and ultrasounds as recommended by radiologist who interpreted ultrasound as “early intrauterine gestation versus missed abortion versus ectopic pregnancy” denied where there was a rational path for jury to reach its verdict which was not against the weight of the evidence. Jury award of $250,000 for pain/suffering upheld but emotional harm award of $1,250,000 set aside as materially deviating from reasonable compensation unless plaintiff stipulated to reduce the award to $700,000 where ultrasound showed an intrauterine gestational sac when plaintiff returned to the hospital 4-days after taking the methotrexate and she refused methotrexate recommended at that time because of the serious birth defects the first dose of methotrexate can cause, confirmed by her private OB/GYN, and she was given the same recommendation at a different hospital 3-days later at which time she felt she had no choice but to terminate the pregnancy. Wilson v Finkelstein ✉ |
| Judgment for State after bench trial was based on a fair interpretation of the evidence where there was no admissible evidence that the small amount of clear water plaintiff slipped on near a nurses’ station existed for sufficient time for it to be discovered and corrected. Claim it was from policy of encouraging patients to carry water bottles did not establish a recurring condition without evidence the spills occurred at a specific location and it was speculation to assume the water spilled from a bottle carried by a patient. Falcon v State of New York ✉ |
| Petition for leave to serve late Notice of Claim denied where Notice of Claim served without leave of court 91-days after plaintiff tripped and fell on stairs at a subway station was a nullity and did not give NYCTA actual knowledge of the essential elements of the claim, nor did plaintiff’s attorney’s letter, served within the 90-day period, which did not include the specific location or cause of the fall or explain HOW NYCTA was liable. Plaintiff failed to show a reasonable excuse for the 5-month delay in seeking leave after NYCTA rejected the untimely Notice of Claim or to provide some evidence or plausible argument why NYCTA was not prejudiced by the 5-month delay. Matter of Guerre v New York City Tr. Auth. ✉ |
| Police officer’s petition to serve late Notice of Claim 7-months after he slipped on ice in precinct parking lot granted where supervisor investigated the incident shortly after it happened and filed a line of duty report containing the date, time, and location of the accident, petitioner’s statement as to how the accident occurred, and described his injuries, giving actual knowledge of the essential elements of the claim within 90-days and establishing NYC was not prejudiced in its ability to defend the action. NYC failed to make a particularized evidentiary showing of prejudice from the delay. Lack of a reasonable excuse not fatal to granting the petition. Matter of Steward v City of New York ✉ |
| Defendants’ motion to dismiss plaintiff’s claim for trip and fall on sidewalk sign outside of a museum granted where plaintiff failed to allege facts to show defendants owned, operated, controlled, or made special use of the sidewalk, necessary to show a duty of care. Paden v Brooklyn Museum of Arts ✉ |
| NYCHA’s motion to dismiss on statute of limitations granted where Summons and Complaint was served more than 2-months beyond the 1-year and 90-day statute of limitations. The Court had no authority to grant Plaintiff’s cross motion to deem service timely where it was served after the statute of limitations. Cortes v City of New York ✉ |
| Complaint filed 13-months after defendant died dismissed as a nullity from its inception as the decedent cannot be sued directly, only the decedent’s personal representative of the estate. Butler v Russo ✉ |
| Plaintiffs denied summary judgment on Labor Law §240(1) as injured-plaintiff’s testimony that modular unit that struck him was being hoisted up and towards him, establishing he was not injured due to an elevation risk. Labor Law §241(6) claims denied based on industrial code §23-8.1(f)(2)(i) without proof there was a sudden acceleration/deceleration during hoisting and on §23-8.1(f)(1)(iv) where plaintiff checked that the load was secured and balanced before hoisting. Searching the record, the Court dismissed the claim based on §23-8.1(f)(1)(iv). Plaintiff denied summary judgment on Labor Law §200 without proof defendant had authority to control the means and methods of plaintiff’s work and plaintiffs failed to eliminate all questions of whether the accident was caused by overcrowding of the modular units on the site or a combination of dangerous conditions. Giraldo v Highmark Ind., LLC ✉ |
| Defendants’ failed to meet burden for summary judgment dismissing elevator mechanic’s Labor Law §240(1) claims for 1-story fall when he stepped from elevator being installed to floor which had not yet been installed on expert’s opinion industrial code and elevator safety handbook did not require barriers or guardrails if a permanent elevator door was installed to prevent workers from falling “into” an elevator shaft, but plaintiff fell “from” the elevator through the missing floor, as §240 is a self-executing statute not dependent on violation of federal or industry standards and questions remained of whether defendants provided adequate safety devices or plaintiff was the sole cause of the accident. Owner’s motion for summary judgment on indemnity claim against plaintiff’s employer denied where contract excluded indemnity for owner’s negligence, despite dismissal of Labor Law §200 and negligence claims for abandonment, where owner failed to show it was not negligent. Caracciolo v SHS Ralph, LLC ✉ Comment: GC’s motion for summary judgment on §240(1) denied for the same reasons. Caracciolo v SHS Ralph, LLC. Owner’s motion to renew motion for summary judgment on indemnity claim denied without proof new facts would have changed the original determination. Caracciolo v SHS Ralph, LLC. |
| Worker who fell through unguarded stairway opening granted summary judgment on Labor Law §240(1) as no safety devices were provided to protect against fall. Site safety manager’s affidavit stating a plywood barrier had been installed days before irrelevant as the plaintiff need not shown notice for §240 and defendants’ claim plaintiff removed the plywood barrier was speculative. Motion was not premature where brought before EBTs as defendants failed to show discovery would lead to relevant information or information solely within plaintiff’s knowledge and they failed to obtain third-party testimony to support the affidavit of their safety manager. Blacio v Related Constr. LLC ✉ |
| Third Department order dismissing malpractice action against pediatric practice reversed where issues of departure remained on the placement of the endotracheal tube in the infant. Amber R. v Pediatric & Adolescent Urgent Care of W. N.Y., PLLC ✉ Comment: From the Third Department’s 3/2 decision, the 27-day old infant was being treated for flu when the pediatric defendants inserted the ET tube, the infant went into cardiac arrest and died, but defendants did not realize the ET tube was misplaced until a STAT transfer team arrived. |
| Urgent care center and doctor who treated plaintiff’s-decedent failed to meet burden for summary judgment where their expert’s opinion of no departure relied on the defendant-doctor’s testimony she informed decedent of the risk of sepsis and death and told him he needed to be treated at a hospital, which he refused to do, which was contradicted by her assessment in the record that only showed she told him he ‘would be best served being evaluated in the hospital’ but refused, without mentioning sepsis or the risk of death. Plaintiff failed to meet burden for summary judgment where questions remained of whether decedent was made aware of a life-threatening condition and the need to go to the hospital. Glassman v Caremount Med., P.C. ✉ |
| NYCHA granted summary judgment dismissing plaintiff’s claim for slip and fall on stair treads that became slippery when wet on proof it did not create the wet condition and because it became slippery only when wet, it did not have actual or constructive notice of the condition. Morrison v New York City Hous. Auth. ✉ Comment: The First Department decision was reported in Vol. 337. |
| Plaintiff’s Labor Law §241(6) claim for injuries when coworker who was stuffing rebar in a wall before pouring concrete lifted the rebar as plaintiff stepped over it, striking plaintiff’s shin and causing him to fall, dismissed as industrial codes he relied on were inapplicable; §23-1.7(e)(1) because the work was in in open area not a passageway; §23-1.7(e)(2) because the rebar was not debris; and §23-2.1(a)(1) because the rebar was not in storage. Contractor failed to meet burden for summary judgment dismissing Labor Law §200 and negligence claims where plaintiff testified coworker was placing the rebar for 1-hour before the accident, he and coworkers complained about it to the coworker, construction manager’s safety guy picked up plaintiff after he fell, construction manager would occasionally tell plaintiff how to perform his work and whether it was unsafe, and construction manager had authority to stop any unsafe work, leaving questions of authority to control the work. Brown v Tishman Constr. Corp. of N.Y. ✉ |
| Worker who was stripping wood forms from overhead concrete beams granted summary judgment on Labor Law §240(1) when beam, ribs, and jack fell on his head as he was loosening one of the jacks since the load required securing for the work being done and the jacks were safety devices that were inadequate to protect against the gravity risk. Any negligence in loosening the jacks was comparative fault, not a §240 defense. Bartley v 76 Eleventh Ave. Prop. Owner LLC ✉ |
| Con Ed’s motion for summary judgment dismissing Labor Law §§ 240(1), 241(6) claims of employee of independent contractor, performing underground repairs and inspections for Con Ed, for fall through open manhole denied as an open manhole is an elevated risk for §240 and the contract language between Con Ed and his employer left questions of whether he was performing covered work. Clarke v Consolidated Edison Co. of N.Y., Inc. ✉ |
| Defendants denied summary judgment where plaintiff’s expert raised issues in opposition on whether defendants injured decedent’s inferior vena cava while inserting an epidural, causing her death a few days later, and expert’s opinions were not speculative where based on the autopsy report and included photographs of the inferior vena cava and did not present a new theory. Almanzar v Ankrah ✉ |
| Village failed to meet burden for summary judgment dismissing claim of infant-plaintiff struck by vehicle as she stepped out from between 2-vhehicles stopped in the opposing lane and attempted to cross the road as questions remained of whether it unjustifiably delayed a remedial plan to correct dangerous conditions at the location for 4-7 years before the accident. The infant’s actions were not an intervening cause because they did not rise to the level of ‘wanton disregard’ for her own safety. Village’s common-law indemnification claim against driver dismissed where driver had been granted summary judgment on proof he was not negligent. G.F. v Epstein ✉ |
| College defendants’ motion for summary judgment dismissing varsity soccer player’s claim for injuries during weight squat exercise on assumption of risk denied without showing the risk of a weightlifting injury was inherent in joining a soccer team and they failed to eliminate questions of whether they unreasonably increased the risks by failing to properly supervise the weightlifting exercise and compelled plaintiff to perform it when the assistant coach told him he would be off of the team if he did not do the exercise. Mazze v Manhattanville Coll. ✉ |
| Building owner denied summary judgment where quality of video and photographs were too poor to show mat plaintiff tripped on was not defective, photographs taken by expert 4-years later were inadmissible without showing mat was in same condition as on day of the accident, there was no proof owner inspected the mat before plaintiff’s fall, and plaintiff testified she saw the rubber edging of the mat turned up after she fell. Plaintiff’s testimony that she complained about the mat to her supervisor 3-4 months before her fall raised issues on actual and constructive notice and supervisor’s affidavit denying the complaint raised only issue of credibility for a jury. Question of whether plaintiff’s employer was the building’s agent remained where property manager testified the employer was required to notify defendant if the mat needed repair. Qeliqi v Gladden Props. LLC ✉ |
| Plaintiffs raised issues of fact on whether defendant knew or should have known of his dog’s vicious propensities where the dog bit the injured-plaintiff’s leg and jumped on her, causing her to fall, by her and neighbors’ testimony that the dog “regularly barked, growled, and bared his teeth, and chased children” before the incident, and injured-plaintiff’s testimony the defendant’s wife saw the dog bite through her pant leg 1-month before the incident. Plaintiffs failed to meet burden for summary judgment where they submitted EBT transcript of defendant who testified he had no knowledge or reason to know the dog had vicious propensities. Piedimonte v Alvarenga-Benitez ✉ |
| Landlord met burden for summary judgment dismissing tenant’s claim for slip and fall on ice on walkway on its inclement weather protocol showing it did not create or have notice of the icy condition plaintiff slipped on and that it’s daily snow log showed when it inspected the walkway and there was no ice present when last inspected. Rothman v Fairfield Mastic, LLC ✉ |
| Plaintiff granted summary judgment on liability and dismissal of comparative fault defense by her 50H testimony that she was stopped at a red light when struck in the rear by defendants’ bus. Defendant failed to raise an issue on bus-driver’s self-serving statement in his MVA-104 which was hearsay and supervisor’s report with bus-driver’s statement that plaintiff’s vehicle stopped short which, even if admissible, was insufficient to raise an issue. Motion not premature where information as to why bus rear-ended plaintiff’s vehicle was within defendants’ own knowledge. Stephenson v New York City Tr. Auth. ✉ |
| Plaintiff granted summary judgment on her 50H testimony that she was stopped at a red light and struck in the rear by bus seconds after the light turned green. Defendants failed to raise an issue in opposition. Fleischmann v County of Suffolk ✉ |
| IF YOU MUST READ (0 summaries) | |||
| MUST READS | NOTEWORTHY | ||