April 25, 2017 | Vol. 51

MUST READS
(8 summaries)
NOTEWORTHY IF YOU MUST READ

MVA   Bus   Set Aside Verdict   CPLR §4404(a)  

First

Even though plaintiff did not request a mistrial prior to the verdict, the lower court providently set aside the verdict which found defendant NYCTA 70/30 liable for striking the plaintiff pedestrian as the bus turned a corner, and awarded $100,000 for past pain/suffering, $75,000 for past lost earning, and $150,000 for past medical expenses and nothing for future damages, under CPLR 4404(a) in the interest of justice due to defense counsel’s improper conduct which deprived plaintiff of substantial justice and likely effected the verdict.

Judge Renwick compares similar cases from the Second Department to defense counsel’s conduct which included assertions of personal knowledge of facts, speaking objections, including one flagrantly misstating the law, moving for a mistrial in front of the jury, unfair and false denigration of plaintiff’s doctor as not being a “real surgeon”, a pattern of interrupting and speaking over the court, interrupting the trial by demanding that plaintiff’s counsel move a chart she was showing to the jury to accommodate his refusal to move from his seat, a “sneering, denigrating tone” while cross-examining plaintiff’s doctor and other witnesses and an inappropriate tone and volume of his voice. Smith v Rudolph


Med Mal   Amend BP  

First

Lower court should have granted defendants’ motion for summary judgment and denied plaintiff’s cross-motion to amend her BP to include a new theory of liability. Plaintiff failed to raise a question of fact in opposition to the defendants’ prima facie entitlement to summary judgment based on the defendant, oral surgeon’s opinions, and the opinions of 2 experts which addressed each theory raised in the BP. A plaintiff cannot create a question of fact by raising a new theory not contained in the pleadings in opposition to a motion for summary judgment. The fact that a trial date had not been set at the time of the motion did not mean that the plaintiff should be allowed to start the case over with a new theory after Note of Issue had been filed. There was 1 dissent. Biondi v Behrman


Labor Law §241   Industrial Code  

Second Deptartment

Country club and its general contractor granted summary judgment on Labor Law §241(6) claim where subcontractor’s worker riding in the bed of a pickup truck after dropping off tiles was injured when the wheel of the truck hit a wall. Plaintiffs relied on industrial code §23-9.7(e) (seats or platforms required when riding on trucks) but the Appellate Division found as a matter of law that the bed of the pickup truck constituted a proper platform as required by the industrial code provision since it was a permissible platform for carrying passengers for distances of less than 5 miles under VTL §1222. Pruszko v Pine Hollow Country Club, Inc.


Med Mal   Duty   Special Duty   Motion to Dismiss   Reargument  

Second Deptartment

Plaintiff’s decedent was killed by 2 defendants during a robbery at a pharmacy and claimed that the medical defendants which had prescribed narcotic painkillers to the convicted murderers for years before the incident were liable under theories of negligence and Gen. Obl. L. §11-103 (injury caused by person on illegal drugs). The claim had previously been dismissed Malone v County of Suffolk by the Appellate Division which found that there was no special duty owed by the physicians to the victims and that a duty at large to an undefined group could not stand. Lower court granted reargument and, upon reargument, denied the summary judgment and the Appellate Division reversed on its original grounds and found that Gen. Obl. L. §11-103 did not apply as there was no allegation that the assailants were high on drugs at the time of the shootings. Ferguson v Laffer

Comment: See the companion decision at Ferguson v Laffer.


Premises Liab   Create Condition   Prior Written Notice   Assumption of Risk   De Minimus   Open/Obvious  

Second Deptartment

County denied summary judgment where plaintiff claimed to have fallen off his bicycle from loose pebbles left over after a pothole repair of a path in a park. The allegation that the County affirmatively created the condition which was immediately dangerous overcame lack of prior written notice. The County’s argument that the action is barred by primary assumption of risk was without merit and it failed to show that under the circumstances the defect was trivial. Whether the defect was open/obvious goes only to the duty to warn and does not preclude liability. Fornuto v County of Nassau


Premises Liab   Stairs   Slip/Trip   Duty  

First

Security guard and his employer granted summary judgment where plaintiff fell down a flight of stairs with no lighting after the security guard had answered “okay” to plaintiff’s question of whether she could climb the stairs using her cell phone and walked her up the first flight of stairs with his flashlight. The casual answer of “okay” to the plaintiff who was already intent on walking up the stairs using her cell phone for lighting was not a voluntary assumption of a duty as it did not alter her decision to use her cell phone to climb the stairs. Parke v ST Owner LP


MVA   3rd Party Contractor   Espinal   BP  

Second Deptartment

Auto repair shop, which repaired co-defendant’s vehicle 5 months before it collided with the plaintiff’s vehicle, granted summary judgment as plaintiff failed to allege any of the Espinal exceptions to the rule that a third-party contractor owes no duty to anyone not a party to the contract, such as launching a force of harm. Koslosky v Malmut


Service   Default Judgment   Products Liab  

First

Plaintiff’s service on the defendant by service of the Summons and Complaint on the Swiss “Central Authority” pursuant to The Hague Convention, which was unrebutted by the defendant, established proper service and together with the Verified Complaint and affidavit of merit containing sufficient details to show a meritorious products liability claim against the defendant were sufficient to enter default judgment. Defendant’s arguments that service did not comply with New York Law is irrelevant since service was made in compliance with The Hague Convention. Voelker v Bodum USA, Inc.

NOTEWORTHY
(22 summaries)
MUST READS IF YOU MUST READ

MVA   Turning Vehicle   Wrongful Death   Survelliance Video   Comparative Fault  

Second Deptartment

Surveillance video of the accident showing the defendant’s vehicle struck the plaintiff’s decedent in the crosswalk conclusively showed that the defendant was negligent and plaintiff’s decedent was not comparatively negligent. Hollis v Marinelli


Premises Liab   Building Code   Expert Aff  

First

Owner which rented home to plaintiff who was injured when he slipped while walking on a path between a pool and hot tub denied summary judgment where its expert’s affidavit opined only that the building codes cited by the plaintiff and his expert were “irrelevant” because there was an alternative safe route around the pool but did not opine that the pathway plaintiff used met with applicable building codes. Plaintiff’s expert would have raised a question of fact by his opinion that the walkway plaintiff used as well as the normal walkway around the pool were dangerous and did not comply with codes. Berr v Grant


Premises Liab   Design Defect   Open/Obvious   Inherently Dangerous   Building Code  

Second Deptartment

Building owner and manager entitled to summary judgment on proof that the entranceway was 5” high and brightly lit, proving that it was open and obvious and not inherently dangerous. Plaintiff’s expert failed to raise an issue of fact, conceding that the building was constructed in 1924, prior to the applicable building codes and that there were no requirements or exceptions requiring that it be brought up to code or the ADA which generally does not apply to buildings constructed prior to 1991. Futter v Hewlett Sta. Yogurt, Inc.


Med Mal   Accepted Practice   Causation   Expert Aff  

First

Summary judgment should have been granted to defendants who met their initial burden with affidavits from a colorectal surgeon and gastroenterologist who opined that the defendants did not depart from accepted practice where plaintiff developed a fistula 4 months after a cesarean section and that the cesarean section was not a cause of the fistula. Plaintiff’s expert, a general surgeon, failed to state that he had the requisite knowledge of colorectal surgery or gastroenterology necessary to support his opinions regarding departures or causation. Bartolacci-Meir v Sassoon


Labor Law §240   Sole Cause  

First

Plaintiff defeated his initial burden for summary judgment on Labor Law §240(1) claim by submitting his own testimony that he missed a step on the 12’ ladder as he was descending which raised a question as to whether he was the sole proximate cause of his accident. DiCembrino v Verizon N.Y. Inc.


MVA   Bicycle   Set Aside Verdict   Directed Verdict   Comparative Fault  

Second Deptartment

Verdict for vehicle driver who did not see plaintiff bicyclist until he had nearly passed through the intersection set aside as there was no rational path for the jury to find that the defendant did not violate VTL §§1142(a) & 1172(a) by failing to yield the right-of-way. Plaintiff was not entitled to a directed verdict as the jury could have found the plaintiff partially at fault. Watson v Narayanan


Late Notice of Claim   Pain/Suffering   Wrongful Death   Estate   Actual Knowledge   Prejudice   Reasonable Excuse  

Second Deptartment

Notice of Claim served 1 year after plaintiff’s decedent’s death, but within 90 days of appointment of administrator, was timely on wrongful death claim and lower court should have granted petition to amend the Notice of Claim to include the administrator. Petition for leave to serve a late Notice of Claim, or deem the Notice of Claim timely, for pain-and-suffering claim denied as defendant hospital’s possession or creation of medical records did not constitute actual knowledge absent an indication in the records that an injury was caused by its employees and plaintiff failed to meet her burden of showing no prejudice and reasonable excuse. Matter of Rosenblatt v New York City Health & Hosps. Corp.


Premises Liab   Sidewalk   Slip/Trip   § 7-210  

First

Adjoining landowner failed to make out prima facie entitlement for summary judgment by submitting photographs which did not clearly show whether the defect was in the pedestrian ramp, which would be the City’s responsibility, or the sidewalk flags, which would be the abutting landowner’s responsibility, and failed to eliminate issues of whether its maintenance of the sidewalk created a tripping hazard between the pedestrian ramp and the sidewalk. Delgado v 5008 Broadway Assoc., LLC


Med Mal   Amend Notice of Claim   Amend Complaint   Ad Damnum  

Second Deptartment

Plaintiff denied leave to amend the timely served Notice of Claim to include a claim that his urethra was damaged by a Foley catheter at the defendant’s hospital as it was not an amendment to correct a technical mistake, omission, or defect but to add a new injury and new theory of liability. Motion to amend Complaint to specify an amount in the ad damnum denied as a specific amount is not permitted in malpractice actions under CPLR 3017. Castillo v Kings County Hosp. Ctr.


MVA   Turning Vehicle   Nonnegligent Explanation   Comparative Fault  

First

Plaintiff granted summary judgment where his bus was stopped in the right lane when the defendants’ truck made a right turn in front of the bus, striking the front driver’s side of the bus while it was still stopped. Plaintiff showed that defendant violated VTL §1128(a) by entering his lane of traffic and that plaintiff was not at fault. Defendant failed to offer a nonnegligent explanation and any claims of comparative fault were pure speculation. McDaniel v Codi Transp., Ltd.


MVA   Bus   Turning Vehicle  

First

Plaintiff and bus defendant granted summary judgment where co-defendant testified that they made a U-turn on 34th St. every morning about the time of the accident and bus driver recorded the car’s license plate number when it turned in front of the bus, causing the bus to stop short and the plaintiff to fall forward. Fay v New York City Tr. Auth.


Premises Liab   Sidewalk   Snow/Ice   Slip/Trip   § 7-210  

Second Deptartment

Bank, tenant of property adjoining sidewalk where plaintiff slipped and fell on snow/ice, denied summary judgment on owner’s cross-claims against it where it failed to show that it did not engage in snow removal efforts that created or exacerbated the condition. The administrative code §7-210 did not create a non-delegable duty to the tenant to maintain the sidewalk clear of snow/ice but the tenant’s removal efforts as alleged in the complaint could be the basis of liability. Ramjohn v Yahoo Green, LLC


Serious Injury   Expert Aff   ROM   Speculation  

First

Plaintiff failed to raise a question of fact in opposition to the defendants’ prima facie entitlement to summary judgment, by her neurologist’s affirmation which found a herniated disc on review of the MRI causally related to the accident, but which was speculative in that the neurologist originally recorded near-normal ROM and on recent exam found limitation in only 1 plane with near normal ROM in all other planes and failed to explain the discrepancies between his initial and recent findings, rendering the opinion speculative. Rose v Tall


Premises Liab   De Minimus  

Second Deptartment

Building owner granted summary judgment on plaintiff’s testimony, identified and marked photographs showing the mis-leveled area of concrete outside the rear exit which was physically insignificant and did not increase the risks posed or present a trap or nuisance. Fasone v Northside Props. Mgt. Corp.


Premises Liab   Sidewalk   § 7-210   NYC  

First

Metal marker on sidewalk near crack where plaintiff fell in front of building owned by co-defendant did not confer a “special benefit” on NYC to fall within an exception to administrative code §7-210 and NYC did not have prior written notice of the defect. Spencer v City of New York


Respondeat Superior   Independant Contractor   Negligent Hiring  

Second Deptartment

Wedding photographer who hired an independent videographer granted summary judgment against plaintiff’s claim that videographer struck her with his video equipment causing her to fall and sustain injuries where photographer showed that it had never used the videographer’s services before, did not provide health benefits, W-2, any equipment, and paid videographer in cash and did not withhold any taxes, and provided at most general supervision. Photographer showed that it did not have any reason to believe that the videographer would cause injuries and plaintiff failed to raise a triable issue in opposition. Weinfeld v HR Photography, Inc.


Serious Injury   Expert Aff  

Second Deptartment

Plaintiff overcame defendant’s prima facie entitlement to summary judgment on serious injury by his physician’s opinion that an x-ray showed a fracture of his left elbow as a result of the accident, rebutting defendant’s expert’s affirmation that an MRI failed to show a fracture. Kline v Mitchell


Untimely   Reasonable Excuse  

First

Denial of defendant’s motion for summary judgment as untimely affirmed where defendant failed to provide any explanation for its failure to timely file the motion. Brody v Propark Am.


Serious Injury   Expert Aff   Conclusory  

Second Deptartment

Defendant failed to meet its burden for summary judgment on serious injury by its expert’s affirmation which provided ROM measurement but did not compare them to normal R0M. The expert’s opinions on causation were conclusory. Pupko v Hassan


Serious Injury   BP  

Second Deptartment

Defendant failed to address plaintiff’s claims of 90/180 days in the BP and, therefore, was properly denied summary judgment on serious injury regardless of plaintiff’s papers. Aharonoff-Arakanchi v Maselli


Renew   BP   Uncertified Records   Reasonable Excuse  

First

Plaintiff’s motion to renew opposition to defendant’s motion for summary judgment denied where plaintiff submitted uncertified medical records showing that she had sustained a fracture and failed to provide a reasonable excuse for not providing them in her original opposition. Claim that she testified regarding the wrong hospital was unavailing since the correct hospital was listed in the BP. Galisia v Espinal


Med Mal   Civil Rights Law §51   Appellate Record  

First

Plaintiffs’ appeal from dismissal of medical malpractice and civil rights claims dismissed for failure to comply with the rules of the Appellate Division regarding submission of the orders appealed from and full copies of the transcripts. Shoulars v St. Barnabas Hosp.

IF YOU MUST READ
(2 summaries)
MUST READS NOTEWORTHY

Fraud   Statute of Limitations  

Second Deptartment

Action for fraud based on false reports by the defendant to the police claiming that plaintiff had passed bad checks was dismissed as time-barred since the action was commenced 9 years after the alleged fraudulent statements. Statute of limitations for frauds is the longer of 6 years from the statements or 2 years from when the plaintiff knew or should have known of the statements. Simpkins v Mackey


Question of Fact  

First

Plaintiffs raised a question of fact by submission of depositions, medical records, and police records in response to the defendants’ prima facie showing of entitlement to summary judgment. The court does not give the details of the proofs. Maritza P. v Devereux Found.

About Matt McMahon

Civil trials and appeals since 1984

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