April 26, 2022 | Vol. 310

(6 summaries)

Malpractice   Duty   Amend Complaint   Statute of Limitations   Reasonable Excuse   Note of Issue  

First Department
Plaintiff’s motion to amend Complaint to add medical practice after statute of limitation denied as plaintiff knew identity of practice and not originally naming it was not a “mistake” for application of relation-back doctrine and he did not offer a reasonable excuse for waiting 1.5-years after he claimed to learn identity of the practice, after filing Note of Issue and moving-podiatrist’s motion for summary judgment, to seek to amendment.

Moving defendant-podiatrist granted summary judgment where plaintiff never met or received treatment from him, he was not involved in plaintiff’s treatment behind the scenes, and did not direct treating doctor’s care. He could not be personally liable as sole shareholder of practice that employed treating doctor without facts to pierce he corporate veil. Benitez v Patel    

Malpractice   Notice of Claim   Statute of Limitations   Untimely   Actual Knowledge   Prejudice   Experts   Reasonable Excuse  

Second Department
Plaintiff’s second OSC to serve late Notice of Claim filed 2-days after statute of limitations was timely where the first OSC was rejected 3-days after it was filed because attached Notice of Claim was missing signature page as the CPLR §204(a) toll while a motion to serve a late Notice of Claim is decided applied equally to the 3-days before the first OSC was rejected making the second OSC filed 1-day before the tolled statute of limitations.

Plaintiff did not need an expert to establish NYCHHC had actual notice where medical records showed a stroke code was initially called, it was determined plaintiff did not need TPA after assessment, and later determined she had a stroke but it was too late to give TPA. Defendants failed to make a particularized showing of prejudice in response to plaintiff’s initial showing of no prejudice. Lack of reasonable excuse for delay insufficient to deny motion. Ahmed v New York City Health & Hosp. Corp.    

Motion to Dismiss   Statute of Limitations   CPLR §205  

Second Department
Where plaintiff’s first Complaint was dismissed for failing to state a cause of action, second Complaint filed within 6-months of the dismissal was timely even though more than 3-years after the accident as it was entitled to 6-month extension under CPLR §205(a). Tamrakar v Macerich Queens Ltd. Partnership    

Labor Law §240   Falling Object   Safety Devices   Foreseeability  

First Department
Where plaintiff on level ground was injured when 3’-4’ tall 300lb-500lb unsecured fire pump standing upright on floor toppled over on him granted summary judgment because weight of pump was capable of generating great force even when falling a short distance and needed to be secured whether or not it was related to plaintiff’s work. Risk of pump falling over was foreseeable and needed protection. Grigoryan v 108 Chambers St. Owner, LLC    

General Release   Assumption of Risk  

First Department
Facility offering specialized resistance-band exercise class plaintiff was injured during denied summary judgment where activity could be viewed as “recreational and instructional,” making the signed “Release of Liability and Assumption of Risk” void under GOL §5-326. Defendants failed to offer documentary evidence showing activity was primarily instructional and questions remained of whether plaintiff was aware of risks she was assuming as she had no experience with stretching bands and no instructions were provided. Shaw v AKT Inmotion Inc.    

Malpractice   Motion to Dismiss  

First Department
Hospital’s motion to dismiss for lack of subject matter jurisdiction granted where claims were governed by Federal Torts Claim Act and action had previously been removed to federal court which had exclusive jurisdiction. Adams v Pilarte    

(18 summaries)

Malpractice   Accepted Practice   Respondeat Superior   Experts   Speculation  

First Department
Plaintiff failed to oppose defendants’ prima facie entitlement to summary judgment with a qualified expert where internist/gastroenterologist expert did not show sufficient qualifications to opine on whether defendant-cardiologist departed from accepted practice when clearing decedent to suspend blood thinners for a colonoscopy. Plaintiff’s expert’s opinion that death was precipitated by a hypercoagulable state was unsupported and the expert did not address defendants’ expert’s opinion that decedent’s condition at death was inconsistent with a blood clot.

Argument that hospital failed to show entitlement to summary judgment rejected where its liability would only have been vicarious and plaintiff could not identify any unsupervised negligent act that caused decedent’s death. Vargas v Bhalodkar    

Products Liab   Design Defect   Warnings   Causation  

Second Department
Conveyer machine manufacturer in DEP facility that injured plaintiff’s decedent while it was being moved granted summary judgment dismissing strict liability claim on proof machines were not defective as designed or manufactured as they were intended to be affixed to the ground and DEP’s GC modification to add castors so they could be moved made them defective. Inadequate warnings claim also dismissed on proof manufacturer warned DEP and GC that machines had to affixed to the ground to be safe, without which warranty would be voided, and they failed to do so eliminating possibility warning was a cause of the accident. Kosta v WDF, Inc.    

Labor Law §240   Labor Law §241   Safety Devices   Sole Cause   Industrial Code  

First Department
Plaintiff and defendants denied summary judgment on Labor Law §240(1) where pebble sized concrete and debris from 1-floor above where carpenter was working in shaft logged in his eye on questions of whether elevation differential and weight of debris could generate enough force to require securing debris and if injury was caused by lack of adequate protection against significant height differential. Plaintiff’s expert identified planking above plaintiff, equivalent of overhead netting, as a missing safety device. Plaintiff could not be sole cause for failing to wear safety googles which, like a hard hat, are not a Labor Law protective device.

Owner and construction manager denied summary judgment on Labor Law §241(6) on question of whether shaft was normally exposed to falling debris for industrial code §23-1.7(a)(1) and whether shaft covering not more than lesser of 30’ or 2-stories above work required by industrial code §23-2.5(a)(1) would have been above floor debris fell from. Peters v Structure Tone, Inc.    

MVA   Rear End   Directed Verdict   Nonnegligent Explanation  

Second Department
Grant of defendant’s motion for directed verdict at close of evidence on liability reversed and new trial ordered where defendant’s decedent’s vehicle came out of driveway behind plaintiff’s parked car, struck left rear of plaintiff’s car and sideswiped driver’s side pushing her car 2’ into another parked car as defendant failed to rebut presumption of negligence from rear end impact with a nonnegligent explanation and there was a rational path for a jury to find decedent negligent. Castro v Klein    

MVA   Directed Verdict  

Second Department
Driver of vehicle with plaintiff as passenger granted directed verdict at close of plaintiff’s case as there was no rational path for jury to find him negligent where he was driving straight on a one lane road and co-defendant pulled his car out from a parking spot without signaling, immediately striking moving-defendant’s vehicle. Berezovskiy v Redillo    

Malpractice   Accepted Practice   Causation   Loss of Chance   Experts   Conclusory   Speculation  

First Department
Plaintiffs’ cardiology expert’s conclusory opinion that decedent’s chest pain after cardiac ablation should have alerted health providers at Rikers Island of rare atrial-esophageal fistula failed to raise an issue in opposition to defendants’ showing of no departure as expert did not address defendants’ expert’s opinion that chest pain was consistent with an ablation or fact decedent had chest pain before the ablation and it could be caused by things other than a fistula. Development of a fistula was itself insufficient to raise an issue of fact on departure.

Plaintiffs failed to raise issue on causation where expert-cardiologist did not show progress of fistula to support opinion of loss of chance from not transferring decedent to hospital sooner and plaintiffs’ radiology-expert’s opinion that fistula showed on CT scan on day of hospital admission did not establish it would have been detectable before transfer to hospital. Flores v New York City Health & Hosps. Corp.    

Premises Liab   Construction Liab.   Labor Law §200   Create Condition   Notice   Control  

First Department
Freight elevator operator injured when one of an unsecured bundle of electrical metal tubes sub-contractor stacked by freight elevator toppled and struck him on the head granted partial summary judgment on negligence claim against sub-contractor on proof they created the dangerous condition. Plaintiff failed to meet burden for summary on Labor Law §200 and negligence claims against GC where he merely speculated GC had constructive notice because it knew or should have known materials would be stacked by the elevator. Where liability is based on a dangerous condition, plaintiff must show GC had control of work site and actual or constructive notice of condition. Villanueva v O’Mara Org., Inc.    

Premises Liab   Amend BP   Note of Issue   Experts   Preclusion  

Second Department
Defendant’s motion to strike Supplemental BP that added injuries to left lower extremities granted as adding injuries is an Amended BP and it was filed after Note of Issue without leave of court. Portion of motion which was to strike affirmation of expert denied. Naftaliyev v GGP Staten Is. Mall, LLC    


Second Department
Lower court providently denied defendants’ CPLR §3124 motion to compel plaintiff to respond to post-EBT demand for records relating to prior conviction for falsely reporting an incident in the third degree where they failed to show the documents were material and necessary to defend the action. Knoll v L&M Spring Val., LLC    

Comment: Convictions of crimes are generally admissible at trial for impeachment purposes under CPLR §4513.

Labor Law §240   Ladder   Premature Motion  

First Department
Worker granted summary judgment against building owner on Labor Law §240(1) where his and coworker’s affidavits showed he fell from unstable 8’ A-frame ladder missing rubber feet that shifted and caused the fall. Plaintiff’s work of retrofitting light fixtures was repair covered under §240 and not mere maintenance.

Defendant failed to show EBTs or discovery might lead to information to oppose the motion or that facts exclusively within plaintiff’s possession were necessary to oppose the motion on its claim of premature motion. Laporta v PPC Commercial, LLC    

Labor Law §241   Industrial Code  

Second Department
Owner and tenant granted summary judgment dismissing Labor Law §241(6) claim based on industrial code §23-1.33 where construction worker was injured during project to move a drive-through menu sign as §23-1.33 applies to persons passing construction sites and not construction workers. Leighton v Chaber, LLC    

Labor Law §240   Indemnity  

First Department
Plaintiffs’ motion to sever third-party actions denied where they failed to show main action would be unduly delayed, third-party discovery could be accommodated, and judicial economy would be served by trial of common factual/legal issues. Maltese v Port Auth. of N.Y. & N.J.    

Comment: Plaintiffs had been granted summary judgment on Labor Law §240(1) so theirs would be a damage only trial with the third-party claims for indemnity and contribution.

MVA   Causation   Intervening Cause  

Second Department
Car wash denied summary judgment where keys its employee tossed to plaintiff for locked vehicle employee parked on street landed on road and plaintiff was struck by a vehicle when picking them up, failing to establish as a matter of law that any negligence of employee merely furnished the occasion for the accident and was not a proximate cause. Douglas v Kone    

Premises Liab   Out of Possession   Building Code  

First Department
Out of possession landlord with right to reenter to inspect or repair granted summary judgment for plaintiff’s slip on water leaked from toilet on floor above where there was no allegation of a structural defect that violated a specific statutory safety provision. Padilla v Hope W. 118th Hous. Co., Inc.    

Labor Law §240   Agent  

Second Department
Contractor granted summary judgment dismissing Labor Law §240(1) claim of subcontractor’s foreman who fell off roof where plaintiff had alleged property was in Queens but testified it was in Valley Stream and contractor showed it was not GC or agent of owner of Valley Stream property on date of accident. Ortega v Panther Siding & Windows, Inc.    

MVA   Nonnegligent Explanation   There to be Seen   Speculation  

First Department
Plaintiffs granted summary judgment on their affidavits that defendants’ vehicle went through stop sign striking the middle of their vehicle and defendants’ claim that their driver stopped and checked for traffic before going through stop sign failed to rebut presumption of negligence for failing to yield right of way (VTL §1142) and fact she did see plaintiffs’ vehicle until “it suddenly appeared in front of her” only proved that she failed to see what was there to be seen. Claim that plaintiffs entered intersection from parking spot after defendant was in intersection was speculative and location of impact showed plaintiffs were in intersection before defendant. Samnath v Lifespire Servs., Inc.    

Premises Liab   Sidewalk   Unknown Cause   Trivial   Notice   Raised For First Time  

First Department
Madison Square Garden granted summary judgment where plaintiff could not identify a sidewalk defect that caused her to trip and picture taken by her son on day of accident showed an insignificant hole that would not be actionable even if filled with sand pebbles as alleged. The Court considered plaintiff’s argument that defendant failed to meet its burden on notice, raised for the first time on appeal, as it was a determinative legal issue which the record was sufficient to address. Because the defect was trivial, defendant was not required to show lack of notice. Narvaez v Vornado Realty Trust    

Assault   Set Aside Verdict   Causation   Sole Cause   NYC  

Second Department
Plaintiff’s motion to set aside verdict from second trial that found NYC negligent for placing another inmate in the holding cell, but not a proximate cause of the assault, denied as on a reasonable view of the evidence the jury could have found plaintiff initiated the altercation making him the sole cause of his injuries. Archer v City of New York    

(2 summaries)

Serious Injury   Causation  

Second Department
Plaintiff raised issues of whether she sustained serious injuries caused by the accident in opposition to defendants’ prima facie showing of entitlement to summary judgment on serious injury and causation. The Court does not give the details of the proofs. Gardner v Cruz    

Serious Injury   Causation  

Second Department
Plaintiff raised an issue of whether she sustained a serious injury in opposition to defendants’ prima facie showing of entitlement to summary judgment. Where defendants’ expert did not address causation, the burden on causation never shifted to plaintiff. The Court does not give the details of the proofs. Fernando v New York City Tr. Auth.    

About Matt McMahon

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