April 5, 2022 | Vol. 307

(6 summaries)

Malpractice   Motion to Dismiss   Pain/Suffering  

First Department
In a case of first impression for the First Department, it unanimously found plaintiff stated a viable malpractice cause of action for the 63 year-old Alzheimer’s decedent’s 30-days of pain/suffering after he would have died had defendants not administered care beyond comfort measures as clearly instructed in the living will, DNR, DNI, and MOLST forms and the health care proxy’s instructions rejecting defendants’ sole claim that it was an impermissible “wrongful life” claim. In contrast to the inconceivable choice between existence and nonexistence that would require life to be viewed as an injury for wrongful life claims, the Court noted that assessing damages for pain/suffering from violation of the well accepted right of a competent adult “to refuse medical treatment, even where refusal may result in death,” requires no such choice. Greenberg v Montefiore New Rochelle Hosp.    

Set Aside Verdict   Preclusion   Discovery   Willful/Contumacious   Prejudice   Jury Charge  

First Department
Plaintiff’s verdict set aside and new trial ordered where lower court improvidently precluded defendants from using plaintiff’s EBT transcript from prior personal injury case on ground it was not timely disclosed pursuant to order requiring disclosure of plaintiff’s statements as there was no showing that failure to disclose was willful/contumacious, plaintiff could not be surprised as she was aware of her prior testimony which was relevant to injuries in the present case and the same attorney represented her in both cases at the time of the disclosure order.

Defendants’ motion to set aside for trial court’s modification of VTL §1111 charge denied as purely speculative and verdict was not against weight of evidence. Miller v Camelot Communications Group, Inc.    

Lien   Estate   Res Ipsa Loquitor   Collateral Estoppel  

First Department
DSS’s motion to amend infant compromise order to name the supplemental needs trust (SNT) for the now adult infant-plaintiff as beneficiary of the settlement annuities after her death, instead of her estate, granted as SNTs must provide for full reimbursement of Medicaid payments on beneficiary’s death.

Prior amendment to pay annuities to estate was not entitled to res judicata or collateral estoppel since it was in the same action. Laches is an unavailable defense where state is acting in a governmental capacity. Stern v Sullum    

Malpractice   Mistrial   Directed Verdict   Experts   Preclusion   Discovery   Reasonable Excuse  

Second Department
Trial court providently denied defendants’ motion for judgment as a matter of law on claim plaintiff could not make out a prima facie case for treatment of eye injury with long-term steroid prescription that allegedly caused glaucoma after the court granted a mistrial and precluded plaintiff’s expert from testifying regarding his “medical records” of his examinations of plaintiff because the records of his initial examination were never exchanged, were “inextricably intertwined” with the records of the examinations, and plaintiff did not show good cause for the delay in producing the initial records. Looking at the evidence in the light most favorable to the plaintiff, there is a rational path for a jury to find for plaintiff without the precluded testimony. Stolz v Manhattan Eye, Ear & Throat Hosp.    

Premises Liab   Malpractice   Consolidation  

Second Department
Motion by defendants in premises liability case to consolidate case or for joint trial with separate malpractice action for treatment of injuries from premises case denied as they involved dissimilar causes of action with little danger of inconsistent verdicts as premises liability defendants would be liable for all damages, including injuries from resultant malpractice, and there is no risk of double recovery. Kaladze v Ocean Park Acquisition, L.P.    

Construction Liab.   Set Aside Verdict  

First Department
Motion to set aside verdict finding defendant negligent for creating debris away from toll plaza that caused plaintiff to trip and fall at toll plaza denied as it was not “utterly irrational” where jury could credit plaintiff’s testimony that he saw defendant constantly create debris that damaged the toll plaza where he worked, and he had complained about damage, as his testimony “was not incredible, illogical, manifestly untrue, or physically impossible.” Lezama v Judlau Contr., Inc.    

(19 summaries)

Premises Liab   Set Aside Verdict   Directed Verdict   Pain/Suffering   Notice  

First Department
Plaintiff verdict awarding past medical expenses and lost earnings set aside unless plaintiff agreed to reduce awards to actual amount of damages that plaintiff requested from jury and $350,000 award for future medical expenses and $0 for future pain and suffering set aside and new trial ordered on those items as failure to award future pain/suffering cannot be justified in light of significant future medical expense award. Defendant’s motion to set aside liability verdict and for directed verdict on liability denied where verdict was not utterly irrational as jury could find defendant had constructive notice based on porter’s testimony. Gonzalez v 1436 Beach Realty LLC    

Snow/Ice   Sidewalk   Prior Written Notice   Create Condition  

Second Department
Village which did not have prior written notice of snow/ice on sidewalk failed to eliminate questions of whether it created hazardous condition by affirmative act of negligence by piling snow on both sides of sidewalk which is an affirmative act of negligence as opposed to the omission of failing to remove all snow, village’s expert acknowledged snow would have melted and refroze, and plaintiff testified there was no sand/salt on sidewalk contradicting village foreman’s testimony he instructed workers to spread sand/salt. Pirrone v Metro N. Commuter R.R.    

Malpractice   Accepted Practice   Causation   Special Duty  

First Department
Defendants met burden for summary judgment on expert opinion that even if there was an 8-month delay in diagnosing the infant’s brain tumor, an earlier diagnosis would not have changed the treatment or prognosis and plaintiff’s neurosurgical expert’s opinion failed to raise an issue where opinion of tumor’s growth rate was speculative and conclusory and he failed to address or dispute several of the defendants’ experts’ conclusions. Stevenson v Ghosh-Hazra    

Malpractice   Causation   Experts   Speculation  

Second Department
Hospital and ER doctor who did not diagnose plaintiff’s stroke when she presented 16-hours after first onset of dizziness granted summary judgment on their expert’s opinion that any failure to diagnose at that time did not deprive plaintiff of a better outcome as it was too late to administer TPA (pleaded) or catheter directed intra-arterial therapy (not pleaded) by time she went to ER. These opinions were sufficient to establish lack of causation even if opinion that “[n]othing that was done or not done caused or contributed to [the plaintiff’s] alleged injuries,” would not have been sufficient by itself. Plaintiff’s expert failed to address plaintiff’s claim and defendants’ expert’s opinions regarding TPA, relying solely on a new theory raised for the first time in opposition. There were 2-dissenters. Townsend v Vaisman    

Labor Law §240   Labor Law §241   Industrial Code   Gravity Risk   Raised For First Time  

Second Department
Defendants granted summary judgment of Labor Law §240(1) claim where worker was injured when gang box lid suddenly fell injuring his shoulder, although not hitting him, as activity did not involve an elevation risk as plaintiff was standing on the same level with the gang box and the lid did not need to be secured for the work. Industrial code §23-2.1(a)(1) was inapplicable for Labor Law §241(6) claim as injury did not occur in a passageway/hallway but defendants denied summary judgment on §241 claims predicated on industrial codes §23-1.5(c)(3) as hydraulic pumps in gang box were not in working order and §23-6.1(b)(hoisting equipment) where that argument was first raised in Reply. Ormsbee v Time Warner Realty Inc.    

Labor Law §240   Labor Law §241   Labor Law §200   Ladder   Industrial Code   Control   Sole Cause   Feigned Issue  

Second Department
Defendants granted summary judgment of Labor Law §§ 240(1), 241(6), 200 and negligence claims on plaintiff’s testimony that he lost his balance and fell while descending ladder making him the sole cause of the fall, proof the ladder was not defective, that defendants did not control the means and methods of plaintiff’s work, and that industrial codes §§ 23-1.7(d)(slippery conditions) and 23-1.21(b)(ladders) were inapplicable because plaintiff was sole cause of his fall. Plaintiff’s affidavit claiming ladder slipped on debris presented only feigned issue where it contradicted his earlier testimony. Singh v 180 Varick, LLC    

Labor Law §240   Labor Law §241   Safety Devices   Agent   Control   Espinal   Sole Cause   Indemnity  

First Department
Worker injured when top section of ramp covering front steps of church dislodged and slid down other 2-sections to sidewalk while he was a moving buffing machine up ramp granted summary judgment on Labor Law §240(1) as ramp presented an elevation related hazard, was not a “passageway” but served as a tool to help him transport the machine, and plaintiff was engaged in the overall renovation project. Company hired to repair pipe organ and company it hired to return organ and construct ramp found to be statutory owner agents where they had responsibility to supervise moving the organ and assembling the ramp and they launched an instrumentality of harm under Espinal. Plaintiff could not be sole cause where accident was caused by lack of adequate safety device.

GC granted summary judgment dismissing common-law indemnity and contribution claims on showing it was not negligent, only vicariously liable, and had only general supervisory authority. Organ company denied dismissal of moving company’s contribution and common-law indemnity claims where questions of its negligence remained but contractual indemnity claim dismissed as there was no written contract. Royland v McGovern & Co., LLC    

Malpractice   Accepted Practice   Causation   Experts   Speculation  

First Department
Plaintiffs’ expert failed to raise an issue in opposition to defendants’ expert’s opinion that defendants did not depart from accepted practice and any difficulty in plaintiff’s cancer treatment was result of her cancer where plaintiff’s expert failed to address defendants’ expert’s opinions, instead opining plaintiff never had cancer that was contradicted by the record which showed the cancer was eventually successfully treated with surgery, radiation and gene therapy. Plaintiff’s expert ignored several years of plaintiff’s treatment for a different cancer and its reoccurrence. Mulroe v New York-Presbyt. Hosp.    

Labor Law §241   Industrial Code  

First Department
Defendants granted summary judgment of Labor Law §241(6) claim based on industrial codes §§ 23-1.7 (d)(slippery conditions) and 23-1.7(e)(1)(tripping hazard) as plastic covering laid on escalator to catch dripping paint which painter tripped on was integral to his work. The propriety of the object does not define what is integral to the work. There were 2-dissenters. Bazdaric v Almah Partners LLC    

Premises Liab   Amend BP   Note of Issue   Reasonable Excuse  

Second Department
Plaintiff’s motion to amend BP to include new theory of dim lighting and new injury of fibromyalgia providently denied where plaintiff waited 8-months after Note of Issue to make motion, was aware of lighting condition before filing Note of Issue, and failed to give a reasonable excuse for the delay. Medical records relied on to show fibromyalgia claim was meritorious only connected condition to injury in a conclusory manner. Blumenthal v 1979 Marcus Ave. Assoc., LLC    

MVA   Sole Cause   Survelliance Video  

First Department
Defendants granted summary judgment on plaintiff’s testimony and surveillance video showing she was sole cause of accident where she first approached bus after it was pulling out from curb and she had made no attempt to signal the bus driver that she wanted to board. Video refuted plaintiff’s expert’s opinion that misalignment of the bus’s mirrors was a cause of the accident. Plaintiff did not dispute that defendants’ internal investigation report was based on a misunderstanding of her actions and without benefit of the surveillance video. Clayson v Williams    

MVA   Turning Vehicle   There to be Seen  

Second Department
Plaintiff granted summary judgment on testimony of both drivers and photographs showing defendant-driver failed to yield right-of-way while making a left-hand turn directly in front of plaintiff’s vehicle and that she failed to see what was there to be seen in violation of VTL §§ 1141 and 1163. Jackson v Klein    

Premises Liab   Dangerous Condition   Notice   Res Ipsa Loquitor  

First Department
Plaintiff denied summary judgment where overhead fog machine fell on her as she went through Halloween maze as it was unclear if how that fog machine was attached and defendant’s COO testified no fog machine had ever fallen before, raising issue of lack of notice. A third-party vendor installed and inspected the fog machines and plaintiff failed to show that defendant knew or should have known that company presented a danger to visitors. Res ipsa loquitor inapplicable where plaintiff failed to show defendant had exclusive control of the fog machine. Morris v Ten Thirty One Productions LLC    

Labor Law §241   Construction Liab.   Discovery  

Second Department
Plaintiff’s motion to compel defendants to provide tax returns and phone records to show payments by building owner to defendant GC and owner agent denied as tax records are not discoverable absent a strong showing the information is indispensable and cannot be obtained from other sources, which plaintiff failed to show, and plaintiff failed to show phone records would likely lead to relevant information. Nill v Gaco W., LLC    

Discovery   Preclusion   Survelliance Video   Good Faith Aff  

Second Department
Plaintiff’s motion to preclude defendants from using surveillance video of accident at trial for failure to comply with discovery demands denied where plaintiff’s counsel did not include an affirmation of good faith with motion. Kemp v 1000 Broadway, LLC    

Malpractice   Discovery  

Second Department
Plaintiff’s motion to compel defendants to produce documents showing how many times pulmonologist-defendant performed electromagnetic navigational bronchoscopies on non-party patients prior to performing one on plaintiff’s decedent, and the results thereof, providently denied as overly broad and burdensome as plaintiff failed to show the records were material and necessary for the prosecution of the action. Demirayak v Nassau Chest Physicians, P.C.    

MVA   Rear End   Emergency Doctrine  

First Department
Plaintiff granted summary judgment on his affidavit that he was stopped at a red light when defendants’ vehicle rear-ended his vehicle. Defendant-driver’s affidavit claiming plaintiff stopped short did not raise an issue without proof defendant maintained a proper distance under VTL§ 1129(a). Defendants failed to show emergency doctrine applied without showing defendant-driver’s speed before a pedestrian darted into street or why his reaction was reasonable under the circumstances. Motion was not premature as defendant-driver had full knowledge of the facts of the accident. Scioli v Joseph    

Malpractice   Motion to Dismiss   Statute of Limitations   Continuous Representation   Premature Motion  

First Department
Law firm’s motion to dismiss granted on consent to change attorney form notarized by subsequent attorney more than 3-years before action barred by statute of limitations. Plaintiff’s continuous representation argument rejected where Complaint did not allege clear indicia of continuing representation and claim that discovery was necessary to oppose motion was speculative. Walsh v Wallace Law Off.    

MVA   Nonnegligent Explanation  

Second Department
Plaintiff granted summary judgment where defendant did not contest that plaintiff was stopped in the left lane when defendant’s front driver-side tire struck plaintiff’s rear passenger-side tire establishing violation of VTL §1128(a) requirement to stay in lane. Defendant’s affidavit and photographs were consistent with defendant’s liability and did not raise a nonnegligent explanation. Charles v Nicholson    

(2 summaries)

Labor Law §240   Question of Fact  

Second Department
Plaintiff’s motion for summary judgment on Labor Law §240(1) denied on reargument where defendants raised credible evidence of a different version of how accident happened from plaintiff’s version that beam he and coworkers were hoisting fell on him. The Court does not give the details of the defendants’ version of the accident. Heras v Ming Seng & Assoc., LLC    

Uninsured   Arbitration  

Second Department
Uninsured carrier’s motion to permanently stay arbitration denied where offending car’s carrier effectively cancelled policy prior to accident by proof it served notice of cancellation for nonpayment as required under contract. Matter of Progressive Advanced Ins. Co. v Littlefair    

About Matt McMahon

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