April 6, 2021 | Vol. 256

(6 summaries)

Assault   Police   Directed Verdict   Set Aside Verdict   Pain/Suffering   Materially Deviates   Mistrial   Admissibility   Experts   NYC  

First Department
NYC’s post-verdict motion for judgment as a matter of law and to set aside verdict judgment awarding $1.5/$4.5 past/future pain/suffering and $5 million for future medical expenses for police officer’s shooting plaintiff in the neck during a traffic stop, causing paralysis from a spinal contusion, granted to extent of setting aside verdict and ordering new trial unless plaintiff stipulated to reduce future medical expenses to $4,289,606.09. Rejecting NYC’s claim that plaintiff could not have started and moved his car if he were shot while parked because he would be immediately paralyzed, the Court found there was a rational path for the jury’s verdict on plaintiff’s medical expert’s opinion there would be a delay between spinal contusion and paralysis sufficient to allow plaintiff to move the car and defendant’s medical expert agreed there would be a delay. An eyewitness also contradicted the officers’ testimony as to where they were as the car was moving. This was sufficient to find the verdict was reached on a fair interpretation of evidence looking at the evidence in the light most favorable to the plaintiff.

Lower court providently admitted only 1 of 14 of plaintiff’s criminal convictions as jury was aware of plaintiff’s history from his testimony he had just purchased heroin and claim that convictions were relevant on issue of whether plaintiff or officers acted aggressively was unpreserved where not raised below. While comments asking to “send a message” can be grounds for mistrial, lower court providently denied mistrial for plaintiff’s counsel’s comment to send a message to NYC about what the community wants, made during summation, as an isolated comment in a long trial with a long summation that could not have so permeated the trial as to affect the outcome.

Awards for past/future pain/suffering did not materially deviate from reasonable compensation but award for future medical expenses for treatments and medications plaintiff testified he had not received for many years were not supported and Court recalculated future medical expenses to $4,289,606.09. Lopez v City of New York    

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

Second Department
Plaintiff’s motion for leave to serve a late Notice of Claim, filed 1-year and 92-days after he was discharged from Kings County Hospital (NYCHHC) with a referral to Bellevue Hospital (NYCHHC) denied where plaintiff did not submit medical records to show Kings County had actual knowledge its employees caused injury, and his expert did not opine malpractice was apparent on independent review of records. Plaintiff’s excuse delay was caused by his focus on his condition was not a reasonable excuse and he failed to show defendant was not prejudiced by delay.

A motion to serve a late Notice of Claim cannot be brought beyond the statute of limitations. While treatment at a different facility does not constitute continuous treatment, and hospitals owned by the same entity do not automatically establish an agency between them, questions remained of whether an agency existed between Kings County and Bellevue by the referral of the plaintiff. Even if continuous treatment applied, the motion would be denied for failing to meet criteria for a late Notice of Claim. Pannell v New York City Health & Hosps. Corp.    

Pothole Law   Prior Written Notice   Motion to Dismiss   Notice of Claim   Create Condition   NYC  

First Department
NYC’s motion to dismiss for failure to state a cause of action granted where timely served Notice of Claim did not allege any theory of liability and plaintiff’s cross motion to amend Notice of Claim denied where it sought to include new theories that would change nature of the claim. Neither the 50H testimony nor the timely filed Complaint could rectify or substitute for a valid Notice of Claim. The Complaint failed to allege the affirmative act of negligent exception to the prior written notice requirement, which cannot be added after the statute of limitations. Perez v City of New York    

Premises Liab   Set Aside Verdict   Directed Verdict   Dangerous Condition   Open/Obvious   Notice  

Second Department
Interlocutory judgment on verdict finding homeowner 100% at fault set aside and Complaint dismissed where exterminator partially fell through floor of unfinished attic when he stepped from what he described as the “main beams” to a smaller piece of wood he was unsure was intended to be walked on that he assumed was to hold insulation. There was no valid line of reasoning and permissible inferences that could lead rational persons to reach the jury’s verdict where plaintiff never described the piece of wood he stepped on sufficiently to establish it was a latent defect, other than his claim it was discolored and damp, and he admitted he could not step on the sheetrock. Even if it were a latent defect, there was no proof homeowner had notice of it. There were 2-dissents. Saintume v Lamattina    

Construction Liab.   Espinal   Experts   Spoliation   Negative Inference   Indemnity  

First Department
Contractor that installed toilet in apartment above plaintiff’s apartment denied summary judgment based on plaintiff’s expert’s opinions that toilet leaked water into ceiling light that fell on plaintiff, raising issue on whether contractor launched an instrumentality of harm under Espinal. Plaintiff’s expert’s opinion was not speculative, even though he did not inspect toilet which was discarded by defendant-owner, where based on testimony of superintendent and plumbers who inspected the toilet, testimony of upstairs tenant who denied toilet was damaged after installation, and expert’s experience installing that model toilet. Lower court providently found spoliation non-willful and left decision of negative inference to trial court.

Contractor’s motion for summary judgment of indemnity and breach of contract claims denied where issue of contractor’s negligence remained, and insurance purchased was less than specified in contract. Ebalo v Trustees of Columbia Univ.    

Subpoena   Settlement  

Second Department
Motion to quash subpoena seeking training materials, employee handbooks, and claim file brought by carrier, a nonparty, denied in action where plaintiff claimed $1,000 settlement with decedent was invalid for duress and mutual mistake as carrier failed to meet burden of showing material was “utterly irrelevant” or the “futility of the process to uncover anything legitimate is inevitable or obvious.” Demands were not overbroad or unduly burdensome, privileged trade secrets, or material prepared in anticipation of litigation. Lima v Ancona    

(19 summaries)

Malpractice   Statute of Limitations   Continuous Treatement   Feigned Issue  

First Department
NYCHHC met burden of showing alleged departures occurred more than 1-year and 90-days before Complaint filed despite several visits to hospital for unrelated conditions. Plaintiff failed to show continuous treatment by 1-mention of rectal bleeding during preop visit for unrelated condition and claim that he made several undocumented visits to the hospital was unsupported by the medical records and inconsistent with his prior affidavit. Viniello v New York City Health & Hosps. Corp.    

Attorney Fees  

Second Department
Dispute over fee on $550,000 settlement resolved with prior/subsequent attorneys receiving 0%/100% of fee where subsequent attorney discontinued state action to commence federal action and prior attorney submitted no time records or evidence to quantify their efforts, their contributions were minimal and had no effect on the ultimate outcome. Robinson & Yablon, P.C. v Sacco & Fillas, LLP    

Malpractice   Motion to Dismiss   Discovery   Costs/Disbursements   Reasonable Excuse  

First Department
Plaintiffs’ Complaint against individual doctor stricken for failure to respond to 6-discovery orders requiring a supplemental BP where no reasonable explanation was given and against hospitals for plaintiffs’ delay in posting court-ordered security without giving a reasonable excuse. Moore v Nizam    

Labor Law §240   Labor Law §200   Admissibility   Uncertified Records   Admission  

First Department
Worker who fell when steel tube shifted as he received decking from a coworker granted summary judgment on Labor Law §240(1) even though he fell to same level he was working on, not to floor. Defendants failed to raise issue with inadmissible uncertified ER record containing plaintiff’s statement that was not germane to his treatment, construction manager’s accident report where no business record foundation was provided, and unsigned WC record where identity of declarant was unclear and none of the statements contradicted plaintiff’s version.

Labor Law §241(6) claim academic in light of summary judgment but Labor Law §200 relevant on issues of indemnity. Steel contractor did not have control of means and methods of plaintiff’s work but that was not a prerequisite to under indemnity provision of contract with GC and lower court properly conditioned summary judgment to amounts over steel contractor’s policy to avoid anti-subrogation rule. Steel subcontractor, plaintiff’s employer, required to indemnify steel contractor regardless of negligence where contract provided for indemnity arising out of work performed. Ging v F.J. Sciame Constr. Co., Inc.    

Malpractice   Informed Consent   Accepted Practice   Causation   Experts  

Second Department
Defendants granted summary judgment of malpractice claim for total abdominal hysterectomy and removal of fallopian tube and ovaries on experts’ detailed opinions of no departures or causation which specifically rebutted each allegation in the BP. Plaintiff’s expert failed to raise issues with opinions that were conclusory and speculative and failed to address defendants’ expert’s opinions.

Defendants granted summary judgment on informed consent on expert’s opinions, EBTs, and the signed consent form stating plaintiff “had been informed about the proposed surgical procedure, and the alternatives thereto, as well as the reasonably foreseeable risks and benefits.” Expert also established that reasonably prudent person would not have declined the surgery, and surgery did not cause plaintiff’s injuries. Plaintiffs failed to raise an issue in opposition and their motion to renew was properly denied where it did not include new facts. Pirri-Logan v Pearl    

Assault   Motion to Dismiss   3rd Party Contractor   Duty   Hearing   Admissibility  

First Department
Hotel security company’s motion to dismiss negligent hiring claim where security guard sexually assaulted plaintiff denied as director’s affidavit was not on personal knowledge and failed to lay a business record foundation for records attached to motion. Plaintiff stated an adequate negligent hiring claim based on security company’s common-law duty to “take reasonable care in making decisions respecting the hiring and retention of [its] employees,” not on its contract with the hotel. Doe v Intercontinental Hotels Group, PLC    

Labor Law §241   Industrial Code   Notice  

First Department
Defendants’ claim accident happened outside of work area rejected on their site manager’s testimony he knew nothing about a “material room,” and materials were kept throughout the site. Defendants’ motion for summary judgment of Labor Law §241(6) claim on industrial code §23-1.7(e)(1)(tripping hazards in passageways) denied where on conflicting testimony of whether it was a passageway. Defendant’s claim it lacked notice of condition irrelevant under $241. Gallina v MTA Capital Constr. Co.    

Malpractice   Duty   Accepted Practice   Causation   Experts   Conclusory   Speculation  

Second Department
Defendants granted summary judgment of claim they failed to diagnose and treat plaintiff’s malaria and improperly gave flu vaccine when plaintiff was ill, resulting in Guillian-Barre syndrome (GBS), where their experts addressed and rebutted the specific allegations of malpractice in the Complaint and BP explaining how and why defendants did not depart from accepted practice with factual details.

Plaintiffs’ expert blamed the failure to diagnose and treat malaria on the infectious disease specialist, not defendants, gave only a conclusory opinion that defendants departed by failing to order appropriate tests without stating why defendants would be responsible for ordering such tests. Nor did Plaintiffs’ expert address defendants’ expert’s opinion that defendant pulmonologist/internal medicine physician could rely on infectious disease specialist regarding infection, he had no reason to question that specialist, and his duty did not include the diagnosis and treatment of malaria. Plaintiffs’ expert failed to address defendants’ experts’ specific opinions regarding both departure and causation of giving the flu vaccine, that risks of contracting flu and developing GBS far outweighed the minimal consequence of the flu vaccine and the claim that plaintiff was acutely ill when the vaccine was given was not supported in the record. Plaintiff’s expert failed to show he was familiar with the standards of care in neurology or had any experience with GBS, a neurological condition. Elstein v Hammer    

Labor Law §240   Labor Law §200   Sole Cause   Indemnity   Control   Create Condition   Notice  

First Department
Plaintiff granted summary judgment on Labor Law §240(1) where he fell 4’ through platform of unidentified contractor’s baker’s scaffold and defendants’ claim of sole cause rejected without evidence plaintiff knew he was expected to exclusively use his employer’s scaffold. Labor Law §200 and negligence claims against management company dismissed on proof it did not have authority to control work and did not create or have notice of condition. GC denied summary judgment of §200 and negligence claims, even though it did not have control over means and methods of plaintiff’s work, as questions remained of whether it had notice of dangerous condition where its employees testified they inspected site daily, could remove unsafe equipment, and lack of a factory platform would be observable.

Owner granted summary judgment dismissing contractual and common law indemnity claims where it was not negligent and there were no contracts imposing indemnity and granted summary judgment on contractual indemnity against GC and plaintiff’s employer. GC granted summary judgment on contractual indemnity against plaintiff’s employer, conditioned on determination of GC’s freedom from negligence. Herrero v 2146 Nostrand Ave. Assoc., LLC    

Premises Liab   Unknown Cause   Notice   Last Inspection  

Second Department
Restaurants failed to meet burden for summary judgment where plaintiff’s testimony that she fell because of slippery substance under her table, submitted by defendant on motion, sufficiently identified cause of fall and managing partner’s testimony of general cleaning provisions failed to establish lack of notice without evidence of last time area was inspected or claimed. Piotrowski v Texas Roadhouse, Inc.    

Premises Liab   Unknown Cause  

Second Department
Defendant failed to meet burden for summary judgment where plaintiff’s testimony and photographs it submitted on motion raised questions of whether plaintiff tripped on an uneven surface created by depressed area in building lobby. Madden v 3240 Henry Hudson Parkway, LLC    

Labor Law §240   Ladder   Scaffold   Falling Object  

First Department
Defendant’s motion for summary judgment of Labor Law §240(1) claim where AC unit recently installed as part of the project, suspended from 12′ ceiling by 4-metal rods, fell on plaintiff’s head causing him to fall from A-frame ladder as questions remained of whether AC unit was object required to be secured for work and whether ladder was adequate safety device or if he should have been provided with a scaffold with railings. Erby v 36 LLC    

Spoliation   Negative Inference   Motion in Limine  

First Department
Lower court providently granted plaintiff’s motion for spoliation by allowing plaintiff to make a motion in limine before trial judge for a negative inference if NYCTA did not produce token booth clerk’s report within 30-days of order as plaintiff did not establish report was critical to establish case since it contained plaintiff’s own version of the incident. Butler v New York City Tr. Auth.    

Dogbite   Premises Liab   Notice   Vicious Propensity  

Second Department
Landlord granted summary judgment of claim where tenant’s 2-dogs escaped from fenced yard and bit plaintiff, on proof landlord did not have knowledge of dogs’ vicious propensities and strict liability is the only cause of action available for dog bites. Elardi v Morales    

Premises Liab   Stairs   Out of Possession   Building Code   Causation   Experts  

First Department
Plaintiff’s expert raised issue of fact on defendants’ out-of-possession claim by opinion that stairway violated specific building code provision requiring handrails and plaintiff’s testimony she tried to grab onto something when she slipped on step which raised issue on causation. Al Aabdy v 281 St Nicholas Partners LLC    

MVA   Rear End   Pileup   Nonnegligent Explanation  

Second Department
Second vehicle granted summary judgment where it was undisputed that it was fully stopped when rear-ended by 3rd-vehicle, providing a nonnegligent explanation, and plaintiffs’ testimony of second impact from moving defendant’s vehicle insufficient to raise issue of fact. Cabrera v Thomas    

Serious Injury   BP  

Second Department
Defendant failed to meet burden for summary judgment on serious injury where it did not eliminate questions of fact on 90/180-a category alleged in BP. Gonzalez v Krumholz    

Premises Liab   Construction Liab.   Trivial  

Second Department
Starbucks and GC that tiled floor granted summary judgment based on plaintiff’s testimony and photographs of area establishing defect was trivial as it did not create a trap or nuisance. The Court does not give the details of the proofs. Richards v Starbucks Corp.    

Emotional Harm   Motion to Dismiss   Punitive Damages  

Second Department
Defendant’s motion to dismiss intentional infliction of emotional harm claim for alleged affair with plaintiff’s wife granted as it did not constitute extreme or outrageous conduct. Punitive damage claim dismissed as underlying claim was dismissed. Bourianov v Lovell    

Comment: New York abolished “alienation of affection” claims in 1962. Civil Rights Law §80-a.
(1 summaries)

MVA   Discovery   Premature Motion  

Second Department
Plaintiff’s motion for summary judgment denied as premature where little discovery had been provided, no EBT’s were conducted, and record showed discovery might lead to relevant information. The Court does not give the details of the proofs. Guo Ping Gu v Malaxos    

About Matt McMahon

Civil trials and appeals since 1984
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