August 1, 2017 | Vol. 65

(4 summaries)

Med Mal   CPLR § 3126   Strike Answer   Willful/Contumacious   Reasonable Excuse   ESI  

Second Deptartment

Plaintiff’s motion to strike Answer for nursing home’s willful/contumacious failure to respond to discovery and provide full medical records over several years granted and affirmed. Willful/contumacious can be inferred from repeated failure to comply with requests and orders without a reasonable excuse. Defendants’ claim that the delays were caused by problems with the computer system that held the records directly contradicted their prior response that they did not have electronically stored medical records and was not a reasonable excuse. Schiller v Sunharbor Acquisition I, LLC

Premises Liab   Slip/Trip   Assumption of Risk   Discovery  

Second Deptartment

In wrongful death action golf course made out entitlement to summary judgment based on primary assumption of risk but plaintiff raised a triable issue by submitting affidavits and photographs supporting his claim that the sprinkler valve that caused plaintiff’s decedent to fall was concealed or increased the risks inherent in the golf course. The lower court improperly refused to consider photographs and the affidavit of a witness who laid the foundation for the photographs because the witness had not been noticed before the motion. The witness was not “material and necessary” to the action, only laying a foundation for the photographs, many of which were submitted on the defendant’s motion, and did not have to be noticed. MacIsaac v Nassau County

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


Defendant’s motion and plaintiffs’ cross motion for summary judgment on Labor Law §§240(1) and 241(6) denied where question of fact existed regarding whether the scaffolding provided adequate anchoring points for the plaintiff to tie off to at all times (industrial code §23-1.16) and whether plaintiff was at fault for removing his lanyards. Question of fact precluded a finding of sole proximate cause based on his unhooking his lanyards. Giordano v Tishman Constr. Corp.

Premises Liab   Stairs   Unknown Cause   Circumstantial Evidence   Speculation  

Second Deptartment

Building owner denied summary judgment on grounds that plaintiff could not identify the cause of his fall down stairs because the evidence permitted an inference based on circumstantial evidence. Eyewitness accounts and plaintiff’s warning to his companions before the fall to “watch out, it is dark, you cannot see,” would allow an inference based on logic and not speculation. Pajovic v 94-06 34th Rd. Realty Co., LLC

(12 summaries)

Premises Liab   Sidewalk   Prior Written Notice   Big Apple Pothole  

Second Deptartment

While a Big Apple Pothole map can be used to establish prior written notice, plaintiff’s claim that a straight line (representing a raised or uneven section) gave notice of the cracked sidewalk with a hole that caused his fall, was rejected as not consistent with the defect. Rodriguez v City of New York

Med Mal   Accepted Practice   Causation   Expert Aff  

Second Deptartment

Defendants granted summary judgment of plaintiff’s malpractice claims that child was not properly diagnosed with Ornithine transcarbamylase deficiency during pregnancy and after birth based on their expert affirmations that defendants did not depart from accepted practice and lack of causation. Plaintiffs’ expert affirmations did not “set forth the applicable standards of care or lay the requisite foundation for the experts’ asserted familiarity with the applicable standards of care.” Resident granted summary judgment on proof that he was under the supervision of the attending physician whose directives did not so materially deviate from accepted practice as to give rise to a duty to intervene. Quille v New York City Health & Hosp. Corp.

Premises Liab   Duty   Notice  

Second Deptartment

Permit allowing general contractor to store material in parking lane of road did not establish that GC or owner did not owe a duty of reasonable care to the plaintiff’s decedent, a bicyclist who turned to avoid hitting a downed construction barricade, losing control of her bicycle and striking a vehicle. Abbott v Johnson

Discovery   Hippa  

Second Deptartment

Lower court’s denial of defendant’s motion to compel plaintiff to provide an authorization for a specific medical condition upheld where defendant failed to meet its burden of showing that the medical condition was relevant, material, and necessary. Shafir v World of Chantilly, Inc.

Legal Mal   Slip/Trip   Snow/Ice   Storm in Progress   Create Condition   Statute of Limitations  

Second Deptartment

Attorney’s motion for summary judgment on grounds that plaintiff could not have prevailed if action had been commenced before statute of limitations because of storm in progress denied where defendant failed to eliminate question of whether property owner exacerbated condition by shoveling a path of snow and creating a mound which plaintiff tripped on when she tried to step over it. Balan v Rooney

Premises Liab   Slip/Trip   Snow/Ice   Storm in Progress   Create Condition   Notice  

Second Deptartment

Landowners granted summary judgment where plaintiff fell on black ice in a dumpster area which she did not see before or after the accident and plaintiff testified that it had rained before the accident. Defendant established that it did not create the condition or have actual or constructive notice and the plaintiff failed to show that the ice was from prior precipitation. Vozzo v Fairfield Westlake Sq., LLC

Comment: The appellate court does not specifically state how long after the precipitation the plaintiff fell but it was obvious from the decision that it was within the time covered by a storm in progress.

Premises Liab   Motion to Dismiss   Workers Comp Defense   Alter Ego  

Second Deptartment

Taco Bell’s motion to dismiss prior to Answer on documentary evidence and failure to state a cause of action grounds denied as affidavits are not “documentary evidence” and almost never warrant dismissal for failure to state a cause of action. Defendant failed to show by conclusive documentary evidence that defendant did not control the premises or that plaintiff’s employer was an alter ego of defendants entitling them to the workers comp defense. Nor did they show that plaintiff failed to state a cause of action. Phillips v Taco Bell Corp.

Med Mal   Accepted Practice   Conclusory   Expert Aff  

Second Deptartment

Radiology center and radiologist granted summary judgment on their experts’ affirmations opining that they did not depart from accepted practice in taking radiological studies of plaintiff’s breast or in interpreting them. Radiologist’s testimony that a portion of the breast image was sub-optimal but seen on other views taken on the same day did not defeat defendant’s showing of entitlement to summary judgment. Plaintiff’s expert’s affirmation did not raise an issue of fact. Statements of opinion unsupported by competent evidence are generally conclusory. In Sook Choi v Doshi Diagnostic Imaging Servs., P.C.

Serious Injury   Amend Complaint   BP   Expert Aff  

Second Deptartment

Plaintiff denied leave to amend the Complaint to include allegation that the accident exacerbated her injuries where she had previously stipulated to withdraw that claim. Defendants’ cross motion for summary judgment on serious injury denied as they failed to adequately address the claims in the BP of permanent consequential, or significant limitation for cervical and lumbar spine injuries and claims under the 90/180-day category. Meyers v Tarulli

Discovery   Strike Note of Issue   IME/DME   Untimely  

Second Deptartment

Defendants’ motion to strike the Note of Issue denied where it was made 4 months after Note of Issue was filed and defendant did not show good cause for making the motion after the 20-day period or that statements in the Note of Issue and Statement of Readiness were incorrect. Motion to compel discovery denied except as to an IME/DME which had been contained in both the preliminary conference and compliance conference orders. Bundhoo v Wendy

MVA   Turning Vehicle   Comparative Fault  

Second Deptartment

Plaintiff met his initial burden of entitlement to summary judgment by proof that he looked both ways before entering crosswalk and was crossing in crosswalk when he was struck by taxi but taxi driver raised issue of fact on comparative fault by driver’s affidavit stating that plaintiff turned unexpectedly and hit the taxi as it passed the plaintiff. Hoque v Mehri Trans, Inc.

Defamation   Motion to Dismiss  

Second Deptartment

Website that incorrectly identified plaintiff as deceased granted dismissal for failure to state a cause of action of Complaint which alleged defamation, negligence, and prima facie tort without alleging special damages. Without special damages, defamation claim could only proceed on “libel per se,” and allegations did not meet standard of exposing plaintiff to “public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of right-thinking persons, and to deprive him of their friendly intercourse in society” or disparaging him in his office, profession or trade. Negligence required knowledge that someone would rely on the statement, which was not alleged, and an element of prima facie tort is special damages. Rosenthal v MDX Med., Inc.

(3 summaries)

MVA   Coverage  

Second Deptartment

Carrier entitled to summary judgment that it had no duty to defend or indemnify upon proof that ATV being operated by infant-plaintiff did not fit within the exception to the policy exclusion for operation of motor vehicles which only applied to vehicles which were not required to be registered and ATVs are generally required to be registered, and ATV was being operated on a neighbor’s property which was not the insured location as required by the exception. Chiarello v Rio

Serious Injury   BP  

Second Deptartment

Grant of summary judgment on serious injury to defendant reversed where defendant failed to adequately address the allegations in the BP that the infant-plaintiff sustained permanent consequential or significant limitations to her cervical spine. The court does not get the details of the proofs. Cervantes v McDermott

Serious Injury  

Second Deptartment

Plaintiff raised an issue of fact in opposition to the defendant’s prima facie showing of entitlement to summary judgment on serious injury grounds. The court does not give the details of proof proves. Patisso v Brady

About Matt McMahon

Civil trials and appeals since 1984
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