August 1, 2023 | Vol. 376

(3 summaries)

Malpractice   Appealable Order   Discovery   Privilege   Burden of Proof  

Second Department
Plaintiffs’ appeal from denial of motion to compel defendant anesthesiology service’s non-party witness to appear for a second EBT to answer questions posed at first EBT denied. An order denying a motion to compel a witness to answer questions is like a ruling at the EBT itself and not appealable as of right, even if on motion on notice on a full record, and plaintiff failed to seek leave to appeal before perfecting. The Court will generally not grant leave to appeal where a party perfects the appeal without first seeking leave to appeal.

Plaintiffs’ motion to compel hospital to disclose records showing when its risk management was first notified of the patient’s condition granted as the hospital failed to meet its burden of showing the records were privileged under the Education Law §6527(3) quality assurance privilege. Martino v Jae Ho Lee    

Wrongful Death   Motion to Dismiss   Collateral Estoppel   Special Duty  

Second Department
Triborough Bridge and Tunnel Authority’s (TBTA) motion to dismiss on collateral estoppel where a prior federal action was dismissed and the federal court declined to take jurisdiction over the state law claims and for failure to state a cause of action where plaintiff did not allege a special duty denied. TBTA failed to show the negligence and wrongful death claims raised in the state case were decided and dismissed in the federal case where the amended federal pleadings alleged violation of the fourth and fourteenth amendments. The negligence and wrongful death claims in the original federal Complaint were a nullity where superseded by the Amended Complaint and were not decided on by the federal court who instead declined to take jurisdiction of these state law claims.

Administratrix’s Complaint in the state action adequately stated causes of action for negligence and wrongful death as she was not required to show a special duty where defendants had taken custody of her daughter and remained with her at the hospital after she overdosed and sustained a fatal overdose while in their custody. Rosa v Triborough Bridge & Tunnel Auth.    

MVA   Settlement   CPLR § 5003-a   Sanctions  

Second Department
Plaintiffs’ CPLR §5003-a motion to enter judgment with interest, costs, and disbursements for 1-defendant’s failure to pay their $4,175,000 portion of the settlement within 21-days of receipt of the general releases denied where plaintiff’s sent the releases by email and “priority mail,” not certified or registered mail return receipt requested as required by §5003-a. Plaintiff’s proof that the releases were received irrelevant without a return receipt as required by §5003-a.

Defendant’s cross-motion for sanctions for frivolous conduct providently denied where plaintiffs’ actions were not “the subject of well-established decisional law” or intended to “harass or maliciously injure” defendant. J. D. T. v Chaimowitz    

(6 summaries)

Premises Liab   Stairs   Set Aside Verdict   Causation   Experts  

Second Department
Plaintiff’s motion to set aside verdict as against weight of evidence where jury found defendant negligent for maintaining a loose handrail but that the loose handrail was not a proximate cause of her finger fracture denied where jury could wholly discredit plaintiff’s account of how the accident occurred under falsus in uno where there were numerous inconsistencies between her pleadings, EBT testimony, and trial testimony. Where ‘there is a reasonable view of the evidence under which it is not logically impossible to reconcile a finding of negligence but no proximate cause, it will be presumed that, in returning such a verdict, the jury adopted that view’. Jury could also disregard plaintiff’s expert’s opinion on causation that was based on an account of the accident that differed from plaintiff’s account at trial. There was 1 dissent. Galeano v Giambrone    

Battery   Motion to Dismiss   Statute of Limitations   Amend Complaint  

Second Department
Plaintiff’s Amended Complaint served in opposition to defendant’s pre-Answer motion to dismiss on statute of limitations was served as of right under CPLR §3025 since time to amend a pleading as of right extends until 10-days after service of Notice of Entry of an order deciding the pre-answer motion to dismiss. While the Amended Complaint alleged defendant negligently and recklessly closed the door on her as defendant fled their home with her medications, the only inference to be drawn from the evidence and plaintiff’s allegations was that closing the door was an intentional act governed by the 1-year statute of limitations regardless of whether there was intent to harm the plaintiff. “[W]here a complaint alleges an injury as the result of intentional acts of the defendant, it does not allege negligence, even if it alleges that the defendant acted negligently.” Motion to dismiss granted. Rosas v Petkovich    

Labor Law §240   Labor Law §241   Labor Law §200   Falling Object   Industrial Code   Control  

Second Department
Defendants and third-party defendants granted summary judgment dismissing Labor Law §§ 240(1) and 241(6) claims of worker who was injured when dust from an overhead duct that fell down on one end during demolition went into his eye as he and his coworkers were leaving for a break. A falling duct was not a risk contemplated under §240 where it was not being secured and did not need to be secured for the task even if tangentially related to the force of gravity. Industrial code §23-1.7(a) inapplicable as the area was not ‘normally exposed to falling material or objects.’ Labor Law §200 and negligence claims dismissed on proof defendants and third-party GC did not exercise supervision or control over the means and methods of plaintiff’s work. Cruz v 451 Lexington Realty, LLC    

Negligent Supervision   Causation   NYC  

Second Department
DOE and teacher who tripped on a student’s foot suddenly thrust in her path as she walked near a row of students sitting on the floor whom she directed to stand and return to their seats granted summary judgment of the student-plaintiff’s claim for injuries from the teacher falling on her as the testimony of the defendants and infant-plaintiff establish that the incident happened in such a short span of time that any negligent supervision could not be a proximate cause of the student’s injuries.

NYC was not a proper party. K. L. v City of New York    

Premises Liab   Duty   Amend Complaint   Statute of Limitations  

Second Department
Realty company granted summary judgment of plaintiff’s trip and fall claim at car dealership on proof it had no duty to maintain the property which it did not occupy, control, own, or rent. Dealership denied summary judgment where plaintiff raised an issue on whether it occupied the property on the date of the accident and plaintiff’s motion to amend the Complaint to add another dealership company granted under the relation back doctrine on proof the companies were united in interest where “intentionally or not, [they] often blurred the distinction between them.” Wilson v Rye Family Realty, LLC    

Vacate Default   Serious Injury   Reasonable Excuse   Meritorious Action   Causation   Degenerative  

Second Department
Lower court improperly denied plaintiff’s unopposed motion to vacate her default in opposing defendants’ motion for summary judgment on serious injury on grounds it was made on notice of motion not by order to show cause but order affirmed where plaintiff showed a reasonable excuse by misunderstanding of the part’s rules that opposition papers had to be hand delivered instead of e-filed but did not show a meritorious action where the affirmed reports of her doctors failed to address defendants’ doctors’ opinions that her injuries were degenerative and not caused by the accident. Angulo v Yogi Trans Corp.    

(0 summaries)

About Matt McMahon

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