August 2, 2016 | Vol. 13

(4 summaries)

Notice of Claim   Citibike   Design Defect   Helmet  


In federal court action for injuries sustained when plaintiff flipped over when his bike wheel hit an unpainted wheel stop in a Citibike station, the City raised at a discovery conference that it was seeking to reduce plaintiff’s damages by his failure to wear a helmet. Plaintiff sought leave in state court to amend his Notice of Claim or serve a late Notice of Claim 15 months after accident. The lower court denied the application. The First Department upheld the denial of the amendment but reversed the denial of leave to serve a late notice of claim. The City had all of the information within the first 90 days regarding the broader design claims. The failure to provide helmets claim was raised in response to the City’s intention to reduce damages based on plaintiff’s failure to use a helmet and the City could not have it both ways. Failure to use a helmet, like failure to wear a seatbelt, does not go to comparative fault but to what injuries would have been sustained or prevented. Plaintiff had no reason to raise the claim until the City indicated it would seek to reduce damages. The two judge dissent would have denied the late Notice of Claim solely as to the helmet issue because of the plaintiff’s failure to provide a reasonable excuse for failing to move earlier. Matter of Corwin v City of New York

Med Mal   Jury Charge   Judgment Rule   Set Aside Verdict  

Second Deptartment

The lower court erred in giving an ‘error in judgment’ charge in a medical malpractice action where defendant, general surgeon, diagnosed male patient’s breast tumor as benign without any tests and did not send plaintiff for follow-up treatment or tests. The error in judgment charge applies to a “narrow category of medical malpractice cases,” where there is proof that a physician considered and chose among several medically accepted alternatives. The testimony here was that the physician did not consider or suspect cancer or consider any other treatment or diagnostic alternatives. Motion to set aside verdict should have been granted. A new trial ordered. Lacqua v Silich

Interest   Stipulation   Verdict  

Second Deptartment

Plaintiff appealed from a judgment which calculated interest based on the date of the damage verdict and not the date of a stipulation of liability. The Appellate Division affirmed after a thorough examination of CPLR §5002, finding that the statute required a verdict or decision in order to trigger interest. While a stipulation as to liability might be the equivalent of a verdict or decision, the court was restrained by the terms of the statute. Mahoney v Brockbank

Comment: For defendants a stipulation of liability can save considerable interest in significant injury cases where a plaintiff might otherwise be entitled to summary judgment. For plaintiffs, a good practice would be to have the defendant stipulate to the entry of judgment on liability and have that ordered by the judge.

Special Duty   Governmental Function   EMS   Wrongful Death  

Second Deptartment

Plaintiff’s decedent started bleeding from her dialysis shunt in her arm. Plaintiff called 911 who said they would be there as soon as possible. Within minutes a fire truck and crew arrived but had the wrong apartment number. The person on the first floor told them that no one needed assistance and surmised that it was a prank call. As the fire department was leaving, EMS arrived, six minutes after the initial 911 call. Someone from the building directed them to the fourth floor where the plaintiff’s decedent was found but could not be saved. Summary judgment should have been granted to the city because the plaintiff failed to show that there was a special relationship created by the 911 call. Providing fire and EMS services is a governmental function and does not impose liability absent a special duty, such as where specific promises are made and relied upon by the party. Holloway v City of New York

(9 summaries)

GML §205-e   Structural Defect   Police  

Second Deptartment

Plaintiff, police officer, was injured when he stepped on a pile of stacked fencing which moved. The ordinance he relied upon under GML §205-e was the general New York City Administrative Code provision requiring buildings and all parts to be maintained in a safe condition. GML §205-e under that administrative code, however, only applies to structural or design defects. Plaintiff was unable to point to any other violation and summary judgment should have been granted to the defendants. D’Andrea v Bond

Labor Law §200   Aggrieved Party   Dangerous Condition   Indemnity  


Lower court granted summary judgment for defendant on Labor Law §200 claim, cross-claim for contractual indemnification, and failure to provide insurance. The Appellate Division found that defendant did not make a prima facie showing regarding creation or notice of the dangerous condition, an open trapdoor. Because plaintiff had not appealed the decision, and codefendant was not aggrieved by the dismissal of the Labor Law §200 claim, the claim was not reinstated. Court upheld summary judgment on contractual indemnification conditioned upon proof that moving defendant was not negligent on remaining labor law claims. Rodriguez v Heritage Hills Socy., Ltd.

Labor Law   Agent   Control   Consultant   Indemnity  

Second Deptartment

Safety consultant should have been granted summary judgment on labor law and negligent claims, and indemnity claims based on same, on its showing that its role was advisory only and that it did not have control of the work site or manner of work. Without the ability to control, the consultant could not be considered an agent of the owner or contractor and, in fact, it’s contract specifically stated that it was not to be deemed an agent. Summary judgment on contractual indemnity claim for failure to perform its contract was properly denied. Marquez v L & M Dev. Partners, Inc.

Labor Law §240   Scaffold   Condominium   Boiler  


Plaintiff entitled to summary judgment against condominium board which controlled common elements of condominium, including boiler, and contractor, but not against sponsor of condominium which owned several units within the building. Plaintiff established violation of Labor Law §240(1) on testimony that scaffold moved, was not attached, and lacked adequate guardrails. Sponsor of building which was titled owner when certificate of condominium was filed seven years before the accident had same status as individual unit owners which cannot be held liable for injuries in common areas or elements. The filing of the certificate of condominium is the equivalent of a deed transferring ownership and liability to the condominium board. Plaintiff, at oral argument on appeal, agreed that sponsor should not be held in if summary judgment was granted against condominium board. Jerdonek v 41 W. 72 LLC

Public Health §2801-d   Med Mal   Statute of Limitations  

Second Deptartment

Claims for injury due to actions or negligence under public health law §2801-d fall under the 3-year negligent statute of limitations. Claims involving essentially medical treatment are governed by the 2 1/2 year malpractice statute of limitations and were properly dismissed in this case. The defendant resident health facility met its initial burden of showing that it was not negligent in causing plaintiff’s decedent’s injuries during his two week stay at the facility. Plaintiff failed to raise triable issue of fact by submitting only unsubstantiated, conclusory allegations of violations. Moore v St. James Health Care Ctr., LLC

MVA   Rear End   Burden of Proof  

Second Deptartment

Defendant failed to meet its initial burden when it submitted testimony and sworn affidavits giving conflicting versions of the accident, including statements that defendants’ box truck stopped short causing the plaintiff’s motorcycle to collide with the rear of the box truck. Gonzalez v Ayala

MVA   Rear End   Nonnegligent Explanation  

Second Deptartment

Defendants met their initial burden by showing testimony that a car made a left-hand turn directly in front of it, that defendant driver immediately stepped on his brakes and was struck in the rear by a car in which the plaintiff was a passenger within five seconds of stepping on his brakes. Defendants, therefore, showed that they were free from fault and plaintiff failed to raise a triable issue of fact. Lukyanovich v H.L. Gen. Contrs., Inc.

Serious Injury   ROM   Unaffirmed Report   Expert Aff  


Plaintiff failed to raise triable issue by its orthopedist’s affirmation which did not contain limitations in neck, back, or knee. While orthopedist performed diagnostic arthroscopic surgery on the knee he did not treat her neck or back and did not note any limitations. Only objective evidence submitted by plaintiff was unaffirmed MRI reports which were inadmissible because they were not affirmed and not relied upon by defendant’s expert. Hernandez v Cespedes

Consolidation   Venue   Unopposed Motion  

Second Deptartment

Defendant in action commenced in Richmond County sought to consolidate two other cases commenced in Richmond County, one commenced in Kings and one commenced in Queens County, all involving the same accident. The motion was unopposed. The lower court granted the motion only as to 3 three Richmond County actions and the Appellate Division modified to consolidate all actions in Richmond County. Multiple actions involving the same issues of fact or law should be to joined and, as a rule, venue should be placed where the first action was commenced. Oboku v New York City Tr. Auth.

(2 summaries)

Serious Injury  

Second Deptartment

Defendant met its burden of entitlement to summary judgment on competent medical proof that there was no serious injury to the lumbar spine and plaintiff’s deposition which showed that he only missed two days from work. Plaintiff failed to raise triable issue of fact. The court does not give the details of the proofs except for plaintiff’s testimony that he only missed two days of work on his 90/180 day claim. Ferazzoli v Hamilton


Second Deptartment

The court affirmed the lower court’s denial of plaintiff’s motion for leave to commence an action against MVIAC. The court did not give any details of the proofs or claims. Wu v Doe

About Matt McMahon

Civil trials and appeals since 1984
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