August 23, 2016 | Vol. 16

(3 summaries)

Med Mal   Informed Consent   Executive Law § 296   Estate   Nullity  

Second Deptartment

Plaintiff’s appeal from an order of the lower court denying an extension of time to serve the defendant representative and to add an additional defendant was remitted back to the lower court for a determination of the date of death of the defendant. After lower court filed its report, the Appellate Division dismissed the appeal and the complaint since the defendant had died prior to the service of the complaint and it was a nullity. Gorbaty v Brodsky

Serious Injury   Directed Verdict   Set Aside Verdict   ROM  

Second Deptartment

At the close of plaintiff’s case, plaintiff moved for a directed verdict on serious injury based on the testimony of plaintiff’s physicians that they performed surgeries on both knees with a residual 14% loss in range of motion, and the testimony of another surgeon that he performed a discectomy at L4-L5 and L5-S1 and advised plaintiff not to push or pull more than 15 pounds, kneel, squat, or drive a motor vehicle and that plaintiff was unable to return to work for seven months after the accident. The trial court reserved decision and the defendants’ orthopedic surgeon and radiologist testified that plaintiff’s injuries were due to degeneration and that the MRI showed no evidence of traumatic injury. The jury found no serious injury. And the trial court denied the motion for a directed verdict and motion to set aside the verdict.

Noting that the plaintiff established a serious injury to the lumbar spine under permanent consequential limitation and significant limitation of use, the Appellate Division went on to note that the jury was entitled to believe the defendants’ experts that none of the injuries were caused by the accident. Serrano v Rachels Car Serv., Inc.

Interpleader   CPLR §2601   Med Mal  

Second Deptartment

The court granted the defendant Hospital’s motion pursuant to this CPLR §2601 to pay the limits of its $7,500,000 insurance policy into court after an adjusted verdict of $13,815,290 was reduced to a judgment in this medical malpractice case. CPLR §2601 provides that upon payment in the court of the party’s obligations under a judgment, the party is released from all further obligations. Sence v Atoynatan

Comment: in a related decision, the plaintiff moved for clarification of the court’s order allowing the hospital to pay the limits of its policy in the court to require that the hospital also pay the accrued interest of $619,520.55 which the lower court granted and the Appellate Division reversed. The motion denominated as one to clarify the prior order was in actuality a motion to reargue. CPLR §2601 does not require that the party pay accumulated interest in the court in order to stop the accumulation of interest. In fact, it does not require that any specific amount be paid in the court. Sence v Atoynatan

(7 summaries)

Med Mal   Accepted Practice   Jaundice   Set Aside Verdict   Materially Deviates  

Second Deptartment

The infant plaintiff sustained severe brain damage as a result of hyperbilirubinemia. The mother testified that the child’s eyes were yellow within 24 hours of birth and that she notified the nurse. When she still observed the yellow eyes the following day, she asked that the infant be seen by a doctor but was told that it would be fine and not to worry. The infant was discharged within 48 hours of birth and the mother was told to follow up with the codefendant physician within a week. Hospital policies and procedures required that a child discharged less than 48 hours after birth must be seen by a private medical doctor within 24 hours. The jury returned a verdict in favor of plaintiff awarding $4 million for past pain and suffering $7,015,000 for 61 years of future pain and suffering and $35,000 per year for 39 years for future lost earnings starting in the year 2029, finding the hospital 75% and the doctor 25% at fault. The hospital moved to set aside the verdict and for judgment as a matter of law, which was denied by the lower court and affirmed on appeal. There was ample evidence for the jury to make its decision and the jury was free to credit witnesses based on its own view of the credibility of each witness. The court, however, did find the $4 million of past pain and suffering to materially deviate and ordered a new trial unless plaintiff stipulated to entry of a judgment with $2 million for past pain and suffering. Sence v Atoynatan

Med Mal   Accepted Practice   HIV/AIDS  

Second Deptartment

Gastroenterologist and internist were properly granted summary judgment but immunologist and hospital which relied on their expert infectious disease expert’s opinion that plaintiff’s HIV resulting in full-blown AIDS and pneumocystis pneumonia was not caused by any claimed delay in diagnosis was rebutted by two unnamed experts proffered by the plaintiff to show that the delay in diagnosis was the proximate cause. Doe v Schwarzwald

Dogbite   Vicious Propensity   Causation  

Second Deptartment

Plaintiff adopted a dog from the defendant shelter who told her that the dog was possessive regarding food. Two months later it bit the plaintiff on the hand while she tried to pick up a cookie from the floor. One and a half months later the dog bit the plaintiff on the face. The plaintiff sued only for injuries sustained by the bite to her face. The lower court denied defendant’s motion to dismiss and the appellate court reversed. Even if the adoption center had failed to disclose all it knew or should have known about the dog’s vicious propensities, once the dog bit the plaintiff’s hand, she was on notice of the dog’s vicious propensities and the adoption center could not be the proximate cause of her injuries. Where information about an animal’s vicious propensities is given or the person becomes aware of the vicious propensities before the bite, the original owner is not responsible. The plaintiff could not rely on her claim that she was only aware of vicious propensities regarding possessiveness with food since that would not have shielded her from liability to a third party. Vicious propensities along is enough. Tighe v North Shore Animal League Am.

Slip/Trip   Stairs   Regular Inspection   Notice  


Plaintiff tripped on a loose rubber mat attached to an interior stair. She testified that she noticed a bump in the mat after her fall, but did not see the bump before her fall even though she had looked directly at the mat before her fall. The porter cleaned the building daily and inspected the mat regularly. The court found that the defendant made out prima facie entitlement to summary judgement by showing that it did not create the condition or have notice and plaintiff’s own testimony failed to show the existence of a defect or notice. Caban v Bronx Park S. II Assoc.

Comment: The decision is fact specific but seems to clash with similar decisions where the First Department has stated that testimony of “regular inspections” is not enough without a showing of when the last inspection was done before the accident.

Child Abuse   Investigation   Wrongful Death  

Second Deptartment

The plaintiff’s decedent was seven years old when she was beat to death by her father in 2005. In 2003 the city investigated a report of child abuse and concluding that there was no abuse. Plaintiff claimed that the investigation was negligently performed and was a proximate cause of the plaintiff’s decedent’s death. Defendants’ actions in investigating the report of child abuse, however, were discretionary acts of a governmental agency and could not be the basis for a claim of negligence. There is no cause of action for negligent investigation. Summary judgment to the defendant was upheld. Hines v City of New York

Premises Liab   Tenant   § 7-210   Sidewalk   Curb  

Second Deptartment

Plaintiff was injured when he stepped into a hole in a sidewalk causing him to fall. Plaintiff sued the owner, tenant, and City. The City and tenant move for summary judgment which was granted and affirmed. §7-210 shields the City from liability unless it created the condition or obtained a benefit by special use. A pedestrian ramp or curb is not part of the sidewalk, but the City met its burden by showing that the hole plaintiff claimed to have fallen on was on the sidewalk, not a curb or ramp. A tenant is not responsible under §7-210 for the sidewalk unless there is a lease where the tenant replaces the owner’s responsibility which was not present in this case. Tenant showed that it did not create the condition, violate any statue and was not responsible to maintain the sidewalk. Martin v Rizzatti

Premises Liab   Notice   Create Condition   Res Ipsa Loquitor  

Second Deptartment

Defendant made out its prima facie case by showing that it did not create or have notice of the condition which caused the plaintiff to be shocked when he plugged in an extension cord in the defendant’s wall. Lower court found that plaintiff raised a triable issue of fact under res ipsa loquitor. Appellate court reversed and granted summary judgment finding that res ipsa loquitor did not apply because the electrical cord was kept in a closet to which the plaintiff’s employer also had access and there was no proof that the defendant supplied the actual extension cord.

Lococo v Mater Cristi Catholic High School

(1 summaries)

Serious Injury  

Second Deptartment

Defendant met its initial burden of showing that the cervical and lumbar injuries did not constitute a serious injury but plaintiff raised a triable issue in her opposition. Grant of summary judgment was reversed. The court does not give the details of the proofs. Foulkes v Dubin

About Matt McMahon

Civil trials and appeals since 1984
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