August 23, 2022 | Vol. 327

(4 summaries)

Malpractice   CPLR § 3101(d)   Experts   Waiver  

Second Department
“Agreement as to Resolution of Concerns” that, inter alia, required all parties to make medical experts available for EBT 120-days before trial in a malpractice suit that OB/GYN -defendant required patient to sign with other papers and without any discussion or explanation violates public policy as it would undo protections for plaintiffs’ experts from disclosing their identity before trial in CPLR §3101(d)(i) and (ii) and take away the court’s role in supervising discovery beyond that provided for in §3101(d), voiding the entire agreement where there was no severability clause.

Even if provision had been enforceable, defendants waived it by entering into preliminary conference order providing for expert disclosure pursuant to §3101(d). Argument that defendants did not voluntarily enter into the order rejected as inconsistent with their claim plaintiff’s signing of agreement along with other papers without explanation or discussion was voluntary.

Lower court also found provision “that a conclusion by a specialty society affording due process to an expert will be treated as supporting or refuting evidence of a frivolous or meritless claim,” violated public policy. Defendants did not appeal from that portion of the lower court order. Mercado v Schwartz    

Default Judgment   Service  

Second Department
Defendant’s motion for default judgment against third-party defendants denied where proof of service by suitable age and discretion filed beyond 20-day limit of CPLR §308(2) was a nullity and time to answer never commenced. Failure to file proof of service is curable only by order permitting late filing. K.J. v Longo    

Labor Law §240   Labor Law §241   Labor Law §200   1-2 Family Exception   Subpoena   Discovery   Burden of Proof  

Second Department
Lower court improvidently granted nonparty real-estate agent’s motion to quash EBT subpoena and for a protective order. Plaintiff met initial minimal burden of showing he apprised agent of the circumstances or reasons for the EBT under CPLR §3101(a)(4) which shifted the burden to the agent to show the information sought ‘is utterly irrelevant to the action or that the futility of the process to uncover anything legitimate is inevitable or obvious.’ As the real estate listing was relevant to the 1-2 family exception to the Labor Law claims, defendant failed to meet the burden to squash the subpoena or for a protective order under CPLR §3103(a). Nunez v Peikarian    

Labor Law §240   Labor Law §241   Falling Object   Gravity Risk   1-2 Family Exception   Industrial Code  

Second Department
Homeowner granted summary judgment dismissing Labor Law §240(1) claim of tile worker injured when 20-unsecured sheetrock panels fell on him from their upright position as they did not require securing for the undertaking and were therefore not a gravity risk under §240. Homeowner was not required to show property was his primary residence for application of the 1-2 family exception to Labor Law §241(6) but his testimony that he was ‘up in the air’ as to whether he was going to live in the property or rent it left a question of fact on the 1-2 family exception and he failed to show that industrial code §23-2.1(a)(1) requiring safe and orderly storing of materials was inapplicable. Parrino v Rauert    

(16 summaries)

MVA   Police   Notice of Claim   Statute of Limitations  

Second Department
Petition for leave to serve late Notice of Claim, brought 1-year and 56-days after plaintiff’s vehicle was rear-ended by an unmarked police vehicle, was timely where served within the 1-year and 90-day statute of limitations which was then tolled until the order decided the petition. Matter of Cerreta v County of Suffolk    

Malpractice   Motion to Dismiss   Statute of Limitations  

Second Department
OB/GYN resident’s motion to dismiss on statute of limitation granted where plaintiff commenced action just before her 21st birthday and Second Department found doctor’s action that caused her to be dropped in the delivery room after birth was a “result of the physician-patient relationship and was substantially related to the plaintiff’s medical treatment,” and therefore barred by the 10-year statute of repose. The Court does not give the details of the proofs. Rojas v Tandon    

Comment: From the lower court decision, the plaintiff was dropped on her head when the OB/GYN resident ‘tossed’ the newborn to the pediatric resident in the delivery room.

Renew   Reasonable Excuse  

Second Department
Plaintiff’s motion to renew opposition to all defense summary judgment motions and renew his motion for summary judgment based on photographs first disclosed by a defendant after jury selection on the remaining claims and a subsequent deposition providently denied even though plaintiff showed reasonable justification for not introducing them on the original motions where he failed to show reasonable justification for delay of 3-years from receipt of new photographs and 8-months from the subsequent deposition to make the motion to renew. Second Department previously upheld the grant of defendants’ motions for summary judgment Caiazzo v Mark Joseph Contr., Inc. and a party bears a heavy burden of showing due diligence in bringing a postappeal motion to renew. Caiazzo v Mark Joseph Contr., Inc.    

Malpractice   Motion to Dismiss   Statute of Limitations   Continuous Treatement  

Second Department
Motion to dismiss malpractice claims for treatment more than 2.5-years before action granted to gynecologist and practice which treated plaintiff for menopausal and general gynecological conditions over 4-years granted where plaintiff was later diagnosed with spinal osteoporosis and osteopenia in both femurs and claimed defendants departed from accepted practice by not ordering a bone density scan on defendants’ proof they did not treat plaintiff for osteoporosis or symptoms ultimately traced to osteoporosis under the continuous treatment doctrine. Plaintiff failed to raise an issue as mention of bone scan in preprinted forms, including checks indicating history of no bone scans and no family history of osteoporosis, and prescription for vitamin D and calcium supplements and lab request to check D level was not proof of treatment or symptoms of osteoporosis. Article linking aging to menopause which mentioned osteoporosis as 1-of-10 concerns for menopausal women would expand continuous treatment doctrine to all conditions related to menopause and aging, beyond the purpose to the doctrine. There was 1-dissent. Weinstein v Gewirtz    

Malpractice   Accepted Practice   Causation   BP   Experts  

Second Department
Neurologist met burden for summary judgment with expert’s opinion he did not depart from accepted practice and did not cause injured-plaintiff’s stroke by not administering tPA but plaintiffs’ expert’s opinion that defendant-neurologist departed from accepted practice and was a cause of the stroke by not timely administering an aspirin regimen raised an issue in opposition. While aspirin was not specifically listed as a departure in the BP, it was brought up by plaintiffs’ counsel at EBT of one of hospital-defendant’s residents and therefore was not a new theory.

Internist and emergency doctor who referred patient to neurologist and hospital failed to meet burden for summary judgement by relying on neurologist’s expert’s opinion as it did not address standards of care for those defendants. Walker v Jamaica Hosp. Med. Ctr.    

Battery   Police   Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice  

Second Department
Petition for leave to serve late Notice of Claim granted where county acquired actual knowledge of essential facts of claim by their employees’ involvement in the incident where petitioner was allegedly injured by excessive force during an arrested and they produced reports and documents from which a potentially actionable wrong could be readily inferred. Actual knowledge eliminated any prejudice by the delay and the county failed to submit particularized evidence of substantial prejudice. Petitioner’s failure to provide a reasonable excuse for the delay insufficient to deny leave. Matter of Romero v County of Suffolk    

Premises Liab   Wet Floor   Create Condition   Notice   Open/Obvious   Inherently Dangerous   Unsigned Transcript  

Second Department
Whole Foods did not meet burden for summary judgment where looking at the evidence in the light most favorable to plaintiff, they failed to show plaintiff’s slip on liquid on the floor was not the result of their failing to timely remediate the condition after having notice, that their employee did not make the condition worse by “incomplete remedial measures,” or that the condition was open/obvious and not inherently dangerous.

Lower court properly considered unsigned but certified EBT transcripts of defendant’s employee and plaintiff. Yerry v Whole Food Mkt. Group, Inc.    

Labor Law §240   Labor Law §241   Industrial Code   Create Condition   Notice   Dangerous Condition   Out of Possession   Indemnity   Workers Comp   Grave Injury  

First Department
Management company granted summary judgment on Labor Law §241(6) as it was not the owners’ agent and owners, tenant, and GC granted summary judgment where code provisions relied on by worker injured when his foot slipped on ‘minute pebbles’ while trying to move a heavy glass partition into a track were inapplicable because they were not a slippery substance under industrial code §23-1.7(d), he was not in a passageway §23-1.7 (e)(2), and the pebbles were an integral part of the construction. Labor Law §200 and negligence claims dismissed against tenant and GC on uncontroverted proof they did not create or have notice of the condition which was integral to the work, not a dangerous premises condition, and they did not control the means and methods of plaintiff’s work. Labor Law §200 and negligence claims dismissed against owners on proof it was an out-of-possession landlord with right to reenter and there were no allegations of a significant structural or design defect violating a specific statute.

Tenant’s indemnity clause not triggered where it was not negligent. GC vicariously liable to tenant for plaintiff’s employer’s negligence under agreement requiring indemnity for negligence of GC and its subs but owners not entitled to indemnity by GC where tenant/GC agreement only identified landlord’s agents without identifying who that was, identified “owner” as the tenant, and the court declined to rewrite the agreements. GC entitled to unconditional indemnity from plaintiff’s employer as GC was not negligent but GC denied summary judgment for plaintiff’s employer’s failure to procure insurance where certificate of insurance raised an issue of fact but was not sufficient to grant plaintiff’s employer dismissal of the claim. Plaintiff’s employer granted dismissal of common-law indemnity claim of proof it provided plaintiff’s worker comp benefits and plaintiff did not suffer a grave injury. Ruisech v Structure Tone Inc.    

MVA   Rear End   Nonnegligent Explanation   Workers Comp Defense  

Second Department
Lead vehicle in 3-car pileup met burden for summary judgment on his testimony he was struck in the rear by the 2nd vehicle in the center lane of the FDR but driver of the 2nd vehicle and plaintiff-passenger in the 3rd vehicle raised issue of fact on 2nd vehicle driver’s testimony that lead vehicle abruptly cut him off and he could not avoid hitting the vehicle despite braking hard. Drivers and owner of 2nd and 3rd vehicles granted summary judgment under workers comp exclusivity clause where they were employed by the owner of both vehicles. Hernandez v Brayer    

MVA   Rear End   Pileup   Premature Motion  

Second Department
Lead driver in 3-car pileup granted summary judgment on his affidavit and testimony of passenger in middle car establishing lead vehicle was stopped or stopping for traffic at time of accident, remaining defendants failed to raise an issue in opposition, and plaintiff did not oppose the motion. While moving defendant had not been deposed, driver and owner of rear vehicle failed to show motion was premature where they did not include or explain why they didn’t include plaintiff’s or their own driver’s testimony in their opposition. Reyes v Doronin    

Premises Liab   Open/Obvious   Inherently Dangerous   Experts   Conclusory   Speculation   Raised For First Time   NYC  

Second Department
Defendants granted summary judgment on proof inspection pit at T&L facility plaintiff fell in was open/obvious condition inherent in the nature of the property and not inherently dangerous. Plaintiff’s expert failed to raise issue with conclusory, speculative opinion that was not supported by violation of any applicable statutory or industry standard. Argument that surveillance video should have been precluded where not provided until after plaintiff’s first EBT not considered where raised for first time on appeal. Lebron v City of New York    

Premises Liab   Stairs   Unknown Cause   Building Code  

Second Department
Building owner met burden for summary judgment on proof there was no building code requiring handrails on both sides of interior staircase, code cited by plaintiff was inapplicable, and plaintiff could not identify the cause of her fall. The plaintiff failed to show defendant breached a common-law duty to keep the stairs reasonably safe by not providing a second handrail. Mancini v Nicoletta    

MVA   Pedestrian   Turning Vehicle   There to be Seen  

Second Department
Plaintiffs granted summary judgment on defendant-driver’s statement in police report that she couldn’t see infant in crosswalk because of sun glare as she made a right-hand turn and witness’ affidavit that infant was in crosswalk with white pedestrian signal when struck, establishing negligence per se for violation of VTL §1111(a)(1) for failure to yield right of way to pedestrian and §1146 for failure to see what is there to be seen. E.B. v Gonzalez    

Premises Liab   Snow/Ice   Stairs   Create Condition   Notice   Last Inspection   Indemnity  

Second Department
Building owners granted summary judgment on proof they did not create or have notice of water/ice condition on interior stair where plaintiff slipped. Owners established janitorial service employee actually followed his cleaning practices on day of accident and did not have notice of the condition.

Owners failed to meet burden for summary judgment on contractual indemnity and failure to procure insurance against janitorial service where there was no proof janitorial service was negligent as required to trigger indemnity and they did not submit proof janitorial service failed to procure insurance naming them as additional insureds. Breland-Marrow v RXR Realty, LLC    

MVA   Comparative Fault   Causation   Indemnity  

Second Department
Plaintiff, passenger in vehicle he owned, granted summary judgment against defendant who conceded he was negligent in violation of VTL §1143 for making left out of driveway failing to yield the right of way while entering traffic, and driver of plaintiff’s vehicle was not negligent as he had little time to react. Defendant’s contribution claims against plaintiff and driver of his vehicle dismissed. Huai Qiang Ye v Yepes    

Premises Liab   Discovery   IME/DME   Note of Issue  

Second Department
Lower court providently denied defendants’ motion to strike Note of Issue, instead ordering plaintiff to appear for further IME/DMEs and a limited EBT. Umana v Tower E. Condominium    

(1 summaries)

Serious Injury   Causation  

Second Department
Defendants failed to meet burden for summary judgment without competent medical evidence that plaintiff did not sustain a serious injury or that the injuries were not caused by the accident. The Court does not give the details of the proofs. Zennia v Ramsey    

About Matt McMahon

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