August 24, 2021 | Vol. 276

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Malpractice   Set Aside Verdict   Accepted Practice   Causation   Preclusion   Admissibility   Experts   Speculation  

Second Department
Trial court erred in precluding plaintiffs’ expert’s testimony of departure from accepted practice of not performing repeat CT scans or testing injured-plaintiff’s abdominal fluids from intestinal perforation after a C-section that decreased her chances of a better outcome as speculative where the opinions were based on specific medical findings from before and after plaintiff collapsed which indicated the continued presence of an infection. Bilyavskiy v Parikh    

MVA   Workers Comp Defense   Independant Contractor   Control  

Second Department
Evidence at framed issue hearing established transport company that entered into contract with independent contractor to lease a van and transport passengers for transport company stipulated it was employer of plaintiff, van driver, agreeing to provide workers comp benefits and that plaintiff was not special employee or coworker of independent contractor who later formed corporation that owned the leased van since transport company supervised both the defendant/independent contractor and plaintiff and the defendant/independent contractor had stopped driving for the transport company before the accident. Defendant/independent contractor’s motion for summary judgment on exclusivity clause of workers compensation denied. Chiloyan v Chiloyan    

Comment: Plaintiff’s appeal from order confirming referee’s report finding plaintiff’s claim barred by workers comp defense dismissed as no appeal lies from an order not from motion on notice without leave to appeal. Chiloyan v Chiloyan. The Second Department previously upheld denial of defendant’s motion for summary judgment on this ground, reported in Vol. 151.

Premises Liab   Sidewalk   Prior Written Notice  

Second Department
Proof of prior written notice to village officer or body other than the “Village Clerk” specified in the ordinance requiring prior written notice was insufficient to raise issue in opposition to village’s showing village clerk searched records and did not find prior written notice. Hiller v Village of Warwick    

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MVA   Rear End   Directed Verdict   Set Aside Verdict   Nonnegligent Explanation   Pain/Suffering   Materially Deviates  

Second Department
Plaintiffs granted directed verdict at close of evidence on liability against driver and owner of car that rear-ended injured-plaintiff as he was removing items from trunk of delivery vehicle as there was no rational path for a jury to find a non-negligent explanation for the rear-end hit. Award of $2 mil/$4.5 mil past/future pain/suffering and $300,000/$400,000 past/future loss of services for 40 years did not materially deviate from reasonable compensation. The Court modified past medical expenses slightly based on stipulated expenses during the trial. The court does not give the details of the injuries. Meyers v Delancey Car Serv., Inc.    

Set Aside Verdict   Pain/Suffering   Materially Deviates  

Second Department
Award of $2 mil/$15 mil past/future pain/suffering for 33 years and $1,804,535 for 21 years of future lost earnings (to age 67) award for 42-year-old construction worker reduced to $1 mil/$2,225,000 as award materially deviated from reasonable compensation where plaintiff injured spine and knees requiring spinal surgeries with hardware placement and implanted spinal cord stimulator, cortisone knee injections, arthroscopic knee surgery, and physical therapy, which did not eliminate symptoms or restore full ROM or strength, and will regure future revision spinal surgeries, future surgical replacement of spinal cord stimulator battery, and possible future knee surgery. Lost earnings to age 67 was supported by record. Pimenta v 1504 Cia, LLC    

General Release  

Second Department
Defendant that obtained building permit for owner of building under construction when plaintiff fell from ladder granted summary judgment based on signed general release where testimony of plaintiff and other releasee established it was translated into Ukrainian before the plaintiff, who did not speak English, signed it. CPLR §2101(b) requires filing of any document in English, not a foreign translation of an English document that was translated for person who signed it. Ivasyuk v Raglan    

Labor Law §240   Ladder   Causation   Question of Fact   Hearsay   Admission  

Second Department
Plaintiffs’ and defendants’ summary judgment motions on Labor Law §240(1) denied on conflicting testimony of coworker who stated he saw foot of ladder in hole after plaintiff fell and site safety specialist who testified he overheard plaintiff tell paramedics he became dizzy and fell which was a party admission, not hearsay, leaving questions of fact. Grieve v MCRT Northeast Constr., LLC    

Malpractice   Motion to Dismiss   Notice of Claim  

Second Department
Motion by NYCHCC, its hospital and doctors to dismiss for failing to serve an adequate Notice of Claim denied where allegations were sufficient for defendants to conduct a proper investigation, which is the basis for the Notice of Claim requirement, and a claimant is not required to state the cause of action “in haec verba.” Harrison v City of New York    

Construction Liab.   Duty   Espinal  

Second Department
General contractor failed to meet burden of showing it did not launch an instrumentality of harm under Espinal as its project manager’s testimony left questions of whether it created the dangerous condition. Subcontractors granted summary judgment on proof they did not launch an instrumentality of harm or have a duty under any other Espinal exception. Bernal v ACS Sys. Assoc., Inc.    

Premises Liab   Sidewalk   Snow/Ice   § 7-210   Duty   Out of Possession   Create Condition   Notice   Indemnity  

Second Department
Out of possession landlord had nondelegable duty to maintain sidewalk in reasonably safe condition under administrative code §7-210 which does not have an exception for out of possession owners. Owner failed to meet burden without evidence it did not create or have constructive notice of icy sidewalk condition that caused plaintiff to fall. Since owner may be found negligent, summary judgment on indemnity claim was premature. Gambino v 475 Park Ave. S., LLC    

Premises Liab   Duty   § 7-210  

Second Department
Abutting landowners denied summary judgment without proof defect on sidewalk plaintiff tripped on was within 12″ of utility vault required to be maintained by utility company under 34 RCNY § 2-07(b), and that defendants did not have a duty to maintain area under administrative code §7-210. Torres v 502/12 86th St., LLC    

Premises Liab   Snow/Ice   Create Condition   Notice   Last Inspection  

Second Department
Defendant failed to establish lack of constructive notice of ice condition plaintiff slipped on in parking lot without proof of last inspection. General cleaning/inspection practices are insufficient. Defendant could not meet its burden by pointing to gaps in plaintiff’s case. Miller v Terrace City Lodge No. 1499, Improved Benevolent Protection Order of the Elks of the World of Yonkers, N.Y., Inc.    

MVA   Duty   Premature Motion  

Second Department
Defendant granted summary judgment on proof it had no duty to plaintiff as it did not own, lease, or operate van that injured plaintiff when its door blew open. Plaintiff failed to show motion was premature without proof information solely within defendant’s knowledge was necessary to oppose the motion. Toltchelnikova v Community Recycling, LLC    

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About Matt McMahon

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