August 3, 2021 | Vol. 273

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Malpractice   Wrongful Death   Loss of Chance   Set Aside Verdict   Directed Verdict   Accepted Practice   Causation   Pain/Suffering   Materially Deviates   Experts  

Second Department
Award of $2mil for decedent’s pain/suffering and $25,000 future pecuniary loss for each of decedent’s 2-adult children upheld. Pecuniary harm where decedent had no income can be calculated on expenses to replace services decedent provided and loss of guidance, but Court found award of $500,000 past pecuniary loss for each adult child materially deviated from reasonable compensation reducing it to $250,000/$100,000.

Defendants’ motion to set aside verdict that found they departed from accepted practice by failing to tell decedent of fluid in pelvic cul-de-sac, to order CA 125 blood test, and to refer her to gynecological oncologist diminishing her chances of a better outcome from ovarian cancer, and for judgment as a matter of law, denied as there was a valid line of reasoning for verdict which could be reached on fair interpretation of the evidence including conflicting expert opinions. Bacchus-Sirju v Hollis Women    

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Construction Liab.   3rd Party Contractor   Vicarious Liab   Espinal   Open/Obvious   Inherently Dangerous   Comparative Fault  

Second Department
Contractor whose sub-contractor installed metal rail-shaped fixture that US Customs officer tripped over at JFK airport did not dispute it could be vicariously liable where subcontractor launches an instrumentality of harm, but argued they completed work and “reasonably believed that another contractor would install glass partitions that would have eliminated any dangerous condition and prevented the plaintiff’s accident.” It failed, however, to submit proof of this claim.

Argument that condition was open/obvious goes to comparative fault and did not preclude liability without proof condition was not inherently dangerous. Baran v Port Auth. of N.Y. & N.J.    

Labor Law §240   Labor Law §241   Labor Law §200   Ladder   Recalcitrant Worker   Sole Cause   Notice   Spoliation   Indemnity  

Second Department
Testimony of plaintiff’s employers that its workers were never allowed to use ladders other than those supplied by employer raised issue of whether plaintiff was sole cause of accident as recalcitrant worker where building owner’s defective ladder shifted causing worker to fall, resulting in denial of summary judgment motions by plaintiff and building owner on Labor Law §§ 240(1), 241(6), and 200. Plaintiff raised issue of notice of uneven floor on §200 and negligence claims.

Plaintiff’s motion for spoliation sanction for not preserving ladder he fell from granted to extent of giving negative inference charge at trial.

Motion and cross-motion for summary judgment on contractual indemnity claim against employer denied on issue of whether contract existed. Garcia v Emerick Gross Real Estate, L.P.    

Labor Law §240   Ladder  

Second Department
Building tenant and owner granted summary judgment of Labor Law §240(1) claim where ladder AC worker was using to access roof collapsed on employer’s statement that the condenser fan motor that needed to be replaced weighed 1.5 lbs. and “was the kind of part that required replacement ‘all the time,’” establishing it was routine maintenance not covered by §240 and not a repair. Stockton v H&E Biffer Enters. No. 2, LLC    

Premises Liab   Snow/Ice   Storm in Progress   Notice   Last Inspection   Uncertified Records  

Second Department
High School denied summary judgment on storm in progress where climatological records were uncertified and conflicted with parties’ depositions submitted by defendant on the motion. Testimony of general cleaning procedures insufficient to eliminate questions of constructive notice without proof of last time area was cleaned/inspected. Johnson v Pawling Cent. Sch. Dist.    

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About Matt McMahon

Civil trials and appeals since 1984
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