August 7, 2018 | Vol. 118

(7 summaries)

Med Mal   General Release  

Second Deptartment

Defendants denied summary judgment where general release for prior malpractice claim involving a perforated duodenum during endoscopy releasing all claims from the beginning of the world to the date of the release because second malpractice claim involving admission 9-months after first admission was not included in first action and defendants did not show that release was intended to include second incident even if plaintiffs were aware of the second incident when they signed the release. Chiappone v North Shore Univ. Hosp.

Med Mal   CPLR 3404   Vacate Default   Note of Issue   Reasonable Excuse   Prejudice  

Second Deptartment

Plaintiff’s motion to vacate automatic abandonment under CPLR 3404 made 12 years after action removed from calendar to allow plaintiff to amend BP and more than 20 years after alleged malpractice during plaintiff’s birth denied. To restore abandoned case plaintiff must prove each of the elements 1) meritorious action; 2) reasonable excuse; 3) lack of intent to abandon; and 4) lack of prejudice. Plaintiff failed to show a reasonable excuse for 12-year delay, failed to rebut presumption of abandonment from dismissal, and failed to show that defendants were not prejudiced by delay of more than 20 years since alleged negligence. Hagler v Southampton Hosp.

Med Mal   Accepted Practice   Expert Aff   Conclusory  

Second Deptartment

Defendants’ medical expert’s report opining that defendants did not depart from accepted practice in conclusory terms did not meet defendants’ burden for summary judgment. An expert’s affirmation must respond to the allegations in the BP and give specific factual details of how the treatment comported with accepted practice. Garcia-DeSoto v Velpula

Late Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice   Admissibility   Raised For First Time  

Second Deptartment

Claimed ignorance of Notice of Claim requirement was not reasonable excuse and petitioner failed to submit admissible evidence showing that he could not comply because of incapacity. Petitioner failed to show defendant had actual knowledge of the essential facts of the claim. Supervisor’s report submitted for the first time in reply was not considered. Petitioner failed to make plausible argument or show that respondents were not prejudiced. Matter of Murnane v New York City Sch. Constr. Auth.

Late Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice   Statute of Limitations  

Second Deptartment

Petition to serve late Notice of Claim filed more than 1-year and 3-months after infant-plaintiff was injured by bedframe left outside of public housing unit denied. Mother’s claim that she left a voicemail with housing authority and observed their employees near the discarded bed frame did not establish town had actual knowledge of the essential facts within 90-days. Mother not entitled to serve late Notice of Claim after statute of limitations for derivative claim as infancy toll applies only to infant’s claim. Claimed ignorance of Notice of Claim requirement not a reasonable excuse and petitioner failed to show by admissible evidence that delay was caused by infancy. Petitioner failed to meet initial burden of showing no prejudice to the town. Matter of R.N. v Village of New Sq.

Late Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice  

Second Deptartment

Petition to serve late Notice of Claim on Village 3-months after expiration of 90-day period denied where police report of accident, where a village snowplow struck petitioner’s vehicle, without evidence of further investigation was insufficient to show actual knowledge of essential facts within 90-days or reasonable time thereafter. Plaintiff’s excuse of ignorance of the 90-day requirement, and the fact that he did not speak English, were insufficient excuses for delay. Plaintiff met initial burden on prejudice and defendants failed to make a particularized showing of prejudice but that was only 1 factor and not enough to grant the petition. Matter of Vega v Incorporated Vil. of Freeport

Med Mal   Statute of Limitations   Continuous Treatement  

Second Deptartment

Causes of action for medical malpractice, lack of informed consent, and derivative action dismissed where brought more than 2.5 years after plaintiff’s decedent was discharged from moving defendants’ care. Continuous treatment did not apply because diagnostic services were discrete and complete and not part of course of treatment and mere statement that the decedent should “follow-up” with oncologist’s clinic in 2-3 months did not evince a continued course of treatment where decedent did not follow up with clinic but was treated at other hospitals. Relation back theory did not apply where there was no mistake about defendants’ identities which could have prevented plaintiff from commencing action before the statute of limitations. Yanez v Watkins

(11 summaries)

Assault   Negligent Supervision   Late Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice  

Second Deptartment

Motion to dismiss for failure to timely serve Notice of Claim served a year after incident granted, and plaintiff’s motion for leave to serve a late Notice of Claim brought a week after defendant’s motion for summary judgment denied where plaintiff’s claim that school principle who allegedly assaulted and berated child in BOCES program was aware of incident was insufficient to show actual knowledge within 90-days or a reasonable time thereafter without reports by defendants or anyone else. Plaintiff’s attempts to show reasonable excuse were conclusory or controverted and plaintiff failed to meet initial burden of showing that defendant was not prejudiced by delay. Jane Doe v Taylor

Premises Liab   Slip/Trip   De Minimus   Unknown Cause   Raised For First Time  

Second Deptartment

Supermarket did not meet its initial burden of showing that raised mat that was “too fat fingers high” according to plaintiff and .5″ high according to defendant was trivial where on review of surveillance video it could not be said that it did not pose a significant risk under the circumstances. Lower court should not have granted summary judgment on claim that plaintiff did not know what caused her to fall because it was not raised in defendant’s original motion and it was not supported by record. Green v Price Chopper, Inc.

Med Mal   Accepted Practice   Causation   Res Ipsa Loquitor   Expert Aff  

Second Deptartment

ENT doctor and employer granted summary judgment on expert’s affirmation that surgery to remove salivary gland and after care by PA did not depart from accepted practice and was not the cause of plaintiff’s subsequent CRPS. Relying on res ipsa loquitor plaintiff failed to raise an issue in opposition by expert’s redacted and unsigned affirmation which was not considered and failed to show that the injury was the type not normally caused absent negligence and that instrumentality of harm was within the defendants’ exclusive control. Pagano v Cohen

Premises Liab   Workers Comp Defense  

Second Deptartment

Management company for building where plaintiff was injured while working as a maintenance man granted summary judgment on proof that its employee controlled plaintiff’s work making it plaintiff’s special employer entitled to the protection of the workers compensation exclusivity provision. Spasic v Cammeby

MVA   Rear End   Snow/Ice   Set Aside Verdict   Nonnegligent Explanation  

Second Deptartment

Plaintiff’s motion for summary judgment properly denied where defendant raised issue on nonnegligent explanation of unavoidable sliding on snow/ice and plaintiff’s motion to set aside defense verdict properly denied where there was valid line of reasoning for jury to find for the defendant. Miller v Steinberg

Premises Liab   Slip/Trip   Sidewalk   3rd Party Contractor   Create Condition   Speculation  

Second Deptartment

Plumbing contractor that worked on pipe 180’ from area where plaintiff fell in sinkhole 9-months later granted summary judgment on proof that its work did not create sinkhole and both the plaintiff and city failed to raise an issue other than by speculation. Third-party contractor can be held liable for a dangerous condition it creates. Garafola-Booth v City of New York

Sepulcher   Governmental Function   Governmental Immunity   Duty   NYC  


NYC granted summary judgment on right of sepulcher claims arising from manner that plaintiff’s next of kin’s body was handled as a result of flooding at a city morgue during hurricane Sandy. The city was fulfilling a governmental duty reacting to an emergency and plaintiff failed to show a special duty or that NYC assumed a duty that plaintiff justifiably relied upon. Statutes cited by plaintiff were not applicable in the context of right of sepulcher. Lee v City of New York

Premises Liab   Slip/Trip   Out of Possession   Create Condition   Notice  

Second Deptartment

Out of possession landlord with right to re-enter to make repairs and obligated to maintain structural elements failed to meet burden for summary judgment where water accumulated by internal staircase from defective exterior door that allowed rainwater to accumulate. Plaintiff argued that stairs and exterior door were structural. Defendant failed to show that it did not create or have notice of the condition. Washington-Fraser v Industrial Home for the Blind

Premises Liab   Slip/Trip   Snow/Ice   Out of Possession  

Second Deptartment

Out of possession landlord entitled to summary judgment where lease shifted control and maintenance responsibilities, including snow/ice removal, to tenant nursing home where employee was injured. Vicchiarelli v Cold Spring Hills Realty Co., LLC

Premises Liab   Elevator   Dangerous Condition  

Second Deptartment

Building owner and elevator maintenance company granted summary judgment based on testimony and surveillance video showing that elevator door remained open for 20-seconds after plaintiff pressed button for subbasement and started to close just as plaintiff stepped out of elevator but retracted as soon as door touched her. Hussey v Hilton Worldwide, Inc.

Premises Liab   Default Judgment   Compel Acceptance   Meritorious Defense  

Second Deptartment

Lower court providently denied plaintiff’s motion to enter default judgment and granted defendant’s cross-motion to compel plaintiff to accept Answer served 5 months late on proof of a potentially meritorious defense (improper service) and the short delay. Stavola v Bodd

(0 summaries)

About Matt McMahon

Civil trials and appeals since 1984
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