August 9, 2016 | Vol. 14

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Med Mal   Accepted Practice   Informed Consent   Expert Aff  

Second Deptartment

The pro se plaintiff had reconstructive surgery after a lumpectomy for breast cancer. She claimed to have requested gel “gummy bear” implants in a size B or small C and not the liquid gel size D implants used by the plastic surgeon. On the motion for summary judgment, defendant submitted expert affirmations showing no departure from accepted practice and plaintiff failed to submit an expert affirmation to rebut defendant’s showing. Defendant’s proof’s also showed that there could not be a lack of informed consent claim for the defendant choosing the size of the implants at the time of the surgery, but failed to show that they could not be liable for lack of informed consent as to the type of implant. The consent form referred to gel implants without specifying the type or manufacturer. While the pro se plaintiff did not submit an expert affirmation, she submitted her affidavit and the affidavits of two friends which supported her claim. Since defendants failed to meet their burden of proof on that issue, the sufficient of the plaintiff’s opposition was irrelevant. The lower court’s order was modified to deny summary judgment on lack of informed consent. Whitnum v Plastic & Reconstructive Surgery, P.C.

Traffic Signs   Highway Maintenance   Causation  


Plaintiff was injured, and his girlfriend killed, in an accident while turning at an intersection on Park Avenue in Manhattan. The City had determined that a “stop here on red sign” and stop bar were required at the intersection in 1996. The sign, but not the stop bar, was installed and existed until four months before the accident when it was removed. Plaintiff testified that he was unfamiliar with the intersection and that when he made the turn he was confused as to what lights governed his movement. Whether to install traffic signs or devices is a discretionary governmental act, but once installed, the government has an obligation to maintain the signs in a reasonably safe condition and may be liable for failing to replace missing signs or devices. Because the plaintiff was unfamiliar with the intersection and confused by the lights, it could not be said that he had all the warnings that the stop here on red sign and stop bar would have provided. Lower court’s grant of summary judgment was modified to deny summary judgment. The dissent argued that the plaintiff’s own conduct showed that the lack of the stop here on red sign and stop bar could not be the proximate cause of the accident. Chang v City of New York

Late Notice of Claim   Post-Appeal   Renew  

Second Deptartment

Plaintiff’s original motion for leave to file a late notice of claim was granted but reversed on appeal. He subsequently moved to renew the original motion which was denied and affirmed on appeal. A motion to renew post-appeal carries a heavy burden of showing that the party exercised due diligence in presenting available facts in the first instance. Plaintiff failed to show such due diligence. Priant v New York City Tr. Auth.

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Serious Injury   Objective Test   ROM  

Second Deptartment

Defendant met its initial burden of showing no serious injury based on competent medical proof regarding the cervical and lumbar spine claims. The court found that the plaintiff failed to raise a triable issue of fact, even though he provided an affirmed report from his treating physician showing that the cervical and lumbar limited range of motion was caused by the accident, because the affirmed report failed to identify the objective test used to measure range of motion. Bayk v Martini

Comment: It often seems like courts will use the failure to cite the test used to measure limited range of motion when it wants to dismiss a case on serious injury grounds and ignore its absence on cases it does not want to dismiss. Both sides should always have their doctors include the fact that is was measured by use of goniometer in their reports and affirmations to avoid what seems like a technical defect.

Asbestos   Labor Law §200   Materially Deviates   Indemnity   Attorney Fees  


Jury found defendant Lilco 100% at fault and awarded plaintiff $3,500,000.00 in future pain and suffering. The court found that the award did not materially deviate, that the finding of fault by the contractor but no proximate cause was supported by sufficient evidence, that the Labor law §200 claim against Lilco was proper because it had directed the means and methods of mixing and applying asbestos containing concrete and insulation, that the indemnification clause in favor of Lilco and against the contractor, which predated Gen. Obl. Law 5-322.1, which makes agreements to identify for a party’s own negligence void, entitled Lilco to indemnification against the contractor. The court modified to grant attorney fees to Lilco for defense of the action but not for pursuing its indemnification claim. Matter of New York City Asbestos Litig.

Labor Law §240   Labor Law §241   Tenant   Owner   Premature Motion  

Second Deptartment

Lower court denied plaintiff’s summary judgment motion finding that he did not make out a prima facie case under labor Law §§240(1), 241(6). The Second Department found that the plaintiff did make out a prima facie case as to the owner of the building, even though the contractor was hired by the tenant without the owner’s knowledge, but modified to deny the motion without prejudice to renew at the completion of discovery finding the motion premature. Plaintiff was directed to cut a beam supporting the ceiling. As soon as he cut the beam, the ceiling fell causing him to lose balance and fall from the ladder hitting his head on the floor. Churaman v C&B Elec., Plumbing & Heating, Inc.

Assumption of Risk   Zip Line  


Plaintiff nominally helped the defendant build a 220 foot zip line on rented property. Both plaintiff and defendant used the zip line after it was constructed, starting at a point 15 feet away and several feet and lower then from beginning of the cable. A month later, after defendant had a platform built to start the zip line at the 12 foot high beginning point, the defendant made a successful run. The breaking mechanism he fashioned midway caught his line and slowed him down before coming to the end point. When the plaintiff went it was unclear if the breaking mechanism failed to catch his line and he believed his was travelling faster than the defendant had on his run. He put his feet out and did not release the rope attaching the seat to the line and subsequently crashed feet first into the terminal tree, falling onto a boulder injuring his back.

The lower court granted summary judgment on assumption of risk acknowledging that there were unanswered questions about whether the brake failed and whether the zip line was properly tested. On appeal the major reversed finding that defendant did not show that he did not increase the risks associated with the zip line by his construction and testing methods or that any of the risks which caused the accident were inherent in the activity. The dissent would have upheld based on assumption of risk. Zelkowitz v Country Group, Inc.

Venue   Corporate Residence   Certificate of Incorporat  

Second Deptartment

Plaintiff commenced suit in Kings County alleging that one of the corporate defendant’s principal place of business was in Kings. That defendant moved to change venue to Nassau, claiming that the principal place of business was in Nassau and not Kings. The motion was denied and affirmed because defendant failed to provide the Certificate of Incorporation, or any amendment, showing that the designated County on the Certificate of Incorporation was Nassau County. The county listed on the certificate of incorporation is the only basis for venue of a corporation. Kidd v 22-11 Realty, LLC

MVA   VTL §1143   Crossing Roadway  

Second Deptartment

Plaintiff entitled to summary judgment where defendant crossed roadway from a parking lot in violation of VTL §1143 which requires vehicles entering or crossing a road from other than a road to yield the right-of-way to all vehicles on the road. Proof showed defendant’s negligence and plaintiff’s lack of negligence. Ricciardi v Nelson

Assumption of Risk   Create Condition   Notice  

Second Deptartment

The infant plaintiff was injured when he landed on a hidden flowerpot behind the pole supporting a basketball hoop on the defendant’s property after jumping to block a shot. The doctrine of primary assumption of risk applies to surface defects which are observable. It does not, however, apply to reckless or intentional conduct, concealed or unreasonably increased risks. Defendant failed to eliminate triable issues of fact regarding whether the placement of the pot unreasonably increased the risks of the activity and failed to make out a prima facie case that they did not create or have notice of the condition. Simone v Doscas

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About Matt McMahon

Civil trials and appeals since 1984
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