Med Mal Accepted Practice Causation Speculation Conclusory Expert Aff
 Plastic surgeon’s testimony submitted on his motion failed to make out prima facie entitlement to summary judgment where he generally described process of “aspiration” where needle is drawn back before injecting fat into the face to make sure that there is no blood which would indicate fat could be injected into a vein. His testimony that “I think” I used that technique was insufficient to eliminate all questions of fact and the record had no indication that “aspiration” was used. Expert’s opinion based on this testimony was speculation and opinion on causation was conclusory. Bahnyuk v Reed
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Motion to Dismiss Amend Complaint Statute of Limitations
 Plaintiff’s motion to amend Complaint to add 2 parties, with proposed Supplemental Summons and Amended Complaint attached, tolled statute of limitations only for time motion was filed until order granting motion was entered (not when Notice of Entry was filed), adding 6-7 months to statute of limitation. Additional defendants’ motion to dismiss granted where plaintiff served Notice of Entry of Order and Supplement Summons and Amended Complaint more than 18-months after entry of order. Schlapa v Consolidated Edison Co. of N.Y., Inc.
Comment: When seeking to add parties with an approaching statute of limitations the safest bet is to commence a separate action and then consolidate the cases. |
Bankruptcy Capacity to Sue
Defendants’ motion to dismiss for lack of capacity to sue granted where plaintiff filed Chapter 7 bankruptcy during suit and did not list it as an asset in the bankruptcy depriving her of capacity to sue. Jean-Paul v 67-30 Dartmouth St. Owners Corp.
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CPLR § 3126 Discovery IME/DME Willful/Contumacious
Plaintiff precluded from offering evidence at trial on damages where failure to comply with discovery demands and orders was willful/contumacious as evidenced by repeated failures to comply without adequate explanation. Claim she could not comply because notice of IME/DME did not specify a date unavailing where she had agreed to schedule the exam directly with the doctor’s office because she lived out of state. Gafarova v Yale Realty, LLC
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Premature Motion
Construction company’s motion for summary judgment providently denied as premature where plaintiff and codefendant showed that facts regarding several issues raised by construction company were exclusively within construction company’s possession. Motion was made before any discovery began. Rutherford v Brooklyn Navy Yard Dev. Corp.
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Labor Law §240 Set Aside Verdict Declaratory Jud Sole Cause
Plaintiff’s motion to vacate judgment and set aside defense verdict as legally insufficient and against weight of evidence denied where jury could rationally find, and there was a valid line of reasoning and permissible inferences, that his moving a mortar buggy without assistance was the sole cause of his injuries. Luna v 4300 Crescent, LLC
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Premises Liab Notice Dangerous Condition Intervening Cause
Mall granted summary judgment on proof it maintained play area in reasonably safe condition, did not have actual or constructive notice of a dangerous condition, and where other child pushed infant-plaintiff from top of play train court could determine proximate cause as a matter of law. A.Y. v Broadway Mall Partners, L.P.
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Labor Law §240 Sole Cause Question of Fact
Plaintiff’s motion for summary judgment on Labor Law §240(1) denied where coworker’s testimony submitted by plaintiff contradicted plaintiff’s testimony that the ladder was unsecured when it shifted causing him to fall. Coworker testified he was standing at bottom of ladder holding it when he felt it jerk presenting questions of fact on whether there was a violation of §240 and whether plaintiff was sole proximate cause of his injuries. Lozada v St. Patrick’s R C Church
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Wrongful Death Costs/Disbursements
Out of state administratrix required to post $250.00 security for costs under CPLR §8501(a) not the $27,300 defendants requested, which the court found excessive. Yarwood v County of Suffolk
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Vacate Default Reasonable Excuse Admissibility Hearsay
Defendant’s CPLR §5015 motion to vacate default on claim carrier delayed in answering denied as based on inadmissible hearsay. Proof that carrier delayed in assigning counsel to move to vacate default did not show reasonable excuse for not providing timely Answer. Shy v Shavin Corp.
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Labor Law §200 Labor Law §240 Labor Law §241 Gravity Risk Industrial Code Control Indemnity
Owner and general contractor failed to meet burden for summary judgment on Labor Law §240(1) where they submitted conflicting testimony on whether there was a 3’ hole plaintiff claimed he fell into as he wheeled cart across plywood covering, and on Labor Law §241(6) where industrial code §23-1.22(b)(runways, ramps, platforms) was sufficiently specific predicate. They also failed to show general contractor lacked authority to supervise plaintiff’s work on Labor Law §200 and negligence claims.
3rd party sub-contractor granted summary judgment on Labor Law §200 and negligence on proof 3’ trench was dug by plumber and covered with plywood by demolition company after subcontractor removed sidewalk and graded area. General contractor denied summary judgment on indemnity where it could be found 100% responsible for injury. Davies v Simon Prop. Group, Inc.
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Motion to Dismiss Ins. L. § 3420(a)(2) Question of Fact
Carrier’s pre-Answer motion to dismiss Ins. L. §3420(a)(2) action to collect unsatisfied judgment, entered on default after carrier disclaimed, denied as plaintiff stated cause of action under §3420(a)(2) and evidence submitted by carrier did not establish that ”a fact alleged in the complaint insofar as asserted against the insurer was undisputedly not a fact at all.” Case against independent claims administrator dismissed as it was not a carrier and did not participate in underwriting process. S.P. v Dongbu Ins. Co.
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Motion to Dismiss Court of Claims
State’s motion to dismiss for failure to state a cause of action granted as village, not state had responsibility for maintaining sidewalk in village next to state road where plaintiff tripped on broken signpost. Roemer v State of New York
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Med Mal Wrongful Death Capacity to Sue Estate Bankruptcy Reasonable Excuse Prejudice
Plaintiff’s motion to substitute persons granted letters of administration in place of “proposed” administratrix named as original plaintiff 13.5 years earlier, made within 60-days after bankruptcy stay lifted where hospital filed for bankruptcy 12 years earlier, and to substitute administratrix of estate of defendant doctor who received letters 3-years earlier granted and defendant doctor’s administratrix cross-motion to lift bankruptcy stay to allow her to move to dismiss Complaint for failure to timely substitute estate denied. Defendant never raised issue of “proposed” administratrix’ capacity to sue and 60-day delay in seeking substitution after bankruptcy stay lifted was not unreasonable under CPLR §1021 and defendant failed to show she was prejudiced by delay. Mingo v Nobandegani
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Serious Injury ROM Expert Aff
Defendant made out entitlement to summary judgment on serious injury by orthopedist’s finding of normal ROM but plaintiff raised issue of fact by affirmation of orthopedist finding 63% limitation of ROM in her shoulder on exam while motion pending. Case remanded for decision on plaintiff’s summary judgment motion denied his academic by lower court. Chichester v Chichester
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Serious Injury Causation Burden of Proof
Plaintiff raised issue of fact in opposition to defendants’ entitlement to summary judgment. Because defendants did not meet their burden on causation, burden on causation never shifted to plaintiff. The court does not give the details of the proofs. Hopper v Burgos
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Premises Liab Dangerous Condition Create Condition Notice
Store granted summary judgment on proof it did not create condition where furniture staple sticking out from sofa cutting infant-plaintiff’s leg as she walked past it and did not have actual or constructive notice of the condition. Hernandes v National Wholesale Liquidators
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Premises Liab Open/Obvious Inherently Dangerous
BJ’s Wholesale granted summary judgment on proof that pallet protruding from produce display plaintiff tripped on was open/obvious and not inherently dangerous. The court does not give the details of the proofs. Sarab v BJ’s Wholesale Club
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Negligent Supervision Question of Fact
Daycare center failed to negate reasonable inference that infant-plaintiff was injured while in its care and because of its negligence. The court does not give the details of the proofs. A.D.G. v Children’s Ark Daycare Ctr., Inc.
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