December 10, 2019 | Vol. 188


MUST READS
(5 summaries)
NOTEWORTHYIF YOU MUST READ





Med Mal   Arbitration   Venue  

First Department
Motion nursing home and one of its doctor to compel arbitration of malpractice claim based on admission agreement granted only as to those defendants as facility was engaged in interstate commerce and Federal Arbitration Act preempts New York’s prohibition of arbitration agreements under Public Health Law §2801-d and General Business Law §399. Fact that other defendants were not party to the agreement did not preclude nursing home from benefit of arbitration clause but non-signators for treatment prior to nursing home not entitled to benefit of arbitration clause. Motion to stay action against non-signators denied as issues of treatment at different facilities were not so intertwined as to stay action pending arbitration result. Minogue v Malhan

Comment: Admission agreement also contained venue clause placing venue in Westchester County and lower court granted change of venue of claims against all parties but denied enforcement of arbitration clause. It does not appear that venue was changed before modification on appeal and issue is now likely moot.

Med Mal   Duty   Certificate of Merit   Motion to Dismiss  

Second Department
Plaintiff’s claim that hospital employees running blood bank where she was injured after donating blood, claiming that they failed to properly examine and evaluate whether she was a proper candidate to donate blood, fit within malpractice not ordinary negligence as it bore a substantial relationship to rendition of medical care even if only administered by nonphysicians. Plaintiff was required to file certificate of merit under CPLR §3012-a but proper remedy for failure to file is to extend time to file and only if plaintiff fails to comply after being given an opportunity can court consider dismissal. Rabinovich v Maimonides Med. Ctr.


Med Mal   Accepted Practice   Causation  

First Department
Podiatrist’s motion for summary judgment and pro se plaintiff’s cross motion for summary judgment denied where podiatrist’s treatment for Lyme disease using non-FDA-approved ozone therapy fell outside scope of what a podiatrist is permitted to treat under Education Law and podiatrist did not provide expert proof of standard of care. Issue of fact remained as well on causation for plaintiff’s stroke-like symptoms where there was no definitive diagnosis but plaintiff was hospitalized for 2-weeks. Georgievski v Robins


MVA   Police   Workers Comp Defense   NYC  

Second Department
NYPD and volunteer auxiliary NYPD officer who was driving vehicle plaintiff was in granted summary judgment on proof that workers comp board found plaintiff to be injured from work-related accident as a volunteer auxiliary police officer establishing workers compensation as exclusive remedy. Bello v City of New York

Comment: This of course would not apply to uniformed regular police officers.

Med Mal   Causation   Loss of Chance   Expert Aff  

First Department
Defendants’ motion for summary judgment denied based on competing expert opinions regarding decedent’s loss of chance of more favorable outcome where there was no definitive proof as to stage of decedent’s lung cancer when first presented to defendants but experts’ opinions were properly founded on their own knowledge of the rate of progression of the particular type of cancer. Non-notarized affidavit of plaintiff’s expert properly corrected by notarized version submitted prior to oral argument and fact it was notarized by a New York notary out-of-state did not make it inadmissible without an affidavit of conformity as that is a mere irregularity. Wager v Rao

NOTEWORTHY
(17 summaries)
MUST READSIF YOU MUST READ



Med Mal   Statute of Limitations   Continuous Treatement   Amend Complaint  

Second Department
Psychiatrist denied summary judgment dismissing malpractice causes of action as time-barred where he saw decedent and made appointment for approximately 2-weeks later but claimed he contacted decedent the next day and told her she should be treated by a full-time psychiatrist without canceling the future appointment. She committed suicide 3-days later. Matter remanded for consideration of plaintiff’s motion for leave to serve amended Complaint alleging continuous treatment doctrine. The fact that future appointment was not canceled raised at least a question of fact on continuous treatment. Hillary v Gerstein


Premises Liab   Motion to Dismiss   3rd Party Contractor   Statute of Limitations  

First Department
Building owners’ motion to dismiss on statute of limitations denied under relation back theory on proof that cleaning contractor had apparent authority to act for owner and owner failed to provide agreement to refute claim that contractor had complete and exclusive control of premises and would not have a defense not available to owner. Hines v ABM Janitorial Service-Northeast


Labor Law §240   Ladder   Indemnity  

Second Department
Plaintiff granted summary judgment under Labor Law §240(1) against Costco where unsecured ladder he was using to access tenant’s nonfunctioning electric roll up gate slid to the left causing worker to fall. Costco granted summary judgment on contractual indemnity claim against tenant where plaintiff, Costco, and tenant’s witnesses testified that Costco was not present and did not supervise any work. Owner liable solely because of Labor Law §240(1) entitled to contractual indemnity because it is free from negligence. Jara v Costco Wholesale Corp.


Premises Liab   Slip/Trip   Labor Law §200   Labor Law §241   Industrial Code   Unknown Cause   Speculation  

First Department
Where plaintiff could not describe dimensions of defect she fell on, could not identify photographs taken by defendants, and witnesses denied existence of a “crater crack” before raw concrete floor was patched with sealant during renovation, negligence and Labor Law §200 claims dismissed as pure speculation. Labor Law §241(6) based on industrial code §23-1.7(e)(1) dismissed where accident happened in open room leading to but not in passageway. Borrero v ACC Constr. Corp.


Premises Liab   Stairs   Vacate Default   Meritorious Defense  

First Department
$4.2 million default judgment vacated on building owner/manager’s affidavit establishing that allegations in Verified Complaint were conclusory and insufficient under CPLR §3215(f) and lease showing that tenant was responsible for maintenance of the staircase and had agreed to obtain insurance to indemnify the owner for any of the tenant’s negligence. Figueroa v Relgold, LLC

Comment: The lease was submitted for the first time in reply and unauthenticated.

Vacate Default   Reasonable Excuse   Meritorious Action  

First Department
Plaintiff’s motion to vacate default and restore case to trial calendar granted where plaintiff showed reasonable excuse for default by attorney’s and calendar clerk’s affidavits and a meritorious action by plaintiff’s affidavit. Pena v Pinnacle Assoc. II NY LLC


Premises Liab   Slip/Trip   Snow/Ice   Create Condition   Notice   Last Inspection   Unknown Cause  

Second Department
Defendants failed to meet burden for summary judgment where plaintiff adequately identified patch of ice as cause of fall and defendants failed to establish they did not create conditions where snow was piled along sidewalks and entrance to parking lot and that they did not have constructive notice as they failed to submit evidence of last time area was inspected or cleaned. Testimony of Plaintiff, who was restaurant manager, that he did not see snow or ice on sidewalk more than 3-hours before accident did not establish that condition must have occurred in such a short period of time that defendants did not have sufficient time to correct it. Coelho v S&A Neocronon, Inc.


Med Mal   Motion to Dismiss   90 Day Notice   Meritorious Action  

First Department
Defendants granted dismissal of medical malpractice Complaint for plaintiff’s failure to comply with 90-Day notices under CPLR §3216 where she failed to show that she did not intend to abandoned action, give justification for failure to comply, or show a meritorious action. Thompson v Beth Israel Med. Ctr.


Premises Liab   Slip/Trip   Wet Floor   Notice   Last Inspection  

Second Department
Supermarket’s submission failed to demonstrate it lacked constructive notice of wet substance on floor that plaintiff slipped on without proof of last time area was inspected or cleaned, relying only on general cleaning principles. Supermarket also failed to show condition would not have been discovered during a reasonable inspection. Fortune v Western Beef, Inc.


Premises Liab   Stairs   Dangerous Condition   Expert Aff  

First Department
School granted summary judgment where student slipped on wet exterior stair on expert’s opinions there was no dangerous condition, stairs complied with all applicable codes, and tested above highly slip-resistant standards. Plaintiff’s expert’s opinions failed to raise issue of fact because merely walking on a surface wet from rain does not establish liability, expert failed to conduct any surface testing and failed to point to any engineering standard that minimal height differential between steps creates a dangerous condition. Suero v Villa Maria Academy


Premises Liab   Slip/Trip   Stairs   Create Condition   Notice  

First Department
Defendant granted summary judgment on superintendent’s testimony that they did not create condition or have actual or constructive notice where plaintiff only knew that spill occurred sometime after the superintendent left 3-hours before the accident. Suarez v Jesup Realty Group, LLC


MVA   Duty   There to be Seen   Intervening Cause   Sole Cause  

Second Department
Driver stopped at stop sign who waived decedent-pedestrian to continue crossing granted summary judgment where pedestrian was struck and killed 1-second later by vehicle whose driver never saw decedent before striking her. A driver can voluntarily assume a duty by directing pedestrian but other driver’s failure to see what was there to be seen was an intervening cause and sole cause of the accident. Levi v Nardone


Serious Injury   Preexisting   Degenerative   Expert Aff  

First Department
Defendants granted summary judgment on serious injury based on expert radiologist report and plaintiff’s radiologist report showing pre-existing degenerative conditions and plaintiff’s doctors’ opinions on causation were conclusory where they failed to address evidence of pre-existing degeneration. Defendants entitled to summary judgment on 90/180-day category on plaintiff’s testimony that he returned to light duty 2-weeks after accident and continued to work. Deneen v Bucknor


Serious Injury   ROM  

First Department
Defendants granted summary judgment on serious injury by affirmed IME/DME reports showing normal range of motion and plaintiffs’ testimony that they were not incapacitated for the minimum time. Plaintiff’s expert orthopedist failed to raise issue of fact by failing to reconcile his findings of limited ROM with treating physicians’ findings of normal ROM in spine. 1-plaintiff failed to put forth any evidence of treatment to the shoulder and failed to plead an injury to the knee. Cano v U-Haul Co. of Ariz.


Serious Injury   ROM   Causation  

Second Department
Defendants failed to meet burden on serious injury where at least one of their doctors found significant limited ROM in spine and shoulder and defendants’ submissions raised issues of fact on causation. Gui Hyun NA v Five Stars Trucking, Inc.


Serious Injury   Preexisting   Degenerative   ROM   Expert Aff  

First Department
Plaintiff raised issues of fact by treating physician’s and orthopedic surgeon’s findings of limited ROM and surgeon’s opinion that shoulder injury was causally related to accident, acknowledging prior shoulder injury, based on fact plaintiff was asymptomatic before accident, review of MRI reports, his treatment of the plaintiff, and observations of the tears during surgery. Hamilton v Marom


Assault   Emotional Harm   Motion to Dismiss   Statute of Limitations  

Second Department
Airline granted summary judgment where passengers were refused boarding due to expired passport and were treated rudely where all allegations, including allegations of negligence, were based on solely intentional conduct barred by 1-year statute of limitations. Trayvilla v Japan Airlines

IF YOU MUST READ
(2 summaries)
MUST READSNOTEWORTHY

Serious Injury  

Second Department
Defendant met burden for summary judgment on serious injury as to both plaintiffs but 1-plaintiff raised issue of fact on serious injury whereas the other plaintiff did not. The court does not give the details of the proofs. Yoonjick Chung v Reed


Serious Injury  

Second Department
Defendant met burden for summary judgment on serious injury with competent medical proof and plaintiff’s testimony showing no serious injury. Plaintiff failed to raise an issue in opposition. The court does not give the details of the proofs. Caseres v Verma

About Matt McMahon

Civil trials and appeals since 1984
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