December 13, 2016 | Vol. 32

MUST READS
(3 summaries)

Med Mal   Set Aside Verdict   Pain/Suffering   Materially Deviates  

First

It upholding the jury’s verdict of $2 million for past and $4 million for future pain and suffering and special damages including the cost of future medical care, physical therapy, medication, and equipment and supplies, the court touches on several important rules applicable in a medical malpractice action. They confirmed that plaintiff’s expert’s testimony that the plaintiff had a 30-40% chance of saving his leg if the defendant doctor had placed a Fogarty catheter to reestablish blood circulation and monitored the plaintiff in an ICU for 24-36 hours, was sufficient evidence to justify the jury’s verdict. The lower court properly denied defendant’s request to add the original tortfeasor from the motor vehicle accident, to the verdict sheet, as the doctor was a subsequent tortfeasor and the court correctly deducted the amount of the original tortfeasor’s settlement from the award under GBL. The lower court also properly instructed the jury that they could only award for aggravation of the original injury from the car accident and not for the original injury.

The awards for pain and suffering and special damages did not materially deviate given the testimony that the plaintiff’s condition would worsen to the point that he would eventually be confined to a wheelchair. The appellate court reduced the interest assessed against the individual doctor to 3% as an employee of New York City Health and Hospitals Corporation. There was one dissent on the issue of material deviation.
Marin v New York City Health & Hosps. Corp. Marin v New York City Health & Hosps. Corp.


IME/DME   Tortious Interference   Venue  

First

Plaintiff IME Watchdog, Inc. improperly placed venue in Bronx County where none of the parties resided. Defendant, Baker, McAvoy Morrissey & Moscowitz, PC, was entitled to pick a proper venue after it established that the plaintiff’s venue was improper.

The lower court improperly granted plaintiff’s request for injunctive relief prohibiting the defendant law firm from excluding non-attorneys from IME/DMEs in certain circumstances, upon plaintiff’s failure to show a probability of success on the merits given several cases where the defendant’s exclusion of non-attorneys had been upheld, that defendant’s actions were motivated without justification or excuse, and that it would be irreparably harmed. IME Watchdog, Inc. v Baker, McEvoy, Morrissey & Moskovits, P.C.

Comment: While the decision does not rule on whether a defense firm can prohibit a non-attorney from attending an IME/DME, this decision lifts the TRO prohibiting Baker, McEvoy, Morrissey & Moskovits, P.C. from serving a notice of physical with conditions, including that a non-attorney may not be present at the physical. For plaintiffs, this reverts back to the practice of moving for a protective order when served with a notice of physical with conditions which will have to be decided on a case by case basis.


MVA   Prior Written Notice   Highway Maintenance   Serious Injury  

Second Deptartment

Defendant village was properly granted summary judgment for lack of prior written notice and that one of the plaintiffs did not sustain a serious injury, which was not disputed by the plaintiff. In searching the record, the court also properly granted summary judgment as to the plaintiff without a serious injury as to all defendants.

County and adjoining landowner should not have been granted summary judgment. The County failed to show that it maintained the roadway in a reasonably safe condition, including clear sight distances, where the stop sign that defendant allegedly went through was covered by hedges. While the adjoining landowner does not have a common law duty to prevent vegetation from obstructing the view of public roadway users, liability can be predicated upon a code violation such as a violation of the visual obstruction Oyster Bay and Massapequa Park code provisions alleged. The defendant driver’s violation of the VTL does not preclude a finding of proximate cause against the adjoining landowner as there can be more than one proximate cause of an accident. Dutka v Odierno

NOTEWORTHY
(22 summaries)

Labor Law §240   Labor Law §241   Labor Law §200   Ladder   Stairs   Agent  

Second Deptartment

In this action where plaintiff fell off a ladder on one occasion and down unfinished stairs on a second occasion, the Second Department addresses the definition of an “owner’s agent” under the Labor Law finding that the construction manager defendant, was not an owner’s agent for purposes of Labor Law because it did not have “supervisory control” over the work being performed. The construction manager produced evidence that its role was limited to ensuring compliance with design plans through weekly visits lasting no more than 3 hours. The Labor Law §200 and negligence claims were also properly dismissed upon proof that the construction manager did not control the means or materials of plaintiff’s work. Vazquez v Humboldt Seigle Lofts, LLC


Labor Law §200   Control  

Second Deptartment

Construction manager was properly granted summary judgment on Labor Law §200 and common law negligence claims on proof that it did not have the ability to supervise the methods and means of the plaintiff’s work. Plaintiff was injured while carrying a 30’, 200 lb. rafter when he felt his knee pop and he fell to the ground.

The general contractor’s motion for summary judgment, however, should have been denied as plaintiff’s testimony, submitted on defendant’s motion, raised questions of whether the general contractor supervised the work including that GC gave assignments to the workers and specifically the plaintiff’s assignment to move the rafter on his own, that the GC supervisors were present to supervise the work every day, that when plaintiff complained about the task of moving the rafter on his own the GC’s supervisor told him “just do it,” supervised the work.

General contractor’s alternative motion to have the plaintiff deemed it’s special employee in order to obtain the benefit of the Worker’s Compensation defense, claiming that it exercised exclusive control of the plaintiff’s work, was properly denied. Plaintiff and general contractor’s testimony contradicted each other leaving an issue of fact to be resolved by the jury. Zupan v Irwin Contr., Inc.


Premises Liab   Storm in Progress   Snow/Ice   Create Condition   Speculation  

Second Deptartment

Property owner is not responsible for slippery condition created while the storm is in progress, and for a reasonable time thereafter, however, if the precipitation has tailed off to the point that there is no “appreciable accumulation,” the storm in progress doctrine does not apply. Defendant made out its prima facie entitlement to summary judgment by showing that there was a storm in progress, including snow and freezing rain, and that its efforts to remove the snow during the storm did not create or exacerbate the icy condition. Plaintiff’s argument the defendant may have exposed an underlying layer of ice by shoveling was not supported by the evidence and is speculative. Aronov v St. Vincent’s Hous. Dev. Fund Co., Inc.


Products Liab   Proximate Cause   Raised For First Time  

First

Plaintiff was injured when his car slid off the back of the tow truck as it was being lifted by a winch, and pinned his legs between his car and a parking meter. Tow truck owner [AAA] brought cross-claims against the winch manufacturer who moved for summary judgment. The lower court granted partial summary judgment retaining claims for public and private nuisance and design defect. The appellate court reversed and granted full summary judgment finding that there was no grounds for a nuisance claim and that a design defect was not pled nor would the court permit an amendment of the pleadings to conform to the proofs requested for the first time on appeal. Plaintiff was entitled to summary judgment on proof that the tow truck owner did not properly train its employee or provide him with the manual and that the tow truck operator was the cause of the accident. Bendel v Ramsey Winch Co.


Motion to Dismiss   Discovery   Conditional Order   Res Judicata  

Second Deptartment

A second action commenced by the plaintiff after the first action had been dismissed on summary judgment after plaintiff failed to comply with a conditional order of preclusion was properly dismissed as part by res judicata. Summary judgment based on an order ‘of preclusion is a dismissal “on the merits,” which will bar a plaintiff’s attempts to circumvent the order of preclusion or summary judgment by commencing a second action. Jung Hee Lee v Viera


Negligent Hiring   Battery   Alter Ego   Amend Complaint  

First

In action where plaintiff was allegedly injured when an ambulette driver assaulted her, the lower court properly found that there were questions of fact regarding whether the defendant which plaintiff sought to add was the alter ego of the defendant, plaintiff’s employer, however, defendant’s cross motion for summary judgment should have been granted on proof that the only notice defendant had was past complaints of rudeness and verbal abuse without any notice of the employee’s propensity for violence. Schiebl v Senior Care Emergency Med. Servs.


MVA   Traffic Signs   Comparative Fault  

Second Deptartment

Plaintiff was not entitled to summary judgment in action were defendant allegedly entered intersection through a stop sign, and plaintiff did not have a traffic control device in her direction, because she felt to eliminate all issues of fact regarding her own comparative negligence. While a driver with the right-of-way can anticipate that other drivers will obey traffic control devices, the driver must still exercise reasonable caution to avoid an accident when entering the intersection without traffic control device. Taylor v Brat Auto Sales, Ltd.


Premises Liab   Design Defect   Optical Confusion   Raised For First Time   Expert Aff   Slip/Trip   Stairs   Open/Obvious   Inherently Dangerous  

First

Defendants, building owner/manager and tenant were entitled to summary judgment in case where plaintiff claimed that she tripped and fell on a stairway platform. Although the owner/manager retained authority to reenter, plaintiff failed to plead a design defect that violated a specific statutory safety provision in the complaint or bill of particulars. Tenant showed that the condition was open and obvious and not inherently dangerous, plaintiff only raised “optical confusion” theory for the first time in opposition to the motion, and her affidavit contradicted her deposition testimony that she saw the “watch your step” sign before she fell and that there was sufficient light for her to see the platform after she fell. Her expert’s affidavit was conclusory and did not cite to specific statutory safety provisions. Siegfried v West 63 Empire Assoc., LLC


Premises Liab   Abutting Landowner   Sidewalk   Slip/Trip  

Second Deptartment

Defendant was entitled to summary judgment on showing that it did not create the condition on the sidewalk which caused the plaintiff to trip and fall and that there was no statute or ordinance creating a duty on behalf of the landowner which provided a private cause of action two users of a public sidewalk. Escobar v Lowe Props., LLC


Premises Liab   § 7-210   Expert Aff   Slip/Trip   Sidewalk   Curb  

First

Defendant abutting landowner’s motion for summary judgment was properly denied as it failed to show that the plaintiff tripped on the curb, which would be the city’s responsibility, instead of on the sidewalk or in between the sidewalk and the curb, which would be the abutting landowner’s responsibility. Defendant’s expert affidavit was not probative since the expert did not inspect the area until years after the accident and after repairs had been made. The expert relied upon the same photos relied upon by the plaintiff which did not eliminate the possibility that the defect was in an area for which the abutting landowner was responsible. Cruz v Mall Props., Inc.


Premises Liab   Out of Possession   Notice   Slip/Trip   Stairs  

First

An owner out of possession can only be held liable for defects on the premises after it releases possession and control where 1) it is contractually obligated to maintain or make repairs, or 2) it has a right to reenter, inspect, and make needed repairs, and the defect is a significant structural or design defect which violates a specific safety statute. Lease agreement clearly stated that landlord had the responsibility to maintain both interior and exterior public portions and there was a question of fact as to whether the metal strip affixed to the stair was part of the public area. Ledesma v AMA Grocery, Corp.


Premises Liab   Elevator   Notice  

Second Deptartment

Building owner and elevator maintenance company were entitled to summary judgment upon proof that neither had actual or constructive notice of an ongoing condition which allegedly caused the top portion of a freight elevator to close on plaintiff’s head as he entered the elevator. Plaintiff failed to raise triable issues of fact in opposition. Vilardi v Jones Lang LaSalle, Inc.


Workers Comp   Collateral Estoppel  

First

Plaintiff sued employer and building owner for injuries obtained while working. At the worker compensation hearing plaintiff and employer stipulated that the plaintiff was employed by the employer at the time of the accident and the employer paid benefits. Plaintiff did not oppose the employer’s motion for summary judgment based on the worker compensation defense, but building owner opposed employer’s motion to dismiss the building owner’s cross-claim against the employer for common law indemnification. The lower court properly denied the employer’s motion against the building owner since the building owner was not a party to the worker compensation hearing and, therefore, did not have an opportunity to fully litigate the matter. Collateral estoppel cannot apply to a non-party. Netzahuall v All Will LLC


MVA   Rear End   Serious Injury   Nonnegligent Explanation   ROM  

Second Deptartment

Third-party defendant should have been granted summary judgment on proof that it came to a slow stop at a traffic light and was stopped for 10 seconds before being hit by the plaintiff’s car which had been hit in the rear by the defendant’s car. Defendant’s claim that the third-party defendant stopped short was conclusory and did not provide a nonnegligent explanation for striking the rear of the plaintiff’s vehicle. In a related decision, the defendant’s motion for summary judgment on serious injury should have been denied as the defendant’s own submissions showed that the plaintiff had significant limitations of ROM in the spine and right shoulder, regardless of plaintiff’s opposition. Ramos v Baig. Ramos v Baig


Premises Liab   Slip/Trip   Stairs   Unknown Cause   Feigned Issue  

Second Deptartment

Defendant was entitled to summary judgment based on plaintiff’s 50-h testimony that she did not know what caused her to fall. Her affidavit submitted in opposition raised feigned issues calculated to defeat summary judgment and were not considered. Maldonado v New York City Hous. Auth.


Create Condition   Notice   Assumption of Risk  

First

Defendant made out prima facie entitlement to summary judgment on proof that spin cycle which injured plaintiff was not defective and that defendant did not create or have notice of a dangerous condition, but issues of fact existed as to whether defendant properly instructed plaintiff, who was a first time spin cycler, on the use of the machine, and plaintiff’s assumption of concealed or unreasonably increased risks. Serin v Soulcycle Holdings, LLC


Serious Injury   Set Aside Verdict  

Second Deptartment

Plaintiff’s motion to set aside verdict in damage only trial where jury found that plaintiff did not sustain a serious injury was properly denied as there was sufficient evidence for the jury’s determination, including plaintiff’s orthopedist’s testimony that the ROM in plaintiff’s shoulder after arthroscopic surgery was limited minimally but perceptibly in elevation in abduction and “almost normal” for internal rotation. Pyong Sun Yun v GEICO Ins. Co.


Serious Injury   Expert Aff   ROM  

Second Deptartment

Defendants’ motion for summary judgment on serious injury threshold should have been denied as one of their examining physicians found significant limitation of ROM in the plaintiff’s knee and defendants failed to address plaintiff’s claims under the 90/180 day category, regardless of plaintiff’s opposition. Cockburn v Neal


Legal Mal   Motion to Dismiss  

First

Defendant law firm was entitled to dismissal based on the documentary evidence of the Second Circuit decision in the underlying action which found the evidence that the defendant’s vessel in the underlying federal action was not within the field of the plaintiff’s cable when it dropped its anchor “immutable and complete” contradicting the plaintiff’s claims that but for the defendant’s legal malpractice they would have won the federal case. Optical Communications Groups, Inc. v Rubin, Fiorella & Friedman, LLP


Premises Liab   Slip/Trip   Motion to Dismiss   Amend Complaint  

Second Deptartment

Lower court properly denied defendant’s motion to dismiss under CPLR 3211(a)(7) as complaint stated a cause of action, which is sole inquiry under CPLR 3211(a)(7), and properly granted plaintiff leave to amend the complaint as there was no prejudice to the defendant and the proposed amendment was not palpably improper. Mahler v North Shore Camp, LLC


Discovery   Strike Answer  

First

Lower court providently exercised its discretion in conditionally striking defendant’s answer for failure to comply with several discovery orders to provide the discovery or an affidavit that a search has been made and the documents do not exist [Jackson affidavit] but should have provided for a specific time for defendant to comply before the answer was stricken. The appellate court gave the defendant 45 days to comply. Vaca v Village View Hous. Corp.


Discovery   Premature Motion  

Second Deptartment

The lower court properly denied plaintiff’s motion for summary judgment, with leave to renew after the completion of discovery. A party should be afforded a reasonable opportunity to obtain discovery prior to a motion for summary judgment upon an affidavit showing that relevant facts in opposition may exist but cannot be obtained without discovery. Ingram v Bay Ridge Auto. Mgt. Corp.

IF YOU MUST READ
(2 summaries)

Ad Damnum  

First

Plaintiff’s second motion to remove her case from civil court to Supreme Court and amend the complaint to increase the ad damnum was properly denied for failure to show a reasonable basis for the increased ad damnum, that any damages from the flooding were caused by the defendant’s negligence, or a reasonable excuse for not making the second motion for more than three years after the first motion was denied and nine years after the incident. The court found that the delay hindered the defendant’s preparation of the case. Matter of Spiegel v Kempner


Coverage   Additional Insured  

First

Primary carrier was entitled to a declaratory judgment finding that its insured was an “additional insured” under a policy which defined additional insureds as any entity required by written contract to be named as an insured, based on an unsigned purchase order which defined itself as a contract and required the building ordered to be named as an insured. Unlike other cases involving policy language which required an “executed” contract, this policy only required a “written” contract and the fact that it was unsigned did not change the obligation. Zurich Am. Ins. Co. v Endurance Am. Speciality Ins. Co.

About Matt McMahon

Civil trials and appeals since 1984
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