December 15, 2020 | Vol. 240

MUST READS
(7 summaries)
NOTEWORTHY IF YOU MUST READ

Serious Injury   Set Aside Verdict   Preclusion   Expert Aff  

Second Department

Motion to set aside verdict finding no serious injury granted where trial court erred in precluding plaintiff’s expert from testifying on permanency under 22 NYCRR §202.17 since it was not contained in his medical records as “permanency” is not an “injury or condition” §202.17 requires to be disclosed. Smith v Lipsky


Vacate Default   Reasonable Excuse   Meritorious Action  

Second Department

Plaintiff’s excuse for initially failing to oppose defendant’s motion for summary judgment on serious injury where there was a short delay in filing opposition papers may have been a reasonable excuse warranting vacating the default but 1-year delay in moving to vacate the default was not reasonable. Motion to vacate default denied. Pawoor Kim v Xin Chen


Premises Liab   Slip/Trip   Last Inspection   Question of Fact   General Release   Admissibility  

First Department

Bethel Woods met burden for summary judgment on proof it inspected festival grounds on day of accident, there were no tire ruts present, and no vehicles were allowed on the grounds while patrons were present, but plaintiff raised issue by friend’s affidavit that large vehicles were operating on the grounds and poor lighting during the festival, and another friend’s affidavit that he saw a rut near where plaintiff fell. Videos should not have been considered as plaintiff’s statement they appeared to more or less show the grounds accurately did not lay a proper foundation.

Release printed on ticket was invalid in violation of GOL § 5-326 where grounds were a place for entertainment or recreation and plaintiff paid to participate. Nicaj v Bethel Woods Ctr. for the Arts, Inc.


MVA   MVIAC   Notice of Claim   Untimely  

First Department

Plaintiff’s Notice of Claim on MVIAC, filed 14-days after receiving offending vehicle carrier’s disclaimer letter because car was reported stolen day before accident, timely as plaintiff filed a timely Notice of Intention to Claim and the 180-days to file Notice of Claim started on day disclaimer was received, not day it was sent under Ins. L. § 5208(a)(3)(b). Robinson v Lowman


Med Mal   Motion to Dismiss   Certificate of Merit   Discovery  

Second Department

Defendants’ motion for summary judgment claiming they did not have records of treating plaintiff’s decedent where decedent brought brother’s insurance card to ER denied as defendants’ affidavits stating they had no records of treating decedent were not documentary evidence that utterly refuted claims in the Complaint. Plaintiff’s motion to compel production of records under decedent’s brother’s name based on that brother’s affidavit and sister’s affidavit explaining the mistaken identity granted to extent of ordering in camera review and if court finds records pertained to decedent, their release to plaintiff and an extension of time to files Certificate of Merit to 90 days after records are released. Ajaka v Mount Sinai Hosp.


Vacate Default   Reasonable Excuse   Meritorious Action   Materially Deviates  

Second Department

Claim default was caused by broker or carrier is generally not sufficient to vacate default and was not a reasonable excuse where, defendant was served with motion for default and Notice of Inquest. Lack of facts supporting claim did not relieve defendant of obligation to show reasonable excuse. Absent reasonable excuse, court need not address meritorious defense. $400,000 damage award was reviewable but did not materially deviate from reasonable compensation. The Court does not describe the injuries. Uceta v Sherwood, LLC


Premises Liab   Slip/Trip   Sidewalk   Snow/Ice   § 7-210   Out of Possession   Create Condition   Notice  

Second Department

Noting that administrative code §7-210 does not have an exception for out of possession owners but that liability requires a showing that abutting landowner created the condition or had actual or constructive notice of it, abutting landowner granted summary judgment on proof it neither created the condition nor had actual or constructive notice. The Court does not give the details of the proofs. Vasquez v Giandon Realty, LLC

NOTEWORTHY
(21 summaries)
MUST READS IF YOU MUST READ

Med Mal   Accepted Practice   Causation   Expert Aff   Conclusory   Speculation  

Second Department

Physician who performed preoperative evaluation and cardiologist each made out entitlement to summary judgment on their own affidavits establishing they did not depart from accepted practice by discontinuing aspirin and Plavix before eye surgery and that discontinuing the antiplatelet’s was not a cause of the surgical complications that leading to decedent’s death. Plaintiffs’ failed to raise issue on conclusory and speculative opinions that failed to explain how discontinuance of the antiplatelet’s was a departure or how it was a cause of the injuries. Outpatient surgical center granted summary judgment on expert’s opinion it was not a departure to allow surgery on an outpatient basis and location of the surgery was not a cause of the injuries. Plaintiffs’ expert’s opinion on departure and causation were conclusory and speculative. Palazzolo v Green


Med Mal   Negligent Supervision   Accepted Practice   Agent   Independant Contractor   Vicarious Liab   Conclusory   Expert Aff  

Second Department

Claim physical therapist negligently supervised infant-plaintiff during PT session sounds in malpractice not ordinary negligence since the duty arose from therapist-patient relationship. Therapist’s own conclusory statement that his treatment plan was consistent with accepted practice did not meet burden for summary judgment and he did not submit an expert opinion. Therapy facility met burden for summary judgment on proof therapist was an independent contractor, but plaintiffs raised issue on ostensible agency on proof facility assigned patients to independent contractors when they called which could give appearance that therapist was acting on behalf of facility. Other facility granted summary judgment on plaintiff’s testimony that she did not know who the facility was and therefore could not have relied on relationship between facility and therapist to establish ostensible agency. Weiszberger v KCM Therapy


Med Mal   Question of Fact   Expert Aff  

First Department

Conflicting expert opinions on distance between biopsied liver section and stomach laceration on decedent; whether lacerations were consistent with biopsy needle; significance of liver capsule remaining intact, that it showed defect but no sign of recent injury or bleeding, that only liver tissue was seen in biopsy samples; the importance of no immediate abdominal bleeding and viability of a tamponade; and other explanations for the bleeding preclude summary judgment. Autopsy report showing “therapeutic complication” as manner and “hemorrhagic complications following elective transjugular liver biopsy” as cause of death not dispositive. Shaw v Golowa


Highway Design   Qualified Immunity   Expert Aff   Court of Claims  

Second Department

Action dismissed after Court of Claims trial on proof placement of curb on the Taconic Parkway which caused plaintiff’s car to go airborne and flip over after striking it while skidding on ice was part of deliberate decision-making process after an adequate study and was reasonable affording State qualified immunity for highway design. More than conflicting expert opinions is necessary to overcome qualified immunity by showing a plainly inadequate study or lacking a reasonable basis. Mansour-Mohamed v State of New York


Med Mal   Accepted Practice   Causation   Expert Aff   Speculation  

First Department

Plaintiffs’ experts’ opinions doctor and hospital departed from accepted practice by not admitting infant-plaintiff before surgery to remove large ovarian cyst given presence of pain and diagnostic tests that could not rule out ovary torsion raised issues in opposition to defendants’ prima facie showing of entitlement to summary judgment. Conflict in experts’ opinions on whether there would be any salvageable tissue if torsion had not occurred left issue on causation. Plaintiffs’ experts’ opinions based on review of surgical and pathology reports and intraoperative photographs and diagrams were not speculative. K.R. v Roussis


Labor Law §240   Labor Law §200   Ladder   Control  

Second Department

Defendants granted summary judgment on Labor Law §240(1) where plaintiff fell 10′-11”from ladder while replacing 2-bad magnetic switches and adjusting 4-magnets as part of employer’s maintenance contract to respond to fault codes as the work was routine maintenance not covered under §240 and not a repair. Labor Law §200 and negligence claims against building owner dismissed as they did not have control of means and methods of plaintiff’s work. Cremona v Venture Holding & Mgt. Corp.


Premises Liab   Elevator   Create Condition   Notice   3rd Party Contractor   Espinal   Res Ipsa Loquitor   Control   Untimely   Prejudice  

First Department

Building owner and manager granted summary judgment on proof they did not create or have notice of condition where service elevator moved while door was open on testimony there were no prior complaints and plaintiff testified she never saw it operate that way before. Elevator maintenance company denied summary judgment as it entirely displaced the owner’s maintenance obligations labor Law after the elevator renovation, clearly it was the type of accident that does not happen absent negligence, and plaintiff raised an issue of whether it was within the elevator maintenance company’s exclusive control. Plaintiff’s untimely opposition providently considered where there was no prejudice to elevator maintenance company who was able to put in an expert affidavit in reply. Sanchez v 1067 Fifth Ave. Corp.


Med Mal   Res Ipsa Loquitor  

Second Department

By failing to show plaintiff’s shoulder injury would not normally occur absent negligence during a colonoscopy, on claim plaintiff was either repositioned or allowed to fall, plaintiff failed to raise an issue in opposition to defendants’ showing of entitlement to summary judgment. Christopher v Atluri


Labor Law §241   Industrial Code   Indemnity   Attorney Fees  

First Department

Plaintiff denied summary judgment on Labor Law §241(6) based on industrial code §23-1.7(e)(2) as question remained on whether 2 x 4 wrapped in construction netting at top of unfinished staircase iron worker was working on was integral to the work being performed. Subcontractor for removal of barricades denied summary judgment on claim its work did not create the hazard where question remained of whether it removed the barricade exposing the 2 x 4. Employer’s motion for summary judgment dismissing contractor’s claim for attorney fees and breach of duty to procure insurance denied as the contract required indemnity for attorney fees and certificate of insurance did not establish compliance with duty to purchase insurance. Rudnitsky v Macy’s Real Estate, LLC


Med Mal   Accepted Practice   Causation   Question of Fact   Expert Aff  

Second Department

Conflicting expert opinions on departure and causation for not referring plaintiff’s decedent for further cardiac testing and telling him to follow-up in 1-year, which he did not, resulting in a ruptured aortic aneurysm and death, precluded summary judgment. Russell v Garafalo


Premises Liab   Out of Possession   Question of Fact   Causation  

First Department

Bar landlord was out of possession owner entitled to summary judgment where ceiling that fell on plaintiff was not structural defect and plaintiff did not cite violation of any specific statutory safety provision. Issues remained on whether contractor that constructed ceiling was negligent and plaintiff’s expert’s opinion that falling ice wall and deficiencies in ceiling may have been a cause of accident raised issue on causation. Espinoza v Minus5 HH NYC, Inc.


Premises Liab   Workers Comp Defense   Control  

Second Department

CVS Albany, LLC’s, motion for summary judgment on claim pharmacist’s employer, CVS Rx Services, Inc., was its alter ego entitling it to summary judgment on the exclusivity provision of Worker’s Compensation denied where it failed to show the 2-corporations were “operated as a single integrated entity, or that either entity controlled the day-to-day operations of the other.” Fazzolari v Sun Enters., LLC


Med Mal   Informed Consent   Accepted Practice   Causation   Preexisting   Degenerative   Expert Aff   Conclusory   Speculation  

Second Department

Chiropractors granted summary judgment against claims they failed to perform adequate testing before cervical manipulation resulting in injuries on proof injuries were pre-existing and degenerative and, therefore, not caused by alleged departures. Plaintiffs expert’s opinions were conclusory and speculative failing to raise an issue in opposition. Lack of informed consent dismissed as it could not be a cause of injuries that were pre-existing and degenerative. Gallo v Reiss


Venue  

First Department

Defendants failed to meet burden for change of venue from New York County where executor lived when action was commenced to Columbia County where accident occurred and where decedent died without showing proposed material witnesses had been contacted, were willing to testify, and would be inconvenienced by having to testify in New York County. Kaston v G.T.I. Roll Transp. Servs., Inc.


Premises Liab   Assault   Battery   Control   Notice   Foreseeability  

Second Department

Bar granted summary judgment on proof assault on plaintiff at bar was unforeseeable establishing it did not have opportunity and was not reasonably aware of need to control the person who attacked plaintiff. Ali v Miller’s Ale House, Inc.


Dram Shop   Spoliation  

Second Department

Bar granted summary judgment dismissing EMTs dram shop claim that she was assaulted by bar patron who was intoxicated on testimony of 1 of 2 bartenders conclusively showing they did not serve patron alcohol while visibly intoxicated and plaintiff failed to raise an issue in opposition. Plaintiffs application for spoliation sanctions denied. The Court does not give the details of the proofs. Soler v Jaccarino


Med Mal   Accepted Practice   Causation   Expert Aff  

Second Department

Plaintiffs raised issue on accepted practice and causation for neurological damage and clavicle fracture during birth in opposition to defendants’ showing of entitlement to summary judgment. OB/GYN failed to meet burden for summary judgment where submissions, including expert’s affirmation, did not address plaintiffs/ specific allegations in BP that he failed to properly anticipate a large fetus, use a Leopold maneuver, and consider a C-section. D.S. v Poliseno


Assumption of Risk   Question of Fact  

First Department

Fitness center denied summary judgment of plaintiff’s claim of injury where personal trainer urged him to continue exercises after experiencing pain. While the experienced fitness training plaintiff assumed the risks of properly supervised fitness training, plaintiff raised an issue on whether the trainer unreasonably increased the risks and whether trainer breached a duty of care. Defendants did not produce a signed waiver and release of liability. Qiao v Finn


Question of Fact   Causation   Expert Aff  

Second Department

Defendants failed to eliminate questions of fact on causation where there were conflicting stories of how injured-plaintiff was transferred from wheelchair to bed and her tibia was fractured where plaintiff testified she was seated on bed when home health aide pressed hard against her knee and defendants’ expert opined tibial fracture was not consistent with plaintiff’s version and partially based opinion on medical record which contradicted plaintiff’s version. Marino v Jamison


Premises Liab   Slip/Trip   Last Inspection   Unknown Cause  

First Department

Building failed to meet burden for summary judgment without evidence of cleaning/inspection routines and last time lobby floor where plaintiff fell was inspected. Plaintiff’s testimony that she felt toebox of her foot slide under what felt like a hump in the runner, causing her to lose her balance and fall, sufficiently identified cause of fall. Mandel v 340 Owners Corp.


Premises Liab   Slip/Trip   Workers Comp Defense   Premature Motion  

Second Department

Corporation that owned building where plaintiff slipped in dental office where she worked granted summary judgment on proof employers were shareholders/officers of corporation and entitled to workers compensation exclusivity defense. Plaintiff failed to show what information exclusively within defendants’ possession was necessary to oppose motion. Ragusin v Gabrielli

IF YOU MUST READ
(3 summaries)
MUST READS NOTEWORTHY

Notice  

Second Department

Village granted summary judgment where tree fell on plaintiff’s car while driving on Village Road on proof village did not have actual or constructive notice of the dangerous condition. The Court does not give the details of the proofs. Pozzani v Village of S. Blooming Grove


MVA   Rear End   Respondeat Superior   Vicarious Liab  

Second Department

Plaintiff raised an issue on whether driver of car that rear ended her was acting in the scope of or in furtherance of employer’s business in opposition to employer’s prima facie showing of entitlement to summary judgment. The Court does not get the details of the proofs. Pipitone v Pititto


MVA   Premature Motion  

Second Department

One defendant’s motion for summary judgment made before discovery denied on proof suggesting discovery might lead relevant evidence establishing that defendant’s involvement in the accident. The Court does not give the details of the proofs. Cantor-Sanchez v Gonzalez-Socarras

About Matt McMahon

Civil trials and appeals since 1984
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