Med Mal Accepted Practice Causation Expert Aff Conclusory Speculation
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
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Med Mal Negligent Supervision Accepted Practice Agent Independant Contractor Vicarious Liab Conclusory Expert Aff
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
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Med Mal Question of Fact Expert Aff
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
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Highway Design Qualified Immunity Expert Aff Court of Claims
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
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Med Mal Accepted Practice Causation Expert Aff Speculation
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
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Labor Law §240 Labor Law §200 Ladder Control
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.
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Premises Liab Elevator Create Condition Notice 3rd Party Contractor Espinal Res Ipsa Loquitor Control Untimely Prejudice
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.
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Med Mal Res Ipsa Loquitor
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
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Labor Law §241 Industrial Code Indemnity Attorney Fees
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
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Med Mal Accepted Practice Causation Question of Fact Expert Aff
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
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Premises Liab Out of Possession Question of Fact Causation
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.
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Premises Liab Workers Comp Defense Control
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
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Med Mal Informed Consent Accepted Practice Causation Preexisting Degenerative Expert Aff Conclusory Speculation
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
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Venue
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.
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Premises Liab Assault Battery Control Notice Foreseeability
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.
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Dram Shop Spoliation
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
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Med Mal Accepted Practice Causation Expert Aff
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
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Assumption of Risk Question of Fact
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
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Question of Fact Causation Expert Aff
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
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Premises Liab Slip/Trip Last Inspection Unknown Cause
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.
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Premises Liab Slip/Trip Workers Comp Defense Premature Motion
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
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