December 17, 2019 | Vol. 189


MUST READS
(8 summaries)
NOTEWORTHYIF YOU MUST READ





False Arrest   Malicious Prosecution   Vacate Jud   Preclusion   Discovery   Prejudice   Jury Charge   NYC  

First Department
Trial court improvidently precluded witness who identified plaintiff as person fleeing scene to police where defendants provided witness’ name and last known address 4-years before trial, could not provide updated address because witness refused to provide it to defendants, was not responsible for witness’ refusal to speak with plaintiff’s attorney, and plaintiff’s counsel did not attempt to speak with witnesses until 2-months before trial and never sought nonparty EBT during discovery. Defendant offered to have witness confirm she was refusing to provide her address or speak with plaintiff’s attorney under oath but court instead allowed plaintiff’s attorney to cross examine defense attorney and precluded witness when defense attorney refused to participate in hearing. Since witness was crucial to issue of probable cause, only relevant issue in false arrest and malicious prosecution case where guilt/innocence is not relevant, abuse of discretion was not harmless and required new trial before a different judge.

Question of wrongful stop on verdict sheet was error where court did not instruct jury on “reasonable suspicion” standard for stop versus “probable cause” standard for arrest. Jury was clearly confused as shown by note requesting clarification of the issue. Onilude v City of New York



Med Mal   Privilege  

Second Department
Primary care physician’s motion for summary judgment denied where he disclosed medical records provided by his patient to her employer after examination that he had told her was to benefit her and employer regarding her physical fitness to perform her job given respiratory symptoms. Under CPLR 4504(a) the examination was conducted at least in part for the benefit of the patient according to doctor’s testimony establishing a physician/patient relationship and leaving a question of fact if the records she provided to the doctor were solely for the benefit of the employer or partially for her care and treatment. Defendants failed to show they owed only the limited duty of not doing any harm afforded to physician who sees individual solely for purposes of an examination for a third-party. Razzano v Goldman


Premises Liab   Out of Possession  

Court of Appeals
Building owner did not fit within exception to Putnam v Stout exception to rule that out of possession owner can only be liable for nonstructural defects where it assumes a duty by contract or otherwise based on requirement that owner maintain premises in good repair in HUD contract for mortgage. Under contract with FHA, part of HUD, both owner and tenant were required to contribute to fund for structural repairs but only tenant could withdraw from the fund and tenant made all repairs, including to the roof that leaked causing the pool of water plaintiff slipped on. There was 1-dissent. Henry v Hamilton Equities, Inc.

Comment: Decided on 10/24/2019 but inadvertently left out of Vol. 182.

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

Court of Appeals
Denying defendants’ motion for summary judgment on claim they were out of possession owners with no responsibility to maintain sidewalk, the Court of Appeals clarified that administrative code §7-210 imposes a nondelegable duty on owners specified under the code and has no exception for out of possession owners. Xiang Fu He v Troon Mgt., Inc.

Comment: Decided on 10/24/2019 but inadvertently left out of Vol. 182.

Labor Law §240   Labor Law §241   Labor Law §200   1-2 Family Exception   Control  

Second Department
Owners of single-family house under construction are entitled to 1-2 family exception of Labor Law §§240(1) and 241(6) even where they do not hire a general contractor and where a construction manager volunteers it’s time as long as they do not control the injury producing work which in this case was performed by the employee of a subcontractor who fell using a 32′ ladder while installing gutters. Under both Labor Law §200 and common-law negligence, homeowners cannot be responsible for injuries resulting from means and methods of work where they do not control the actual work performed. Lazo v Ricci


Med Mal   Duty   Accepted Practice   Expert Aff  

First Department
Defendants made out prima facie entitlement to summary judgment by expert opinions, medical records, and depositions showing they did not depart from accepted practice but plaintiff raised issues of fact by experts’ affirmations that 2-week delay from original diagnosis of stroke in ordering trans-esophageal echocardiogram (TEE) and anti-coagulant therapy departed from accepted practice and that defendant-neurologist who referred plaintiff to defendant-orthopedist retained duty to manage her condition including making sure a timely TEE test was done and anticoagulant therapy started under the “joint action in diagnosis or treatment” doctrine. Lin v Yi Xie


Med Mal   Respondeat Superior   Negligent Hiring   Severance   Admissibility   Prejudice  

Second Department
Doctor’s motion to sever causes of action against medical group for negligent hiring, retention, training, and respondeat superior in action where plaintiff claimed doctor inappropriately touched her during examination and had done the same to another patient 2-years earlier granted to the extent of severing the negligent hiring, retention, and training courses of action but not the respondeat superior cause of action. Prior incident is inadmissible attempt to prove defendant’s inappropriate touching by “propensity” to touch patients and would be highly prejudicial. Nor does it fit under the “common scheme or plan” exception where there was no common ultimate goal. Mullen v Wishner


Med Mal   Set Aside Verdict   Admissibility  

Second Department
It was not error to allow orthopedic surgeon’s testimony of his habit in performing surgery where the procedure was deliberate and did not deviate from patient to patient and plaintiff was not deprived of a fair trial. Motion to set aside judgment on defense verdict denied. Heubish v Baez

NOTEWORTHY
(29 summaries)
MUST READSIF YOU MUST READ

Med Mal   Set Aside Verdict   Directed Verdict   Question of Fact  

Second Department
Defense verdict could be reached on reasonable interpretation of evidence, including competing expert opinions, where neurology group’s failure to order additional tests based on nurse practitioner’s assessment that patient suffered from Central Pontine Myelinolysis from symptoms consistent with that diagnosis and they did not conduct additional tests to rule out the rarer condition of cauda equina syndrome until examined by the neurologist 1-day later when a lumbar MRI was ordered and plaintiff was immediately transferred to a hospital better equipped to provide surgery necessary for this condition. Plaintiff’s failure to move for directed verdict at trial precluded raising the issue on appeal. Houston v Koszer


Premises Liab   Fireman Rule   GML §205-a   Notice   Notice   Last Inspection   Unknown Cause  

First Department
Building owner failed to make out prima facie entitlement to summary judgment where firefighter fell backwards on debris on roof while fighting fire on resident manager’s testimony of general cleaning principles without evidence of last time roof was inspected or cleaned leaving question of constructive notice for common-law negligence not barred by Fireman’s Rule under Gen. Obl. Law §11-106 since defendant was not a municipality and GML §205-a. Question of fact on causation existed where firefighter testified he initially did not know what caused him to fall but later consistently testified it was debris on roof. Schiavone v Seaman Arms, LLC


Labor Law §240   Labor Law §241  

Second Department
Removal of stacked discarded railroad ties from train station was not protected activity under Labor Law §§240(1) and 241(6), one of which fell from the stack and struck plaintiff, but was routine maintenance of component parts that required replacement in the normal course of wear and tear. There was no proof that work was part of a larger project protected by Labor Law. Lopipero v MTA Long Is. Rail Rd.


Med Mal   Accepted Practice   Expert Aff  

First Department
Defendants’ proof that plaintiff’s skin was not damaged during removal of kidney and expert opinion that it would have been damaged if plaintiff was affixed to table before it was flexed was sufficient to show that they did not depart from accepted practice. Plaintiff’s expert did not dispute that skin would had to have been damaged if patient was affixed to table before it was flexed and there was no evidence that skin was damaged. Operative report listing procedures clearly out of order did not raise issue of fact. Davis v Taneja


Premises Liab   Elevator   Dangerous Condition   Foreseeability   Causation   3rd Party Contractor   Espinal  

First Department
Motions for summary judgment by building owner and manager and plaintiff’s cross motion for summary judgment denied when plaintiff fell down elevator shaft while moving into apartment. 1968 NYC building code §27-987 and Multiple Dwelling Law §78 not sufficiently specific for negligence per se, violation of 1968 building code §3010 is only some evidence of negligence. Issues of fact remained on whether allowing elevator to operate without door rollers, link arms, or a location indicator, allowing decedent to use elevator unsupervised, and moving elevator while the decedent was using it without notifying him it had been moved was negligent. Causation issues remained on whether super knew decedent was an elevator mechanic and had a slim jim or was provided one by building to override system, and whether building employees told decedent elevator would be where he left it. Plaintiff’s expert’s opinions were not conclusory or speculative but did not eliminate all questions of fact.

Plaintiff’s untimely cross motion properly considered because it addressed same issue as defendant’s timely motion.

Elevator maintenance contractor granted summary judgment as it owed no duty to decedent who was not a party to its contract and its contract did not displace building’s duty to maintain elevator. It fulfilled its maintenance duties including recommending repair of the elevator deficiencies, which did not require that the elevator be shut down. Elevator inspection company granted summary judgment where it fulfilled its inspection duties including noting the deficiencies of the elevator which did not require that the elevator be shut down. Baez v 1749 Grand Concourse LLC



Premises Liab   Elevator   3rd Party Contractor   Espinal  

First Department
Building owner’s and third-party building manager’s motions for summary judgment denied where building manager failed to show its contract did not displace building owner’s obligation to maintain premises in safe condition, alleged in the complaint and BP, under Espinal and question of fact remained on whether building superintendent, paid and supervised by building management company, instructed plaintiff to go into elevator pit and allowed elevator to remain in service despite knowing it was in disrepair and tampered with. Elevator maintenance company granted summary judgment where it was required to inspect and make repairs to only portions of the elevator and it did not launch an instrumentality of arm under Espinal. Ileiwat v PS Marcato El. Co., Inc.


Premises Liab   Negligent Supervision   Create Condition   Notice   Causation  

Second Department
Plaintiff raised issue of fact of whether school created or had notice of dangerous condition of hand dryer in girls’ bathroom were infant-plaintiff’s hair got caught in gap between dryer and wall. The court does not give the details of the proofs. School granted summary judgment on negligent supervision where accident happened so fast that no degree of supervision could have prevented it. G. A. v Garden City Union Free Sch. Dist.


Labor Law §240   Labor Law §241   Falling Object  

First Department
Plaintiff granted summary judgment on Labor Law §240(1) where exterior sheet rock panel being worked on 1-floor above exterior platform plaintiff was removing during construction fell and struck him and defendants’ motion for summary judgment on Labor Law §241(6) denied on question of fact of whether area was “normally exposed to falling materials or objects” under industrial code §23-1.7(a)(1). Garcia v SMJ 210 W. 18 LLC


Indemnity   Duty   Motion to Dismiss  

Second Department
In dismissing healthcare facility’s third-party complaint against executrix, daughter of decedent, for failure to follow discharge instructions the Second Department noted that for indemnification the duty must exist between proposed indemnitor (daughter) and proposed indemnitee (healthcare facility) and there is no duty of a child to supervise an adult parent. Even if the daughter had assumed a duty, it was solely to her mother and the healthcare facility was not being held vicariously liable for any acts of the daughter. The daughter had no duty to come to the aid of her mother and mere inaction could not have increased the healthcare facility’s damages nor was there any duty to the public at large as failure to come to her mother’s aid did not launch an instrumentality of harm. Santoro v Poughkeepsie Crossings, LLC


Premises Liab   Out of Possession   Duty  

Second Department
Out of possession owner granted summary judgment where plaintiff slipped and fell from worn tread nosing on single step riser as plaintiff did not allege statutory violation in Complaint and defect was not structural. Violation of building code raised for the first time in affirmation in opposition, not alleged in Complaint or BP, did not raise an issue of fact. Michaele v Steph-Leigh Assoc., LLC


Med Mal   Accepted Practice   Expert Aff  

First Department
Plaintiff’s expert’s opinion that defendants deviated from accepted practice did not raise an issue of fact in opposition to defendants’ motion for summary judgment where they lacked factual basis in the records. A.P. v Stolar


Labor Law §240   Labor Law §241   Ladder   Expert Aff   Conclusory   Speculation  

First Department
Worker granted summary judgment on Labor Law §§240(1) and 241(6) on his testimony that he slipped and fell from wobbly wet ladder supported by foreman’s affidavit. Defendants’ experts’ affidavits failed to raise issue of fact with conclusory statements that injuries were consistent with fall to concrete from 20′, constituting only speculation. Brown v 43-25 Hunter, L.L.C.


Labor Law §200   Control  

Second Department
Defendants granted summary judgment on proof that cap on hot water plumbing fixture that exploded when plaintiff, plumber’s assistant, grabbed it even though he was only instructed by his supervisor to replace a drain as part of plumbing subcontractor’s work. Explosion and hot water burns were result of means and methods of subcontractor’s work and not a dangerous condition of the premises and defendants had no authority to supervise or control the work being performed. Pchelka v Southcroft, LLC


MVA   Admission   Comparative Fault   Speculation   Premature Motion  

Second Department
Defendant-driver’s admission in certified police report that he did not see plaintiff’s vehicle until impact supported plaintiff’s motion for summary judgment as proof of defendant’s failure to yield the right-of-way at intersection where defendant had a stop sign, even where defendant claimed he stopped at the stop sign. Defense counsel’s arguments that plaintiff may have been speeding or failed to take evasive action were speculation insufficient to raise issue of fact. Plaintiff not required to show freedom from comparative fault and defendants failed to show that motion was premature where discovery they claimed was necessary would only go to issue of comparative fault. Ashby v Estate of Encarnacion


Vacate Default   Reasonable Excuse   Preclusion  

First Department
Plaintiff’s motion to vacate default in opposing motion to preclude him from giving testimony at trial or provide an affidavit in opposition to a motion denied where his excuse that attorney could not contact him because he changed his cell phone was not a reasonable excuse and it was not necessary to consider if he raised a meritorious action. Higgs v Williams


MVA   There to be Seen   Comparative Fault   Question of Fact   NYC  

Second Department
Driver who testified sanitation truck entered intersection against red light granted summary judgment where truck driver testified he did not see plaintiffs’ vehicle until impact demonstrating that he did not see what was there to be seen using ordinary senses. Plaintiff was not required to show freedom from comparative fault and defendants’ claim that passenger in vehicle was driver did not raise issue of fact since it did not dispute truck driver’s failure to see what was there to be seen. Robinson v City of New York


Premises Liab   Slip/Trip   Sidewalk   § 7-210   Sidewalk   1-2 Family Exception   Question of Fact  

First Department
Abutting landowner met burden for summary judgment under administrative code §7-210 on proof it was owner occupied 1-3 family home, they did not make a special use of sidewalk, and did not create or have notice of the defect but plaintiff raised issue of fact in opposition by photographs showing a patch on the sidewalk and NYC records showing that NYC had not made any repairs to the sidewalk. Defendants’ denials raised issues of credibility to be decided by a jury. Rizzo v City of New York


Premises Liab   Sidewalk   Prior Written Notice   Create Condition  

Second Department
Town granted summary judgment on proof it did not have prior written notice of defect on sidewalk plaintiff slipped/tripped on where allegation in Complaint was that town failed to repair or resurface sidewalk and town’s proof it did not repair or maintain sidewalk for 5-years before accident because it had no complaints of condition and, therefore, could not have created an immediately dangerous condition. Murphy v Brown


MVA   Conflict of Law   Statute of Limitations  

Second Department
Defendants, New York residents involved in MVA with plaintiff, a Pennsylvania resident, in Pennsylvania granted summary judgment upon finding that action was commenced within New York’s 3-year statute of limitations but not Pennsylvania’s 2-year statute of limitations. Under CPLR 202, action must be commenced within applicable statute of limitations for both jurisdictions. Pennsylvania’s tolling provision applied under which defendants who remained absent from the jurisdiction for 4-months but could be served other than by personal service did not apply to toll statute of limitations. Ludwig v Van Horn


Discovery   HIPAA  

First Department
Defendants’ motion to compel plaintiff to provide unrestricted medical authorizations granted only to require him to provide authorization for hernia repair records from date of hernia injury where medical reports from back surgeries resulting from accident stated that procedures were complicated by prior hernia and otherwise denied consistent with First Department’s rejection of broad requests for authorizations for prior medical records. Abrew v Triple C Props., LLC


Premises Liab   Sidewalk   Duty  

Second Department
Defendant granted summary judgment of plaintiff’s claim that he was injured when sidewalk vault doors were pushed up as he stepped on them on proof that co-defendant, adjacent property owner, owned and operated the sidewalk vault doors at time of plaintiff’s accident. Without ownership, operation or control defendant had no duty to plaintiff. Greenbaum v Bare Meats, Inc.


Legal Mal   Statute of Limitations  

First Department
Law firm granted summary judgment where they withdrew Social Security appeal without client’s consent after client had terminated relationship as barred by 3-year statute of limitations and plaintiff’s argument that statute of limitations did not start to accrue until a second SS appeal was granted was rejected as it accrued on date of malpractice. Remaining causes of action dismissed. Jemima O. v Schwartzapfel, P.C.


Battery   Vacate Default   Reasonable Excuse   Meritorious Action  

Second Department
Taxi driver’s motion to renew prior motion to vacate default in opposing defendant-passenger’s motion for summary judgment in battery case denied where new facts alleged by counsel clarified some procedural issues but failed to show a reasonable excuse for not submitting opposition timely or submitting plaintiff’s affidavit of merit. Singh v Weisberg


Emotional Harm   False Arrest   Malicious Prosecution  

First Department
The Gap’s motion for summary judgment granted where plaintiff could not show extreme/outrageous conduct, a necessary element of negligent infliction of emotional harm, and where police and prosecutor were free to exercise their own judgment based on information provided by civilian. Holmes v City of New York


Legal Mal   False Arrest   Malicious Prosecution   1983 Action   Probable Cause   Statute of Limitations  

First Department
Defendants granted summary judgment where plaintiff was unable to show he would have prevailed in underlying false arrest, malicious prosecution, and 1983 action where it had been previously determined that police had probable cause, a complete defense to the causes of action even if action was filed timely. Magassouba v Purcigliotti


Malicious Prosecution   Probable Cause   Police   NYC  

First Department
Defendants granted summary judgment on malicious prosecution claim where police observations provided probable cause for arrest which is complete defense to malicious prosecution claim even where charges are later dismissed. Plaintiff also failed to show actual malice. Taylor v City of New York


MVA   Rear End   Nonnegligent Explanation  

First Department
Defendant granted summary judgment where she was stopped in traffic because car in front of her was stopped when she was struck in the rear providing a nonnegligent explanation for rear end collision. Rodriguez v Sharma


Serious Injury   ROM   Expert Aff  

Second Department
Defendants failed to meet burden for summary judgment on serious injury where at least one of their examining doctors found significant limitations of ROM in lumbar spine and failed to establish that the injury was not caused by the accident. Weiss v Durso


Serious Injury   BP  

Second Department
Defendants failed to meet their burden for summary judgment on serious injury by not addressing 90/180-day category alleged in BP. Cubero v Venditti

IF YOU MUST READ
(3 summaries)
MUST READSNOTEWORTHY

MVA   Serious Injury   Set Aside Verdict  

Second Department
Plaintiff’s motion to set aside judgment on verdict finding he did not sustain a serious injury in MVA denied. The court does not give the details of the proofs. Claim that trial court should have instructed on 90/180-day category not preserved for appeal. Tuccillo v Hempstead


Stay Arb   Uninsured   Vacate Default   Reasonable Excuse   Meritorious Action  

First Department
Motion to vacate order granting permanent stay of uninsured arbitration on default denied where plaintiff failed to show proof of reasonable excuse, including proof that he was scheduled to work on date of second hearing, and meritorious action where he failed to show that he was related to insured and that insured lived in the same household at the time of the accident. Matter of Progressive Specialty Ins. Co. v Tapia


Serious Injury  

Second Department
Defendants met burden for summary judgment on competent medical evidence that shoulder injury was not caused by accident and plaintiff failed to raise issue of fact on causation and neither her nor her physician explained gaps in treatment. The court does not give the details of the proofs. Hwang v Ilgar

About Matt McMahon

Civil trials and appeals since 1984
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