December 21, 2021 | Vol. 292

(6 summaries)

Public Health §2801-d   Malpractice   Motion to Dismiss  

Second Department
Defendants’ motion to dismiss PHL §2801-d claim granted where plaintiff conceded they operated “assisted living” facility under PHL Art. 46-B and not a residential care facility under PHL Art. 28. Managing medications, helping residents dress and eat, and visits by doctors and nurses insufficient to justify plaintiff’s argument facility was de facto residential care facility. Defendants’ motion to dismiss remaining claims on documentary evidence denied as affidavit they relied on was not “documentary evidence” under CPLR §3211(a)(1) and did not conclusively eliminate all questions of fact. Broderick v Amber Ct. Assisted Living    

Malpractice   Spoliation   Notice to Admit   Preclusion   Admissibility   Hearsay  

First Department
Plaintiff denied spoliation sanction where she failed to show quality check logs for sterilization equipment destroyed by fire would have supported malpractice claim as those records would only show sterilization machines were working and not what or how specific equipment was sterilized. Defendants granted protective order striking plaintiff’s Notice to Admit ‘genuineness’ of full prescribing information for Vancocin as she could not reasonably believe there was no substantial dispute over its admissibility and the Notice to Admit was an apparent attempt to admit hearsay. Marchese v Aston    

Malpractice   Informed Consent   Accepted Practice   Duty   Experts   Respondeat Superior  

Second Department
Plaintiff’s expert raised issue of whether orthopedic surgeon and practice departed from accepted practice by changing recommendation from laminectomy to X-Stop implant on date of surgery on opinion recommendation was based on incomplete/incorrect understanding of plaintiff’s condition without an MRI of lumbar spine in flexion to confirm required criteria of relief in that position, and delays in appropriate post-operative care and recommendations. Plaintiff failed to raise issue on departure in how procedure was performed.

Surgeon failed to show informed consent where he testified he explained benefits but did not testify he explained risks of X-Stop procedure or that plaintiff assured him he wanted the procedure regardless of the risks or didn’t want to be told the risks. Deferring to the doctor’s opinion is not an assurance the patient wants the procedure regardless of risk or does not want to know the risks.

Hospital granted summary judgment on proof surgeon was not its employee, surgeon directed hospital staff, and surgeon’s orders to staff were not “clearly contradicted by normal practice.” Mirshah v Obedian    

Malpractice   Informed Consent   Wrongful Death   Amend Complaint   Motion to Dismiss   Service   CPLR §306-b   Statute of Limitations   Law of the Case  

First Department
Plaintiff’s motion to extend time to serve amended Complaint that substituted name of anesthesiologist for “John Doe” was granted after statutes of limitations for all claims expired, plaintiff served anesthesiologist within the 60-day extension, but the anesthesiologist’s subsequent motion to dismiss granted where plaintiff failed to make diligent efforts to obtain anesthesiologist’s name before statutes of limitations expired as required by CPLR §1024 and there were no claims that could be revived by a CPLR §306-b extension. Grant of extension was not law of the case where plaintiff did not provide entire chronology in his motion. Chen v New York Hosp. Med. Ctr. of Queens    

Comment: Statutes of limitations had been extended due to decedent’s incapacity until time of his death.

False Arrest   False Imprisonment   Malicious Prosecution   1983 Action   Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice   Collateral Estoppel   NYC  

First Department
On motion to serve late Notice of Claim, NYPD and prosecution were presumed to have actual knowledge of petitioner’s claims of false arrest, false imprisonment, and malicious prosecution, and were precluded from contesting actual knowledge, where their employees made the arrest and initiated the prosecution based on an allegedly false warrant obtained on false representation and could not be prejudiced where their participation in the tortious acts was the crux of the allegations and they possessed all relevant documents, including numerous motions prior to dismissal of charges against the petitioner. Petitioner’s excuse, though debatable, was sufficient for the motion. Defendants not prejudiced by sealing of criminal charges as long as petitioner provides authorization under CPLR § 160.50(1)(d). There was 1 dissent. Matter of Orozco v City of New York    


Second Department
Defendant’s motion to change venue from Queens to Nassau County on its affidavit that its principal place of business was in Nassau County where accident occurred and plaintiff resided denied as the certificate of incorporation is the only document to determine a corporation’s residence for venue purposes and defendant failed to submit a certificate of incorporation showing Nassau County as its residence. Plaintiff submitted certificate of incorporation showing Queens as the defendant’s county of residence. Green v Duga    

(18 summaries)

Malpractice   Accepted Practice   Duty  

Second Department
Pulmonologist who twice cleared decedent for bariatric surgery after conducting several examinations and pulmonary tests and recommending medication to optimize her pulmonary functioning for surgery/intermediate post-surgical period granted summary judgment where decedent went through surgery/immediate post-surgical period without complications, never saw defendant-pulmonologist again, returned to care of her internist for asthma treatment, and died of an asthma attack 10-months after last seeing defendant-pulmonologist who had no duty to provide her primary care physician with results of his testing or apprize her of severity of her asthma. Cooper v City of New York    

Premises Liab   Governmental Function  

First Department
Port Authority’s motion to dismiss case where decedent jumped from GWB on grounds it was acting in a governmental function denied as both First and Second Departments have found maintaining guardrail on the GWB is a proprietary function. Lomtevas v City of New York    

Serious Injury   ROM   Causation   Experts   NYC  

First Department
NYC failed to show plaintiff’s injuries were not caused by accident where their orthopedist opined they were causally related even though emergency room record showed minimal treatment and their radiologist and engineer found no causation. NYC met burden of showing injuries were not permanent on orthopedist’s and neurologist’s finding of no significant abnormalities and plaintiff stopped treatment at 6-months despite having private insurance. Mild reduction of ROM did not undermine experts’ opinions. Plaintiff raised issue in opposition by MRIs showing HNP and bulging discs shortly after accident and doctor’s findings of significant loss of ROM within 2-months and more than 3-years after accident. Plaintiff continued to do home exercises as instructed when no-fault stopped covering PT, explaining cessation of treatment. Velazquez v City of New York    

Labor Law §241   Labor Law §200   Premises Liab   1-2 Family Exception   Control   Industrial Code   Notice  

Second Department
Painter’s testimony that one of the defendant-homeowners directed him to use lacquer thinner instead of sanding to remove paint from kitchen island to reduce dust, submitted by defendants, left questions of whether homeowners directed/controlled means/methods of plaintiff’s work, failing to show applicability of homeowner exception of Labor Law §241(6) when fumes from chemicals exploded. Conflicting testimony only left questions to be resolved by a jury.

Homeowners did not meet burden for summary judgment on Labor Law §200 and negligence claims where plaintiff alleged both a dangerous condition and means/methods of work without proof they lacked actual knowledge of dangerous wiring that ignited fumes and did not control means/methods of plaintiff’s work. Venter v Cherkasky    

Malpractice   Accepted Practice   Causation   Experts  

First Department
Hospital and doctors denied summary judgment where plaintiff’s expert raised issues on opinion of departures by inadequately monitoring and adjusting decedent’s hypertonic saline 2-days after they started weaning him from it and fact it continued to drop after adjustments made observations of physical/mental condition unreliable to rule out dropping sodium levels. Plaintiff’s expert raised issues on opinion that delay in giving mannitol and surgically relieving cranial pressure departed from accepted practice and defendants’ claim they could not have done so earlier because of family’s wishes rejected without evidence they delayed to consult with the family, the record shows emergency measures were required, and defendants’ expert did not opine defendants were required to obtain consent under those circumstances. Issues remained on causation where experts disagreed on whether increased intracranial pressure resulted from a seizure or low sodium levels defendant failed to correct. Lassala v Russell    

Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice  

First Department
Plaintiff’s motion for leave to file late Notice of Claim denied where plaintiff failed to show NYCTA had actual knowledge of claim within 90-days or a reasonable time thereafter, give a reasonable excuse, or meet its initial burden of showing NYCTA would not be prejudiced by the delay. NYPD report did not show actual knowledge to NYCTA as it is a separate entity and report doesn’t detail what was said to NYCTA employees. Alexander v New York City Tr. Auth.    

Premises Liab   Wet Floor   Notice  

Second Department
Costco made out entitlement to summary judgment where customer slipped on large painted area outside store on proof it did not have notice paint could become slippery when wet but plaintiff raised issue by “application bulletin” for marking paint used, attached to co-defendant’s expert’s report, acknowledging the danger and stating it should not be used “to paint large areas subject to pedestrian traffic.” Westbay v Costco Wholesale Corp.    

Malpractice   Notice of Claim   Duty   Accepted Practice  

First Department
Subsequent firm that discovered initial attorney failed to file Notice of Claim and terminated representation with clear, lay language advising plaintiff of urgent need to retain new counsel to move for leave to file late Notice of Claim before statute of limitations granted summary judgment dismissing third-party action by initial attorney as it exercised reasonable skill and knowledge in providing legal counsel to plaintiff and it owed no duty to plaintiff or the initial attorney to make a motion for leave to file a late Notice of Claim after it terminated representation. Buxton v Zukoff    

Labor Law §240   Labor Law §241   Labor Law §200   Motion to Dismiss   Industrial Code   Control  

Second Department
Contractors granted summary judgment of Labor Law §240(1) claime and property owners’ motion to dismiss §240 claim granted where plaintiff’s dump truck with 60,000 lbs. of gravel for annual resurfacing of parking lot tipped over as driver was not engaged in §240enumerated activity and was not exposed to an elevated risk.

Contractor who directed driver to area to dump gravel failed to show resurfacing parking lot was not ‘construction, excavation, or demolition work’ under Labor Law §241(6), that it lacked authority to control means/methods of plaintiff’s work, and that it did not create the dangerous condition for Labor Law §200, and negligence claims. Contractor who guided driver to spot failed to show it lacked authority to control means/methods of plaintiff’s work for Labor Law §§241(6), 200 and negligence claims.

Owners failed to show industrial code §§23-1.22(b)(1) and (c)(1) and 12 NYCRR 23-1.32 were not sufficiently specific on motion to dismiss Labor Law §241(6) claim or that allegations in Complaint did not set forth causes of action for §200 and negligence. Seem v Premier Camp Co., LLC    

Emotional Harm   Respondeat Superior  

Second Department
Movie theater whose manager used extendable baton to eject unruly group including plaintiff and later pointed a pellet gun at them when they returned to front of theater denied summary judgment as manager acted in capacity of a security guard to maintain order for the theater’s patrons and it failed to show manager’s actions were solely personal and not to protect the interests of the theater owner under respondeat superior. Mall owner granted summary judgment on proof it did not employ manager. Norwood v Simon Prop. Group, Inc.    

Premises Liab   Amend BP   Note of Issue   Untimely   Reasonable Excuse  

First Department
Hospital met burden for summary judgment on defective/hazardous condition claim on proof plaintiff abandoned that claim. Plaintiff’s supplemental BP did not raise issue where it was in fact an amended BP raising a new theory of malpractice and a nullity when served post Note of Issue, in response to defendant’s motion, and without leave of court. Plaintiff’s motion to amend BP denied where she offered no proof of a reasonable excuse for waiting 3-years after action started and 6-months after Note of Issue to make motion. Stovall v Lenox Hill Hosp.    

Premises Liab   Sidewalk   Amend Answer   Note of Issue   Untimely   Prejudice   Create Condition   Indemnity  

First Department
Building owner’s motion to amend Answer to include indemnity claim against tenant, brought 3-years after tenant was added as a direct defendant and 6-month after Note of Issue, denied for laches as tenant was prejudiced by the delay in defending case on assumption only claim against it was by plaintiff, forgoing opportunity to keep subtenant whom it may have a viable claim against in action. Tenant granted summary judgment of plaintiff’s claim on proof owner had sole responsibility to maintain sidewalk and tenant did not create the condition. Owner denied summary judgment of indemnity claim where there was no proof subtenant was negligent and indemnity agreement only covered subtenant’s negligence. Crimlis v City of New York    

Dogbite   Governmental Function   Special Duty  

Second Department
Town which issued dog licenses was required by statute to maintain a dog shelter making it a governmental function and precluding liability absent assumption of a special duty. Town granted summary judgment where plaintiff was bitten by a Siberian Husky she went to see about adopting and proof it did not assume a special duty to plaintiff or affirmatively place her in harm’s way. Zozzaro v Town of Hempstead    

Discovery   IME/DME   NYC  

First Department
Lower court erred in requiring new IME/DME be conducted by same doctor who conducted initial IME/DME where that doctor’s license was altered to prohibit him from conducting IMEs. Rodriguez v City of New York    

Comment: Court noted that suspension of a doctor’s license is not grounds for a new examination.

Labor Law §241   Stairs   Snow/Ice   Industrial Code   Question of Fact   NYC  

First Department
Photograph showing snow/ice on narrow staircase to construction trailer plaintiff, subcontractor’s foreman, slipped and fell from while trying to enter trailer to review construction documents left questions of whether the staircase was a walkway or passageway under industrial code §23-1.7(d) and whether he was engaged in a construction related activity at the time of his fall. Karandisecky v City of New York    

Highway Design   Notice   Experts   Admissibility   NYC  

First Department
NYC granted summary judgment on proof it adequately designed, constructed, and maintained road and median mall with barrier where plaintiff tripped in a reasonably safe matter and did not have notice of the defect. Plaintiff’s expert’s opinion failed to raise an issue where unsupported by published standards or generally accepted industry standards and plaintiff’s photographs of lighting conditions inadmissible where he did not attest they were of involved area, he denied having any photographs at deposition, and witness wasn’t sure photographs were of same intersection. Warshak v City of New York    

False Arrest   Malicious Prosecution   Battery   1983 Action   Probable Cause   Notice   NYC  

First Department
Probable cause for arrest based on eyewitness identifications was complete defense to state and federal claims of false arrest and imprisonment and where there was no proof prosecution became aware it could not prove charges before they were brought, probable cause was a defense to state and federal claims of malicious prosecution. Excessive force claim dismissed where plaintiff claimed persons other than the police assaulted him as a sex offender after police deliberately delayed their response as there was no proof police deliberately delayed their response or knew plaintiff was being assaulted. Lack of proof of delay or that any delay was part of an official policy required dismissal of negligent training and 1983 claims. Mackenzie v Victor    

MVA   Rear End   Nonnegligent Explanation  

First Department
Plaintiff granted summary judgment on proof he was rear ended while stopped at intersection and defendants’ claim plaintiff stopped short did not raise an issue as drivers are required to maintain a safe distance behind other vehicles. Earl v Hill    

(1 summaries)

MVA   Renew  

First Department
Defendants’ motion to renew denial of their summary judgment motion denied as “new facts” were immaterial and would not change the result. The Court does not give the details of the proofs. Casillas-Reyes v John    

About Matt McMahon

Civil trials and appeals since 1984. Retired partner McMahon | McCarthy.
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