December 28, 2021 | Vol. 293

(3 summaries)

Malpractice   Discovery   Privilege  

Second Department
Defendants failed to meet their burden of showing statements made at quality-assurance review meeting were protected by privilege afforded under Education Law § 6527(3) and Public Health Law § 2805-m(2) where declarants were unidentified as it could not be determined if they fit within ”party-statement exception” to both laws which do not protect persons whose conduct is under review. Defendants’ claim the unidentified statements were made by non-parties was insufficient to meet their burden and would encourage hospitals and medical providers to never identify declarants.

Defendants were entitled to protective order from disclosing references to corrective actions to be taken and any statements identified as by non-parties during the review. Siegel v Snyder    

MVA   Train   Vacate Jud   Jury Charge   Speculation   Comparative Fault  

Second Department
Trial court did not err in modifying PJI 2:176 open-run defense charge that a train engineer is not required immediately to stop train on seeing someone on track but can assume the person will see/hear the train and get out of the way by removing the phrase “in broad daylight.” Evaluating the long history of the jury charge, the Court found the operative concept was the person’s ability to see/hear the train and the powerful train headlights made the train as visible, if not more visible, than it would be in daylight.

The engineer triggered an emergency stop on first sight of plaintiff. Since plaintiff did not ask jury to find the engineer delayed stopping the train after seeing him on the tracks, it would be speculative to assume the modified charge influenced the verdict. The Court also considered the jury’s finding plaintiff 100% at fault and the sole cause of the accident in affirming the judgment even though these questions were not to be answered once L.I.R.R. was found not negligent. Kunnemeyer v Long Is. R.R.    

False Arrest   Malicious Prosecution   Emotional Harm   Statute of Limitations  

Second Department
Defendant who falsely accused plaintiff of raping her when she was a minor, later recanted the claim, plead guilty to filing a false claim, and was subsequently adjudicated a youthful offender granted summary on statute of limitations where intentional tort claims of false arrest, malicious prosecution, intentional infliction of emotional harm, defamation, and abuse of process were brought 5-years after original incident and her adjudication as a youthful offender vacated her criminal conviction making the 7-year statute of limitation from a criminal conviction under CPLR §213-b inapplicable.

Plaintiff had commenced a suit within the 1-year statute of limitations but never properly served the then minor defendant despite an extension of time to serve and a motion to renew or for a further extension to serve 2-years later was denied without prejudice. Pitt v Feagles    

(10 summaries)

Negligent Supervision   Governmental Function   Governmental Immunity   Special Duty   Intervening Cause   NYC   Collateral Estoppel   Prejudice  

First Department
NYC BOE granted summary judgment acted in a governmental function protected by governmental immunity when its principal exercised discretion in approving a permit to operate an afterschool project where the infant-plaintiff was injured and plaintiffs failed to show a special duty. BOE could not be held responsible for negligently supervising the afterschool teachers as it had no duty to control the acts of third-parties. Case against NYC dismissed as abandoned and NYC is not responsible for torts of DOE which is a separate entity.

Claim DOE should be estopped from asserting governmental immunity where it litigated case without raising defense rejected without proof plaintiff justifiably relied on DOE’s conduct to its detriment. R.K. v City of New York    

Malpractice   Settlement   General Release  

Second Department
Plaintiff’s motion to set aside stipulation of settlement reached in open court, on the record, during trial denied where she failed to meet burden of showing it was “result of fraud, duress, or overreaching, or that its terms were unconscionable.” Settlements should not be set aside because they are improvident, favor one side, or a party had a change of heart. Osipova v Silverberg    

Labor Law §240   Labor Law §241   Labor Law §200   Waiver   Control   Spoliation   Discovery  

Second Department
Plaintiff’s appeal from order denying his motion for summary judgment on Labor Law §§240(1), 241(6), and 200 dismissed as abandoned where his brief did “not seek reversal or modification of any portion of that order.”

Defendants granted summary judgment of §240(1) claim as replacing ballast in light was routine maintenance of replacing worn-out component part not protected by §240 and not a repair, of §241(6) claim as work did not involve “construction, excavation, or demolition,” and routine maintenance is not protected by §241, and of §200 claim where defendants did not supervise, direct, or control the work.

Plaintiff denied spoliation sanction without proof inaccessible records in program were relevant to his claim as work order was not part of program but disclosed by other defendant. Teodoro v C.W. Brown, Inc.    

Comment: Plaintiff failed to show likelihood an EBT of a third witness of defendant whose records became inaccessible when it was sold would uncover relevant information where work was for a different defendant at time of accident. Teodoro v C.W. Brown, Inc..

Malpractice   Informed Consent   Accepted Practice   Causation   Experts   Speculation   Conclusory   Uncertified Records  

Second Department
Surgeon and practice who performed a cholecystectomy on plaintiff’s decedent after noticing a large stone in her gallbladder during splenectomy granted summary judgment where decedent was diagnosed with an E. coli surgical site infection 3-months later on their expert’s opinions which plaintiff conceded met their burden of showing no departures, any alleged departures were not a cause of decedent’s injuries, and lack of informed consent for gallbladder removal was not a cause of decedent’s injuries. By failing to address defendants’ expert’s opinions and relying on facts not in the record, plaintiff’s expert’s opinion was conclusory and speculative and failed to raise an issue.

Lower court correctly reviewed the uncertified medical records where plaintiff did not object to them or question their veracity and plaintiff’s expert relied on them. Arra v Kumar    

Motion to Dismiss   Workers Comp Defense   Alter Ego  

First Department
Defendant’s documentary evidence failed to conclusively establish it was an alter ego of plaintiff’s employer, instead raising only issues on alter ego where they were separate entities, formed for separate purposes, and moving defendant could borrow money without consulting with plaintiff’s employer, even if plaintiff’s employer was defendant’s sole shareholder. Colon v 251 Lexington I LLC    

Premises Liab   Recurring Condition   Notice   Duty  

Second Department
Landlord failed to meet burden for summary judgment where its super testified to 33-complaints of broken windows over the 2-years before a broken windowpane in injured-plaintiff’s apartment fell on her hand and that it was “normal” for windows in the building to break, leaving questions of whether landlord had a duty to inspect and constructive notice of a recurring dangerous condition. Butnik v Luna Park Hous. Corp.    

Comment: See companion decision below.

Construction Liab.   3rd Party Contractor   Espinal  

Second Department
Third-party contractor responsible for supervising renovation project met burden of showing it did not launch an instrumentality of harm that caused window in injured-plaintiff’s apartment to break and subsequently fall on her hand, the only Espinal exception pleaded, on proof it did not perform the exterior façade work that caused the condition. Plaintiff failed to raise an issue in opposition. Butnik v Luna Park Hous. Corp.    

Comment: See companion decision above.

Premises Liab   Duty  

Second Department
Restaurant granted summary judgment where plaintiff claimed restaurant turned off its lights making area dark and causing her to fall while stepping down from curb outside restaurant to parking lot on proof area where plaintiff fell was strip mall common area that restaurant had no duty to illuminate as it did not own, occupy, or make special use of the common area. Lease provision requiring restaurant to keep display windows and signs illuminated when strip mall was opened did not create a duty to third-parties. Montalvo v Texas Roadhouse Holdings, LLC    

Premises Liab   Create Condition   Notice   Last Inspection  

First Department
Landlord failed to meet burden for summary judgment where plaintiff fell on debris in hallway outside his apartment without proof of last time contractor working on apartment next to plaintiff’s worked or last time landlord’s employees cleaned/inspected the hallway floor. General cleaning provisions were insufficient to eliminate questions of constructive notice. Plaintiff’s failure to see debris before fall did not show it was unnoticeable where plaintiff testified he didn’t see it because he was looking at people he was approaching, not because it was not visible. Maria v Concourse Estate, LLC    

Discovery   Subsequent Repairs   Renew   Create Condition   Causation   Experts  

Second Department
Plaintiff’s motion for leave to renew its prior application to compel utility and contractor to turn over records of subsequent repairs at another property damaged by fire 24-days after the accident, where lower court had granted prior application only to post-accident repairs 10-days after the accident, properly denied where new facts would not have changed its determination.

Utility met burden of showing fire was not caused by a natural gas leak and contractor established it did not create the dangerous condition but plaintiffs raised issues in opposition by their expert’s competing opinions. The Court does not give the details of the proofs. Trinkle v Orange & Rockland Utils. Inc.    

(1 summaries)

Malpractice   Accepted Practice   Experts   Speculation  

First Department
Defendants granted summary judgment where plaintiff’s expert failed to raise any nonspeculative issue in opposition to defendants’ showing they did not depart from accepted practice. The Court does not give the details of the proofs. Echevarria v Bernstein    

About Matt McMahon

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