December 3, 2019 | Vol. 187


MUST READS
(4 summaries)
NOTEWORTHYIF YOU MUST READ



Battery   Assault   Respondeat Superior   Foreseeability   Court of Claims   Negligent Hiring   1983 Action  

Court of Appeals
Department of Corrections granted summary judgment of assault/battery claim of disabled inmate who was viciously mocked and brutally attacked by 3-correction officers where Court found that no jury could find such an unprovoked vicious attack to be within the scope of a correction officer’s employment which only allows use of physical force in very limited circumstances. The Court noted that claimant would still have been able to pursue claims for negligent hiring, training, supervision and 1983 constitutional violations they not been withdrawn. There was 1-dissent. Rivera v State of New York


Med Mal   BP   Expert Aff   Raised For First Time  

First Department
Cardiologist granted partial summary judgment of all claims prior to and subsequent to dates of alleged malpractice in the Complaint and BP and “prior or subsequent thereto” language stricken as defendant was not on Notice of Claims of malpractice for interpretation of an electrocardiogram in 2011 until the submission of plaintiff’s expert’s affirmation in opposition to motion for summary judgment. Carroll v New York City Health & Hosps. Corp.


MVA   Strike Answer   CPLR § 3126   Willful/Contumacious   Renew   Serious Injury  

Second Department
Court granted renewal on new facts that plaintiff was imprisoned at time of last ordered deposition but adhered to original decision striking Answer for failure to comply with 5-orders to appear for deposition prior to arrest. Repeated failures to comply without adequate explanation is evidence of willful/contumacious refusal to comply with orders. Defendant’s motion for summary judgment on serious injury denied as academic. Claim that counsel lost touch with defendant did not adequately explain multiple failures to appear for deposition. Defendant hiding himself is not a reasonable excuse. Bouri v Jackson

Comment: Companion case at Bouri v Jackson.


Notice of Claim   Court of Claims  

Second Department
Defendants’ motion for summary judgment denied on Plaintiff’s Notice of Intention to Claim and Claim that defendants argued failed to properly identify door she collided with where it was described as “the extreme right glass exit door on the street level” of a particular building without identifying the front or back of the building, and State’s investigator examined the front of the building, not the back, as the Notice of Intention to Claim, and her attorney’s affirmation stated that photographs of the subject door were attached. Defendants’ departmental searches of their computer system for the photographs did not conclusively establish that they were not provided which remained an issue of fact. Shabat v State of New York

NOTEWORTHY
(9 summaries)
MUST READSIF YOU MUST READ



Assault   Notice of Claim   Negligent Supervision   Raised For First Time  

Second Department
School district granted summary judgment of special needs student’s claim of sexual assault by fellow high school student in special needs program run by BOCES on proof that school district did not have physical custody or control of student and had no affiliation with the high school program run by BOCES. Argument that school district failed to formulate a proper individualized education program (IEP), raised for the first time on appeal, considered by the court because it raised an issue of law that could not be avoided if raised at the proper time but rejected where the claim is not included in the Notice of Claim. I.T. K. v Nassau Boces Educ. Found., Inc.

Comment: Claims of failure to provide adequate educational opportunities or evaluations for special needs students must first be adjudicated administratively and an entire claim, including negligence claims, can be dismissed for failure to first pursue administrative remedies.


Med Mal   Accepted Practice   Causation   Expert Aff  

First Department
Plaintiff’s expert neurologist raised issues of fact in opposition to defendants’ showing of entitlement to summary judgment by opinion that lumbar puncture performed without discontinuing decedent’s anticoagulants or giving platelet transfusion departed from accepted practice and that leak in dura causing intradural hemorrhage in area above puncture was cause of injury. Defendants’ argument that neurologist was not qualified to give opinions went to credibility not admissibility, and defense counsel’s argument that there is no medical basis for opinion on causation found unavailing where defense expert was silent on issue. Oncologist granted summary judgment where plaintiff’s expert failed to raise an issue of fact that treatment was within accepted practice and not a cause of the injury. Pira v Carasca


Late Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice   Statute of Limitations   50-H  

Second Department
Petitioners granted leave to serve late Notice of Claim for injuries from contamination of drinking water where they did not become aware of contamination until county’s press release, commencing time to file Notice of Claim based on statute of limitations for pollution (CPLR 214-c), and counsel for petitioners had filed 30 other Notices of Claim for the contamination resulting in multiple 50-H hearings showing that County had actual knowledge of essential facts within 90-days or a reasonable time thereafter and could not claim prejudice. Failure to provide a reasonable excuse for 3-month delay in seeking leave was not dispositive. Matter of Brooks v County of Suffolk


Labor Law §240   Safety Devices   Comparative Fault  

First Department
Plaintiff granted summary judgment on Labor Law §240(1) whether he slipped from rung or ladder tipped over as plaintiff tried to steady himself while descending as defendant failed to provide adequate safety device for worker to remain upright while performing work. Absent proof that it provided an adequate safety device, defendant failed to show plaintiff’s placement of ladder was sole proximate cause of accident and issue of comparative fault is irrelevant. Pierrakeas v 137 E. 38th St. LLC


Med Mal   Causation   Loss of Chance   Expert Aff  

First Department
Plaintiffs’ expert failed to provide any scientific support for claim that delay in diagnosis caused by failing to timely refer plaintiff to a urologist worsened plaintiff’s condition requiring a radical prostatectomy in opposition to defendants’ expert’s opinion that any delay would not worsen the condition. Summary judgment for defendant. Milian v Bailyn


Premises Liab   Control   Foreseeability   Notice  

Second Department
Motion for summary judgment denied by lower court resulting in judgment on verdict for plaintiff finding store 70% at fault for patron’s injury from being struck by U-boat cart reversed and summary judgment granted where store did not have ability to control customer’s use of carts, including how high they would pile merchandise, or notice of need to do so. Balladares v City of New York


Premises Liab   Assumption of Risk  

Second Department
School district granted summary judgment on primary assumption of risk where high school student was experienced in playing football on multipurpose field owned by school district and aware of choppy, wavy, and bumpy condition of field, including depressions like the one his foot got caught in causing him to fall. Condition was not hidden and part of natural condition of the field, not the result of failure to maintain the field. There was 1-dissent. Ninivaggi v County of Nassau


Reargument   Raised For First Time  

First Department
Reargument improvidently granted where court improperly granted relief requested for the first time in reply and order granting summary judgment to third-party defendant properly vacated and denied where third-party plaintiff did not have opportunity to oppose relief first requested in reply. Hernandez v Metro Mgt. & Dev., Inc.


MVA   There to be Seen   Renew  

Second Department
Defendant whose car infant-plaintiff was in denied summary judgment where she was traveling on a street not controlled by a traffic device and codefendant failed to yield the right-of-way from an intersecting street controlled by a stop sign for failure to show that she was not negligent for failing to see what was there to be seen before entering intersection. M. M. T. v Relyea

IF YOU MUST READ
(1 summaries)
MUST READSNOTEWORTHY

Serious Injury   Preexisting  

Second Department
Plaintiff failed to raise issue of fact in opposition to defendants’ showing of entitlement to summary judgment on serious injury based on competent medical proof that injuries did not meet threshold and were pre-existing. The court does not give the details of the proofs. Gash v Miller

About Matt McMahon

Civil trials and appeals since 1984
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