December 31, 2019 | Vol. 191


MUST READS
(5 summaries)
NOTEWORTHYIF YOU MUST READ





Med Mal   Duty   Accepted Practice   Vicarious Liab  

Second Department
Motion for summary judgment by OB/GYN and her practice denied where she detected mass in plaintiff’s breast and referred her to general surgeon on same day could not palpate mass and did not order a biopsy. While referring physician is normally not responsible for departures of the referred physician, there was a question of whether the OB/GYN who received the general surgeon’s report on the same day should have contacted the surgeon to discuss the discrepancy in their findings. Yanchynska v Wertkin


MVA   Bus   Set Aside Verdict   Expert Aff   Admissibility   Materially Deviates  

First Department
There was rational basis for jury to credit plaintiff’s expert’s testimony of feasibility that articulated bus mounted curb and struck plaintiff even where plaintiff testified only rear wheel mounted sidewalk but admitted that he was making assumptions and guesses based on what he saw. Any error in allowing decedent to answer leading question that he told his doctor he was ran over by a double bus was harmless in light of overwhelming evidence. Decedent’s statement to his attorney to correct the Notice of Claim to reflect that he was in middle of block, not on corner when struck was admissible as a prior consistent statement. $2.5mil/$2.0 mil award for past/future pain/suffering set aside as materially deviating from reasonable compensation unless plaintiff agreed to reduce future pain/suffering to $1 million. Dees v MTA N.Y. City Tr.

Comment: While prior consistent statements are generally not admissible to bolster direct testimony, they may be admissible for other purposes including to rebut an allegation of recent fabrication.

Amend BP   Reasonable Excuse   Prejudice  

Second Department
Plaintiffs’ motion to amend BP and interrogatories granted even without a reasonable excuse for delay where they only sought to add specific safety regulations violated narrowing their theory of liability, not adding a new theory, and defendants were therefore not prejudiced by the delay. Cioffi v S.M. Foods, Inc.

Comment: This is 1-of-3 decisions on this case issued at the same time and separately reported in this volume.

Spoliation   Negative Inference   Jury Charge  

First Department
Lower court’s grant of negative inference charge requiring jury to find video would have shown a slippery substance had the video footage been preserved was inappropriate and remanded for new charge that permits but does not require the jury to so find. Temiz v TJX Cos., Inc.


Untimely  

Second Department
Defendant’s motion for summary judgment denied without consideration of the merits as untimely based on date of filing even though CPLR 2211 provides that motion is made when served because there was no proof that it was served on date claimed by defendants. Absent good cause shown for filing late summary judgment motion, the court has no discretion to entertain an untimely motion. Bricenio v Perez

NOTEWORTHY
(19 summaries)
MUST READSIF YOU MUST READ





Med Mal   Accepted Practice   Causation   Expert Aff   Conclusory  

First Department
Defendant and his expert failed to make out prima facie case for summary judgment where neither opined that plaintiff’s decedent who presented with a pulmonary embolus was not a candidate for tPA because of continuing post-partum bleeding which they only stated increased her risk of bleeding complications with heparin, and plaintiffs’ expert raised issues of fact detailing departures for failing to order STAT blood work, administer tPA to break up clots within 10-15 minutes, and timely order heparin all of which would have prevented the rapid loss of oxygen saturation resulting in cardiac arrest and death. tPA was eventually given 2-minutes before decedent’s cardiac arrest. Plaintiffs’ expert’s opinions were given in detail based on the record and not conclusory. There were 2-dissents. Barry v Lee


Discovery   Strike Note of Issue   Subpoena   Preclusion  

Second Department
Plaintiffs’ motion to strike their own Note of Issue and Certificate of Readiness the day after it was filed in accordance with a trial readiness order and to direct further discovery denied where plaintiff conducted extensive discovery over 6-years, including more than 50 discovery demands and more than 36 motions to compel discovery and court found vacating Note of Issue was unnecessary. While the court did not have authority to quash subpoenas issued by a Georgia court, it quashed the New York subpoenas finding they demanded utterly irrelevant information and precluded the use of any information obtained from the Georgia subpoenas where court had previously refused to grant open commission because the information sought was irrelevant. Cioffi v S.M. Foods, Inc.

Comment: This is 1-of-3 decisions on this case issued at the same time and separately reported in this volume.

Med Mal   Accepted Practice   Causation   Expert Aff   Speculation   Conclusory  

Second Department
NYCHHC’s expert establish there was no departure during plaintiff’s surgery that resulted in her incisional hernia but failed to “rebut, with factual proof” plaintiff’s allegation that the incisional hernia was not timely diagnosed and the expert’s opinion that the delay in repair was caused by plaintiff was speculative and conclusory failing to make out a prima facie case for summary judgment. Oliver v New York City Health & Hosps. Corp.


Serious Injury   Set Aside Verdict  

Second Department
Plaintiff’s motion to set aside verdict finding plaintiff did not sustain a serious injury or have economic loss greater than $50,000 as against weight of evidence denied where there were conflicting expert opinions as to cause and severity of injuries and plaintiff testified she was able to continue with her intense schedule as a journalism producer. Jury’s verdict could be reached on fair interpretation of the evidence. Bohan v DeLucia


MVA   Sole Cause   CPLR § 3126   Preclusion   Good Faith Aff   Willful/Contumacious  

Second Department
Through driver without stop sign granted summary judgment against plaintiff and co-defendants entering intersection from perpendicular street with stop sign on proof that codefendants’ driver failed to yield right of way which was sole proximate cause of accident. Whether codefendant stopped at stop sign is not dispositive since movant proved that co-defendants failed to yield right-of-way. Through driver defendants’ motion to preclude co-defendants from offering any proof or affidavits for failure to appear at deposition denied where moving defendant did not submit good faith affidavit showing efforts to resolve issue before motion and did not prove that co-defendants acted willfully/contumaciously. Belle-Fleur v Desriviere


Labor Law §241   Industrial Code  

First Department
Defendant’s motion for summary judgment on Labor Law §241(6) based on industrial codes §§23-1.8 (hardhat) and 23-1.30 (lighting) denied as activity of drawing cables through area above drop ceiling with authority to cut holes in walls and ceiling raised question of fact on whether work was an “alteration” under §241 as has been held in cases where cable has been installed over a drop ceiling, and industrial code §23-1.30 has been held to be sufficiently specific for liability under §241. Emery v Steinway, Inc.


Premises Liab   Slip/Trip   Snow/Ice   Sidewalk   Create Condition   Notice   Strike Answer  

First Department
Property owner some distance from where plaintiff fell granted summary judgment on plaintiff’s testimony, affidavit, and BP that she fell outside other defendants’ property and there was no evidence that distant property owner created condition by failure to remove snow from outside its premises. Remaining defendants failed to show they did not create or have notice of the dangerous condition. Plaintiff’s motion to strike defendants’ Answer denied without proof that failure to provide discovery was willful/contumacious. Burton v Khedouri Ezair Corp.


Med Mal   Venue  

Second Department
Venue changed from Dutchess to Tompkins County where plaintiff’s choice of venue based on alleged principal office of 1-defendant was shown to not be incorrect and defendants’ choice of Tompkins County shown to be proper venue where that defendant’s principal office was located. Jacobson v Gaffney


Labor Law §241   Labor Law §200   Industrial Code   Control   Notice  

First Department
Defendants granted summary judgment on Labor Law §241(6) claim based on industrial code §23-1.7(e)(1) because plaintiff tripped on nail protruding from floor while backing up with a wheel barrel in an open area not a passageway as covered by 23-1.7(e)(1). Labor Law §200 and negligence claims dismissed where defendants did not control or direct work and did not have notice of the defect. Jones v 30 Park Place Hotel LLC


Negligent Supervision   Assault   Motion to Dismiss  

Second Department
Volleyball club’s motion to dismiss claims of negligent supervision and breach of fiduciary duty where coach allegedly sexually assaulted player at tournaments while she was in middle and high school granted only to dismiss breach of fiduciary duty claim where plaintiff failed to set forth claims that establishing a fiduciary duty. Club’s claim they could not be responsible for negligent supervision since child remained under her parents care was rebutted by proof that she stayed with the team, not her parents, at hotels when she was assaulted, and that at least on one occasion her parents stayed at a different hotel than the team. Mulligan v Long Is. Fury Volleyball Club


MVA   Pedestrian   Turning Vehicle   VTL §1104   GML §205-e   Graves Amendment   Workers Comp Defense   Grave Injury   Alter Ego  

Second Department
Police offer standing by side of car he stopped when struck by rear of truck making left hand turn whose driver was aware that officer was on foot but thought he had enough room for turn granted summary judgment for violation of VTL § 1146[a](avoiding pedestrian) under Gen. Obl. Law §11-106 and GML §205-e against driver and his employer who leased the truck and trailer but president of driver’s company granted summary judgment where he did not participate in the tort nor dominate the employer or parent company so as to pierce the corporate veil. Summary judgment for parent company denied where question remained on whether it was alter ego of employer company. Village police department denied summary judgment where fellow officer’s parking of patrol car that defendant-driver had to navigate around was not a protected activity under VTL §1104(b) and on Workers Comp exclusivity where issue remained on whether plaintiff-officer’s brain injury met standard for “grave injury” under workers comp law. Lessors of tractor and trailer granted summary judgment on proof there were active leases at time of the accident, supplementing prior proof that leases had expired. Cioffi v S.M. Foods, Inc.

Comment: This is 1-of-3 decisions on this case issued at the same time and separately reported in this volume.

Labor Law §240   Labor Law §241   Labor Law §200   Industrial Code   Safety Devices  

First Department
Defendants’ motion for summary judgment on Labor Law §§240(1) and 241(6) denied and plaintiff granted summary judgment on these sections where plaintiff had to step on inverted bucket, which is not an adequate safety device, to access elevated work platform and all stairs and other access points were blocked by materials in violation of industrial code §23-1.7(f). Labor Law §200 and negligence claims dismissed where accident was caused by means and methods of work and defendants did not direct or control plaintiff’s work. Ferguson v Durst Pyramid, LLC


Premises Liab   Slip/Trip   Sidewalk   Expert Aff   Question of Fact  

First Department
Dominican Sisters granted summary judgment on expert affidavit showing accident happened on property next door. Next door defendant’s affidavit failed to dispute cause or location of accident and plaintiff raised issue in response to landscaper’s entitlement to summary judgment by open permit for sidewalk repair including site of accident issued 5-days before accident. Cuenca v City of New York


False Arrest   Malicious Prosecution   1983 Action   Probable Cause  

Second Department
Information that visitor to a hospital room under surveillance for gang activity had a firearm gave probable cause for the police to search persons in the room and arrest them upon finding firearm in a bag and was a complete defense to false arrest and malicious prosecution actions. Plaintiff’s claim that right to a fair trial was violated dismissed where there was no proof that officers intentionally falsified information or fabricated evidence and the search did not violate plaintiff’s constitutional rights based on the information provided from one officer to another. Braxton v City of New York


Premises Liab   Slip/Trip   Prior Written Notice  

Second Department
Municipality granted summary judgment on affidavits of city clerks showing they searched appropriate records and found no prior notice of alleged defect. Plaintiff failed to raise issue of fact in opposition. Defilippo v City of Glen Cove


Strike Note of Issue   Discovery   Prejudice  

First Department
Lower court’s resolution of defendants’ motion to vacate Note of Issue by directing plaintiff to provide discovery post Note of Issue was a provident exercise of discretion and plaintiff failed to show prejudice. Lopez v Hicks


MVA   Bus  

Second Department
Bus granted summary judgment on plaintiff’s 50H hearing, deposition and defendants’ driver’s testimony and affidavit showing that bus was not brought to an “unusual or violent” stop. Mayorga v Nassau Inter-County Express (Nice) Bus


Serious Injury   Preexisting   Expert Aff   Conclusory  

Second Department
Defendant made out entitlement to summary judgment on serious injury by competent medical proof showing injuries of 1-plaintiff did not meet serious injury threshold, were not causally related to the accident, and that plaintiff did not meet the criteria under the 90/180-day category and as to second plaintiff on proof that plaintiff had pre-existing cervical condition where surgery had been recommended 6-months before accident and did not meet the 90/180-day category. This plaintiff’s treating doctor’s affidavit failed to raise issue in opposition by not explaining in a non-conclusory manner how this plaintiff’s injuries were exacerbated by this accident. Wettstein v Tucker


MVA   Serious Injury  

Second Department
Driver and owner of SUV merging from left to middle lane striking car in middle lane and pushing it into bus in right lane that plaintiffs were passengers in denied summary judgment on middle lane driver’s testimony that SUV suddenly swerved from into middle lane and SUV driver’s testimony that she was moving from left to middle lane when her SUV came in contact with car in middle lane. Serious injury question not decided by court below remained outstanding. Joseph v Kelly

IF YOU MUST READ
(2 summaries)
MUST READSNOTEWORTHY

Uninsured   Stay Arb   Motion to Dismiss  

Second Department
Uninsured arbitration temporarily stayed for framed hearing on whether offending car was insured and involved in the accident where injured-insured provided North Carolina license plate to police at time of accident and carrier’s subsequent search identified the proposed additional respondents, owner of the car and his carrier, who sought to dismiss the case for lack of jurisdiction and their claim that the additional respondent was not involved in the accident. There remained issues of fact that could only be resolved by a hearing. Matter of Government Employees Ins. Co. v Escoto


Serious Injury   Causation  

Second Department
Plaintiff raised issue of fact in opposition to defendant’s showing of entitlement to summary judgment on serious injury and since defendant failed to establish that the injuries were not caused by the accident, burden on causation never shifted to plaintiff. The court does not give the details of the proofs. Taylor v Nicosia

About Matt McMahon

Civil trials and appeals since 1984
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