December 4, 2018 | Vol. 135

December 4, 2018 | Vol. 135

MUST READS
(8 summaries)
NOTEWORTHY IF YOU MUST READ

Discovery   BP   HIPAA   Privilege  
1st Dept.  In a lengthy decision and dissent the First Department reviews the split between the First and Second Departments on the issue of whether an allegation of "loss of enjoyment of life" places the plaintiff’s entire medical history in issue adhering to the First Department rule supported by Court of Appeals precedent that only injuries affirmatively put in issue waive medical privilege. Plaintiff claimed neck, back, and shoulder injuries but had a previous knee injury with surgery. Even though she testified that both injuries limited here ability to wear heals, an identical functional deficit, she did not put her knee condition in issue where it was not expressly pleaded. Defendants not entitled to authorizations for her knee treatment. 1 dissent. Brito v Gomez

Comment: The Second Department rule quoted in the decision is that “broad allegations of physical injuries and claimed loss of enjoyment of life due to those injuries” places a plaintiff’s entire medical condition in issue.

Asbestos   Products Liab   Set Aside Verdict   Directed Verdict   Causation   Speculation   Conclusory  
Ct. of App.  Verdict finding Ford Motor Co. 49% at fault for plaintiff’s decedent’s mesothelioma from working 25 years as an auto mechanic set aside and Ford granted directed verdict where plaintiff’s experts’ testimony on causation was legally insufficient because it failed to establish by scientific expression that plaintiff’s decedent was exposed to sufficient quantity of toxic asbestos to cause his mesothelioma and death. General statements of causation challenged on cross-examination did not meet that standard. This was a 4/1 decision with 2 concurring opinions and 1 dissent. Matter of New York City Asbestos Litig.

Comment: The First Department decision was reported in Vol. 44.

Set Aside Verdict   Collateral Estoppel   Noseworthy   Reasonable Excuse   Prejudice   Untimely   Causation  
2nd Dept.  Plaintiff’s motion in limine to limit trial to damages only where defendants’ nurse had plead guilty to endangering welfare of an incompetent or physically disabled person for bathing Plaintiff’s disabled child in hot water was an untimely motion for summary judgment and plaintiff failed to give a reasonable excuse for the delay. Trial court granted motion to the extent of only submitting issues of causation and damages, not negligence, to the jury. Appellate Division did not address negligence issue as moot. Jury found no causation on defendants’ cross-examination of plaintiff’s expert based on late discovered biopsy report of damaged skin consistent with allergic reaction to one of child’s medications.

Trial court providently excluded plaintiff’s ward from courtroom during summations because she was incapable of assisting counsel and her presence might have impaired jury’s objectivity. Claim that defense counsel’s remarks deprived plaintiff of fair trial was unpreserved and remarks were not pervasive, prejudicial, or too inflammatory. Noseworthy charge not warranted because inability to testify was result of prior disabilities and not alleged negligence. Farias-Alvarez v Interim Healthcare of Greater N.Y.

Late Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice   Court of Claims  
1st Dept.  Petition to deem Notice of Claim served one day after 90-day period timely served granted with court noting that it has previously found 30-day delay to be within “a reasonable time thereafter,” and respondent’s general claims of not being able to interview witnesses while events were fresh was insufficient to show prejudice. Even if clerical error excuse was not a reasonable excuse, it was not necessary under the circumstances. Petitioner’s request to deny application against state entities without prejudice to bring petition in Court of Claims moot as petitioner still had time to bring petition in Court of Claims. Matter of Dominguez v City Univ. of N.Y.

MVA   Rear End   Pileup  
2nd Dept.  Second car defendant’s motion for summary judgment where car was rear-ended by third and fourth car after coming to a safe stop was improperly denied based on Pennsylvania law raised for the first time by the lower court and not briefed or addressed by the parties. Plaintiff, passenger in second car, did not oppose motion. Parties can expressly or tacitly agree to apply New York law. While accident occurred in Pennsylvania, all parties resided in New York. Abdou v Malone

Labor Law §240   Sole Cause   Recalcitrant Worker  
1st Dept.  Plaintiff’s Labor Law §240(1) motion for summary judgment denied where cinderblock wall he was demolishing from bottom to top fell on scaffold he was working on. Questions of fact existed if worker ignored explicit instruction to demolish wall from top to bottom. Gelvez v Tower 111, LLC

Comment: The defense could be stated as either sole proximate cause or recalcitrant worker, or both, but the courts have generally been folding the recalcitrant worker defense into the sole proximate cause defense requiring proof that the worker was given a specific instruction that was ignored.

Vacate Default   CPLR § 3126   Reasonable Excuse   Meritorious Action  
2nd Dept.  Plaintiff’s attorney’s decision to send per diem attorney to try and stip-out defendants’ unopposed motion to dismiss under CPLR §3126 for failure to provide BP and discovery responses after 3 orders was a strategy, not law office failure, and could not be a reasonable excuse for failing to oppose the motion. Plaintiffs failure to comply with discovery orders was willful/consummation and he further failed to show a meritorious action. Soto v Chelsea W26, LLC

Premises Liab   Slip/Trip   Stairs   Amend Complaint   Amend BP   Prejudice  
1st Dept.  Plaintiff’s motion to amend her Complaint and BP to reflect accident date 2-months earlier than originally alleged based on her reviewing medical records showing that she went to a doctor the day after accident providently denied where defendants’ retrieved surveillance video showing no accident on original date and they could no longer retrieve video for new alleged date. Doctor plaintiff saw which was the basis of her motion to amend was a podiatrist she saw for a wholly unrelated condition. Otero v Walton Ave. Assoc. LLC

NOTEWORTHY
(16 summaries)
MUST READS IF YOU MUST READ


Premises Liab   Slip/Trip   Pothole Law   Prior Written Notice   NYC  
2nd Dept.  NYC granted summary judgment where plaintiff tripped and fell on edge of pothole on proof that after diligent search it did not have prior written notice as required by administrative code §7-201(c)(2). Complaint to Department of Transportation from 311 call was not “written acknowledgment” of pothole. Barrett v City of New York


Products Liab   Spoliation   Sanctions   Negative Inference  
2nd Dept.  Car dealer entitled to negative inference at trial for plaintiff’s failure to preserve evidence of damage to soft-close feature of leased vehicle that closed on her thumb when she had it repaired 2-years later. Defendant met burden of showing plaintiff was obligated to preserve it, that it was negligently destroyed before defendant had opportunity to inspect, and that it was relevant to the lawsuit. Since it did not completely eliminate defendant’s ability to defend case, negative inference was appropriate sanction. Richter v BMW of N. Am., LLC


Med Mal   Accepted Practice   Causation   Expert Aff  
1st Dept.  Defendants made out entitlement to summary judgment by medical records and expert’s opinion of no departure from accepted practice where plaintiff’s decedent was discharged from ER with anti-anxiety medication after having denied suicidal/homicidal ideation’s despite decedent’s girlfriend’s affidavit that defendants never questioned decedent regarding suicidal/homicidal ideations. Plaintiff’s expert’s opinion that under the circumstances it was a departure to release decedent was speculative. Morillo v New York City Health & Hospitals Corp.


Premises Liab   Labor Law §200   Dangerous Condition   Expert Aff   Speculation   Conclusory  
2nd Dept.  Nassau Coliseum and NY Islanders failed to meet burden of proving that 1000-watt burnt out lightbulb above ice rink plaintiff was replacing when he received electric shock was not a dangerous condition under common law and Labor Law §200 based on expert’s opinion which was speculative, conclusory, and lacked foundation based on inspection 2.5 years after accident, lack of evidence that condition was the same at time of inspection, lack of explanation of what testing consisted of and empirical data to support opinions. Defendants also failed to show that they did not create the condition. Wass v County of Nassau

Comment: Companion case was also reversed on same grounds. Dowd v County of Nassau.


Negligent Supervision   Assumption of Risk  
2nd Dept.  Defendants failed to meet burden of showing that 9-year-old student assumed risk of running into adjacent playground apparatus as he dove for a football while running off of designated field, as he and his friends had often done despite being instructed not to use area by school employees, and failed to eliminate questions of fact on whether accident happened over a prolonged period where greater supervision would have prevented accident. Infant-plaintiff’s age left question regarding whether he appreciated risks of running into this area. M.P. v Mineola Union Free Sch. Dist.


MVA   Bus   Expert Aff  
1st Dept.  Video of bus interior showing that plaintiff slipped as bus gradually slowed entitled NYCTA to summary judgment. Plaintiff’s expert’s opinion based on facts flatly contradicted by evidence had no probative value. Plaintiff’s allegations that bus stopped short did not provide “objective evidence” that it was a sudden, violent stop. Holmes v New York City Tr. Auth.


Serious Injury   Degenerative   Preexisting   Causation   ROM   Feigned Issue  
1st Dept.  First plaintiff’s medical expert failed to address degenerative findings on MRI in plaintiff’s medical records or otherwise show that causation and failed to address prior accident with neck and back complaints. Both plaintiffs failed to adequately explain cessation of treatment after a few months and second plaintiff’s claim that it was because of no-fault denial was feigned issue directly contradicting her prior testimony. Her doctor only found 5° deficit in one plane. Plaintiffs failed to raise issue of fact in opposition to defendants’ showing of entitlement to summary judgment on serious injury. Ogando v National Frgt., Inc.


Late Notice of Claim   1983 Action   Statute of Limitations   Assault   False Imprisonment   Actual Knowledge   Reasonable Excuse   Prejudice   NYC  
2nd Dept.  Notice of Claim is not prerequisite for 1983 federal action for violation of constitutional rights. State claims for assault were barred by statute of limitations and petition to serve late Notice of Claim denied. Petitioner failed to show actual knowledge within 90-days or reasonable time thereafter by reports that did not alert NYC that an actionable wrong had been committed. Incarceration was not a reasonable excuse since remaining causes of action accrued only after petitioner was released and petitioner also failed to show evidence or plausible argument of lack of prejudice. Matter of Nicholson v City of New York


Serious Injury   Degenerative   Preexisting   Causation   Expert Aff   Conclusory   Unaffirmed Report  
1st Dept.  Plaintiff’s doctors’ conclusory opinions on causation which did not address pre-existing severe arthritis and prior surgery to plaintiff’s knee were insufficient to raise issue of fact in opposition to defendant’s prima facie showing of entitlement to summary judgment on serious injury based on plaintiff’s medical records and experts’ opinions. Plaintiff’s un-certified medical records provided by plaintiff during discovery were admissible on the motion, but uncertified MRI report relied on by plaintiff was not. Thompson v Bronx Merchant Funding Servs., LLC


Premises Liab   Slip/Trip   Stairs   Out of Possession   Control   Raised For First Time  
2nd Dept.  Building granted summary judgment where patron tripped on uneven stair between floors of tenant’s restaurant on proof that building defendant was out-of-possession owner without obligation to repair in contract or by course of conduct. Plaintiff did not allege statutory violation in Complaint or BP. Administrative code provisions raised for first time in opposition were not considered. Fox v Saloon


Labor Law §241   Industrial Code   Causation  
1st Dept.  Defendants granted summary judgment on Labor Law §241(6) and industrial code provisions relied on by plaintiff were inapplicable because the hazardous condition was an integral part of the work he was performing. Saginor v Friars 50th St. Garage, Inc.


Dental Mal   Accepted Practice   Causation   Informed Consent   Vicarious Liab   Expert Aff  
2nd Dept.  Individual dentists made out entitlement to summary judgment on experts’ opinions of no departure from good and accepted practice when they removed plaintiff’s wisdom tooth and that their actions were not cause of plaintiff’s injuries, but plaintiff’s expert raised issues of fact on negligence and vicarious liability of individual dentists’ employer. One dentist submitted plaintiff’s deposition testimony that dentist did not explain risks or alternatives to surgery failing to make out prima facie entitlement on informed consent. Dental supply purchasing company with no employees that was not a dental practice granted summary judgment. Silveri v Glaser


Strike Note of Issue   Discovery   Prejudice   Good Faith Aff  
1st Dept.  Defendants’ motion to strike Note of Issue where they had demanded deposition and physical that had not been conducted granted since certificate of readiness claiming that physical was unnecessary and that there were no outstanding discovery requests had clearly incorrect statements. Short delay in bringing motion to strike and minor inconsistencies in affidavit of good faith were inconsequential where plaintiff could not show prejudice. Perez v Kone


Premises Liab   Slip/Trip   Prior Written Notice   Create Condition  
2nd Dept.  Town where St. Patrick’s Day parade was held, and parade sponsor granted summary judgment when plaintiff tripped on loose board in street as she returned to parade after marching. Town showed it did not receive prior written notice as required by code, did not create the condition, or derive a benefit from special use. Sponsor showed that it did not create condition and owed no duty since it did not own, occupy, control, or make special use of roadway. McManamon v Rockland County Ancient Order of Hibernians


Construction Liab.   Labor Law §200   Control  
2nd Dept.  General contractor granted summary judgment on proof that it did not provide equipment and was not authorized to control plaintiff-electrician’s work where drill bit he was using bound up causing drill to spin fracturing his wrist. Cutrona v Plaza Constr.


MVA   Discovery  
1st Dept.  Lower court’s order denying plaintiff’s request to compel defendants to comply with disclosure demands with leave to file new motion after defendant driver’s deposition modified to delete requirement to first depose driver before disclosure of all relevant information. Defendants’ cross motion for protective order of confidential, trade secret, and proprietary information remanded for lower court’s consideration. Heredia v Uber Tech., Inc.

IF YOU MUST READ
(3 summaries)
MUST READS NOTEWORTHY


Premises Liab   Slip/Trip   Stairs   Unknown Cause  
2nd Dept.Church where plaintiff slipped on stairs near altar granted summary judgment on proof that plaintiff could not identify what caused her to fall. The court does not give the details of the proofs. Skotnik v St. Frances De Chantal R.C. Church


Serious Injury  
2nd Dept.Plaintiff raised issue of fact in opposition to defendants’ prima facie showing of entitlement to summary judgment on serious injury. The court does not give the details of the proofs. Lambropoulos v Gomez


Serious Injury   Amend BP  
2nd Dept.Defendant made out prima facie entitlement to summary judgment on serious injury by competent medical evidence addressing permanent consequential and significant limitation categories as well as 90/180-day category and plaintiff failed to raise an issue in opposition. Plaintiff’s motion to amend BP to make clear that he was claiming permanent consequential and significant limitation categories denied as patently devoid of merit. The court does not give the details of the proofs. Prisco v Rinaldi

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About Matt McMahon

Civil trials and appeals since 1984
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