December 8, 2020 | Vol. 239

MUST READS
(7 summaries)
NOTEWORTHY IF YOU MUST READ

Public Health §2801-d   Arbitration   Estoppel  

Second Department

Lower court erred in granting nursing home’s motion to dismiss based on arbitration clause in admission agreement signed by resident’s wife under theory of direct benefits estoppel without a hearing to determine if resident had sufficient capacity to knowingly exploit the benefits of the agreement. McCarthy v Sea Crest Health Care Ctr., LLC


Med Mal   Set Aside Verdict   Accepted Practice   Causation   Admissibility   Hearsay   Jury Charge   Res Ipsa Loquitor   Expert Aff  

Second Department

Surgeon’s motion to set aside $500,000 verdict denied, and previous order denying him summary judgment affirmed where plaintiff’s expert raised issues on opinion that failure to timely identify and protect vagus nerves during Nissen fundoplication and paraesophageal hernia repair for GERD caused gastroparesis.

By failing to make specific objection that manual was hearsay after general objection was denied, defendants failed to preserve issue for appeal. Manual was properly admitted on plaintiffs’ direct of defendant-surgeon, who considered it authoritative, to establish his operative report was inconsistent with the manual and not to show a departure.

Res ipsa loquitor properly charged where plaintiffs’ expert testified injury should not happen in a first time fundoplication if surgeon follows accepted practice and proper surgical sequence even though defendants put in evidence gastroparesis can be idiopathic. Plaintiff need not eliminate possibility of all other causes. Smith v Sommer


Premises Liab   Motion to Dismiss   Preclusion   CPLR § 3126   Res Judicata   Appealable Order  

First Department

Dismissal in prior action based on fact plaintiff could not prove claims as he was precluded from offering testimony due to failure to appear for deposition was on the merits requiring dismissal on res judicata of subsequent suit for same occurrence naming additional defendants in privity with defendants dismissed in the initial suit. Santos v Townsend Ave. Enters. Ltd. Partnership


Lien   Attorney Fees  

Second Department

County’s motion for declaratory judgment granting lien on settlement proceeds without reduction for plaintiff’s attorney fees and costs granted under Soc. Serv. L. §104-b which does not provide for reduction of attorney’s fees or case costs. Plaintiff had no viable Fifth Amendment cause of action as he had no property interest in amount subject to lien nor could there be unjust enrichment where County was recouping only amounts paid for medical expenses. Kirton v County of Westchester


MVA   Discovery   Willful/Contumacious   CPLR § 3126   Strike Note of Issue   IME/DME   Sanctions  

Second Department

NYCTA’s motions to strike plaintiff’s Complaint for failure to comply with discovery orders, and for post Note of Issue discovery, granted to extent of striking Note of Issue where plaintiff failed to provide authorizations for prior accident as required in several orders, misrepresented date and severity of prior accident, concealed subsequent accident, both of which involved injuries to same body parts as in present action, and substantially changed nature and severity of claimed injuries and treatment after Note of Issue was filed, presenting unusual and unanticipated circumstances. Plaintiff required to provide authorizations for all records from prior and subsequent accidents, appear for further deposition, and further IME/DME. While plaintiff’s failure to provide discovery was not willful/contumacious, necessary to strike Complaint, the appellate court ordered plaintiff to personally pay sanction of $3000 to defendants for misrepresenting date and severity of prior accident. Gelin v New York City Tr. Auth.


Assault   Amend Complaint   Prejudice  

First Department

Lower court erred in sua sponte replacing defendant’s name with “John Doe” in caption of sexual assault action and in sealing record. Civil Rights L. §50-b permits only victim, not perpetrator, of a sexual assault to appear anonymously and common-law exception allowing judge to weigh the presumption of open trials against prejudice to a party did not apply. Plaintiff’s privacy interests are properly protected by preceding anonymously without need to seal record. Jane Doe v John Doe


Sepulcher   Motion to Dismiss   Capacity to Sue   Bankruptcy   Amend Complaint  

Second Department

Lower court erred in granting motion to amend Complaint to substitute bankruptcy Trustee for one plaintiff, next-of-kin, who filed for bankruptcy 2-months after action filed without listing sepulcher action as asset. On filing bankruptcy that plaintiff lacked capacity to sue and could not amend Complaint to name Trustee. Trustee may seek substitution in a state action where plaintiff-debtor is successful in reopening bankruptcy to include action as an asset but that is based on comity for the bankruptcy court order. Trustee may seek to commence a new suit within the time provided by CPLR §205. Turner v Owens Funeral Home, Inc.

NOTEWORTHY
(30 summaries)
MUST READS IF YOU MUST READ

MVA   Set Aside Verdict   Pain/Suffering   Materially Deviates  

First Department

Order granting plaintiff’s motion to set aside verdict apportioning fault 65%/35% plaintiff/defendant and awarding $100,000/$50,000 past/future pain/suffering unless defendants stipulated to 50/50 fault and to increase award to $900,000/$900,000 past/future pain/suffering reversed and verdict reinstated on evidence plaintiff and defendants were each in violation of VTL, with plaintiff jaywalking behind vehicle as defendant parallel parked with neither seeing the other, providing a rational basis for jury’s apportionment. Pain/suffering award did not materially deviate from reasonable compensation where jury could find plaintiff’s injuries were radial head fracture without residual impairment or pain, and lumbar sprain/strain. Hiciano v Benson


Med Mal   Late Notice of Claim   Renew   Reasonable Excuse   Estoppel   Statute of Limitations  

First Department

Change in law holding that order granting leave to serve late Notice of Claim before statute of limitations expired but that case must be dismissed where Notice of Claim is not served before statute of limitations expires was proper ground to grant renewal and justification that it was not included on initial motion because it was a Second Department decision made after motion to dismiss made was reasonable. Complaint dismissed for failure to timely serve Notice of Claim. Plaintiff’s proposed Notice of Claim filed with motion for leave did not satisfy Notice of Claim requirement where motion was granted but plaintiff never filed Notice of Claim. It was a nullity as untimely and served without leave.

Defendant’s denial in its Answer that Notice of Claim was served pursuant to an order put plaintiff on notice of issue making estoppel of statute of limitations defense inapplicable. Participating in discovery is not a waiver of defense. A.A. v New York City Health & Hosps. Corp. (Jacobi Hosp. Ctr.)


MVA   Discovery   Spoliation   Negative Inference  

Second Department

Lower court providently granted defendants’ motion for a negative inference where plaintiff identified 271 photographs on his cell phone at EBT, defendants demanded they be preserved and produced, but plaintiff subsequently provided only 232 claiming his wife inadvertently destroyed 39 of them establishing plaintiff had a duty to preserve the photographs, negligently failed to do so, and they were relevant to their defense. Luzuriaga v FDR Servs. Corp.


Labor Law §240   Labor Law §241   Industrial Code   Safety Devices   Court of Claims  

First Department

Worker who fell from I-beam while working on renovation project of Major Deegan, struck his shoulder on I-beam on way down, struck foot against deck 8′-10′ below, and was abruptly pulled back causing whiplash injuries entitled to summary judgment on Labor Law §240(1) as safety cable plaintiff attached lanyard to was too low to prevent him from hitting deck below and being pulling him back abruptly. Safety manager testified he would remove worker from site if he were able to hit deck below in order to redesign or get new equipment. In dicta, the Court noted plaintiff would also have been entitled to summary judgment on Labor Law §241(6) on industrial code §23-1.16(b) which requires safety devices to prevent workers from falling more than 5′. Stigall v State of New York


Malicious Prosecution   False Arrest   False Imprisonment   1983 Action   Probable Cause   Governmental Immunity   NYC  

Second Department

NYC denied summary judgment on malicious prosecution claim where plaintiff raised issue on whether prosecutor continued prosecution for alleged sex trafficking crimes out of actual malice which would rebut presumption of probable cause afforded by grand jury indictment. While a prosecutor has absolute immunity for instituting, prosecuting, and presenting criminal case, it has only qualified immunity for its investigative functions. NYC granted summary judgment of 1983 action claims of false arrest and malicious prosecution against it as a municipality and plaintiff failed to show the constitutional violations resulted from an official policy, regulation, or custom. NYC granted summary judgment of false arrest and false imprisonment claims where grand jury indictment raised rebuttable presumption of probable cause and plaintiff failed to raise an issue in opposition. Crooks v City of New York


Labor Law §200   Control  

First Department

Construction manager granted summary judgment of Labor Law §200 claim where plaintiff’s supervisor pulled on an extension cord wrapped around ladder plaintiff was working on during renovation project causing him to fall on proof it had no obligation to supervise plaintiff’s work, its contract with NYCHA stated it was not responsible for means and methods of plaintiff’s employer’s work, and it inspected all work solely to ascertain it met specifications, schedule, and budget establishing it had only general supervisory authority even though it could stop the work for safety reasons. Mendriski v New York City Hous. Auth.


Sepulcher   Emotional Harm   Discovery   Appealable Order  

Second Department

Grant of summary judgment on sepulcher claim against funeral home owner and worker in residency to become funeral director modified to deny summary judgment against worker instructed to get decedent’s body where there was no proof he knew or was negligent in not discovery that funeral home was not authorized to take body. Plaintiffs could not show that emotional injuries were “the natural and proximate consequence of some wrongful act or neglect” of worker.

Defendants’ appeal from protective order against certain questions at plaintiffs’ depositions dismissed as akin to ruling made during a deposition that is not appealable as of right, defendants’ did not seek leave to appeal, and there were no grounds for leave. Turner v Owens Funeral Home, Inc.


Dangerous Condition   Assumption of Risk   Dangerous Condition   Question of Fact  

Second Department

Town failed to meet burden for summary judgment where it did not submit evidence that surface 9-year-old fell on from climbing rock was maintained in safe manner, that condition of surface was not a cause of her injuries, and that surface condition did not unreasonably increase risks under assumption of risk doctrine. Defendant cannot meet its burden by pointing to gaps in plaintiff’s proofs. S.P. v Town of Babylon


Premises Liab   Create Condition   Notice   Causation   Expert Aff  

First Department

Defendants granted summary judgment of infant-plaintiff’s carbon monoxide poisoning claim on proof carbon monoxide detector in apartment was working, no one else in apartment was tested for carbon monoxide poisoning, and on the opinion of defendants’ pediatric critical care expert of no causal relationship to mother’s heating of apartment due to lack of heat by boiling water on stove and running oven with door open. Plaintiff’s expert failed to raise issue without causally connecting carbon monoxide poisoning to manner in which stove and oven were operated. J.V. v Robles


Labor Law §240   Labor Law §241   Labor Law §200   1-2 Family Exception   Control  

Second Department

Homeowner met burden of showing entitlement to 1-2 homeowner exception to Labor Law §§240 and 241 but denied summary judgment as plaintiff raised issue that project may have been to further a commercial not residential purpose and defendant directed or controlled work. Proof that defendant may have directed or controlled work raised issue on Labor Law §200 as well. Bulux v Moran


Labor Law §240   Scaffold   Recalcitrant Worker   Sole Cause   NYC  

Second Department

Worker who fell when inverted milk cart he was standing on, on top of scaffold, shifted granted summary judgment on Labor Law §240(1) where proper protection was not provided. Defendants failed to submit evidence plaintiff was instructed to use a ladder or raise scaffold to a proper height and refused to do so on claim he was recalcitrant worker and sole cause of accident. Valdez v City of New York


Labor Law §240   Ladder   Sole Cause   Expert Aff   Speculation   Conclusory  

First Department

Plaintiff granted summary judgment on Labor Law §240(1) on proof ladder wobbled causing him to fall. Defendant’s claim that plaintiff slipped or himself caused ladder to move were unsupported and its expert’s opinions were conclusory and speculative without an inspection of the ladder. Ciborowski v 228 Thompson Realty, LLC


Labor Law §240   Labor Law §241   Ladder  

Second Department

Apartment building granted summary judgment of Labor Law §§240(1) and 241(6) claims where extension ladder plaintiff used to access top of boiler fell as preparing boiler for a triennial inspection by testing its efficiency, cleaning parts, and replacing worn out parts is “routine maintenance” not repair or alteration and not covered under §§240 or 241. Deangelis v Franklin Plaza Apts., Inc.


Premises Liab   Sidewalk   § 7-210   Sole Cause  

First Department

Building owner/manager granted summary judgment on proof street vault plaintiff fell through was opened by tenant from basement instead of sidewalk as per usual procedure, tenant was sole cause of accident, and plaintiff did not oppose owner/manager’s motion. Tenant’s cross-claims dismissed on same grounds and liability could not be based on failure to provide safeguards such as warnings. Administrative code §7-210 was inapplicable without proof that accident was caused by condition of sidewalk. Harrington v Azogues Corp.


Vacate Default   Untimely   Reasonable Excuse   Prejudice   Willful/Contumacious   Meritorious Action   NYC  

Second Department

Fact that delay in serving opposition to defendants’ motion for summary judgment was only 6-days beyond briefing schedule, lack of prejudice, lack of willfulness, and proof of a meritorious opposition to motion for summary judgment of false arrest claim warranted granting motion to vacate default. Garcia v City of New York


Med Mal   Governmental Function   Special Duty   NYC  

Second Department

In opposition to defendants’ showing of no special duty, necessary for liability where municipality is acting in governmental function of providing emergency services, plaintiff failed to raise an issue by claim he could have taken decedent to hospital by car or call a private ambulance without proof defendants did anything to induce him to not choose these options placing decedent in a worse position. Koyko v City of New York


MVA   Train   Emergency Doctrine   There to be Seen   Speculation   Unaffirmed Report  

Second Department

LIRR and MTA granted summary judgment on proof train was operating at legal speed, operator repeatedly sounded horn, immediately applied emergency brake on seeing plaintiff’s decedent’s car on tracks at railroad crossing, and there was insufficient time to stop before striking the car. Plaintiff’s claims engineer should have seen decedent sooner and train should have been equipped with positive train control were speculative and her expert’s unsworn report was inadmissible and should not have been considered. Pabon v Long Is. R.R. Co.


Serious Injury   ROM   Causation   Expert Aff  

First Department

Defendants met burden on serious injury by reports of orthopedist and neurologist finding only slight limited ROM in knee, normal examination with no objective deficits, no causation, and that plaintiff’s medical records showed treatment within 1-week of accident only for injuries from prior accident, and an examination by another doctor 3-weeks after accident showed normal ROM and no injury in knee she claimed injured in accident. Plaintiff’s expert failed to raise issue without reconciling his finding of limited ROM 4-months after accident with plaintiff’s pain doctor’s finding of full ROM 3-days after accident and no contemporaneous treatment for knee. Plaintiff’s testimony she was confined to home for 3-days failed to meet 90/180 day category. Dellino v Puello


Premises Liab   Duty   Nuisance  

Second Department

Claim by tenant who rented entire first floor of mall, including lobby where plaintiff was injured when struck by a platform truck, that it owed not duty to plaintiff based on lease showing landlord was responsible for security did not establish tenant did not also owe duty for area. Second floor tenant failed to eliminate questions of whether it controlled first floor lobby where mall’s safety director testified management occupied a room on the second floor and second floor tenant failed to show it was not the entity that occupied the management office. Nuisance claims dismissed where duplicative of negligence claims. Yu Ying Zhi v J-Mart Group, Inc.


Premises Liab   Slip/Trip   Snow/Ice   Sidewalk   Storm in Progress   Create Condition  

Second Department

Abutting landowner failed to meet burden it did not create or exacerbate snow condition based on plaintiff’s testimony the 1-1.5′ of snow that ended in the early evening the day before his accident was shoveled down to less than 1″ when he fell and the superintendent responsible for snow removal did not know when it snowed or when he removed snow. Even if fall happened within grace period, which the court did not decide, defendant failed to make out its burden. Hus v 10 Ave. Realty, LLC


Serious Injury   Preexisting   Degenerative   Expert Aff   Speculation   Conclusory   ROM  

First Department

Defendant’s orthopedist’s review of plaintiff’s medical records, including MRI report, showing degeneration and radiologist’s opinion that MRIs showed pre-existing degenerative osteoarthritis met burden for summary judgment on serious injury shifting burden to plaintiff. Opinion of Plaintiff’s medical expert who first saw plaintiff 2.5 years after accident and only reviewed records from accident was conclusory and speculative where based only on plaintiff’s self-reported history of no prior injuries which is not the same as objective evidence from medical records showing no prior injuries. There was no objective evidence of serious injury where records weeks after accident showed only mild limited ROM in knee flexion. Cabrera v Ahmed


MVA   Independant Contractor   Respondeat Superior   Control  

Second Department

Defendant, company that contracted with defendant-driver who struck plaintiff after delivering newspapers, failed to meet burden of showing it had insufficient control for driver to be deemed its employee. Contract identifying driver as independent contractor should be considered but is not dispositive. The Court does not give the details of the proofs. Fernandez v Conklin

Comment: The court reached the same result as to the co-defendant media company. Fernandez v Conklin.


Labor Law §240   Hearsay  

First Department

Worker who fell through partially collapsed roof during demotion without proper safety devices granted summary judgment on Labor Law §240(1). Unsigned, unverified letter submitted by defendant to show contradictory version of accident inadmissible hearsay and, in any event, failed to raise an issue. Guity v 400 Great Neck Rd. Realty, LLC


Assault   Battery   Negligent Hiring   Negligent Supervision   Premature Motion  

Second Department

Home health service company’s and its owner’s motion for summary judgment denied as premature where facts of hiring and retention of aid who pleaded guilty to attempted assault of cognitively impaired child necessary to oppose motion were exclusively within defendants’ possession and motion was made before discovery. A.L. v Able Healthcare Servs., Inc.


Premises Liab   Slip/Trip   Sidewalk   Notice  

First Department

Abutting landowner granted summary judgment where plaintiff testified he walked along the sidewalk 20 minutes before accident and did not see plastic piece he fell on and did not see it until after he fell establishing it did not have actual or constructive notice. Polamino v Paradise Pac. Enters. Corp.


Premises Liab   Dangerous Condition   Unknown Cause  

Second Department

Hospital failed to meet burden for summary judgment where jury could infer from plaintiff-EMT’s testimony that he was injured by height differential between level of ambulance and loading dock as he lifted stretcher with patient. Hospital also failed to eliminate all questions on whether condition was dangerous in violation of industrial code provisions. Watkins v Brookdale Univ. Hosp. & Med. Ctr.


MVA   Rear End   Nonnegligent Explanation   Premature Motion  

First Department

Plaintiff granted summary judgment where defendant’s truck rear ended his car in heavy traffic and defendant-driver’s claim he could not see plaintiff came to a sudden stop in heavy traffic around a bend did not provide a nonnegligent explanation. Defendants failed to show what evidence exclusively in the plaintiff’s possession was necessary to oppose the motion. Mirza v Tribeca Auto. Inc.


MVA   Rear End   Nonnegligent Explanation  

First Department

Plaintiff granted summary judgment on her affidavit stating she was seated in her legally parked car when a car being towed rolled off tow truck on top of the rear of her car and defendants offered no nonnegligent explanation in opposition. Hernandez v Five J’s Automotive Ltd.


MVA   Turning Vehicle   Question of Fact  

Second Department

Plaintiffs denied summary judgment where MTA vehicle collided with Uber vehicle they were passengers in as Uber vehicle was making left-hand turn. Under VTL §1141 turning vehicle must yield right-of-way to vehicles entering intersection and the vehicle entering the intersection can assume turning vehicle will do so, leaving question of fact on defendants’ negligence. S.G. v Singh


Appealable Order  

Second Department

Plaintiff’s appeal of order granting third-party defendant summary judgment dismissing third-party complaint commenced after plaintiff obtained default judgment against third-party plaintiff dismissed as plaintiff was not aggrieved by that portion of order but that portion of order that dismissed the Complaint reversed as third-party defendant was not entitled to order dismissing Complaint where default judgment was granted without an Answer. Pennini v Shooting Stars

IF YOU MUST READ
(2 summaries)
MUST READS NOTEWORTHY

Coverage   Gross Negligence  

Second Department

Carrier and attorney assigned to represent defendant in underlying MVA case that resulted in excess verdict granted summary judgment dismissing insureds’/clients’ bad faith claim for not settling within their $100,000 policy on proof they did not act in “gross disregard of the insured’s interests, that is a deliberate or reckless failure to place the interests of the insured on an equal footing with the insurer’s own interests when considering a settlement offer.” Waters v Geico Ins. Agency, Inc.


Serious Injury  

Second Department

Defendant met burden for summary judgment on serious injury, including 90/180-day category, and plaintiffs failed to raise an issue in opposition. The court does not give the details of the proofs. A.H. v Munson

About Matt McMahon

Civil trials and appeals since 1984
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