February 1, 2022 | Vol. 298

(5 summaries)

Motion to Dismiss   Statute of Limitations  

First Department
Port Authority which requires actions be commenced within 1-year does not fall within 1-year and 90-days time to commence a lawsuit under the Uniform Notice of Claim Act of CPLR §217-a and New York Unconsolidated Laws §6412-a because it is neither a subdivision of the state of New York nor a NYS public authority as it is a bistate authority and New Jersey does not have a law identical to New York’s. Action commenced 1-year and 2-months after the accident dismissed. McKenzie v Port Auth. of N.Y. & N.J.    

Malpractice   Informed Consent   Directed Verdict   Set Aside Verdict   Accepted Practice   Causation   Experts   Preclusion  

Second Department
Trial court improvidently denied plaintiff’s motion for new trial in the interest of justice at close of plaintiff’s case, and granted defendants’ motion for directed verdict, where court improperly precluded plaintiff’s expert from testifying to OB/GYNs’ departures from accepted practice as beyond scope of CPLR §3101(d) disclosures where the opinions were raised in the BP and the expert’s affirmation in response to defendants’ motion for summary judgment and there was ample foundation regarding the remaining defendant’s departures in the testimony and medical records. The error could not be considered harmless and required a new trial.

The initial OB/GYN diagnosed an inevitable abortion and suspected chorioamnionitis when plaintiff presented to the hospital at 21-weeks complaining of decreased fetus movement and offered an abortion which plaintiff declined in favor of allowing a miscarriage to occur naturally. The next morning the second OB/GYN diagnosed inevitable abortion but found chorioamnionitis unlikely. That evening the third OB/GYN recommended plaintiff be induced to “expedite delivery of inevitable abortion” which was done the following morning. The stillborn infant was found not to have chorioamnionitis.

Prior motions for summary judgment by 2-defendants properly denied where plaintiff raised issues of informed consent and plaintiff’s expert raised issues of departure and causation. Johnson-Hendy v Mosu    

Comment: Appeals from denial of summary judgment by two defendants dismissed as subsumed by the judgment addressed in the above decision. Johnson-Hendy v Mosu.

Motion to Dismiss   Statute of Limitations   Court of Claims  

First Department
State granted summary judgment of decedent’s Court of Claims Act §8-b wrongful conviction claim where administrator filed Claim 2-years and 4-months after indictment was dismissed as CPLR §210 toll for death does not apply to §8-b claims which must be brought within 2-years of pardon or dismissal, nor does Court of Claims Act §10(6) extensions which govern only actions specified in §10 apply, and CPLR §§ 2004, 2005 cannot extend a statute of limitations. Court of Claims providently considered state’s motion to dismiss where not mentioned in Notice of Motion where clearly stated in supporting affirmation. Ricciardi v State of New York    

Malpractice   Informed Consent   Accepted Practice   Causation   Res Ipsa Loquitor  

Second Department
Plaintiffs’ experts’ opinions that injured-plaintiff’s torn quadriceps tendon does not ordinarily occur during spinal surgery absent negligence, the instrumentality of harm was solely within defendants’ control, and plaintiff was unconscious when injured raised issues on res ipsa loquitor in opposition to hospital’s, hospital’s doctors’, and anesthesiologist’s showing of entitlement to summary judgment. Plaintiff need not eliminate all possible causes, but only show defendants’ actions were more probably the cause. Spinal surgery practice, surgeon, and physician’s assistant failed to meet burden for summary judgment with deposition testimony, medical records, and plaintiff’s treating neurosurgeon’s affirmation, who had no recollection of plaintiff being transferred to/from operating table, which did not show these defendants did not deviate from accepted practice or were not proximate cause of plaintiff’s injuries.

Plaintiffs failed to meet burden for summary judgment on deposition testimony and medical records without expert opinions and were insufficient to prove res ipsa loquitor as a matter of law. Lancia v Good Samaritan Hosp.    

Premises Liab   Renew   Admissibility   Experts   Reasonable Excuse  

First Department
Defendants’ explanation they inadvertently omitted expert sworn affidavit from motion for summary judgment that was denied without a sworn affidavit was sufficient to grant renewal to correct a procedural oversight and defendants granted summary judgment on expert’s opinion that hotel was not required to have illuminated light switches in bathrooms where decedent was injured. Plaintiff failed to raise an issue in opposition where it originally submitted an unsworn expert report and did not include a sworn report in opposition to motion to renew. Feuerman v Marriott Intl., Inc.    

(22 summaries)

Motion to Dismiss   Settlement   Note of Issue   Untimely   Reasonable Excuse  

First Department
Motion to dismiss counterclaims by defendant who previously settled with plaintiff denied as untimely where brought 1-year after plaintiff filed Notice of Issue, required to be made within 60-days of Note of Issue under part rules. Moving defendant’s claim it was unaware of case status, including the filing of Note of Issue, because defendants did not apprise them of such was not good cause for not bringing a timely motion. Cooper v Metropolitan Transp. Auth.    

Malpractice   Set Aside Verdict   Directed Verdict   Accepted Practice   Causation   Admissibility   Prejudice   Raised For First Time  

Second Department
Defendants’ motion to set aside verdict finding they departed from accepted practice by discharging late term plaintiff with complaints of decreased fetal movement without admitting her for monitoring and possible delivery denied as there was rational path for jury’s verdict which was based on fair interpretation of evidence and was not contrary to the weight of evidence. Defendants’ claim of inconsistent verdict not preserved where raised for first time on appeal.

Admission of textbook for truth of its contents was error, but harmless under the circumstances. Young v Heller    

Set Aside Verdict   Spoliation   Jury Charge   Res Ipsa Loquitor  

First Department
Defense verdict set aside and new trial ordered where lower court declined to give missing surveillance video charge granted by previous order. Plaintiff was not entitled to res ipsa loquitor charge as table that caused injury was on open sales floor and not in exclusive control of defendant. Hegbeli v TJX Cos., Inc.    

MVA   Pedestrian   Sole Cause   Emergency Doctrine  

Second Department
Defendant driver granted summary judgment on proof 3-year-old infant-plaintiff darted out between parked cars into path of vehicle, away from crosswalk, without time for defendant to avoid accident. Rosner v Srulovic    

Negligent Supervision   Building Security   Notice  

First Department
Charter school granted summary judgment for student assault on proof it provided adequate supervision, there was no animosity between plaintiff and assailant, and attack was so sudden no degree of supervision could have prevented it. Plaintiff’s vague assertions of dissimilar incidents months before were insufficient to raise an issue as they would not have put school on notice of a spontaneous attack. Y.R. v City of New York    

Labor Law §240   Labor Law §200   Scaffold   Sole Cause   Recalcitrant Worker   Indemnity  

First Department
Drywall taper denied summary judgment of Labor Law §240(1) claim where he fell off Baker scaffold as his employer’s vice president and supervisor raised issues of sole cause on testimony guardrails were provided and all employees instructed to use them, and supervisor inspected scaffold while plaintiff was being put into ambulance and found them in working order with the provided guardrails against a wall instead of installed on the scaffold. Plaintiff conceded defendants did not violate Labor Law §200 and the appellate court searched the record to grant defendants summary judgment dismissing §200 and negligence claims.

As defendants were not negligent, they were entitled to contractual indemnity against plaintiff’s employer where agreement provided for indemnity from any claims arising from its work. Vargas v 1166 LLC    

Labor Law §240   Labor Law §241   Safety Devices   Industrial Code   Sole Cause  

Second Department
Plaintiff granted summary judgment against owner and contractor on Labor Laws §240(1) where he fell 25′-30′ while installing a roof truss on 2-family home being constructed for investment purposes on proof no safety devices were provided. Defendants failed to raise issue on lack of violation or that plaintiff was sole cause of accident. Industrial code §§ 23-1.16 and 23-1.17 inapplicable for Labor Laws §241(6) claim as no safety devices were provided. Framing subcontractor granted summary judgment dismissing Complaint. Venegas v Shymer    

Premises Liab   Out of Possession   3rd Party Contractor   Espinal  

Second Department
Owner of building, fully rented to hospital which took possession 1-month before its employee slipped on metal bracket lying on interior staircase, granted summary judgment as an out of possession owner with no duty keep staircase free of transitory conditions. General contractor granted summary judgment on proof it completed renovation work before accident and did not cause the metal bracket to be on the stairs or otherwise launch an instrumentality of harm under Espinal. Santiago v Post Rd. Assoc., LLC    

Premises Liab   Wet Floor   Out of Possession   Control   Notice   Indemnity  

First Department
Building owner that rented diner to third-party defendant and hotel defendant failed to show they were out-of-possession landlords without providing a copy of lease between building owner and hotel, building owner maintained an office in the building with an employee to oversee the building, and there was evidence the hotel exercised control over the pipe including sending someone to repair it after plaintiff slipped on the wet floor when the pipe burst. While owner’s lease with the diner made the diner partially responsible for pipe maintenance, questions remained of whether the pipe served only the diner or the 43-story building and owner reserved the right to reenter for repairs. Defendants failed to show last time pipe was inspected.

Lease provision requiring diner to procure insurance took indemnity agreement out of GOL §5-321 prohibition against indemnity for owner’s negligence but owner only entitled to conditional summary judgment on contractual indemnity pending determination of its negligence. Matias v New Yorker Hotel Mgt. Co., Inc.    

MVA   Train   Experts  

Second Department
NYCTA and MTA granted summary judgment on train operator’s testimony he slammed on emergency brake 3.5 car lengths into train station when he saw plaintiff’s knees buckling before falling on the tracks and defendants’ expert’s opinion there was not enough time to stop after seeing plaintiff about to fall. Plaintiffs submitted only counsel’s affirmation, insufficient to raise an issue in opposition. Canel v New York City Tr. Auth.    

Premises Liab   Stairs   Building Code   Causation   Experts   Speculation   Question of Fact  

First Department
Plaintiff’s testimony she was too far from handrail to reach it as she started to fall but reached for the door handle, consistent with video, and her expert’s unrebutted opinion staircase violated 1922 building code without a middle handrail as stairs were more than 88″ wide, raised nonspeculative issue in opposition to defendant’s prima facie entitlement to summary judgment based on video and plaintiff’s testimony showing she placed only front portion of foot on the step. Carmel v Young Men    

Premises Liab   Notice   Last Inspection   Dangerous Condition  

Second Department
Fitness center failed to meet burden of showing it lacked actual or constructive notice of treadmill spontaneously accelerating where it submitted plaintiff’s testimony that she complained about it a week earlier and defendant did not show last time treadmill was inspected or that it was not dangerous or defective. Fitness center owner’s testimony of general cleaning procedures was insufficient to eliminate questions of constructive notice especially where he did not know last time treadmill was inspected. Mermelstein v Campbell Fitness NC, LLC    

Premises Liab   Snow/Ice   Storm in Progress   Burden of Proof  

Second Department
NYCTA granted summary judgment on plaintiff’s 50H testimony that it was snowing when he fell on stairs with snow on them leading to underground subway and climatological data establishing a storm in progress, and nothing in defendant’s submissions showed they undertook snow removal efforts. Plaintiff failed to meet burden of showing he fell from snow removal efforts. Colon v New York City Tr. Auth.    

False Arrest   Probable Cause   NYC  

First Department
NYC and detectives failed to show probable cause for arrest of husband/wife on claim detectives found weapons/drugs in plaintiffs’ apartment when executing search warrant that included plaintiff’s first floor apartment and basement apartment of 3-apartment home where only 2 of 3 detectives could recall they were found in plaintiffs’ apartment and evidence vouchers did not state from which apartment they were recovered. Husband testified detectives stopped him outside the home before the search and threatened to arrest his wife if he didn’t admit to having the weapon/strokes in his apartment and separated the wife who knew nothing about the drugs/narcotics when they said they would not arrest her if she told them about them. Probable cause for the search for was not probable cause for the arrest. Salcedo v City of New York    

Premises Liab   Trivial   Indemnity  

Second Department
Building owner denied summary judgment were photographs and video surveillance were inconclusive of whether condition on ramp where plaintiff fell was physically insignificant and surrounding circumstances did not increase the risk, failing to show condition was trivial. Defendant failed to meet burden of showing it was entitled to contractual indemnity against tenant. Leem v 152-24 N., LLC    

Comment: See decision denying tenant’s motion for summary judgment below.

Premises Liab   Unknown Cause   Raised For First Time  

Second Department
Tenant failed to meet burden of showing plaintiff could not identify cause of her fall on ramp when exiting tenant’s property where her deposition testimony, submitted by defendant, raised issue of whether she tripped on defect under mat on ramp. Defendant’s claim defect was trivial not considered where raised for first time on appeal. Leem v 152-24 N., LLC    

Comment: See decision denying building owner’s motion for summary judgment above.

Malpractice   Vacate Jud   Set Aside Verdict  

Second Department
After judgment was entered on jury verdict finding defendants did not depart from accepted practice, plaintiff’s pro se motion to vacate the judgment under CPLR §§ 5015(a)(2) and (3) and for referral to district attorney for claim of 1-defendant’s perjury denied as new evidence presented would not have changed result and plaintiff failed to meet burden of showing defendant’s alleged perjury. Krajcik v Jacono    

Serious Injury   ROM   BP   Experts   Conclusory  

First Department
Defendants met burden for summary judgment on serious injury with affirmed orthopedic and neurologist reports showing near-normal ROM in spine and shoulder, MRIs from prior accident showing disc bulges in cervical/lumbar spine and supraspinatus tendinitis in shoulder, and BP and EBT alleging plaintiff missed only a few weeks of work. Plaintiff’s expert failed to raise issue without explaining why pre-existing conditions were not cause of plaintiff’s symptoms and gave only conclusory opinion injuries were caused/aggravated by present accident. Rodriguez v Morel    

Premises Liab   Create Condition   Notice   Control  

First Department
Homeowner who hired plaintiff’s employer to remove/replace an old staircase granted summary judgment where plaintiff stepped on 2×4 securing stairs which broke and he was cut by a protruding screw on proof the old staircase was completely removed and replaced solely by the contractor, the screw was part of the new staircase, the homeowner’s directions on placement of the staircase and how to proceed were only general supervision and not specific directions, he did not have actual notice as condition was hidden and did not exist long enough for him to discover and remedy it. Attorney affirmation with attached deposition testimony was sufficient for summary judgment. Lara v Kadir    

MVA   Rear End   Pileup  

Second Department
Owner and driver of school bus that adult plaintiff was passenger in when it was struck from behind granted summary judgment on proof it was stopped or safely slowing down to a stop when struck and plaintiffs failed to raise an issue in opposition. Plaintiffs’ motion to renew providently denied where new facts would not have changed result. McPhaul-Guerrier v Leppla    

Premises Liab   Snow/Ice   Storm in Progress   Create Condition  

First Department
Building granted summary judgment where plaintiff slipped on snow on exterior landing on proof of storm in progress, which plaintiff conceded, and plaintiff did not allege or prove defendant undertook snow removal efforts that could have exacerbated condition. Lewis v 311 Realty, LLC    

Discovery   HIPAA   Privilege  

First Department
Plaintiff required to authorize release of NYCTA personnel and medically related records for in camera inspection regarding a medical evaluation after a previous accident and a prior conviction for DUI that resulted in suspension of his license, and other previous accidents which defendants limited to records of similar injuries or affecting claims of permanency. Request for hernia repair records denied where defendants failed to show relation to plaintiff’s claimed injuries. Kennedy v Ware    

(1 summaries)

Premises Liab   Prior Written Notice   Create Condition  

Second Department
Village granted summary judgment for plaintiff’s trip on uneven concrete panels in exterior parking lot on proof it did not receive required prior notice and did not create a hazardous condition by repair of adjacent area. The Court does not give the details of the proofs. DeCaprariis-Salerno v Incorporated Vil. of Rockville Ctr.    

About Matt McMahon

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