February 11, 2020 | Vol. 197

(5 summaries)

Products Liab   Motion to Dismiss   Forum non conveniens  

Second Department
Motion by manufacturer, Delaware corporation with principal place of business in White Plains NY, to dismiss on forum non-convenience (CPLR §327[a]) denied where it relied solely on attorney affirmation pointing out that 19 of 21 plaintiffs were nonresidents without showing what witnesses would be expected to testify and why NY would not be an appropriate venue. It was manufacturer’s burden to show NY was an inappropriate venue. Albright v Combe Inc.

Med Mal   Accepted Practice   Causation   Expert Aff  

Second Department
Plaintiff’s expert raised issues of fact in opposition to defendants’ showing of entitlement to summary judgment on opinion that defendants deviated from accepted practice by not prescribing anticoagulants after C-section where plaintiff had history of rickets and opinion that departure was a cause of decedent’s death from DVT was supported by autopsy report. Defendants’ expert’s contrary opinions created issues of fact to be decided by jury. Plaintiff’s expert sufficiently defined standard of care with opinion within his/her area of expertise and “was not required to provide official medical guidelines or other foundational evidence to support the reliability of the opinion rendered.” Mehtvin v Ravi

Premises Liab   Sidewalk   MVA   De Minimus   Sole Cause  

First Department
Abutting landowner and management company denied summary judgment where plaintiff’s testimony that he was hit by a car after he tripped and fell while running to avoid the car that mounted the sidewalk was not so incredible as to make it physically impossible, photographs submitted by defendants taken at a distance with no measurements were insufficient to establish that defect was trivial, plaintiff identified the defect as the cause of his fall, and defendants failed to show plaintiff was sole cause of his injury based where plaintiff testified that he would’ve been able to avoid being hit if not for the defect and police report showed other people were able to avoid being hit. Gogu v Gap, Inc.

Comment: The day before this decision, a jury returned a verdict for defendants.

MVA   Graves Amendment  

Second Department
Truck lessor proved it was in business of renting vehicles and that accident occurred during rental agreement but failed to submit evidence of vehicle’s condition at time of delivery and accident, in response to plaintiff’s allegations that they negligently maintained the vehicle. Negligent maintenance is an exception to the Graves Amendment. Couchman v Nunez

Vacate Jud   Collateral Estoppel   Punitive Damages  

First Department
Biological mother as administratrix of child who died under care of Joel Steinberg properly moved to amend judgment to $5 million less credits for funds already received leaving $4,010,660.92 after Court of Appeals found defendant barred by collateral estoppel from disputing claim that he failed to get help for the child after knowing she suffered a life-threatening injury but eliminated $5 million of compensatory damages for two causes of action and $5 million of punitive damages. Plaintiff timely filed notice of settlement within 60-days. Launders v Steinberg

(17 summaries)

Med Mal   Accepted Practice   Expert Aff  

First Department
General practitioner granted partial summary judgment for not ordering cancer screening and x-ray on initial exam where decedent complained only of puffy eyes with nasal congestion but denied summary judgment for failure to order immediate chest/neck/throat imaging and motility study after decedent called complaining of extreme difficulty swallowing, instead referring him to a gastroenterologist. Question remain of whether it was a departure not to include mediastinal mass/tumor and PMBCL in differential diagnosis. Oncologist granted summary judgment on expert’s unrefuted opinion that commencing treatment before final pathology report posed a fatal risk and differential diagnosis included several possible cancers. Hindsight that it turned out to be what was suspected from the preliminary biopsy did not establish a departure. Bogin v Metz

Default Judgment   Directed Verdict   Admission   Causation   Appealable Order  

Second Department
Lower court’s sua sponte dismissal of action at inquest finding plaintiff failed to prove negligence and causation reversed as ‘all traversable allegations in the complaint, including the basic allegation of liability’ are admitted on default. Appeal from sua sponte order was deemed an application for leave to appeal and leave to appeal was granted. Arluck v Brezinska

Amend Complaint   Motion to Dismiss   Statute of Limitations  

First Department
Plaintiffs’ motion to amend Complaint to add party made 2-weeks after serving Complaint where action timely commenced by Summons with Notice, granted even without a the proposed amended pleadings because motion was within time to amend as a matter of right (CPLR 3025[a]) and was timely under relation-back theory. Added defendant’s motion to dismiss on statute of limitations claiming pleading didn’t establish it was united in interest with other defendants denied as pleadings must be liberally construed. Stanger v Shoprite of Monroe, NY

Labor Law §240   Safety Devices   Sole Cause  

Second Department
Plaintiff granted summary judgment on Labor Law §240(1) on his testimony that foot of ladder slipped away from wall causing him to fall. Defendants’ claim that off-site employer had appropriate ladders insufficient to raise question of fact without proof that they were readily available to plaintiff as defined by §240 and claim that plaintiff must have been sole cause of accident because there was no evidence that subject ladder was defective inapplicable because a plaintiff provided with only an unsecured ladder cannot be the sole cause. Von Hegel v Brixmor Sunshine Sq., LLC

Labor Law §240   Labor Law §200   Safety Devices   Premises Liab   Create Condition   Notice  

First Department
Defendants granted summary judgment on Labor Law §240(1) where even assuming installation of office furniture in newly renovated space constituted “alteration,” permanently affixed cabinet that fell was not object being hoisted or object that needed to be secured for purpose of task and anti-dislodgment screws recommended by plaintiff’s expert were not a safety device under Labor Law. Labor Law §200 and negligence claims dismissed where defendants had no authority to supervise plaintiff’s work and defendants established they did not create the condition or have notice of it. Blake v Brookfield Props. One WFC Co., LLC

Premises Liab   Slip/Trip   Sidewalk   Duty  

Second Department
Tenant of property abutting sidewalk denied summary judgment where it had no duty to maintain sidewalk under lease but local code required “owners, tenants…” to maintain the sidewalk creating a statutory duty to do so. Mule v Invite Health at New Hyde Park, Inc.

Med Mal   Discovery   Note of Issue   Raised For First Time  

First Department
Plaintiff’s motion to extend time to file Note of Issue and compel additional doctor depositions and disclosure of documentary evidence providently denied where plaintiff failed to provide sufficient detail to show that original depositions were inadequate or that additional discovery was material and necessary. Newell v City of New York

Labor Law §240   Gravity Risk   Question of Fact  

First Department
Defendants denied summary judgment on Labor Law §240(1) where 8-9 windows each weighing 175lbs tipped over from tractor-trailer wall while being unloaded as their combined weight “could generate a significant amount of force during the short descent,” and questions remained on whether protective devices under §240 would have prevented them from falling and whether additional safety devices were necessary if the trailer was not level. O’Brian v 4300 Crescent L.L.C.

Legal Mal   Labor Law §241   Feigned Issue  

Second Department
In action commenced by attorney defendants for plaintiff who was struck by the bucket of an excavator, Supreme Court dismissed Labor Law claims finding there was no elevation risk and industrial codes relied on were too general or did not apply. Defendants successfully moved to withdraw and plaintiff subsequently discontinued action pro se but then sued defendants claiming they would have received a favorable outcome under inapplicable industrial code provisions, failing to show that absent malpractice there would have been a more favorable outcome. Factual allegations contrary to plaintiff’s deposition testimony, supported by his brother’s affidavit, raised only feigned issues. Dominguez v Mirman, Markovits & Landau, P.C.

Premises Liab   Prior Written Notice   Notice of Claim   Raised For First Time  

Second Department
Plaintiff tripped and fell in hole in roadway surface where city’s concrete roadway met town’s asphalt roadway. City granted summary judgment on proof it did not create condition or have prior written notice. Plaintiff’s allegation of improper lighting against town rejected where it was first raised in a BP 3-years after the accident and not included in the Notice of Claim or Complaint. Town’s motion for summary judgment denied where affidavit of records officer indicated she searched highway department records but did not state she searched town clerk’s records. Weinstein v County of Nassau

MVA   Bus  

First Department
MTA granted summary judgment on bus driver’s testimony and video of bus interior showing that bus was proceeding smoothly at 3 mph when plaintiff fell forward attempting to sit and reach a strap to steady himself. There must be objective evidence that bus made an extraordinary and violent jerk for liability. Atterbury v Metropolitan Transp. Auth.

Premises Liab   Slip/Trip   Wet Floor   Set Aside Verdict  

Second Department
Defense verdict finding dangerous condition existed on floor below glass roof defendant was hired to remediate but that defendant was not negligent in creating or exacerbating condition affirmed where jury could reach decision on a fair interpretation of the evidence. Baillargeon v Kings County Waterproofing Corp.

Premises Liab   Labor Law §240   Ladder   1-2 Family Exception  

First Department
Coop owners who hired plaintiff’s employer to paint hallway outside their coop units granted summary judgment under 1-2 family exception of Labor Law §240(1) where painter fell from ladder even though work was not in their apartment because it was for their residential not commercial benefit and picking paint colors and wallpaper samples was not controlling work under §240. Coop’s indemnity claim against unit owners dismissed where under propriety lease hiring painter was not “any act, default or omission” leading to injury. Marquez v 171 Tenants Corp.

Med Mal   Accepted Practice   Causation   Expert Aff  

Second Department
Hospital denied summary judgment on negligent post-discharge care where it’s expert did not address allegations of negligent post-discharge alleged in the Complaint and BP, failing to meet its burden of proof. Kogan v Bizekis

Premises Liab   Slip/Trip   Sidewalk   § 7-210   Create Condition   Expert Aff   Speculation  

First Department
Port Authority granted summary judgment on proof it did not own property abutting the sidewalk where plaintiff fell and its employees’ affidavits attesting that no construction was done in area before the accident. Plaintiff failed to raise issue in opposition by claims that defendant or its contractor created height differential through trash removal or subsurface work which was speculative without expert opinion or any other proof. Girard v Port Auth. of N.Y. & N.J.

Premises Liab   Slip/Trip   Stairs   Causation   Survelliance Video   Admissibility  

Second Department
Defendants granted summary judgment on proof, including surveillance video of accident, demonstrating that alleged dangerous condition on stairs was not a cause of plaintiff’s accident. Video was authenticated and properly considered by court. Quinones v 2074 White Plains Rd. Bldg., LLC

Serious Injury   ROM  

Second Department
Defendant met burden for summary judgment on serious injury and plaintiff’s treating doctor’s affirmed report failed to raise issue of fact where it did not identify objective test used to measure ROM or other objective tests. Nicholson v Kwarteng

(1 summaries)

Serious Injury   Causation  

Second Department
Plaintiff raised issue of fact in opposition to defendants’ showing of entitlement to summary judgment on serious injury. Since defendants did not meet burden on causation, burden never shifted to plaintiff. The court does not give the details of the proofs. Singh v Singh

About Matt McMahon

Civil trials and appeals since 1984
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