February 13, 2024 | Vol. 404

(4 summaries)

Attorney Fees   Motion to Dismiss  

First Department
In action for $5,500,000 in additional attorney fees for post-verdict and appellate work, where a $102 million verdict was reduced to $53,705,730, based on the law firm’s proposed additional retainer agreement for an additional 10% of the recovery, law firm’s motion to dismiss client’s breach of contract counterclaim denied where client did not sign the additional retainer and alleged he promptly and repeatedly disagreed with it and his lawyer acknowledged the disagreement. Placing the disputed amount in escrow, as required by the rules of professional conduct, did not shield the law firm from a breach of contract claim based on its original retainer for 1/3 of the recovery.

Client’s breach of fiduciary duty claim based on allegation on failure to convey settlement offers dismissed as the alleged offers were lower than the ultimate recovery but client granted leave to replead if there were offers that would have netted him a greater recovery. Morelli Law Firm, PLLC v Perez    

Child Victims Act   Assault   Emotional Harm   Raised For First Time  

Second Department
School-defendants’ motion to dismiss plaintiff’s claims of negligence, breach of fiduciary duty, and emotional harm in Child Victim’s Act case for sexual assault by a fellow student granted to the extent of dismissing breach of fiduciary duty and emotional harm causes of action as duplicative of negligence cause of action which adequately plead a sexual offense as defined by Penal Law and moving defendants were not entitled to the infancy defense that might be available to another defendant. Doe v Mesivtha, Inc.    

Comment: Plaintiff’s motion to proceed by pseudonym granted where he showed a “reasonable likelihood that he will suffer adverse consequences to his employment, education, and marital prospects if his identity is publicly revealed,” but he was required to provide his name and identifying information. Defendants’ objection to plaintiff’s unnotarized affidavit rejected where raised for the first time on appeal. Doe v Mesivtha, Inc.

Malpractice   Vacate Jud   Directed Verdict   Appealable Order   Jury Charge   Res Ipsa Loquitor  

Second Department
Plaintiff’s appeal from separate judgments on verdict in favor of general and plastic surgeons did not bring up for review trial court’s grant of hospital’s application for judgment as a matter of law at the close of evidence under CPLR §5501(a).

Plaintiff’s appeal to vacate separate judgments entered on verdict finding no liability against general surgeon and plastic surgeon for perforation of his colon during liposuction denied as lower did not err in refusing to give res ipsa loquitor jury charge where plaintiff’s experts testified the perforations could be caused by preexisting conditions, negating any finding that the perforations would not have occurred absent negligence. Trial court providently allowed defense counsel to comment on the transversus abdominis plane block performed by the hospital’s employee, a non-defendant anesthesiologist, in summation. Tejada v St. Luke    

Comment: The Court cited to its Charalabidis v Elnagar decision, reported in Vol. 228, on the issue of what is available for review from the judgments appealed from. That decision gives a detailed review of the difference between a non-appealable decision and an appealable order or judgment.

Labor Law §240   Labor Law §241   Gravity Risk   Industrial Code  

First Department
Defendants’ denied summary judgment on Labor Law §240(1) where testimony and documents raised issues of whether day-long work to replace 6″-tall, 700-pound water heater was a repair covered by §240 or routine maintenance and defendants offered no proof as to why the heater was leaking and no longer functioning in order to establish it was due to normal wear and tear of any component parts or the system itself and whether the heater presented a significant height differential when strapped to a hand truck. Labor Law §241(6) claims dismissed where plaintiff failed to show violation or causation from violation of a specific industrial code. Rodriguez v Fawn E. Fourth St. LLC    

(14 summaries)

MVA   Vacate Default   Personal Juridiction   Service   Notice   Raised For First Time  

First Department
Plaintiff failed to meet burden for a default judgment against bus driver where affidavit of service for service at his place of business without show the required mailing under CPLR §308(2) was a jurisdiction, not technical defense, as it makes it less likely the defendant would receive notice of the action. Nor did plaintiff show proper out-of-state service under VTL §253 where the affidavit was not filed and did not show proof of proper mailing under §253.

Plaintiff waived any objection to remaining defendants’ lack of standing as non-aggrieved parties where it was raised for the first time on appeal. Williams v MTA Bus Co.    

Public Health §2801-d   Venue   Raised For First Time  

Second Department
Nursing home met burden for change of venue from Kings to Nassau county based on admission agreement forum selection clause and plaintiff failed to meet burden of showing the clause was unreasonable, unjust, against public policy, or the result of fraud or overreaching. Claims it was unconscionable or a contract of adhesion not considered where raised for the first time on appeal. Johnson v Seagate Rehabilitation & Nursing Ctr.    

Child Victims Act   Discovery  

Second Department
Archdiocese’s motion for protective order striking discovery demand of plaintiff in Child Victims Act case alleging she was sexually abused by a priest in 1970 granted in its entirety rather than requiring it to produce the documents for an in camera inspection where it was palpably improper as a court is not required to prune an improper demand. The Court does not give the details of the demands. Roe v Roman Catholic Archdiocese of N.Y.    

Preclusion   Discovery   Note of Issue   Reasonable Excuse   Subpoena   Appealable Order  

First Department
Plaintiff’s motion to vacate order precluding him from taking defendants’ EBTs and requiring him to file a Note of Issue, and subsequent order denying his motion to strike the Note of Issue and granting defendants’ motion to quash 4-nonparty subpoenas denied where plaintiff failed to show any error in the lower court’s exercise of discretion and the proffered excuse that counsel was on family leave did not provide a reasonable excuse by law office failure as it was unrelated to the firm’s failure to comply or seek an extension of time on the Note of Issue. Subpoenas providently quashed where they were filed after the court-ordered deadline and sought discovery previously precluded by the appellate division.

Plaintiff’s appeal was not moot where his appeal from a subsequent order granting defendants summary judgment was still pending. Crandall v Equinox Holdings, Inc.    

Comment: The previous appeal was reported in Vol. 320.

Notice of Claim   Actual Knowledge   Speculation   Reasonable Excuse   Prejudice   NYC  

Second Department
Petition to serve late Notice of Claim denied where petitioner failed to provide a reasonable excuse for 8-month delay in seeking leave after Covid tolls ended, show he was so incapacitated from his injuries that he could not file a timely Notice of Claim, that NYC had actual knowledge of the essential facts on speculation it was in reports without their contents, or that NYC would not be prejudiced by delay. Matter of Dutra v City of New York    

Labor Law §240   Labor Law §241   Sole Cause   Comparative Fault   Agent   Indemnity  

First Department
Worker who fell through floor opening when temporary plywood shifted at construction site granted summary judgment on Labor Law §240(1) against owner and GC and could not be sole cause of the accident as there was a statutory violation under §240. Unattributed statement in WC form that plaintiff was lifting wood at the time did not raise an issue and argument he should not have been working in that area at the time was at most comparative fault not a defense to §240. Construction manager and demolition contractor granted summary judgment dismissing §240 claims on proof they were not statutory owner agents and were not negligent. Negligence claim against demolition contractor dismissed even though it created the opening on proof it was not on the site for several weeks and it was specifically not required to provide fall protection under its contract.

Owner granted conditional summary judgment on contractual indemnity against plaintiff’s employer where agreement was triggered by accidents resulting from employer’s work and agreement did not violate GOL §5-322.1. GC denied conditional summary judgment on contractual indemnity against plaintiff’s employer where questions remained of whether GC was sole cause of plaintiff’s injuries. Owner’s and GC’s contractual indemnity claims against demolition contractor dismissed as it was not negligent. Devlin v AECOM    

Serious Injury   Amend BP   Note of Issue   Preexisting   Renew   Reasonable Excuse  

Second Department
Defendant’s motion for summary judgment on serious injury denied where plaintiff’s expert’s opinion that plaintiff suffered severe, disabling headaches limiting her ADLs as a result of the accident raised an issue in opposition on permanent consequential and significant limitation categories and defendant did not show as a matter of law that the accident did not exacerbate plaintiff’s preexisting brain injuries.

Plaintiff’s cross-motion to amend her BP denied where made 4-months after Note of Issue and she failed to show “special and extraordinary circumstances” and motion to renew denied without reasonable justification for not submitting hospital report with original cross-motion. Ghosio v Weiser    

Malpractice   Informed Consent   Assault   Accepted Practice   Causation   Experts   Speculation   Conclusory  

Second Department
Defendants granted summary judgment dismissing patient’s claim for injury from defendant-doctor performing an “aggressive, forceful and negligent examination” on her nose based on the opinions of their experts in plastic/reconstructive surgery, otolaryngology, and radiology that there was no departure from accepted practice and no causation. Plaintiffs offered no expert opinion is opposition and treating doctor’s unsworn report, even if admissible, failed to raise an issue as it was speculative and conclusory.

Lack of informed consent claim dismissed where defendants’ submissions showed no “affirmative violation of plaintiff’s physical integrity.” Kelly v Ahn    

Malpractice   Accepted Practice   Causation   Experts  

Second Department
Defendants met burden for summary judgment on maternal-fetal health defendant’s opinion that he did not depart from accepted practice, ob/gyn expert’s opinion that defendant-obstetrician who delivered the baby did not depart from accepted practice, and expert geneticist’s opinion the child’s injuries were characteristic of a genetic defect. Plaintiff’s ob/gyn expert, qualified in intrauterine growth restrictions, raised issues in opposition on opinion that fetal weight measurement by defendant maternal-fetal health specialist raising concerns of slow growth of the abdomen indicated utero-placental insufficiency, not a genetic disorder, and defendants’ failure to conduct more frequent testing, diagnose intrauterine growth restriction, and perform a C-section earlier to allow the child to grow outside the womb were departures and a cause of the child’s injuries. Defendant who delivered the baby owed a duty to test for intrauterine grown restrictions and schedule the C-section where he and maternal-fetal health defendant met regularly during the pregnancy and relied on each other’s tests. Gupta v Lescale    

Premises Liab   Out of Possession   Duty   Notice   Last Inspection  

Second Department
Landlord failed to meet burden for summary judgment for tenant’s employee’s injuries from fall when her foot got caught in an uneven depression in the wood/tile floor after she slipped on grease in tenant’s kitchen where it did not submit a complete copy of its lease, leaving questions of whether it had a contractual duty to maintain the floor, had relinquished so much control over the premises as to extinguish any duty to maintain the area, and whether it lacked constructive notice of the defect where its managing partner testified he periodically inspected the premises but did not indicate the last time it was inspected prior to the accident. Cicio v Kingswood Props., LLC    

Premises Liab   Wet Floor   Survelliance Video   Admissibility   Create Condition   Notice  

First Department
Defendants failed to meet burden for summary judgment dismissing plaintiff’s claim for slip and fall on wet floor without laying a proper foundation for the surveillance video they claimed showed they did not create or have notice of the condition. Pesquera v 1968 2nd Ave. Realty LLC    

Premises Liab   Sidewalk   Trivial  

Second Department
Abutting landowners granted summary judgment dismissing plaintiff’s claim for trip and fall in a gap between 2-sidewalk slabs on plaintiff’s testimony and photographs showing any defect was trivial as the gap was “was physically insignificant and that the characteristics of the defect or the surrounding circumstances did not increase the risks it posed.” Brown v Villarba    

Serious Injury   Experts   Conclusory   ROM   BP  

Second Department
Defendant met burden for summary judgment on competent medical proof that plaintiff did not sustain a serious injury and plaintiff’s expert’s report failed to raise an issue in opposition where he did not identify the method used to measure ROM or provide normal ROM ranges. Plaintiff’s claim of injury to his right knee did not raise an issue as it was not alleged in the BP. Gonzalez v Cohn    

MVA   Rear End   Nonnegligent Explanation  

Second Department
Defendant’s affidavit that his vehicle was moving when a third-vehicle pushed him into the rear of plaintiff’s vehicle which was also moving failed to meet burden for summary judgment as it did not provide a nonnegligent explanation for the rearend hit without addressing whether he maintained a safe distance from plaintiff’s vehicle under the traffic conditions. Williams v Isaac    

(0 summaries)

About Matt McMahon

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