February 14, 2017 | Vol. 41

MUST READS
(5 summaries)

Labor Law §240   Arons Authorization  

First

Plaintiff’s medical records gave conflicting versions of the accident and defendants sought Arons authorizations to speak to the medical providers regarding the accident information. The lower court providently exercised its discretion in denying the request as Arons authorizations are limited to an “informal interview” regarding specific medical conditions whereas defendant was seeking a “deposition’ relating to the cause of the accident. Rucinski v More Restoration Co. Inc.


Med Mal   Continuous Treatement   Late Notice of Claim   Statute of Limitations   Unaffirmed Report  

First

Plaintiff’s motion to deem her Notice of Claim timely served based on continuous treatment for 2 appointments at which she was not seen should have been granted as the defendants’ purported proof of the last day of treatment was an unauthenticated computer printout described only by the attorney’s affirmation which conceded that the plaintiff was to be seen on at least one occasion after the date defendants claim was the last date of treatment. Defendant did not put in affidavits from anyone with personal knowledge regarding the last appointment date as testified to by the plaintiff. The continuous treatment doctrine applied to both the Notice of Claim and Statute of Limitation and the lower court should have denied summary judgment in favor of the defendant. There was 1 concurring opinion opining that it was a question of fact. Hill v New York City Health & Hosps. Corp.

Comment: In addition to making it clear that a scheduled appointment is sufficient for continuous treatment, this decision is important for the manner in which it analyzes the use of a computer printout which is neither authenticated nor explained by someone with personal knowledge.


Premises Liab   Prior Written Notice   NYC  

First

Defendant NYC granted summary judgment, where plaintiff rode his bicycle into a large hole near a NYC manhole cover used for access to sewer and water pipes, due to lack of prior written notice. Manhole covers for access to pipes is not a “special use” because it does not provide “a special benefit from that property unrelated to the public use,” unlike NYCTA manholes containing cable supplying power to trains which is a proprietary function. Chambers v City of New York


Med Mal   Motion to Dismiss   Certificate of Merit   CPLR § 3126   Reasonable Excuse   Meritorious Action  

First

Plaintiff’s failure to comply with court ordered stipulation to provide a Certificate of Merit pursuant to CPLR 3012-a(a) within 10 days or risk having the complaint dismissed, justified dismissal of the complaint as there was neither proof of a reasonable excuse nor meritorious action. Blasoff v New York City Health & Hosps. Corp.


Attorney Fees  

Court of Appeals

In action where an $8 million settlement was reached 10 days after a mediation, an attorney retained as co-counsel was awarded 20% of the fee based on a written agreement providing 20% without limitation, even though co-counsel was discharged by a letter stating that fee would be determined by quantum meruit. Subsequent co-counsel’s fee was reduced from 40% to 12% where agreement provided for 12% if settled at mediation and 40% if at trial. The Court rejected co-counsel’s argument that 12% only applied if settled on the day of the mediation. Jose Marin v. Constitution Realty v. David B. Golomb

NOTEWORTHY
(18 summaries)

Labor Law §240   Workers Comp Defense   Grave Injury   Indemnity  

Second Deptartment

Plaintiff who fell through a skylight while removing asbestos without anchor points for his harness granted summary judgment on Labor Law §240(1) against defendant. Employer, third-party defendant, established that plaintiff did not suffer a “grave injury” but failed to show that the post-accident indemnity agreement was not intended to be retroactive. Only post accident indemnity agreements which are intended to be retroactive may be the basis for contractual indemnity against an employer where there is no grave injury. Cacanoski v 35 Cedar Place Assoc., LLC


Set Aside Verdict  

First

$3,003,704.02 verdict remanded for new trial based on trial court error in precluding defendants’ biomechanical expert’s testimony in total, instead of portions of anticipated testimony which were not supported by scientific evidence, and preclusion of relevant post accident photographs. Shillingford v New York City Tr. Auth.


Premises Liab   Indemnity   Workers Comp Defense   Directed Verdict   Set Aside Verdict  

Second Deptartment

Two plaintiffs fell after placing a power washer on a wooden wall on a sidewalk bridge which collapsed. Plaintiffs granted summary judgment against building owner which sued third-party defendant, management company, for indemnity. At the end of owner’s proofs, third-party defendant moved for a directed verdict on grounds that the plaintiffs were their special employee and that they were not negligent, which was denied. Jury found third-party defendant at fault and lower court denied motion to set aside verdict. Appellate Division found that there was a rational basis for the jury to find that the plaintiffs were not third-party defendants’ special employees but that there was no rational basis upon which they could find the management company negligent. There was no proof that the ropes used to lower the washer were improper, that other safety equipment was required, or that the management company directed the plaintiffs to place the power washer on the wooden wall, and granted a directed verdict in favor of third-party defendant. Gonsalves v 35 W. 54 Realty Corp.


Labor Law §240   Recalcitrant Worker   Sole Cause   Untimely   Reasonable Excuse  

First

Lower court should have considered plaintiff’s motion for summary judgment which was 7 days late based on reasonable excuse that plaintiff’s attorney’s mother died suddenly. Although plaintiff made out a prima facie case on Labor Law §240(1), summary judgment was denied as defendant raised issues of whether other safety devices were available, the plaintiff knew that they were available, that he was supposed to use them, that he chose not to use them without good reason, and that the accident would not have occurred absent his choice. Escobar v 271 Mulberry St. Co., LLC


Wrongful Death   Discovery   Privilege  

First

The lower court properly denied portions of third-party plaintiff’s motion to compel a response to discovery demands which were overbroad, irrelevant, or already provided but should have granted third-party plaintiff’s motion as to relevant requests under the broad discovery policy of CPLR 3101, including: bills of lading and communications regarding delivery of the 400 ton “chiller” which fell on plaintiff’s decedent, both at time of delivery and removal; the manufacturing operating instructions; the job description for a flagman (the decedent’s position); and the third-party defendant employer’s investigative file. While the employer withheld most of the investigative file on claims of privilege, it failed to show the nature of the documents, information regarding how they were privileged, or even the identity of the attorney. Conclusory allegations by an attorney were insufficient to meet this burden. Mananghaya v Bronx-Lebanon Hosp. Ctr.


Labor Law §241   Industrial Code  

Second Deptartment

Interlocutory judgment from the Court of Claims finding defendant 70% at fault for violation of Labor Law §241(6) based on industrial code §23-1.7(e)(1)(keeping passageways free of debris and obstacles) affirmed where plaintiff had to use a 2-3’ passageway created by lumber and construction material and tripped on a padeye (a metal plate with a protruding metal loop) which the court found was not an integral part of the construction. Aragona v State of New York


Med Mal   Personal Juridiction   Motion to Dismiss   Discovery  

First

Defendant doctor’s motion to dismiss for lack of personal jurisdiction on grounds that doctor never practiced medicine in New York and had no nexus to New York properly denied, without prejudice to renewal after discovery, based on doctor’s website which bragged that he had practiced in New York for 14 years. Website alone was not sufficient to find a nexus for jurisdiction but was sufficient to require discovery. Venegas v Capric Clinic


Wrongful Death   Strike Answer   CPLR § 3126   Preclusion   Willful/Contumacious  

Second Deptartment

Lower court’s grant of motion conditionally striking defendant’s answer if she did not appear for deposition on a date certain was modified to conditionally preclude the defendant from offering testimony if she did not appear for deposition at least 30 days before trial as her failure to appear for deposition was not willful or contumacious. Brodsky v Amber Ct. Assisted Living, LLC


Lead Poisoning   Expert Aff   Causation  

First

Defendant granted summary judgment where the infant-plaintiff’s lead level was well within the acceptable range before and after a brief period where his lead level was slightly above the acceptable level, long history of speech and language difficulties long before his exposure to lead, and history of speech therapy into high school where he had a strong academic record. Plaintiff’s neuropsychologist did not have a baseline IQ to compare his findings to and the pediatric neurologist’s opinion that there was a 10 point drop in IQ was speculative without a baseline. The plaintiff’s neurologist’s opinions were not supported by peer-reviewed studies. Adrian T. v Millshan Realty Co., LLC


Premises Liab   NYC  

First

NYC granted summary judgment where student was injured by metal cage surrounding a light fixture because it was not a proper party and the complaint did not allege that NYC created the condition. Shantay P. v City of New York


Duty   Sole Cause   Negligent Hiring   Respondeat Superior  

First

Nurse working in plaintiff’s home owed an ordinary duty of care when taking down a blender for the plaintiff to use and did not breach that duty because she was not aware that there was an unsecured blade in the bowl which caused the plaintiff’s injury. The plaintiff’s storing of the unsecured blade in the bowl and failing to warn the nurse about the danger was the sole proximate cause of the accident. Since there was no breach on behalf of the nurse, her employer could not be held responsible under respondeat superior and since she was acting within the scope of her employment, for which respondeat superior could be applied if there was a breach, negligent hiring, supervision, and training were not applicable. Marshall v Darrick E. Antell, MD, P.C.


MVA   Bus   Sole Cause  

Second Deptartment

Defendants granted summary judgment where plaintiff, riding his motorcycle in the opposite direction, crossed the double yellow line and struck defendants’ bus in violation of VTL §1126(a). A driver is not required to anticipate that someone will cross over a double yellow line going in the opposite direction. Plaintiff was the sole proximate cause of the accident. Ciraldo v County of Westchester


Late Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice  

First

Petition to serve late Notice of Claim against HHC based on malpractice denied where record showed that plaintiff was discharged with instructions to return if he saw signs of infection. HHC could have concluded that nothing untoward happened after he left the hospital so the records did not give actual knowledge of the essential facts of the malpractice claim. Plaintiff also failed to show a reasonable excuse for the delay and lack of prejudice to HHC. Matter of Nazario v New York City Health & Hosps. Corp.


Serious Injury   ROM  

First

Plaintiff overcame defendant’s initial entitlement to summary judgment on serious injury by proof that she sought treatment for her shoulder injury shortly after accident, had a MRI 2 months after accident which showed tears, and her doctor’s opinion that she had limited range of motion several years after the accident. If a jury finds that she sustained a serious injury of her shoulder, she may recover for all causally related injuries. Bonilla v Vargas-Nunez


MVA   Comparative Fault  

First

Plaintiff’s motion for summary judgment denied where defendant raised issue of fact as to whether plaintiff pedestrian was in the crosswalk and whether plaintiff was crossing the street with due care. Galindo v Fausto


Interpleader   Motion to Dismiss   Reasonable Excuse   Prejudice  

First

Second third-party defendants’ motion to sever properly denied where second third-party plaintiff showed reasonable excuse for late interpleader and second third-party defendants failed to show prejudice since they would have ample time to complete discovery while pending motions for summary judgment were decided, even though original case was ready for trial. Range v Trustees of Columbia Univ. in the City of N.Y.


Legal Mal   Emotional Harm   Outrageous Conduct  

First

Defendant attorneys denied summary judgment on claims that they failed to file a motion to reopen plaintiff’s immigration case causing her to be deported and excluded from the US for 2 years except as to claims for loss of emotional harm which did not allege extreme and outrageous conduct. Trapp-White v Fountain


Legal Mal   Duty   Proximate Cause  

First

Defendant law firm entitled to summary judgment on proof that its representation was limited to litigating and negotiating a Yellowstone injunction and not any transactions, and that defendant’s work was not a proximate cause of the plaintiff’s damages. Superior Tech. Solutions, Inc. v Rozenholc

IF YOU MUST READ
(2 summaries)

Fraud   Vacate Default   Law Office Failure  

First

Defendants’ motion to vacate default in action seeking to set aside fraudulent transfers to shield defendants from prior personal injury judgment granted on proof that failure to timely answer was due to attorney’s mistake and that defendants have a potentially meritorious defense. Corcino v 4303 Baychester LLC


Serious Injury   Causation  

Second Deptartment

Defendant made out prima facie case for summary judgment on causation of injury but plaintiff raised an issue of fact of whether injury to right knee was caused by the accident. The court does not give the details of the proofs. White v Dangelo Corp.

About Matt McMahon

Civil trials and appeals since 1984
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