February 18, 2020 | Vol. 198

(6 summaries)

Set Aside Verdict   Pain/Suffering   Materially Deviates   Juror Confusion  

First Department
Plaintiff’s cross-motion to set aside $0/$0 past/future pain/suffering verdict as against weight of evidence and materially deviating from reasonable compensation where jury awarded $374,412/$2,589,353 for past/future lost earnings, $1,180,376 future medical expenses and past medical expenses stipulated at $124,088 granted if defendant did not stipulate to increase pain/suffering to $500,000/$500,000. Plaintiff’s failure to seek to set aside verdict as inconsistent at time of trial did not preclude motion to set aside as against weight of evidence and materially deviating. Defendants’ motion to set aside verdict denied where plaintiff’s expert’s opinion that loaded pallet required hoisting equipment and could not be hoisted or moved by hand jury confusion claim rejected. Natoli v City of New York

Comment: On jury confusion argument, lower court gave modified charge in response to jury question:

“The kind of accident triggering § [240(1)] coverage is one that will sustain the allegation that an adequate scaffold, hoist, stayed ladder or other protective device would have shielded the injured worker from harm directly flowing from the application of force of gravity to an object or person.”

“If you find that a protective device was required by 240 so as to give proper protection to plaintiff in the performance of his work, you will find for plaintiff. On the other hand, if you find that a protective device was not required by 240 so as to give proper protection to plaintiff, you will find for defendants.”

Med Mal   Motion to Dismiss   Renew   Statute of Limitations   Continuous Treatement   Raised For First Time  

First Department
Issues of fact existed on application of continuous treatment doctrine where physician failed to perform follow-up ultrasound or refer decedent to nephrologist upon MRI finding of renal cyst with complaints of back pain causing insomnia and hypertension consistent with renal cancer that was diagnosed 5-years later and doctor continued to treat decedent for symptoms of renal cancer until 1-month before decedent’s death. Continuous treatment doctrine may apply for failure to diagnose a condition, ‘as long as the symptoms being treated indicate the presence of that condition.’ 15-month gap in treatment did not preclude continuous treatment doctrine. Motion to renew to allow plaintiff’s expert to opine on malpractice during year decedent died should have been granted where defendant raised lack of such opinion for the first time in reply. Dookhie v Woo

Med Mal   Wrongful Death   Motion to Dismiss   Estate   Reasonable Excuse   Prejudice   Meritorious Action   Admissibility  

Second Department
Hospital’s and doctors’ motion to dismiss for failure to substitute new administrator for 4- years after original administrator’s death granted where claim that plaintiff’s attorney did not know of client’s death was insufficient excuse and plaintiff failed to show a meritorious action. DOH report finding defendants gave high dose of Dilaudid was prima facie proof of fact but plaintiff didn’t submit evidence it was a cause of death. Defendants showed prejudice where plaintiff failed to provide authorizations for records of preexisting conditions and pharmacy for treatment more than a decade ago. Navas v New York Hosp. Med. Ctr. of Queens

Premises Liab   Untimely   Renew   Duty   Lead Poisoning  

First Department
Condo owner’s motion to renew summary judgment motion originally denied as untimely should have been granted on proof that papers were received by court personnel on time even though not processed until after time for summary judgment motion. On renewal, defendant denied summary judgment for failure to show he could not be responsible under lead paint Local Law 1 of 2004 which includes owners of condominium units. M.G. v Pham

Late Notice of Claim   Amend Complaint   Statute of Limitations   Estoppel  

Second Department
Defendants’ motion for summary judgment for failure to timely serve a Notice of Claim granted where Notice of Claim served more than 2-years after incident without leave of court was a nullity and court was without power to grant leave as statute of limitations had expired when untimely Notice of Claim was served. School district was not collaterally estopped from raising Notice of Claim issue where it participated in discovery without notifying plaintiff that Notice of Claim was untimely. Sanchez v Jericho Sch. Dist.

Spoliation   Motion to Dismiss  

Second Department
Defendants’ motion to dismiss for failure to state a cause of action where plaintiff sued employer claiming that they destroyed forklift platform he fell off depriving him of ability to prove his case granted as there is no cause of action for impairment of employee’s right to sue or spoliation. Lopez-Lobo v U.S. Nonwovens Corp.

(22 summaries)

Set Aside Verdict   Materially Deviates   Pain/Suffering  

First Department
Judgment on verdict awarding $70,000/$0 past/future pain/suffering set aside unless defendant agrees to increase pain/suffering award to 275,000/100,000 for bimalleolar ankle fracture requiring surgeries for ORIF and removal of hardware. Thomas v New York City Hous. Auth.

Med Mal   Informed Consent   Accepted Practice   Causation   Expert Aff   Conclusory   Res Ipsa Loquitor   Agent  

First Department
Summary judgment denied anesthesiologist and Medical Center where plaintiff’s expert raised issues of fact on departure and causation for brachial plexus nerve injury from nerve block. Fellow granted summary judgment on proof she was supervised by attending and did not exercise independent judgment. Medical Center could be found vicarious liability for attending anesthesiologist based on ostensible agency where referring doctor did not specify which anesthesiologist to use and patient could reasonably conclude that anesthesiologist was provided by and acting on behalf of Medical Center. Plaintiff established questions of fact on res ipsa loquitor on conflicting expert opinions as to whether injury can occur absent negligence and instrumentalities were wholly within defendants’ control. Summary judgment for defendants on informed consent denied where expert opinion was conclusory without stating risks that should have been disclosed. Sklarova v Coopersmith

MVA   Vacate Default   Untimely   Reasonable Excuse   Meritorious Action   Respondeat Superior   Question of Fact  

Second Department
Plaintiff’s motion to vacate default in opposing defendants’ motion for summary judgment providently granted where plaintiff’s opposition papers served 6-days after deadline in scheduling order but within time under CPLR §2214 was due to law office failure of calendar service not notifying plaintiff’s attorney of scheduling order and plaintiff demonstrated meritorious opposition to motion by raising issues of vicarious liability on whether driver was acting within scope of employment in furtherance of defendant’s business. Singh v Sukhu

Comment: Malpractice claims against hospital and physicians treating plaintiff after accident resulting in bilateral leg amputations separately dismissed on statute of limitations grounds in separate decision reported in this vol.

Set Aside Verdict   Respondeat Superior  

First Department
Con Ed’s motion to set aside verdict granted on unrefuted proof its employees did not change light bulbs and did not do work within building where plaintiff was injured when she bumped into trash bag containing broken fluorescent light bulbs and plaintiff failed to show that person who changed light bulbs, even if a Con Ed employee, was acting within scope of employment. Gardner v Consolidated Edison Co. of N.Y., Inc.

Late Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice   Survelliance Video  

First Department
Petition to serve late Notice of Claim, made 6-months after accident, granted even though petitioner failed to offer reasonable excuse for delay where there was surveillance video of accident in respondents’ possession 6-months after accident, lift operator worked for respondents, and correspondence with carrier showed carrier was aware a claim would likely be made, establishing actual knowledge within 90-days or a reasonable time thereafter and lack of prejudice. Matter of Sproule v New York Convention Ctr. Operating Corp.

Med Mal   Vicarious Liab  

Second Department
Hospital and ophthalmology resident granted summary judgment on proof resident performed retrobulbar block injection under supervision of attending, did not exercise independent medical judgment, and attending’s instructions did not so greatly deviate from accepted practice that resident should have intervened. Tsocanos v Zaidman

Negligent Supervision   Strike Answer   Spoliation   Survelliance Video  

Second Department
School district granted summary judgment where second-grader was pushed down by another student in playground during recess and plaintiff’s cross motion to strike Answer for spoliation of surveillance video that district did not preserve after viewing it and seeing that incident was not on camera denied for failure to meet burden of showing that district was on notice of need to preserve video, that it was destroyed with a culpable state of mind, or that plaintiff was deprived of the ability to prove her case. Plaintiff did not specifically address summary judgment motion. N. H. R. v Deer Park Union Free Sch. Dist.

Labor Law §240   Labor Law §241   Gravity Risk   Safety Devices   Agent   Control  

First Department
Construction management company was owner agent under contract giving it broad coordinating and overall job safety responsibilities. Articulating lift plaintiff was on when it slid down ramp was a safety device to protect plaintiff working at an elevated height entitling plaintiff to summary judgment on Labor Law §240(1). Lind v Tishman Constr. Corp. of N.Y.

Premises Liab   Slip/Trip   Snow/Ice   Storm in Progress   Expert Aff  

Second Department
School district’s motion for summary judgment denied where its meteorologist and climatological data establish that snow and freezing rain 2-days before accident left snow and ice on ground on morning of accident and only a small amount of precipitation fell that morning. Defendant failed to eliminate questions on whether plaintiff fell on ice from prior storm even if there was a storm in progress. Daniel v East Williston Union Free Sch. Dist.

Premises Liab   Assumption of Risk   Question of Fact   Create Condition   Notice   Last Inspection  

Second Department
Roller skating rink denied summary judgment where issues of fact remained on whether plaintiff fell because skates got tangled in lanyard from glow stick dropped on surface by defendant from vending cart or she collided with her daughter. Issues remained on whether lanyard increased risks normally associated with roller skating. Defendant failed to show last time area was inspected necessary to establish lack of constructive notice. Saporito-Elliott v United Skates of Am., Inc.

Assault   Building Security   Question of Fact   Admissibility   Survelliance Video   Spoliation  

First Department
Nightclub denied summary judgment on conflicting stories of whether plaintiff was attacked by club’s bouncers in club or by third-party at another location. Phone video submitted by defendant properly excluded without authentication and it did not show entire event necessary to establish plaintiff was not attacked by bouncers in club. Defendant’s failure to take steps to preserve surveillance video that showed incident after being aware it would be necessary for litigation entitled plaintiff to negative inference for spoliation. Dunn v New Lounge 4324, LLC

Med Mal   Informed Consent   Accepted Practice   Causation   Expert Aff  

Second Department
Plaintiff raised issues of fact by expert opinion that defendants departed from accepted practice by failing to perform blood and urine tests given symptoms and decedent’s history and that this failure led to decedent not having timely treatment to avoid dehydration resulting in acute renal and liver failure causing death. Informed consent claim dismissed where plaintiff did not allege “any specific affirmative treatment or testing involving a violation of his physical integrity.” Rosenthal v Alexander

Late Notice of Claim   Notice of Claim   Court of Claims   Expert Aff   Reasonable Excuse   Highway Design   Meritorious Action  

Second Department
Claimant’s motion to serve late Claim to correct mistaken location in original Notice Of Intention To Claim denied where made more than 1.5 years after incident and proffered excuse that original attorney failed to adequately investigate location constituting law office failure was not a reasonable excuse especially where plaintiff’s father was a first responder at the scene, state did not have opportunity to investigate because of significant difference in location description, and plaintiff’s expert failed to tie accident where 17-year-old driver crossed over double yellow line into oncoming traffic to a specific road design defect. Hyatt v State of New York

Labor Law §241   Labor Law §200   Industrial Code   Control  

First Department
General contractor and building owner granted summary judgment on Labor Law §241(6) because protruding rebar dowel that caused plaintiff to trip was integral part of work being performed. General contractor granted summary judgment on Labor Law §200 and negligence claims where it did not control means and methods or supervise plaintiff’s work, and there was no evidence it directed contractors to cease using orange rebar dowels even if it was aware they had done so. Letterese v A&F Commercial Bldrs., L.L.C.

Labor Law §241   Labor Law §200   Control   Agent   Indemnity  

First Department
Scaffolding company was owner agent and exercised supervisory control over work plaintiff was performing when injured while dismantling scaffold entitling plaintiff to summary judgment on Labor Law §241(6). Scaffolding company denied summary judgment on Labor Law §200 and negligence where questions remained on notice and whether injury was result of the manner in which work was being performed. Building owner granted summary judgment on common law indemnity against scaffolding company based on company’s supervision of work. Vohra v Mount Sinai Hosp.

Estate   Settlement   CPLR § 5003-a  

Second Department
Administrator for plaintiff who settled personal injury claim entitled to substitute after injured party died in order to file judgment under CPLR 5003-a for defendant’s failure to pay settlement, even though case was settled. Rivera v Skeen

Renew   Workers Comp Defense  

First Department
Defendants’ motion to renew granted based on court overlooking prior order of another justice precluding plaintiff from submitting opposition and defendant granted summary judgment on proof that plaintiff was special employee of defendants who supervised all of general employer’s workers with authority to hire/fire, evaluate performance, and set policies and work schedules. Ortiz v Mar-Can Transp. Co., Inc.

Labor Law §240   Gravity Risk   Safety Devices  

First Department
Plaintiff who was injured when A-frame cart he and coworkers were pushing with 16 100lb cement boards tipped over causing boards to land on plaintiff’s leg when cart wheel got stuck and workers tried to move it entitled to summary judgment on Labor Law §240(1) because weight and height differential presented a significant gravity risk. Touray v HFZ 11 Beach St. LLC

Premises Liab   Slip/Trip   Sidewalk   Create Condition   Notice   Last Inspection  

Second Department
Abutting landowner failed to meet burden for summary judgment based on general inspection practices instead of proof of last time sidewalk where plaintiff tripped on pothole was inspected. Nsengiyumva v Amalgamated Warbasse Houses, Inc.

Med Mal   Vacate Default   Motion to Dismiss   Reasonable Excuse   Meritorious Action   Statute of Limitations  

Second Department
Defendant physician’s motion to vacate default granted on proof she was told by hospital, her employer, and risk management that they were aware of lawsuit and would respond by motion to dismiss as action was commenced after statute of limitations, providing reasonable excuse and meritorious defense. Motion to dismiss on statute of limitations granted. Singh v Sukhu

Comment: Summary judgment on MVA claims denied in separate decision reported in this vol.

MVA   Rear End   Speculation   Premature Motion  

First Department
Rear ended plaintiff entitled to summary judgment where defendants failed to put forth proof that alleged brake failure was unanticipated and that brakes were properly maintained relying only on speculation. Motion not premature where all parties were aware of facts. Quiros v Hawkins

MVA   Bicycle   Emergency Doctrine  

Second Department
Car driver granted summary judgment on emergency doctrine where plaintiff-bicyclist made left turn from shoulder into car’s lane suddenly and without warning. Selig v Diez

(1 summaries)

Ins. L. § 3420(a)(2)   Coverage  

Second Department
Plaintiff’s motion for summary judgment on claim that carrier was required to pay unsatisfied judgment under Ins. Law §3420(a)(2) denied and carrier’s cross-motion for declaratory judgment that disclaimer was valid granted where insured did not receive Summons/Complaint because it failed to keep address current with the Secretary of State precluding possibility that carrier would receive timely notice of claim and 4-month delay in receiving notice was unreasonable as a matter of law. Dritsanos v Mt. Hawley Ins. Co.

About Matt McMahon

Civil trials and appeals since 1984
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