February 20, 2018 | Vol. 94

(7 summaries)

Discovery   Privilege  

Court of Appeals

In a case where plaintiff fell from a horse sustaining a traumatic brain injury, the Court of Appeals brings some clarity to discovery of Facebook and other social media. The Court eliminates the concept of a specialized or heightened factual predicate, finding that the issue is better framed by a well-tailored demand or court order under the existing test of “material and necessary” with protections against onerous requests and fishing expeditions. The private versus public designations no long have any bearing, only actual recognized privileges that are not otherwise waived by bringing suit. The lower court’s limitation for “nudity or romantic encounters,” though not subject to a privilege, was cited with approval by the Court. Forman v Henkin

Comment: Both sides will need to put concentrated efforts into establishing tailored demands and orders that can be presented to courts on motions and discovery conferences. Plaintiff attorneys should additionally review and revise the advice to their clients regarding these accounts.

Med Mal   Continuous Treatement   Statute of Limitations  

Court of Appeals

Where plaintiff had a chronic shoulder condition treated by defendant orthopedist including 2 surgeries and a 3rd performed by his partner because he had stopped doing surgeries, with gaps in treatment as long as 30 months and some appointments scheduled on an “as needed” basis, the Court of Appeals sets forth 2 clear rules of the continuous treatment doctrine.

  1. Advice to return “as needed” does not automatically foreclose a finding that the parties anticipated further treatment, and
  2. Treatment gaps longer than the statute of limitations do not automatically preclude the application of the continuous treatment doctrine.

Plaintiff raised triable issues of whether her treatment over 7 years for a chronic shoulder condition requiring multiple surgeries where she considered the defendant her only doctor was ongoing treatment for the same medical condition. There was 1 dissent. Lohnas v Luzi

Premises Liab   Elevator   Notice   Causation   Expert Aff  


NYCHA granted summary judgment despite failing to show that it did not have notice of problems with elevator that stopped several times while transporting plaintiff’s decedent who weighed 300-400 pounds. Plaintiff failed to submit an expert’s affirmation in opposition to NYCHA’s expert’s opinion that the delayed transportation time to the hospital was not the cause of the death where plaintiff’s decedent had flatlined and showed no signs of life for 1 hour before they attempted transporting her. Testimony of EMT that she decided to transport instead of declaring the decedent dead because there was a possibility that 30-year-old patient could have signs of life not detectable due to her weight was speculative and not to the level of a reasonable degree of medical certainty. Lebron v New York City Hous. Auth.

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


Defendants granted summary judgment on Labor Law §§240(1), 241(6) where they showed that plaintiff could not have fallen through the skylight if he had been tethered with the safety harness and rope in place on the roof that he had been instructed to use any time he was on the roof, establishing that plaintiff was the sole proximate cause of his injuries. Guaman v City of New York

Labor Law §240   Labor Law §200   Industrial Code   Notice   Control   Circumstantial Evidence  


Owner and contractor not entitled to summary judgment on Labor Law §241(6), §200 or negligence when carpenter stepped back off ladder and foot got caught in a hole which may have been covered by debris. Industrial code §12 NYCRR 23-1.7(e)(2)(tripping hazard, debris) was sufficiently specific and a jury could infer from carpenter’s testimony that there was debris “all over the place” that hole which he did not see before accident was covered by debris. For Labor Law §200 and negligence, plaintiff did not have to show that owner had control of work because it was a premises defect. Contractor who was on site failed to eliminate question of actual or constructive notice. Licata v AB Green Gansevoort, LLC

Premises Liab   Slip/Trip   Snow/Ice   Storm in Progress   Admissibility   Last Inspection   Raised For First Time  

Second Deptartment

Owner and tenant of property abutting sidewalk failed to meet their burden for summary judgment on storm in progress grounds where plaintiff testified that light rain started 15 minutes before her fall and there was no precipitation the day before, defendant’s office manager did not know the conditions on day of the accident or a reasonable time before the accident or the last time area was inspected, video and screen shots did not clearly depict the surface where plaintiff slipped, and climatological report wasn’t admissible because it wasn’t signed and notarized. Signed and notarized report submitted for the first time in reply should not have been considered. Brandimarte v Liat Holding Corp.

MVA   Bicycle   Renew  


Taxi driver’s motion to renew his motion for summary judgment that had previously been denied, granted where plaintiff’s eyewitness’ testimony at deposition taken after original motion contradicted statements in his affidavit submitted on the original motion and such new facts would have changed the outcome. Defendant granted summary judgment. Thomas v Gonzalez

(9 summaries)

Labor Law §240   Labor Law §240   Gravity Risk   Causation   Amend BP  


Defendant granted summary judgment on Labor Law §240(1) where worker injured when wooden cart holding 100-200 lbs of materials pulled on his arms as a makeshift ramp bridging a 5-6″ gap between the truck bed that was 8-10″ higher than a loading dock slipped and landed on the dock, because the elevation risk was not significant and the injury was not caused by failure to protect against the cart falling the 4’ to the ground. Plaintiff granted partial summary judgment on Labor Law §241(6) based on industrial code §23-1.22(b)(3)(ramps) but leave to amend BP to include industrial code §23-1.7(f)(vertical passage) should have been denied as distance was too small to constitute a vertical passage. Sawczyszyn v New York Univ.

Med Mal   Accepted Practice   Causation   Respondeat Superior   Expert Aff   Speculation  


Resident and hospital denied summary judgment on claim that resident could not exercise independent judgment in prescribing the dose of Valium given to plaintiff’s decedent who was intoxicated and flatlined dying 4 days later, where attending’s testimony as to whether the resident could and did exercise independent judgment which would subject the hospital to liability under respondeat superior raised a triable issue of fact. Movants’ expert’s opinion that “innumerable undefinable chemicals and toxins” in other substances he ingested caused plaintiff’s decedent’s death was speculation. Burnett-Joseph v McGrath

Premises Liab   Workers Comp Defense  

Second Deptartment

The court searched the record and granted summary judgment to a custodial assistant who worked for the custodial engineer who moved for summary judgment on the grounds that the plaintiff could not sue persons “in the same employ” as they were all employed by the DOE at the same location. Lupton v Pedersen

MVA   Pedestrian   Turning Vehicle   There to be Seen   Sole Cause  

Second Deptartment

Tractor-trailer owner and driver granted summary judgment where it had completed 85% of a turn when plaintiff stepped off curb and was struck by the back of the 48’ trailer, establishing that plaintiff failed to see what was there to be seen and was the sole proximate cause of her injury. Faulknor v Gina

Labor Law §240   1-2 Family Exception   Speculation  


Owners of vacation house granted summary judgment on 1-2 family exception to Labor Law §240(1) on proof that they were not present during the work and that no part of the premises were to be used for commercial purposes. Plaintiff’s claim that defendants might rent out the house when they were not using it was mere speculation. Domiguez v Barsalin, LLC

Premises Liab   Slip/Trip   Snow/Ice   Sidewalk   3rd Party Contractor   Dangerous Condition   Create Condition  

Second Deptartment

Contractor hired to build aquatic center for YMCA granted summary judgment on building owner’s 3rd party complaint on proof that it did not create any dangerous condition, nor did it entirely displace abutting landowner’s duty to maintain sidewalk. Tenant denied summary judgment where it failed to show that it did not try to remove the snow and that any removal attempts by or on its behalf did not create or exacerbate the dangerous condition. Hurk-McLeod v Slope Park Assoc., LLC

Serious Injury   Causation   ROM   Admissibility   Uncertified Records   Preexisting   Degenerative  


Defendants made out prima facie entitlement to summary judgment on serious injury by their doctors’ affirmed reports showing normal ranges of motion and negative objective test results but failed to show entitlement on issue of causation where their orthopedist acknowledged that the accident caused cervical and lumbar sprain that resolved. Plaintiff raised an issue of fact by doctors’ affirmed reports showing significant limited ROM and positive objective tests. Defendants’ neurologist’s equivocal statement that MRI he did not review “appeared to show pre-existing herniations,” was insufficient to raise pre-existing or degenerative causes and plaintiffs presented a “different, yet equally plausible, explanation — the accident” for the injuries. Unaffirmed records submitted by plaintiff were admissible to show that she sought contemporaneous treatment. Summary judgment for defendants on 90-180-day category based on BP and EBT showing that she was not confined to bed and home for that amount of time. Moreira v Mahabir

Premises Liab   Slip/Trip   Sidewalk   Prior Written Notice   Create Condition   Expert Aff   Speculation   NYC  


NYC granted summary judgment on proof that it did not have prior written notice of the hole at a curb and plaintiff’s expert failed to show how prior installation or repair of a pedestrian ramp and curb immediately caused a dangerous condition. Martin v City of New York

Premises Liab   Foreseeability  

Second Deptartment

Dave & Buster’s granted summary judgment on proof that criminal act resulting in customer’s stabbing was not foreseeable. Valente v Dave & Buster’s of N.Y., Inc.

(0 summaries)

About Matt McMahon

Civil trials and appeals since 1984
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