February 28, 2017 | Vol. 43

MUST READS
(7 summaries)

Med Mal   Spoliation   Preclusion  

Second Deptartment

Lower court improvidently exercised its discretion in granting plaintiff’s motion to preclude defendant from raising any defense based on a defective suture for willfully discarding the suture during a second operation to repair a massive bleed from the original surgery the day before. While willful and intentional spoliation presumes that the item was relevant, where the destruction is negligent the party seeking spoliation must show relevance. Defendants submitted an expert affirmation that they did not depart from accepted practice by discarding the suture and plaintiff failed to show that the suture was relevant to the plaintiff’s claims and that the defendants were on notice that it should be preserved for future litigation. Without notice that it should be preserved, the destruction could not be considered willful. Golan v North Shore-Long Is. Jewish Health Sys., Inc.


Comparative Fault   Intervening Cause   Speculation  

Second Deptartment

The 17-year-old plaintiff’s actions of bypassing several barriers to access an elevated track, walk along the track, and attempt to cross a train bridge with limited clearance and no protective fencing was such reckless and extraordinary conduct as to break the chain of causation. Defendant also made out a prima facie case for summary judgment showing that it was not negligent and plaintiff’s opposition was mere speculation. Weimar v Metropolitan Transp. Auth.


Labor Law §240   Renew   Law of the Case  

First

Codefendant’s motion to renew argument on plaintiff’s motion for summary judgment based on Appellate Division decision in other defendant’s appeal from the original motion, reversing the grant of summary judgment on Labor Law §240(1), was proper as a “change in the law.” Upon renewal the lower court properly denied plaintiff’s motion for summary judgment based on law of the case. A motion to renew is not subject to time constraints. Morato-Rodriguez v Riva Constr. Group, Inc.


Discovery   Hippa  

First

The lower court properly denied the defendants’ motion to compel plaintiff to provide authorizations for HIV and mental health, alcohol abuse, or substance abuse records. Plaintiff’s allegations of general anxiety and mental anguish from back and leg injuries does not place her entire mental health records in issue. Defendants failed to show a compelling need for HIV and mental health/rehabilitation records. A CT scan of plaintiff’s cervical spine discovered during the in camera review of the records by the lower court should be disclosed to the defendants. There were 2 dissents arguing that recent mental health treatment records should be disclosed. James v 1620 Westchester Ave. LLC

Comment: The James case and the Tomei case below are important guidelines for the ever increasing demand that HIPAA authorizations be unlimited. These demands are partly the result of seeking information that could affect loss of enjoyment of life or life expectancy but increasingly related to medical providers refusing to comply with HIPAA authorizations where the HIV and mental health/alcohol abuse boxes are not checked. To comply with HIPAA, medical providers are required to review the records and redact those portions not authorized. This involves additional time, costs, and the risk that they can improperly release information not authorized. While HIPAA does not provide for a civil remedy for the patient, it does provide for up to a $100,000 fine per incidence. We are likely to see motions, petitions, and even OPMC complaints against providers who refuse to provide records unless those boxes are checked.


Discovery   Hippa  

Second Deptartment

The lower court properly denied defendant’s CPLR 3124 motion to compel plaintiff to provide an authorization for rehabilitation treatment as plaintiff withdrew his claims to recover for such treatment. Tomei v Town of Riverhead


Premises Liab   Elevator   Slip/Trip   Res Ipsa Loquitor   Directed Verdict   Set Aside Verdict   Preclusion   Missing Witness Charge  

Second Deptartment

Plaintiff was injured when she tripped exiting an elevator that had mis-leveled by 2”-3”. Plaintiff put forth sufficient evidence, including expert opinion, to warrant a charge on res ipsa loquitur and trial court properly denied defendant’s motion for a directed verdict at the close of plaintiff’s case. There was a sufficient basis for the jury to find the defendant negligent under res ipsa loquitor, and no basis to find the plaintiff partially at fault. Plaintiff did not have to show prior incidents of mis-leveling for res ipsa loquitur to apply.

Trial court providently exercised its discretion in precluding defendant’s expert who was disclosed only on the first day of trial, and in prohibiting the defendant from cross-examining plaintiff’s expert based on his opinions in other cases. Defendant not entitled to a missing witness charge as it did not show that plaintiff had control over the witness.

The trial court erred, however, in precluding defendant’s employee, who was assigned to help the defense with the technical aspects of the case, from sitting in the court room and communicating with defense counsel. Bew trial on liability ordered by the Appellate Division. Perry v Kone, Inc.


Med Mal   Wrongful Death   Hold Harmless   Indemnity  

First

Nurse staffing company’s settlement with plaintiff included a hold harmless clause for any claims made against the nurse staffing company. The nurse staffing company’s agreement with the co-defendant healthcare provider contained an indemnity clause in favor of the healthcare provider for any negligence by the nurses provided to the healthcare company. The healthcare provider’s motion for summary judgment based on the hold harmless clause in the settlement agreement with the staffing company was granted even though the nurse was ultimately found to be a special employee of the healthcare company because it did not change the language of either agreement. Any ambiguity in the settlement agreement would be resolved against the plaintiff who drafted it. Sokolovic v Throgs Neck Operating Co., Inc.

NOTEWORTHY
(24 summaries)

MVA   Set Aside Verdict   Causation  

Second Deptartment

Plaintiff’s motion to set aside defense verdict finding the defendant negligent but not a proximate cause of the accident denied. Evidence that the plaintiff, traveling over the speed limit when he struck the defendant’s car in the right rear panel while the defendant was trying to merge onto a highway provided a rational basis for the jury’s verdict. Plaintiff’s motion to set aside the verdict as inconsistent was not preserved as plaintiff failed to move on that ground while the jury was still present. Kohler v Barker


Punitive Damages   Attorney Fees   Police   NYC  

First

Jury verdict of $1 million for one plaintiff and $250,000 for other plaintiff against police officer, and attorney’s fees, was vacated by the Appellate Division. Evidence that the police officer pushed the first plaintiff against the wall and down to the ground was insufficient for punitive damages and evidence showed that the police officer did not accompany the first plaintiff in the car or at the precinct where the majority of the assaults occurred and was not involved with the second plaintiff at all. There can be no award of attorney’s fees without an award of punitive damages. Plaintiff’s attorney’s comments during trial, referring to a high-profile death case in an altercation with police, and the fact that he was a former assistant district attorney, while improper, did not deprive the defendant of a fair trial. Pizarro v City of New York


Late Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice  

Second Deptartment

Plaintiff’s petition for leave to serve a late Notice of Claim or deem the Notice of Claim timely served denied. The medical form relied on by the petitioner stated only that the infant plaintiff was injured when another student bumped into her during a recess. It did not give sufficient details of “the claim” to constitute actual knowledge within 90 days or a reasonable time thereafter. Plaintiff failed to put forth a reasonable excuse for the delay, and her claim that she was more concerned about her daughter’s injuries than hiring an attorney was insufficient. She also failed to show that the school district was not substantially prejudiced by the delay. Matter of A.C. v West Babylon Union Free School Dist.

Comment: It does not appear that the Court of Appeals language in Andrew J. Hain v. Angela J. Jamison requiring that the municipality first make a showing of prejudice before the burden shifts to the plaintiff has worked its way into the Appellate Division cases as of yet.


Premises Liab   NYC  

First

Defendant denied summary judgment for failing to make out prima facie case. The record search performed by NYC employee did not include concrete bus pads at bus stops and the NYC witness provided for deposition did not know whether the search would have included bus pads. The search was also limited to only 2 years although 10-13 years were available. The limitation of NYC’s disclosure did not change its burden when seeking summary judgment. Sull v City of New York


Labor Law §240   Safety Devices  

First

Plaintiff entitled to summary judgment on Labor Law §240(1) claim where he fell from scaffolding material stacked about 10’ above the ground on a flatbed truck. The only safety device provided was a harness without a place to attach the harness. Idona v Manhattan Plaza, Inc.


CPLR 3404   Strike Note of Issue  

First

Lower court improperly dismissed action pursuant to CPLR 3404 for failing to restore the case to the trial calendar within 1 year after it had been removed. When the case was removed from the trial calendar the court indicated that it should proceed as a pre-Note of Issue case giving it the status of a case that had not been placed on the trial calendar. CPLR 3404, which requires restoring to the calendar within one year, did not apply nor did 22 NYCRR 202.21(f)(requiring an affidavit of merit). Turner v City of New York


Sepulcher   Duty  

Second Deptartment

Plaintiff parents signed consent to have the fetus from a terminated pregnancy buried by the hospital but after a nurse told them that the fetus was a male, contrary to the genetic testing which showed it to be female, they sought an autopsy to confirm the gender. The hospital could not find the fetus for 2 months when they found it at the bottom of a bin with other body parts and limbs. The autopsy confirmed it to be a female. Plaintiff’s motion for summary judgment on right of sepulcher for the delay in having the autopsy was denied as the parents gave up the right to the immediate possession for burial by signing the consent form and there is no right of sepulcher for delay in performing an autopsy. There were, however, questions of fact on the issue of mishandling of the fetus. While a right of sepulcher action does not normally exist for a fetus less than 20 months, by agreeing to bury the fetus, the hospital voluntarily assumed a duty which may not otherwise have existed. There was 1 dissent. Zhuangzi Li v New York Hosp. Med. Ctr. of Queens


Premises Liab   Stairs   Handrail   Building Code   Dangerous Condition  

First

Building owner granted summary judgment upon proof that the stairs where plaintiff tripped and fell was an “access stair” between 2 floors and not an “interior stair” with a required exit as defined under the 1968 building code and, therefore, did not require handrails under the 1916 building code (which did not define interior stairs). Defendant also showed that the condition was not dangerous and was not a hidden trap. Plaintiff used the stairs for over 40 years without incident and knew that there were no handrails. She testified that she tripped because she failed to raise her foot high enough to clear the first step. Plaintiff’s expert’s opinion that the lack of handrails violated good and accepted engineering practices did not raise an issue of fact as the 1916 code was not violated and the 2008 code was inapplicable. Verderese v 3225 Realty Corp.


Med Mal   Accepted Practice   Proximate Cause   Expert Aff  

First

Defendants failed to show that they did not depart from accepted practice but made out prima facie entitlement to summary judgment on causation by their expert’s opinion that Phenergan, a commonly prescribed anti-nausea medication, had no causal connection to RSD and fibromyalgia. Plaintiff’s expert failed to raise an issue of the causal connection by her conclusory opinion that extravasation of Phenergan was capable of causing RSD, where she failed to address or acknowledge that plaintiff’s pain management specialist had ruled out RSD. She did not attempt to causally connect Phenergan to fibromyalgia. Lindsay-Thompson v Montefiore Med. Ctr.


Med Mal   Accepted Practice   Proximate Cause   Expert Aff  

First

Defendants denied summary judgment based on conflicting opinions of defendants’ and plaintiffs’ medical experts. Plaintiff underwent gallbladder surgery and suffered cardiopulmonary arrest several hours later leaving him in a vegetative state. Defendants made out their prima facie entitlement to summary judgment based on their experts’ affirmations that there was no departure from accepted practice because plaintiff’s vital signs were stable, and there were no signs of allergic reaction or overdose to morphine, when he was released from the postsurgical care unit and that the small dosage of morphine given was insufficient to cause the cardiopulmonary arrest. Plaintiff’s experts opined that the defendants missed specific signs of allergic reaction or overdose to the morphine, including slow waking, slurred speech, drowsiness, low blood pressure, rapid and shallow breathing, and oxygen saturation of only 95%, and that the dose of morphine given, while appropriate for a person of a younger age and in better health, could cause the cardiopulmonary arrest in this 61-year-old man with significant health problems. Quality of the opinions was an issue for the jury and not for summary judgment. There were 2 dissents. Severino v Weller


Premises Liab   Open/Obvious   Inherently Dangerous  

Second Deptartment

Grant of summary judgment to defendant reversed where plaintiff was walking through the lobby of the defendant’s catering hall crowded with people for a wedding reception when she tripped over a knee-high table. Given the surrounding circumstances, defendant failed show that the table was open and obvious and not inherently dangerous. An object which may otherwise be open and obvious and not inherently dangerous may become so when it is obscured by a crowd or through distraction. Dalton v North Ritz Club


MVA   Wrongful Death   Pedestrian   Set Aside Verdict   Directed Verdict  

Second Deptartment

There was sufficient evidence for the jury’s verdict in favor of the defendant where plaintiff claimed that plaintiff’s decedent was struck by the passenger side of the defendants’ vehicle. Plaintiff’s motion for directed verdict was not preserved as plaintiff did not move for a directed verdict at the close of the evidence. Scarpulla v Williams


Premises Liab   Scaffold   3rd Party Contractor  

First

Defendant contractor entitled to summary judgment on proof that plaintiff who fell off of contractor’s scaffold was a third-party contractor to the building owner and plaintiff failed to show any of the Espinal exceptions such as launching a force or instrument of harm, detrimental reliance, or that the contractor wholly displaced the owner’s duty to maintain the premises in a safe condition. Velecela v Perimeter Bridge & Scaffolding Co.


Premises Liab   Slip/Trip  

First

Building owner granted summary judgment against the pro se plaintiff, a maintenance worker who slipped and fell on pebbles on the bathroom floor that he was hired to clean. Cleaning workers have no claim for injuries suffered by condition they are hired to clean. Black v Wallace Church Assoc.


Premises Liab   Sidewalk   Unknown Cause  

Second Deptartment

Homeowners granted summary judgment based on plaintiff’s testimony at deposition where she could not identify what caused her to fall. Creighton v M&G Bakery


Premises Liab   Stairs   Snow/Ice   Slip/Trip   Notice  

Second Deptartment

Defendant granted summary judgment on proof that it had no actual notice of the thin layer of ice outside of plaintiff’s residence and that the condition did not exist long enough for the defendant to discover or remedy the condition. Cedeno v Higuita


Serious Injury   ROM  

First

Defendant made out prima facie entitlement to summary judgment on serious injury for cervical and lumbar spine as to one plaintiff by affirmed orthopedist and neurologist reports showing no limited ROM, and a radiologist’s opining that the MRI showed chronic degenerative disc disease with a superimposed herniated disc likely caused by trauma. That plaintiff raised an issue of fact regarding his lumbar spine by his treating doctor’s affirmed report finding limited ROM months after the accident and recently and opining that the injuries were caused by the accident given the absence of the degeneration or prior treatment and the plaintiff’s young age, providing a “different, yet equally plausible, because” of the injuries.

Defendant granted summary judgment on serious injury as to the other plaintiff based on affirmed reports of no limitations and radiologist’s opinion that the MRI was unremarkable with no evidence of trauma. Plaintiff failed to raise an issue of fact by submitting an un-affirmed report of his treating doctor which had only a electronic signature. Even if the electronic signature was sufficient, the physician failed to examine this plaintiff’s cervical and lumbar spine and plaintiff failed to submit any evidence to rebut the defendant’s radiologist’s opinion. Diaz v Almodovar


Serious Injury   Amend BP   Prejudice  

First

Defendant failed to address plaintiff’s claim of serious injury under the 90/180 day category and should not have been granted summary judgment. Defendant met its burden regarding plaintiff’s knee and shoulder injuries, and plaintiff failed to submit any medical evidence in response. Defendant’s expert’s affirmed report showed no limitations to the cervical and lumbar spine but plaintiff submitted an affirmed report and certified medical records showing limited ROM at several examinations and doctor’s opinion that the accident was the cause was sufficient to raise an issue of fact notwithstanding findings of minimal degeneration in his lumbar spine as he had no prior injuries to those areas. Plaintiff showed that defendant would not be prejudiced by amendment of the BP to include the cervical and lumbar injuries and that motion should have been granted. Vishevnik v Bouna


Premises Liab   Strike Note of Issue   Consolidation   IME/DME   Prejudice   Workers Comp Defense  

Second Deptartment

Lower court should have granted motion to strike Note of Issue and order plaintiff to appear for an IME/DME where motion was made 2 weeks after Note of Issue and plaintiff failed to show any prejudice. Motion to consolidate should also have been granted regarding a subsequent case started against a newly discovered defendant involving the same accident. Moses v B & E Lorge Family Trust

Comment: In a related appeal the lower court’s grant of summary judgment to one defendant based on a finding that it was the alter ego of the plaintiff’s employer was also reversed. While the two companies had similar names and were subsidiaries of the same overall company, defendant failed to show that it had control over the day-to-day operation of the work. Moses v B & E Lorge Family Trust.


MVA   Rear End   Nonnegligent Explanation   Emergency Doctrine  

First

Defendants’ position that they rear ended the plaintiff’s car because the plaintiff came to a sudden stop and the road was icy did not provide a nonnegligent explanation. The emergency doctrine did not apply as the defendant was aware of the icy road conditions and was required to maintain sufficient distance behind the car in front of him to be able to stop in the event of a sudden stop. James v 1620 Westchester Ave. LLC


MVA   Rear End   Nonnegligent Explanation  

First

Defendants, taxi driver and owner, granted summary judgment where taxi plaintiff was a passenger in rear ended their taxi which was stopped in traffic. Even if the first vehicle stopped suddenly, there would have to be a nonnegligent explanation for the rear end collision. Plaintiff granted summary judgment against the taxi she was a passenger in. Bajrami v Twinkle Cab Corp.


Legal Mal   Statute of Limitations   Serious Injury   Reargument  

Second Deptartment

Defendant denied summary judgment, after reargument below, on its argument that even if it committed malpractice by missing the statute of limitations in the underlying MVA, plaintiff did not sustain serious injuries based on plaintiff’s testimony, submitted by defendants, that she was confined to home for two months and out of work for 10 months establishing an issue of fact on the 90/180 day category. Detoni v McMinkens


False Arrest   False Imprisonment   Assault   Battery   Probable Cause   Police   NYC  

First

Defendants granted summary judgment on claims of false arrest, false imprisonment, assault, and battery upon proof that officers had probable cause where plaintiff and her companions refused to leave theater at request of theater manager and police officer because they were smoking marijuana. Police officer smelled the marijuana and observed the plaintiff refusing to leave at the lawful request of the manager and the officer. Wilson v City of New York


Premature Motion  

Second Deptartment

Defendant’s motion for summary judgment brought five months after the action was commenced should have been denied. Parties should have a reasonable opportunity to conduct discovery before a motion for summary judgment. Martino v Midtown Trackage Ventures, LLC

IF YOU MUST READ
(4 summaries)

Indemnity   Labor Law §241  

First

Where third-party plaintiff and third-party defendant agreed that there was no contract between them, claim for “contractual indemnity” was properly dismissed but there existed an issue of fact on common law indemnity. Defendant’s and third-party defendant’s motion to dismiss the Labor Law §241(6) claim was deemed abandoned. Wunderlich v Turner Constr. Co.


Vacate Arb   EUO  

First

Arbitration award in favor of medical provider assigned rights under no-fault law was vacated because it irrationally ignored evidence that assignor failed to appear for 3 scheduled EUO’s. Country-Wide Ins. Co. v Radiology of Westchester, P.C.


SUM   Coverage   Stay Arb  

Second Deptartment

Carrier failed to put forth evidence at a framed issue hearing, in admissible form, showing that the offending vehicle had insurance and petition to stay arbitration should have been denied. Matter of Fiduciary Ins. Co. of Am. v Greenidge


Serious Injury  

Second Deptartment

Lower court’s grant of summary judgment on serious injury threshold reversed for defendant’s failure to make out a prima facie case for summary judgment. The court does not give the details of the proofs. Miller v Johns

About Matt McMahon

Civil trials and appeals since 1984
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