February 6, 2018 | Vol. 92

MUST READS
(5 summaries)
NOTEWORTHY IF YOU MUST READ

Med Mal   Late Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice  

First

Electrician providently granted leave to serve a late Notice of Claim where petition brought just before statute of limitations despite fact that HHC did not have actual knowledge of the essential facts within 90 days of its one time treatment of a deep thumb laceration which an MRI taken just after the 90 days revealed had a torn flexor tendon. Plaintiff’s attorney’s repeated requests for the medical records, which HHC did not respond to between the MRI and petition, provided a reasonable excuse and put HHC on notice of a possible claim switiching the burden of showing prejudice to HHC. General assertions of stale memories insufficient to show prejudice. While actual knowledge of the essential elements is the most important element in granting a petition to serve late Notice, no element is absolute, and it is up to the sound discretion of the lower court. There was 1 dissent. Matter of Townson v New York City Health & Hosps. Corp.


Premises Liab   Elevator   Labor Law §200   Dangerous Condition   Create Condition   Notice   Speculation   Wrongful Death  

First

Building owner and elevator consultant that supervised plaintiff’s decedent’s employer’s maintenance contract granted summary judgment on Labor Law §200 and negligence on proof that transformer plaintiff’s decedent came in contact with electrocuting him did not require a cover because it was in a cabinet and they were never notified by the Dept. of Buildings or consultant that it was dangerous or violated a building code. ANSI standard relied on by plaintiff’s expert was not a statute, ordinance, or regulation. There was 1 dissent. Bradley v HWA 1290 III LLC


Premises Liab   Out of Possession   3rd Party Contractor   Espinal  

First

Out of possession landlord with no duty to perform non-structural repairs granted summary judgment when drop ceiling collapsed and no statute was violated. Architect that designed restaurant was a third-party contractor and no Espinal exception applied. Architect had no control over the installation of the drop ceiling and could not have launched a force of harm. Dinkins v Kansas Fried Chicken, Inc.


Med Mal   Estate   Motion to Dismiss  

Second Deptartment

Lower court providently dismissed case against deceased chiropractor where plaintiff did not substitute estate within a reasonable time, but it was error to dismiss case against remaining defendants as they were not parties for whom substitution was required under CPLR 1021. Vicari v Kleinwaks


Med Mal   Informed Consent   Respondeat Superior   Jury Charge   Admissibility  

First

Lower court properly instructed jury they could consider acts of personnel other than the defendant doctor at the hospital in determining if plaintiff gave informed consent. Any error in instructing jury that hospital could be responsible for doctor on informed consent was harmless given jury’s finding that plaintiff gave informed consent.

Lower court providently precluded plaintiff’s attorney for using square plastic boxes as demonstrative evidence for hematomas that were neither square nor solid since they could mislead the jury. Bradshaw v Lenox Hill Hosp.

NOTEWORTHY
(12 summaries)
MUST READS IF YOU MUST READ

Labor Law §240   Sole Cause  

First

Worker granted summary judgment on Labor Law §240(1) where failure of chain fall supporting the load was a cause of him being knocked from the beam, eliminating any question of sole proximate cause or recalcitrant worker. Fraser v City of New York


Premises Liab   Sidewalk   Snow/Ice   Duty   Causation  

First

Summary judgment for hospital that had cleared a path on sidewalk, where plaintiff fell when stepping on snow piled on edge of sidewalk. Even if hospital had duty to clear a path from the street to the sidewalk somewhere, it’s duty was not to clear it on the precise spot where plaintiff fell. Plaintiff could not exit from the passenger side due to a medical condition. Tchouke v City of New York


Med Mal   Accepted Practice   Causation   Expert Aff   Conclusory  

First

Plaintiff’s emergency room expert failed to raise an issue of fact in response to defendants’ prima facie entitlement to summary judgment because his/her opinions that plaintiff suffered from end organ damage to his kidneys characteristic of a hypertensive emergency requiring hospitalization were not supported by the record and were conclusory. Asante-Tannor v Chang


Premises Liab   Create Condition   Notice   Circumstantial Evidence  

Second Deptartment

Contractor unloading asphalt from a dump truck that could be raised to level of wire that became loose and struck plaintiff as he rode his bicycle, denied summary judgment for failing to eliminate question of whether it created the condition. Engineer’s proof that it did not control the work entitled it to summary judgment and owner of pole and municipality that owned street granted summary judgment on proof that they did not create the condition or have notice of same. Goldfien v County of Suffolk


Venue  

Second Deptartment

Defendant’s motion to change venue from Kings to Orange County based on convenience of witnesses should have been denied as defendant failed to provide sufficient details of the witnesses’ willingness to testify, addresses, and prospective testimony. Questions of fact existed on placement of venue based on plaintiff’s residence which required a factual hearing. A party can have more than 1 residence for purposes of venue. Bikel v Bakertown Realty Group, Inc.


Premises Liab   Vacate Default   Compel Acceptance   Reasonable Excuse   Meritorious Defense  

First

Nursing Home’s excuse that 8-day delay in serving Answer resulted from efforts to get a complete copy of the Complaint was reasonable and VP’s affidavit that they had appropriate procedures in place to prevent the resident’s fall showed a meritorious defense sufficient to deny plaintiff’s motion for a default judgment and compel plaintiff to accept the Answer. Newyear v Beth Abraham Nursing Home


Premises Liab   Out of Possession   Create Condition   Notice  

Second Deptartment

Out of possession owner granted summary judgment on proof that it neither created the condition, front door which opened beyond landing and handrail which broke causing tenant to fall, nor had notice of it and plaintiff failed to raise an issue of fact in opposition. Amster v Kromer


Premises Liab   Notice   Last Inspection  

First

Defendant failed to eliminate question of fact on notice by failing to show the last time the area was cleaned or inspected. Gaps in plaintiffs’ case were not sufficient to eliminate questions of fact. Vargas v Riverbay Corp.


Vacate Default   Reasonable Excuse   Meritorious Defense   Prejudice  

Second Deptartment

Plaintiff’s motion to vacate his default in opposing defendant’s motion to vacate a default judgment and extend its time to file an Answer denied where plaintiff failed to show a reasonable excuse and meritorious opposition, even absent prejudice to the defendant. Law office failure may provide a reasonable excuse but not mere neglect. Nakollofski v Kingsway Props., LLC


Dental Mal   Accepted Practice   Causation   Expert Aff   Conclusory  

First

Dentists granted summary judgment on their experts’ opinions that they properly performed the mandibular block injection and that the injection could not have injured the nerves. Plaintiff’s experts failed to opine how the procedure was improperly performed or how it could have caused the alleged nerve damage. Almanzar v Rijos


MVA   Forum non conveniens   Motion to Dismiss  

First

Defendant denied dismissal for forum non conveniens (CPLR R. 327) where accident between NJ residents happened in NY, treatment was in NY, responding officer was in NY, at least 1 eye witness was in NY and NY/NJ defendants regularly cross the state line belying claim of inconvenience. Hall v Camacho


Discovery  

First

Defendants denied discovery of 25-year-old MVA accident where plaintiff broke his legs which was not relevant to construction accident resulting in brain injuries. Rohan v Turner Constr. Co.

IF YOU MUST READ
(2 summaries)
MUST READS NOTEWORTHY

Uninsured   Coverage   Stay Arb  

Second Deptartment

Petition to stay arb of uninsured motorist claim by county employee injured in an accident with an uninsured vehicle while driving a county vehicle denied. County had authority to be self-insured but was still required to carry uninsured motorist coverage. Matter of County of Suffolk v Johnson


SUM   Coverage   Stay Arb  

Second Deptartment

Whether exclusion for injuries in motorcycle accident where motorcycle is owned by insured in SUM policy applied to resident in policy holder’s home was an issue for the Supreme Court and not an arbitrator and arbitration should have been stayed pending factual hearing. Matter of Government Employees Ins. Co. v Williams

About Matt McMahon

Civil trials and appeals since 1984
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