February 7, 2023 | Vol. 351

(5 summaries)

Premises Liab   Building Security   Duty   Indemnity   Products Liab  

First Department
Residential facility for disabled persons had a heightened duty of care given residents’ conditions and restrictions and failed to eliminate questions of fact on whether it properly safeguarded plaintiff who was burned in fire in his apartment that triggered a fire alarm where no one responded for 12-hours.

Security company failed to meet burden for summary judgment dismissing third-party complaint where its interpretation of agreement would render the agreement meaningless but granted summary judgment dismissing warranty claim on proof it was outside the chain of distribution. Schoolfield v Services for the Underserved, Inc.    

Premises Liab   Building Security   Unknown Cause   Duty   Admissibility   Hearsay  

Second Department
Mall security officer could be found to have voluntarily assumed a duty to intoxicated customer by agreeing to escort her to her car if she justifiably relied on his agreement and it made her situation more vulnerable. Mall owner and security company established plaintiff could not identify what caused her to fall down interior stairs to get to her car but defendants’ motion for summary judgment denied on conflicting stories where plaintiff testified security officer told her husband to leave when the couple had a heated argument as they waited for the elevator and then told her he would walk her to her car but security officer’s report stated plaintiff was alone and intoxicated when he approached her and he told her to take the elevator but she refused, leaving questions of fact.

Security officer’s report admissible where director of security identified officer’s signature and established it was made in the regular course of business and it was their business to make such reports. Bardio v Rego II Borrower, LLC    

Malpractice   Accepted Practice   Causation   Loss of Chance   Experts   Conclusory  

First Department
Lower court improperly granted hospital’s motion for summary judgment where plaintiffs’ expert’s opinions raised issues on departure for not making reasonable efforts to contact the plaintiff-mother after she failed to arrive for a scheduled hospital transfer and a prenatal visit 6-days later when a progress report noted “Urgent Problem; Nurse to Call” and defendant’s expert’s addressed the issue only in conclusory terms.

Where all of the experts agreed the only treatment for the plaintiff-mother’s chronic massive perivillous fibrin deposition (MPFD) that caused the infant’s intrauterine hypoxia was delivery of the fetus, plaintiff’s expert’s opinion that the infant would have had a better result by early delivery and NICU therapies raised an issue on causation by loss of chance of a better outcome by delay in delivery even without quantifying the extent of the damage caused by defendant’s delay. Defendant’s expert’s all-or-nothing opinion of harm from MPFD did not exclude the possibility of a better outcome from early delivery. J.G. v St. Luke’s-Roosevelt Hosp. Ctr.    

Malpractice   Motion to Dismiss   Statute of Limitations   Respondeat Superior   Vicarious Liab  

Second Department
Motions to dismiss by PAs granted where plaintiff added them beyond statute of limitations as plaintiff failed to meet 2-of-3 prongs of relation back doctrine. The doctor defendants could not be united in interest with the PAs as they were not vicariously liable under respondeat superior since the PAs were employed by the practice, not the doctors, or for failure to supervise them where they did not directly supervise the PAs (“control in fact”). The PAs could not have known or should have known they would be included in the suit absent mistake where they were not aware of the suit until after the statute of limitations expired. Sanders v Guida    

Malpractice   Venue   Untimely   Discovery   Reargument  

First Department
Rehab center’s motion to change venue from Bronx to Westchester County based on venue selection clause in agreement providently denied as untimely where it possessed the agreement when the action was commenced, exchanged documentary discovery for more than a year, and didn’t offer an explanation for waiting 14-months after the action was commenced to make the motion. Claim it couldn’t make the motion until it deposed plaintiff rejected where the deposition was not scheduled until after its original motion. Motion to reargue denied. Williams v Bronx Harbor Health Care Complex, Inc.    

(14 summaries)

Note of Issue   CPLR 3404   Reargument  

Second Department
Lower court providently granted motion to reargue denial of plaintiff’s motion to restore action to the active trial calendar as it initially misinterpreted facts and law in dismissing Complaint as abandoned under CPLR §3404 where the Note of Issue was initially vacated for outstanding discovery with leave to refile on stipulation, not struck off the calendar due to plaintiff’s failure to appear at the conference, returning the action to pre Note of Issue status. Partanio v Federal Realty Inv. Trust    

IME/DME   Note of Issue   Waiver  

First Department
Defendant’s motion for a post Note of Issue IME/DME denied as substitution of counsel after Note of Issue is not ‘unusual or unanticipated circumstances’ and defendant waived the IME/DME by not complying with deadlines for it in multiple court orders. Villanueva v National Frgt., Inc.    

Asbestos   Motion to Dismiss   Personal Juridiction   Premature Motion   Discovery  

First Department
Valve manufacture’s motion to dismiss for lack of personal jurisdiction granted where plaintiff was exposed to asbestos working with manufacturer’s valves in Connecticut where he lived and manufacture’s prior president’s uncontroverted affidavit established its principal place of business and the vast majority of its business transactions were conducted in Connecticut. Presence of limited NY office for 12-year period insufficient to show nexus between NY and plaintiff’s injuries where none of the activities in the NY office were related to the products that exposed plaintiff to asbestos and there was no proof the manufacturer committed a tort in NY.

Plaintiff failed to show a sufficient basis to warrant jurisdictional discovery under CPLR §3111(d). Matter of New York Asbestos Litig.    

Malpractice   Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice  

First Department
Plaintiff’s motion for leave to file late Notice of Claim providently denied as NYCHHC did not have actual knowledge of essential facts where plaintiff’s expert opined injuries were caused by use of excessive traction but hospital record had no mention that traction was used during delivery and opinion that doctors should have used a different course insufficient for actual knowledge where records showed mother had 2-prior normal deliveries.

Plaintiff’s claim tht 5-year delay resulted from defendants’ assurances Erb’s palsy would improve with PT was not a reasonable excuse where mother brought child to another facility 4-months after birth because she was dissatisfied with the child’s progress from the therapy. Plaintiff failed to meet initial burden of showing no prejudice from delay. Cisse v New York City Health & Hosps. Corp.    

Malpractice   Notice of Claim   Actual Knowledge   Statute of Limitations   Reasonable Excuse   Prejudice   Raised For First Time  

Second Department
Municipal hospital granted summary judgment dismissing action claiming infant-plaintiff was injured during birth 15-years before action was commenced where no Notice of Claim was served. Plaintiffs’ cross-motion to serve late Notice of Claim denied as hospital did not have actual knowledge of essential elements where the records did not identify any injury to the infant-plaintiff during the birth process and therefore could not infer an actionable wrong by the hospital and plaintiffs excuses for the delay were raised for the first time in reply without explaining the 13-month delay in seeking leave after the action was commenced or providing proof the delay was caused by infancy. Plaintiff failed to provide evidence or a plausible argument that hospital was not prejudiced by delay and hospital was prejudiced in defending the action where the records did not provide the essential elements of the claim from 15-years earlier. Jara v Elmhurst Hosp. Ctr.    

Malpractice   Motion to Dismiss   Amend Complaint   Service   Waiver   Prejudice   Raised For First Time  

First Department
Plaintiffs’ motion to amend the Complaint to correct the name of the nursing home owner providently granted under CPLR §305(c) where that defendant conceded it was properly served, asserted a defense of improper service in its Answer without specifying how service was improper and did not move to dismiss within 60 days of the Answer, waiving the defense under CPLR 3211(e). That defendant not prejudiced by amendment where it was clear plaintiffs intended to sue the correct defendant and mistakenly added “LHSCA, LLC” to its name. Affidavit of service error not considered where not a purely legal issue and raised for the first time in appellate reply.

Separate LLC’s motion to dismiss granted on proof it was not formed until after decedent’s death and the statute of limitations expired prior to motion. Mariette v Amber Ct. of Pelham Gardens LHCSA, LLC    

Labor Law §240   Gravity Risk   Safety Devices  

First Department
Plaintiff who was ejected from power buggy when it hit debris and the brakes failed as plaintiff went down a slopped ramp entitled to summary judgment on Labor Law §240(1) as the buggy and brakes were safety devices and inadequate to protect plaintiff from a gravity risk. Pacheco v Trustees of Columbia Univ. in the City of N.Y.    

Labor Law §240   Safety Devices   Question of Fact  

First Department
MTA failed to make out entitlement to summary judgment dismissing Labor Law §240(1) claim where questions remained of whether adequate safety devices were or could be provided for rail worker who was injured when a makeshift aluminum pipe handle attached by a wire to a 15’-18’ rail weighing hundreds of pounds gave way as plaintiff and his coworkers tried to pull/push the rail on improvised rollers cut from aluminum pipe, whether some lifting was involved, whether the rail needed securing, and whether the injuries resulted from failure to provide protection against a psychically significant height differential. Vega v Metropolitan Transp. Auth.    

Settlement   General Release   Lien  

First Department
Plaintiff’s attorney’s email response ‘Confirmed. Thank you’ to carrier’s email confirming $85,000 settlement bound plaintiff to settlement where plaintiff’s attorney had authority to settle and reached the agreement with the carrier without any conditions. Plaintiff’s refusal to sign the general release was a mere ministerial act.

Subsequent emails regarding medical liens were not conditions of the original agreement and plaintiff could not claim fraud or mistake when she became dissatisfied with the amount after surgery as she knew the scope of her injury and need for surgery before the agreement. Guice v PPC Residential, LLC    

Malpractice   Accepted Practice   Causation   Experts   BP  

First Department
Defendants’ expert failed to show they did not depart from accepted practice or that their departures were not a cause of decedent’s injuries without addressing inaccurate record keeping allegations in the BP or inaccuracies and discrepancies in the record. Plaintiffs’ expert’s opinion that one of the doctors failed to properly supervise the PA and that decedent’s weight loss was a sign of pancreatic cancer conflicted with defendants’ expert, raising further issues of fact. Martinez v Ravi    

Pothole Law   Prior Written Notice   Create Condition   Notice of Claim   Snow/Ice   Speculation   NYC  

First Department
NYC granted summary judgment on proof it did not receive prior written notice of debris on park path plaintiff slipped on. Plaintiff’s claim of prior written notice exception by creation of a dangerous condition rejected where not included in the Notice of Claim and it was not a purely legal issue evident on the face of the record. In any event, plaintiff’s claim she was forced to walk on debris because of NYC’s snow/ice removal activities was speculative and failure to remove “all the snow or ice” is not an affirmative act of negligence. Ramos v City of New York    

Premises Liab   Unknown Cause   Speculation  

Second Department
Adjoining property owner granted summary judgment dismissing third-party claim that a branch from a tree on its property fell on plaintiff’s decedent’s car parked outside of third-party plaintiff’s home on EBT testimony of decedent and third-party plaintiff that neither could identify whose property the branch originated from. Any finding of negligence would be speculation. Rankin v Town of N. Hempstead    

False Imprisonment   Collateral Estoppel   Probable Cause   NYC  

First Department
Plaintiff’s claim of false imprisonment barred by collateral estoppel where federal court ruled in a prior case that the police officers had probable cause for the arrest and the probable cause did not dissipate after viewing a video of the assault.

There is no private right of action for violation of the NYS Constitution where plaintiff had a remedy at law for false imprisonment. Claims of defamation and slander per se for releasing to media that plaintiff was arrested for a hate crime dismissed where the statements were substantially true when made and the victim had not yet recanted her identification of plaintiff. Berrio v City of New York    

Serious Injury   ROM   Causation   Raised For First Time  

Second Department
Defendants’ expert failed to show plaintiff did not sustain a serious injury to his spine without comparing his ROM findings to normal ROM but showed plaintiff’s injuries were not caused by the accident. Plaintiff raised an issue on causation. Defendants’ argument on gap in treatment not considered where raised for the first time in reply and not addressed in lower court’s order. Carrier v Gleba    

(2 summaries)

Serious Injury   Causation  

Second Department
Defendant met burden for summary judgment on serious injury with competent medical proof that plaintiff’s injuries were not caused by the accident but plaintiff raised an issue in opposition on causation. The Court does not give the details of the proofs. Owens v Elrac, LLC    

Serious Injury  

Second Department
Defendants met burden for summary judgment on serious injury with competent medical proof but plaintiff raised issues in opposition on permanent consequential and significant limitation categories. The Court does not give the details of the proofs. Laguerre v MTA N.Y. City Tr. Paratransit Div.    

About Matt McMahon

Civil trials and appeals since 1984. Retired partner McMahon | McCarthy.
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