February 8, 2022 | Vol. 299

(4 summaries)

Premises Liab   Elevator   Res Ipsa Loquitor   Notice   Espinal   Spoliation  

First Department
Defendants denied summary judgment of res ipsa loquitor claim on argument they lacked notice of misleveling condition as notice is not an element of res ipsa loquitor, misleveling does not ordinarily occur absent negligence, and plaintiff not watching as she stepped into elevator is not type of voluntary act to take it out of the doctrine. Doctrine did not apply to building owner which ceded maintenance/repair responsibilities to elevator company in comprehensive contract but issues remained of whether it’s superintendent had actual or constructive notice of misleveling and failed to contact elevator company. Plaintiff’s circumstantial evidence did not constitute rare case where res ipsa loquitor eliminates all questions of fact for summary judgment. Plaintiff did not oppose summary judgment for owner and contractor who performed renovation before plaintiff’s accident.

Plaintiff not entitled to summary judgment on spoliation as she failed to show any documents were destroyed. Aponte v Bronx Preserv. Hous. Dev. Fund Corp.    

Malpractice   Informed Consent   Motion to Dismiss   Statute of Limitations   Continuous Treatement  

Second Department
Dentist who implanted prosthetics met showed action was brought more than 2.5 years after the alleged malpractice but plaintiff raised issues of continuous treatment by subsequent treating dentist’s opinion that her numerous surgeries to repair and replace the implants/prosthetics over 4-years were related to defendant’s initial malpractice of not diagnosing the bone condition that caused the prosthetics to fail. Plaintiff’s motion to strike this defendant’s affirmative statute of limitations defense denied where questions remained of whether plaintiff timely complained and returned for treatment to correct the condition in order to establish continuous treatment or mere continuation of the doctor/patient relationship.

Plaintiff’s Complaint and deposition testimony, submitted by defendant, showed plaintiff had a cause of action for breach of contract where dentist’s statements they would “last a lifetime,” and be like her own teeth promised a particular result. Signed consent forms disclaiming warranties were insufficient to dismiss breach of warranty claims where plaintiff spoke little English, could not understand the forms, and was instructed to sign them without a translation. Chvetsova v Family Smile Dental    

Malpractice   Untimely   Note of Issue  

First Department
In legal malpractice action [not involving a medical malpractice or personal injury claim] lower court properly entertained a summary judgment motion brought more than 120-days after Note of Issue as timely in light of COVID executive order extensions. Defendants granted summary judgment. Manouel v Dembin    

Premises Liab   Preclusion   Untimely   Discovery   Note of Issue   Prejudice  

First Department
Defendant failed to show court did not originally consider facts submitted on renewal and argument that COVID executive orders extending time limits affected its trial preparations and should be considered as a change in law that would change the determination rejected where the trial court originally granted motion prior to the executive orders precluding defendant from calling rebuttal witness who was not disclosed for 8-years after required by PC order, 2-years after Note of Issue, and plaintiff showed prejudice from the long delay and fact memories were likely to fade regarding the transient condition 9-years earlier. TavArez v Ronad Holding Corp.    

(12 summaries)

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

First Department
Medical records submitted on petition for leave to serve late Notice of Claim did not show NYCHHC had actual knowledge an act or omission of its medical staff caused an injury or that it had notice of petitioner’s claim within 90-days or a reasonable time thereafter, or lack of prejudice from 10-month delay in filing a late Notice of Claim. Petitioner’s claim she did not realize symptoms were result of a transected median nerve until after second surgery rejected where she delayed second surgery 9-months despite it being recommended on several occasions. Medical record and expert report not considered where submitted in reply.

Renewal motion denied where petitioner gave no excuse for not including subsequent expert medical report on original motion and report did not show NYCHHC had actual knowledge of essential elements within 90-days. Matter of Vijeu v New York City Health & Hosps. Corp.    

Malpractice   Accepted Practice   Causation   Experts   Conclusory   Speculation  

Second Department
Surgeon brought in mid-surgery to assist lead-surgeon who discovered large hole in plaintiff’s distal stomach that needed to be resected during gallbladder surgery granted summary judgment on defendants’ expert’s opinion assisting surgeon did not depart from accepted practice or cause plaintiff’s injuries, worked under direction of lead-surgeon, and did not exercise independent judgment. Gastroenterologist who removed gallstone by endoscopic procedure just before the gallbladder surgery granted summary judgment on expert’s opinion of no departure or causation. Plaintiffs’ experts failed to raise issues where their opinions were conclusory and speculative without addressing the specific opinions of defendants’ experts and opinion that gastroenterologist should have ordered a preoperative CT scan for gastric inflammation had no basis without explaining or showing an indication of gastric inflammation in the record. Bum Yong Kim v North Shore Long Is. Jewish Health Sys., Inc.    

Comment: Lead-surgeon’s motion for summary judgment had been denied and was not appealed.

Labor Law §240   Labor Law §200   Sole Cause   Control   Indemnity   Renew   Reasonable Excuse  

First Department
Worker who fell from sidewalk bridge when rotted wood plank he stepped broke granted summary judgment under Labor Law §240(1) as no safety devices were provided to prevent fall. Lack of witnesses did not bar summary judgment as nothing in record contradicted plaintiff’s version and plaintiff’s criminal convictions did not on their own raise an issue of his credibility. Given §240 violation, plaintiff could not be sole cause of accident and the harness instructions defendants relied on were from a different project and their own proof showed no lifeline was available to attach a harness to on the sidewalk bridge. Plaintiff denied summary judgment on Labor Law §200 and negligence claims against GC on questions of whether GC had authority to control plaintiff’s work.

GC’s contractual indemnity claim against sub-contractor who employed plaintiff denied as there was no indemnity agreement in the subcontract and fact sub-contractor named GC as additional insured did not create duty to indemnify. Scaffolding company’s motion to dismiss owner’s and GC’s common-law contribution and indemnity claims, where scaffolding company was found negligent, denied. Owner’s and GC’s motion to renew denied as new facts would not have changed determination and they failed to explain why they did not include them in original motion. Gutierrez v Turner Towers Tenants Corp.    

Labor Law §240   Falling Object   Safety Devices   Experts  

First Department
Construction worker struck by wrench coworker dropped 10′-15′ granted summary judgment on Labor Law §240(1) as NYCHA and contractor failed to provide safety devices to protect against falling objects required to be secured. Third-party defendant’s expert opinion wrench could not be used if tethered to parapet wall did not raise issue as it could be tethered to workers and NYCHA’s project manager did not disagree with accident report of different third-party defendant recommending tethering devices while working at heights to prevent such accidents. Plaintiff was not required to submit an expert opinion. Rincon v New York City Hous. Auth.    

Malpractice   Venue   Renew  

First Department
Defendants’ motion to change venue from New York to Nassau County denied where venue properly placed based on a plaintiff’s residence and defendants’ submission of only one potential witness which did not include substance or materiality of testimony failed to show inconvenience of witnesses. There is no presumption of inconvenience from trial in a different county.

Defendants’ motion to renew denied as fact 2-defendants became non-parties when case dismissed against them, even if considered a new fact, would not change result and defendants failed to show they would be inconvenienced. Pollack v St. Francis Hosp.    

Malpractice   Accepted Practice   Causation   Experts   Conclusory  

First Department
Post D&C pathology report showing ‘necrotic placental tissue’ remained in plaintiff’s uterus 2-weeks after delivery where delivering-defendant-OB/GYN manually removed the placenta raised an inference that placental tissue remained after the manual removal and together with plaintiff’s expert’s opinion delivering-OB/GYN failed to adequately examine the placenta left questions of fact on departure and causation.

Plaintiff’s expert’s conclusory and unsupported opinions and misstatements of evidence failed to raise an issue for defendant who performed D&C and failed to address defendant’s expert’s opinion that “seeing myometrium on D&C pathology was neither uncommon nor indicative of either an overaggressively performed D&C or a departure from the applicable standard of care.” Rong Lan Lin v Wong    

MVA   Default Judgment   Service   Reasonable Excuse   Meritorious Defense  

First Department
Plaintiff’s motion for default judgment denied where his papers showing Summons/Complaint mailing by Secretary of State under VTL §§253, 254 was returned “unclaimed” provided reasonable excuse for not answering and defendant’s explanation that accident occurred when plaintiff suddenly merged into his lane provided potentially meritorious defense. Savage v Baron    

Malpractice   Public Health §2801-d   Wrongful Death   Question of Fact   Experts  

First Department
Plaintiffs’ expert failed to raise issue in opposition to mursing home’s showing of entitlement to summary judgment of Public Health Law claims without shwowing any rules or regulations were violated. Competing opinions of nursing experts left questions of fact on wrongful death claim. Jackson v Northern Manhattan Nursing Home, Inc.    

Malpractice   Accepted Practice   Causation   Experts   Conclusory  

Second Department
Plaintiff’s expert’s opinion failed to raise an issue in opposition to defendants’ urology expert’s opinion they did not depart from accepted practice or cause injury to plaintiff when placing Foley catheter in ER for hematuria where it did not address defendants’ expert’s opinions and was otherwise not supported by the record. The Court does not give the details of the proofs. Lamalfa v New York Methodist Hosp.    

Labor Law §200   Question of Fact   Indemnity   Control   Create Condition   Notice   Workers Comp Defense  

First Department
Scaffolding company’s motion for summary judgment of Labor Law §200 and negligence claims denied on questions of whether construction worker’s fall from roof of sidewalk shed was caused by scaffolding company or plaintiff’s employer.

Motions to dismiss contractual indemnity claims of owner and its agent by exterior contractor, its subcontractor, and shed contractor denied where indemnity agreements properly authenticated but owner and agent not entitled to conditional summary judgment as §200 and negligence claims against them remain unresolved. Common law contribution and indemnity claims against exterior contractor dismissed as it did not control work, was not on site, and did not create or have notice of condition. Common law contribution and indemnity claims against plaintiff’s employer barred by workers comp exclusivity. Galeno v Everest Scaffolding, Inc.    

MVA   Admissibility   Uncertified Records   Feigned Issue  

First Department
Plaintiffs’ motion for summary judgment denied on conflicting versions of how accident between defendants’ school bus and plaintiff’s vehicle happened. Uncertified police report inadmissible to show defendant-driver’s affidavit raised feigned issues and, in any event, his statements in the police report did not contradict his affidavit. Concepcion v City of New York    

MVA   Rear End   Nonnegligent Explanation  

First Department
Plaintiff granted summary judgment on liability and dismissal of defendants’ affirmative defenses on proof she was rear-ended by MTA Bus Co’s vehicle. Claim plaintiff stopped short, without explanation of why defendants’ vehicle did not maintain proper distance, insufficient to raise an issue of nonnegligent explanation. Sigalovskaya v New York City Tr. Auth.    

(1 summaries)

Premises Liab   Appealable Order   NYC  

Second Department
Appeal dismissed where plaintiff conceded defendants were properly granted summary judgment but disputed court statement that she was unable to establish where she fell as no appeal lies from dicta. Kelly v City of New York    

About Matt McMahon

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