January 11, 2022 | Vol. 295

(4 summaries)

Serious Injury   Untimely   ROM   Experts   Speculation   Renew   Reasonable Excuse  

First Department
Plaintiff’s failure to explain why he didn’t obtain a narrative report in time to oppose defendants’ serious injury summary judgment motion justified denial of fourth adjournment of defendants’ motion and denial of plaintiff’s motion to renew, especially where examination for narrative report submitted on motion to renew was conducted after plaintiff asked for fourth adjournment. Narrative would not have changed result as it did not address plaintiff’s gap in treatment or treatment for prior back injury.

Defendants entitled to summary judgment on orthopedic report showing normal ROM, orthopedic and neurological reports showing all injuries resolved, and facts that plaintiff ceased treatment for 3-years and was treated for back pain from a prior accident. Rodriguez v 3rd Ave. Tr. Inc.    

Discovery   Privilege  

First Department
Order requiring Lufthansa Cargo to provide Cargo Screening Training Syllabus (CSTS) modified to require it to ask appropriate federal agency for permission to provide it as a CSTS is “Sensitive Security Information” requiring federal agency approval for disclosure. Naris v Hamilton    

Premises Liab   Stairs   Set Aside Verdict   Prejudice   Mistrial   Dangerous Condition   Building Code   Unknown Cause  

First Department
$350,000 verdict for plaintiff who fell down stairs set aside where lower court submitted plaintiff’s lack of handrail theory even though plaintiff did not argue steps were defective or required a handrail by code and it could not be determined if jury found on this theory where negligence question was nonspecific.

Plaintiff’s expert’s testimony of ROM based on her examination of plaintiff violated court’s preclusion of that testimony as examination report was not exchanged and door was not opened by defendant, but nonspecific nature of testimony was not so prejudicial as to require a mistrial. Testimony of Plaintiff and her boyfriend, building’s porter, of several dangerous conditions on stairs identified conditions from which causation could reasonably be inferred. Thompson v Rodney    

Construction Liab.   Duty   Espinal  

First Department
Lighting contractor denied summary judgment where plaintiff fell from black rotating stage and landed on black stairs with no handrails, additional lighting, or contrasting markings creating optical confusion. Contractor failed to show it merely followed plans when installing lighting and rotating stage as questions remained of whether it was so apparent plans and specifications would create or exacerbate a dangerous condition launching an instrumentality of harm under Espinal. Hamel v Park Ave. Armory    

(10 summaries)

Highway Design   Causation   Court of Claims  

Court of Appeals
Court of Claims finding that use of steel box beam to close off entrance to bridge, instead of DOT mandated W-beam, was not a substantial factor in decedent’s death was supported by record establishing decedent would have died if a W-beam were used. Reames v State of New York    

Comment: Appeal under §500.11 Rules from Fourth Department.

Malpractice   Accepted Practice   Causation   Loss of Chance   Experts  

First Department
Plaintiff’s gastroenterology expert’s opinion defendant-gastroenterologist departed from accepted practice by not performing an esophagogastroduodenoscopy (EGD) when she first saw plaintiff’s-decent failed to raise an issue as it ignored decedent’s improvement after treatment for an H. pylori infection and his epigastric history that were inconsistent with gastric cancer. Treating doctor was entitled to rely on the gastroenterologist’s determination not to order EGD.

Plaintiff’s oncology expert’s causation opinion that delay in ordering EGD “more likely than not allowed for a significant period of progressive cancer growth and extent that limited [the decedent’s] treatment options, as well as the expected extent of response to treatment” was conclusory without assessing cancer stage at initial consult, when subsequently discovered and “the resultant diminution in life expectancy or other injury.” Foster v Kassab    

Labor Law §241   Labor Law §200   Industrial Code   Control  

First Department
GC granted summary judgment of Labor Law §241(6) claim based on industrial code §23-1.7(e)(2) as air duct plaintiff fell from when climbing over it was an integral part of plaintiff’s demolition work, and of Labor Law §200 claim on proof only plaintiff’s employer supervised means/methods of work that led to air duct being placed on the floor and plaintiff testified he only received instructions from his foreman. Mateo v Iannelli Constr. Co. Inc.    

Building Security   Notice   Foreseeability   Causation  

First Department
Building owner and management company granted summary judgment on proof it posted a trained security guard at entrance, plaintiff and assailant entered together, and they walked to elevator together where they embraced establishing entrance was not negligently maintained, defendants had no reason to suspect assailant was an intruder or posed a danger. Plaintiff failed to raise issue in opposition where she could not recall her interaction with doorman due to her inebriation, assailant’s affidavit confirmed defendants’ claims, and plaintiff failed to submit proof of frequent criminal activity that would require additional precautions. Denison v 300 E. 57th St. LLC    

Premises Liab   Notice   Last Inspection   Trivial   Motion to Dismiss   Amend Answer   Workers Comp Defense  

First Department
Hospital failed to show lack of constructive notice of defect in floormat plaintiff tripped on where its witnesses did not know last time area was clean/inspected and general cleaning/inspection procedures are insufficient. As hospital did not meet its burden, plaintiff was not required to show how long condition existed. Hospital also failed to show condition was trivial and surrounding circumstances did not increase risk.

Hospital’s motion to amend Answer to include workers comp defense granted but motion for summary judgment on exclusivity clause denied without “clear demonstration of surrender of control” by staffing agency to hospital where plaintiff had previously been supervised by staffing agency and medical facilities. Williams v Beth Israel Hosp. Assn.    

Premises Liab   Stairs   Unknown Cause   Notice   Last Inspection   Experts   Building Code  

First Department
Defendants failed to show plaintiff could not identify cause of fall on stairs where plaintiff testified the 2-steps before the landing were “not at the same level,” and they failed to rebut plaintiff’s expert’s opinion the riser heights failed to meet applicable building codes. Defendants put forth no proof of who/how complaints were received to show lack of actual notice or last time stairs were inspected/clean for constructive notice. Their witness’s testimony he would have inspected it sometime during the day was insufficient to raise an issue and their testimony they did not receive violation/citations was irrelevant where they searched only for violations after the accident. Barreto v Grote St. Apts., L.P.    

Pothole Law   Prior Written Notice   NYC  

First Department
NYC granted summary judgment on finding that wooden board at temporary recreational program was a “public way, public place, or pedestrian walk” subject to prior written notice requirement and NYC established it did not receive prior written notice. Plaintiff also failed to show NYC created and had notice of the condition or made special use of the area. Matveeva v City of New York    

Malpractice   Motion to Dismiss   Causation  

First Department
Motion to dismiss legal malpractice claim against law firm representing plaintiff in underlying personal injury action where she tripped over a store employee’s foot granted as conclusory claim it failed to disclose an offer of settlement after plaintiff’s EBT and before defendant was granted summary judgment was insufficient to state a cause of action for legal malpractice without an allegation plaintiff would have accepted the offer and would not have sustained damages. Drasche v Edelman & Edelman    

Premises Liab   Notice   Speculation  

First Department
Plaintiff’s testimony and photographs of stair landing showing loose and broken tiles months before her accident raised issue on defendants’ constructive notice of the visible defect. Plaintiff’s testimony she did not see the broken tile before her accident but felt it under her foot and saw it immediately after her accident was not speculative. Melendez v Alliance Hous. Assoc., L.P.    

Construction Liab.   Indemnity  

First Department
Contractor entitled to summary judgment on proof it did no work in area until 5-days after plaintiff’s accident. Since its work was not responsible for plaintiff’s injuries, its contractual indemnity clause was never triggered. Upson v Oliveira Contr. Inc.    

(0 summaries)

About Matt McMahon

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